author: Justice FITZGERALD.

text:
    In re WACHOVIA SECURITIES, LLC, Relator. Wachovia Securities, LLC, Appellant, v. Jeffrey H. Mims, Trustee for the Bankruptcy Estate of Dennis Serio, Appellee.
    No. 05-08-01029-CV.
    Court of Appeals of Texas, Dallas.
    May 3, 2010.

      William Ross Forbes Jr., Jackson Walker, L.L.P., Dallas, TX, for Appellant.
    Gary J. Cruciani, McKool Smith, PC, Jason Fulton, Eric David Madden, Diamond McCarthy LLP, Dallas, TX, for Ap-pellee.
    Before Justices FITZGERALD, MURPHY, and THOMAS.

      . The Honorable Linda Thomas, Chief Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

   OPINION

Opinion By

Justice FITZGERALD.

In this consolidated proceeding, Wacho-via Securities, LLC brings a petition for writ of mandamus and an interlocutory appeal complaining of the trial court’s order denying its motion to compel arbitration and ordering it to dismiss certain claims in an arbitration already in progress. We conditionally grant the petition for writ of mandamus and dismiss the interlocutory appeal.

I. Background

A. Facts

Dennis Serio took a job with Wachovia Securities as a financial advisor. He began his employment with Wachovia Securities in September 2006. According to a written summary regarding Serio’s new position, part of his compensation was to be a $285,000 loan that would gradually be forgiven over time if his employment lasted at least one year. Serio signed the written summary at the end, under the words “ACCEPTANCE OF OFFER OF EMPLOYMENT.” He also signed a promissory note in the amount of $285,000, payable to “Wachovia Corporation (Wa-chovia’), its affiliates, successors or assigns.” The record shows that Wachovia Corporation, not Wachovia Securities, actually made the loan to Serio. Wachovia Securities asserts, and Serio does not dispute, that Wachovia Corporation is a parent company to Wachovia Securities. The note recites that termination of Serio’s employment with ‘Wachovia” would cause any unpaid and unforgiven balance owed on the forgivable loan to become immediately due and payable.

In connection with accepting employment with Wachovia Securities, Serio signed a “Form U4 Uniform Application for Securities Industry Registration or Transfer.” That form contains an arbitration clause:

I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions, or by-laws of the SROs indicated in Section 4 (SRO Registration) as may be amended from time to time and that any arbitration award rendered against me may be entered as a judgment in any court of competent jurisdiction.

(Emphases in original.) One of the SROs listed in section 4 of the form is the NASD. The NASD Code of Arbitration Procedure for Industry Disputes contains the following arbitration provision:

Except as otherwise provided in the Code, a dispute must be arbitrated under the Code if the dispute arises out of the business activities of a member or an associated person and is between or among:
Members;
Members and Associated Persons; or
Associated Persons.

The proper application of this arbitration provision is the issue at the heart of this case.

Serio’s employment with Wachovia Securities ended on August 3, 2007. That same day, Wachovia Securities sent Serio a letter demanding repayment of the loan.

B. Procedural history

In September 2007, Serio filed this lawsuit against Wachovia Securities and Wa-chovia Corporation. He alleged that they induced him to leave his previous job and join Wachovia Securities by means of fraudulent or negligent misrepresentations. He also sought a declaratory judgment that the defendants’ misrepresentations and omissions excused him from his obligation to pay the promissory note. Wa-chovia Securities and Wachovia Corporation joined in a single motion to compel arbitration of Serio’s claims and to stay the lawsuit pending arbitration. On November 8, 2007, the trial judge signed an order staying the case pending arbitration.

On November 20, 2007, Wachovia Corporation executed a document assigning its interest in the promissory note to Wacho-via Securities. On or about November 27, 2007, Wachovia Securities commenced an arbitration proceeding against Serio before the Financial Industry Regulatory Authority. In its statement of claim, Wachovia Securities demanded payment under the terms of the promissory note that Serio had signed. In December 2007, Serio filed his own separate arbitration proceeding against Wachovia Securities and Wachovia Corporation for fraud, negligent misrepresentation, and declaratory relief.

In January 2008, Serio filed an answer and motion to dismiss in Wachovia Securities’ arbitration, arguing that Wachovia Securities’ claim on the promissory note was not subject to arbitration. In February 2008, Serio returned to the trial court and filed a motion to lift the stay of the litigation as to Wachovia Corporation and to stay the arbitration proceeding commenced by Wachovia Securities. The trial court denied Serio’s motion to lift the stay of the litigation as to Wachovia Corporation, but it granted a stay of Wachovia Securities’ arbitration proceeding and permitted the parties to file further briefing as to whether that stay should be continued. Wachovia Securities then filed a second motion to compel arbitration based on both the Federal Arbitration Act and the Texas General Arbitration Act. Serio responded. After a hearing, the trial judge signed an order denying Wachovia Securities’ motion to compel arbitration and ordering Wachovia Securities to dismiss any arbitration claim based on the loan to Ser-io.

Wachovia Securities filed a notice of accelerated appeal under section 171.098 of the Texas Civil Practice and Remedies Code and also filed a petition for writ of mandamus. We consolidated the two proceedings and substituted Jeffrey H. Mims, Trustee for the bankruptcy estate of Dennis Serio, as the appellee in this matter after briefing had been completed.

II. Jurisdiction and Standard of Review

Our first inquiry is whether we should consider this case as a mandamus or an interlocutory appeal. When a dispute is governed by the Federal Arbitration Act, we review the trial court’s denial of a motion to compel arbitration by mandamus. In re D. Wilson Constr. Co., 196 S.W.3d 774, 779 (Tex.2006). We have interlocutory appellate jurisdiction when a trial court denies an application to compel arbitration under section 171.021 of the Texas General Arbitration Act. Tex. Civ. PraC. & Rem.Code Ann. § 171.098(a) (Vernon 2005). If both the FAA and the TAA apply, then we possess concurrent interlocutory appellate jurisdiction and mandamus jurisdiction. In re D. Wilson Constr. Co., 196 S.W.3d at 779-80.

The FAA applies if a dispute concerns a contract evidencing a transaction involving interstate commerce. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269-70 (Tex.1992); see also 9 U.S.C. § 2. We have held that the Form U4 is a contract involving interstate commerce because it relates to the sale of securities. In re Merrill Lynch, Pierce, Fenner & Smith Inc., 131 S.W.3d 709, 712 (Tex.App.-Dallas 2004, orig. proceeding). Moreover, the parties agree that the FAA applies to this arbitration agreement. We conclude that the FAA applies and address Wachovia Securities’ petition for writ of mandamus.

Mandamus will issue to correct a clear abuse of discretion for which the remedy by appeal is inadequate. Zuffa, LLC v. HDNet MMA 2008 LLC, 262 S.W.3d 446, 449 (Tex.App.-Dallas 2008, no pet.). Under the FAA, mandamus relief is appropriate if the trial court abused its discretion by failing to compel arbitration. Id.

III. Analysis op the Merits

A. Issues presented

In its first two issues, Wachovia Securities argues that the claims in question are within the scope of the arbitration provisions of the NASD Code of Arbitration Procedure for Industry Disputes, and therefore the trial court erred by denying Wachovia Securities’ motion to compel arbitration and ordering Wachovia Securities to dismiss its claims in arbitration. In its third issue, Wachovia Securities argues that Serio waived his right to contest the arbitrability of the claims.

B. Arbitrability

The question presented by Wacho-via Securities in its first two issues is whether its claim against Serio on the promissory note comes within the scope of a valid arbitration agreement. A party seeking to compel arbitration under the FAA must establish that (1) there is a valid arbitration agreement and (2) the claims raised fall within the scope of that agreement. In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex.2005). Ser-io does not dispute that his Form U4 and the arbitration provision in the NASD Code of Arbitration Procedure for Industry Disputes collectively amount to a valid arbitration agreement between him and Wachovia Securities. Thus, our inquiry is whether Wachovia Securities’ claim against Serio is arbitrable under that agreement.

Disputes regarding the interpretation of an arbitration agreement are analyzed under traditional principles of contract construction. In re Hawthorne Townhomes, L.P., 282 S.W.3d 131, 138 (Tex.App.-Dallas 2009, orig. proceeding); Jenkens & Gilchrist v. Riggs, 87 S.W.3d 198, 201 (Tex.App.-Dallas 2002, no pet.). Thus, we examine the language of the arbitration clause in context and give the language its plain grammatical meaning. Jenkens & Gilchrist, 87 S.W.3d at 201. We resolve doubts about the scope of an arbitration agreement in favor of arbitration because there is a presumption favoring agreements to arbitrate. In re Kellogg Brown & Root, 166 S.W.3d at 737; In re Merrill Lynch, Pierce, Fenner & Smith, Inc., 195 S.W.3d 807, 813 (Tex.App.-Dallas 2006, orig. proceeding). Said another way, arbitration should not be denied unless it can be said with positive assurance that the arbitration clause cannot be interpreted so as to encompass the dispute in question. In re Dillard Dep’t Stores, Inc., 186 S.W.3d 514, 516 (Tex.2006) (per curiam); accord Graham-Rutledge & Co. v. Nadia Corp., 281 S.W.3d 683, 691 (Tex.App.-Dallas 2009, no pet.).

As relevant to this case, the arbitration provision in the NASD rules provides that a dispute must be arbitrated if two elements are met: (1) the dispute must “arise[ ] out of the business activities of a member or an associated person,” and (2) the dispute must be “between or among” members and associated persons. Wacho-via Securities asserts, and Serio does not dispute, that Wachovia Securities is a “member” and Serio is an “associated person” within the meaning of the NASD rules. We consider each element in turn.

