text:
    Brian LANCASTER, Appellant, v. The STATE of Texas, Appellee.
    Nos. 10-08-00025-CR, 10-08-00027-CR, 10-08-00028-CR, 10-08-00029-CR, 10-08-00030-CR.
    Court of Appeals of Texas, Waco.
    May 26, 2010.
    Discretionary Review Refused Sept. 15, 2010.

      Richard E. Wetzel, Austin, for Appellant.
    Bill R. Turner, Dist. Atty., Danny Smith Jr., Asst. Dist. Atty., Brazos County, Bryan, for Appellee.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   OPINION

FELIPE REYNA, Justice.

A jury convicted Brian Lancaster of 100 counts of possession of child pornography in these five cases and assessed his punishment at ten years’ imprisonment and a $10,000 fine on each count. Lancaster contends in three points that: (1) the court abused its discretion by refusing to permit him to ask during voir dire whether the jurors could be fair and impartial in a hypothetical case involving sexual molestation of children; (2) the court erred by ordering the sentences to run consecutively; and (3) the orders cumulating his sentences violate the federal and state constitutional prohibitions against ex post facto laws. We will modify the judgments in trial court cause no. 07-01488-CRF-272 (appellate cause no. 10-08-00025-CR) and affirm the judgments in that case as modified. We will affirm the remaining judgments.

Voir Dire

During voir dire, Lancaster was questioning the venire members about whether they had been sexually abused or had a close friend or relative who had been. He then proposed to ask, “If, in a hypothetical case — we’re not talking about this case— but there’s evidence of sexual molestation of young children, could you be fair and impartial in deciding guilt or innocence of a defendant?” The trial court sustained the State’s objection to this question and did not permit him to ask it. He rephrased the question to ask whether those venire members who had been sexually abused or knew someone who had been felt “so strongly about the experience you had that you could not be fair and impartial in this case.”

Appellant’s first point requires us to determine whether this is a proper voir dire question under Standefer v. State, 59 S.W.3d 177 (Tex.Crim.App.2001), and Barajas v. State, 93 S.W.3d 36 (Tex.Crim.App.2002). The State argues that this is an improper commitment question.

In Standefer, the Court defined a “commitment question” as one for which “one or more of the possible answers is that the prospective juror would resolve or refrain from resolving an issue in the case on the basis of one or more facts contained in the question.” 59 S.W.3d at 180. The Court then provided an example of a question which does not meet this definition.

Of course, many questions in voir dire are not commitment questions and are not covered by this opinion. For example, the question, “[I]f the victim is a nun, could [the prospective juror] be fair and impartial?” does not ask the prospective juror to resolve or refrain from resolving any issue. A juror could be “fair” and still take into account the victim’s status as a nun where that status is logically relevant to the issues at trial or fail to do so if the juror perceived that the victim’s status as a nun should not be controlling.

Id. (footnote omitted) (quoting Nunfio v. State, 808 S.W.2d 482, 484 (Tex.Crim.App.1991)).

The Court further explained that, “for a commitment question to be proper, one of the possible answers to that question must give rise to a valid challenge for cause.” Id. at 182.

In Barajas, the Court reviewed the propriety of counsel’s attempt “to ask venire members if they could be fair and impartial in a case in which the victim was nine years old.” 93 S.W.3d at 37. The Court began its analysis by briefly addressing two types of improper voir dire questions: (1) an improper commitment question under Standefer; and (2) a “question that is so vague or broad in nature as to constitute a global fishing expedition.” Id. at 38-39. After examining different reasons counsel may have sought to ask the question at issue, the Court concluded that the question constituted a “global fishing expedition” which the trial court was within its discretion to prevent. Id. at 41-42.

One of the potential rationales for the challenged question in Barajas was “to determine whether venire members would consider the victim’s age during the guilt phase of the trial.” Id. at 39. The Court stated:

If a venire member stated that she would resolve the appellant’s guilt on the basis of the victim’s age, that venire member would be challengeable for cause. But that is not the question that the appellant asked. The trial court may, within its discretion, require that parties phrase questions in a way that is precise enough to glean relevant information from the venire member’s answer.

Id.

The question propounded by Lancaster was designed to determine whether venire members would determine his guilt for possession of child pornography based on “evidence of sexual molestation of young children.” If a venire member responded that he or she would decide Lancaster’s guilt on the basis of such evidence, that venire member would be challengeable for cause. See id. The question was not too vague or indefinite as to constitute an improper “global fishing expedition.” Cf. id. at 41-42.

The question was not a commitment question because it did not ask prospective jurors to resolve or refrain from resolving any issue. See Standefer, 59 S.W.3d at 180.

Thus, the court abused its discretion by preventing Lancaster from asking the question. This error is of constitutional magnitude, violating the right to be heard found in article I, section 10 of the Texas Constitution. See Jones v. State, 223 S.W.3d 379, 382-83 (Tex.Crim.App.2007); see also Tex. Const, art. I, § 10. Thus, we must reverse the conviction unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. See Tex.R.App. P. 44.2(a); Jones v. State, 264 S.W.3d 26, 28 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd). We consider the following in making this determination:

(1) any testimony or physical evidence admitted for the jury’s consideration; (2) the nature of the evidence supporting the verdict; (3) the character of the alleged error and how it might be considered in connection with other evidence in the case; (4) the jury instructions; (5) the State’s theory and any defensive theories; (6) closing arguments; (7) voir dire; and (8) whether the State emphasized the error.

Jones, 264 S.W.3d at 28 (citing Rich v. State, 160 S.W.3d 575, 577-78 (Tex.Crim.App.2005)).

The jury heard evidence regarding more than 20,000 images or video recordings of child pornography recovered from Lancaster’s computer. Among these were images and video recordings of him molesting his nieces and two of his former wife’s piano students. The State also offered his testimony from a previous trial in which he discussed his exposure to pornography as a child, his sexual experiences as a child, his prior criminal history including an arrest for indecency with a child, his molestation of the nieces and the piano students, and his collection of child pornography.

The record contains overwhelming evidence supporting the guilty verdicts. See Wall v. State, 184 S.W.3d 730, 746 (Tex.Crim.App.2006) (the existence of overwhelming evidence “may be an important factor in the evaluation of harm”). It is undisputed that the images of child pornography were recovered from Lancaster’s computer. Lancaster himself admitted to possessing these images in his previous trial. He does not challenge the sufficiency of the evidence to support his convictions.

To the extent the evidence of Lancaster molesting these girls constitutes an extraneous offense, the court instructed the jury in the guilt-innocence charge that jurors could consider extraneous-offense evidence only if they found beyond a reasonable doubt that Lancaster had committed the extraneous acts and only for the purpose of showing his “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, if any.”

During closing argument both sides referred to at least one incident of molestation, arguing in particular about whether it constituted a “lewd exhibition of the genitals,” a form of sexual conduct. See Tex. Pen.Code Ann. § 43.25(a)(2) (Vernon Supp. 2009).

Especially in light of the overwhelming evidence of Lancaster’s guilt and his admission at the previous trial that he possessed child pornography as alleged, we are convinced beyond a reasonable doubt that the error did not contribute to his conviction. See Tex.R.App. P. 44.2(a); Jones, 264 S.W.3d at 28-30. Thus, we overrule his first point.

Cumulation of Sentences

Lancaster contends in his second point that the court erred by ordering the sentences to run consecutively because a prior version of section 3.03 of the Penal Code applies and requires that his sentences be served concurrently.

The issue is whether section 3.03(b)(3)(A) of the Penal Code, enacted by the 79th Legislature to take effect on September 1, 2005, applies. Section 3.03(b)(3)(A) provides:

(b) If the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of:
(3) an offense:
(A) under Section 21.15 or 43.26, regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of both sections.

Tex. Pen.Code Ann. § 3.03(b)(3)(A) (Vernon Supp.2009). Under prior law, if a defendant were convicted in a single trial of multiple charges of possession or promotion of child pornography, then the sentences would have to run concurrently. See id. § 3.03(a) (Vernon Supp.2009).

The savings clause for the 2005 legislation provides as follows:

The change in law made by this Act applies only to an offense committed on or after September 1, 2005. An offense committed before September 1, 2005, is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For the purposes of this section, an offense was committed before September 1, 2005, if any element of the offense was committed before that date.

