author: TERRY McCALL, Justice.

text:
    Thomas Jacinto LOPEZ, III, Appellant v. STATE of Texas, Appellee.
    No. 11-08-00133-CR.
    Court of Appeals of Texas, Eastland.
    April 15, 2010.
    Rehearing Overruled May 13, 2010.

      J.K. (Rusty) Wall, West Texas Region Public Defender for Capital Cases, Midland, for appellant.

      Teresa J. Clingman, Dist. Atty., Carolyn D. Thurmond, Erik Kalenak, Asst. Dist. Attys., Midland, for appellee.
    Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
   OPINION

TERRY McCALL, Justice.

The jury convicted Thomas Jacinto Lopez, III of theft over $100,000 but less than $200,000. Based on the trial court’s finding of “true” on a prior felony conviction alleged for enhancement purposes, the trial court sentenced appellant to confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of forty-five years. The trial court also ordered appellant to pay restitution of $108,344. Appellant challenges his conviction in four issues. We affirm.

Background, Facts

Kay Stephenson Hill and Thomas Leroy Hill met appellant on July 25, 2006, when he stopped by their home to see if they might be interested in hiring him to perform some repairs on their home. Appellant told the Hills that, while driving by their home, he had observed some loose bricks and exterior areas that needed to be repainted. He informed them that he had a work crew in the area that could perform these repairs. After discussing the scope of the repairs, the Hills executed a written contract with appellant on July 25, 2006, for him to repair the loose bricks and perform other miscellaneous repairs around the home for the total price of $4,871.25. The Hills paid appellant a down payment of $2,500 at the time that the initial written contract was executed.

Appellant and his crew started working on the Hills’ home within a couple of days after executing the initial written contract. Soon after appellant began working on the Hills’ home, he and the Hills entered into a discussion about their desire to make additional changes to their home. Appellant and the Hills executed a second written contract for him to install new windows, a French door, and a new garage door at their home for a total price of $13,085. This contract also included additional work to repair loose bricks around the Hills’ home. The Hills paid appellant an additional $5,456 as a down payment on the second written contract.

On August 11, 2006, the Hills executed a third written contract with appellant for him to install handicap accessible sidewalks and driveways around their home to accommodate Mrs. Hill’s use of a wheelchair. The total price of this written contract was $13,531.25 of which the Hills paid $6,500 at the time of its execution as a down payment. Accordingly, the Hills had executed three written contracts with appellant within three weeks of their initial meeting for him to perform work on their home in the total amount of $31,487.50.

During the course of appellant’s work on the Hills’ home, he reported additional items to them that were purportedly in need of repair. One of these items involved their chimney. Appellant informed the Hills that their chimney could potentially be leaking dangerous gas into their home. Other items “discovered” by appellant included the lack of adequate foundation underneath the house, deficient ceiling trusses, termite damage in the attic, and insufficient insulation. Appellant agreed to repair these items for the Hills for additional compensation.

Appellant’s work on the Hills’ home extended into 2007. The working relationship between appellant and the Hills deteriorated during the course of the project. Mrs. Hill testified that appellant began failing to show up with his crew to work on the house and that he was often late or unprepared to do the work that he and his crew were scheduled to do on a given day. She testified as follows in this regard: “What we learned was that he was not going to be there when he said he would be there; and when he came, he would not be ready to work; and when he worked, he wouldn’t get the work done that he said he would do.”

Mrs. Hill testified that appellant’s work on their home came to a halt for a two-week period in February 2007. Virtually every project that appellant had agreed to perform remained unfinished at this time. Mrs. Hill estimated that appellant had not completed two-thirds of the work on the house as of this time. When the Hills threatened appellant with legal action, he resumed work on the house. Appellant and his crew worked on the house for three additional weeks, but then he stopped working again. Mrs. Hill estimated that appellant had completed one-half of the work on the house as of this time.

As of April 2007, the Hills had made payments in excess of $161,000 to appellant. A part of these payments consisted of $15,735.54 that appellant charged the Hills for fees and bonds that he purportedly was required to purchase from the City of Midland in order to perform work on their home. Frustrated by appellant’s lack of performance, the Hills contacted the building inspector for the City of Midland, Richard Schwope, to determine if appellant had obtained the necessary permits for their remodeling project. Schwope determined that appellant had not obtained any permits for working on the Hills’ home. Schwope additionally determined that appellant had not submitted proof of a surety bond to the city as required by city ordinance in order to obtain construction permits as a contractor in the city.

The Hills confronted appellant at his home after learning that he had not paid any fees to the city to obtain construction permits for their home. Appellant began crying when confronted by the Hills, and he pleaded for them not to contact the police. He subsequently wrote a letter of apology that read as follows:

Letter of Apology
To Kay Hill 4/9/07
I would like to say Mrs. Hill that I’m sorry for being [sic] to you about the city bond fee. I’m very sorry for charging you fees that were at all not necessary. I’m sorry because I know I hurt you emotionally and I feel bad cause you had to get out of bed when you hurt to wait for us to come work. I’m sorry for the days I stood you up. I promise not to lie to you or anybody else. I promise to tell the truth no matter what the facts are. The truth will have to be told the way it is. Once again Mrs. Hill, I’m sorry for all the pain and suffering I put you through. Thank you. /s/ T.J. Lopez

Appellant ultimately entered into an agreement with the Hills to pay back the $15,735.54 he collected for city fees and bonds at the rate of $14 a week. He made five payments under this arrangement, but he ceased making the payments after he was arrested.

Another significant portion of the total payments in excess of $161,000 that the Hills made to appellant were personal loans to appellant. The Hills made loans in excess of $38,000 to appellant over the course of their working relationship. The Hills made these loans based upon appellant’s statements to them regarding various financial difficulties that he was purportedly encountering.

The State offered the testimony of Lance Friday, a local contractor, regarding the necessity of many of the repairs suggested by appellant to the Hills. He testified that the attic trusses that appellant indicated needed to be repaired were not defective because the house was properly framed when it was built. Additionally, he testified that appellant’s work on the trusses did not strengthen them. Friday additionally testified that the original foundation of the Hills’ home was sufficient and that the additional footing that appellant poured around the home did nothing to help support the structure. He did not observe any evidence of termite damage in the attic of the home. He also did not observe any problems with the chimney requiring the repairs to it that appellant performed. Friday additionally did not find that appellant installed insulation in any significant amount in the house.

During the guilt/innocence phase, the State additionally called several other individuals who had hired appellant for construction projects as witnesses to testify about their experiences with appellant. Their testimony is summarized as follows:

• Paul West hired appellant in January 2007 to do brickwork on a new home construction project. He agreed to pay appellant $8,000 to brick the home. West paid appellant $5,000 to brick the home, but appellant only completed approximately half of the work. West entered into a separate contract with appellant to do footings and brickwork on columns on the home for $2,000. West paid appellant the entire $2,000, but appellant did not do any of the work. Appellant told West that he would return the money that West advanced to him for work that was not done, but appellant failed to do so.
• Robert Pfile’s wife hired appellant to perform electrical work on two rent houses in February 2007. The Pfiles met appellant a year earlier when he came to their home offering to do brick repair. He came to their home in February 2007 offering to do the brick repair work a second time. Appellant informed them that he was a master electrician when in fact he was not. Mr. Pfile testified that his wife paid appellant $19,000 over the course of a week for the work he agreed to perform in rewiring the rent houses. Mr. Pfile testified that appellant did very little work on the houses and that a qualified electrician had to be hired to re-do the work that appellant had performed because it did not comply with code requirements. When confronted by Mr. Pfile, appellant agreed to pay back $10,000, but he never did repay the money. Manuel Beltran, a detective with the Midland Police Department that has extensive experience in the construction industry, testified that appellant did not actually rewire the houses. In many instances, appellant merely installed new switches and electrical outlets to the original wiring in the houses.
• Maria Gabriela Ramos hired appellant in March 2007 to remove the flat roof on her family’s home and replace it with a pitched roof. Appellant also agreed to add a small room to the house and replace some windows. Appellant agreed to do the work for a total of $13,500. Ramos paid appellant $11,800 toward the agreed upon amount. However, appellant only completed a small portion of the project because he stopped working on the project after the third day of work. At the time that he stopped working on Ramos’s house, he had only removed the flat roof that previously existed. Thus, appellant left Ramos’s family with a house that did not have a roof. Appellant told Ramos that he would give her one-half of her money back, but he never did.
• Perry Taylor hired appellant to perform some brickwork in March 2007. He and appellant signed a written contract in the amount of $10,500 to perform the work. Taylor paid appellant all of the money, but appellant did not perform all of the work required under the contract. Taylor estimated that appellant did not complete approximately $2,500 to $8,000 of the work that he agreed to do. Appellant agreed to perform additional work for Taylor at a cost of $2,100. Taylor paid appellant $2,100 for this work, but appellant did not complete it. Taylor also loaned appellant $1,500 to assist with jobs that appellant was performing for other individuals. However, appellant did not repay the loan back to Taylor.
• In March 2007, Pat Magers’s contractor, Brent Bates, hired appellant to demolish a structure. Appellant performed the demolition work, but he did not clean up the debris left by the demolition. Appellant also agreed to supply a heating/air conditioner system to Magers for a total cost of $5,800. Magers paid appellant $4,500 up front for the system equipment, but appellant never delivered the system or paid the money back. Appellant subsequently paid Magers $1,000 of the $4,500 back.
• Roy Hearon hired appellant to paint his house in April 2007. Appellant agreed to perform the work for $1,800. Hearon paid him $1,000 up front, but appellant neither painted his house nor returned the $1,000 that Hearon had paid him.
• Mark Ament hired appellant in March 2007 to build a garage for the price of $15,000. Ament paid appellant $2,000 up front for the project and made subsequent payments totaling $7,500, but appellant stopped working on the project. Ament noticed at the outset that appellant did not build the garage in an acceptable manner. Ament also testified that appellant lied to him about obtaining the necessary construction permit. Ament testified that appellant agreed to return $2,500 of the money paid to him but that he never paid the money back.
• Aloise Kuykendall hired appellant in March 2007 to paint and perform grout work on her home for a total price of $5,412. She paid appellant $3,412 up front for the work. Some of appellant’s workers came to work on the project. Their work was unacceptable, and they did not complete the project. Kuykendall had to hire others to re-do their work. Appellant did not refund any of the money that Kuykendall paid him for the project.