1. Whether the dispute arises out of Wachovia Securities’ “business activities”

As to the first element required by the arbitration clause, Wachovia Securities contends that its claim against Serio on the Promissory Note arises out of Wachovia Securities’ business activities. The record shows that the loan memorialized by the Note was extended to Serio as part of his compensation for going to work for Wa-chovia Securities as a financial advisor, and that the loan would be forgiven over time as Serio worked for Wachovia Securities. Serio does not argue that the activities of hiring and compensating employees are not “business activities” by Wachovia Securities. We conclude that the plain meaning of the phrase “business activities” encompasses the hiring and compensating of employees. See In re NEXT Fin. Group, Inc., 271 S.W.3d 263, 268 (Tex.2008) (per curiam) (concluding that claims related to employment arise out of the employer’s “business activities”). Because the loan to Serio was related to his hiring and compensation by Wachovia Securities, we hold that Wachovia Securities’ claim on the Promissory Note arises out of Wacho-via Securities’ “business activities.”

2. Whether the dispute is “between” Serio and Wachovia Securities

As to the second element required by the arbitration clause, Wachovia Securities argues that its claim against Serio on the Promissory Note plainly qualifies as a dispute “between” a member (Wachovia Securities) and an associated person (Ser-io). Serio disputes this contention, relying heavily on the proposition that a party who receives an assignment of contract rights enjoys no greater rights than the assignor. See, e.g., Medtronic AVE, Inc. v. Advanced Cardiovascular Sys., Inc., 247 F.3d 44, 60 (3d Cir.2001). Serio points out that the Promissory Note contains no arbitration clause and that Wachovia Corporation would not have been able to compel him to arbitrate under the terms of the Note. He thus argues that Wachovia Securities cannot effectively expand the rights of its assignor, Wachovia Corporation, by importing an arbitration clause from its separate contract with Serio into the Note. In sum, Serio’s view is that this dispute is actually and only “between” him and Wa-chovia Corporation, not between him and Wachovia Securities, and Wachovia Securities cannot compel arbitration where its assignor, Wachovia Corporation, would not be able to do so.

We reject Serio’s argument and conclude that the second element is satisfied. “Between” means “involving as participants.” Webster’s Third New International DICTIONARY OF THE ENGLISH LANguage Unabridged 209 (1981). On its face, Wachovia Securities’ claim against Serio on the Note is a dispute “between” a member and an associated person. Although Serio is correct that Wachovia Securities’ rights under the assigned Note are no greater than Wachovia Corporation’s rights, Wachovia Securities also enjoys additional rights by virtue of its independent contract with Serio. Compelling him to arbitrate merely enforces Wachovia Securities’ rights under its own separate contract with Serio; it does not “expand” Wachovia Securities’ rights under the Note. Under that separate employment contract, Wachovia Securities is entitled to compel arbitration of any dispute between it and Serio that arises out of the “business activities” of either party. The arbitration clause does not specifically exclude disputes that are based on rights acquired by assignment, and the clause can reasonably be read to encompass such disputes as long as they arise out of the necessary “business activities.” Moreover, this dispute is not a random controversy unrelated to Serio’s relationship with Wachovia Securities. Rather, it arises directly from that relationship. Because the arbitration provision can reasonably be read to encompass this dispute, even to the extent Wachovia Securities’ rights are based on an assignment, we construe it to require arbitration of Wachovia Securities’ Note claim. See In re Kellogg Brown & Root, 166 S.W.3d at 737 (“Doubts regarding an agreement’s scope are resolved in favor of arbitration!!]”) (emphasis omitted).

The cases relied on by Serio are distinguishable. In the Medtronic case cited above, two companies called ACS and AVE were embroiled in patent-infringement litigation. 247 F.3d at 50. During the course of that litigation, AVE purchased certain assets from a third party named Bard, and Bard assigned two Bard-ACS contracts to AVE. Id. Those assigned contracts contained arbitration clauses applicable to disputes “concerning” rights and liabilities under those contracts. Id. at 49, 50. After the assignment, ACS tried to compel AVE to arbitrate their pending patent disputes. Id. at 50. The district court refused to compel arbitration, and the Third Circuit affirmed, concluding that the claims AVE was already pressing against ACS did not concern the Bard-ACS contracts and thus did not come within the scope of the Bard-ACS arbitration clauses. See id. at 55-61. The arbitration clauses and claims in the Medtronic case are too different from those presented in this ease for Medtronic to be helpful. The questions presented in this case are whether Wachovia Securities’ claim on the Note arises out of its “business activities” and whether its claim is “between” it and Ser-io. Medtronic does not answer these questions.

The other case heavily relied upon by Serio is In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185 (Tex.2007). In that case, Mr. and Mrs. Alaniz had separate contracts with three different Merrill Lynch companies, and only one contract contained an arbitration clause. Id. at 188. The Alanizes then sued Merrill Lynch Trust Company and Merrill Life Insurance Company, neither of which had an arbitration clause in its contract with the Alanizes. Id. The companies sought to compel arbitration, which the trial court denied. Id. The supreme court denied mandamus relief, holding that the trust company and the insurance company could not rely on the arbitration clause in the Alanizes’ contract with their legally separate corporate affiliate. Id. at 191. In re Merrill Lynch might be on point if Wacho-via Corporation were trying to enforce the arbitration clause incorporated in the U4 form, because the U4 form refers only to Wachovia Securities. But in this case, the party seeking to compel arbitration — Wa-chovia Securities — is also a party to the arbitration agreement. Accordingly, In re Merrill Lynch is not applicable.

Serio insists that In re Merrill Lynch supports the denial of arbitration because the dispute Wachovia Securities seeks to arbitrate is really “between” him and Wa-chovia Corporation. We cannot agree. In this proceeding, we cannot inquire into the validity of Wachovia Corporation’s assignment of the Note to Wachovia Securities. See Universal Computer Sys., Inc. v. Dealer Solutions, L.L.C., 183 S.W.3d 741, 749 (Tex.App.-Houston [1st Dist.] 2005, pet. denied) (courts cannot rule on merits of a claim in deciding whether the claim must be arbitrated). We examine only whether Wachovia Securities’ claim comes within the plain language of the arbitration clause — that is, whether the claim arises from Wachovia Securities’ business activities and is between Wachovia Securities and an associated person. Moreover, both parties to the dispute were also parties to the “business activities” from which the dispute arises. Under these circumstances, we conclude that the claim satisfies both elements of the arbitration clause, despite the evidence that Wachovia Securities acquired the claim by assignment.

C. Conclusion

As a matter of law, Wachovia Securities’ claim against Serio on the Note is covered by the arbitration clause within their agreement. The trial court abused its discretion by denying Wachovia Securities’ motion to compel arbitration and by ordering Wachovia Securities to dismiss any claim in arbitration that is based on the loan to Serio. In light of our holding, we need not address Wachovia Securities’ third issue, in which it contends that Serio has waived any objection to arbitration.

IY. Disposition

We conditionally grant Wachovia Securities’ petition for writ of mandamus and direct the trial court to vacate its order denying Wachovia Securities’ motion to compel arbitration and ordering Wachovia Securities to dismiss its arbitration claim based on the loan in question. We further direct the trial court to stay this litigation with respect to Wachovia Securities’ claim on the Note pending the completion of the arbitration already in progress. The writ will issue only if the trial court fails to comply. We dismiss Wachovia Securities’ interlocutory appeal as moot.

      . "SRO” is an acronym for "self-regulating organization.” MFS Sec. Corp. v. N.Y. Stock Exch., Inc., 277 F.3d 613, 617 n. 4 (2d Cir.2002).

      . Because Wachovia Securities commenced these appellate proceedings before September 1, 2009, new section 51.016 of the civil practice and remedies code expanding our appellate jurisdiction is not applicable in this case. See In re Chestnut Energy Partners, Inc., 300 S.W.3d 386, 394-95 n. 4 (Tex.App.-Dallas 2009, pet. denied).


source: Caselaw Access Project

author: JEFFREY V. BROWN, Justice.

license: Public Domain

text:
    Alan Michal NICKERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 14-08-01052-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    May 4, 2010.
    Discretionary Review Refused Aug. 25, 2010.

      R.P. Cornelius, Houston, for appellant.
    Donald W. Rogers, Jr., Houston, for ap-pellee.
    Panel consists of Justices YATES, FROST, and BROWN.
   OPINION

JEFFREY V. BROWN, Justice.

A jury convicted Alan Michal Nickerson of capital murder and he was sentenced to life imprisonment. In nine issues, Nicker-son contends that the trial court erred by: (1) allowing Nickerson’s statements to police officers to be admitted into evidence; (2) failing to instruct the jury on the lesser-included offense of felony murder; (3) allowing a police officer to testify about inadmissible hearsay statements; and (4) failing to grant a mistrial when the prosecutor repeatedly argued outside the record. We affirm.

I

At about nine o’clock on the evening of November 29, 2007, neighbors Raul Duran and Jorge Lemus were standing in the parking lot of their apartment complex having a conversation. The complainant, Cartrell Odom, who also lived in the apartment complex, approached them to join the discussion. The complainant was a peace officer, but he was dressed in plain clothing that night. The three men had been talking for about thirty minutes when four African-American, teenaged males walked toward them in a single-file line. Lemus testified that the first teenager wore a white hoodie with camouflage patterns, but the other three males wore black hoodies. Duran testified that the teenagers encircled the three men and drew firearms. It appeared to Lemus the teenager wearing the white hoodie was in charge because he was “doing all the talking,” including directing the three men to get down and proclaiming, “This is a fucking robbery.” Both Lemus and Duran got down on the ground. Duran testified that he could feel a gun pressed against his head, so he gave the four males everything in his pockets, including his cell phone. Lemus also relinquished his property. Le-mus stated that although he was on the ground, he kept his head facing forward and had a “very clear view of everything [that was] going on.”

