text:
    In the Interest of J.A.H. and Children.
    No. 08-07-00245-CV.
    Court of Appeals of Texas, El Paso.
    Nov. 18, 2009.

      Frederick Mandell, El Paso, TX, for Appellant.
    Jeffrey S. Alley, Windle, Hood, Alley, Norton, Brittain & Jay, LLP, El Paso, TX, for Appellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

This appeal stems from a motion to modify child support. M.S., the mother of the children, appeals the denial of her motion to increase support. For the reasons that follow, we affirm.

FACTUAL SUMMARY

The parents were divorced on July 7, 2004. With regard to the division of property, the decree required Father to pay Mother the sum of $580,000 in cash. He is also obligated to make monthly payments of $3,500 for ten years such that the total award to Mother amounts to $1,000,000. She also received a recent model Chevrolet Suburban. Father was awarded the marital home in west El Paso. The parties were appointed joint managing conservators of their two children with Mother having possession of the children sixteen days per month while Father has possession fourteen days per month. Under the terms of the decree, Father is obligated to pay $1,500 per month in child support. He also provides several additional benefits:

• health insurance for the children of $262 per month
• unreimbursed medical expenses for the children, averaging $222 per month
• $370 per month into the Texas Tomorrow Fund to finance the children’s college education
• all extracurricular expenses for the children such as football and cheerlead-ing uniforms and activity fees
• $11,000 per child per year to a trust for the children which will provide additional funds for the children’s college, a first home, or business startup capital

Father also transferred to the children an interest in his business and designated the children as the sole beneficiaries of his estate. All estate taxes will be paid through life insurance.

With the $580,000 cash payment, Mother bought a five bedroom home less than two miles from the marital residence. She was unemployed during the marriage and did not work for a period of time following divorce. She began working as a fund raiser with Court Appointed Special Advocates (CASA) in January 2005, earning $86,000 a year. As of September 2005, she began working as a school teacher for the El Paso Independent School District.

On January 14, 2006, Mother remarried. The couple bought a new home in Horizon City on the far east side of El Paso County the following June. Mother testified she purchased the home because the westside house was too small for the children, lacked a swimming pool, and was located in an unsafe neighborhood. She and her new husband had a child in February 2007.

After the divorce, Mother traded the Suburban for a Lincoln Aviator. She then traded the Aviator for a 2005 Ford Expedition. In June 2006, she purchased another Suburban with a DVD player, wireless headphones, XM satellite radio, and a navigation system.

In July 2006, Mother sought to increase child support based on unspecified material and substantial changes in the circumstances of the children and affected persons. The trial court denied the motion after an evidentiary hearing and this appeal follows.

SUFFICIENCY OF THE EVIDENCE

In her first two issues for review, Mother challenges the sufficiency of the evidence to support the trial court’s findings that the circumstances of the children have not materially or substantially changed since the date of divorce and that the needs of the children are being met.

Standard of Review

An order regarding child support will not be disturbed on appeal unless the complaining party can demonstrate a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). While an appellant may challenge the sufficiency of the evidence to support findings of fact, in most circumstances, that is not enough. We must engage in a two-pronged inquiry: (1) Did the trial court have sufficient information upon which to exercise its discretion, and (2) did the trial court err in its application of discretion? Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex.App.-El Paso 1998, no pet.). The traditional sufficiency inquiry applies to the first question. Id. Once we have determined whether sufficient evidence exists, we must then decide whether the trial court made a reasonable decision. In other words, we must conclude that the ruling was neither arbitrary nor unreasonable.

In considering a legal sufficiency or “no evidence” point, we consider the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005). Even if evidence is undisputed, it is the province of the trier of fact to draw from it whatever inferences it wishes so long as more than one inference is possible. Id. at 821. But if the evidence allows only one inference, neither the trier of fact nor the reviewing court may disregard it. Id. We are also mindful that the trier of fact is the sole judge of the credibility of the witnesses and the weight to give their testimony. Id. at 819. When there is conflicting evidence, it is the province of the trier of fact to resolve such conflicts. Id. at 820. In every circumstance in which a reasonable trier of fact could resolve conflicting evidence either way, the reviewing court must presume it did so in favor of the prevailing party, and disregard the conflicting evidence in its sufficiency review. Id. at 821. If the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then the trier of fact must be allowed to do so. Id. at 822. So long as the evidence falls within this zone of reasonable disagreement, we may not substitute our judgment for that of the trier-of-fact. Id. The ultimate test for legal sufficiency is whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. Id. at 827.

A factual sufficiency point requires examination of all of the evidence in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Worsham Steel Co. v. Arias, 831 S.W.2d 81 (Tex.App.-El Paso 1992, no writ). The reviewing court cannot substitute its conclusions for those of the jury. ' If there is sufficient competent evidence of probative force to support the finding, it must be sustained. Carrasco v. Goatcher, 623 S.W.2d 769 (Tex.App.-El Paso 1981, no writ). It is not within the province of this court to interfere with the jury’s resolution of conflicts in the evidence or to pass on the weight or credibility of the witness’s testimony. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951); Reynolds v. Kessler, 669 S.W.2d 801, 807 (Tex.App.-El Paso 1984, no writ). Where there is con flicting evidence, the jury’s verdict on such matters is generally regarded as conclusive. Clark v. National Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820, 821 (1947); Oechsner v. Ameritrust Texas, N.A., 840 S.W.2d 131, 136 (Tex.App.-El Paso 1992, writ denied). In a bench trial, findings of fact are the equivalent of a jury answer to the special issues. Lindsey, 965 S.W.2d at 591; Associated Telephone Directory Publishers, Inc. v. Five D’s Publishing Co., 849 S.W.2d 894, 897 (Tex.App.-Austin 1993, no writ).

The term “abuse of discretion” is not susceptible to rigid definition. Lindsey, 965 S.W.2d at 591; Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 934 (Tex.App.-Austin 1987, no writ). The test is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action, but whether the court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986), citing Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (Tex.Comm.App.-1939, opinion adopted). Stated differently, the appropriate inquiry is whether the ruling was arbitrary or unreasonable. Smithson v. Cessna Aircraft Company, 665 S.W.2d 439, 443 (Tex.1984); Landry v. Travelers Insurance Co., 458 S.W.2d 649, 651 (Tex.1970). The mere fact that a trial judge may decide a matter within her discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex.1965); Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 295 (1959).

Material or Substantial Change in Circumstances

To modify child support, the movant must demonstrate that there has been a material and substantial change in the circumstances of a child or a person affected by the prior order since the date the order was rendered. See Tex.Fam. Code Ann. § 156.401 (Vernon 2008); Lindsey, 965 S.W.2d at 593. The best interest of the child is always the trial court’s primary consideration in determining questions of child support. Carson v. Hathaway, 997 S.W.2d 760, 761 (Tex.App.-El Paso 1999, no pet.); Lindsey, 965 S.W.2d at 593. The court retains broad discretion in making the equitable decision of whether to modify a prior support order.

The Texas Family Code provides that “[a]n increase in the needs, standard of living, or lifestyle of the obligee since the rendition of the existing order does not warrant an increase in the obligor’s child support obligation.” Tex.Fam.Code Ann. § 156.405. Yet "virtually all of the evidence Mother presented reflects a change in her circumstances rather than a change in the children’s circumstances. She testified that over a fifteen month period from the date of the divorce, the living expenses for herself and the children increased from $6,500 a month to $12,000 a month. Part of this increase is due to the larger, more expensive home she purchased in far east El Paso. After the divorce, Mother spent $250,000 of the $580,000 cash settlement on a five-bedroom home which she owned outright. She sold it for $259,000 and used the proceeds as a down payment to purchase a house in Horizon City that was almost twice as expensive. When questioned about the purchase, Mother explained that the westside house was not large enough to accommodate her new family. Admittedly, the new house is considerably closer to her husband’s farms in Hudspeth County. On this record, we conclude that the purchase of the house was a change in lifestyle and not a material or substantial change in the circumstances of the children. It was an upgrade intended to better suit Mother’s new marriage and expanding family. She does not cite, nor have we found, any authority for the proposition that a subsequent marriage or an additional child constitutes a material or substantial change in circumstances warranting an increase in support. And although Mother testified that her monthly expenses have increased by $5,500, the only changes in her expense report relate to mortgage, utility, and car payments. The evidence is both legally and factually sufficient to support the trial court’s findings that any changes in Mother’s circumstances related to her lifestyle. Because there was no abuse of discretion, we overrule Issue One.

Proven Needs of the Children

Mother next challenges the trial court’s determination that both parents have sufficient financial resources available to support the children and that there is no justification for an increase in support because the needs of the children are already being met. A court may order additional child support depending on the income of the parties and the proven needs of the children. Tex.Fam.Code Ann. § 154.126. An award of support in excess of the statutory guidelines must be based on the unmet needs of the children. Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 (Tex.1993). The needs of a child are not limited to “the bare necessities of life.” Id. at 417 n. 3; Thomas v. Thomas, 895 S.W.2d 895, 896 (Tex.App.-Waco 1995, writ denied). Rather, it is an ambiguous term which has never been defined by the Code, and consequentially has been left for the courts to determine in their discretion on a case-by-case basis. Scott v. Younts, 926 S.W.2d 415, 420 (Tex.App.-Corpus Christi 1996, writ denied).

