author: TERRY McCALL, Justice.

text:
    Jessie Earl GRIFFITH, Appellant v. STATE of Texas, Appellee.
    No. 11-08-00274-CR.
    Court of Appeals of Texas, Eastland.
    June 10, 2010.
    Discretionary Review Refused Sept. 15, 2010.

      Tim Copeland, Cedar Park, for appellant.
    James Eidson, Dist. Atty., Patricia Dyer, Asst. Dist. Atty., Crim. Dist. Atty’s Office, Abilene, for appellee.
    Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
   OPINION

TERRY McCALL, Justice.

The jury convicted Jessie Earl Griffith, of manslaughter and sentenced him to confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of twenty years. The jury additionally imposed a fine of $10,000. Appellant challenges his conviction in two issues. We affirm.

Background Facts

Appellant was indicted for the murder of Brenda Sue Eldredge. The first paragraph of the indictment alleged that on or about December 22, 2007, appellant intentionally and knowingly caused the death of Eldredge by “running over [her] with a deadly weapon, to-wit: A MOTOR VEHICLE.” See Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003). The second paragraph of the indictment alleged that on or about December 22, 2007, appellant intentionally and knowingly, with intent to cause serious bodily injury to Eldredge, committed “an act clearly dangerous to human life, to-wit: running over the said BRENDA SUE ELDREDGE with a motor vehicle, thereby causing the death of the said BRENDA SUE ELDREDGE.” See Tex. Penal Code Ann. § 19.02(b)(2) (Vernon 2003).

Appellant’s trial for the murder of El-dredge began on August 4, 2008. Gerald Earnest Self testified that Eldredge and Clifford Miles came to his home on Plum Street in Abilene on December 22, 2007. Eldredge had been staying at Selfs home for about two weeks prior to the murder. Eldredge, Miles, and Self remained at Selfs home for several hours during which time they drank heavily. At some point, Eldredge called appellant to come over to Selfs house so that he could transport them to the grocery store in his van. Self testified that appellant was “messed up” when he arrived at Selfs home and that appellant “[cjouldn’t hardly stand up.” Appellant, Eldredge, and Miles subsequently left in appellant’s van for the grocery store with Eldredge driving. Self testified that Eldredge was the only one of the three that left in the van that possessed a driver’s license.

Miles testified that he, Eldredge, and Self were drinking and having a good time at Selfs home on December 22, 2007. He estimated that the three of them had been drinking there for a couple of hours before Eldredge called appellant to come over to Selfs home. Miles testified that appellant remained at the house for an hour or two after he arrived before Miles, Eldredge, and appellant left in appellant’s van with Eldredge driving for the purpose of going to the grocery store. Miles testified that appellant drank with the group before leaving for the grocery store. Miles further testified that the group “didn’t make it” to the grocery store because they stopped at the El Culmpio bar and stayed there for several hours. Miles estimated that Eldredge and appellant drank between seven to nine beers apiece while they were at the bar.

Miles testified that he decided to leave the bar because he was drunk and wanted to go home. Miles, Eldredge, and appellant got into appellant’s van with Eldredge driving, Miles sitting in the front passenger seat, and appellant sitting on a milk crate in the back of the van. Eldredge drove the group to Miles’s apartment on North 3rd Street. When the group arrived at the apartment complex, Eldredge parked the van along a curb and privacy fence. She placed the van in “park” and exited the vehicle while the engine continued to run. Eldredge walked in front of and away from the van along the privacy fence located next to the curb where she parked the van. As Miles was exiting the van, he offered to let appellant stay with him because appellant was also intoxicated. Miles testified that appellant suddenly jumped into the driver’s seat and “just took off’ as Miles was attempting to exit the van. As he was driving the van, appellant drove up on the curb and struck the privacy fence with the van’s front bumper. He also struck Eldredge with the hood and right front quarter panel of the van causing her to be dragged along the privacy fence. Eldredge died as a result of her injuries. Miles also suffered physical injuries as a result of appellant’s actions.

The trial court submitted the lesser included charge of manslaughter in the court’s charge to the jury along with the two murder charges alleged in the indictment. The jury found appellant guilty of only manslaughter.

Sufficiency of the Evidence

In his first issue, appellant challenges the legal and factual sufficiency of the evidence to support his conviction for manslaughter. To determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007); Jackson v. State, 17 S.W.3d 664, 667 (Tex.Crim.App.2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App.2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex.Crim.App.2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App.2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App.1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses’ testimony. Tex.Code CRiM. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979).

The Penal Code provides that a person commits manslaughter in the following manner: “A person commits an offense if he recklessly causes the death of an individual.” Tex. Penal Code Ann. § 19.04(a) (Vernon 2003). The requisite culpable mental state is defined by the Penal Code as:

A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

Tex. Penal Code Ann. § 6.03(c) (Vernon 2003). Appellant presents the following argument in support of his evidentiary claims:

The Appellant would submit that the evidence fails to show a level of culpability higher than criminal negligence. There is no evidence that the vehicle was traveling at a high rate of speed or that he was aware that Ms. Eldridge (sic) was in front of the van when he drove away. The evidence does not show that the Appellant was aware of the risk of his conduct but consciously chose to disregard it.

Mental culpability is of such a nature that it generally must be inferred from the circumstances under which the prohibited act occurred. Dillon v. State, 574 S.W.2d 92, 94 (Tex.Crim.App.1978); Russo v. State, 228 S.W.3d 779, 793 (Tex.App.-Austin 2007, pet. refd); Skillern v. State, 890 S.W.2d 849, 880 (Tex.App.-Austin 1994, pet. ref'd). A culpable mental state may be inferred by the trier of fact from the acts, words, and conduct of the accused. Dues v. State, 634 S.W.2d 304, 306 (Tex.Crim.App.1982); Skillern, 890 S.W.2d at 880; Fuentes v. State, 880 S.W.2d 857, 860 (Tex.App.-Amarillo 1994, pet. ref d). The question presented here is whether there was some evidence in the record of appellant’s trial that would permit a rational jury to find beyond a reasonable doubt that he possessed the requisite culpable mental state of recklessness. Recklessness requires the conscious disregard of a substantial and unjustifiable risk created by the actor’s conduct. Whether the actor is aware of the requisite risk is a conclusion to be reached by the trier of fact from all the evidence and the inferences drawn therefrom. See In re E.U.M., 108 S.W.3d 368, 370 (Tex.App.Beaumont 2003, no pet.). “The issue is not one of theoretical possibility, but one of whether, given all the circumstances, it is reasonable to infer that the particular individual on trial was in fact aware of the risk.” Dillon, 574 S.W.2d at 95. A defendant, however, need not be aware of the specific risk of another’s death in order to commit manslaughter. Trepanier v. State, 940 S.W.2d 827, 829 (Tex.App.-Austin 1997, pet. ref d).