Act of May 23, 2005, 79th Leg., R.S., ch. 527, § 3, 2005 Tex. Gen. Laws 1429, 1430.

Lancaster contends that the former law applies because the evidence establishes that his conviction for possession of child pornography under count 17 in trial court cause no. 07-01488-CRF-272 (appellate cause no. 10-08-00025-CR) is based on a video recording he acquired in 2004, before the 2005 amendment took effect. The State responds that the current statute applies because Lancaster maintained possession of the video recording in question after the amended version of the statute took effect.

Lancaster acquired the video recording on March 4, 2004 and deleted it on May 5, 2004. Despite this “deletion,” the video recording remained on his computer in unallocated file space and was still there in January 2007 when the computer was seized pursuant to a search warrant. See Ty E. Howard, Don’t Cache Out Your Case: Prosecuting Child Pornography Laws Based on Images Located in Temporary Internet Files, 19 Berkeley Tech. L.J. 1227, 1234 n. 22 (2004). Lancaster’s attempted deletion did not dispossess him of the recording. Id. at 1254-55 (“the possession of the image begins when the image is cached and ends when the file is deleted and overwritten by other data”).

“[T]he Legislature intended in cases like this to make possession of each item of child pornography an ‘allowable unit of prosecution.’ ” Vineyard v. State, 958 S.W.2d 834, 838 (Tex.Crim.App.1998); see Witt v. State, 237 S.W.3d 394, 397 (Tex.App.-Waco 2007, pet. ref'd); Roise v. State, 7 S.W.3d 225, 232 (Tex.App.-Austin 1999, pet. ref'd). Thus, Lancaster’s maintaining of possession of the video recording from March 2004 until January 2007 was a single prosecutable offense. Id. He could not be prosecuted separately for each day, week, month or year he maintained possession of the recording.

The savings clause unambiguously provides that the former statute applies if any element of the offense was committed before September 1, 2005. See Dickens v. State, 981 S.W.2d 186, 188 (Tex.Crim.App.1998) (addressing similar savings clause). Lancaster acquired the video recording in March 2004, more than a year before the 2005 amendments to section 8.03 took effect. In fact, every element of the offense was committed before September 1, 2005, and thus the former statute applies. See Williams v. State, 71 S.W.3d 862, 864 (Tex.App.-Texarkana 2002), rev’d on other grounds, 114 S.W.3d 920 (Tex.Crim.App.2003); Harvill v. State, 13 S.W.3d 478, 481 (Tex.App.-Corpus Christi 2000, no pet.). Therefore, the court erred by ordering Lancaster’s sentence under count 17 in trial court cause no. 07-01488-CRF-272 (appellate cause no. 10-08-00025-CR) to run consecutively.

The proper remedy for such error is to modify the judgment to delete the unlawful cumulation order. Beedy v. State, 250 S.W.3d 107, 113-14 (Tex.Crim.App.2008). In applying this remedy, Lancaster further argues that, because the prior version of section 3.03(b) applies to count 17, it necessarily applies to all counts for which he was convicted. We disagree.

Lancaster first refers to section 3.03 and to the savings clause and observes that both speak with reference to an “offense” as opposed to “offenses.” We initially note that, assuming for the moment that he was not charged with or convicted of count 17, Lancaster does not dispute that the current version of section 3.03 would otherwise apply. Section 3.03(b) permits consecutive sentences if “each sentence is for a conviction of [an offense under section 43.26].” Tex. Pen.Code Ann. § 3.03(b)(3)(A). As the Texarkana Court has explained:

The statute does not reflect that the Legislature intended to prevent the State from seeking to have sentences running consecutively if they fell within subsection (b) of the act even if other charges arising from the same criminal episode were also prosecuted as a part of the single criminal action. The purpose of subsection (b) is to allow sentences to run concurrently or consecutively for the types of crimes specifically set out without changing the rule for other crimes that are part of the criminal episode but do not fall within these categories.

Kuhn v. State, 45 S.W.3d 207, 209-10 (Tex.App.-Texarkana 2001, pet. ref'd).

There is nothing that prohibits the State from prosecuting in a single trial offenses arising out of the same criminal episode even if some of the offenses were committed under one version of the law and others were committed under a different version.

Our research has disclosed several cases in which an appellate court approved judgments requiring some, but not all, of a defendant’s sentences to run consecutively where the law permitted cumulation of sentence for only some of the offenses for which the defendant was tried. See Yvanez v. State, 991 S.W.2d 280, 282-88 (Tex.Crim.App.1999); Garza v. State, 687 S.W.2d 825, 329-30 (Tex.Crim.App.1985); DeLeon v. State, 294 S.W.3d 742, 746-48 (Tex.App.-Amarillo 2009, pet. ref'd); Kuhn, 45 S.W.3d at 209-10.

Therefore, we will modify the judgment to reflect that Lancaster’s sentence under count 17 does not run consecutively but his other sentences do. We sustain Lancaster’s second point in part.

In light of our disposition of Lancaster’s second issue, we need not address his third point which complains of an ex post facto violation. See Tex.R.App. P. 47.1.

We modify the judgments in trial court cause no. 07-01488-CRF-272 (appellate cause no. 10-08-00025-CR) by deleting the unlawful cumulation order in count 17 and modifying the cumulation order in count 18, and we affirm those judgments as modified. We affirm the remaining judgments.

Chief Justice GRAY concurring and dissenting with note.

      . As with the victim's status as a 9-year-old in Barajas, “sexual molestation of young children” is not a fact of consequence that tends to prove or disprove Lancaster's guilt for possession of child pornography, except that the State had to prove that the images in question depicted a child engaging in sexual conduct. See Tex. Pen.Code Ann. § 43.26(a)(1) (Vernon 2003); Barajas v. State, 93 S.W.3d 36, 39 (Tex.Crim.App.2002).

      . Relying on Judge Meyers's dissent in Bara-jas, one commentator has observed that "it is now difficult for parties to distinguish between proper and improper commitment questions, because the modified Standefer test now requires that commitment questions lie somewhere between fact-specific and vague. However, the majority in Barajas never says, with absolute certainty, where the proper medium lies.” Esperanza Guzman, Comment, Standefer v. State: The Creation of the Criminal Defendant's Diminished Right to a Trial by a Fair and Impartial Jury, 37 Sr. Mary’s L.J. 477, 507-08 (2006). The question at issue in this case appears situated "where the proper medium lies." See id.

      .Article I, section 10 provides in pertinent part, "In all criminal prosecutions the accused ... shall have the right of being heard by himself or counsel, or both.” Tex Const art. I, § 10.

      . Section 3.03(a) provides:
      When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, a sentence for each offense for which he has been found guilty shall be pronounced. Except as provided by Subsection (b), the sentences shall run concurrently.
      Section 3.03(a) has remained unchanged since 1995. See Act of May 26, 1995, 74th Leg., R.S., ch. 596, § 1, 1995 Tex. Gen. Laws 597, 597 (current version at Tex. Pen Code Ann. § 3.03(a) (Vernon Supp.2009)).

      .
      When a computer user deletes a file, it is not simultaneously removed from her computer. The physical location on the hard disk where the deleted file resides is marked by the computer as unallocated file space, which allows it to be overwritten. The file is not actually removed from the computer until another file overwrites it. While the file is marked for deletion (but not yet overwritten), it exists in unallocated file space. Forensic software allows an investigator to search and view the contents of the unallocated file space.
      Ty E. Howard, Don’t Cache Out Your Case: Prosecuting Child Pornography Laws Based on Images Located in Temporary Internet Files, 19 Berkeley Tech. L.J. 1227, 1234 n. 22 (2004).

      . "Significantly, the time period of possession does not end when a user deletes the image because the image is only marked for deletion — it still physically exists on the computer, albeit in a different format.” Id. at 1255 n. 157.

      . The "allowable unit of prosecution” is a double jeopardy concept. See Ex parte Hawkins, 6 S.W.3d 554, 556-57 (Tex.Crim.App.1999).
      The Double Jeopardy Clause is offended if a defendant is successively prosecuted for the same offense. The legislature defines whether offenses are the same. It does so by prescribing the "allowable unit of prosecution,” which is "a distinguishable discrete act that is a separate violation of the statute."