Sufficiency of the Evidence

Appellant challenges the legal sufficiency of the evidence in his first issue. 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). When conducting a sufficiency review, we consider all the evidence admitted at trial, including pieces of evidence that may have been improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007); Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App.2001); Garcia v. State, 919 S.W.2d 370, 378 (Tex.Crim.App.1994); Chambers v. State, 805 S.W.2d 459, 460 (Tex.Crim.App.1991). 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). We presume that the jury resolved conflicts in the evidence in favor of the prosecution, and we defer to that determination in reviewing the sufficiency of the evidence. Jackson, 443 U.S. at 326, 99 S.Ct. 2781.

Our analysis of appellant’s challenge to the legal sufficiency of the evidence focuses on a review of the mathematical calculations presented at trial. As noted previously, the Hills made payments in excess of $161,000 to appellant. The jury convicted appellant of second degree theft of between $100,000 and $200,000. See Tex. Penal Code Ann. § 31.03(e)(6) (Vernon Supp.2009). Accordingly, we must determine if any rational trier of fact could have found beyond a reasonable doubt that appellant committed theft against the Hills in an amount of at least $100,000.

A person commits theft “if he unlawfully appropriates property with intent to deprive the owner of property.” Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2009). Appropriation of property is unlawful if it “is without the owner’s effective consent.” Tex. Penal Code Ann. § 31.03(b)(1) (Vernon Supp.2009); Stewart v. State, 44 S.W.3d 582, 589 (Tex.Crim.App.2001) (the “crucial element of theft is the deprivation of property from the rightful owner, without the owner’s consent”). “Consent” is not effective if it is induced by deception. See Tex. Penal Code Ann. § 31.01(3)(A) (Vernon Supp.2009). The Texas Penal Code defines “deception” as follows:

“Deception” means:
(A) creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true;
(B) failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true;
(C) preventing another from acquiring information likely to affect his judgment in the transaction;
(D) selling or otherwise transferring or encumbering property without disclosing a lien, security interest, adverse claim, or other legal impediment to the enjoyment of the property, whether the lien, security interest, claim, or impediment is or is not valid, or is or is not a matter of official record; or
(E) promising performance that is likely to affect the judgment of another in the transaction and that the actor does not intend to perform or knows will not be performed, except that failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed.

Tex. Penal Code Ann. § 31.01(1)(A)-(E) (Vernon Supp.2009). Thus, the Penal Code provides five alternative methods of committing theft by deception.

Appellant focuses his legal sufficiency challenge on the method of deception set out in Section 31.01(1)(E). This subsection provides that an actor engages in deception if he promises performance that he does not intend to perform or knows will not be performed. Most theft convictions resulting from contractual civil disputes arise under this “failure to perform” subsection. In the typical scenario, the actor agrees to perform a service, accepts money for the service, but then ultimately fails to perform the service. A claim of theft in this situation requires proof of more than an intent to deprive the owner of property and subsequent appropriation of the property. Baker v. State, 986 S.W.2d 271, 274 (Tex.App.-Texarkana 1998, pet. ref'd). “If no more than intent and appropriation is shown in a contract claim, nothing illegal is apparent, because under the terms of [a contract] individuals typically have the right to ‘deprive the owner of property,’ albeit in return for consideration.” Id. Stated another way, if money was voluntarily given to the accused pursuant to a contractual agreement and there is insufficient evidence in the record to show the money was obtained by deception, the conviction cannot stand. Phillips v. State, 640 S.W.2d 293, 294 (Tex.Crim.App.1982). Thus, to constitute theft in a contract situation, the evidence must show that the accused intended to deprive the owner of the money advanced under the contract at the time the money was accepted by the accused. See Wilson v. State, 663 S.W.2d 834, 836-37 (Tex.Crim.App.1984) (“Relevant intent to deprive the owner of property is the accused’s intent at the time of the taking.”).

Texas courts have held that, if a contract is partially or substantially performed, then the intent to commit theft through deception is not shown by the evidence. See Baker, 986 S.W.2d at 275. Appellant relies on this principle to assert that the evidence negates his culpability for theft by deception because he partially performed his agreement to work on the Hills’ home. We agree that an actor’s partial performance under a contract may negate his criminal culpability in the context of the “failure to perform” ground of deception. As set out above, however, Section 31.01(1) lists additional grounds by which an actor may commit theft by deception.

Section 31.01(1)(A) provides that an actor engages in deception by “creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true.” The State relied heavily upon this ground for establishing appellant’s guilt for theft by deception. For example, appellant represented to the Hills that they owed thousands of dollars in fees and bonds to the City of Midland in order for the construction project to occur. As evidenced by his letter of apology to Mrs. Hill, appellant created a false impression of law or fact that he knew was not true that induced the Hills to pay him $15,735.54 for the bogus fees. The fact that appellant may have partially performed under the contract is irrelevant to an inquiry as to whether he acquired funds from the Hills without their effective consent by creating a false impression of law or fact. Accordingly, we conclude that evidence of partial performance under a contract is not relevant to a charge that an actor induced the property owner’s consent to advance funds under a contract by creating a false impression of law or fact.

As noted previously, the State offered evidence that many of the alleged flaws that appellant identified to the Hills with their home were not defective or deficient. These items included the purported problems with the Hills’ chimney, foundation, attic trusses, and termite damage. The State contends that appellant’s work on these items constituted unnecessary repairs and that the amounts that appellant charged the Hills for these unnecessary repairs were obtained by deception. We conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant induced the Hills to advance funds to him for these unnecessary repairs by creating a false impression of law or fact regarding their necessity. Detective Bill Anderson, another Midland police officer with construction experience, testified that appellant charged the Hills $27,425 for work done on the chimney; $8,219 for the foundation work; and $18,300 for work done in the attic for trusses, alleged termite damage, and insulation. Thus, the State offered evidence that appellant charged the Hills $53,644 for unnecessary repairs.

In addition to the $15,735.54 that appellant collected from the Hills for bogus permit fees and the $53,644 he charged them for unnecessary repairs, he also borrowed $38,945.79 in personal loans from them. Appellant informed the Hills of various financial problems he was having when he obtained these loans. Mr. Hill testified that appellant told him that his bookkeeper/accountant had stolen money from him and fled to the Cayman Islands. Mr. Hill described the conversations leading up to appellant asking for loans as follows:

Usually he would come in and say, you know “I’m really short on cash because my accountant has cleaned out my account; my funds are tied up; that the bank would not loan me any more money until we — this was resolved.” It was all in the process. I believe what he said was his accountant had been arrested, and that a good bit of the money that he had taken from Mr. Lopez and others, had been found — or at least the Court had managed to turn up a bunch of it; and it was all sitting in the Court Clerk’s hand; and eventually they were going to sort it all out as to how much would be proportioned out to certain people that were all victims.
And so it was going to be tied up for a while, and he needed something to tide him over until then.

Appellant also stated that he needed money to complete projects for other customers and that he needed money to re-incorporate his business. Detective Anderson determined that appellant’s story about his accountant was a sham. Additionally, the testimony from appellant’s other customers with regard to funds they advanced to him for projects demonstrated that he was not in dire financial straits. Accordingly, a rational trier of fact could have found beyond a reasonable doubt that appellant induced the Hills to loan money to him by creating a false impression of law or fact regarding his financial difficulties and its causes.

Additionally, Mrs. Hill testified that she paid appellant $2,100 for Pella windows and $1,000 for a credenza that he never delivered. She also testified that twenty-five percent of the work that appellant agreed to complete remained unfinished. The testimony of appellant’s other customers reveals a pattern of conduct on his part to agree to perform work with no intention of completing it. Based upon their testimony, a rational trier of fact could have found beyond a reasonable doubt that appellant did not intend to deliver the windows and credenza or complete the work he agreed to perform at the time he accepted funds for these projects from the Hills. Accordingly, the record contains legally sufficient evidence to support the jury’s determination that appellant committed theft by deception against the Hills in an amount in excess of $100,000. Appellant’s first issue is overruled.