The record reflects that appellant drove the van despite being intoxicated at the time. In this regard, voluntary intoxication does not constitute a defense to the commission of the crime. Tex. Penal Code Ann. § 8.04(a) (Vernon 2003). He began driving the van soon after Eldredge exited the vehicle. Appellant struck her with the hood and right front quarter panel of the van while she was located in front of the van. He caused the van to jump a curb and drive into the privacy fence as he drove the van. He obviously did not keep a proper lookout, and he failed to control the van in a safe manner. In the process, he struck Eldredge with the van, causing her death. “At the heart of reckless conduct is conscious disregard of the risk created by the actor’s conduct.” Lewis v. State, 529 S.W.2d 550, 553 (Tex.Crim.App.1975).

Viewing all the evidence in the light most favorable to the jury’s verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant acted recklessly when he voluntarily created a substantial and unjustifiable risk that he disregarded when he struck appellant with the van. The fact that there is no evidence that appellant was driving at a high rate of speed is of little consequence because he obviously drove the van at a speed capable of killing Eldredge when he struck her. Additionally, the jury had ample evidence to infer that appellant should have been aware of Eldredge’s location in relation to the van. Accordingly, appellant’s conviction for manslaughter is supported by legally sufficient evidence.

With respect to the factual sufficiency of the evidence, the evidence supporting the jury’s verdict is not so weak as to render it clearly wrong and manifestly unjust. Furthermore, the jury’s verdict is not against the great weight and preponderance of the conflicting evidence. In this regard, no evidence was presented from any source contrary to that outlined in this opinion. Thus, viewing all the evidence in a neutral light and giving deference to the jury’s verdict, we reject appellant’s contention that the evidence is factually insufficient to sustain his conviction. Appellant’s first issue is overruled.

Deadly Weapon Finding

Appellant asserts in his second issue that the trial court erred in making an affirmative deadly weapon finding in the court’s written judgment without an express finding by the jury to a special issue on the use of a deadly weapon. The resolution of this issue is controlled by the holding in Lafleur v. State, 106 S.W.3d 91 (Tex.Crim.App.2003). The court in La- fle%ir reaffirmed its previous holding in Polk v. State, 693 S.W.2d 391 (Tex.Crim.App.1985), that there must be an express finding of a deadly weapon when the jury is the factfinder. 106 S.W.3d at 92. However, the court disagreed with its previous holding in Davis v. State, 897 S.W.2d 791 (Tex.Crim.App.1995), by holding:

[Cjourts may look to the application paragraph of a lesser-included offense to determine if the express deadly weapon allegation in that portion of the jury charge matches the deadly weapon allegation in the indictment for the charged offense. If so, the trial court may enter a deadly weapon finding in the judgment based upon the jury’s verdict of guilt on the lesser-included offense.

Id.

Lafleur involved a similar situation wherein the jury acquitted the defendant of the charged offense of murder but convicted him of the lesser included offense of manslaughter. 106 S.W.3d at 92-93. The indictment in Lafleur alleged that the defendant “did then and there intentionally and knowingly cause the death of an individual, namely: Keith Walker, hereafter styled the complainant, by shooting the complainant with a deadly weapon, to-wit: a firearm.” Id. at 92. The application paragraph contained in the jury charge for the lesser included offense of manslaughter read as follows:

Therefore, if you believe from the evidence beyond a reasonable doubt that in Jefferson County, Texas, on or about May 31, 1998, the defendant Michael Winn Lafleur, did then and there recklessly cause the death of an individual, namely: Keith Walker, hereafter styled the complainant, by shooting complainant with a deadly weapon, to-wit: a firearm, you shall find the defendant guilty of the lesser included offense of Manslaughter.

Id. at 93. The trial court entered an affirmative finding in its written judgment that the defendant used a deadly weapon.

The court reasoned in Lafleur that, if the jury’s verdict of a lesser included offense is based upon an application paragraph that explicitly and expressly requires the jury to find that the defendant used a deadly weapon in the commission of the offense, the underlying purpose of Polk has been achieved. Id. at 98. Based upon this reasoning, the court determined that the combination of: (1) the indictment that alleged the use of a deadly weapon; (2) the application paragraph of the jury charge of the lesser included offense of manslaughter that required a finding, beyond a reasonable doubt, that the appellant used a deadly weapon; and (3) the jury’s verdict that appellant was guilty of the lesser included offense of manslaughter, constituted an express finding that appellant used a deadly weapon to cause the victim’s death. Id. at 99.

The same “combination” relied upon in Lafleur for an express finding on the use of a deadly weapon exists in this case. The indictment alleged that appellant used a deadly weapon in the form of a motor vehicle to commit murder. The application paragraph for the lesser included offense of manslaughter required a finding beyond a reasonable doubt that appellant used a deadly weapon in the commission of the offense as follows:

Now, if you find from the evidence beyond a reasonable doubt that on or about December 22, 2007, in Taylor County, Texas, the defendant JESSIE EARL GRIFFITH, did recklessly cause the death of an individual, Brenda Sue Eldredge by running over the said Brenda Sue Eldredge with a deadly weapon, to-wit: A Motor Vehicle, thereby causing the death of the said Brenda Sue Eldredge, then you will find the defendant, JESSIE EARL GRIFFITH, guilty of Manslaughter, a lesser included offense.

Lastly, the jury found appellant guilty of the lesser included offense of manslaughter as alleged in the application paragraph. Thus, the jury made an express finding that appellant used a deadly weapon in the commission of the offense of manslaughter under the holding in Lafleur.

Appellant asserts that Lafleur is distinguishable because the weapon at issue in Lafleur (a firearm) was a deadly weapon per se. See Tex. Penal Code Ann. § 1.07(a)(17)(A) (Vernon Supp.2009). We disagree. In accordance with Tex. Penal Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2009), the jury charge in the instant appeal defined “deadly weapon” as “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” We must assume that the jury followed the instructions as set forth in the jury charge. See Miles v. State, 204 S.W.3d 822, 827-28 (Tex.Crim.App.2006). Accordingly, the jury’s finding of guilt on the lesser included charge of manslaughter also constituted a finding that the motor vehicle constituted a deadly weapon under the applicable definition.

Moreover, the Texas Court of Criminal Appeals recently held in Crumpton v. State, 801 S.W.3d 663, 664 (Tex.Crim.App. 2009), that a guilty verdict of homicide necessarily is a finding that a deadly weapon was used. See Tex. Penal Code Ann. § 19.01(b) (Vernon 2003) (manslaughter constitutes homicide). Under Crumpton, the jury’s determination that appellant committed manslaughter necessarily constituted a finding that he used something that in the manner of its use was capable of causing — and did cause — death. Therefore, the verdict of manslaughter was an adequate basis for the trial court’s entry of the deadly weapon finding in the judgment. Appellant’s second issue is overruled.

This Court’s Ruling

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: Justice O’NEILL.

license: Public Domain

text:
    EUROPA INTERNATIONAL, LTD., Appellant, v. DIRECT ACCESS TRADER CORP. f/k/a InvestIN.Com Corp. and Laurence D. Briggs, Appellees.
    No. 05-08-00771-CV.
    Court of Appeals of Texas, Dallas.
    June 16, 2010.