        Id. at 556 (quoting Sanabria v. United States, 437 U.S. 54, 69-70 & n. 24, 98 S.Ct. 2170, 2181-82 & n. 24, 57 L.Ed.2d 43 (1978)).

      . The defendants in Williams and Harvill were convicted of criminal non-support based on their failure to pay child support both before and after the penalty for the offense was changed. See Williams v. State, 71 S.W.3d 862, 864 (Tex.App.-Texarlcana 2002), rev’d on other grounds, 114 S.W.3d 920 (Tex.Crim.App.2003); Harvill v. State, 13 S.W.3d 478, 481 (Tex.App.-Corpus Christi 2000, no pet.). The trial court in both instances applied the new punishment range. See Williams, 71 S.W.3d at 864; Harvill, 13 S.W.3d at 482. Both intermediate courts of appeal found this to be error because an element of the offense in each instance had occurred before the effective date of the statutory amendment. See Williams, 71 S.W.3d at 864-65; Harvill, 13 S.W.3d at 481-82. The Court of Criminal Appeals reversed in Williams because the defendant had stipulated that his offense occurred after the amendment took effect. See Williams v. State, 114 S.W.3d 920, 921-22 (Tex.Crim.App.2003).

      . The trial court entered a separate judgment for each of the 100 counts for which Lancaster was convicted. The court ordered his 20 sentences in trial court cause no. 07-01488-CRF-272 (appellate cause no. 10-08-00025-CR) to run sequentially. Thus, his sentence under count 17 was to begin to run after his sentence under count 16 had ceased to operate. Accordingly, we will modify these judgments by: (l) deleting the cumulation order for count 17 so that the sentence under count 17 commences on the date of imposition of sentence, December 13, 2007; and (2) modifying the cumulation order for count 18 so that the sentence under count 18 begins to run after the sentence under count 16 ceases to operate.

      . Lancaster generally contends in his third point that the application of the current version of section 3.03(b) to offenses committed before September 1, 2005 constitutes the imposition of an ex post facto law. Although he implies that many of the offenses for which he was convicted occurred before this date, the only offense that he specifically identifies as having occurred before this date is the one under count 17.

       Chief Justice Gray would affirm the trial court’s judgments without modification. He does not join any part of the opinion and concurs in the judgment except to the extent that it reduces the sentence by running some concurrent with others, noting that all elements of the offense occurred after the date the statute was modified to allow stacking of the sentences and the date of acquisition is not an element of the offense. A separate opinion will not issue.


source: Caselaw Access Project

author: EVELYN V. KEYES, Justice.

license: Public Domain

text:
    William Michael PROCTOR, Appellant, v. The STATE of Texas, Appellee.
    No. 01-08-01041-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 24, 2010.
    Published in Part Pursuant to Tex. R. App. P. 47.
    Reconsideration En Banc Denied Aug. 5, 2010.

      Thomas A. Martin, Houston, TX, for Appellant.
    Eric Kugler, Assistant District Attorney of Harris County, Houston, TX, for Appel-lee.
    Panel consists of Justices KEYES, HANKS, and HIGLEY.
   OPINION

EVELYN V. KEYES, Justice.

A jury convicted appellant, William Michael Proctor, of capital murder. The trial court sentenced appellant to life in prison without parole. In seven points of error, appellant contends that: (1) the evidence was legally insufficient to support the verdict; (2) the evidence was factually insufficient to support the verdict; (3) the trial court erred in not granting his motion for a new trial; (4) the trial court erred in not providing an in camera review on his motion to require disclosure of the identify of an informant relating to a Crime Stoppers tip; (5) the trial court erred in admitting a suggestive photo array shown to two witnesses; (6) the trial court improperly admitted hearsay evidence during the direct examination of Detective M. Miller; and (7) he received ineffective assistance of counsel.

We affirm.

BACKGROUND

The complainant, Rosendo Rios, owned the El Ranchito nightclub in southwest Houston. On the night of June 10, 2007, two men entered Rios’s bar, one man, appellant, was a tall white man and the other was an African-American. The men had visited the bar individually on the Friday and Saturday nights before the murder. On the night of June 10, the two men entered and exited the bar numerous times, but were on the property for around two hours. After having been at the bar for nearly two hours, appellant and his co-conspirator exited the bar, approached a taco stand, and appellant committed two robberies at gunpoint. As these robberies occurred, Rios’s employee in the taco stand used a special signal that alerted him, through security cameras, that something was wrong. Rios left his office, went out the back door of the bar, and walked towards the taco stand. As appellant completed the robberies, his co-conspirator entered the taco stand and took approximately $140 from the register. Appellant approached the front of the taco stand and fired his gun, killing Rios. After appellant shot Rios, he attempted to enter the taco stand, but his co-conspirator restrained him, and the two ran to a car and fled.

Police officers arrived seven minutes later. Detectives M. Miller and A. Belk, of the Houston Police Department, were assigned to the case.

The two principal witnesses, Alma Urbi-na, the employee in the taco stand, and Irma Ibarra, a bartender, described appellant to the detectives. The detectives established a third party as a potential suspect, and put a photo of him into a photo array that they showed to Urbina. Urbina could not identify anyone in the array as the shooter.

On June 25, the detectives had Urbina and Ibarra describe appellant to a police sketch artist, who produced a sketch. Officials from the police department also contacted Schepps Dairy, a subsidiary of Dean Foods, a public corporation that financially supports Crime Stoppers. Schepps volunteered a $5,000 reward for anyone who would provide the police department with information on the shooting. The police publicized the sketch and the reward in the local media on June 25, 2007. On June 26, the police received a tip indicating that the killer lived at 2530 Copper Valley, in Houston, Texas.

The detectives went to the address provided by the tipster and spoke with an African-American woman, Carolee Proctor. After denying that a white male lived in the apartment, Proctor invited the detectives inside. While in the apartment, the detectives saw a photograph of Proctor and appellant hugging. Proctor admitted to the detectives that she was married to appellant, but told the detectives that he was in Louisiana with his sister and that she did not know his cell phone number. Approximately fifteen minutes after the detectives left Proctor’s apartment, appellant called them. He told Detective Belk that he was in Louisiana and implied that he had been in Louisiana when the murder occurred.

On July 5, appellant consented to come to the police station to speak with the officers. While he was in the police station, the officers took photos of appellant’s face and his tattoos. The detectives put appellant’s photo into a new photo array, and Detective Miller showed that array to Urbina and Ibarra, both of whom identified appellant as the shooter. Detective Miller asked the complainant’s brother, Leroy Rios, to translate for him when he showed the photo array to Ibarra and Ur-bina. The complainant’s widow was also present for both identifications.

The State obtained an indictment against appellant for capital murder alleging that appellant killed Rios with a gun while attempting to rob Alma Urbina. On July 11, 2007 the police arrested appellant. Following his arrest, appellant was placed in an area of the jail that also housed an acquaintance of his, Joseph Adams.

Before trial, appellant filed a motion to discover the identity of the person who provided the tip in which the police learned appellant’s address. Appellant claimed that Schepps was not a Crime Stoppers organization, so that information provided to it was not privileged, and that the identity of the person who provided the tip was exculpatory and thus he was entitled to it. He requested a hearing and in camera review of the information in the Crime Stopper’s tip. Schepps and the State filed motions to quash. The trial court held a hearing in which appellant’s counsel claimed he believed the information was exculpatory because appellant was being “set up.” The trial court granted the motion to quash without conducting an in camera review.

Prior to trial, appellant also filed a motion to suppress the photographic identification based on Urbina’s and Ibarra’s identification of appellant from the photo array. The trial court carried the motion with the trial. During trial, the trial court held hearings on the photo array outside of the presence of the jury. It found Detective Miller and Ibarra credible and allowed them to testify about the photo array and to identify appellant in court. The trial court did not enter findings on Urbina’s credibility, but it allowed her to testify to the photo array and to identify appellant in court.