Mother introduced her credit card statements from December 2005 through May 2007 to determine the average monthly expenditures for the children. For clothing, entertainment, and travel, she spends $1,824 per month. For groceries and supplies, she spends $656. She spends $299 per month on restaurants and ■withdraws $200 in petty cash each week. She attributes two-thirds of the $3,000 house payment ($2,000) and two-thirds of the nearly $780 car payment ($514.80) to the children. She also calculates $514 for their share of utilities. From this and other evidence, she concludes that the children’s monthly needs total $6,422.80.

During the hearing, Father questioned whether these expenditures were really necessary to meet the needs of the children. For example, her expense report includes a $100 purchase for Estee Lauder sun tan lotion and the purchase of a digital camera as a school supply. It reflects outings to Cattleman’s steakhouse where Mother purportedly spent $175 for the children’s food. She essentially spends $114 per day on the children for clothing, entertainment, and travel.

The accuracy and credibility of Mother’s testimony were also an issue. For example, a charge at Target that she attributed to the older children was actually a purchase of infant formula. Three restaurant charges attributed to the children occurred on dates the children were with their father. Mother also testified that she was the only one to use the Visa card, but her husband’s signature appeared on an invoice. Finally, she testified that her take home pay was $2,200 per month while her bank records reflect deposits of $2,590 per month. We conclude the evidence was both legally and factually sufficient to support the trial court’s determination that the needs of the children are already being met. Because the trial court did not abuse her discretion, we overrule Issue Two.

FAILURE TO MAKE FINDINGS

In her third issue, Mother complains of the trial court’s failure to make specific findings as to the proven needs of the children. Father responds that a court is required to make the findings only when “rendering an order of child support.” Tex.Fam.Code Ann. § 154.130. We agree. By its terms, the statute requires the trial court to provide findings upon request in contested hearings in which “the amount of the support is set or modified by the court.” Gaxiola v. Garcia, 169 S.W.3d 426, 430 (Tex.App.-El Paso 2005, no pet.). The statute does not require findings on the proven needs of the child when a motion to modify is denied. Consequently, we perceive no abuse of discretion. We overrule Issue Three.

CONSIDERATION OF ACCESS AND POSSESSION SCHEDULE

Finally, Mother argues that the trial court abused its discretion in considering the visitation schedule of the children. She directs us to Scott v. Younts, 926 S.W.2d 415, 420 (Tex.App.-Corpus Christi 1996, writ denied) in support of the proposition that possession schedules are irrelevant to departures from the child support guidelines. In Scott, the court held that it was error for the trial court to consider times of possession since the statute only allows a trial court to consider the proven needs of the child and the income of the parties. Id. Ultimately, the court found that there were other sufficient grounds for the trial court’s order such that any error was harmless. Id. at 422. We conclude that Scott is inapplicable here.

It is clear from her findings that the trial court believed Father and discredited Mother’s testimony. This was in large part attributable to Father’s meticulous record-keeping concerning his own expenditures for the children. He has custody of the children fourteen days out of every month during which he provides all of the children’s clothing, groceries, entertainment, dining out, vacations, gifts, and school supplies. He calculated these expenses at $1,087 per month. To support his calculations, he introduced into evidence five volumes of credit card and bank statements. While the relatively equal division of possession may not be relevant to the support issue, the discrepancy in the monies Mother purports to spend in comparison to the monies Father purports to spend over the same time period is relevant to witness credibility. Because we find no abuse of discretion, we overrule Issue Four. Having overruled all issues for review, we affirm the judgment of the trial court.

      . At the parties’ request, we refer to both the parties and the children by their initials.


source: Caselaw Access Project

author: ANN CRAWFORD McCLURE, Justice.

license: Public Domain

text:
    In the Interest of B.A.W., a Child.
    No. 08-07-00204-CV.
    Court of Appeals of Texas, El Paso.
    Nov. 24, 2009.

      Karen S. Guerra, The Guerra Law Firm, Carrollton, TX, for Appellant.
    Scott E. Kurth, Red Oak, TX, for Appel-lee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

This is an appeal from a second modification order in a high-conflict suit affecting the parent child relationship. LaDonna Turner brings issues for review in which she complains of the orders for exchange of the child, the geographic restriction, the denial of her request for retroactive child support or reimbursement for educational expenses, and the denial of her request for attorneys’ fees.

PRELUDE

Trial courts are vested with broad discretion in suits affecting the parent child relationship for one very important reason. Parents get divorced. They are often angry, bitter, vengeful, and hostile toward one another. Sometimes they act in their own best interest rather than in the best interest of their child. The child may become a ping pong ball in a game of which parent can hurt the other more, even if the child gets hurt in the process. The trial court has the ability to gauge parental behavior and absorb the subtle nuances of righteous indignation played out in the judicial spotlight. That judge has the ability to see the fire in the eyes, hear the anger in the voice, and feel the sincerity in the heart. We do not have that luxury. We cannot tell from a cold page the heat of battle these parents have waged, nor can we say that one is more at fault than the other. The trial court here was faced with crafting solutions for a little boy whose parents cannot or will not get along. The judge clearly tried to reduce the tension at the times of transfer and rightfully so. She also tried to equalize the burden of transportation across the north Texas me-troplex. We must determine whether the model she developed constitutes an abuse of discretion. The short answer is, “No.” For the reasons that follow, we affirm.

FACTUAL BACKGROUND

B.A.W. was born to LaDonna Turner and Donald Walker in July 1995 and the family lived in Ovilla, Ellis County, Texas. The record does not indicate the date of separation or divorce. The parties were appointed joint managing conservators with Turner having the right to establish the residence of the child. At some point, Turner moved to Carrollton in Denton County and remarried. Walker has continued to live in Ellis County.

Although the record does not indicate the date of filing or all of the relief requested, Walker filed a motion to modify. By order dated August 22, 2005, he was granted the exclusive right to make educational decisions for B.A.W. “limited to First Baptist Academy, Dallas, Texas.” Turner was granted the exclusive right to determine the primary residence of the child within Dallas County and contiguous counties. The court also entered a judgment against Walker for child support ar-rearages and for unreimbursed health care expenses, but terminated his obligation to pay further child support. In lieu thereof, Walker was ordered to pay “[a]ll tuition, fees, uniform costs, registration fees, lunches, sports fees and other costs associated with the child’s attendance at First Baptist Academy located at 1704 Patterson Street, Dallas, Texas 75201.”

B.A.W. was never enrolled in First Baptist Academy. Walker alleged that Turner failed to cooperate with the enrollment process by refusing to participate in a mandatory family interview required for admission. He tried eight or ten times to resolve the impasse, but by October 2005, it became impractical to transfer the child for the 2005-2006 school year. He intended to enroll the child for the 2006-2007 school term.

Turner recollected differently:
Q: And in truth and in fact, ma’am, you never did get on board with the transfer of this child from Carroll-ton to First Baptist Academy, correct?
A: That’s incorrect.
Q: Did you go to the family meeting?
A: There was not one that I was aware of.
Q: Isn’t it true that Don Walker tried to set up a family conference with you and you did not respond to him?
A: No, it’s not true.
Q: Okay. And you knew that that family conference was a requirement in order for him to go to First Baptist Academy?
A: I knew it was a requirement, yes.
Q: Okay. And you were also ordered to cooperate with that transfer of the child from Carrollton to First Baptist Academy, correct?
A: Yes.

Interestingly enough, Turner had sought counselling from Dr. Linda Threats, a marriage and family therapist and forensic witness. According to her records, Dr. Threats was retained by Turner on September 1, 2005, nine days after the modification order was signed. Turner wanted an assessment of the child because he was “just feeling overwhelmed by the situation that was going on between — about his school and the issue between his mother and his father surrounding his education.” Dr. Threats’ notes from that first session indicate that Turner has “strong disagreement over school preference” and “plans to appeal ruling.” Turner admitted making the statement. The session notes from April 24, 2006 reflect that there has been “no resolution to school issue” and that “Mom making plans to return to court.” Indeed she did.

On June 9, 2006, Turner filed suit to modify the 2005 order, seeking (1) the right to make educational decisions for the child; (2) prospective and retroactive child support; (3) enforcement of the prior judgment for child support and healthcare expenses; (4) reimbursement of healthcare expenses; and (5) attorney’s fees. Walker filed a counter-petition seeking modification of the geographic residence restriction, the possession schedule, and the terms for transfer of the child.

The final hearing was held on December 5, 2006 and the order was signed on March 29, 2007. The order (1) granted Turner the right to make the educational decisions for the child; (2) ordered Walker to pay child support; (3) denied Turner’s request for reimbursement of expenses or retroactive support; (4) modified the geographic residence restriction; (5) modified the terms for transfer of the child for periods of possession; (6) denied Walker’s request to change the visitation schedule; and (7) denied attorneys’ fees.

STANDARDS OF REVIEW

A “no evidence” or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact finding. Serrano v. Union Planters Bank, N.A., 162 S.W.3d 576, 579 (Tex.App.-El Paso 2004, pet. denied). There are two separate “no evidence” claims. Id. When the party having the burden of proof suffers an unfavorable finding, the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was established as “a matter of law.” Id. When the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of “no evidence to support the finding.” Id.; In re Estate of Livingston, 999 S.W.2d 874, 879 (Tex.App.-El Paso 1999, no pet.).