Lemus stated that he witnessed the complainant start to get down on the ground, but after being struck several times with a gun, the complainant stood up and stated, “You cannot treat me like this.” Lemus testified that the complainant began to argue with the teenager in the white hoodie, who then pointed his gun at the complainant. The complainant hit his assailant’s hand, turned around, and began to run. Lemus stated that he heard a gunshot fired in the complainant’s direction. Then, the assailant chased the complainant, and he fired another shot causing the complainant to fall to the ground. Lemus testified that the assailant who shot the complainant walked over to the complainant’s body and shot him in the head — “a point-blank shot.” Albert Chu, assistant medical examiner, later performed the autopsy on the complainant’s body and testified that both shots, to the complainant’s back and head, were fatal wounds. After the third shot was fired, the four robbers jumped into a black sedan and drove out of the apartment complex.

After the shooting, several Houston Police Department (“HPD”) officers arrived on the scene, including Sergeant Tony Huynh. Sergeant Huynh testified that when he discovered Duran’s cell phone was stolen, and he and U.S. Marshal Lowen-stein decided to track or “ping” the cell phone to find its location. Sergeant Huynh stated that he followed Lowenstein in an unmarked vehicle to 4839 Redbud. After arriving at the address, Sergeant Huynh, HPD Sergeant Mark Newcomb, and two uniformed officers knocked on the front door and requested permission to enter and speak with the young African-American male in the home. Loveless Nickerson, mother of Alan Michal Nicker-son, gave the officers permission to enter the home and speak with her son. Once in the home, Sergeant Newcomb found Nick-erson, who appeared to be sleeping. He testified that when he tried to call Duran’s cell phone, it began to ring from underneath Nickerson’s pillow. The officers asked Nickerson if he was willing to accompany them to the police station. Nick-erson agreed to go with the officers and speak with them.

Sergeant Newcomb testified that once they arrived at the police station, Nicker-son was registered as a visitor and was not under arrest. Sergeant Newcomb stated that he read Nickerson his statutory warnings, and he taped an interview in which Nickerson confessed he was involved in the robbery as the getaway driver. After Nickerson’s statement, HPD Officer Alan Brown took Nickerson before a magistrate judge to have his legal warnings administered again. Officer Brown testified that Nickerson was now in custody. During the course of the day, Nickerson gave four different statements to Officer Brown. After the second statement, in which Nick-erson admitted to wearing the white hood-ie, Officer Brown went to Nickerson’s home, searched it, and found the white hoodie. Finally, after the fourth statement, Nickerson admitted that he was the person who shot the complainant.

Before trial, Nickerson requested a hearing on his motion to suppress his statements. The trial court held the hearing and denied Nickerson’s motion to suppress. After hearing all of the evidence at trial, the jury convicted Nickerson of capital murder. Nickerson was sentenced to confinement for life. This appeal followed.

II

In his first issue, Nickerson argues that he was illegally arrested at his home and placed in custody; therefore, his statements to the police officers were involuntary. He complains that the trial court erred by allowing his statements to be admitted into evidence. The State contends that Nickerson was not unlawfully arrested because the evidence at trial proves he voluntarily accompanied the officers to the police station.

We review the trial court’s denial or admission of the evidence using an abuse-of-discretion standard. See Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App.2005); Webb v. State, 991 S.W.2d 408, 418 (Tex.App.-Houston [14th Dist.] 1999, pet. ref d). While a trial court has substantial discretion, it can abuse its discretion if its rulings are outside of “that zone within which reasonable persons might disagree.” Webb, 991 S.W.2d at 418; see Apolinar, 155 S.W.3d at 186. A trial court’s ruling on the admissibility of evidence will be upheld if the record reasonably supports the ruling. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App.2002).

Additionally, a trial court’s ultimate custody determination presents a mixed question of law and fact. Herrera v. State, 241 S.W.3d 520, 526 (Tex.Crim.App.2007) (citing Thompson v. Keohane, 516 U.S. 99, 112-13, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995)). We afford almost total deference to the trial- court’s determination when questions of historical facts are based on an evaluation of credibility and demeanor. Id. at 526-27 (citing Ripkowski v. State, 61 S.W.3d 378, 381 (Tex.Crim.App.2001)). We review de novo, however, those mixed questions of law and fact not turning on credibility or demeanor. Id. at 527.

Was Nickerson in Custody?

Article 38.22 of the Texas Code of Criminal Procedure lays out the requirements to admit a person’s oral or written statements made during a custodial interrogation, as well as specifically exempts from its requirements statements made outside of custody or made voluntarily. Tex.Code Crim. Proc. Ann. art. 38.22 (Vernon 2005); Herrera, 241 S.W.3d at 526. “A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant.” Tex.Code Crim. Proc. Ann. art. 15.22 (Vernon 2005). A person is in custody if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with formal arrest. Herrera, 241 S.W.3d at 525; Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App.1996); Turner v. State, 252 S.W.3d 571, 576 (Tex.App.-Houston [14th Dist.] 2008, pet. ref d), cert. denied, — U.S. -, 129 S.Ct. 1325, 173 L.Ed.2d 598 (2009). Under the “reasonable person” standard, we assume that person is innocent. Dowthitt, 931 S.W.2d at 254; Turner, 252 S.W.3d at 576. When we review whether a person was in custody, our review includes an examination of all of the objective circumstances surrounding the questioning. Herrera, 241 S.W.3d at 525-26 (citing Stansbury v. California, 511 U.S. 318, 323, 325, 114 S.Ct. 1526,128 L.Ed.2d 293 (1994)).

The Court of Criminal Appeals has recognized four factors in deciding whether a person is in custody: (1) probable cause to arrest; (2) subjective intent of the police; (3) focus of the investigation; and (4) subjective belief of the defendant. Dowthitt, 931 S.W.2d at 254; Turner, 252 S.W.3d at 576. But factors two and four are relevant only if they are manifested in actions or words of law-enforcement officers. Dowthitt, 931 S.W.2d at 254. Furthermore, an interrogation may be noncustodial when it begins, but then later rise to the level of a custodial interrogation. Id. at 255; Turner, 252 S.W.3d at 577.

The Court of Criminal Appeals has also established four general situations which may constitute custody: (1) if the suspect is physically deprived of his freedom in any significant way; (2) if a law-enforcement officer tells the suspect not to leave; (3) if a law-enforcement officer creates a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) there is probable cause to arrest the suspect and the law-enforcement officer did not tell the suspect he is free to leave. Gardner v. State, 306 S.W.3d 274, 293-94 (Tex.Crim.App.2009); Dowthitt, 931 S.W.2d at 255; Turner, 252 S.W.3d at 577. In all four situations, there must be a restriction of freedom of movement that is tantamount to an arrest. See Dowthitt, 931 S.W.2d at 255. In the fourth circumstance, an officer’s subjective intent to arrest is not relevant to our examination unless the officer’s subjective intent was somehow conveyed to the suspect. Dowthitt, 931 S.W.2d at 255; Turner, 252 S.W.3d at 577. Additionally, courts have emphasized that stationhouse questioning does not, in and of itself, constitute custody. Turner, 252 S.W.3d at 576-77.

“[Wjhen a person voluntarily accompanies police officers, who are then only in the process of investigating a crime, to a certain location, and he knows or should know that the police officers suspect he may have committed or may be implicated in committing the crime, we are unable to hold that under the circumstance such person is in custody.” Turner, 252 S.W.3d at 579-80 (citing Dancy v. State, 728 S.W.2d 772, 778-79 (Tex.Crim.App.1987)) (holding that although the defendant was handcuffed for officer-safety reasons before he was placed in the backseat of an unmarked vehicle, the defendant had already consented to voluntarily accompany the officers to the station; therefore, the defendant was not in custody when he gave his statements to the officers). If police officers invite or request a person to speak with them, and the person is acting on this request on his own accord without force, threat, or coercion, then the act is voluntary and the person is not in custody. Id. at 580.

During the hearing on the motion to suppress, Sergeant Newcomb recounted that he, Sergeant Huynh, and two uniformed officers knocked on Nickerson’s front door and requested permission to enter the home and speak with Nickerson. Sergeant Newcomb admitted, however, that although only four officers entered the home, about twenty police officers were in the neighborhood when Nicker-son’s mother opened the front door. Sergeant Newcomb testified that Nickerson’s mother gave the officers permission to enter the home and speak with Nickerson. Additionally, Sergeant Newcomb stated that Nickerson voluntarily agreed to go with the officers, the officers never drew their weapons, and Nickerson was not placed in handcuffs. Furthermore, Nick-erson was not driven to the police station in a marked police vehicle. Sergeant Newcomb testified that it was not until after Nickerson told him about the robbery that he had probable cause to place Nickerson into custody.

Nickerson’s sister and mother testified that there were more than four police officers present in and around their home when the officers asked permission to speak to Nickerson. Nickerson’s sister stated that there were at least twenty officers present that night, including ten officers inside her home. She testified the uniformed officers had their guns drawn, and her brother appeared to be scared and nervous. Nickerson’s sister stated that she saw the officers tape brown bags on her brother’s hands, but she could not recall if he was handcuffed. Nickerson’s mother, however, testified that Nickerson was indeed handcuffed. She also recalled Nickerson being escorted to the back of a marked police vehicle, although she admitted she was “not a hundred percent sure.” Contrary to her daughter’s testimony, Nickerson’s mother testified she never saw any of the officers pull their guns out of their holsters. But Nickerson’s sister and mother agreed that Nickerson was not threatened or forced to go with the police officers, and he accompanied the police on his own accord. Nickerson’s sister even admitted there was no reason to believe her brother’s statements to the police were anything but voluntary statements.