At trial, the State called twelve witnesses and the defense called nine. The State first called Ibarra. She testified that on the night of the murder she was working as a bartender in Rios’s bar. Appellant and an African-American man had been in the bar and were drinking Corona beer. They were conspicuous because the overwhelming percentage of the bar’s patrons were Hispanic, and, on the night of the murder, the bar had only about fifty customers in it. Appellant and the African-American man played pool intermittently for almost two hours, beginning around ten or eleven at night. Appellant came up to Ibarra’s bar asking for change, and he and the other man went in and out of the bar several times. Ibarra testified that she got a “good look” at appellant. Around 1:00 a.m., a fight broke out, and Ibarra went into Rios’s office to get him, but he was not there. Approximately five minutes later, she heard a sound “like when somebody steps [on a can],” and went to the front of the bar, where she saw Rios “laid out,” bleeding, and trying to speak. Ibarra held him and told him to be quiet. Although he continued to speak, she could not understand him. Ibarra called 911.

At the hospital, Ibarra spoke with police officers and told them that the shooter had a big tattoo on his left arm, a large tattoo on his neck, light colored eyes, an earring, and a small mustache. Over objection from defense counsel, she identified appellant in the photo array that Detective Miller presented to her. She then identified appellant in the courtroom.

The State next called Urbina. Urbina testified that she was working in the taco stand on the night of the murder. She testified that Rios had recently installed a security camera in the taco stand that did not record, but that allowed him to observe the taco stand from his office. Rios instructed Urbina that if there was a problem she should put a jar in front of the camera so that he would be alerted and could come assist her.

On the night of the murder, Urbina saw appellant and an African-American man enter and exit the bar several times. She testified that she had not seen them at the bar the night before, but that she had seen the African-American man at the bar two nights before the murder. The area outside of the bar was well lit, and she testified that she could see them clearly as they entered and exited. She witnessed appellant rob a man, and then she watched as he robbed another man who had come to help the first victim. She testified that appellant robbed them both at gunpoint. The African-American man did not have a weapon.

As appellant robbed the two men, Urbi-na moved her jar to indicate to Rios that something was wrong, and she then attempted to call Rios. While she was on the phone trying to reach Rios, the African-American man who had been with appellant entered the taco stand, demanded money, and then took approximately $140 from the till. She never saw him with a weapon. She saw appellant shoot the gun, attempt to enter the taco stand, be restrained by the African-American man, and then flee in a dark colored car with four doors. She found Rios lying in blood between a row of cars and his bar.

Urbina described the shooter to the police as approximately six feet four inches tall, between 150 and 160 pounds in weight, 25-30 years old, and having a shaved head, a small amount of light colored hair, a small moustache, a light beard and a tattoo on the back of his neck that looked like wings. She identified appellant in the second photo array that Detective Miller presented to her, and she identified appellant in court.

The State then called Leroy Rios. Rios testified that he first met Ibarra and Urbi-na on the night of the murder and that Detective Miller later asked him to translate for him when he presented the photo array to Ibarra and Urbina. He testified that he and Rios’s widow followed Detective Miller to Urbina’s house, where he translated as Detective Miller showed Ur-bina the photo array. After Urbina identified appellant in the photo array, Detective Miller, followed by Leroy Rios and the complainant’s widow, went to Ibarra’s house. Rios’s wife was present when Ur-bina and Ibarra viewed the photo array. Leroy Rios testified that Urbina and Ibar-ra both identified appellant.

The State then called Detective Miller. He testified that, on June 12, 2007, he showed a photo array to Urbina that contained a picture of the first suspect in the case. Urbina could not identify anyone in the photo array. The day after a Crime Stoppers reward was publicized, the police received a tip that the shooter lived at 2530 Copper Valley, but the tip included no additional information. The following day, he and his partner went to that address and encountered Carolee Proctor. Detective Miller testified over appellant’s hearsay objections to statements made to his partner and him by Carolee Proctor. Following that interview, he had a new photo array made that included a photograph of appellant, and he asked Leroy Rios to help him locate Urbina and Ibarra and to accompany him to translate as they viewed the new photo array. Detective Miller identified appellant in court, but testified that appellant had gained between 50 and 60 pounds since his arrest.

Detective Miller also testified that he requested appellant’s cell phone records from AT & T on September 5, 2007. The records showed that appellant’s phone was used in Houston on the day of the murder, but that no calls were made or received from approximately 9:30 p.m. on the night of the murder until approximately 9:30 a.m. on the morning after the murder. The records also showed that appellant’s phone was used in Louisiana on June 12, 2007.

Joseph Adams, who was incarcerated in the Harris County jail awaiting trial, testified that he approached appellant in jail because he recognized him from the Acres Homes subdivision in Houston. He testified that this is a predominantly African-American section of Houston, but that appellant was seen there frequently and was referred to as “White Mike.” He testified that he saw appellant “in the streets, [and at] dog fights.” Appellant told him that he had been arrested for a “BS capital murder.” Appellant indicated that he had been charged with capital murder because, while he was in a bar, he began to argue with a woman; he and his friend were escorted from the club; and he went to get his pistol and “took care of business.” Adams then testified that while he was in jail he heard appellant on the phone and heard him tell the other person, “Just tell your uncle I left the phone in the truck.” He also testified that appellant sought to get tattoos while in jail to alter his appearance. Defense counsel did not cross-examine Adams.

The State then called Dr. Albert Chu, an assistant medical examiner for Harris County, who testified that a gunshot to the head killed Rios. The defense did not cross-examine Dr. Chu.

As its first witness, the defense called Dr. Frank Barnes, an orthopedic surgeon. Dr. Barnes testified that appellant had surgery on his ankle on April 23, 2007 and that it would have been unlikely, but possible, that appellant could have run six weeks after the surgery without pain or a limp.

The defense then called Carolee Proctor. She testified that on the night of the murder, around 10:00 p.m., she, appellant, and Salvador Hernandez were in a pizza restaurant. On cross-examination she admitted that her previous statement in an affidavit indicating that appellant was in Louisiana on the night of the murder was not truthful. The defense also called Hernandez, a friend of appellant’s, who testified that appellant and Carolee Proctor were with him at the pizza restaurant on the night of the murder.

The defense then called Ernesto Rojas, a licensed computer forensic investigator. Rojas testified that on June 10, 2007 appellant’s phone was used around his apartment in Houston, but the last call was at 9:47 p.m. on the night of the murder. Nothing in the cell phone records indicated that the phone was used in or near Louisiana on the night of the murder.

Finally, the defense called Labertha Dunbar, appellant’s mother-in-law. She testified that appellant had gained weight since his wedding on May 19, 2007, but that otherwise his appearance had not changed significantly since the wedding. She testified that appellant was in Houston on the night of the murder.

The juiy was instructed on the law of parties and convicted appellant of capital murder. The trial court sentenced him to life in prison without parole.

Appellant filed a motion for new trial on January 16, 2009, claiming that a juror took notes and that the notes were considered during deliberations. The trial court did not rule on appellant’s motion for new trial, and it was overruled by operation of law.

CRIME STOPPERS’ PRIVILEGE

In his fourth issue, appellant contends the trial court erred in holding that the “crime stoppers” privilege applied to prevent disclosure of the documents related to the identity of the informant who provided the police with appellant’s address and in failing to conduct an in camera review of the information provided.

Appellant filed two motions and a subpoena duces tecum requesting the disclosure of all information obtained by the police from the crime stopper’s tip, arguing that this tip might contain exculpatory information. Specifically, appellant asked for the trial court “to require the state to provide the defendant with any information regarding the defendant obtained by the police through the ‘Crime Stoppers’ Program....” On August 18, 2008, he filed a second motion in which he asked the court “to instruct the prosecution and Crime Stoppers organizations to reveal the true name and present addressees of all informers and all reports of communications regarding the homicide of Mr. Resen-do Rios on the 11th day of June 2008....” Appellant also attached a subpoena duces tecum for Schepps demanding all information related to the payment of money for a crime stoppers tip. Schepps and the State both filed motions to quash appellant’s motions for disclosure and his subpoena duces tecum.

The trial court held a hearing on the motions to quash. After determining that Schepps was a crime stoppers organization, the trial court granted the State’s and Schepps’ motion to quash appellant’s request for disclosure of the identity of the informant. Appellant then asked for an oral amendment to his motion for disclosure so that the trial court could review the documents in camera to determine whether the material was potentially exculpatory. The court granted appellant’s request to amend his motion, and then held a hearing on the record. At the hearing, defense counsel argued for in camera review of the evidence to determine if it was exculpatory on the ground that he believed the tip was provided by “the individual who was involved in the actual homicide or somebody who’s just being vengeful about [appellant] because of some issues between them.... ” The trial court denied the motion to quash without conducting an in camera review of the crime stoppers records.