      Richard B. Schiro, Law Offices of Richard B. Schiro, Dallas, TX, for Appellant.
    Laurence Briggs, Dallas, TX, for Appel-lees.
    Before Justices O’NEILL, LANG, and MYERS.
   OPINION

Opinion By

Justice O’NEILL.

Appellant Europa International, Ltd. appeals the trial court’s order denying its application for a turnover order. We reverse and render.

Background

Europa filed its original petition against appellees Direct Access Trader Corp. f/k/a InvestIN.com and Laurence D. Briggs in 1999 seeking damages for breach of a loan agreement. The trial court granted Europa’s traditional and no-evidence motions for summary judgment in December 2006. On March 29, 2007, the trial court signed a final judgment against appellees, jointly and severally, in the amount of $407, 893.08. Appellees appealed the final judgment in InvestIN.com Corp. v. Europa International Ltd., 293 S.W.3d 819 (Tex.App.-Dallas 2009, pet. denied). This court affirmed the summary judgments against InvestIN.com Corp. but reversed and rendered a take nothing judgment against Briggs. Id.

During appeal of the underlying case, appellant attempted to collect on the judgment. On February 15, 2008, the associate judge for the 95th Judicial District Court signed an order granting appellant’s motion for ex parte turnover. On February 22, 2008, appellees filed a motion to transfer the case to County Court at Law No. 2 and their notice of appeal of the February 15, 2008 order. The case was transferred to County Court at Law No. 2. After a hearing, the trial court signed an order setting aside the February 15, 2008 order.

Appellant filed its request for findings of facts and conclusions of law and its notice of past due findings of fact and conclusions of law. In a letter, the trial court refused to enter findings and conclusions because it did not believe denial of a turnover order required them.

On appeal, appellant argues (1) the trial court abused its discretion by refusing to grant its application for turnover against Direct Access Trader Corp.; (2) the trial court abused its discretion by refusing to grant its application for turnover against Briggs; and (3) the trial court erred by refusing to file findings of fact and conclusions of law.

We determined findings of fact and conclusions of law were necessary to disposition of the appeal. We abated the appeal and ordered the trial court to issue findings and conclusions as to Direct Access Trader Corp. The court filed its findings and conclusions on April 6, 2010. Appellant then filed a supplemental brief challenging the court’s findings and conclusions denying its application for turnover.

Standard of Review and Applicable Law

We review turnover orders under an abuse of discretion. Burns v. Miller, Hiersche, Martens & Hayward, P.C., 948 S.W.2d 317, 321 (Tex.App.-Dallas 1997, writ denied). We reverse only if the trial court acted in an unreasonable or arbitrary manner. Beaumont Bank, N.A. v. Budler, 806 S.W.2d 223, 226 (Tex.1991). Our review is not limited to the sufficiency of the evidence supporting the trial court’s findings of fact or the specific legal conclusions reached. Doran v. ClubCorp USA, Inc., 174 S.W.3d 883, 887 (Tex.App.-Dallas 2005, no pet.). As a result, we do not review the trial court’s findings and conclusions separately from our analysis of whether the court abused its discretion, but will consider the sufficiency of the evidence as a factor in that determination. Id.

The turnover statute is a purely procedural device by which creditors may reach nonexempt assets of debtors that are otherwise difficult to attach or levy on by ordinary legal process. Tex. Civ. Prac. & Rem.Code Ann. § 31.002(a) (Vernon 2008); Bums, 948 S.W.2d at 321. Under the statute, a judgment creditor can apply to a court for an injunction or other means to satisfy a judgment through a judgment debtor’s property, including present or future property rights. Tex. Civ. Prac. & Rem.Code Ann. § 31.002(a).

Property may be subject to a turnover order if it meets three elements. First, the judgment debtor owns the property. Second, the property must be property a creditor cannot readily attach or levy on by ordinary legal process. And third, the property must not be exempt from attachment, execution, or seizure for the satisfaction of the liabilities. Id.

Once a judgment creditor proves a judgment debtor owns property, it is the judgment debtor’s burden to prove that the property is exempt from attachment. Pillitteri v. Brown, 165 S.W.3d 715, 722-23 (Tex.App.-Dallas 2004, no pet.).

Discussion

At a hearing, Briggs testified Direct Access Trader Corp. owned one hundred percent of the stock in Investln Securities Corp. He admitted there is “stock responsive to the turnover order.” He further stated Investln Securities Corp. is a separate corporation from Direct Access Trader Corp. with separate books and records. Based on this testimony, appellant established appellee, as the judgment debtor, owns property. The burden then shifted to appellee to prove the property is exempt from attachment. This it failed to do. Appellee presented no evidence during the hearing or in any other filing to the court to establish an exemption. To the contrary, Briggs agreed the stock at issue did not meet any of the criteria for exemption under the property code. See Tex. Prop.Code Ann. § 42.001(a), (b) (Vernon) (describing property exempt from garnishment, attachment, execution, or other seizure).

Further, Briggs testified he was unwilling to turn over the stock and admitted he had made no efforts to pay any of the judgment or post a bond; therefore, the property “cannot readily be attached or levied on by ordinary legal process.” Tex. Civ. Prac. & Rem.Code Ann. § 81.002(a)(1); see Hennigan v. Hennigan, 666 S.W.2d 322, 324 (Tex.App.-Houston [14th Dist.] 1984, writ ref d n.r.e.) (concluding property could not be readily attached when party testified he would not voluntarily pay the judgment). At a previous hearing, appel-lee argued it did not possess the shares of stock but rather they were held by a lien-holder. This is further evidence the property cannot be readily attached by ordinary legal process. See Childre v. Great Sw. Life Ins. Co., 700 S.W.2d 284, 288 (Tex.App.-Dallas 1985, no writ) (evidence that corporate stock was in the hands of third parties was sufficient to support finding stock could not readily be attached); see also Suttles v. Vestin Realty Mart. I, Inc., 317 S.W.3d 412, 416 (Tex.App.-Houston [1st Dist.] 2010, no pet.) (property that cannot be readily attached or levied on by ordinary legal process includes property such as shares of stock).

Thus, the evidence shows appellee owns property that cannot be readily attached or levied on by ordinary legal process and is not exempt from attachment. Appellee provided no evidence to the contrary. As such, the evidence is insufficient to support the trial court’s findings that ordering ap-pellee to deliver its corporate documents and paperwork would not result in identifying any assets subject to turnover, and turnover is an extraordinary remedy with potential for error or abuse of property. The evidence is likewise insufficient to support the court’s conclusion of law that appellant failed to sustain its burden of proof for issuance of a turnover order. Thus, the trial court abused its discretion in denying appellant’s application for a turnover order. We sustain appellant’s sole issue.

Conclusion

We reverse the trial court’s June 10, 2008 order and render judgment in favor of appellant.

      . County Court at Law No. 2 heard and decided the original summary judgment mo-dons.

      . Because this court concluded Briggs was not liable in the underlying case, appellant’s argument against him is moot.