Evidence of Appellant’s Dealings with Other Customers

In his second and third issues, appellant challenges the admission of evidence pertaining to his dealings with other customers. He contends in his second issue that the admission of this evidence violated Tex. Penal Code Ann. § 31.03(c)(1) (Vernon Supp.2009). He asserts in his third issue that the admission of this evidence violated Tex.R. Evid. 404(b). We review the trial court’s ruling on the admissibility of evidence under an abuse of discretion standard. Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App.2001); Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App.1991). This standard requires an appellate court to uphold a trial court’s admissibility decision when that decision is within the zone of reasonable disagreement. Powell, 63 S.W.3d at 438.

Section 31.03(c)(1) provides that “evidence that the actor has previously participated in recent transactions other than, but similar to, that which the prosecution is based is admissible for the purpose of showing knowledge or intent and the issues of knowledge or intent are raised by the actor’s plea of not guilty.” Appellant asserts that another transaction must be identical to the charged offense in order to be admissible under the statute. We disagree. The statute only requires that another transaction be similar to the charged offense in order to be admissible. We conclude that the trial court did not abuse its discretion in determining that the other transactions, which all occurred during the period of time that appellant was also working on the Hills’ home, were similar to the transaction giving rise to the charged offense. Appellant’s second issue is overruled.

Evidence of other crimes, wrongs, or bad acts is not admissible for the purpose of showing that the person acted in conformity therewith. Rule 404(b); Montgomery, 810 S.W.2d at 386-88. However, this evidence may be admissible when it is relevant to a “noncharacter conformity fact of consequence in the case,” such as intent, motive, identity, opportunity, preparation, plan, knowledge, or absence of mistake or accident. Powell, 63 S.W.3d at 438; see Rule 404(b); Montgomery, 810 S.W.2d at 387-88. Admissibility of evidence hinges on the relevancy of the evidence to a “fact of consequence” in the case. Rankin v. State, 974 S.W.2d 707, 709 (Tex.Crim.App.1996). Other crimes, wrongs, or bad acts have noncharacter conformity relevance where it logically serves to make less probable defensive evidence that undermines an elemental fact. Powell, 63 S.W.3d at 438.

We conclude that the trial court did not err under Rule 404(b) in admitting the other customers’ testimony. The evidence was admissible under both Section 31.03(c)(1) and Rule 404(b) to show appellant’s intent. In a theft case arising from a construction contract, the issue of the defendant’s intent at the time he received funds under the contract in consideration of his promise to perform future work will invariably be a contested issue at trial. The evidence from the other customers showed that appellant took money for work that he never intended to complete. Appellant’s third issue is overruled.

Disabled Juror

In his fourth issue, appellant contends that the trial court erred in proceeding with the trial over his objection after a juror became ill. Appellant claims that the trial court erred in determining that the juror was disabled under Tex.Code Crim. Proc. Ann. art. 36.29(a) (Vernon Supp.2009). On the third day of trial, the proceedings began with the trial court informing the attorneys that a juror had contacted the court to report that she was ill with a stomach ailment and that she would not be able to attend court. The trial court additionally advised the parties that the same juror had informally advised the court on the previous day that she had an upset stomach and was not feeling well. Although appellant objected and requested that the trial be postponed, the trial court chose to proceed under Tex.Code Crim. Proo. Ann. art. 36.29 (Vernon Supp.2009). Prior to making its determination to proceed with eleven jurors, the trial court polled the remaining jurors to ascertain their availability in the event the trial was postponed. Six of the remaining jurors indicated it would be difficult for them to come back at a later date, and all eleven of the remaining jurors indicated that they would like for the trial to continue without waiting for the return of the sick juror.

Article 36.29 allows a trial to proceed with fewer than twelve jurors if a juror becomes disabled. A juror is disabled if he has a physical illness, mental condition, or emotional state that hinders his ability to perform his duties as a juror. Hill v. State, 90 S.W.3d 308, 315 (Tex.Crim.App.2002); Landrum v. State, 788 S.W.2d 577, 579 (Tex.Crim.App.1990). A disability for purposes of Article 36.29 includes any condition that inhibits a juror from fully and fairly performing the functions of a juror. Routier v. State, 112 S.W.3d 554, 588 (Tex.Crim.App.2003). The determination as to whether a juror is disabled lies within the sound discretion of the trial court. Brooks v. State, 990 S.W.2d 278, 286 (Tex.Crim.App.1999). Absent an abuse of that discretion, no reversible error will be found. Id.

Appellant contends that an upset stomach is insufficient to render a juror disabled because such an illness is temporary. However, other courts have found that jurors who complained of other temporary illnesses that impaired their ability to perform the functions of a juror were properly determined by the trial court to be disabled. See Allen v. State, 536 S.W.2d 364, 366-67 (Tex.Crim.App.1976) (juror properly determined to be disabled after having been diagnosed with influenza); Hughes v. State, 787 S.W.2d 193, 195 (Tex.App.-Corpus Christi 1990, pet. refd) (juror excused after complaining of nausea, headaches, and vomiting). A juror’s inability to come to the courthouse due to a stomach ailment provides some evidence of the requisite incapacity to perform the duties assigned to that juror that the trial court may consider in making a determination of disability. Although some stomach ailments might be only temporary, it remains within the trial court’s discretion to determine whether the juror had become disabled. Therefore, the record does establish that the trial court abused its discretion in determining that the juror’s ailment rendered her disabled. Furthermore, Article 36.29 does not require the trial court to consider postponing the trial prior to proceeding with eleven jurors in the event of a juror’s disability. Thus, the remaining jurors’ preference for proceeding with the trial is of no consequence to a disability determination under Article 36.29. Appellant’s fourth issue is overruled.

This Court’s Ruling

The judgment of the trial court is affirmed.

      . The items charged by appellant for fees and bonds consisted of the following: (1) City Construction Bond — $2,500; (2) Footing Fee — $343.85; (3) City Environmental Fee— $426; (4) City Bond to Repair Chimney— $1,500; (5) Fee Curb Cut — $375.69; (6) Bond Curb Cut — $1,500; (7) City Bond to Rebuild Chimney — $1,975; (8) Gas Line Inspection— $900; (9) City Environmental Fee — $225; (10) Curb Cut Fine — $1,320; (11) Chimney Bond Renewal — $3,870; and (12) Additional Bond for Chimney — $800.

      . Schwope testified that appellant was only required to obtain a single building permit for the work to be performed on the Hills' home at a cost of $5.25 per each $1,000 of the cost of construction and to pay a single curb cut fee of $25.

      . The court's charge included the methods of perpetrating deception set out in Section 31.01(1)(A), (B), (C), and (E) in its definition of "[d]eception.”

      . In addition to charging tire Hills $27,425 for unnecessary repairs to their chimney, he also collected $8,145 from them for bogus permit fees for the work on the chimney.


source: Caselaw Access Project

author: RICK STRANGE, Justice.

license: Public Domain

text:
    Elvin MAXWELL, Appellant, v. Robert WILLIS, Appellee.
    No. 11-09-00275-CV.
    Court of Appeals of Texas, Eastland.
    May 6, 2010.

      Erika M. Laremont, Assistant Attorney General, Austin, for appellant.
    Steve Hershberger, Midland, for appel-lee.
    Panel consists of: McCALL, J., STRANGE, J„ and BOYD, S.J.

      . John T. Boyd, Retired Chief Justice, Court of Appeals, 7th District of Texas at Amarillo, sitting by assignment.

   OPINION

RICK STRANGE, Justice.

Robert Willis filed suit against Texas Tech University and Elvin Maxwell alleging several causes of action in connection with his removal from the University’s Physician’s Assistant (PA) Program. Maxwell filed a motion for summary judgment and, in part, alleged that Willis’s claims were barred by official immunity. The trial court denied Maxwell’s motion, and he filed this interlocutory appeal. We reverse.

I. Background Facts

Willis was enrolled in the University’s PA Program. Maxwell is the PA program director and regional dean for the School of Allied Health Sciences Midland Campus. On July 31, 2007, Willis requested permission to take his finals separately from his classmates because of interpersonal problems between himself and another student. Tammy Ream, associate program director, allowed him to take his finals in a separate location. On August 2, Ream was contacted by Kristy McCoy, another PA student. McCoy relayed several rumors concerning Willis, including an allegation that he had pointed a gun at a classmate, Rima Paral-kar. Ream relayed this to Maxwell. He instructed her to check with the campus police to see if there was any record of complaints against Willis and to schedule meetings with McCoy, Paralkar, and Willis in his office on August 7.

Ream contacted the campus police department on August 3 and learned that in 2003 misdemeanor warrants had been issued for Willis for criminal mischief and deadly conduct and that in 2007 he was arrested for disorderly conduct following an altercation at a local restaurant involving Willis’s ex-wife and a classmate/girlfriend. The campus chief of police, Charles Gunn, advised Ream that none of the three charges had been finally resolved and that there was nothing for his department to get involved with at this time.

On August 7, Maxwell met first with McCoy and then Paralkar. After the Par-alkar meeting, Ream contacted the campus police department and asked them to provide an officer for the Willis meeting and to escort Willis from campus following that meeting. When Maxwell met with Willis, he told Willis that he was being dismissed and that he was not to return to campus until notified otherwise. A campus police officer asked Willis for permission to search his vehicle. Willis consented. His vehicle was searched but no weapons were found.

Maxwell filed a complaint of misconduct with the University alleging that Willis had violated provisions of the student code. The University’s Student Conduct Board met, determined that Willis had violated the student code, and recommended his dismissal from the PA program.