1. Applicability of Crime Stoppers Privilege

Appellant first argues in his fourth issue that Schepps’ rewards program is not a crime stopper’s organization, as required for the crime stoppers privilege to apply.

Evidence of a communication between a person submitting a tip to a crime stoppers organization is not admissible in a court proceeding except as provided by statute. See Tex. Gov’t Code Ann. § 414.008(a) (Vernon 2005). In relevant part, Section 414.008 of the Government Code provides:

(a) except as otherwise provided by this section, evidence of a communication between a person submitting a report of a criminal act to the council or a crime stoppers organization and the person who accepted the report on behalf of the council or organization is not admissible in a court or an administrative proceeding.
(b) records of the council or a crime stoppers organization concerning a report of criminal activity may not be compelled to be produced before a court or other tribunal except on a motion:
(1) filed in a criminal trial court by a defendant who alleges that the records or report contains evidence that is exculpatory to the defendant in the trial of that offense;
(c) on motion of a movant under Subsection (b), the court may subpoena the records or report. The court shall conduct an in camera inspection of materials produced under subpoena to determine whether the materials contain:
(1) evidence that is exculpatory to the defendant....

Id. § 414.008(a)-(c)(l).

Section 414.001(2) of the Government Code defines a “crime stoppers organization” as:

(A) a private, nonprofit organization that is operated on a local or statewide level, that accepts and expends donations for rewards to persons who report to the organization information about criminal activity and that forwards the information to the appropriate law enforcement agency; or
(B) a public organization that is operated on a local or statewide level, that pays rewards to persons who report to the organization information about criminal activity, and that forwards the information to the appropriate law enforcement agency.

Id. § 414.001(2)(A)-(B). The statute does not define “public organization.”

Schepps is a wholly owned subsidiary of Dean Foods, a publically owned corporation. Ed Spencer, the administrator of Schepps’ crime stoppers rewards program, testified at the hearing on the State’s and Schepps’ motions to quash the subpoena of Schepps’ crime stoppers records. • Spencer testified that Schepps started its rewards program as a component of its philanthropic endeavors to help provide justice and relief to the victims of certain violent crimes after one of its milkmen was killed in the early 1970’s. After Schepps was acquired by Dean Foods, the program was extended to other dairies and other states, but it continues to operate through Schepps in Houston, Dallas, and Fort Worth, Texas. The program provides money to persons who supply law enforcement officials with information concerning selected crimes.

Spencer testified that the Schepps crime stoppers organization is independent of the Harris County Crime Stoppers program but that the two often coordinate efforts. Sometimes Schepps decides to post an award and contacts local law enforcement agencies; sometimes, as here, it is contacted by a law enforcement agency and asked to post a reward for information leading to an arrest. Schepps does not operate a tip line of its own; rather, its reward announcements instruct persons offering tips to contact the law enforcement agency with which it is coordinating its efforts. Schepps generally offers a $10,000 reward, but when, as here, two persons are involved in a crime, it offers $5,000 for information leading to each arrest. The rewards program is financed by the individual dairies, and the money for it comes out of the dairies’ operating budgets.

We conclude that, although Schepps is a for-profit organization and a subsidiary of a public corporation, its rewards program is a private non-profit organization that accepts funds contributed from Schepps’ income and expends donations for rewards to persons who report to the appropriate law enforcement agency. We thus conclude that the crime stoppers rewards program in which Schepps participates qualifies as a crime stoppers organization within the scope of section 414.001 (2)(A) of the Government Code. See id. § 414.001(2)(A) (providing definition for “crime stoppers organization”); In re Hinterlong, 109 S.W.3d 611, 622-23 (Tex.App.Fort Worth 2003, no pet.) (holding that trial court did not abuse its discretion in holding that program at public high school which encouraged students to report crime and was affiliated with Tarrant County Crime Stoppers was “crime stoppers organization”). Therefore, we hold that the trial court did not abuse its discretion in holding that the crime stoppers privilege applied to the records and reports concerning the informant in this case.

We overrule the first part of appellant’s fourth issue.

2. Denial of Request for In camera Inspection

Appellant also argues in his fourth issue that the trial court erred in failing to conduct an in camera review of the records and reports related to the tip as to appellant’s address given by the informant in response to Schepps’ reward offer.

The prosecution has an affirmative duty to disclose all material evidence favorable to the defense. McFarland v. State, 928 S.W.2d 482, 511 (Tex.Crim.App.1996). Under the “Brady rule,” the prosecution of a defendant violates due process when the State suppresses evidence in its possession that is favorable to an accused “[w]here the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution.” Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App.2000) (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215). “Brady has been extended to include the required revelation to an accused of material exculpatory evidence in the possession of police agencies and other parts of the ‘prosecutorial team.’ ” Ex parte Mitchell, 977 S.W.2d 575, 578 (Tex.Crim.App.1997) (citing Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 1567, 131 L.Ed.2d 490 (1995)). “Evidence withheld by a prosecutor is ‘material’ if there is ‘a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different.’ ” Wyatt, 23 S.W.3d at 27 (quoting United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985)). Thus, a due process violation occurs “if a prosecutor: (1) fails to disclose evidence, (2) favorable to the accused, (3) which creates a probability of a different outcome.” Id. (citing Thomas v. State, 841 S.W.2d 399, 404 (Tex.Crim.App.1992)).

The crime stoppers privilege statute provides that a trial court may subpoena the records of a crime stoppers organization concerning a report of criminal activity on the motion of a defendant who alleges that the records or report contain evidence exculpatory to him, and, if it does so, it must conduct an in camera inspection of the records subpoenaed. Tex. Gov’t Code Ann. § 414.008(b)-(c). However, the trial court is not required to subpoena the records merely at the defendant’s request. See Tex. Gov’t Code Ann. § 311.016(1) (providing that term “may” “creates discretionary authority or grants permission or power”). Rather, the defendant must make a plausible showing to the trial court, through sworn evidence or agreed facts, that the crime stoppers records in the possession of the State would be material exculpatory evidence that would create a probability of a different outcome. See Wyatt, 23 S.W.3d at 27; Mitchell, 977 S.W.2d at 578. If such a showing is made and the trial court, in the exercise of its discretion, subpoenas the crime stoppers records, it must then conduct an in camera inspection of the subpoenaed documents to determine if the produced information contains Brady evidence. An in camera inspection satisfies both the defendant’s interest in the production of crime stoppers information that may be exculpatory and the State’s interest in fostering law enforcement by protecting the identity of the crime stoppers informants. Thomas v. State, 837 S.W.2d 106, 113-14 (Tex.Crim.App.1992).

Here, appellant made no showing to the trial court that the crime stoppers report would be either exculpatory or material or that it would create the probability of a different outcome under the circumstances of this case and would therefore have served appellant’s due process interest in the production of exculpatory information. See Mitchell, 977 S.W.2d at 578. The subpoena of the crime stoppers report under these circumstances could only have undermined the State’s compelling interest in furthering law enforcement by intimidating informants from coming forward with information as to where an accused could be found. See Thomas, 837 S.W.2d at 114 (holding that allowing unrestricted access to crime stoppers information could compromise State’s efforts to protect identity of crime stoppers informants). We hold that the trial court was not required to subpoena the crime stoppers records in this case, and thus it did not abuse its discretion in not conducting an in camera review of the information in the crime stoppers tip.

We overrule appellant’s fourth issue.

The discussion of the remaining points of error does not meet the criteria for publication, Tex.R.App. P. 47, and is thus ordered not published.

We affirm the judgment of the trial court.

      . See Tex. Penal Code Ann. § 19.03(a) (Vernon 2003) (providing elements for capital murder).

      . On cross-examination, she testified that she also provided other identifying characteristics of appellant, such as a cleft chin and a pointed nose, that differed slightly from appellant’s actual physical appearance.