      . The trial court overlooks the fact that the turnover statute specifically allows for the turnover of corporate documents and other papers. See Tex. Civ. Prac & Rem.Code Ann. § 31.002(b) (court may order judgment debt- or to turn over nonexempt property in its control, together with all documents or records related to the property).


author: Justice FILLMORE.

text:
    Phillip BRIDWELL, Appellant, v. Douglas D. MULDER, Patrick Kennard, David Wells, and Wells Bail Bonds, Appellees.
    No. 05-09-01339-CV.
    Court of Appeals of Texas, Dallas.
    June 17, 2010.

      See also, 2008 WL 4292066.
    Phillip Bridwell, Rosharon, TX, pro se.
    John D. Nation, Wyde, Fox & Nation, Dallas, TX, for Appellees.
    Before Justices Bridges, FITZGERALD, and FILLMORE.
   OPINION

Opinion By

Justice FILLMORE.

Appellant Phillip Bridwell, an inmate of the Texas Department of Criminal Justice appearing pro se before this Court, appeals the trial court’s order of dismissal •with prejudice for want of prosecution. We affirm the trial court’s judgment dismissing Bridwell’s claims with prejudice.

Background

Bridwell filed the underlying lawsuit on August 27, 2007 against Douglas D. Mulder, an attorney appellant claimed to be his counsel, Patrick Kennard, David Wells, and Wells Bail Bonds. Pursuant to chapter 14 of the civil practice and remedies code entitled “Inmate Litigation,” Mulder was dismissed from the lawsuit by interlocutory order of July 23, 2008. The trial court determined Bridwell’s claims against Mulder were frivolous and malicious. See Tex. Civ. PRac. & Rem.Code Ann. § 14.003(a)(2) (Vernon 2002). The order of dismissal of Mulder is not a subject of Bridwell’s appeal.

On August 7, 2009, the trial court sent notice to Bridwell of an October 26, 2009 non-jury trial setting. That notice provided that trial announcements must be made in accordance with rule 3.02 of the local rules of the civil courts of Dallas County.

The notice further stated that if plaintiff failed to announce or to appear at trial, the case would be dismissed for want of prosecution in accordance with rule of civil procedure 165a.

On October 26, 2009, the trial court dismissed Bridwell’s lawsuit for want of prosecution. The trial court’s October 26, 2009 order of dismissal with prejudice states:

Pursuant to previous notice by the Court, the above-referenced cause was called to trial on October 26, 2009. Despite receiving notice of the trial, Plaintiffs (sic) failed (1) to make a trial announcement pursuant to Dallas County Local Rules and (2) to appear for trial. Accordingly, the Court dismisses this case for want of prosecution with prejudice to re-filing in the future.

This appeal followed.

Analysis

We review a trial court’s dismissal for want of prosecution under an abuse of discretion standard. See Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.1999); WMC Mortgage Corp. v. Starkey, 200 S.W.3d 749, 752 (Tex.App.-Dallas 2006, pet. denied). The question is whether the trial court acted without reference to any guiding rules or principles, or whether the act was arbitrary or unreasonable. Downer v. Aquamarine Operatars, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).

Trial courts have authority to dismiss for want of prosecution pursuant to rule 165a(l) or the trial court’s inherent power when a party seeking affirmative relief fails to appear for a trial or hearing of which the party had notice. See Tex.R. Civ. P. 165a(l); Villarreal, 994 S.W.2d at 630. A party must be given notice and an opportunity to be heard before the trial court may dismiss under either rule 165a or the trial court’s inherent power. See Tex.R. Civ. P. 165a(l); Villarreal, 994 S.W.2d at 630.

It is undisputed that Bridwell received notice of the trial setting. In an August 18, 2009 letter to the clerk of the trial court regarding a previously-filed motion for summary judgment, Bridwell apprised the court that in the future he would file a “prosecution ready” for the October 26, 2009 trial setting and he would file a “bench writ and necessary announcements.” The record contains no evidence that Bridwell made a trial announcement. In his brief, Bridwell states that “due to incarceration, appellant was unable to get a bench writ signed.” However, there is no evidence in the record that Bridwell filed a motion seeking a “bench writ.”

On this record, we conclude the trial court did not abuse its discretion when it dismissed Bridwell’s claims.

On appeal, Bridwell requests that the trial court’s order of dismissal be modified to reflect a dismissal without prejudice. When a plaintiff fails to appear for trial, it is improper for a trial court to dismiss the action with prejudice. See State v. Herrera, 25 S.W.3d 326, 328 (Tex.App.-Austin 2000, no pet.); Maldonado v. Puente, 694 S.W.2d 86, 92 (Tex.App.-San Antonio 1985, no writ). However, error in dismissing a case with prejudice must be presented to the trial court and cannot be raised for the first time on appeal. See Bird v. Kornman, 152 S.W.3d 154, 161 (Tex.App.-Dallas 2004, pet. denied). Brid-well was required to present his complaint about the dismissal with prejudice to the trial court. Tex.R.App. P. 33.1(a)(1); McCain v. NME Hosps., Inc., 856 S.W.2d 751, 755 (Tex.App.-Dallas 1993, no writ).

To complain about an error in the judgment rendered, Bridwell was required to present the error to the trial court in a post-judgment motion such as a motion to alter or correct the judgment or a motion for new trial. See Kornman, 152 S.W.3d at 161. The record confirms that Brid-well’s first complaint with regard to the dismissal with prejudice was on appeal. We deny Bridwell’s request to modify the dismissal to reflect a dismissal without prejudice.

Conclusion

We affirm the trial court’s judgment dismissing Bridwell’s claims with prejudice.

      . Under Dallas County local rule 3.02, when a case is set for trial during a particular week, parties are required to make announcements on the preceding Thursday and, in any event, no later than 10:30 a.m. on the preceding Friday, concerning their readiness for trial. If a plaintiff does not make an announcement by 10:30 a.m. on Friday preceding the week in which the case is set for trial, the court may dismiss the case for want of prosecution.
        See Rule 3.02, Local Rules of Practice of the Civil Courts of Dallas County.

      . The terms "bench writ” or “bench warrant” are phrases sometimes used to describe a writ of habeas corpus ad testificandum, which is used to compel an inmate to be brought before the court to testify. See Brewer v. Taylor, 737 S.W.2d 421, 424 n. 3 (Tex.App.-Dallas 1987, no writ).


author: J. WOODFIN JONES, Chief Justice.

text:
    The STATE of Texas, Appellant, v. Jed JORDAN, Appellee.
    No. 03-09-00530-CR.
    Court of Appeals of Texas, Austin.
    June 17, 2010.

      Giselle Horton, Assistant County Attorney, Austin, TX, for Appellant.
    Wade H. Russell, Austin, TX, for Appel-lee.
    Before Chief Justice JONES, Justices PEMBERTON and WALDROP.
   OPINION

J. WOODFIN JONES, Chief Justice.

The State appeals an order suppressing evidence in a prosecution for driving while intoxicated. See Tex.Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp. 2009). On June 6, 2008, a search warrant was issued authorizing the taking of a sample of appellee Jed Jordan’s blood to test for alcohol concentration. See id. art. 18.02(10) (West 2005); see also Gentry v. State, 640 S.W.2d 899, 902 (Tex.Crim.App.1982) (holding that blood is item of evidence for which search warrant may issue); Beeman v. State, 86 S.W.3d 613, 616 (Tex.Crim.App.2002) (holding that implied consent law does not prohibit drawing blood pursuant to search warrant). Jordan moved to suppress the test result on the ground that the search warrant affidavit failed to state probable cause. After a hearing consisting of arguments by counsel, the motion was granted. We affirm the order.