According to Sergeant Newcomb, “I spoke with [Nickerson] and asked him if he’d be -willing to come downtown and speak with us ... [about his] possession of [Duran’s] phone.” Sergeant Newcomb, emphasizing that Nickerson was not under arrest, testified that Nickerson agreed to accompany him to the police station. Sergeant Newcomb even stated that when he was at Nickerson’s home, he did not have probable cause to arrest Nickerson on either aggravated robbery or capital murder. Furthermore, Sergeant Newcomb testified that if Nickerson had been in custody, he would have been handcuffed and transported in a marked police vehicle. Although Nickerson’s mother testified that Nickerson was handcuffed and Nickerson’s sister stated Nickerson appeared scared and nervous, both agreed Nickerson accompanied the police officers voluntarily without threat, force, or coercion. Even though the witnesses’ versions of the account differed, the trial court was in the best position to evaluate the credibility of the witnesses and was free to believe or disbelieve the testimony. See Mason v. State, 116 S.W.3d 248, 256 (Tex.App.-Houston [14th Dist.] 2008, pet. ref'd). Based on the evidence, Nickerson was never physically deprived of his freedom in any significant way, never told he could not leave, never restricted in his movement to amount to an arrest, nor was there probable cause to arrest him at his home. See Gardner, 306 S.W.3d at 293-94. Nickerson was not illegally arrested or in custody when he was escorted from his home. We hold the trial court did not abuse its discretion in concluding Nicker-son was not in custody or in admitting the statements into evidence. Accordingly, we overrule Nickerson’s first issue.

Were Nickersons Statements Voluntary?

In his second issue, Nickerson contends that he involuntarily gave his statements to police officers during his four interviews; therefore, the trial court erred because the statements should not have been admitted as evidence. The State first asserts that Nickerson failed to preserve his contention of voluntariness for appeal, so this argument is waived. But even if Nickerson properly preserved this issue, the State claims that Nickerson failed to properly brief the issue, and therefore he has waived his argument. Finally, if Nickerson has not waived the issue, the State contends that there is no evidence to demonstrate Nickerson’s statements to Officer Brown were anything but voluntary.

The State complains that Nick-erson has waived this argument because he never asserted that his statements were involuntary during the hearing on his motion to suppress. The Texas Rules of Appellate Procedure require a party to preserve error for appellate review by demonstrating the error on the record. Tex.R.App. P. 33.1(a); see Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App.1995). The party must make the complaint, objection, or motion in a timely manner and state[] the grounds for the ruling that the complaining party [seeks] from the trial court with sufficient specificity to make the trial court aware of the complaint. Tex.R.App. P. 33.1(a)(1)(A). If a party’s objection at trial does not correspond with its issue on appeal, the party has waived the issue. Broxton, 909 S.W.2d at 918. Although in his closing statement at the hearing, Nickersons attorney solely argued the illegal-arrest issue, both Nickersons motion to suppress and questions during the hearing raised the complaint of involuntariness. The State incorrectly argues Nickersons objection at trial does not comport with his complaint on appeal. Additionally, Nick-erson has cited to the record and provided this court with authority to support his contention, so he has not waived his argument due to briefing waiver as the State contends. See Tex.R.App. P. 38.1(i).

Article 38.21 of the Texas Code of Criminal Procedure provides that a defendants statements may be used against him if it appears that the same was freely and voluntarily made without compulsion or persuasion. Tex.Code Crim. Proc. Ann. art. 38.21 (Vernon 2005); see Martinez v. State, 127 S.W.3d 792, 794 (Tex.Crim.App.2004). Section 3 of Article 38.22 provides that if a defendants statement was made as a result of custodial interrogation, then the statement is inadmissible unless, among other requirements: (1) the electronic recording of the defendants statements shows the defendant received certain admonishments required under section 2 of Article 38.22; and (2) the defendant knowingly, intelligently, and voluntarily waived those rights. See Tex.Code Crim. Proc. Ann. art. 38.22, § 3(a). A statement is involuntary if it was taken in violation of due process or due course of the law because the statement was not freely given due to coercion, force, or improper influence. Wolfe v. State, 917 S.W.2d 270, 282 (Tex.Crim.App.1996). To determine whether a statement was made voluntarily, courts examine the totality of the circumstances surrounding the acquisition of the statement. Delao v. State, 235 S.W.3d 235, 239 (Tex.Crim.App.2007); Wyatt v. State, 23 S.W.3d 18, 23 (Tex.Crim.App.2000); Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim.App.1997). These circumstances can include length of detention, denial of access to family members, lack of sleep, and lack of food. See Smith v. State, 779 S.W.2d 417, 428-29 (Tex.Crim.App.1989) (discussing lack of food and concluding eight hours of questioning without food did not render the confession involuntary because the defendant was willing to continue the interview); Barney v. State, 698 S.W.2d 114, 120, 121 (Tex.Crim.App.1985) (discussing sleep deprivation and deciding the confession was voluntary even though the defendant had not slept for sixteen hours); Gomes v. State, 9 S.W.3d 373, 377 (TexApp.-Houston [14th Dist.] 1999, pet. ref d) (discussing length of detention and denial of access to family). Nickerson argues that he was interrogated for more than six hours, he never slept during his ten-to-twelve hours in custody, he was fed just once during his duration in custody, and he had very little time to speak with his family members. We review the record for evidence to determine if Nickerson voluntarily gave his statements.

During the hearing on the motion to suppress, Officer Brown testified that he knew Nickerson was in custody before he began interviewing him. He stated that he took Nickerson before a magistrate judge to receive his statutory warnings. Officer Brown also gave Nickerson his statutory warnings before each of his four interviews with Nickerson, and Nickerson waived his rights each time. Additionally, Officer Brown emphasized that Nickerson neither requested an attorney nor gave any indication he did not want to speak with Officer Brown. Officer Brown stated that he began his first interview with Nick-erson at 8:44 a.m. and ended his last interview with Nickerson at 4:21 p.m. But the record does not reflect that Officer Brown interviewed Nickerson continuously during that entire time period. To the contrary, Officer Brown’s testimony in the record shows the first interview lasted nineteen minutes and the fourth interview lasted nine minutes. Furthermore, the audiotapes in the record indicate the second interview was seventeen minutes and fifteen seconds and the third interview was four minutes and forty-seven seconds. In total, the four interviews lasted about fifty minutes. Additionally, as the State emphasizes in its brief, Officer Brown “eon-duct[ed] other activities apart from questioning” Nickerson during Nickerson’s time in custody. 'Some of the activities included taking Nickerson to the magistrate judge, providing food to Nickerson, and escorting Nickerson to his home to retrieve the white hoodie.

Nickerson argues' that he was denied access to his family members during his time in custody. But the record does not demonstrate that Nickerson requested to speak to his family members or that any officer specifically denied Nickerson access to them. Furthermore, Officer Brown allowed Nickerson to speak to members of his family when Officer Brown went to Nickerson’s home to search for evidence.

Additionally, Nickerson asserts that he was denied food during the interviews. The record reflects that before the first interview, Officer Brown gave Nickerson a McDonald’s meal to eat. The record'is silent, however, as to whether Nickerson either ate again or requested to eat again.

Finally, Nickerson contends that he was sleep deprived while he was at the police station. The record, however, reflects Officer Brown knew Nickerson did not sleep from the time he began to interview Nick-erson at 8:44 a.m. until he placed Nicker-son in the city jail at 1:36 p.m. But Officer Brown did not know whether Nickerson slept when he was in the city jail between his third and fourth statements.

In the trial court’s findings of fact and conclusions of law, the court found Nicker-son’s statements were voluntary and made “without any threats, improper influences, any promises, persuasion or compulsion, or any police misconduct of any kind, and after [Nickerson] knowingly and intelligently waived the presence of counsel and his right to remain silent.” The trial court also found that Nickerson’s confessions were admissible evidence under article 38.22 of the Texas Code of Criminal Procedure. After reviewing the evidence and based on the totality of the circumstances, we agree with the trial court and conclude the trial court did not abuse its discretion in allowing the statements to be admitted into evidence because Nickerson made them voluntarily and was given his statutory warnings before each statement. Thus, we overrule Nickerson’s second issue.

Ill

Should Felony Murder Have Been Submitted as a Lesser-included Offense?

In Nickerson’s third issue, he contends that the trial court erred by failing to charge the jury on the lesser-included offense of felony murder. In response, the State argues that the evidence introduced at trial did not raise felony murder. In deciding whether the jury should have been charged on a lesser-included offense, we apply a two-prong test. Segundo v. State, 270 S.W.3d 79, 90 (Tex.Crim.App.2008), cert. denied, — U.S. -, 130 S.Ct. 53, 175 L.Ed.2d 43 (2009); see Hall v. State, 225 S.W.3d 524, 528 (Tex.Crim. App.2007). First, we determine if the offense is a lesser-included offense of the alleged offense. Salazar v. State, 284 S.W.3d 874, 875-76 (Tex.Crim.App.2009); Hall, 225 S.W.3d at 526, 535 (holding the sole test to decide the first step of the two-prong test is the cognate-pleadings approach, which examines the elements of the offense and the facts in the charging instrument). Second, we determine if there is some evidence in the record “from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser included offense.” Segundo, 270 S.W.3d at 90-91. The lesser-included offense is only an option if the evidence establishes it as a valid, rational alternative to the charged offense. Id. at 91 (citing Arevalo v. State, 943 S.W.2d 887, 889 (Tex.Crim.App.1997)). But the Court of Criminal Appeals has held that anything more than a scintilla of evidence can be enough to afford the defendant a lesser-included charge. Hall, 225 S.W.3d at 536.

A person commits the offense of capital murder if he intentionally commits the murder in the course of committing or attempting to commit a robbery. Tex. Penal Code Ann. § 19.03(a)(2) (Vernon 2003 & Supp.2009). A person commits felony murder if he “commits or attempts to commit a felony, other than manslaughter, and in the course of and in the furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.” Id. § 19.02(b)(3) (Vernon 2003). Intent to kill is the element that differentiates these two offenses. Fuentes v. State, 991 S.W.2d 267, 272 (Tex.Crim.App.1999).