An appellate court -will sustain a legal sufficiency or “no-evidence” challenge if the record shows: (1) the complete absence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005); El Paso Independent School District v. Pabon, 214 S.W.3d 37, 41 (Tex.App.-El Paso 2006, no pet.). In conducting our review, we consider the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. City of Keller, 168 S.W.3d at 822. Even if evidence is undisputed, it is the province of the trier of fact to draw from it whatever inferences it wishes so long as more than one inference is possible. Id. at 821. But if the evidence allows only one inference, neither the trier of fact nor the reviewing court may disregard it. Id. We are also mindful that the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Id. at 819. When there is conflicting evidence, it is the province of the trier of fact to resolve such conflicts. Id. at 820. In every circumstance in which a reasonable trier of fact could resolve conflicting evidence either way, the reviewing court must presume it did so in favor of the prevailing party, and disregard the conflicting evidence in its sufficiency review. Id. at 821. If the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then the trier of fact must be allowed to do so. Id. at 822. So long as the evidence falls within this zone of reasonable disagreement, we may not substitute our judgment for that of the trier-of-fact. Id. The ultimate test for legal sufficiency is whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. Id. at 827.

In reviewing a challenge to the factual sufficiency of the evidence supporting a vital fact, we must consider, weigh, and examine all of the evidence in the record, both supporting and against the finding, to decide whether the verdict should be set aside. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). When a party attacks the factual sufficiency of an adverse finding on an issue on which the opposing party has the burden of proof, we should set aside the verdict only if the evidence supporting the jury finding is so weak as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). We are not permitted to substitute our judgment for that of the jury. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761-62 (Tex.2003). Further, we bear in mind that the factfinder is the sole judge of the credibility of witnesses and the weight to be given to their testimony. Id.

Most orders arising from a suit affecting the parent/child relationship will not be disturbed on appeal unless the complaining party can demonstrate a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); Hodson v. Keiser, 81 S.W.3d 363, 367 (Tex.App.-El Paso 2002, no pet.). We engage in a two-pronged inquiry: (1) Did the trial court have sufficient information upon which to exercise its discretion, and (2) did the trial court err in its application of discretion? Hodson, 81 S.W.3d at 367; Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex.App.-El Paso 1998, no pet.). The traditional sufficiency inquiry applies to the first question. Id. Once we have determined whether sufficient evidence exists, we must then decide whether the trial court made a reasonable decision. In other words, we must conclude that the ruling was neither arbitrary nor unreasonable. Hodson, 81 S.W.3d at 367.

The term “abuse of discretion” is not susceptible to rigid definition. Hod-son, 81 S.W.3d at 368; Lindsey, 965 S.W.2d at 591; London v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 934 (Tex.App.-Austin 1987, no writ). The test for an abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action, but whether the court acted without reference to any guiding rules and principles. Hodson, 81 S.W.3d at 368; Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986), citing Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (Tex.Com.App.1939, opinion adopted). Stated differently, the appropriate inquiry is whether the ruling was arbitrary or unreasonable. Hodson, 81 S.W.3d at 368; Smithson v. Cessna Aircraft Company, 665 S.W.2d 439, 443 (Tex.1984); Landry v. Travelers Insurance Co., 458 S.W.2d 649, 651 (Tex.1970). The mere fact that a trial judge may decide a matter within her discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex.1965); Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 295 (1959). An abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court’s decision. See In the Interest of Gonzalez, 993 S.W.2d 147, 155 (Tex.App.-San Antonio 1999, no pet.); D.R. v. J.A.R., 894 S.W.2d 91, 95 (Tex.App.-Fort Worth 1995, writ denied).

EXCHANGE OF POSSESSION

In her first issue for review, Turner complains that the terms of the order relating to the exchange of possession is unworkable and is not in the child’s best interest. Within this framework, she develops three subtopics. First, she contends that the evidence is legally and factually insufficient to support the trial court’s finding that the mutual work location of the parties is appropriate for the exchange of possession of the child. Second, she challenges the factual sufficiency of the evidence to support the court’s finding that her work schedule is flexible enough that she can bear a portion of the transportation burden. Third, she challenges the legal and factual sufficiency of the evidence to support the trial court’s finding that the designated times of the exchange of possession are in the child’s best interest.

Is the Work Location Appropriate for the Exchange of Possession?

The trial court issued the following findings of fact and conclusions of law relevant to this complaint:

• Both Turner and Walker are employed by the Environmental Protection Agency (EPA);
• Because they physically work in the same office building at 1445 Ross Avenue in downtown Dallas, their mutual work location is a logical place to exchange possession of the child.
• Both parties are able to adjust their respective work schedules to enable them to transport the child to and from the EPA building at the beginning and end of each period of court-ordered possession.
• The best interest of the child is served by requiring that the parties exchange possession at the corner of Ross and Field Streets outside EPA’s offices.

In her first subtopic, Turner argues that a downtown street corner is an inappropriate place for the transfer to occur. She claims the location is unsafe because it is at the intersection of two busy streets where there is no parking. She suggested alternative locations, including the El Fé-nix Restaurant located nearby. Walker counters that the parties cannot and do not communicate with each other. Thus, the common workplace is ideal for the exchange because it reduces the interaction between them and equalizes the burden of transportation. During the marriage, the couple lived in Ellis County. After the divorce, Turner moved to Denton County, which increased the transportation burden on Walker. By virtue of the prior modification order, Walker was allowed to designate the child’s school. He selected a private academy just a few minutes from the office. Depending upon which parent had possession at the time, Mom or Dad— or even a grandparent — could easily pick the child up from school and head directly home. But Turner failed to cooperate and sought out a forensic therapist. Walker testified that his son was originally “on board” with changing schools but that he had a change of heart. Instead of forcing the issue, Walker met with his former wife several times to try to resolve the issue. He first decided to postpone the move until mid-year, but when the boy resisted,

Walker decided to wait until the next year. He believed the child was being pressured by Turner concerning the school issue. While he could have enforced the court order, he opted not to “[bjecause he told me if I made the change, he would never forgive me.”

As a result of her motion to modify, Turner was successful in regaining the right to direct the child’s education and she clearly manifested her intent to keep him at Carrollton Christian Academy. She is unhappy, however, because the trial court did not order Walker to pick up and deliver the child in Carrollton.

It was well within the trial court’s discretion to choose the office location rather than either party’s residence. Tension and animosity suggest that a neutral exchange site is in the child’s best interest. Fairness justifies a division of transportation duties. Because the court’s findings are supported by sufficient evidence, we perceive no abuse of discretion.

Is Turner’s Schedule Adjustable?

In the second subtopic, Turner contends that the evidence is factually insufficient to support the trial court’s finding that she is able to adjust her work schedule to accommodate transporting the child at the times set forth in the order. She is required to surrender the child at the beginning of each period of possession at the corner of Ross and Field Streets. Walker is required to return the child to the same location. Here are the specifics of the order:

Except as otherwise explicitly provided in this Possession Order, when DONALD WALKER resides 100 miles or less from the primary residence of the child, DONALD WALKER shall have the right to possession of the child as follows:
1. Weekends — On weekends, beginning at the time the child’s school is regularly dismissed, on the first, third, and fifth Friday of each month and ending at 7:30 a.m. on the day the child’s school resumes after the weekend. The child shall be surrendered at the EPA office in Dallas.
2. Weekend Possession Extended by a Holiday — Except as otherwise explicitly provided in this Possession Order, if a weekend period of possession by DONALD WALKER begins on a Friday that is a school holiday during the regular school term or a federal, state, or local holiday during the summer months when school is not in session, or if the period ends on or is immediately followed by a Monday that is such a holiday, that weekend period of possession shall begin at the time the child’s school is regularly dismissed on the Thursday immediately preceding the Friday holiday or school holiday or end at 7:30 a.m. on the day that the child’s school resumes after the school holiday, as applicable. The child shall be surrendered at the EPA office in Dallas.
3. Thursdays — On Thursday of each week during the regular school term, beginning at 3:45 p.m. and ending at 8:00 p.m. on Thursday. The child shall be surrendered at the EPA office in Dallas.”

Turner argues that although there is some evidence that she has the flexibility to start her workday early if she wants to leave early, the flexibility of her government job has limits. On direct examination, Turner testified:

Q: And what are your work hours, typically?
A: (Turner) They vary. I’m on a flexible schedule. I generally get there around 8:45 and work till about 5:15, just depending on the days of the week.
Q: And then when do you cease work at the end of the day?
A: Around 5:15, approximately.
Q: What days of the week do you normally work?
A. Monday, Tuesday, Wednesday. I work at home Thursday, and I’m in the office Friday.

Turner argues she must work a full day and she is not allowed to accumulate more than two hours of compensatory time. She claims the order will often require her to use accrued vacation. She offered no testimony to that fact at trial. And of course, the trial court was free to infer that Walker suffered from the same employment restrictions.

It is for the fact finder to determine the weight to be given to the testimony and to resolve any conflicts in the evidence. See Carrasco v. Goatcher, 623 S.W.2d 769, 772 (Tex.App.-El Paso 1981, no writ). Turner does not direct us to any testimony in the record, that her “flexible schedule” will not allow her to participate in the transportation of the child. Because the evidence is factually sufficient to support the trial court’s findings, we perceive no abuse of discretion.

Are the Times of Exchange Appropriate?