A warrant to search for and seize items constituting evidence of an offense or tending to show that a particular person committed an offense must be supported by an affidavit containing facts sufficient to give the issuing magistrate probable cause to believe that: (1) a specific offense has been committed, (2) the items to be searched for and seized constitute evidence of that offense or that a particular person committed that offense, and (3) the items are located at or on the particular person, place, or thing to be searched. Tex.Code Crim. Proc. Ann. art. 18.01(c) (West Supp.2009). A search warrant affidavit must be interpreted in a common sense and realistic manner, recognizing that reasonable inferences may be drawn from the affidavit. Hespeth v. State, 249 S.W.3d 732, 737 (Tex. App.-Austin 2008, pet. ref d). A reviewing court — which means in this case both the county court at law and this Court — -must give the issuing magistrate’s determination of probable cause great deference, and the decision to issue the warrant will be sustained if the magistrate had a substantial basis for concluding that probable cause was shown. Illinois v. Gates, 462 U.S. 213, 236-37,103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App.2004); State v. Davila, 169 S.W.3d 735, 738 (Tex.App.-Austin 2005, no pet.).

The search warrant affidavit in this case was prepared by Sergeant K. Suitt of the Austin Police Department. The affidavit states, in pertinent part:

I am a peace officer of the State of Texas, to wit: a Police Officer for the City of Austin in Travis County, Texas, and I have good reason to believe that heretofore, on or about the 6th day of June, 2008 in the County of Travis and State of Texas, Jed Jordan White/Male born 06-14-1984, did then and there commit an offense relating to the operation of a motor vehicle while intoxicated namely:
DRIVING WHILE INTOXICATED— (OFFENSE LEVEL A)

Affiant has probable cause for said belief by reason of the following facts:

My belief of the forgoing statement is based upon information provided to me by Officer R. Gilbert an officer working for Austin PD who personally observed such offense.
Officer M. Forshee observed the aforesaid accused driving 2006 SCHW motorcycle upon 500 blk East 7th Street, a public place in Austin, Travis County, TX
Officer M. Forshee stopped the said accused for the following reasons; drove wrong way on a one way (westbound on E 7th which is eastbound only).
Officer R. Gilbert observed the said accused at the scene of said offense and formed the opinion the said accused was intoxicated based upon the following conditions exhibited by the said accused[:]
[The affidavit describes Jordan’s general appearance and behavior and the results of the standard field sobriety tests, all of which were indicative of intoxication. It states that Jordan was not in possession of alcohol, but that he admitted drinking two bottles of beer. It also states that Jordan has a previous conviction in Harris County for driving while intoxicated.] Officer R. Gilbert has seen intoxicated persons on many occasion in the past. Based on all of the above and his experience and training, Officer R. Gilbert determined that the suspect did not have the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body, and placed the suspect under arrest for Driving While Intoxicated. Officer R. Gilbert requested a sample of the suspect’s breath and/or blood, which the suspect refused to provide.

The affidavit goes on to state that Jordan was being held at central booking and that his blood would constitute evidence of the driving while intoxicated offense. The affidavit was signed on June 6, 2008, at an unspecified time. The search warrant was signed and issued by the magistrate at 3:54 a.m. on June 6, 2008. The blood sample was drawn at 4:20 a.m. that morning.

Jordan has never contended that the facts stated in the affidavit were insufficient to give the magistrate probable cause to believe that he had been driving while intoxicated. Jordan argued below and continues to argue, however, that because the affidavit did not state the date and time when those facts arose, the affidavit was not sufficient to give the magistrate probable cause to believe that Jordan’s blood would constitute evidence of his guilt at the time the warrant issued. See Mata v. State, 46 S.W.3d 902, 909 (Tex.Crim. App.2001) (describing how body absorbs and eliminates alcohol). The trial court concluded that it was reasonable to infer that the facts arose on June 6, 2008, but agreed with Jordan that the affidavit was inadequate because it did not state the time when the critical observations were made. The State argues that because the warrant issued at 3:54 a.m. on June 6, the maximum amount of time that could have elapsed between the stop and the issuance of the warrant was three hours and fifty-four minutes. The State urges that it was therefore reasonable for the issuing magistrate to infer that appellant’s blood would still contain some evidence of intoxication when the warrant issued.

The State relies on the opinion in State v. Dugas, 296 S.W.3d 112 (Tex.App.-Houston [14th Dist.] 2009, pet. refd). In that ease, also a prosecution for driving while intoxicated, the search warrant affidavit stated as a fact that the traffic offense giving rise to the defendant’s arrest took place on March 15, 2008. Id. at 114. The search warrant was issued at 6:03 a.m. that day. Id. at 115. The court of appeals concluded that because no more than six hours elapsed between the offense and the issuance of the warrant, “it was [not] unreasonable for the magistrate to presume that there still would be some evidence of intoxication found in [the defendant’s] blood when the warrant was signed.” Id. at 118.

The State’s argument is premised on the assertion in its brief that “it is undisputed that both the offense and the issuance of the warrant occurred on the same day, June 6.” But this fact is disputed. Jordan has consistently argued that the affidavit did not give the magistrate a substantial basis for concluding that he was stopped and arrested on June 6. We are compelled to agree with Jordan.

Suitt’s statement in his affidavit that “I have good reason to believe that heretofore, on or about the 6th day of June, 2008 in the County of Travis and State of Texas, Jed Jordan ... did then and there commit” the offense of driving while intoxicated was not a statement of fact; it was merely a statement of the officer’s belief. A police officer’s conclusion that a crime has been committed does not give a magistrate a substantial basis for determining that probable cause exists. See Gates, 462 U.S. at 239, 103 S.Ct. 2317; Davila, 169 S.W.3d at 739-40. It is the facts giving rise to the officer’s suspicion that are determinative, and the affidavit in this case was completely silent as to the date and time when Jordan was stopped by Forshee and observed by Gilbert, and when Gilbert passed on his information to Suitt. Therefore, although the facts contained in the affidavit were sufficient to warrant the conclusion that Jordan had been driving while intoxicated on some date, the affidavit contained no facts from which a reasonable inference could be drawn as to what that date was. In what is a critical distinction from Dugas, the affidavit in this case did not state that the offense took place on June 6. Nor can it be reasonably inferred that the offense occurred on June 6 from the mere fact that the warrant was requested that date. Thus, there is no basis for the State’s argument that the warrant was sought less than four hours after the offense was committed.