      . Appellant also contends that the trial court erred in not ruling on his motion, but in its ruling the trial court specifically stated, "I am denying your request for the information.”


author: BILL BASS, Justice (Retired).

text:
    Beth Carroll BAILEY, Independent Executrix of the Estate of Kevin Ray Bailey, Deceased, Appellant, v. Lisa Kay WARREN, Guardian of the Estate of Christian Matthew Warren, A Minor, and Keith Lee Bailey Hodges, Intervenor, Appellees.
    No. 12-09-00277-CV.
    Court of Appeals of Texas, Tyler.
    July 1, 2010.
    Rehearing Overruled Sept. 15, 2010.

      Diane V. DeVasto, Tyler, Steven R. Green, Athens, for Appellant.
    Kyle Kutch, Susan Hays, James N. Parsons III, Palestine, for Appellees.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and BASS, Retired J., Twelfth Court of Appeals, sitting by assignment.
   OPINION

BILL BASS, Justice (Retired).

This is a will case. The testator’s will left everything to his wife if she survived him. Otherwise, his property was to go to his heirs at law. The testator’s only two children, Keith Lee Bailey Hodges and Christian Matthew Warren, were nonmari-tal children. They claim to be pretermit-ted children and therefore entitled to an intestate share of their father’s estate. In the trial court, both sides moved for summary judgment. The trial court granted summary judgment for the children, virtually revoking the testator’s will. We reverse and render.

Background

Appellee Keith Hodges (“Hodges”) was born to Barbara Hodges on August 9, 1984. Barbara Hodges was unmarried. After Hodges’s birth, Kevin Ray Bailey, the decedent, married Beth Carroll Bailey (“Beth”). On or about April 27,1993, Kevin Ray Bailey underwent a genetic blood test that indicated a 99.9% likelihood that Hodges was his son.

On July 29, 1996, Kevin Ray Bailey executed his will. The will left his entire estate to his wife, Beth Carroll Bailey, if she survived him. If she did not survive him, then he directed that all of his property “shall go and be distributed to my heirs-at-law.”

Shortly after the execution of the will, Hodges’s mother filed suit seeking child support and submitting the results of the 1993 DNA test to establish that Kevin Ray Bailey was Hodges’s father. In 1997, the 173rd Judicial District Court of Henderson County rendered an order establishing a parent-child relationship, declaring Hodges to be the son of Kevin Ray Bailey, ordering the payment of back child support, and changing Hodges’s name to Keith Lee Bailey Hodges.

Although he remained married to Beth Carroll Bailey, Kevin Ray Bailey spent 2002 living in Louisiana with Lisa Kay Warren. On July 15, 2003, Lisa Kay Warren gave birth to Christian Matthew Warren.

On November 19, 2006, Kevin Ray Bailey died in Dallas, Texas. On January 22, 2007, his will was admitted to probate and, as directed in the will, the court appointed Appellant Beth Carroll Bailey independent executrix of his estate.

On February 12, 2007, Appellee Lisa Kay Warren (“Warren”), as temporary guardian of the estate of her minor son, Christian Matthew Warren (“Christian”), filed suit in the Henderson County Court at Law contesting the distribution of the decedent’s property. On February 21, 2007, Warren was appointed permanent guardian of her son’s estate. On July 11, 2008, the 307th Judicial District Court of Gregg County issued its order adjudicating parentage, declaring Christian to be the child of Kevin Ray Bailey.

On August 20, 2008, Warren filed a motion for summary judgment requesting a declaratory judgment that Christian is a pretermitted child of the decedent and therefore entitled to take under the law of intestate succession one-half of the decedent’s estate, and one-third of the decedent’s separate property, subject to the life estate of the surviving spouse, Beth Carroll Bailey.

On February 2, 2009, Hodges filed a motion for summary judgment requesting the trial court to find that he is also entitled to a share in the decedent’s estate as a pretermitted child.

Appellant, Beth Carroll Bailey, moved for summary judgment requesting the trial court to find that Hodges was not a preter-mitted child. She also requested the court to find that, although Christian is the pre-termitted child of the decedent under section 67 of the Probate Code, he is not entitled to an intestate share in the decé-dent’s estate. Hodges and Warren each filed a motion for summary judgment urging, respectively, that Hodges and Christian are pretermitted children.

On August 6, 2009, the trial court entered judgment granting the summary judgment motions of Hodges and Warren, and denying Bailey’s motion for summary judgment. The judgment decreed that Hodges and Christian each take one-half of the decedent’s one-half of the community estate, and one-third of the decedent’s separate property subject to the life estate of the decedent’s spouse, Beth Carroll Bailey.

Issue and Standard of Review

The decisive question presented is whether the will’s contingent gift to “my heirs-at-law” is a provision for the testator’s children preventing the application of the Texas pretermission statute.

The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Mgmt., 690 S.W.2d 546, 548 (Tex.1985). Where both parties move for summary judgment, the court should review both motions, determine the questions presented, and render the judgment the trial court should have rendered. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 605 (Tex.2002). “Absent ambiguity, the construction of a will is a question of law,” which we review de novo. See Armstrong v. Hixon, 206 S.W.3d 175, 180 (Tex.App.-Corpus Christi 2006, pet. denied). Statutory construction is also a legal question reviewed de novo. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.2008).

The Texas Pretermitted Child Statute

The Texas Probate Code defines a “pretermitted child” as “a child of the testator who, during the lifetime of the testator, or after his death, is born or adopted after the execution of the will by the testator.” Tex. Prob.Code Ann. § 67(c) (Vernon Supp.2009). This includes a nonmarital child born after the testator executed his will. See Estate of Gorski v. Welch, 993 S.W.2d 298, 304 (Tex.App.-San Antonio 1985, pet. denied). To obtain protection under the statute, a pretermitted child must not be “mentioned in the testator’s will, provided for in the testator’s will, or otherwise provided for by the testator.” Tex. Prob.Code Ann. § 67(a) (Vernon Supp. 2009).

Section 67(a) governs the case if the testator had one or more living children when he executed his last will. Tex. Prob. Code Ann. § 67(a)(1). The pretermitted child’s treatment varies depending on whether the will makes provision for one or more of the children born before the will was made. If the will contains no provision for such children,

... a pretermitted child succeeds to the portion of the testator’s separate and community estate to which the preter-mitted child would have been entitled pursuant to Section 38(a) of this code had the testator died intestate without a surviving spouse owning only that portion of his estate not devised or bequeathed to the parent of the pretermit-ted child.

Tex. Prob.Code Ann. § 67(a)(1)(A). However, if provision, vested or contingent, is made in the will for one or more of the children born before the will’s execution, the pretermitted child shares in the testator’s estate as follows:

(i) The portion of the testator’s estate to which the pretermitted child is entitled is limited to the disposition made to children under the •will.
(ii) The pretermitted child shall receive such share of the testator’s estate, as limited in Subparagraph (i), as he would have received had the testator included all pretermitted children with the children upon whom benefits were conferred under the will, and given an equal share of such benefits to each such child.
(iii) To the extent that it is feasible, the interest of the pretermitted child in the testator’s estate shall be of the same character, whether an equitable or legal life estate or in fee, as the interest that the testator conferred upon his children under the will.

Tex. Prob.Code ANN. § 67(a)(1)(B).

Section 67(a)(2) governs the situation if the testator had no living children when he executed the will.

(2) If the testator has no child living when he executes his last will, the pre-termitted child succeeds to the portion of the testator’s separate and community estate to which the pretermitted child would have been entitled pursuant to Section 38(a) of this code had the testator died intestate without a surviving spouse owning only that portion of his estate not devised or bequeathed to the parent of the pretermitted child.

Tex. PROB.Code Ann. § 67(a)(2).

“The object of the pretermission statute is to guard against testamentary thoughtlessness; it is not a limitation on a testator’s power to dispose of his estate.” In re Estate of Ayala, 702 S.W.2d 708, 711 (Tex.App.-San Antonio 1985, no writ). For the statute to apply, it must “appear from the will[,] interpreted in the light of all the circumstanees[,] that the failure to provide for the child or descendant was accidental, due to inadvertence or oversight.” Pearce v. Pearce, 104 Tex. 73, 82, 134 S.W. 210, 214 (1911).