II. Issues Presented

Maxwell challenges the trial court’s summary judgment ruling with two issues. Maxwell contends that the trial court abused its discretion by considering inadmissible summary judgment evidence and that the trial court erred by denying his motion for summary judgment.

III. Summary Judgment Evidence

Willis’s response to Maxwell’s summary judgment motion included his own affidavit, excerpts of his deposition, and his answers to Maxwell’s interrogatories. Maxwell objected to portions of that evidence. The trial court denied Maxwell’s motion without specifically ruling on Maxwell’s objections. We presume, therefore, that it considered the challenged evidence. Sunshine Mining & Ref. Co. v. Ernst & Young, L.L.P., 114 S.W.3d 48, 51 (Tex.App.-Eastland 2003, no pet.).

Maxwell complains that the trial court erred by not striking several paragraphs of Willis’s affidavit because they interjected his uncorroborated subjective belief regarding Maxwell’s motivation. We review the trial court’s admission or exclusion of summary judgment evidence under an abuse of discretion standard. Harris v. Showcase Chevrolet, 231 S.W.3d 559, 561 (Tex.App.-Dallas 2007, no pet.). Affidavits containing unsubstantiated factual or legal conclusions or subjective beliefs that are not supported by evidence are not competent summary judgment proof because they are not credible or susceptible to being readily controverted. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996). Motive may be established by direct or circumstantial evidence. See Willis v. Nucor Corp., 282 S.W.3d 536, 544 (Tex.App.-Waco 2008, no pet.). That evidence may not, however, consist solely of the plaintiffs subjective belief. See Tex. Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex.1994) (plaintiffs statement that he believed in good faith that he was terminated for filing a workers’ compensation claim was not competent summary judgment evidence).

Willis testified in his affidavit that he was removed from the PA program because Maxwell disliked anyone who challenged him academically; that Maxwell improperly relied upon Paralkar’s statement falsely accusing him of pointing a gun at her; that Maxwell told his fellow classmates that he had threatened a student with a firearm, that he was a dangerous individual, that they were not to contact him, and that they should contact the campus police if he did; that Maxwell’s statements were false; that Maxwell acted in bad faith by not conducting a thorough investigation but instead only considered one side of the story; that Maxwell was not motivated by safety concerns because he waited over five days to meet -with the students and that he was, instead, motivated by malice; and that Maxwell lied about his involvement in order to settle a grudge.

To determine if the trial court abused its discretion by considering Willis’s affidavit, we consider the entire record. Maxwell’s summary judgment evidence establishes the following:

• August 2, 2007. Ream received a call from McCoy reporting rumors that Willis was selling drugs, that he had threatened Paralkar with a gun, that he had taken her laptop and made derogatory changes to her MySpace page, and that he was following her. Ream reported this to Maxwell. He instructed her to contact the campus police to see if they had any records of these allegations and to set up meetings with McCoy, Paralkar, and Willis for August 7 when he was scheduled to return to the office.
• August 3. Ream contacted Campus Chief Gunn and learned that misdemeanor warrants had previously been issued for Willis but that there was no final disposition on those cases and that there was nothing for his department to get involved with. Ream asked a staff member to schedule appointments with the three students and warned her that there was a potential for conflict between Willis and Paralkar so that she could advise the faculty. Ream relayed Chief Gunn’s information to Maxwell.
• August 7, 8:00 am. Maxwell met with McCoy. She repeated her accusations and expressed concern for her safety.
• 9:00 am. Maxwell met with Paralkar. He asked for her response to the accusations against Willis. She denied that Willis was selling drugs but confirmed that they had been involved in a relationship, that she had broken up with him, and that she had come to his house to retrieve her personal items. While she was there, he threatened her with a gun. The police arrived and stayed while she collected her property, but she did not tell them that Willis had threatened her with a gun because she did not want to get him into trouble. She drove away and then called the police and reported the gun allegation. She did not report this incident to school officials because she did not want to get Willis kicked out of the program. Paralkar told Maxwell that Willis normally carried a gun in his car console.
• 9:30 am. Ream contacted Chief Gunn and asked him to be present for their meeting with Willis and to escort him from campus following that meeting.
• 11:00 am. Maxwell met with Willis. Two campus police officers were present. Maxwell told Willis that he was aware of a police report involving Willis pointing a gun at Paralkar, that Willis was being dismissed from campus, that he was not to return to campus or PA program facilities, and that he was not to contact Paralkar or any other PA program students or faculty. Maxwell consented to a search of his vehicle by campus police. They did not find a weapon.
• 1:00 pm. Maxwell spoke with the PA program students and advised them that “Mr. Willis had been escorted from campus because of documentation that he pulled a gun on Ms. Paral-kar.” Maxwell told the students that Mr. Willis was not to be on campus or to contact them. He asked them to notify the police and advise the faculty if Willis did attempt to contact them.
• August 15. Maxwell filed a complaint of misconduct against Willis. Of significance to this appeal is the fact that Maxwell told the University that he first informed Willis of the allegations against him and asked him if he had any response and that Willis declined to make a response. Maxwell then told Willis to leave the campus and to avoid any other students or faculty until the situation was resolved by higher authorities. Maxwell also reported that the campus police asked for permission to search Willis’s vehicle but Willis declined and that Midland College had banned Willis from the campus until his situation was resolved.
• May 27, 2009. Maxwell signed an affidavit in support of his motion for summary judgment. Of significance to this appeal is his statement that he advised the PA program students that Willis had been escorted off campus because of allegations that Willis pointed a gun at a fellow student but that he did not mention Paralkar by name. Maxwell testified that he met with the students and told them about Willis because of his concern for the safety and welfare of the students, faculty, and staff.

Maxwell’s evidence corroborates much of Willis’s affidavit. Willis was critical of Maxwell’s investigation because he relied upon the statement of another student and did not conduct a thorough investigation. Maxwell’s evidence confirms that he decided to remove Willis from the PA program after talking to McCoy and Paralkar but before speaking with Willis. Willis testified that the delay between McCoy’s initial report and the decision to remove him belays any conclusion that Maxwell was motivated by a safety concern. Maxwell’s evidence confirms that five days passed between McCoy’s report and Maxwell’s student meetings. In the interim, Maxwell asked Ream to cheek for police reports, but no student-safety steps were taken.

Willis testified that Maxwell lied about his involvement. There are several inconsistencies between Ream’s documentation, Maxwell’s complaint, and his summary judgment affidavit. According to Ream, when Maxwell met with Willis on August 7, he relayed the accusations that had been made and, without affording him a chance to respond, told Willis that he was being removed from the program. Conversely, Maxwell told the University that he first gave Willis a chance to respond to the accusations and that Willis declined to do so. Ream documented that Willis was asked for permission to search his car and that, while he was initially reluctant to do so, he did agree and that the officers reported to Maxwell that they found no weapon. Maxwell, however, told the University that Willis refused to consent to the search. Maxwell told the University that the campus police banned Willis from the campus. Ream’s documentation makes clear that it was Maxwell’s decision. In fact, Maxwell’s summary judgment evidence included a letter dated August 21, 2007, from Chief Gunn to Willis informing him that Maxwell had lifted the trespass notice. Maxwell denied using Paralkar’s name during his meeting with the PA program students. But Ream documented that Maxwell told the students Willis had been removed “because of documentation that he pulled a gun on Ms. Paralkar.”

The trial court did not abuse its discretion by considering Willis’s affidavit testimony. It was more than just Willis’s subjective beliefs, and his underlying factual statements were sufficiently corroborated by Maxwell’s evidence.

Maxwell next argues that the trial court erred by considering hearsay statements in Willis’s affidavit, specifically what Maxwell told the PA students since Willis was not present. The trial court did not err by considering this testimony because it was confirmed by Maxwell’s own summary judgment evidence.

Maxwell argues that the trial court erred by considering Willis’s interrogatory responses. We agree. Tex.R. Civ. P. 197.3 provides that interrogatory answers may only be used against the responding party. Finally, Maxwell contends that the trial court erred by considering Willis’s deposition testimony where he described a conversation with Paralkar. Willis testified that Paralkar told him Maxwell threatened to remove her from the PA program if she did not tell him what was in the police report or if what was reported was not what happened. This is hearsay, and Willis offers no exception. The trial court, therefore, erred by considering it.

Maxwell’s first issue is sustained in part and overruled in part. The trial court did not err by considering Willis’s affidavit, but it did err by considering Willis’s interrogatory answers and his deposition testimony concerning a conversation with Par-alkar.

IV. Summary Judgment

Willis pleaded three causes of action against Maxwell: breach of student confidentiality, defamation, and denial of substantive due process. Maxwell originally raised official immunity as an affirmative defense to all three but, on appeal, acknowledges that this defense does not apply to Willis’s student confidentiality or due process claims. Thus, our inquiry is limited to whether official immunity bars Willis’s defamation claim.

Maxwell contends first that Willis presented no evidence that Maxwell defamed him because he tendered no evidence that Maxwell told the PA students Willis had been expelled or that he otherwise made a false statement. Ream’s documentation, however, provides:

Mr. Maxwell spoke with the class of 2008 to advise them that Mr. Willis had been escorted from campus because of documentation that he pulled a gun on Ms. Paralkar. He advised them that Mr. Willis was not to be on campus or to contact them. He asked that if they were contacted, they were to contact the police and advise the faculty.