Because it is well-established that felony murder is a lesser-included offense of capital murder, and the State concedes this point, the first prong of the test is met. See Threadgill v. State, 146 S.W.3d 654, 665 (Tex.Crim.App.2004). In analyzing the second prong of the test, if evidence from any source raises the issue of a lesser-included offense, then the charge must contain the lesser-included offense. Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App.1992) (per curiam). Here, the critical question is whether Nickerson had the intent only to rob and not the intent to kill. See Salinas v. State, 163 S.W.3d 734, 742 (Tex.Crim.App.2005). What Nicker-son anticipated before the offense is irrelevant. See Fuentes, 991 S.W.2d at 273. “The ‘possibility that initially or at some point during the commission of the robbery the offender did not have an intent to cause death does not amount to evidence that the offender did not intend to cause the [complainant’s] death when the murder was committed.’ ” Id. (quoting Rousseau v. State, 855 S.W.2d 666, 674 (Tex.Crim.App.1993)).

In Mathis v. State, the appellant shot three people, killing two and paralyzing the third. 67 S.W.3d 918, 921 (Tex.Crim.App.2002). The appellant, who had been charged with murder, argued that the jury charge should have included an instruction on the lesser-included charge of manslaughter because he acted recklessly with the gun, and he did not intend to kill anyone. Id. at 925. But the court concluded the appellant “admitted to aiming and firing the gun.” Id. at 926. Although the appellant wanted a lesser-included charge, “[a]part from appellant’s testimony that he did not intend to kill anyone, there was no other evidence in support of such theory, and in fact the evidence refuted that testimony.” Id. The court, therefore, held that an instruction on a lesser-included charge of manslaughter was not appropriate. Id.

In Gonzalez v. State, two men entered a convenience store and demanded money from the store clerk. 296 S.W.3d 620, 624 (Tex.App.-El Paso 2009, pet. ref d). After the appellant took the money from the clerk, the other man fired a shot into the clerk’s chest, killing him. Id. at 625. The two men then fled the scene. Id. at 626. The appellant was charged with capital murder, but he requested an instruction on the lesser-included offenses of felony murder or manslaughter. Id. at 625. The appellant argued the gun fired accidentally, and the other man did not intend to kill the clerk. Id. at 626. Even though the videotape of the robbery may have shown at some point during the commission of the crime the other man did not intend to kill the clerk, the El Paso court of appeals concluded that it did not amount to evidence that there was no intent at the time of the shooting. Id. Additionally, the fact that the man shot the clerk and then fled the scene supported the theory that there was intent to kill. Id. at 626-27. Thus, the trial court correctly refused to instruct the jury on a lesser-included charge of felony murder or manslaughter. IcL at 627.

During Nickerson’s four statements to Officer Brown, he stated:

I had the gun to the back of [the complainant’s] head while I was searching him. He was twitching and moving, so I hit him one time, then after I got the cell phones and money from the two Hispanic males, [the complainant] got up. He tussled with me and reached for the gun trying to snatch the gun out of my hand. I backed up, he lunged towards me and I shot ... I shot once. Then he came at me again, then he just ran past me and I shot again.

Officer Brown then asked Nickerson, “How many more times did you shoot?” Nickerson replied, “Just two, just twice.” Nickerson also stated that he never had any intention for the complainant to get shot, his “intention was to put a gun to [the complainant’s] head and take his belongings.” Nickerson argues this statement demonstrates that there was a struggle for the gun and that he did not intend to kill the complainant.

The State asserts that this statement does not indicate the shooting was accidental. In his statement, Nickerson specifically acknowledges that the complainant did not fall to the ground until the second shot was fired. The second shot was fired after the complainant had already lunged for the gun and was running away from Nickerson. Lemus testified that the teenager, who was shooting at the complainant, began to chase the complainant and fired the second shot, which caused the complainant to fall to the ground. Lemus stated that the teenager then walked over to the complainant’s body and shot him in the head — “a point-blank shot.” The medical examiner testified that both shots, to the complainant’s back and head, were fatal wounds. Even though the testimony may indicate that Nickerson’s first shot was accidental, the evidence does not show the second shot to the complainant’s back or the third shot to his head were accidental, but rather intentional.

Because there is not sufficient evidence from which a jury could rationally acquit Nickerson of capital murder while convicting him of felony murder, the second prong of the test fails. Thus, we hold the trial court did not err in refusing to instruct the jury on the lesser-included charge of felony murder. Accordingly, we overrule Nickerson’s third issue.

IV

Inadmissible Hearsay?

In his fourth issue, Nickerson complains the trial court erred when it allowed testimony that one of the complainant’s phones was stolen from the scene to be admitted into evidence. He specifically contends that the testimony constitutes hearsay and is therefore inadmissible. The State argues that the statements are not being offered for the truth of the matter asserted and the evidence was admitted elsewhere during the trial without complaint. We review the trial court’s decision to admit the statements using an abuse-of-discretion standard. Wall v. State, 184 S.W.3d 730, 743 (Tex.Crim.App.2006); Angleton v. State, 971 S.W.2d 65, 67 (Tex.Crim.App.1998). Even though a trial court has substantial discretion, it can abuse its discretion if its rulings are outside “ ‘the zone of reasonable disagreement.’ ” Salazar v. State, 38 S.W.3d 141, 153-54 (Tex.Crim.App.2001). A trial court’s ruling on the admissibility of evidence will be upheld if the record reasonably supports the ruling. Willover, 70 S.W.3d at 845.

An out-of-court statement offered into evidence to prove the truth of the matter asserted is hearsay. Tex.R. Evid. 801(d). Hence, a statement not offered to prove the truth of the matter asserted, but offered for some other reason, is not hearsay. Guidry v. State, 9 S.W.3d 133, 152 (Tex.Crim.App.1999); see Dinkins v. State, 894 S.W.2d 330, 347 (Tex.Crim.App.1995). The Court of Criminal Appeals has concluded that if a statement is introduced to explain how a defendant became a suspect or how the investigation focused on a defendant, then the statement is not hearsay because it is not offered for the truth of the matter asserted. Dinkins, 894 S.W.2d at 347 (holding an appointment book and patient application were not offered for the truth of the matter asserted, but instead the evidence was offered to show how the appellant became a suspect of the investigation); Jones v. State, 843 S.W.2d 487, 499 (Tex.Crim.App.1992), abrogated on other grounds by Maxwell v. State, 48 S.W.3d 196 (Tex.Crim.App.2001) (holding testimony was not hearsay because it was not offered for the truth of the matter asserted, but to explain how the police officer began to suspect the appellant, seek an arrest warrant, and finally arrest him); see also Cano v. State, 3 S.W.3d 99, 110 (Tex.App.-Corpus Christi 1999, pet. refd) (deciding that the testimony was not being offered to prove drugs were literally being distributed, but rather to show why the officers focused their investigation on the appellants). “This type of testimony assists the jury’s understanding of the events by providing context for the police officer’s actions.” Cano, 3 S.W.3d at 110.

While Officer Huynh was testifying, the prosecutor asked him about the first break in the case. Officer Huynh began to testify that he was instructed to follow up on a phone number that belonged to one of the complainants. Nickerson objected, arguing that for Officer Huynh to state who owned the cell phone would amount to hearsay. The trial court overruled the objection, and Officer Huynh testified the stolen phone belonged to one of the three men who were robbed. The prosecutor then asked Officer Huynh about the purpose of inquiring about the phone, and Nickerson lodged another hearsay objection. The trial court again overruled the objection, and Officer Huynh testified the purpose was to be able to track or “ping” the phone to discover its location. The phone pings eventually led officers to Nickerson’s home. After Nickerson’s mother allowed the officers to enter the home and gave them permission to speak to Nickerson, the officers discovered Duran’s stolen phone under Nickerson’s pillow.

In maintaining that Officer Huynh’s testimony about the cell phone was improperly admitted, Nickerson relies solely on Morin v. State, 960 S.W.2d 132, 138 (Tex.App.-Corpus Christi 1997, no pet.). In Morin, the court held that “[cjourts are to discriminate between cases where some hearsay is allowed to explain the officer’s actions from those cases where such hearsay is inadmissible based on the degree to which the actions of the police officer have been challenged by the defendant.” Id. But Nickerson’s reliance on Morin is misplaced. In that case, the Corpus Christi court of appeals determined that the officer’s testimony did not even explain how the appellant became a suspect; the testimony served only to prove the truth of the matter asserted, and was thus hearsay. Id.

If the State elicits testimony to explain how a defendant originally became a suspect, then the testimony is not hearsay because it is not for the truth of the matter asserted. See Dinkins, 894 S.W.2d at 347; Jones, 843 S.W.2d at 499. Our review of the evidence leads us to conclude that the complained-of testimony established how Nickerson became a suspect; therefore, it is not hearsay.

Additionally, the Texas Rules of Appellate Procedure require a party to preserve error for appellate review by demonstrating the error on the record. Tex.R.App. P. 33.1(a). The objection must be timely, proper, and specific. Moff v. State, 131 S.W.3d 485, 489 (Tex.Crim.App. 2004) (explaining how the objection must be specific unless the particular ground is apparent from the context). A party must continue to object every time the inadmissible evidence is offered. Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App.2003) (citing Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App.1991)). If the objection is not continually noted, the error in the admission of evidence will be cured when the same evidence is admitted elsewhere without objection. Valle v. State, 109 S.W.3d 500, 509-10 (Tex.Crim. App.2003); Ethington, 819 S.W.2d at 858 (citing Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim.App.1984)). The error, therefore, would be rendered harmless. Dickson v. State, 246 S.W.3d 733, 744 (Tex.App.-Houston [14th Dist.] 2007, pet. ref d).

During Nickerson’s trial, evidence of who owned the stolen phone came in elsewhere during the trial. Sergeant New-comb testified that the phone was important to the investigation, the phone was taken from one of the complainants, and the phone was tracked to the Redbud location — Nickerson’s home. Nickerson never objected to Sergeant Newcomb’s testimony. Furthermore, Duran stated at trial that his phone was stolen, and police officers asked his permission to track his phone. Duran also identified the phone in State’s exhibit 101 as his. Again, Nicker-son never objected to Duran’s testimony about his phone. Any error that could have occurred based on the complained— of testimony was cured when the same evidence was admitted elsewhere without objection. Accordingly, we overrule Nick-erson’s fourth issue.