The affidavit in this case is analogous to the search warrant affidavit held insufficient in Schmidt v. State, 659 S.W.2d 420 (Tex.Crim.App.1983). The affiant in that case, a police officer, stated that he believed, based on information received from an informer, that the suspect possessed cocaine on or about a certain date. Id. at 421. The affidavit failed to state, however, when the incident described by the informer took place. Id. The court of criminal appeals held that the facts stated in the affidavit did not give the magistrate a basis for concluding that the information was still fresh, and thus the affidavit did not support the magistrate’s conclusion that probable cause existed at the time the warrant was sought. Id. The opinion in Schmidt contradicts any argument that a police officer’s statement that he believes that events occurred on or about a certain date, without any facts to support that belief, is sufficient to support an inference that the events did occur on that date.

Although the officers involved in this case may well have acted promptly to obtain the search warrant, we cannot ignore the affidavit’s silence regarding the crucial matter of date and time. “It is one thing to draw reasonable inferences from information clearly set forth within the four corners of an affidavit.... It is quite another matter to read material information into an affidavit that does not otherwise appear on its face.” Cassias v. State, 719 S.W.2d 585, 590 (Tex.Crim.App.1986). The magistrate could not infer that Jordan had been stopped and arrested on June 6 merely because the warrant was being sought on June 6.

Even under the deferential standard applied when reviewing a magistrate’s probable cause finding, the affidavit in this case did not warrant the conclusion that Jordan’s blood would constitute evidence of the driving while intoxicated offense because there were no facts from which the magistrate could reasonably infer that the time that had elapsed was sufficiently short to justify the belief that alcohol would still be in Jordan’s blood. The trial court’s order suppressing the result of the blood test is affirmed.

      . The State's brief states that the blood test showed a .23 alcohol concentration, but this fact does not appear in the record. The information alleges intoxication in terms of impairment; it does not allege intoxication per se. See Tex. Penal Code Ann. § 49.01(2) (West 2003).

      . We express no opinion as to whether the warrant would have been timely under those circumstances. We also express no opinion as to whether a statement that the pertinent events took place "on or about” a certain date is sufficient to warrant an inference that the events actually took place on that date. We agree with the trial court that when an affiant is seeking a warrant to take blood for the purpose of testing for alcohol concentration, a precise statement of the relevant times is advisable.


author: Justice MORRIS.

text:
    The STATE of Texas, Appellant, v. Melissa Beth OGEDA, Appellee.
    No. 05-09-00567-CR.
    Court of Appeals of Texas, Dallas.
    June 22, 2010.

      Katherine A. Drew, Dallas County Public Defender’s Office, Dallas, TX, for Appellant.
    Anne Wetherholt, Assistant District Attorney, Dallas, TX, for Appellee.
    Before Justices MORRIS, FITZGERALD, and FRANCIS.
   OPINION

Opinion By

Justice MORRIS.

The State indicted Melissa Beth Ogeda for unlawful possession with intent to deliver a controlled substance. After two hearings, the trial court granted her motion to suppress certain evidence. The State contends on appeal, among other arguments, that the trial court erred by using a subjective standard in making its reasonableness determination and therefore also erred in granting the motion. Concluding the trial court erred in its reasonableness determination, we reverse the trial court’s order and remand the cause for further proceedings.

Factual Background

At approximately ten o’clock one Sunday morning, appellee and her boyfriend were parked in a car outside an after-hours club when police officers pulled into the parking lot. Appellee and her boyfriend lived together and shared the car. The club was known as a high crime area, and police received complaints about heavy drug activity there. Because the club itself does not sell alcohol, officers often observed people consuming alcohol or engaging in drug activity in their cars before going into the club. Several robberies, sexual assaults, and assaults had occurred in the vicinity. Police often checked the parking lot for illegal or suspicious activity.

The officers observed appellee leaving the driver’s seat of the car. She stumbled as she left the car, commenting to her boyfriend to hurry and get out of the car because the “cops” were behind them. The officers saw appellee’s boyfriend throw a clear plastic bottle into the passenger-side door panel as he got out of the car and shut the door.

A female officer approached appellee. Appellee appeared nervous and had the odor of alcohol on her breath. Her pupils were constricted and her hands were shaking. She had difficulty answering questions. Appellee denied using alcohol, but she told the officer she used Xanax and was in possession of some other drug. She was still holding the keys to the car in her hand. The officer arrested appellee for public intoxication. The arresting officer testified that she felt appellee was at risk for committing the offense of driving while intoxicated and was also a danger to herself because the parking lot was a high crime area with an extensive amount of vehicle traffic. The officer stated that she had seen appellee at the same location before. She had previously explained to appellee that if she found her there under the influence of drugs or alcohol again, she would arrest her. Appellee’s boyfriend was arrested for public intoxication as well. When a male officer questioned him, he had unsteady balance and his speech was slurred.

After the arrests, officers searched the car incident to the arrests and as an inventory search preceding the car’s being towed to the city impound lot. During the search, police found what appeared to be gamma hydroxybutyrie acid, or GHB, in the plastic bottle appellee’s boyfriend had thrown into the passenger-side door panel. A second plastic bottle containing a clear liquid that appeared to be GHB was found in the center console next to where appel-lee had been seated. A small amount of drugs was also found in appellee’s purse. The public intoxication case against appel-lee was eventually dismissed.

At the conclusion of the hearing on ap-pellee’s motion to suppress, the trial judge initially denied the motion. The judge concluded there was probable cause to justify appellee’s arrest and the officers were thereby permitted to search the car incident to the arrest. The judge also concluded, however, that there was no probable cause to justify the arrest of appellee’s boyfriend. The judge refrained from making a finding that the search was also proper as an inventory search of the car.

After the United States Supreme Court issued its opinion in Arizona v. Gant, — U.S.-, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), narrowing the situations in which officers are justified in searching actors’ cars following their arrest, the trial judge reconsidered his ruling. After hearing argument, the trial judge granted the motion to suppress. The State argued that the officers’ subjective intentions in searching the car were not important in determining the objective reasonableness of the search, but the judge rejected this argument, calling it a “theoretical analysis, not a reasonableness question.” The judge stated,

If the officer had testified, Yes, I believed there maybe a — a beer bottle, or there might have been an intoxicant, there may have been something in the car and I needed to search that car to determine that, you would be absolutely correct. That ... would be judged under a reasonableness test; however, we don’t have that in this case. What you are promulgating is a theoretical. That in theory the cops could have been searching the car to search for an intoxicant. In theory they could have been looking for something. But in this case, the Court just finds that there was no such testimony. There’s no evidence to show that that was why they were searching the vehicle.

Based on his findings, on reconsideration, the trial judge granted appellee’s motion to suppress.

Discussion

In its first two issues, the State complains that the trial court erred in granting appellee’s motion to suppress because it failed to apply an objective standard to the reasonableness test of Gant In Gant, the Supreme Court held that police are necessarily authorized to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. Id. at 1719. The Court further held that circumstances “unique to the vehicle context” justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of the arrest might be found in the vehicle. Id. In certain cases, the Court observed, “the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein.” Id.