The trial court, therefore, had evidence that Maxwell told the PA students Willis had been expelled for pointing a gun at Paralkar.

Maxwell next argues that, as a matter of law, the doctrine of official immunity precludes Willis’s defamation claim against him and, consequently, that the trial court erred by denying his summary judgment motion. Official immunity is an affirmative defense that protects a government employee from liability in a lawsuit when the employee (1) performs discretionary duties (2) within the scope of the employee’s authority (3) provided the employee acted in good faith. Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex.2000). Willis contends that Maxwell failed to carry his burden of proof to establish this defense as a matter of law.

A trial court must grant a motion for summary judgment if the moving party establishes that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). In order for a defendant to be entitled to summary judgment, it must either disprove an element of each cause of action or establish an affirmative defense as a matter of law. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). Once the movant establishes a right to summary judgment, the nonmovant must come forward with evidence or law that precludes summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979). When reviewing a traditional summary judgment, the appellate court considers all the evidence and takes as true evidence favorable to the nonmovant. Am. Tobacco Co., 951 S.W.2d at 425; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). The appellate court “must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence presented” and may not ignore “undisputed evidence in the record that cannot be disregarded.” Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755, 757 (Tex.2007).

Maxwell argues that investigating and acting on gathered facts are quasi-judicial actions involving the exercise of discretion, that his investigation of and response to McCoy’s report was within the scope of his authority, and that he acted in good faith. Willis does not dispute that Maxwell exercised a discretionary duty but focuses on Maxwell’s meeting with the PA students and contends that Maxwell acted outside the scope of his authority and in bad faith.

Maxwell presented the trial court with evidence of broad authority. He testified by affidavit that he is the Regional Dean for the School of Allied Health Sciences Midland Campus and that he is responsible for the PA program. This includes the responsibility for security and personal safety for the students and faculty. Willis has not contested this authority but contends that it does not allow him to disclose confidential student records information in violation of the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, or to defame students.

We need not determine whether Maxwell violated FERPA because it is not dispositive of his defamation action. Maxwell communicated three facts to the PA students: (1) Willis had been expelled; (2) there was documentation that Willis threatened Paralkar with a gun; and (3) Willis should be considered dangerous. Maxwell’s statement that Willis had been expelled was true. Likewise, Maxwell’s reference to documentation that Willis pulled a gun on Paralkar is not defamatory because the Midland Police Department had, in fact, documented Paralkar’s accusation.

If Maxwell defamed Willis, it was by telling the students that he was dangerous. Willis contends that Maxwell lacked the authority to do so because it was defamatory. That, however, speaks more to Maxwell’s good faith than his authority. If we assume no educator has the authority to defame a student, that does not mean that they have no authority to communicate unresolved accusations of dangerous behavior to fellow students, faculty, or staff in the interest of their safety. The question is did Maxwell have the authority to warn the students in response to Paral-kar’s accusation? Maxwell testified that he had broad student-safety responsibility and authority and that he was acting within the scope of that authority when he met with the PA students. Willis did not challenge Maxwell’s description of his authority or his right to alert the students to a safety concern posed by a fellow student. Maxwell, therefore, established that he was acting within the scope of his authority.

The final inquiry is whether Maxwell acted in good faith. To determine if a public official acted in good faith, we use an objective standard, asking whether a reasonably prudent official, under the same or similar circumstances, could have believed that his conduct was justified based on the information he possessed when the conduct occurred. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 164 (Tex.2004). The standard of good faith with respect to official immunity is not a test of carelessness, negligence, or motivation and does not inquire into what a reasonable person “would have done ” but what a reasonable person “could have believed.” Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 426 (Tex.2004).

Maxwell was presented with conflicting evidence on what happened between Willis and Paralkar. Willis denied pulling a gun, and Paralkar provided inconsistent statements to the police and withheld information from the University. But she told the police Willis had threatened her with a gun and repeated that accusation to Maxwell. A reasonable person could have believed her. In addition to the credibility resolution that normally defies unilateral assessment, Maxwell knew that warrants had previously been issued against Willis for criminal mischief and deadly conduct and that, earlier in the year, he had been arrested for disorderly conduct. A reasonable person could have also considered that Willis was accused of life-threatening conduct directed at a fellow student and determined that the other students’ safety considerations outweighed Willis’s privacy concerns.

Maxwell may have subjectively been motivated by improper concerns, but he established that a reasonable public official could have made the same decision as did he. We note that Willis tendered evidence questioning Maxwell’s motivation and whether he made the right decision, but no evidence in support of the proposition that no reasonable person could have believed Paralkar or determined that Willis posed a safety risk. See Crouch v. Trinque, 262 S.W.3d 417, 422 (Tex.App.-Eastland 2008, no pet.) (if defendant meets its burden to establish official immunity, plaintiff must come forward with controverting evidence).

Because Maxwell established his official immunity affirmative defense to Willis’s defamation cause of action, the trial court erred when it denied his motion for summary judgment. Maxwell’s second issue is sustained.

V. Conclusion

The judgment of the trial court is reversed. Judgment is rendered that Willis take nothing on his defamation claim. This case is remanded to the trial court for consideration of Willis’s remaining causes of action. We express no opinion on those claims.


author: ANNE GARDNER, Justice.

text:
    Brandon Ray SMITH a/k/a Brandon Smith, Appellant, v. The STATE of Texas, State.
    No. 2-08-390-CR.
    Court of Appeals of Texas, Fort Worth.
    May 27, 2010.
    Discretionary Review Refused Sept. 22, 2010.

      Lisa Mullen, Fort Worth, TX, for Appellant.
    Joe Shannon, Jr., Criminal District Attorney, Charles M. Mallín, Chief Appellate Section, and Danielle A. Kennedy, Assistant District Attorneys for Tarrant County, Fort Worth, TX, for State.
    PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
   OPINION

ANNE GARDNER, Justice.

I. Introduction

Appellant Brandon Ray Smith a/k/a Brandon Smith appeals his convictions for two counts of aggravated assault with a deadly weapon. He contends in three issues that the evidence is legally and factually insufficient to support his convictions, that the trial court erred by admitting evidence of an extraneous offense, and that the trial court erred by denying his request for a limiting instruction concerning evidence of a different extraneous offense. We affirm.

II. Procedural Background

A grand jury indicted Appellant for two counts of aggravated assault with a deadly weapon. The indictments collectively alleged that Appellant intentionally or knowingly threatened imminent bodily injury to Gary and Randolph (Randy) Osburg and that Appellant used or exhibited a truck as a deadly weapon during the commission of the assaults. The indictments also alleged that Appellant had a previous felony conviction. Appellant pleaded not guilty to both counts, was tried in October 2008, and the jury found Appellant guilty of both counts. During the punishment phase of his trial, Appellant pleaded true to the repeat offender notice in the indictments. The jury found the enhancement to be true and assessed Appellant’s punishment at thirteen years’ confinement for each count; the trial court ordered Appellant’s sentences to run concurrently. These appeals followed.

III. Factual Background

Randy Osburg testified at trial that he took his son, Gary Osburg, to a convenience store in Tarrant County, Texas, on February 11, 2008, to buy some cigarettes. As they were leaving the store, Randy and Gary saw Appellant and his female companion, Banu Kurt, involved in what they believed was an altercation; they saw Appellant hit Ms. Kurt twice in the chest with a closed fist. After the second hit, Ms. Kurt moved backward, hit the gas pump, and fell down. Sitting in Appellant’s truck were two children Randy believed were between three and six years old; one of them was crying.

Gary further testified that, upon seeing the second hit, he got out of Randy’s truck to help Ms. Kurt and to confront Appellant. As Gary approached Appellant, Appellant pulled brass knuckles from his pocket and told Gary to mind his own business. Gary and Randy started “mov[ing] around” Appellant, and although they did not “jump on” him, Appellant ran around the building and away from them.

Randy yelled for someone to call the police, and Appellant jumped into his truck and “acted like he was going to leave.” Randy started talking to Ms. Kurt, but something in Ms. Kurt’s expression made Randy turn around. Randy then saw Appellant driving straight at him. When Randy heard Appellant accelerate, Randy jumped into the bed of Gary’s truck; Randy testified that he was afraid of dying or being badly hurt. Appellant then circled the gas pump and drove straight at Gary; Gary testified that he believed Appellant was trying to kill him, and Randy testified that he was afraid Appellant was going to kill Gary. When Gary saw Appellant driving at him, he grabbed a hammer from Randy’s truck and threw it at Appellant, hitting the truck’s windshield. Appellant slammed on the brakes, got out of his truck “in a complete rage,” and ran after Gary while his truck was still moving. Appellant’s unoccupied truck rolled across the street and came to rest against a sign and a telephone pole.

Appellant then chased Gary around the convenience store on foot. Gary came out from the back of the convenience store and got into Randy’s truck, and Gary and Randy drove away from the store. Appellant ran across the street to his truck and followed Gary and Randy. Randy testified that he drove away from the convenience store and turned right on a street two or three blocks away. As he and Gary approached a stop sign after turning right, Gary said, “He’s behind us. He’s going to ram us.” Randy looked in his mirror and saw Appellant’s truck “coming at [them] fast.”