In her third subtopic, Turner complains of the sufficiency of the evidence to support the trial court’s finding that the best interest of the child will be served by requiring an exchange of possession at the times set forth in the order. Specifically, she objects to an exchange at 3:45 p.m. on Thursday afternoons, 8 p.m. on Thursday evenings, after school is dismissed on Friday afternoons, and at 7:30 a.m. on Monday mornings.

The child attends Carrollton Christian Academy located on the north side of Car-rollton in Denton County. Classes are in session from 8:05 a.m. until 3:10 p.m. each day. The order requires Turner to deliver the child to Walker at 3:45 p.m. every Thursday during the school year and at the time school is regularly dismissed on the first, third, and fifth Fridays of the month. The order also requires Turner to pick the child up at 7:30 a.m. on Monday mornings after weekend visitation so that she can take him to school. She claims that on these occasions, she has no more than 35 minutes to get the child through rush hour traffic in both Denton County and Dallas County. In fact, she will need to pull the child out of school early in order to have him at the EPA building by the time school is dismissed.

Walker responds that Turner is only being asked to provide the same transportation that she imposed upon him under the prior order. He argues that regardless of who does the driving, the distance travelled by the child to the exchange point is the same. The first leg of the transportation is either from Carrollton Christian Academy or from Turner’s residence nearby. The second leg of travel for the child is with the Walker from the EPA to his home in Ellis County. Walker points out that Turner moved away from Ellis County to Denton County, increasing the transportation burden. Until the entry of the order, Walker drove to Carroll-ton in heavy traffic to pick up the child at the beginning of each period of possession.

Generally speaking, the 3:45 p.m. exchange on Thursdays will not be a problem. Clearly, traffic will be worse on some days than others. Nor is it particularly onerous on Turner as she works at home on those days. She is, no doubt, aggravated about having to return at 8 p.m. to pick up her son. But the trial court could well have found her attitude about Thursday visitations to be telling. She wanted Walker to pick up the child in Carrollton and simply visit there. She was opposed to Thursday overnight visits. As for Friday transfers, logic dictates the concept of the order is that the child will be picked up at school and immediately driven to the EPA building. It is doubtful that the court intended that the child be withdrawn from classes early. Rather, it is likely that the terminology was a simple carry forward from the prior order when Walker would be picking up the child. Finally, we turn to Monday morning delivery. At least since the time of the prior order, Walker has been driving the 38 miles from his home to Carrollton. He will now drive to work, only 23 miles away. A simple view of a map indicates that a direct route from Ovilla to Carrollton, and vice-versa, goes straight through Dallas. While Dallas is not exactly half way, it’s pretty close.

Relocation always complicates visitation post-divorce. The standard possession order recognizes that fact by drawing a 100-mile line in the sand. While these parents live within the statutory parameters, some cooperation will be necessary. It has not been forthcoming in the past. The trial court cannot be faulted for trying an innovative approach. Is it perfect? No, but we would be hard pressed to conclude that she has abused her discretion. We overrule Issue One in its entirety.

GEOGRAPHIC RESTRICTION

In her second issue for review, Turner complains that the trial court abused its discretion in modifying the geographic restriction for the child’s residence. As with her first issue, she raises three subtopics. First, she challenges the sufficiency of the evidence to support the trial court’s finding that it is not in the child’s best interest to include Ellis County as part of the geographic area within which Turner may establish primary residence. Similarly, her second subtopic challenges the sufficiency of the evidence to support the trial court’s finding that the best interest of the child will be served by restricting primary residence to Denton County and contiguous counties. Third, she attacks the trial court’s implied finding that there has been a material change of circumstance that would entitle Walker to a modification of the geographic restriction. We will discuss the subpoints together as they are inherently interrelated.

The prior order included a geographic restriction to Dallas and contiguous counties (i.e. Dallas, Denton, Rockwall, Ellis, Collin, Tarrant, and Kaufman counties). The order at issue here changes the geographic restriction to Denton County and contiguous counties. The difference is significant. Ellis County is contiguous to Dallas County but it is not contiguous to Denton County.

Depending on whom the trial court believed, a fair reading of the record indicates that Turner had suggested Walker move to Denton County and that he had considered it. But he rejected the idea because he thought Turner would then turn around and move back to Ellis County where her parents reside. In his view, this would simply flip-flop the transportation issues. Given the parties’ hostility and inability to communicate, he believed his fear was well-founded.

Turner argues on appeal that Walker never had any intention of moving to Car-rollton. He continues to reside in the parties’ prior marital residence and has never attempted to sell the home. She claims it would make more sense to allow her to move back to Ovilla to reduce the transportation time. The record is devoid of evidence that Turner plans such a move, that her current husband supports such a move, or that they have investigated the sale of their Carrollton home. Walker considered her argument a ploy and he suggests the new order ensures that Turner cannot frustrate Walker’s desire to have a close relationship with his son by moving back to Ellis County once Walker moves to Denton County. He reminds us that Turner’s opposition to First Baptist Academy justifies his fear that Turner’s goal is to frustrate his efforts to be in close proximity to his son.

The trial court as the factfinder chose to believe Walker and the record supports her concerns. She was well within her discretion to consider Turner’s track record of cooperation, or lack thereof. She could have believed Walker’s testimony that the child was agreeable to First Baptist Academy until his mother began to pressure him. Her dislike of the prior order is evident from Dr. Threat’s notes that she was planning an appeal; that she sought forensic assistance within ten days of the prior order; that she wholly failed to cooperate with Walker’s effort to enroll the child; and that while she was able to forestall it for one school year, she was planning this modification all along. The court could also consider Turner’s testimony that Walker should provide all of the transportation, with the exception of Sunday night — which is no longer an issue since Walker will keep the child until Monday morning. From this evidence, the trial court could properly infer that Turner may well intend the scheme that Walker envisioned. And it most certainly constitutes legally and factually sufficient evidence to support the trial court’s finding that there had been a material and substantial change in circumstances since the prior order. We overrule Issue Two in its entirety.

CHILD SUPPORT AND REIMBURSEMENT

In Issue Three, Turner complains that the trial court erred by refusing her request for retroactive child support or reimbursement for educational expenses incurred for the child. As we noted in our factual summary, the prior order required Walker to pay all of the educational expenses at First Baptist Academy in lieu of child support. The child was not enrolled, so Walker did not pay those expenses, nor did he pay the expenses incurred in connection with the child’s attendance at Car-rollton Christian Academy. In denying her request, the trial court specifically found that Turner presented no evidence concerning the educational expenses she had incurred.

Our review of the record reveals the following testimony:

Q. All right. Have you been paid, so far as you know, all the support due under the Temporary Orders?
A. (Turner) As far as I know, yes, I have.
Q. Did you receive any assistance from Mr. Walker for tuition and fees at CCA for 05/06?
A. No, I did not.
Q. Did you ask?
A. Yes, I did.
Q. Did you receive any financial assistance from him that he gave you voluntarily before you filed your lawsuit?
A. No.
Q. Did you ask?
A. Yes, I did.
Q. Are you asking the Court to consider some form of lump sum back child support?
A. Yes.

Turner stated neither an amount of money nor a period of time to which the lump sum award should relate. She also failed to offer any evidence on the educational reimbursement issue, such as the tuition she paid or expenses she incurred for fees and uniforms. We overrule Issue Three.

ATTORNEY’S FEES

In her fourth and final issue, Turner argues that the trial court abused its discretion by refusing to grant attorney’s fees with regard to her motion for enforcement of child support. The motion was filed as a component of her motion to modify and the hearing was conducted at the same time temporary orders were granted. She contends that she established her entitlement as a matter of law, which is a legal sufficiency claim. Serrano, 162 S.W.3d at 579 (when the party having the burden of proof suffers an unfavorable finding, the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was established as “a matter of law”).

If a court finds that a respondent has failed to make child support payments, the court shall order the respondent to pay the movant’s reasonable attorney’s fees and all court costs in addition to the arrearages. Tex.Fam.Code Ann. § 157.167 (Vernon 2008). Fees and costs ordered under this subsection may be enforced by any means available for the enforcement of child support, including contempt.

Turner argues she proved that Walker had been ordered to make payments under the prior orders of the court, and that those payments had not been made. Walker paid certain arrearages just prior to the hearing. In denying her motion, the trial court specifically found a fatal variation between the pleadings and the proof. Because she does not challenge that finding on appeal, we accept as true that the pleadings concerning the dates and amount of arrearages did not comport with the evidence. Consequently, we find no abuse its discretion. Since she failed to prove her entitlement to recovery, she did not prove an entitlement to fees as a matter of law. We overrule Issue Four and affirm the judgment of the trial court.

      . Walker believed the school was an ideal choice because it is located in downtown Dallas, a short five-minute walk of the office building where both parties are employed.

      . Walker testified that one of the child's grandmothers works at EPA as well.

      . At trial, Turner indicated her preference that Walker pick up and return the child to her in Carrollton, although she was willing to provide transportation from Walker's home to hers on Sunday evening following his weekend periods of possession. She did not suggest El Fénix until the hearing on her motion for new trial.

      . Distances available at www.mapquest.com. Ovilla to Carrollton is roughly 38 miles, which Mapquest estimates at 46 minutes. It is 23 miles from Ovilla to the EPA building, which involves a 29-minute drive. The EPA building is 17 miles from Carrollton with an estimated 22-minute drive-time.


author: FELIPE REYNA, Justice.

text:
    Trent ARCHIE, Appellant, v. The STATE of Texas, Appellee.
    No. 10-07-00135-CR.
    Court of Appeals of Texas, Waco.
    Dec. 16, 2009.
    Rehearing Overruled Jan. 19, 2010.