V

Prosecutorial Misconduct?

In issues five, six, seven, and eight, Nickerson contends that the prosecutor committed prosecutorial misconduct when he made statements that were outside the record during closing arguments. Additionally, in his ninth issue, he complains that the trial court erred by denying his motions for mistrial after the prosecutor’s comments because the cumulative effect of the comments denied him a fair trial and his right to due process. The State argues that the comments did not prejudice Nickerson, and the trial court cured any error with instructions to disregard the comments. The State also contends that Nickerson has not presented evidence that the jury failed to follow the trial court’s instructions.

A jury argument is permissible or proper if it fits into one or more of the following four categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument of opposing counsel; and (4) pleas for law enforcement. McFarland v. State, 989 S.W.2d 749, 751 (Tex.Crim.App.1999); Felder v. State, 848 S.W.2d 85, 94-95 (Tex.Crim.App.1992). When the State has departed from one of these categories during closing argument, and has engaged in conduct calculated to deny the accused a fair and impartial trial, we should reverse. Wilson v. State, 938 S.W.2d 57, 59 (Tex.Crim.App.1996), abrogated on other grounds by Motilla v. State, 78 S.W.3d 352 (Tex.Crim.App.2002). During the guilt/innocence phase of the trial, the prosecutor made the following statements during closing arguments:

Prosecutor: What is ironic in this case is the person that could probably most reach Alan Nickerson ... is Carltrell Odom. He knew their desires. He knew their struggles, their hardships, what they wanted in life. And how—
Defense: Judge, I object to that. That’s outside the record. There’s no evidence of that whatsoever.
Court: Sustained.
Defense: I’d ask the jury be instructed to disregard the last comment.
Court: Jury will be instructed to disregard.
Defense: I move for a mistrial.
Court: That will be denied.
Prosecutor: Don’t you know he knew exactly how he could reach those kids.
Defense: Judge, again, in light of the Judge’s ruling, she persists.
Court: Sustained.
Defense: I again object. Ask the jury to be instructed to disregard.
Court: Please disregard.
Defense: Judge, I move for a mistrial.
Court: Denied.
Prosecutor: He worked hard and you can tell he worked hard. And if you look at him in the uniform and you think about how it is that he got ready for work and what all he had to do, to iron his uniform, polish up his badge—
Defense: Judge, again she must have heard a different trial. I object. That is outside the record.
Court: Sustained. Let’s move on, Ms. Barnett.
Defense: Again, Judge, I ask the jury be instructed to disregard her last comment.
Court: Jury will be instructed to disregard.
Defense: Move for a mistrial.
Court: Denied. Let’s move along, Ms. Barnett.
Prosecutor: When Ms. Lewis’ sons grow up, Carl and Kyran, and they have families of their own and children, they will see the pictures of Carltrell around the house. And you know they’re going to ask questions. Who’s this, Daddy?
Defense: Judge, again, I’m going to object. This is improper argument and it is outside the record. It is not proper summation. It is not within the bounds of proper jury argument.
Court: Sustained.
Defense: Again, Judge, I ask the jury be instructed to disregard the prosecutor’s last comment.
Court: Jury will be instructed to disregard.
Defense: Judge, I move for a mistrial.
Court: Denied.

We review a trial court’s ruling on a motion for mistrial using an abuse-of-discretion standard. Webb v. State, 232 S.W.3d 109, 112 (Tex.Crim.App.2007); Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex.Crim.App.2004). We uphold a trial court’s decision if it was within the zone of reasonable disagreement. Archie v. State, 221 S.W.3d 695, 699 (Tex.Crim.App.2007) (citing Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App.2004)). If the prejudice is not curable, then a mistrial is required. Archie, 221 S.W.3d at 699. But, an improper jury argument may be cured if the trial court gives the jury an instruction to disregard the prejudicial statements. See Newby v. State, 252 S.W.3d 431, 438 (Tex.App.Houston [14th Dist.] 2008, pet. refd). “The question of whether a mistrial should have been granted when a curative instruction has been given involves most, if not all, of the same considerations that attend a harm analysis.” Id. (citing Hawkins, 135 S.W.3d at 77). The Court of Criminal Appeals has explained that if constitutional issues are not involved in a case, then courts should use a three-part analysis to evaluate whether the trial court abused its discretion in denying a motion for mistrial based on an improper jury argument. See Hawkins, 135 S.W.3d at 77; Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998). The three-part analysis includes: (1) the severity of the misconduct; (2) measures adopted to cure the misconduct; and (3) certainty of conviction absent the misconduct. Hawkins, 135 S.W.3d at 77; Mosley, 983 S.W.2d at 260; Newby, 252 S.W.3d at 438.

In reviewing the prosecutor’s statements, we must consider the magnitude of the prejudicial effect of the statement. See Washington v. State, 16 S.W.3d 70, 74 (Tex.App.-Houston [1st Dist.] 2000, no pet.). During closing arguments, the State tried to humanize the complainant with extraneous information. Although the prosecutor’s comments were inappropriate and outside the record, the degree of misconduct was relatively minor and therefore favors a finding of harmless error. Second, the record reflects that after the prosecutor’s statements, Nickerson asked the trial court for a jury instruction to disregard the statements. The trial court complied, and promptly instructed the jury to disregard each statement. Additionally, Nickerson has not produced any evidence the jury failed to follow the court’s instructions. In the absence of any evidence to the contrary, we presume the jury followed the court’s instructions. See Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999). Finally, we conclude that Nicker-son’s conviction was fairly certain, regardless of the prosecutor’s inappropriate comments, because he was found in possession of one of the robbery victim’s stolen cell phones and the jacket worn by the shooter, and he confessed to shooting the complainant during the course of the robbery. Accordingly, we hold the trial court did not abuse its discretion in denying Nickerson’s motions for mistrial, and we overrule his fifth, sixth, seventh, eighth, and ninth issues on appeal.

For the foregoing reasons, we affirm the trial court’s judgment.

      . There are two exceptions to the continual-objection requirement: (1) obtain a'running objection for each witness through whom the evidence is offered, or (2) request a hearing outside the jury’s presence. Martinez, 98 S.W.3d at 193.


author: Justice MURPHY.

text:
    RANGER INSURANCE COMPANY, Appellant, v. The STATE of Texas, Appellee.
    No. 05-08-01680-CV.
    Court of Appeals of Texas, Dallas.
    May 5, 2010.
    Rehearing Overruled June 10, 2010.
    Discretionary Review Dismissed Aug. 25, 2010.

      Kenneth W. Good, Kent, Good, Anderson & Bush, P.C., Tyler, TX, for Appellant.
    Deborah Harrison, Assistant Criminal District Attorney, McKinney, TX, for Ap-pellee.
    Before Justices RICHTER, MURPHY, and MYERS.
   OPINION

Opinion By

Justice MURPHY.

Ranger Insurance Company, a surety, challenges the assessment of civil trial and appellate filing fees in this bond forfeiture ease, arguing the fees are improper because the nature of the proceeding is criminal. In two issues, Ranger complains about assessment of the fees as well as a claimed overcharge for the sheriffs fee. We affirm.

BACKGROUND

The facts in this case are not disputed. In 1999, Ranger executed a $500 appearance bond on behalf of a criminal defendant. The bond was forfeited when the defendant failed to appear in court and the trial court signed a judgment nisi. The judgment nisi awarded the State the bond amount, court costs, and all necessary and reasonable expenses incurred in re-arresting the defendant.

Ranger filed a motion to retax court costs, arguing it was not responsible for certain costs and claiming the county practice of collecting civil filing fees in criminal bond forfeiture cases “is wrong.” Relying on a 2006 opinion from the Texas Attorney General, Ranger argued that statutes authorizing various filing fees are limited to civil suits. Ranger maintained that because bond forfeitures are criminal matters, the county clerk improperly taxed civil fees as court costs. Ranger asked the trial court for an order stating “that civil filing fees cannot be attributed to this criminal bond forfeiture case.” After considering the briefs and argument of the parties, the trial court denied Ranger’s motion to retax costs, with the exception of deleting a $5 fee for records management and preservation. Ranger appeals that portion of the trial court’s order denying its motion to retax costs.

In its first issue, Ranger contends this Court erred in charging a $175 civil filing fee. Ranger argues in its second issue that civil filing fees were improperly assessed below and that the trial court erred in denying Ranger’s motion to retax costs. We begin our analysis with the law applicable to these issues.

APPLICABLE LAW

Chapter 22 of the Texas Code of Criminal Procedure regulates bond forfeiture proceedings in the trial court. Tex.Code Crim. Proc. Ann. arts. 22.01-18 (Vernon 2009). Under article 22.01, a bail is subject to forfeiture when a defendant has posted bond and fails to appear in any court as required. Id. art. 22.01. Upon the defendant’s failure to appear within a reasonable time, a judgment of forfeiture shall be entered entitling the State to recover the amount of the bond from the defendant and his sureties. Id. art. 22.02. The judgment states that it will be made final “unless good cause be shown why the defendant did not appear.” Id. While the final judgment is rendered against the defendant and the surety, jointly and severally, the statute obligates the surety to pay all court costs. See id. art. 22.14.

It is well settled that bond forfeiture cases are criminal matters, with final state-court jurisdiction vested in the Texas Court of Criminal Appeals. Safety Nat’l Cas. Corp. v. State, 305 S.W.3d 586, 588-90 (Tex.Crim.App.2010); see also Ex parte Burr, 185 S.W.3d 451, 453 (Tex.Crim.App.2006) (per curiam) (recognizing bond forfeiture proceeding is criminal in nature); Jeter v. State, 86 Tex. 555, 558, 26 S.W. 49, 49-50 (1894) (“A suit on a forfeited recognizance conditioned for a party’s appearance to answer to an indictment ... is not a civil action.”). Bond forfeiture proceedings, however, are governed by the rules of civil procedure. See Tex.Code Crim. Proc. Ann. art. 22.10. The Texas Court of Criminal Appeals has interpreted article 22.10 to mean that civil costs of court may be assessed in bond forfeiture cases. See Dees v. State, 865 S.W.2d 461, 462 (Tex.Crim.App.1993) (deciding the question of “what ‘costs of court’ are authorized in a bail bond forfeiture case”).