If the pretermitted child is provided for in the will, the value of that provision is of no consequence to the court. “The gift of a nominal sum, a contingent interest, or a future interest, however slight, will be sufficient to avoid the application of the statute.” 10 Aloysius A. Leopold & Gerry W. Beyer, Texas Practice: Texas Law of Wills § 34.16 (2d ed.1992).

Is Keith Hodges A Pretermitted Child of Kevin Ray Bailey?

A pretermitted child is one who is born or adopted after the testator’s execution of the will. Tex. Prob.Code Ann. § 67(c). Hodges was born in 1984, twelve years before Kevin Ray Bailey executed his will in 1996. It is also undisputed that Hodges is the biological child of Kevin Ray Bailey, and that Hodges was never formally adopted by him.

Hodges argues that the definition of “child” in the probate code “does not include a child with no presumed father.” See Tex. Prob.Code Ann. § 3(b) (Vernon Supp.2009). As a nonmarital child, Hodges had no presumed father. See Tex. Fam. Code Ann. § 160.204 (Vernon 2008). However, probate code section 42(b) provides a list of exclusive methods for a nonmarital child to establish paternity for inheritance purposes. Id. § 42(b)(1) (Vernon 2003). One such method is for the child to be adjudicated the child of the father by court decree as provided by Chapter 160, Family Code....” Id. Hodges argues that he was not a “child” of Kevin Ray Bailey or “born,” as that term is used in the probate code section 3(b) definition, until he was adjudicated to be so by court order in 1997. Since Bailey executed his will the year before in 1996, Hodges maintains that he is a pretermitted child, one “constructively born” after the execution of the will. Since Hodges was not a “child” or “born” when Kevin Ray Bailey made his will, he argues, he “was not a ‘child’ and thus not an ‘heir’.... ” Therefore, in Hodges’s view, Bailey’s direction that his estate go to his “heirs at law” was not a provision for either Hodges or Christian.

Hodges cites no authority for his argument that he was not “born” for the purposes of the pretermitted heir statute until he was adjudicated a child in 1997, one year after Bailey made his will.

The supreme court has addressed a will case involving a child born without a presumed father. See Garza v. Cavazos, 148 Tex. 138, 141, 221 S.W.2d 549, 551 (1949). In Garza, the court held that, if the father married the mother and recognized the child, a nonmarital child is treated as having been a living child of the testator from the time of the child’s birth. Id, 148 Tex. at 144-45, 221 B.W.2d at 553. Commenting favorably on the Garza decision, Leopold and Beyer in their treatise on the law of wills stated that the supreme court view was “reasonable.” Leopold & BeyeR, supra § 34.19, at 44-45.

Otherwise a child actually born before the making of the will but legitimated after the will was executed would be treated as an after-born child, with the result that a “constructive birth” would have the effect of partially revoking the will under § 67 if no children presumed the testator’s were in existence at the time of the will. Such authority as exists from other states is opposed to this result.

Id.

Based upon the holding in Garza, we reject the proposition urged by Hodges that, for purposes of the pretermission statute, he was not “born” until he was adjudicated Bailey’s child in 1997. Once adjudicated to be Bailey’s child, he is to be treated as having been Bailey’s living child from the date of his actual birth. Hodges is not a pretermitted child.

Is the Pretermitted Child, Christian Warren, Provided for in Kevin Ray Bailey’s Will?

It is undisputed that Christian is a pre-termitted child. See Tex. Prob.Code ANN. § 67(c). When a testator has one or more children living when he executes his last will, a pretermitted child’s intestate share is limited to the disposition made to those children under the will. Tex. Prob.Code Ann. § 67(a)(1)(B)®. This rule applies only if provision is made “therein” for one or more of the living children. Id. § 67(a)(1)(B).

Nature of Provision Required for Child or Children

Formerly, section 67(a)(1)(B) read that “[provision is made therein for one or more of such children.... ” Act of May 28, 1993, 73rd Leg., R.S., ch. 846, § 8, 1993 Tex. Gen. Laws 3337, 3341. In 2003, section 67(a)(1)(B) was amended to read “[p]rovision, whether vested or contingent, is made therein for one or more of such children.... ” Act of June 20, 2003, 78th Leg., R.S., ch. 1060, § 10, 2003 Tex. Gen. Laws 3052, 3055 (emphasis added).

Warren argues that, prior to the amendment, any provision for the living child was required to be vested if it was to limit a pretermitted child’s intestate share to the provision made for children living when the will was executed. Bailey executed his will in 1996. Warren insists that under the statute as it then existed, a contingent provision for a child living when the will was executed amounted to no provision. In her view, section 67(a)(1)(A) applies, and Christian’s intestate share is not limited to the provision made for such a child. Therefore, Warren strenuously argues that Christian’s intestate share is not so limited even if Hodges is not a pretermit-ted child.

We disagree. Under the prior law, we believe that the provision in question could be either vested or contingent. The Summary of Enactments of the 78th Legislature, published by the Texas Legislative Council, explained that “[t]he bill clarifies, as it pertains to the entitlement of a pre-termitted child, that when a pretermitted child is not mentioned in a testator’s will and the testator has one or more children living when the last will is executed, a provision relating to a living child can be vested or contingent.” Texas Legislative Council, Summary of Enactments 78th Legislature 306 (2003). It seems clear the amendment was intended as a clarification, not as a change in the law. See also Stanley M. Johanson, Texas PRObate Code Annotated § 67, annotation (2009).

Moreover, the act provides that it “applies only to the estate of a person who dies on or after the effective date of this Act.” Act of June 20, 2003, 78th Leg., R.S., ch. 1060, § 18(b), 2003 Tex. Gen. Laws 3052, 3057. The amendment was effective September 1, 2003, and Bailey died on November 19, 2006. Therefore, the current version of section 67 applies in this case, and a contingent disposition satisfies the section 67(a)(1)(B) requirement of “provision” for the children living at the time the testator executed his will.

Class Gifts

A class gift in the law of wills is one to several persons answering the same description and having the same relationship to the testator or to one another so that one word describes them all. Wilkes v. Wilkes, 488 S.W.2d 398, 403 (Tex.1972). The bequest or devise must be an aggregate sum to a body of persons uncertain in number when- the will is executed. Id. Their number is uncertain because the number of persons who are to take the property is to be ascertained at a future time from the execution of the will, generally at the death of the testator. Sanderson v. First Nat’l Bank in Dallas, 446 S.W.2d 720, 724 (Tex.App.-Dallas 1969, writ ref'd n.r.e.). A testamentary gift to a class that necessarily includes the preter-mitted child is in most jurisdictions considered a provision effectively avoiding the application of the pretermission statute.

A case decided by the Texas Supreme Court bears most closely on the issue. See Pearce v. Pearce, 104 Tex. 73, 134 S.W. 210 (1911). Mrs. Pearce’s will gave most of her property to her husband. However, in Item 4 of her will, she gave a one-fourth interest in three Austin lots to her mother. If her mother predeceased her, the lots went to the testatrix’s two sisters. Then, she provided “[tjhis section is to be null and void in case of living issue bom of my body.” See id., 104 Tex. at 75, 134 S.W. at 210-11 (emphasis added). Two months later she gave birth to a daughter. The testatrix died six days later.

Some time later, the daughter claimed that as a pretermitted child she was entitled to an intestate share of her mother’s estate. Id., 104 Tex. at 76, 134 S.W. at 211. The issue presented was whether the phrase “this section to be null and void in case of living issue born of my body” constituted a mention of or provision for the pretermitted child claimant. The court stated “there can be no doubt that, as the law meant that term to be understood, she [the pretermitted claimant] was mentioned in the will.” Id. Having thus decided the inapplicability of the Texas pretermission statute, the court saw no necessity in further determining whether the section also constituted a provision for her. Id.

There are numerous cases from other jurisdictions with similar statutes holding that the mention of or provision for such classes as heirs, bodily heirs, heirs at law, descendants, or issue is sufficient to prevent a pretermitted child included in the class from taking under the pretermission statute. The North Carolina Supreme Court held a testator’s direction that all his remaining property should be distributed among “my next of kin and heirs at law as if I had died intestate” was a provision for the testator’s posthumous child preventing him from taking an intestate share under the North Carolina statute. Sheppard v. Kennedy, 242 N.C. 529, 88 S.E.2d 760, 761 (1955). A reversion of trust property to “those persons who, if my death occurred at the time of her [the spouse’s] death, would then be “my heirs at law by blood” was held a sufficient provision for an after-born son to prevent the application of the New York statute. Minot v. Minot, 17 A.D. 521, 527-28, 45 N.Y.S. 554 (1897). The Supreme Court of Wisconsin held that a gift of a contingent remainder in one-third of his estate to his wife’s “heir” was either provision for the child sufficient to avoid the application of the Wisconsin statute or else a clear demonstration on the face of the will that the testator intended to make no provision for her. Verrinder v. Winter, 98 Wis. 287, 73 N.W. 1007, 1008 (1898).