Randy said that he accelerated and “got maybe a little bit across the street when [Appellant] hit us.” Randy testified that he accelerated again and believed he was driving sixty or seventy miles-per-hour when Appellant “rammed [him] two or three more times.” Randy testified that Gary had retrieved his hammer from the convenience store parking lot and was leaning out the truck window as they drove to throw the hammer at Appellant “to slow him down.” Randy also testified that he was afraid Appellant would push them into traffic at an upcoming intersection. Randy said that he then slammed his brakes and that Appellant also slammed his brakes, avoiding a collision. When traffic on the ci’oss-street was clear, Randy accelerated again but Appellant approached them in the outside lane. Gary said, “He’s going to ram you,” and Randy again slammed his brakes. Randy testified that Appellant “ended up going across our lane, trying to ram us from the side, but luckily, he just barely missed me.” Randy said that Appellant’s truck crossed some railroad tracks, “went into the air,” and stopped in a ditch.

Gary testified that he was scared and his adrenaline was going when they drove away from the convenience store. Gary testified that while Randy drove, Gary looked out the window and saw Appellant get into his truck and follow them. Gary said less than fifteen seconds passed before Appellant “was already up on us,” tailgating them. Gary testified that Appellant “ended up striking” the rear of Randy’s truck three times, jarring Randy and Gary. As Randy approached a T-intersection, Randy turned right and Appellant followed. Gary testified that he “saw [Appellant] coming up on us really fast and I told my dad to get over into the next lane and stop and hit his brakes. And when he did, [Appellant] was coming at us, barely missed us, and went into a ditch.”

Randy testified that after Appellant drove into the ditch, he and Gary drove back to the convenience store, hoping the police had arrived by that time. The police were there and noted damage to the bumper on Randy’s truck, but no photographs were taken. Randy said he was somewhat able to repair the dent in the bumper by tying it to a tree and pulling it out. The police also noted front-end damage to Appellant’s truck, but the officer did not recall noticing any damage to the windshield.

During cross-examination, Randy acknowledged that he had joked with someone after the altercation that he would gladly have the case dropped and all charges dismissed if Appellant would meet Gary for a one-on-one fight. Randy also admitted that he “forgot” to tell the jury that he also had a weapon during the altercation — a tile cutter he had gotten from the bed of his truck.

Tricia Nyamongo Walton, the clerk from the convenience store, testified that she saw Appellant, a woman, and two other men standing behind a white truck. She saw Appellant drive the white truck around the store, and she told police that Appellant was “driving crazy,” almost ran into the building, the gas pumps, and her car. She also told police that Appellant chased the other men with his truck.

Ms. Kurt testified for the defense that she and Appellant were not fighting but were instead “just playing around.” She said that Appellant pushed her but that she tripped over the gas pump. Ms. Kurt did, however, tell the police that Appellant hit her in the face. She testified that as Randy and Gary approached Appellant, she gathered her children, ages ten and eight, and went into the convenience store. She said that she did not see what was thrown at Appellant’s truck but that she did see damage to the windshield. She also testified that she did not see Appellant drive toward anyone.

IY. Sufficiency of the Evidence

In his first point, Appellant contends that the evidence is legally and factually insufficient to sustain his convictions for aggravated assault with a deadly weapon.

A. Alleged Waiver by Multifarious Point on Appeal

The State contends that we should summarily overrule Appellant’s first point because it is multifarious. A multifarious issue is one that embraces more than one specific ground. Stults v. State, 23 S.W.3d 198, 205 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). By combining more than one contention in a single issue, an appellant risks rejection on the ground that nothing is presented for review. Foster v. State, 101 S.W.3d 490, 499 (Tex.App.-Houston [1st Dist.] 2002, no pet.). But an appellate court may address a multifarious issue that is sufficiently developed in the brief. Id. Although Appellant’s first point addresses both legal and factual sufficiency and challenges both venue and the evidence to support each element of the indicted offenses, we are able to discern Appellant’s contentions on appeal. Thus, we will not summarily overrule Appellant’s first point and will substantively address it. See Newby v. State, 169 S.W.3d 413, 414 (Tex.App.-Texarkana 2005, pet. ref'd) (declining to overrule point of error as multifarious “in the interest of resolving substantive issues”).

B. Venue

Appellant contends “there is no evidence that the striking of the victims[’] truck took place in Tarrant County.” However, an appellate court must presume that venue was proved unless it was challenged in the trial court or the record affirmatively shows the contrary. Tex. R.App. P. 44.2(c)(1). Appellant does not point us to a place in the record where he disputed venue at trial, and our review of the record did not reflect any such objection. Further, the evidence at trial showed that the convenience store was located in Tarrant County, that Appellant chased Randy and Gary away from the convenience store, and that Randy and Gary returned to the convenience store to speak with police after the chase. And our review of the record did not reveal evidence that the chase occurred in a county other than Tarrant County. Thus, because Appellant failed to dispute venue before the trial court and the record does not affirmatively refute proper venue, we must presume that venue was proved in the trial court. See id.; Hernandez v. State, 198 S.W.3d 257, 268 (Tex.App.-San Antonio 2006, pet. ref'd) (op. on reh’g) (presuming venue proved in trial court because appellant did not object at trial and record did not affirmatively refute proper venue). We overrule this portion of Appellant’s first point.

C.The Evidence is Legally Sufficient

1. Standard of Review

In reviewing the legal sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the prosecution in order to 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, 2789, 61 L.Ed.2d 560 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007). The standard of review is the same for direct and circumstantial evidence cases; circumstantial evidence is as probative as direct evidence in establishing guilt. Clayton, 235 S.W.3d at 778; Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007).

In determining the legal sufficiency of the evidence to show an appellant’s intent, and faced with a record that supports conflicting inferences, we “must presume— even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflict in favor of the prosecution, and must defer to that resolution.” Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App.1991).

2. Applicable Law

A person commits the offense of aggravated assault if he “intentionally or knowingly threatens another with imminent bodily injury” and “uses or exhibits a deadly weapon during the commission of the assault.” Tex. Penal Code Ann. §§ 22.01(a)(2); 22.02(a)(2) (Vernon Supp. 2009). A deadly weapon is anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Penal Code Ann. § 1.07(a)(17)(B) (Vernon Supp.2009). “It is reasonably clear that driving an automobile constitutes the use of it and that driving [an automobile] in a manner capable of causing death or serious bodily injury constitutes [the automobile] a deadly weapon.” Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim.App.1995).

3. Analysis

As a general rule, the State must, on proper request, elect the instance on which it will rely for conviction when the State’s evidence shows multiple instances of conduct conforming to a single indictment allegation. Martinez v. State, 225 S.W.3d 550, 555 (Tex.Crim.App.2007). Here, following Appellant’s request, the State elected to rely on Appellant’s conduct after he followed Randy and Gary from the convenience store to prove his commission of aggravated assault. With the State’s election in mind, Appellant contends there is no evidence that he “intentionally threatened the victims with imminent bodily injury by chasing them in the truck [or] that he intentionally struck their truck during the chase or that anyone was placed in danger with the vehicle.” We disagree.

The record contains legally sufficient evidence that Appellant intentionally or knowingly threatened Randy and Gary with imminent bodily injury. See Tex. Penal Code Ann. § 22.01(a)(2). Randy testified that he was afraid of being killed or badly hurt by Appellant before they left the convenience store and that Appellant chased them in his truck after they left. Randy said that he drove away from the convenience store and turned right on a street two or three blocks away, that he saw Appellant’s truck “coming at [them] fast,” that he made several attempts to evade Appellant but that Appellant hit them with his truck two or three times, and that he drove sixty or seventy miles-per-hour to escape Appellant but that Appellant continued his attempts to ram their truck. The chase ended only after Appellant tried to ram them from the side but barely missed and drove into a ditch.

Gary testified that he believed Appellant was trying to kill him in the convenience store parking lot. He said that less than fifteen seconds passed before Appellant caught them and struck them with his truck three times, jarring them. Gary testified that Appellant followed them after Randy turned right and was “coming up on [them] really fast.” Gary said that after Randy hit the brakes, Appellant “barely missed” them and drove into a ditch. This evidence is legally sufficient to support the jury’s finding that Appellant intentionally or knowingly threatened Randy and Gary with imminent bodily injury. See Tex. Penal Code Ann. § 22.01(a)(2); Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Clayton, 235 S.W.3d at 778; see also Dominique v. State, No. 01-09-00385-CR, 2010 WL 1571180, at *3 (Tex.App.-Houston [1st Dist.] Apr. 8, 2010, no pet. h.) (mem. op., not designated for publication) (holding evidence legally and factually sufficient to sustain conviction for aggravated assault on a public servant and stating that “[t]he jury reasonably could have inferred that Dominique’s conduct was intentional based on his repeated attempts to run down the police officers who stood in his way”).

The evidence is also legally sufficient to support the jury’s deadly weapon findings. The definition of a deadly weapon under section 1.07(a)(17)(B) includes “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” See Tex. Penal Code Ann. § 1.07(a)(17)(B) (emphasis added). A car can be a deadly weapon. Butler v. State, 928 S.W.2d 286, 288 (Tex.App.Fort Worth 1996, pet. ref'd).