      Lanny D. Ray, Cantrell Ray Maltsber-ger & Barcus LLP, Huntsville, for Appellant.
    David P. Weeks, Walker County Crim. Dist. Atty., Huntsville, for Appellee.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   OPINION

FELIPE REYNA, Justice.

A jury convicted Trent Archie of murder. The trial court sentenced him to forty years in prison. On appeal, he challenges: (1) the denial of his motion for mistrial; (2) the admission of testimony and evidence from a jailhouse informant; and (3) the legal and factual sufficiency of the evidence. We reverse and remand.

LEGAL SUFFICIENCY

In issue three, Archie challenges the legal sufficiency of the evidence to support his conviction.

Under legal sufficiency review, we determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). We do not resolve any conflict of fact or assign credibility to the witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999); see also Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App.1991). Inconsistencies in the evidence are resolved in favor of the verdict. Curry, 30 S.W.3d at 406; Matson, 819 S.W.2d at 843.

Dixie Dean Willis, Jr., Archie’s co-defendant, testified that Archie wanted to steal drugs and money from the victim, Anthony Williams. Willis testified that Archie was in possession of a .12-gauge shotgun and planned to distract Williams while Willis went inside to take the items. Archie promised to shoot Williams if he “gets tripping.” Archie led the way to Williams’s home. Willis walked to the back of the house. He suddenly heard a gunshot. He began running and Archie followed.

A few days later, Officer Jason Moore attempted to initiate a traffic stop of a maroon Buick. The driver fled on foot. The vehicle belonged to Archie’s girlfriend. Jessica James testified that she overheard Archie tell a group of men that he “just canceled a guy in Huntsville through a window” because “he was moving in on my turf.” Willis’s girlfriend testified that he had confessed that he and Archie killed someone. She and her roommate had found the shotgun hidden in a closet in their home. Per Archie’s instructions, Willis buried the shotgun.

Viewing the evidence in the light most favorable to the verdict, we conclude that the jury could have found, beyond a reasonable doubt, that Archie committed the offense of murder. See Curry, 30 S.W.3d at 406; see also Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2789. The evidence is legally sufficient to support Archie’s conviction.

COMMENT ON FAILURE TO TESTIFY

In issue one, Archie contends that the trial court abused its discretion by denying his motion for mistrial after the District Attorney commented on his failure to testify.

During closing arguments at the guilt/innocence phase of trial, the District Attorney reminded the jury about a note in which Archie stated that he heard Williams’s girlfriend scream on the night of the offense.

DISTRICT ATTORNEY: But the only person who heard her scream, the only person who said she screamed was Trent Archie ... Do you still hear it Trent? Do you still hear her screaming? How do you know she screamed?
DEFENSE COUNSEL: Your Honor, I object. I have to move for a mistrial.
DISTRICT ATTORNEY: Because you were there that night.
TRIAL COURT: Approach the bench.
DEFENSE COUNSEL: Judge, I move for a mistrial. It’s an improper jury argument.
TRIAL COURT: Sustained.
DEFENSE COUNSEL: I’m going to ask that you — in front of the jury, instruct Mr. Weeks to not ever — to refrain from ever—
TRIAL COURT: You can’t ask him questions.
DISTRICT ATTORNEY: I didn’t. I’m making argument.
TRIAL COURT: You can’t do that.
DISTRICT ATTORNEY: Judge, I’ve done it before.

The trial court sustained the objection and ordered the jury to disregard the argument, but denied Archie’s motion for mistrial. The trial court further instructed the District Attorney not to engage in the argument again.

At a hearing on Archie’s motion for new trial, defense counsel testified that, when making the complained of argument, the prosecutor turned towards the defense table, pointed, stepped towards Archie, and raised his voice. The district attorney has never challenged the accuracy of this testimony or the description of the events that occurred at trial.

Improper Comment on Archie’s Failure to Testify

“A comment on an accused’s failure to testify violates the accused’s state and federal constitutional privileges against self-incrimination.” Smith v. State, 65 S.W.3d 332, 339 (Tex.App.-Waco 2001, no pet.). A comment on a defendant’s failure to testify arises where “the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant’s failure to testify.” Cruz v. State, 225 S.W.3d 546, 548 (Tex.Crim.App.2007).

The State argues that the prosecutor’s argument was merely a rhetorical question intended to respond to Archie’s attempts to distance himself from the offense and discredit Willis. We disagree.

Even a rhetorical question can become a comment on a failure to testify when coupled with the lack of an explanation. See Wolfe v. State, 917 S.W.2d 270, 280 (Tex.Crim.App.1996). In Bird v. State, 527 S.W.2d 891 (Tex.Crim.App.1975), during closing arguments at the guilt stage of trial, the prosecutor looked at Bird and said, “Jerry Joe Bird is a machinist and well capable of manufacturing such a thing [a gun silencer]. And if he didn’t manufacture it, where did you get it.” Bird, 527 S.W.2d at 893. In Hicks v. State, 525 S.W.2d 177 (Tex.Crim.App.1975), the prosecutor stood behind Hicks, raised his voice, looked at Hicks, and said, “But there is somebody that we haven’t heard from in this case. And I think you all know who it is.” Hicks, 525 S.W.2d at 178-79. In both cases, the prosecutor’s argument, combined with physical actions, “was of such a character that the jury would naturally and necessarily take it to be a comment on the appellant’s failure to testify.” Bird, 527 S.W.2d at 894-95; see Hicks, 525 S.W.2d at 180.

We conclude that the District Attorney’s argument in this case, coupled with his physical actions, was of “such a character that the jury would naturally and necessarily take it to be a comment on [Archie’s] failure to testify.” Bird, 527 S.W.2d at 894-95; see Hicks, 525 S.W.2d at 180.

Abuse of Discretion

Because the trial court sustained Archie’s objection and granted his request for an instruction to disregard, the “only adverse ruling — and thus the only occasion for making a mistake — was the trial court’s denial of the motion for mistrial.” Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex.Crim.App.2004). Thus, “the proper issue is whether the refusal to grant the mistrial was an abuse of discretion.” Id. at 77; see Archie v. State, 221 S.W.3d 695, 699-700 (Tex.Crim.App.2007). We consider the: (1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks); (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Archie, 221 S.W.3d at 700; see Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998).

“Prejudice is clearly the touchstone of the first factor.” Hawkins, 135 S.W.3d at 77. In Brown v. State, 814 S.W.2d 477 (Tex.App.-Dallas 1991, pet. ref'd), the prosecutor improperly commented on Brown’s failure to testify by arguing, “Well, we don’t know what he [] sounds like when he talks.” Brown, 814 S.W.2d at 478-79. The Dallas Court held that the comment “tainted the guilt-innocence phase” and “improperly directed the jury’s attention to Brown’s invocation of his right not to testify.” Id. at 480. The natural and necessary implications of the prosecutor’s comments include (1) disrupting the jury’s orderly evaluation of the evidence, (2) causing prejudice to the jury’s decision-making, and (3) denying Brown’s right to a fair and impartial trial. Id. The District Attorney’s argument in this case was highly prejudicial for the same reasons.

The trial court did, however, instruct the jury to disregard the argument and included curative instructions in its jury charge. In Campbell v. State, 900 S.W.2d 763 (Tex.App.-Waco 1995, no pet.), the prosecutor commented on Campbell’s failure to testify by arguing “Everything puts this man in possession of this check. Explained? Yes, it’s explained. He hadn’t explained it, but we’ll explain it.” Campbell, 900 S.W.2d at 766. The trial court instructed the jury that:

The law does not require a defendant to prove his innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the defendant unless the jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and impartial consideration of all evidence in the case. The prosecution has the burden of proving the defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt and if it fails to do so, you must acquit the defendant.

Id. at 769. Before voir dire, the trial court instructed the panel that any “comments made by the attorneys would not be considered evidence.” Id. “[W]hen the court read the instructions to the jury before they left to deliberate, the court instructed the jurors only to consider evidence that had actually been admitted in their deliberations.” Id. This Court held that these instructions adequately mitigated the harm caused by the improper comment. See id.

The trial court’s instructions in this case are virtually identical to those in Campbell. In addition, the jury charge contains the following instruction:

The United States and Texas Constitutions provide that a defendant may elect to not testify in his own behalf if he chooses. If the defendant has elected to not testify, you are instructed that you cannot and must not refer to or allude [to] that fact during your deliberations or take it into consideration for any purpose whatsoever as a circumstance against him.

Nevertheless, “[m]istrial is the appropriate remedy when ... the objectionable events ‘are so emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant.’ ” Young v. State, 187 S.W.Bd 65, 71 (Tex.Crim.App.2004). The District Attorney called attention to the absence of evidence that Archie alone could provide. See Patrick v. State, 906 S.W.2d 481, 491 (Tex.Crim.App.1995) (“A remark that calls at tention to the absence of evidence which only the defendant could supply will result in reversal.”). The trial court’s curative instructions were not likely to have prevented Archie from being improperly prejudiced by the District Attorney’s argument.