In Dees, a bail bondsman appealed an order awarding the State a percentage of the bond amount plus interest and costs. Id. at 461. As to costs, the bail bondsman claimed “civil court costs are not authorized in a bail bond forfeiture proceeding” and argued “only those court costs normally associated with criminal cases may be assessed.” Id. at 462. The court of criminal appeals disagreed. Looking to the language of article 22.10, the court held “civil court costs may be assessed in a bail bond forfeiture proceeding after entry of the judgment nisi.” Id. (citing Tex.Code Crim. Proc. Ann. art. 22.10); see also Stephens v. State, 50 Tex.Crim. 531, 533, 99 S.W. 1122, 1122 (1907) (Sureties “are primarily responsible ... for all the costs accruing in this court. This, it would appear, must be governed by the rules regulating costs in civil cases.”). Thus, at the trial court level, civil costs of court may be collected in bond forfeiture proceedings. See Dees, 865 S.W.2d at 462.

Appeals on forfeitures are also governed by the rules of civil procedure. See Tex. Code Crim. Proc. Ann. art. 44.44 (Vernon 2006). During the pendency of this appeal, the Texas Court of Criminal Appeals issued Safety National, and, interpreting article 44.44, determined civil appellate filing fees are not allowed on appeal. Safety Nat’l Cas. Corp., 305 S.W.3d at 590-91.

In Safety National, the surety challenged the docketing of its appeal from a bond forfeiture proceeding as a civil case, as well as the court’s conclusion that civil appellate costs should be assessed in bond forfeiture appeals. Id. at 587-88. As part of its analysis, the court of criminal appeals examined article 44.44’s first iteration and compared it to the relevant fee statutes in effect at the time. Id. at 588-90. It also considered the establishment and history of the court itself. Id. The court emphasized that the statutes mandating the assessment of civil appellate filing fees were not in effect when article 44.44’s first predecessor was enacted. Id. It reasoned that its own predecessor, the Court of Appeals, “would have been precluded from assessing such fees in bond-forfeiture cases, which were held to be criminal cases ... before the creation of the Court of Appeals in 1876.” Id. (citing Gay v. State, 20 Tex. 504, 506 (1857)). Under that analysis, the court concluded “Article 44.44 ... excludes the application of civil-case fees by the courts of appeals in appeals from criminal bond-forfeiture proceedings.” Id. at 590.

Although the issue of whether civil filing fees at the trial court level may be imposed in bond forfeiture cases was beyond the scope of Safety National, the court of criminal appeals emphasized that its determination did not conflict with its prior decision in Dees. Id. at 588-91. The court explained that although both article 44.44 and article 22.10 contain language stating the civil rules govern bond forfeiture cases, the trial court fee statutes in effect at the time article 22.10 was enacted “do not contain any provision restricting their application to civil cases.” Id. at 590. Thus, the court added it “did not err” in reaching the conclusion in Dees that civil court costs may be assessed in bond forfeiture cases after the entry of the judgment nisi. Id.

DISCUSSION

As an intermediate court of appeals, we are bound by the precedent set by the Texas Court of Criminal Appeals. See Patterson v. State, 654 S.W.2d 825, 827 (Tex.App.-Dallas 1983, pet. ref'd); see also State v. DeLay, 208 S.W.3d 603, 607 (Tex.App.-Austin 2006) (“It is the prerogative of the court of criminal appeals alone to overrule its interpretation of a statute.”), affd sub. nom. State v. Colyandro, 233 S.W.3d 870 (Tex.Crim.App.2007). The court of criminal appeals has spoken on the question of whether civil filing fees are applicable in bond forfeiture proceedings. See Safety Nat’l Cas. Corp., 305 S.W.3d at 590-91; Dees, 865 S.W.2d at 462. As described below, the facts and circumstances before us fall within the bounds of the rules enunciated in Safety National and Dees, and we must follow that precedent.

Assessment of Civil Appellate Filing Fees

In its first issue, Ranger complains about the $175 filing fee charged by this Court when we docketed the case as a civil appeal. The State responds that Ranger’s complaint about the appellate filing fee is not part of the appeal from the trial court order and should be raised in a motion to retax costs in this Court. We agree Ranger did not follow proper procedures for challenging the appellate fees. While this case was pending, however, the court of criminal appeals decided Safety National, as discussed above. As a result of that decision, appellate courts may no longer charge civil appellate filing fees in bond forfeiture cases. Because cases still in the judicial process receive the benefit of new rules and decisions, we have refunded the $175 filing fee paid by Ranger in this ease. We therefore dismiss Ranger’s first issue as moot.

Assessment of Civil Trial Court Filing Fees

In its second issue, Ranger challenges the county clerk’s assessment of civil filing fees in a criminal bond forfeiture case and the trial court’s denial of Ranger’s motion to retax those costs. Ranger also disputes the $35 sheriffs fee charged as part of the civil filing fee. Ranger’s first argument was expressly rejected by the Texas Court of Criminal Appeals. See Dees, 865 S.W.2d at 462. Importantly, the court in Safety National confirmed it “did not err” in that conclusion. Safety Nat’l Cas. Corp)., 305 S.W.3d at 590. Ranger makes no attempt to distinguish Dees factually. Nor does Ranger offer any authority suggesting the court of criminal appeals meant to exclude civil filing fees “to be collected on the filing of a civil case” when it held “civil court costs may be assessed in a bail bond forfeiture proceeding after entry of the judgment nisi.” Dees, 865 S.W.2d at 462. Following Dees, as we must do, we conclude the trial court did not err in denying Ranger’s motion to retax costs to the extent it complained about the assessment of civil filing fees.

Assessment of $35 Sheriff’s Fee

Ranger also complains that even if civil filing fees are allowed in bond forfeiture proceedings, the county clerk improperly assessed a $35 sheriffs fee. Ranger’s argument on this issue was raised at the trial court for the first time in a supplemental brief, after the motion to retax costs was briefed and argued. Ranger urges on appeal that the county could set a fee for service of citation and for security and “there is no other statute that would allow the county to charge a general $35.00 fee as a ‘Sheriffs fee’ in all civil cases.” Claiming that a $5 security fee and a $55 service of citation fee had been charged separately, Ranger argues the $35 sheriffs fee was unauthorized.

As a prerequisite to presenting a complaint on appeal, a party must have made a timely complaint to the trial court. See Tex.R.App. P. 33.1(a)(1). It is also well established that to present an issue for appeal, appellant’s brief must contain, among other things, clear and concise arguments for appellant’s contentions with appropriate citations to authorities and the record. See Tex.R.App. P. 38.1(i). When a party fails to brief a complaint adequately, it waives the issue on appeal. Devine v. Dallas County, 130 S.W.3d 512, 513-14 (Tex.App.-Dallas 2004, no pet.). Here, Ranger failed to include its complaint regarding the sheriffs fee in its motion to retax costs, and it presented no argument to the trial court until its supplemental brief. Although Ranger argues the trial court implicitly ruled on the complaint by deleting the $5 record charge, we have no record citation supporting such assumption. Nor does Ranger cite any record references or legal authorities to support its new complaint about the sheriffs fee. Although Ranger attaches appendices to its appellate brief, those attachments are not substitutes for citations to the record. See Tex.R.App. P. 34.1 (appellate record consists of the clerk’s record and if necessary, the reporter’s record); Fox v. Wardy, 234 S.W.3d 30, 33 (Tex.App.-El Paso 2007, pet. dism’d w.o.j.). Accordingly, to the extent Ranger attempts to complain about what services might be covered by the $35 sheriffs fee assessed, or whether such services and fees were actually incurred, Ranger has waived those complaints for purposes of appeal. Devine, 130 S.W.3d at 514. We therefore turn to whether the sheriffs fee is authorized by statute.

A county’s authority to establish fees for the services of the sheriff derives from Texas Local Government Code section 118.131(a) and its companion statute, Texas Government Code section 103.030(1). See Tex. Loc. Gov’t Code Ann. § 118.131(a) (Vernon 2008); Tex. Gov’t Code Ann. § 103.030(1) (Vernon Supp.2009). Specifically, section 118.131(a) permits the county commissioners court to “set reasonable fees to be charged for services by the offices of the sheriff and constables.” Tex. Loc. Gov’t Code Ann. § 118.131(a). The express language of section 118.131(a) does not limit the types of services for which fees may be collected. Id. Rather, the only limits are that the fees must be “reasonable,” may not be set “higher than is necessary to pay the expenses of providing the services,” and may not be set “more than once during any one-year period.” Id. § 118.131(a)-(c). Thus, section 118.131(a) authorizes the county to set reasonable fees for various services, which include courthouse security and service of process. On this record, we conclude Ranger has not shown the trial court erred in failing to eliminate the $35 sheriffs fee as a taxable cost.

CONCLUSION

In light of the Safety National decision issued during the pendency of this appeal, we have refunded Ranger’s $175 appellate filing fee and therefore dismiss the first issue as moot. We also conclude the trial court did not err in denying that part of Ranger’s motion to retax civil court costs made the subject of this appeal and overrule Ranger’s second issue. Accordingly, we affirm the trial court’s order on Ranger’s motion to retax costs.

      . See Geesa v. State, 820 S.W.2d 154, 163-65 (Tex.Crim.App.l991)(discussing "limited ret-rospectivity” application of new rules), overruled on other grounds by Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App.2000); Peden v. State, 917 S.W.2d 941, 957 (Tex.App.-Fort Worth 1996, pet. ref'd) (concluding appellant was a "similarly situated defendant” and "actual inequity” would result if he did not get benefit of new rule and applying rule with “limited retrospectivity”).


author: JAMES T. WORTHEN, Chief Justice.

text:
    In the ESTATE OF Everett H. ROTHROCK, Deceased.
    No. 12-09-00210-CV.
    Court of Appeals of Texas, Tyler.
    May 5, 2010.