Randy and Gary collectively testified that Appellant rammed them with his vehicle two or three times, and Randy testified that Appellant caught them even after he drove sixty or seventy miles-per-hour while fleeing from Appellant. Although neither Randy nor Gary testified that they were physically injured by Appellant’s conduct, there is no requirement that the deadly weapon actually cause death or serious bodily injury before the jury can affirmatively answer the deadly weapon question. See Tex. Penal Code Ann. § 1.07(a)(17)(B); see also McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App.2000) (holding section 1.07(a)(17)(B)’s “plain language does not require that the actor actually intend death or serious bodily injury; an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury”). The evidence is legally sufficient to support the jury’s finding that Appellant used or exhibited a deadly weapon, his vehicle, while assaulting Randy and Gary.

Viewing the evidence in a light most favorable to the prosecution, a rational jury could have determined beyond a reasonable doubt that Appellant used or exhibited a deadly weapon, his vehicle, while intentionally or knowingly threatening Randy and Gary with imminent bodily injury. See Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2); see also Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Clayton, 235 S.W.3d at 778. We hold the evidence was legally sufficient to support the jury’s verdicts, and we overrule the portion of Appellant’s first point that challenges the legal sufficiency of the evidence.

D. The Evidence is Factually Sufficient

1. Standard of Review

In determining whether the evidence is factually insufficient to support a conviction that is nevertheless supported by legally sufficient evidence, it is not enough that this court “harbor a subjective level of reasonable doubt to overturn [the] conviction.” Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App.2006). We cannot conclude that a conviction is clearly wrong or manifestly unjust simply because we would have decided differently than the jury or because we disagree with the jury’s resolution of a conflict in the evidence. Id. We may not simply substitute our judgment for the factfinder’s. Johnson v. State, 23 S.W.3d 1, 12 (Tex.Crim.App.2000); Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). Unless the record clearly reveals that a different result is appropriate, we must defer to the jury’s determination of the weight to be given contradictory testimonial evidence because resolution of the conflict “often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8. Our deference in this regard safeguards the defendant’s right to a trial by jury. Lancon v. State, 253 S.W.3d 699, 704 (Tex.Crim.App.2008).

An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant’s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003). Moreover, an opinion reversing and remanding on factual insufficiency grounds must detail all the evidence and clearly state why the finding in question is factually insufficient and under which ground. Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App.2001); see Steadman v. State, 280 S.W.3d 242, 247 & n. 15 (Tex.Crim.App.2009).

2. Factually Sufficient Evidence

Reviewing all the evidence in a neutral light, we recall that there were no photographs or other physical evidence showing the extent of damage to Randy’s truck, that there was no direct testimony that Appellant intentionally or knowingly hit the rear of Randy’s truck, and that neither Randy nor Gary testified that they were in fear of or in danger of imminent bodily injury during the chase itself. We also recall that Randy and Gary confronted Appellant with weapons in the convenience store parking lot. However, Randy and a police officer both testified that there was physical damage to both Randy’s and Appellant’s trucks. Further, Randy and Gary both testified that Appellant repeatedly rammed or attempted to ram his truck into their truck during the chase, and Randy testified he drove sixty to seventy miles-per-hour to escape Appellant. In addition, Randy and Gary both expressly testified that they were in fear of death or serious bodily injury in the convenience store parking lot and that Appellant’s aggression toward them continued as he chased them away from the convenience store. Moreover, Appellant chased Randy and Gary, as the aggressor, at high speed after Randy and Gary left the convenience store in Randy’s truck.

Viewing the evidence in a neutral light, we conclude a rational trier of fact could have found beyond a reasonable doubt that Appellant used or exhibited a deadly weapon, his vehicle, while intentionally or knowingly threatening Randy and Gary with imminent bodily injury. See Tex. Penal Code Ann. §§ 1.07(a)(17)(B), 22.01(a)(2), 22.02(a)(2). We cannot say that the evidence is so weak that the jury’s determination is clearly wrong or manifestly unjust or that the conflicting evidence so greatly outweighs the evidence supporting the convictions that the jury’s determination is manifestly unjust. See Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414-15, 417. We therefore hold the evidence is factually sufficient to support the jury’s verdicts. We overrule the remainder of Appellant’s first point.

V. Alleged Extraneous Offense

In his second point, Appellant contends that the trial court egregiously erred by admitting evidence of his use or possession of brass knuckles, an extraneous offense. The State counters that Appellant waived any error because the evidence was previously introduced without objection and that the evidence was properly admitted as contextual evidence.

A. Preservation of Error

The State contends that Appellant waived any error concerning evidence of brass knuckles because evidence of brass knuckles was introduced without objection during Randy’s testimony. We disagree.

To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex.R.App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim.App.1998) (op. on reh’g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court’s refusal to rule. Tex. R.App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex.Crim.App.2004). A request for a running objection is timely and preserves error as long as it does not encompass too broad a subject matter during too broad a time or over different witnesses. Ford v. State, 919 S.W.2d 107, 113-14 (Tex.Crim.App.1996); Sattiewhite v. State, 786 S.W.2d 271, 283 n. 4 (Tex.Crim.App.1989), cert. denied, 498 U.S. 881, 111 S.Ct. 226, 112 L.Ed.2d 181 (1990).

Here, the parties held a lengthy discussion with the trial judge before opening statements concerning Appellant’s motion in limine to exclude any evidence that Appellant “retrieved some brass knuckles ... [d]uring the course of the incident.” Appellant objected at that time to any reference to the brass knuckles under rules of evidence 401, 402, 403, and 404(b). The trial court overruled the motion in limine but asked Appellant’s counsel to “renew all [his] prior trial objections” before brass knuckles were mentioned in evidence. The trial court then told Appellant’s counsel that it would grant a running objection to any reference to the brass knuckles if the trial court’s ruling remained the same. Then, in accordance with the trial court’s instructions, and before Randy testified, Appellant’s counsel advised the trial court that “this is one of the witnesses identified in my earlier objection and motion as to the allegation to the brass knuckles. As to this witness, I’d renew all those previous objections on the grounds that I made.” The trial court overruled the objection but stated that Appellant had “a running objection as to all of those grounds previously stated.” Although Appellant’s motion in limine did not preserve error, Appellant again objected to the evidence before Randy testified. See Harnett v. State, 38 S.W.3d 650, 655 (Tex.App.-Austin 2000, pet. ref'd) (“It is axiomatic that motions in limine do not preserve error.”). Thus, we hold that Appellant properly preserved his second point for our review.

B. Analysis

The admissibility of evidence is within the discretion of the trial court and will not be overturned absent an abuse of discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App.2003). So long as the trial court’s ruling lies within the zone of reasonable disagreement, the appellate court should affirm. Id.

“Same transaction contextual evidence” is evidence reflecting the context in which a criminal act occurred. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim.App.2000). It is a recognition that events do not occur in a vacuum, and a jury has a right to hear what occurred immediately before and after the offense in order to realistically evaluate the evidence. Id. Extraneous offenses may be admissible as same transaction contextual evidence when “ ‘several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction.’ ” Prible v. State, 175 S.W.3d 724, 731-82 (Tex.Crim.App.), cert. denied, 546 U.S. 962, 126 S.Ct. 481, 163 L.Ed.2d 367 (2005) (quoting Rogers v. State, 853 S.W.2d 29, 33 (Tex.Crim.App.1993)). This type of evidence results when an extraneous matter is so intertwined with the State’s proof of the charged offense that avoiding reference to it would make the State’s case incomplete or difficult to understand. Id. at 732.

The evidence at trial indicated that Appellant pulled the brass knuckles from his pocket as Gary initially approached him in the parking lot. The evidence was relevant to Appellant’s intent and was arguably part of an indivisible criminal transaction. We conclude the evidence was admissible as same transaction contextual evidence because the events are so interwoven that avoiding reference to Appellant’s retrieval of the brass knuckles would make the State’s case incomplete or difficult to understand. See Amaya v. State, 759 S.W.2d 737, 739 (Tex.App.-El Paso 1988, pet. refd) (holding attempted theft that preceded the charged shooting offense was relevant to the motivation for the ensuing violent confrontation between Appellant and the theft victim’s older brothers because the “facts of the two incidents [were] so interwoven as to necessitate admission of evidence of both for a full contextual evaluation of the indicted offense by the jury”). The trial court did not abuse its discretion by admitting, under rule 404(b), the evidence concerning Appellant’s use or possession of the brass knuckles.

Under Texas Rule of Evidence 403, otherwise relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex.R. Evid. 403. A Rule 403 analysis by the trial court should include, but is not limited to, the following considerations: (1) the probative value of the evidence; (2) the potential of the evidence to impress the jury in some irrational, indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent’s need for the evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex.Crim.App.2004). Although a trial court must still perform a balancing test to see if the same transaction contextual evidence’s probative value is substantially outweighed by its prejudicial effect, the prejudicial nature of contextual evidence rarely renders such evidence inadmissible, as long as it sets the stage for the jury’s comprehension of the whole criminal transaction. Swarb v. State, 125 S.W.3d 672, 681 (Tex.App.-Houston [1st Dist.] 2003, pet. dism’d).

We have already concluded that the State had a need to introduce the evidence of the brass knuckles as relevant to Appellant’s intent. Further, the State did not use an inordinate amount of trial time to introduce the evidence. Moreover, the record does not show that the evidence of the brass knuckles had the potential to impress the jury in some irrational, indelible way. Finally, any arguable prejudice suffered by Appellant by the introduction of the evidence does not rise to the level of substantially outweighing the evidence’s probative value in providing context for the charged offense. We hold that the trial court did not abuse its discretion by admitting the evidence concerning Appellant’s use or possession of the brass knuckles. We overrule Appellant’s second point.