Additionally, the evidence in this case is not so strong that Archie would necessarily have been convicted absent the District Attorney’s improper argument. See Archie, 221 S.W.Bd at 700. Willis was the only witness to the offense, but his credibility had been impeached. Willis admitted that he lies a lot and lied to the police about the murder. On cross-examination, defense counsel asked, “You’ve lied to the police 27 different times about 27 different events, is that correct?” Willis responded, ‘Yes, sir.” He admitted that he was capable of making up stories and would do so to cover for himself. Other than Willis’s testimony, the record contains no other direct evidence establishing that Archie shot Anthony Williams with a firearm as alleged in the indictment and the indirect evidence, while significant, was not overwhelming. The prejudice stemming from the District Attorney’s improper argument is thus emphasized by the nature of the State’s evidence.

Accordingly, we conclude that the trial court abused its discretion by denying Archie’s motion for mistrial. We sustain issue one and need not address Archie’s remaining issues. See Tex.R.App. P. 47.1. We reverse Archie’s conviction and remand this cause to the trial court for further proceedings consistent with this opinion.

      . We first address Archie's legal sufficiency challenge because it would afford him the greatest relief if sustained. See Nickerson v. State, 69 S.W.3d 661, 668 (Tex.App.-Waco 2002 pet. ref d); see also Hernandez v. State, 268 S.W.3d 176, 178 (Tex.App.-Corpus Christi 2008, no pet.).

      . Although the parties address harmless error analysis, the issue before us is not whether the error from the prosecutor’s improper argument was harmless. See Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex.Crim.App.2004); see also Archie v. State, 221 S.W.3d 695, 699-700 (Tex.Crim.App.2007).


author: REX D. DAVIS, Justice.

text:
    Don TERRELL, Appellant, v. The STATE of Texas, Appellee.
    No. 10-05-00151-CR.
    Court of Appeals of Texas, Waco.
    Dec. 16, 2009.
    Discretionary Review Refused May 5, 2010.

      Lane D. Thibodeaux, Law Office of Lane D. Thibodeaux, Bryan, for Appellant.
    Bill R. Turner, Brazos County Dist. Atty., Bryan, for Appellee.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   OPINION ON REMAND

REX D. DAVIS, Justice.

Don Terrell was convicted of indecency with a child and was sentenced to thirteen years in prison. Terrell contends the trial court erred in denying his motion to dismiss because the State’s failure to preserve several taped interviews violated his due course of law rights under the Texas Constitution. See Tex. Const, art. I, § 19.

On original submission, this Court, holding that the failure to preserve the tapes did not violate Terrell’s due course of law rights, affirmed Terrell’s conviction. See Terrell v. State, 228 S.W.3d 343, 347-48 (Tex.App.-Waco 2007). Chief Justice Gray concurred only in the judgment affirming Terrell’s conviction. See id. at 348-49. The Court of Criminal Appeals reversed and remanded the case to this Court to determine whether Terrell’s specific due course of law complaint was timely and specific under Texas Rule of Appellate Procedure 33.1. See Terrell v. State, 296 S.W.3d 586 (Tex.Crim.App. 2009).

Rule 33.1 states, in part:
(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.

Tex.R.App. P. 33.1.

This Rule encompasses the concept of “party responsibility.” The complaining party bears the responsibility of clearly conveying to the trial judge the particular complaint, including the precise and proper application of the law as well as the underlying rationale. Error preservation does not involve a hyper-technical or formalistic use of words or phrases; instead, “[sjtraight forward communication in plain English” is sufficient. To avoid forfeiting a complaint on appeal, the party must “let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the judge is in the proper position to do something about it.” This gives the trial judge and the opposing party an opportunity to correct the error. Whether a party’s particular complaint is preserved depends on whether the complaint on appeal comports with the complaint made at trial. In making this determination, we consider the context in which the complaint was made and the parties’ shared understanding at that time.

Pena v. State, 285 S.W.3d 459, 463-64 (Tex.Crim.App.2009) (citations omitted).

In this case, Terrell’s specific due course of law complaint is that Article 1, Section 19 of the Texas Constitution provides greater protections than the United States Constitution as it pertains to lost or destroyed evidence and that, because of this, the State’s failure to preserve the audiotape and videotape of Terrell’s police interview and the audiotape of the victim’s police interview violated his due course of law rights under the Texas Constitution. Terrell made the following motion before the trial judge:

Judge, I also would — outside the presence of the jury prior to the charging of the jury — after the closing of the evidence would urge a motion for directed verdict and a motion to dismiss based upon the following facts: Judge, the testimony from Detective Davis indicates that there were two audiotaped statements and one videotaped statement made during the investigation of this case. An audiotape — an audiotape recording of Don Terrell, a videotape recording that was made of Don Terrell, and an audiotape recording of the complainant [N.M.] that was done on the afternoon of October the 15th, 2003. Detective Davis testified that she was not able to produce those; that they were lost; that there had been attempts made to locate those pieces of evidence but they have been lost. Based upon that — based upon that testimony and the unavailability of the evidence related to the statements — the two statements or the audio and videotaped statements of Don Terrell done during the investigation stage and the audiotape of [N.M.], Judge, we would request the Court direct a verdict of acquittal or in the alternative consider a dismissal of the indictment prior to the charging of the jury based upon violation of Mr. Terrell’s due process of law rights under the United States Constitution Article 5 — I mean Amendment 5 and Article — and the 14th Amendment of the United States Constitution and — as well as Article 1, Section 19 of the Texas Constitution both of which guarantee due process of law both at the state and federal level.
We would — I have — I would also ask that there — the Court consider other Constitutional guarantees, specifically the inability to render effective assistance of counsel under the United States Constitution, the Sixth Amendment and the Texas Constitution Article 1, Section 10 based upon the unavailability of that material evidence based upon the testimony of Detective Davis.
I have no — I have done research on this case. I recognize that there is no indication that there was some intentional misappropriation or exfoliation [sic] of this evidence, it was just lost; nevertheless — and I’ve done research based upon that. I was not able to come up with any case law that would help the Court in this matter. I also recognize I had a full and adequate opportunity to cross-examine [N.M.] based upon the handwritten statement and collateral and impeach her based on statements that were made or omissions as well.

Terrell did not argue before the trial court that the Texas Constitution provides greater protection than the federal Due Process Clause. Thus, he failed to preserve his complaint that the due course of law provides greater protection for appellate review. See Pena, 285 S.W.3d at 464 (“We hold that, by failing to distinguish the rights and protections afforded under the Texas due course of law provision from those provided under the Fourteenth Amendment before the trial judge in this context, Pena failed to preserve his complaint that the due course of law provides greater protection for appellate review.”). We thus overrule Terrell’s point and affirm the trial court’s judgment.


author: TOM GRAY, Chief Justice.

text:
    Jacob Rufus AMSPACHER, Appellant, v. The STATE of Texas, Appellee.
    No. 10-09-00221-CR.
    Court of Appeals of Texas, Waco.
    Dec. 30, 2009.

      Joe H. Rodriguez, Gatesville, for Appellant.
    David A. Castillo, Coryell County Dist. Atty., Gatesville, for Appellee.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   OPINION

TOM GRAY, Chief Justice.

Jacob Rufus Amspacher appeals a conviction by a jury for Illumination of Aircraft by Intense Light. Tex. Pen.Code Ann. § 42.14 (Vernon Supp. 2008). Am-spacher contends that the evidence was factually insufficient for the jury to have found him guilty and .that the trial court erred in allowing testimony regarding his conduct and statements when he was approached by law enforcement. Because we find that the evidence was factually sufficient and that the trial court did not abuse its discretion in the admission of evidence, we affirm the judgment of the trial court.

Factual Sufficiency

In a factual sufficiency review, we view the evidence in a neutral light and ask whether the evidence supporting the verdict is so weak or so against the great weight and preponderance of the evidence as to render the verdict manifestly unjust. Steadman v. State, 280 S.W.3d 242, 246 (Tex.Crim.App.2009); Grotti v. State, 273 S.W.3d 273, 283 (Tex.Crim.App.2008). Although a factual sufficiency review authorizes us, to a very limited degree, to act as a “thirteenth juror,” we must nevertheless give the jury’s verdict a great degree of deference. Watson v. State, 204 S.W.3d 404, 416-17 (Tex.Crim.App.2006). The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder’s evaluation of credibility and demeanor. See Tex.CoDE Crim. Proc. Ann. art. 36.13 and 38.04 (stating that the jury is the exclusive judge of the facts and of the weight given to testimony); Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App.2008). We afford almost complete deference to a jury’s decision when that decision is based upon an evaluation of credibility as the jury is in the best position to judge the credibility of a witness because it is present to hear the testimony, as opposed to an appellate court which relies on the cold record. Lancon, 253 S.W.3d at 705. See also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App.2006).

A “high level of skepticism about the jury’s verdict” is required before we may reverse due to factual insufficiency. Watson, 204 S.W.3d at 417. We may not find the evidence to be factually insufficient merely because there are “reasonably equal competing theories of causation.” Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App.2001). Further, a factual sufficiency reversal certainly may not occur when the evidence actually preponderates in favor of conviction. Watson, 204 S.W.3d at 417. Before reversing a conviction on the basis of factual insufficiency, we must detail all the relevant evidence and must explain in exactly what manner the evidence is factually insufficient. Watson, 204 S.W.3d at 414.