The State contends that in making its determination of whether it was reasonable for the officers to believe evidence of the public intoxication offense might be found in appellee’s car, the trial court erred by relying solely on the officers’ subjective explanations that they searched the car because they were justified in doing so under existing law. Appellee responds that the objective standard advocated by the State is “applicable primarily to appellate courts in evaluating detentions and applications of the emergency doctrine” and is not the standard applicable to a probable cause to arrest analysis. Both parties agree that this Court must apply a de novo standard of review to the trial court’s decision. See State v. Cullen, 195 S.W.3d 696, 699 (Tex.Crim.App.2006).

The United States Supreme Court has held, “[Ajlmost without exception in evaluating alleged violations of the Fourth Amendment, the Court has first undertaken an objective assessment of an officer’s actions in light of the facts and circumstances then known to him.” Scott v. United States, 436 U.S. 128, 137, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978). The fact that the officer does not have the state of mind providing the legal justification for her action does not invalidate the action taken, so long as the circumstances, viewed objectively, justify it. See id. at 138, 98 S.Ct. 1717.

The touchstone of the Fourth Amendment is reasonableness. Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). Reasonableness must be measured in objective terms by examining the totality of the circumstances. Id. An officer’s subjective intentions play no role in ordinary probable cause analysis. Id. at 38, 117 S.Ct. 417; see also Gutieirez v. State, 221 S.W.3d 680, 685 (Tex.Crim.App.2007) (holding that in context of warrantless search, probable cause exists when facts and circumstances within knowledge of officer on scene “would lead a man of reasonable prudence to believe that the instrumentality or evidence of a crime will be found”). Here, the officers on the scene were in an area known for drug use. The officers were aware that people in the parking lot often used drugs or drank alcohol in their cars because they could not buy alcohol in the club. The arresting officer had warned appellee in the past that if the officer found her under the influence of intoxicants in the parking lot again she was going to arrest her. And when the officer encountered appellee, she appeared intoxicated. Moreover, appellee yelled to her boyfriend to hurry up because the police were behind them, just before he threw the plastic bottle into the car.

Our determination of reasonableness “must be based upon commonsense judgments and inferences about human behavior.” See Tanner v. State, 228 S.W.3d 852, 855(Tex.App.-Austin 2007, no pet.) (quoting Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)). Based on the totality of the circumstances in this case, we conclude an arresting officer could have reasonably believed that evidence supporting the public intoxication arrest would be found in the car. See Hill v. State, 303 S.W.3d 863, 875-76 (TexApp.-Fort Worth 2009, pet. ref d).

The trial court erred in granting appel-lee’s motion to suppress. We resolve the State’s first two issues in its favor. Due to our resolution of these issues, we need not address the State’s third issue. We reverse the trial court’s order granting the motion to suppress and remand the cause for further proceedings.


author: Justice RICHTER.

text:
    ALEXANDER SHREN-YEE CHENG, Appellant, v. ZHAOYA WANG and Charng-Wen Michael Lo, Appellees.
    No. 05-08-01707-CV.
    Court of Appeals of Texas, Dallas.
    June 22, 2010.

      Joe L. Orr, Orr & Orr, Fort Worth, TX, for Appellant.
    James N. Apostle, Dallas, TX, for Appel-lees.
    Before Justices RICHTER, LANG-MIERS, and MURPHY.
   OPINION

Opinion By

Justice RICHTER.

The trial court rendered judgment in favor of appellees following a three day bench trial. Cheng appeals the judgment and raises seven issues. In his first issue, Cheng argues the trial court violated its own scheduling order. In three issues, Cheng contends the trial court erred in not appointing a Chinese interpreter. In two other issues, Cheng argues the trial court erred in admitting evidence and by allowing leading questions. In his final issue, Cheng contends the trial court was prejudiced against him because he did not have an attorney. We overrule all of Cheng’s issues and affirm the trial court judgment.

BACKGROUND

This litigation arises from a partnership between the parties, all Chinese natives, doing business in the United States.

Cheng and Zhaoya Wang (“Wang”) formed a partnership, CLW International (“CLW’), in 2003. The purpose of the partnership was to design products, manufacture them in China, and sell the products in the United States. The main product of CLW was wood cabinets. Wang is an engineer and was responsible for designing the product and monitoring the manufacturing process in China.

Cheng and Wang decided to bring in a third partner, Charng-Wen Michael Lo (“Lo”), to invest in and help operate the partnership in late 2004. All parties had management responsibilities until September 2005, when Cheng indicated he wished to withdraw from management to become CLW’s full time sales representative. At that time, CLW only had one customer, Builders Surplus. Cheng handled the Builders Surplus account. In March 2006, Cheng notified Wang that they had lost the Builders Surplus account. Wang and Lo alleged that Cheng created a separate business and diverted the Builders Surplus account to his new business.

This lawsuit was commenced on June 2, 2006, when MetroBank, NA, filed an inter-pleader petition against CLW, Cheng, Wang, and Lo, to resolve disputes over an account in the name of CLW. After Me-troBank was dismissed from the action, Lo and Wang filed cross claims against Cheng, and Cheng filed cross claims against Lo and Wang. Cheng was initially represented by an attorney and his attorney filed his First Amended Original Answer and Cross Claim. Cheng’s attorney withdrew in February 2007, and Cheng has since represented himself. During the course of the proceedings below, Cheng filed numerous pleadings including amended cross claims, motion for sanctions, proposed pre-trial order, affidavit in support of pretrial order, and request for findings of fact and conclusions of law. On October 29, 2007, Cheng filed a Second Amended Cross-Claim against Wang and Lo. No affirmative relief was requested in the Second Amended Cross-Claim. Cheng attempted to file a third amended cross-claim on the second day of the trial, but this was rejected by the trial court. He also conducted discovery and represented himself throughout the trial. All of the documents filed by Cheng with the trial court were in English and Cheng never requested a Chinese translator.

The Uniform Scheduling Order set the first trial date for June 6, 2007. Cheng announced ready for trial shortly before that date, but there is nothing in the record indicating that Wang and Lo announced ready for trial. A motion for continuance was filed on June 4, 2007. The notation on the judge’s docket does not indicate who filed the motion, nor is there a copy of the motion in the record. However, Cheng alleges that the continuance was requested by Wang and Lo and they do not dispute that.

The case was reset by the trial judge to November 28, 2007. The day before the next scheduled trial date, Wang and Lo filed a motion for a continuance to conduct additional discovery. The case was reset for trial for March 5, 2008. Wang and Lo filed another motion for continuance due to the unavailability of a witness and documents. The trial was reset for, and commenced on, July 30, 2008.

The court conducted the trial on July 30 and July 31, 2008. It was scheduled to continue on August 1, 2008. However, on the morning of August 1, 2008, Cheng sent a friend to court with a motion for continuance. In the motion, Cheng alleged that he had been sick throughout the night and asked the court to continue the trial. The motion was not verified and the judge denied the motion. The judge then announced judgment for Wang and Lo for fraud and breaches of fiduciary duties. A final judgment was not signed until September 24, 2008. Cheng appeals from that judgment.