VI. Limiting Instruction

In his third point, Appellant contends that the trial court egregiously erred by denying his requested rule 105 limiting instruction concerning the extraneous offense of twice assaulting Ms. Kurt. See Tex.R. Evid. 105. The State counters that Appellant failed to preserve error because the request for a limiting instruction was untimely. We agree with the State.

In Delgado v. State, the court of criminal appeals stated,

if a defendant does not request a limiting instruction under Rule 105 at the time that evidence is admitted, then the trial judge has no obligation to limit the use of that evidence later in the jury charge. This doctrine is a sensible one because otherwise a jury might sit through most of a trial under the mistaken belief that certain evidence is admissible for all purposes when, in fact, it is not. Once evidence has been admitted without a limiting instruction, it is part of the general evidence and may be used for all purposes. But even when a party properly requests a limiting instruction at the time the evidence is first offered, the trial judge need not give an instruction on the burden of proof at that time. Taking the cases together, then, a limiting instruction concerning the use of extraneous offense evidence should be requested, and given, in the guilt-stage jury charge only if the defendant requested a limiting instruction at the time the evidence was first admitted.

235 S.W.3d 244, 251 (Tex.Crim.App.2007) (emphasis added) (internal citations omitted).

Here, Appellant did not request a limiting instruction concerning Appellant’s assault of Ms. Kurt until the State had completed its direct examination of Randy. And it was during the State’s direct examination of Randy that he testified that Appellant hit Ms. Kurt twice in the convenience store parking lot. Thus, Randy’s testimony that Appellant twice hit Ms. Kurt had already been admitted as part of the general evidence and was usable for all purposes. See id. Appellant failed to request a limiting instruction at the time the evidence of the assault was first admitted, and therefore failed to preserve this point for appellate review. See id.; see also Prescott v. State, 123 S.W.3d 506, 515-16 (Tex.App.-San Antonio 2003, no pet.) (holding defendant who failed to request limiting instruction concerning use of extraneous offenses “at the moment the evidence [was] admitted” was not entitled to limiting instructions in jury charge). We overrule Appellant’s third point.

VII. Conclusion

Having overruled each of Appellant’s three points, we affirm the trial court’s judgments.

      . Appellant’s argument focuses on whether he took intentional action, but we note that the statute provides that it is an offense to "intentionally or knowingly threaten! ] another with imminent bodily injury.” Tex. Penal Code Ann. § 22.01(a)(2).

      . Because we hold that the evidence concerning the brass knuckles was admissible under rules 404(b) and 403 of the rules of evidence, we need not address whether the evidence was admissible under rules 401 and 402. See Tex.R.App. P. 47.1 (requiring appellate court to address "every issue raised and necessary to final disposition of the appeal”).


author: BOB McCOY, Justice.

text:
    In the Matter of T.L.K.
    No. 2-09-260-CV.
    Court of Appeals of Texas, Fort Worth.
    June 10, 2010.
    Williams & Williams and M. Paige Williams, Nocona, TX, for Appellant.
    Ronald G. Walker, Montague County Attorney, Montague, TX, for Appellee.
    PANEL: DAUPHINOT, WALKER, and McCOY, JJ.
   OPINION

BOB McCOY, Justice.

This is a juvenile case in which the State alleged that Appellant T.L.K., a fifteen-year-old minor, engaged in three counts of delinquent conduct. An adjudication hearing was held before a jury and T.L.K. was adjudged delinquent on two counts. T.L.K. appeals, arguing (1) insufficient evidence to support a finding of delinquency and (2) lack of jurisdiction. Because we find the juvenile court lacked jurisdiction, we vacate its judgment and dismiss the case.

In his second issue, T.L.K. attacks the jurisdiction of the juvenile court, claiming that the State’s petition is fatally defective for failure to state the “place” where his alleged delinquent conduct occurred. According to section 53.04 of the family code, a petition to adjudicate delinquency “must state[,] ... with reasonable particularity^] the time, place, and manner of the acts alleged and the penal law or standard of conduct allegedly violated by the acts.” Tex. Fam. Code. Ann. § 53.04(d)(1) (Vernon 2008).

Here, the State concedes that both its original and amended petitions fail to set forth with reasonable particularity the “place” where T.L.K.’s alleged delinquent conduct occurred. The State, however, asserts that even without this information, T.L.K. was afforded fair treatment and due process or, in the alternative, T.L.K. waived this issue because he failed to object, file a motion, or specially except to the alleged defect. We first determine whether T.L.K. preserved this issue for our review.

Juvenile delinquency proceedings are governed by title 3 of the family code, also known as the juvenile justice code. See id. §§ 51.01-61.107 (Vernon 2008); In re R.J.H., 79 S.W.3d 1, 6 (Tex.2002). Title 3 includes section 51.09, which states that:

Unless a contrary intent clearly appears elsewhere in this title, any right granted to a child by this title or by the constitution or laws of this state or the United States may be waived in proceedings under this title if:
(1) the waiver is made by the child and the attorney for the child;
(2) the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it;
(3) the waiver is voluntary; and
(4)the waiver is made in writing or in court proceedings that are recorded.

Id. § 51.09. Title 3 also includes section 53.04, which, as previously noted, provides a child with the right to fair notice of the charges he will be required to meet. Id. § 53.04(d)(1). Because the right to fair notice is a right given to a child by title 3, it is a right that can be waived only in the manner provided for in section 51.09. See R.A.M. v. State, 599 S.W.2d 841, 848 (Tex. Civ.App.-San Antonio 1980, no writ) (concluding juvenile had not waived his rights to fair notice under section 53.04 because section 51.09’s waiver requirements had not been satisfied); In re W.H.C., 580 S.W.2d 606, 608 (Tex.Civ.App.-Amarillo 1979, no writ) (concluding same); but see Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005) (stating that if an adult criminal defendant does not object to a defect, error, or irregularity of form or substance in an indictment before the date on which the trial commences, he waives the defect for purposes of review on appeal).

Here, the record does not reflect, and the State does not contend, that T.L.K. waived his right to fair notice in the manner provided for in section 51.09. Therefore, this issue is properly before us. Id. We next determine whether the State’s petition afforded T.L.K. fair notice — in other words, whether T.L.K. was afforded fair treatment and due process.

Although juvenile delinquency proceedings are civil in nature, the child is entitled to the essentials of due process and fair treatment because the proceedings may result in the child being deprived of liberty. In re J.R.R., 696 S.W.2d 382, 383 (Tex.1985) (per curiam). Accordingly, the United States Supreme Court has held that “[njotice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must ‘set forth the alleged misconduct with particularity.’ ” In re Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 1446, 18 L.Ed.2d 527 (1967). Likewise, Texas courts have recognized that due process requires that a juvenile be informed of the specific issues he is to meet. See Carrillo v. State, 480 S.W.2d 612, 615 (Tex.1972) (citing In re Gault, 387 U.S. at 33, 87 S.Ct. at 1446); In re B.P.H., 83 S.W.3d 400, 405 (Tex.App.-Fort Worth 2002, no pet.).

The Texas Legislature codified In re Gault in Texas Family Code section 53.04(d)(1). Lanes v. State, 767 S.W.2d 789, 794 (Tex.Crim.App.1989). Section 53.04, however, prescribes “statutory requirements calculated to afford the accused in a juvenile proceeding more than minimal constitutional protection.” In re H.S., Jr., 564 S.W.2d 446, 447 (Tex.Civ.App.-Amarillo 1978, no writ). These statutory requirements are mandatory. B.P.H., 83 S.W.3d at 405 (citing In re D.W.M., 562 S.W.2d 851, 853 (Tex.1978) (holding that the word “must,” as used in section 53.04, denotes mandatory statutory requirements)).

We conclude, therefore, that the State’s petition, which fails to set forth with reasonable particularity the “place” where T.L.K’s alleged delinquent conduct occurred, does not satisfy mandatory statutory requirements and is fatally defective. See H.S., Jr., 564 S.W.2d at 448 (concluding State’s petition was fatally defective when petition failed to allege with reasonable particularity the place where the alleged delinquent conduct occurred and declaring that when the “State prescribes requirements which do not contravene the U.S. Constitution, then the State must adhere to its requirements.”); see also W.H.C., 580 S.W.2d at 608 (holding State’s petition was fatally defective because it failed to allege essential elements of the offense). Consequently, the juvenile court lacked jurisdiction. Cf. In re D.W.M., 562 S.W.2d at 851-52 (declaring that juvenile court’s failure to comply with section 54.02(b)’s notice requirements in a discretionary transfer case deprived the juvenile court of jurisdiction to consider the transfer). Accordingly, we sustain T.L.K’s second issue. We vacate the judgment of the juvenile court and dismiss the case for lack of jurisdiction.

      . To the extent the State argues that testimony during trial established the "place” and therefore T.L.K. was afforded due process and fair treatment, we disagree. See H.S., Jr., 564 S.W.2d at 447-48 (concluding pétition and hearings did not afford appellant due process and fair treatment because petition did “not meet the mandatory requirements of the statute”).

      . Having sustained T.L.K.'s second issue, we need not address his first issue. See Tex. R. App. P. 47.1.