Illumination of Aircraft by Intense Light

Section 42.14 of the Texas Penal Code became effective on September 1, 2007. No other Court has discussed or construed this statute since its inception. It states in relevant part as follows:

(a) A person commits an offense if:
(1) the person intentionally directs a light from a laser pointer or other light source at an aircraft; and
(2) the light has an intensity sufficient to impair the operator’s ability to control the aircraft.
(c) An offense under this section is a Class C misdemeanor unless the intensity of the light impairs the operator’s ability to control the aircraft, in which event the offense is a Class A misdemeanor.

Tex. Pen.Code Ann. § 42.14 (Vernon Supp. 2008).

Amspacher complains that the evidence was factually insufficient for the jury to find that: (1) he was the person spotlighting the aircraft; (2) he intentionally pointed the light at the aircraft; (3) the light was intense enough to impair the operator’s ability to control the aircraft; (4) the operator’s ability to control the aircraft was impaired.

The Facts

At night on April 1, 2008, a pilot and his trainee were flying an Apache helicopter over the west side of Fort Hood, Texas, when they received a call that another aircraft was being spotlighted. The pilot flew toward Pidcoke, Texas, when he and his trainee noticed that they were being spotlighted as well. The pilot had an infrared sight device over his right eye and his left eye was unobstructed. The pilot and his trainee were able to fix their infrared sensors on the location of the spotlight and the person in the area. The pilot believed that he may have seen the person go behind his residence, but was not certain of this. The pilot and his trainee maintained that location until law enforcement arrived in Pidcoke, and then they directed the trooper to the location from where they had seen the spotlight originating.

The pilot stated that the light caused “flash blindness,” which impaired his night vision. The incident with the spotlighting caused the pilot and his trainee to abandon their mission. While the pilot did not at any time lose control of the helicopter and was in no danger of crashing, he stated that the light did interfere with his ability to observe his surroundings and to fly safely. For example, the pilot stated he was unable to see wires and lights of towers as well as any other aircraft potentially in the area, which created an unsafe situation.

The trooper that first arrived at Am-spacher’s residence also observed that a spotlight was shone on an aircraft as he was responding to the call. The spotlight went off, and the trooper did not see it again. He could not tell if the spotlight originated from the east or west side of FM 116. Upon his arrival, the trooper found Amspacher yelling at the helicopter with a camcorder pointed at it. The trooper did not search Amspacher and did not locate a spotlight; however, Amspacher was the only person at the scene. Am-spacher refused to identify himself or produce identification.

A Coryell County deputy and a reserve deputy arrived and found Amspacher to be aggressive and irritated. He was swearing and talking about how he was not in Nazi Germany, referenced the Gestapo, and that he was not in Russia. The reserve deputy heard Amspacher stating that he was upset that the Army could fly over his property, shine lights, and make noise. There were two other deputies that arrived and none of them located a spotlight that night. Fort Hood then let them know that they would not be coming to arrest Amspacher, and so the deputies departed without arresting Amspacher at that time.

Identity

We cannot say that the evidence is factually insufficient to find Amspacher guilty of being the person who illuminated the aircraft. The pilot of the Apache stated that he and his trainee were able to stay focused on their target, who was the person shining the spotlight. The pilot was able to lead law enforcement to the source of the light, which was where Am-spacher was located. There was no one else at the location with Amspacher. There was a break in-between when the spotlight was extinguished and the arrival of law enforcement. There was no spotlight located at the scene. When Am-spacher was located by law enforcement, he was using a camcorder and was visibly and verbally angry. Amspacher made comments that he was upset about the military flying over his residence. The jury, as the factfinder, was able to observe the credibility of the witnesses and determined that Amspacher did indeed illuminate the helicopter.

Intent

Amspacher contends that the evidence was also factually insufficient to find that he intentionally illuminated the aircraft. The relevant evidence of intent according to Amspacher was his comments regarding his hostility to the military flying over or near his residence, his general demeanor of being angry and swearing, his refusal to identify himself to law enforcement upon request, and that he was using a camcorder late at night in a location where it was dark presumably to videotape the Apache’s flight. Amspacher contends that the jury could have inferred from the possession and use of the camcorder that he was reacting to the presence of the helicopter and gathering evidence for a later complaint to the Army. However, we may not find the evidence factually insufficient simply because there may be competing theories of causation. Goodman, 66 S.W.3d at 287. This contention does not give us a “high degree of skepticism” about the jury’s verdict regarding Am-spacher’s intent to illuminate the aircraft. See Watson, 204 S.W.3d at 417.

Intensity

Amspacher contends that because no expert testimony was offered regarding the actual intensity of the light that the evidence is factually insufficient for the jury’s finding that the intensity of the light was sufficient to impair the operator’s ability to control the aircraft. We do not agree that expert testimony is required to determine that the light was intense enough to impair the operator’s ability to control the aircraft. Lay witnesses are allowed to give opinions that are: “(a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.” Tex.R. Evid. 701.

Amspacher does not explain why he contends that expert testimony would be necessary. Further, the trooper who observed the spotlight from afar testified that the light was a concentrated, intense beam and was different from the light that was shining down from the helicopter. The pilot, who had accumulated over 2,700 hours of flight time in helicopters and airplanes and was a flight instructor for the military, also testified that the light caused “bleaching out” of the rhodopsin in the eyes which affects night vision and makes it difficult to see with the naked eye at night. We find this evidence is factually sufficient for the jury to have found that the light was intense enough to impair the operator’s ability to control the aircraft. Impairment and Ability to Control

Amspacher contends that the evidence was factually insufficient for the jury to determine that the pilot was actually impaired and also that any impairment affected his ability to control the helicopter. In order to decide this issue we must first determine what is meant by the language used in the statute. We must establish and apply the legislature’s intent that is expressed by the language of the statute. State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006).

To interpret the use of “impair” and “control” in section 42.14(a)(2), “we necessarily focus our attention on the literal text of the statute.” Williams v. State, 270 S.W.3d 140, 146 (Tex.Crim.App.2008) (citing Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991)). Because “every word in a statute has been used for a purpose,” “each word, phrase, clause, and sentence should be given effect if reasonably possible.” Williams, 270 S.W.3d at 146 (citing State v. Hardy, 963 S.W.2d 516, 520 (Tex.Crim.App.1997)). We “first attempt to interpret the statute based on the plain meaning of the words used.” Williams, 270 S.W.3d at 146 (citing Olivas v. State, 203 S.W.3d 341, 345 (Tex.Crim. App.2006)). When the statute does not define certain terms, we turn to the common, ordinary meaning of that word. Id. Webster’s Dictionary defines “impair” as: “to damage or make worse by or as if by diminishing in some material respect.” Merriam-WebsteR’s Collegiate Dictionary 580 (10th Ed.). “Control” is defined as:

1.(a): to check, test, or verify by evidence or experiments;
(b): to incorporate suitable controls in;
2.(a): to exercise restraining or directing influence over: regulate;
(b): to have power over: rule; or
(c): to reduce the incidence or severity of especially to innocuous levels.

Merriam-Webster’s Collegiate Dictionary 252 (10th Ed.).

The pilot testified that the light did impair him. When the helicopter was illuminated, it became necessary to change what they were doing because it was such a large distraction. In his statement to law enforcement near the time of the incident, the pilot stated that although he did not feel the safety of his crew or his aircraft was in danger, the light was bright enough that it impaired and affected normal flight operations. The light came from the right side of the helicopter, which was the side on which the phot’s eye was obstructed. However, the pilot testified that the light interfered with his ability to spot other aircraft, wires, and towers because of its interference with his night vision, which is necessary for him in obstacle detection. The light did not interfere with keeping the aircraft from crashing, because the pilot had been trained in how to deal with that issue. We find the evidence is factually sufficient for the jury to have determined that the pilot was impaired.

Section 42.14(a)(2) further requires that the operator’s ability to control the aircraft be impaired. Amspacher argues that the fact that the pilot was not concerned about crashing the aircraft renders the evidence factually insufficient. We do not believe that the plain language of the statute requires such a narrow interpretation. The pilot’s ability to visually ensure that his surroundings are safe is a component of what is necessary to control an aircraft. The pilot stated that the types of helicopters used by the military are difficult to see by any means other than direct vision at night. Being unable to see at night because of a bright light spotlighted on the aircraft certainly could impair a pilot’s ability to control his aircraft. It is not necessary that the aircraft be in immediate danger of crashing for the pilot’s ability to control the aircraft to be impaired.

Amspacher further contends that the pilot’s testimony was not clear in stating that he was actually impaired, but only that the light could possibly have impaired his ability to control the aircraft. The pilot stated that he looked away from the light initially and that it became an annoyance more than anything. The light did cause the pilot and his trainee to change what they were doing and how they were doing it. The pilot reiterated several times that his training would ensure that he was not going to crash the aircraft due to the spotlight, because he had been trained while in the military for sudden bright flashes of light which could occur while in combat during a deployment. The jury, as the fact-finder, was free to believe or disbelieve the testimony regarding whether the pilot’s ability to control the aircraft was impaired. The evidence was factually sufficient to sustain the jury’s finding of guilt. We overrule Amspaeher’s issue one.

Improper Admission of Evidence

In his second issue, Amspacher complains of the admission of testimony by two law enforcement officers regarding statements made by and the conduct and demeanor of Amspacher when they approached him, apprehended him, and later released him. Prior to the testimony of the first sheriffs deputy, the trial court conducted a hearing on the admissibility of the deputy’s testimony. Amspacher objected to the testimony pursuant to Texas Rules of Evidence 401 and 403. The trial court determined that the testimony would be admissible for both deputies, although there was no testimony at that hearing by the second deputy.