      Michael K. Swan, Daniel W. Nelson, for appellant.
    Eldridge Moak, Mike Hatchell, Kirsten M. Castaneda, for appellee.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

Jerry E. Rothrock appeals the trial court’s order denying his application to probate his father’s will as a muniment of title. In one issue, Jerry contends the trial court erred in determining that he was in default for failing to probate his father’s will within the statutory period. We affirm.

Background

In 1986, Everett H. Rothrock, Jerry’s father, signed a will appointing Jerry as the independent executor of the will and naming him as the sole beneficiary of the estate. Everett died on June 5, 1994. In September 2008, Jerry was notified by an oil and gas landman that Everett owned mineral interests in Cherokee County, Texas. On October 6, 2008, Jerry filed an application to probate Everett’s will as a muniment of title. Jerry’s five siblings opposed the application.

At a hearing on the application, Jerry testified that he and his five siblings agreed they did not want to probate Everett’s will. He stated that he requested two cameras, which were the only property he wanted from Everett’s estate. None of his siblings objected. Jerry testified that, in gathering Everett’s assets between 1985 and 1986, he investigated whether Everett owned any land. According to Jerry, Everett told him that he had sold all of the real property he had received from his parents and that he did not have any real property left. Jerry stated that Everett never talked about any mineral interests. Jerry’s grandmother told him that she had given all her real property to her sons, Everett and his brother, and that “she was convinced” her sons had lost all their real property. After Everett died, Everett’s brother told Jerry that he and Everett had received a substantial amount of real property from their parents and that both of them had sold it or “gotten rid of it in some way.”

Jerry also testified that he “was a very successful lawyer in Washington, D.C.” and that about half of his practice dealt with oil and gas law. He testified that he was not licensed to practice law in Texas. On cross examination, Jerry admitted that, at the time of his father’s death, he knew there could be separate ownership of the surface and mineral estates in Texas. At the conclusion of the hearing, the trial court denied Jerry’s application to probate Everett’s will as a muniment of title, stating that by filing the application thirteen years after Everett’s death, he was in default under section 73 of the Texas Probate Code. Jerry timely filed this appeal.

Default under Section 73 of the Texas Probate Code

In his sole issue, Jerry argues that the trial court erred in determining that he was in default under section 73 of the Texas Probate Code by not filing his application to probate Everett’s will as a muniment of title within four years of Everett’s death.

Standard of Review

Whether the proponent of a will is in default in not presenting the will within four years of the testator’s death is ordinarily a fact question for the trial court. Schindler v. Schindler, 119 S.W.3d 923, 929 (Tex.App.-Dallas 2003, pet. denied). When findings of fact are neither filed nor requested following a bench trial, it is implied that the trial court made all findings necessary to support its judgment, provided that (1) the necessary findings are raised by the pleadings and supported by the evidence, and (2) the decision can be sustained by any reasonable theory consistent with the evidence and applicable law. Santa Fe Petroleum, L.L.C. v. Star Canyon Corp., 156 S.W.3d 630, 636 (Tex.App.-Tyler 2004, no pet.). The trial court’s findings of fact, express or implied, after a bench trial are renewable for legal and factual sufficiency by the same standards applied in reviewing the evidence supporting a jury’s answer. Id.

When the party who had the burden of proof on an issue complains about the trial court’s refusal to find a fact in a “contrary-to the great weight and preponderance of the evidence” issue, i.e., asserts that the court’s refusal to find the fact is contrary to the evidence, we must overrule the complaint unless, considering all the evidence, the refusal is contrary to the great weight and preponderance of the evidence. Id. at 637. Where enough evidence is before the trial court so that reasonable minds could differ on the meaning of the evidence, or the inferences and conclusions to be drawn from the evidence, we may not substitute our judgment for that of the trial court. Canal Ins. Co. v. Hopkins, 238 S.W.3d 549, 558 (Tex.App.-Tyler 2007, pet. denied).

Applicable Law

Section 73(a) of the Texas Probate Code states as follows:

(a) No will shall be admitted to probate after the lapse of four years from the death of the testator unless it be shown by proof that the party applying for such probate was not in default in failing to present the same for probate within the four years aforesaid; and in no case shall letters testamentary be issued where a will is admitted to probate after the lapse of four years from the death of the testator.

Tex. Prob.Code Ann. § 73(a) (Vernon 2003). One purpose of the statute is to impose a reasonable limit on the time in which the property of a person dying testate should be distributed among his legatees, after payment of his debts. Hodge v. Taylor, 87 S.W.2d 533, 535 (Tex.Civ.App.-Fort Worth 1935, writ dism’d). The statute also gives all persons interested in the testator’s estate an early opportunity to contest the will by living witnesses. Id. Further, the policy of the law is to enforce the timely probate of wills. St. Mary’s Orphan Asylum of Tex. v. Masterson, 57 Tex.Civ.App. 646, 654, 122 S.W. 587, 591 (Tex.Civ.App.-San Antonio 1909, writ ref'd). A person having custody of a will is charged with knowledge that it must be filed for probate within the statutory period in order to rely on it, whether the necessity for doing so is apparent to him or not. See id., 57 Tex. Civ.App. at 655, 122 S.W. at 591. Unexpected events often happen and a person’s present conclusions may be wrong. Id. By complying with the requirements of the statute, a person is afforded a way, and the only way, to foreclose all contingencies; choosing not to resort to it amounts to willful neglect. Id.

It cannot be said that one who has custody of a will, and refrains for the statutory period from presenting it for probate for mere personal considerations or under the assumption that his title to property is safe without it, is not in default under this statute. Id., 57 Tex.Civ.App. at 654-55, 122 S.W. at 591. Default means “a failure due to the absence of reasonable diligence on the part of the party offering the instrument.” Brown v. Byrd, 512 S.W.2d 753, 755 (Tex.Civ.App.-Tyler 1974, no writ). The burden is upon the proponent of a will to show that he was not in default by not presenting a will for probate within the proper time. Brown v. Byrd, 512 S.W.2d 758, 760 (Tex.Civ.App.-Tyler 1974, no writ). Family agreements to not to probate a will about which they had knowledge are not sufficient to excuse noncompliance with the four year limitation of the probate code. See In re Estate of Cornes, 175 S.W.3d 491, 496 (Tex.App.Beaumont 2005, no pet.).

Analysis

Section 73 of the Texas Probate Code allows the probate of a will as a muniment of title after four years if it is shown that the proponent of the will was not in default in failing to present it for probate within four years. Because Jerry filed the application to probate Everett’s will, he had the burden of showing an excuse to justify his failure to timely probate the will. See id. at 495. Jerry argues that he showed reasonable diligence. Further, he contends that he was not in default based upon a mistake of fact that Everett did not own any mineral interests.

The evidence shows that Jerry and his siblings agreed not to probate Everett’s will. Jerry requested, and received, two cameras, the only property he wanted from Everett’s estate. A family agreement is not sufficient to excuse Jerry’s noncompliance with the four year limitation. See In re Estate of Cornes, 175 S.W.3d at 496. In other words, Jerry cannot rely on the agreement with his five siblings as an excuse for noncompliance with the statutory period and for making what was, in hindsight, the wrong decision. Id. Jerry testified that Everett stated he did not own any real property, that his grandmother was “convinced” Everett lost all his real property, and that Everett’s brother stated that both of them had sold or “gotten rid of’ all their real property. Although these statements may have persuaded Jerry that there was no reason to probate Everett’s will, it does not provide a legal excuse for his failure to do' so. See Masterson, 57 Tex.Civ.App. at 654-55, 122 S.W. at 591. Therefore, considering all the evidence regarding Jerry’s informal investigation into whether Everett owned property, we cannot say that the trial court’s refusal to find that Jerry showed reasonable diligence was contrary to the great weight and preponderance of the evidence. Santa Fe Petroleum, L.L.C., 156 S.W.3d at 637; Brown, 512 S.W.2d at 755.

Jerry contends, however, that the facts in this case are “almost identical” to those in Kamoos v. Woodward, 570 S.W.2d 6 (Tex.Civ.App.-San Antonio 1978, writ refd n.r.e.). In Kamoos, the trial court determined that an impoverished widow was not in default even though she waited five years to probate her deceased husband’s will. Kamoos, 570 S.W.2d at 8-9. The widow did not know her deceased husband was heir to a royalty interest, and her financial condition was poor. Id. She had limited resources, and she had not worked steadily since her husband’s death. Id. at 9. Because of her limited resources and the nature of the property of which she was aware (principally a mobile home and two cars, having a gross value of $4,000), she did not think it necessary to probate the will. Id. at 8-9. Further, the widow immediately offered the will for probate when she became aware of the royalty interest. Id. at 9. The court of appeals concluded that there was sufficient evidence to support the trial court’s holding that the widow was not in default. Id. However, Kamoos is distinguishable because Jerry did not lack financial resources to probate the will.

Moreover, having been a successful attorney with an oil and gas practice, Jerry should have known that unexpected events often happen in life. See Masterson, 57 Tex.Civ.App. at 655, 122 S.W. at 591. To foreclose any unexpected contingencies, a will must be probated within the statutory period whether the necessity for doing so is apparent or not. Id. Because Jerry did not probate Everett’s will within four years after his death, relied upon a family agreement, and failed to show reasonable diligence, the evidence is factually sufficient to support the trial court’s finding that Jerry was in default. The trial court did not err in denying Jerry’s application to probate Everett’s will as a muniment of title. See Tex. Prob.Code Ann. § 73(a); Brown, 512 S.W.2d at 760. Accordingly, Jerry’s sole issue is overruled.

Disposition

Having overruled Jerry’s sole issue, we affirm the judgment of the trial court.