DISCUSSION

Trial Court’s Scheduling Order

In his first issue, Cheng complains that the trial court violated its own scheduling order. First, Cheng argues the trial court failed to follow Local Rule 2.03. Dallas (Tex.) Civ. Dist. Ct. Loe. R. 2.03. Next, Cheng contends that although he complied with the scheduling order by filing a proposed pre-trial order and announcing ready for trial, Wang and Lo did not comply with the order.

Local Rule 2.03 provides “counsel shall submit to the Court a proposed judgment or dismissal order, unless ordered otherwise. Failure to so furnish the Court with such a proposed judgment or dismissal order will be interpreted to mean that counsel wish the Court to enter an Order of Dismissal.... ” The rule does not require the trial court to sign the order within thirty days, it directs the parties to submit the order within thirty days. Cheng has failed to support his argument that dismissal was mandatory with any legal authority. Failure to support an argument with citations to any legal authority, waives those issues on appeal. Abdeln-our v. Mid Nat’l Holdings, Inc., 190 S.W.3d 237, 241 (Tex.App.-Houston [1st Dist.] 2006, not pet.). Therefore, this issue is waived.

Cheng also complains that Wang and Lo failed to comply with the scheduling order by failing to submit a pre-trial order and failing to announce ready for trial. Cheng did not raise these objections with the trial court, and therefore, failed to preserve error for appellate review. Tex. R.App. P. 33.1(a).

Having waived arguments raised in his first issue and failing to preserve error for appellate review, we overrule Cheng’s first issue.

Appointment of an Interpreter

In three related issues, Cheng argues the trial court erred by not sua sponte appointing a Chinese interpreter. No request or motion for an appointment of an interpreter for Cheng was made by any party or witness. Cheng contends that the trial court should have taken judicial notice of his lack of understanding of the English language and the need for a Chinese interpreter. Cheng does not cite any authority requiring sua sponte appointment of an interpreter in a civil proceeding, but relies on several criminal cases. See Garcia v. State, 149 S.W.3d 135 (Tex.Crim.App.2004); Ridge v. State, 205 S.W.3d 591 (Tex.App.-Waco 2006, pet. refd); Vasquez v. State, 819 S.W.2d 932 (TexApp.-Corpus Christi 1991, pet. refd). However, none of these cases are applicable to a civil proceeding. In a criminal proceeding the accused’s right to an interpreter is part of the constitutional right to confrontation. Vasquez, 819 S.W.2d at 937. There is no constitutional right to confrontation in a civil proceeding and the statutes and rules of procedure cited by Cheng in his brief all provide that in civil courts the court “may,” on its own motion, appoint an interpreter. See Tex.R. Civ. P. 183; Tex. Civ. Prac. & Rem.Code Ann. § 21.031 (Vernon 2008); Tex. Gov’t Code Ann. § 57.002(b) (Vernon Supp.2009). When the term “may” is used in a statute it indicates the provision is discretionary, not mandatory. Tex. Gov’t Code Ann. § 311.016 (Vernon 2005); Hardy v. Marsh, 170 S.W.3d 865, 870-71 (Tex.App.-Texarkana 2005, no pet.). Accordingly, the trial court was permitted, but not required, to appoint an interpreter.

When a trial court’s function is discretionary, we should reverse only when there was a clear abuse of discretion. Hardy, 170 S.W.3d at 871. The record establishes that Cheng was proficient in English. Cheng conducted business in this country and was the sales representative for CLW to its American customers. There were e-mails between the parties admitted into evidence that were in English. The partnership agreement between the parties that is the subject of the underlying dispute, is in English. Cheng filed multiple pleadings with the court that were in English. Cheng complains that “critical evidence” was in Chinese. However, there was only one e-mail in Chinese and Cheng asked that the witness, the person who sent the e-mail, be allowed to translate it. The judge allowed the witness to explain what it said and appellees’ counsel did not renew his objection after the witness explained the content of the document ... Finally, a review of the record establishes that Cheng’s difficulty at trial was not because he had difficulty with the English language, but because he was not a lawyer and did not understand how a trial is conducted or the technicalities of the rules of evidence. However, Cheng chose to represent himself and the difficulties he encountered during the trial because of that choice do not constitute grounds for . reversal. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex.1978) (“There cannot be two sets of procedural rules, one for litigants with counsel and the other for litigants representing themselves”). To hold otherwise would give a pro se litigant an advantage over a litigant who has retained counsel. Cooper v. Circle Ten Council Boy Scouts of Am., 254 S.W.3d 689, 693 (Tex.App.Dallas 2008, no pet.). Accordingly, based upon the record, we do not find the trial court abused its discretion by failing to sua sponte appoint an interpreter. We overrule issues two, three, and six.

Evidentiary Issues

In his fourth issue, Cheng alleges that evidence was “mis-identifíed and some admitted over valid objections.” Cheng argues that this constitutes “an abuse of discretion” by the trial court. In order to preserve an objection to admission of evidence, the party must make a timely objection and state the specific grounds at the time the evidence is presented. Tex.R. Evid. 103(a)(1); Tex.R.App. P. 33.1(a). When counsel for Wang and Lo tendered the exhibits Cheng contends were erroneously admitted, Cheng complained that they were not put in the same order. This was not a valid objection to the evidence at trial. Therefore, Cheng failed to preserve error. Issue four is overruled.

In his seventh issue, Cheng raises two different evidentiary points (1) the trial court erred by allowing Wang’s and Lo’s attorney to ask leading questions; and (2) the trial court erred by not allowing Cheng to admit evidence. In his first point, Cheng contends that the trial court allowed leading questions. However, Cheng did not make timely and specific objections at trial and failed to preserve error for appellate review. Tex.R. Evid. 103(a)(1); Tex.R.App. P. 33.1(a). Even if Cheng had preserved error in the trial court, Cheng has failed to explain or cite any authority that any error in the admission or exclusion of evidence affected a “substantial right.” Tex.R. Evid. 103(a). Therefore, we overrule Cheng’s first argument raised in issue seven.

In his second point raised in issue seven, Cheng contends that the trial court did not allow him to admit evidence. The record cited by Cheng for this point shows that Cheng attempted to testify about a document that had not been admitted into evidence and this testimony was excluded on the basis of relevance. In order to preserve error in the exclusion of evidence, a party must make an offer of proof of the excluded evidence specific enough for a reviewing court to determine its admissibility. In re N.R.C., 94 S.W.3d 799, 806 (Tex.App.-Houston [14th Dist.] 2002, pet. denied). Cheng did not make an offer of proof in order to preserve error. Accordingly, we conclude that Cheng failed to preserve error and overrule this second point raised in issue seven. Cheng’s seventh issue is therefore overruled.

Prejudice Toward pro Se Litigant

In his fifth issue, Cheng contends that the trial court was prejudiced against him because he was not represented by an attorney. Cheng did not support this issue with citation to any legal authority. Appellate briefs are required to “contain a clear and concise argument for the contentions made, with appropriate citations to the authorities and to the record.” Tex. R.App. P. 38.1. The issues are waived on appeal if the appellant fails to comply with the rules. Abdelnour, 190 S.W.3d at 241. Therefore, Cheng’s fifth issue is waived.

We affirm the trial court’s judgment.