In Leathenvood v. Meisch, 297 Ark. 91, 759 S.W.2d 559 (1988), the will provided, in relevant part, that if the testator’s widow did not survive him, the entire estate would be divided into two shares, “one of which shall be distributed to those persons who would constitute my heirs at law....” Id., 297 Ark. at 92, 759 S.W.2d at 560. The Arkansas Supreme Court held that this was sufficient mention of and provision for an otherwise unnamed child but who came within the class. Id., 297 Ark. at 92-93, 759 S.W.2d at 560-61. A similar result was obtained in Taylor v. Cammack, 209 Ark. 983, 193 S.W.2d 323 (1946), wherein the court held that a devise to his “wife and heirs” was a mention of, and provision for, his two children competent to avoid the application of the Arkansas statute. Id., 209 Ark. at 985, 193 S.W.2d at 324-25. A remainder to his “heirs” contingent on his widow’s remarriage was held a sufficient provision for an after-born daughter in McCourtney v. Mathes, 47 Mo. 533, 537 (1871). In Reaves v. Hager, 101 Tenn. 712, 50 S.W. 760 (1898), the testatrix directed that the property go to her husband if he survived her, otherwise to her “bodily heirs.” The Supreme Court of Tennessee was of the opinion that this language was sufficient to show her intent to disinherit her children if her husband survived her and to provide for them all equally if he did not. Therefore, the Tennessee pretermission statute did not apply. Id., 101 Tenn. at 716-17, 50 S.W. at 761.

The Supreme Judicial Court of Massachusetts held that a reversion to the testator’s “heirs at law by blood” was a sufficient reference to the after-born child to prevent the child from obtaining an intestate share under the Massachusetts pret-ermission statute. In re Minot, 164 Mass. 38, 40, 41 N.E. 63, 63 (1895).

A testator’s gift to other classes, such as “descendants” and “issue,” ordinarily avoids the application of pretermission statutes. See Petty v. Chaney, 281 Ark. 72, 72, 661 S.W.2d 373, 374 (1983) (provision for wife and descendants); In the Matter of the Estate of Josephine Donaldson, deceased, 165 Misc. 661, 1 N.Y.S.2d 371, 372 (1938) (“If my husband die before me ... all my property unto my issue me surviving”); In the Matter of the Last Will and Testament of Raymond Burr Jones, 134 Misc. 26, 234 N.Y.S. 316, 319-20 (1929), (“to my widow, or if I shall leave no widow, to my descendants living at my death”).

And finally, in Holbrook v. Holbrook, 230 N.Y. 600, 130 N.E. 909 (1921) (order), the testator gave his entire estate to his wife if she survived him, but if she did not, “to my said issue.” A divided court, Justices Cardozo and Pound voting with the majority, held the posthumous child of the testator, not otherwise mentioned in the will, was both mentioned and provided for. Id., 230 N.Y. at 600, 130 N.E. at 909.

The decisions of other jurisdictions are not entirely harmonious. But it appears that the majority rule is, and the better reasoned decisions hold, that a testamentary provision for a class such as “heirs,” “heirs at law,” or “issue” is a provision for those within the designated class. The rule is entirely consistent with the few Texas cases addressing the subject. That position is also, in our opinion, the more modern view and one most likely to comport with the will of the testator, a paramount consideration in will construction.

The application of the statute effects a pro tanto revocation of the will in order to provide an intestate share for the preter-mitted claimant. There is an understandable judicial reluctance to so frustrate the expressed will of the testator. A provision in the will applicable to children that might be born in the future should “be sufficient to show that the testator was not unmindful that such children might come into existence.” Leopold & BeyeR, supra § 34.16, at 41.

Effect of the “Heirs-at-Law” Contingency

There is no question that both Hodges and Warren are “heirs-at-law” of Kevin Ray Bailey. Warren’s initial pleading states that Christian and an unknown son (Hodges) are Kevin Ray Bailey’s heirs at law. If the testator’s wife had predeceased the testator, Hodges concedes that he would have taken under the will as an heir at law. There no longer exists any statutory provision preventing nonmarital children from inheriting from their father. That neither Hodges nor Christian were born of a lawful marriage would not affect their legal status as Kevin Ray Bailey’s heirs at law.

Hodges, born thirteen years before Bailey executed his will, is not a pretermitted child. Therefore, he is not entitled to invoke the Texas pretermission statute. He may not seek a partial revocation of the will to obtain an intestate share of Bailey’s estate.

Christian, on the other hand, is indisputably an after-born or pretermitted child. But, under the statute, he may succeed to an intestate share in his father’s estate only if he is not mentioned or provided for in the will or “otherwise provided for by the testator.” See Tex. Prob. Code Ann. § 67(a), Although pretermit-ted, Christian is also a member of a class, “heirs-at-law,” designated by Bailey to receive his entire estate if his wife predeceased him. Our review of the case law from Texas and other jurisdictions leads us to the conclusion that Bailey’s direction in his will that his estate go to his “heirs at law” if his wife failed to survive him constituted a provision in the will for Christian. Consequently, Christian is also barred from succeeding to an intestate share in Bailey’s estate. See id.

However, even assuming the provision for “my heirs-at-law” is not a provision for the after-born or pretermitted child, the result is the same. Hodges was living when his father executed his will. Bailey was unquestionably aware that Hodges was his son and potential heir. Bailey had undergone genetic testing three years before he made his will. The test results showed that he was Hodges’s father. After he learned the results of the test, Bailey provided informal support for Hodges and established a social relationship with him. Under the circumstances, it strains credulity to believe that when he included the contingent provision in his will three years after the test,' he was unaware that Hodges was his son and potentially his heir. Bailey plainly provided for Hodges in his will by directing that, if his wife predeceased him, all his property should go to his heirs at law.

Since Bailey provided for a child living when the will was made, the share of the pretermitted child is limited to the disposition to children under the will. See Tex. Prob.Code AnN. § 67(a)(l)(B)(i). The contingency upon which any disposition to “my heirs-at-law” depended, the prior death of his wife, did not come to pass. Therefore, Hodges is entitled to no disposition from the estate. Christian is limited to an equal share in the disposition made to Hodges in the will. See Tex, Prob.Code Ann. § 67(a)(l)(B)(i). Since Hodges receives nothing, Christian receives nothing, even if we assume that he was unmentioned and unprovided for in the will.

Furthermore, if Hodges and Christian were the children of a lawful marriage, the result would be no different, If his wife had not survived him, his children, whether marital or nonmarital, would have taken under the will. It is the will, not the statute, that denies Christian and Hodges his estate if Bailey’s wife survived him. There is no equal protection issue present in this case.

Kevin Ray Bailey left his entire estate to his wife if she survived him. Otherwise, it was to go to his heirs at law. This very ordinary disposition of his property therefore contained a contingent provision for the members of the class, heirs at law, that included Hodges and Christian. But Kevin Ray Bailey’s wife did survive him. The contingency upon which their legacy depended did not occur. Therefore, the surviving wife is entitled to Kevin Ray Bailey’s estate as his will directs.

Conclusion

Applying the appropriate standard of review, we conclude that Beth Carroll Bailey, independent executrix of the estate of Kevin Ray Bailey, established that no genuine issue of material fact existed and that she was entitled to summary judgment as a matter of law. Neither Lisa Kay Warren or Keith Lee Bailey Hodges showed otherwise, nor did they establish their own entitlement to summary judgment as a matter of law. The trial court’s judgment is reversed and judgment rendered that Warren’s and Hodges’s summary judgment motions are denied, Bailey’s summary judgment motion is granted, and that Beth Carroll Bailey is entitled to the entirety of the estate of Kevin Ray Bailey.