When reviewing a trial court’s ruling on the admission of evidence, we apply an abuse of discretion standard of review. Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App.2007). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Id.

Texas Rule of Evidence 403 provides, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Tex.R. Evid. 403.

Although the Texas Rules of Evidence are intentionally slanted toward the inclusion of all relevant evidence, Rule 403 gives the trial court considerable discretion to exclude evidence when it appears to that individual judge, in the context of that particular trial, to be insufficiently probative when measured against the countervailing factors specified in the rule. Winegamer v. State, 235 S.W.3d 787, 791 (Tex.Crim.App.2007); see Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex.Crim.App.1991) (op. on orig. submission); 810 S.W.2d at 391-92 (op. on reh’g); Johnson v. State, 263 S.W.3d 405, 426-427 (Tex.App.-Waco 2008, pet. ref'd).

In a Rule 403 analysis, a trial court must balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex.Crim.App.2006); see State v. Mechler, 153 S.W.3d 435, 440 (Tex.Crim.App.2005); Montgomery, 810 S.W.2d at 389-90 (op. on reh’g). “The rule gives the trial court considerable latitude to assess the courtroom dynamics, to judge the tone and tenor of the witness’ testimony and its impact upon the jury, and to conduct the necessary balancing.” Winegamer, 235 S.W.3d at 791.

Preservation of Error

To preserve error, a party must object each time inadmissible evidence is offered unless he (1) obtains a running objection, or (2) makes an objection outside the presence of the jury to all the testimony he deems objectionable. Martinez v. State, 98 S.W.3d 189,193 (Tex.Crim.App.2003); see Tex.R.App. P. 33.1. Any error in the admission of evidence, however, is cured when the same evidence comes in elsewhere without objection, either before or after the complained-of ruling. Lane v. State, 151 S.W.3d 188, 193 (Tex.Crim.App.2004). A defendant who fails to preserve error regarding the evidence’s admissibility forfeits his complaint on appeal. Badall v. State, 216 S.W.3d 865, 867 (Tex.App.-Beaumont 2007, pet. ref'd). However, when the court, out of the jury’s presence, hears and overrules objections to evidence, the complaining party is not required to object again before the jury in order to preserve error. Tex.R. Evid. 103(a); Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App.1991).

The State contends that Amspacher waived his right to complain about the testimony of the deputies because he did not object when the second deputy testified and because he did not object when the trooper testified. The trooper testified that Amspacher was yelling at the helicopter and when approached by the trooper, he refused to identify himself or provide identification because he was not in Nazi Germany. This testimony was not objected to at any time. Therefore, any complaints regarding this or similar testimony that was admitted through other witnesses is waived. See Lane, 151 S.W.3d at 193. However, the testimony regarding Am-spacher’s anger and hostility, both in general and toward the military, his use of foul language, and references to Russia were not part of the testimony of the trooper.

Amspacher did object to the testimony of the two deputies at the hearing conducted outside of the presence of the jury based on Rule 403. He objected again during the testimony of the first deputy, but did not request a running objection, and did not object at all during the second deputy’s testimony. However, we find that his objection in the hearing outside of the presence of the jury was sufficient to preserve error. See Ethington, 819 S.W.2d at 858.

The term “probative value” refers to the inherent probative force of an item of evidence — that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation — coupled with the proponent’s need for that item of evidence. Gigliobianco, 210 S.W.3d at 641. In Montgomery v. State, 810 S.W.2d 372, 390 (Tex.Crim.App.1990) (op. on reh’g), the Court of Criminal Appeals stated that “[w]hen the proponent [of an item of evidence] has other compelling or undisputed evidence to establish the proposition or fact that the [item of evidence] goes to prove, the [probative value of the item of evidence] will weigh far less than it otherwise might in the probative-versus-prejudicial balance.”

The demeanor and language used by Amspacher makes it more likely that he intended to spotlight the aircraft in that he was angry with the military and was attempting to videotape the helicopter, as opposed to potentially an inadvertent act. The State’s need for this evidence was fairly substantial in providing evidence of intent and motive.

The fact that Amspacher used foul language, was critical of the Army and law enforcement, and mentioned Russia in the midst of his tirade might tend to suggest decision on an improper basis, however, we believe any such tendency to be slight. We do not believe that the evidence tended to confuse or distract the jury from the main issues or that the jury was not equipped to evaluate the probative force of the evidence, and Amspacher has not demonstrated otherwise. Additionally, the presentation of the evidence was very slight in relation to the rest of the trial. When reviewing the evidence, we cannot say that the trial court’s decision that the probative value outweighed any unfair prejudice was outside of the zone of reasonable disagreement. We overrule Am-spacher’s second issue.

Conclusion

We find that the evidence was factually sufficient to support the conviction. We find that the trial court did not abuse its discretion in the admission of evidence pursuant to Rule 403. We affirm the judgment of the trial court.


text:
    MANCHESTER TANK & EQUIPMENT COMPANY, Appellant, v. ENGINEERED CONTROLS INTERNATIONAL, INC., Appellee.
    No. 10-08-00207-CV.
    Court of Appeals of Texas, Waco.
    Dec. 30, 2009.

      Greg Smith, Ramey & Flock PC, Tyler, for Appellant.
    Stuart Smith, Ñaman Howell Smith & Lee PC, Waco, Deborah G. Hankinson, Hankinson Levinger LLP, Dallas, for Ap-pellee.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   OPINION

TOM GRAY, Chief Justice.

Manchester Tank & Equipment Company appeals the denial of its claim for indemnification pursuant to Texas Civil Practice and Remedies Code Chapter 82. Tex. Civ. Prac. & Rem.Code Ann. Ch. 82 (Vernon 2005). Manchester also complains that the trial court erred in its determination that both Manchester and ECI owed each other the duty of indemnification, therefore offsetting their obligations to each other. After a bench trial, the trial court found that each party took nothing regarding their indemnity claims. Because we find that both parties were entitled to indemnification from the other and therefore offsetting these duties was correct, we affirm the judgment of the trial court.

This indemnity action resulted from a products liability suit filed after an explosion of an LP-gas cylinder that killed two people and severely burned four others. The suit was brought against the manufacturer of both the cylinder, Manchester, and the valve assembly, ECI. Manchester settled its claims with the plaintiffs prior to trial, and after a mistrial was declared due to a hung jury between the claimants and ECI, ECI settled its claims with the plaintiffs for an additional amount. Manchester filed this separate litigation against ECI seeking indemnification for the settlement proceeds and other costs, including the costs of pursuing its indemnity claim. ECI subsequently filed a counterclaim against Manchester seeking indemnification which it contended should be offset against any potential indemnification they might owe to Manchester.

In General Motors Corp. v. Hudiburg Chevrolet, Inc., the Texas Supreme Court has indicated that the duty of indemnification could be offset in claims against component-product manufacturers and final-product manufacturers as follows:

[T]he manufacturer of a component product alleged by a claimant to be defective has a duty to indemnify an innocent seller/-manufacturer of a finished product which incorporates the component from loss arising out of a products liability action related to the alleged defect, but the manufacturer of an allegedly defective finished product has a duty to indemnify the innocent seller/manufacturer of a component product for the same loss. If neither the component-product manufacturer nor the finished-product manufacturer is innocent, depending not on allegations but on proof, both indemnity claims under the statute will fail. If both are innocent, again depending on proof, the indemnity claims offset each other.

General Motors Corp. v. Hudiburg Chevrolet, Inc., 199 S.W.Sd 249, 256-57 (Tex.2006).

Chapter 82 of the Texas Civil Practice and Remedies Code limits a seller’s liability unless they also qualify as a manufacturer or may be sued in lieu of a manufacturer. Tex. Civ. Prac. & Rem.Code Ann. §§ 82.001(4) & 82.003 (Vernon 2005). “Manufacturer,” as defined in section 82.001(4), includes a person who is a designer, formulator, constructor, rebuilder, fabricator, producer, compounder, processor, or assembler of any product or any component part thereof and who places the product or any component part thereof in the stream of commerce. Id. at § 82.001(4).

Chapter 82 of the Texas Civil Practice and Remedies Code was added by the legislature to protect innocent sellers from products liability suits unless they had significantly and intentionally participated in the design or production of the product. Section 82.001(3) defines “seller” as an entity that distributes or places a product into the stream of commerce for commercial purposes. Tex. Civ. Prac. & Rem.Code Ann. § 82.001(3) (Vernon 2005). There is no question that Manchester is a seller as defined by section 82.001(3).

However, by their very definitions, all manufacturers are also sellers, but not all sellers are manufacturers. Hudiburg, 199 S.W.3d at 256. Manchester does not dispute that it is a manufacturer generally, but argues that it is not a manufacturer as to ECI. However, nothing in the language of Chapter 82 precludes a final-product manufacturer from having a duty to its component-product manufacturers for indemnity, and in fact the Texas Supreme Court’s holding in Hudiburg expressly indicates such a duty is permissible. Hudi-burg, 199 S.W.3d at 262.

The duty to indemnify is triggered by the injured claimant’s pleadings. The duty to indemnify is imposed only on the manufacturer of a product claimed in a petition of complaint to be defective. Hu-diburg, 199 S.W.3d at 255. The original petition filed by the claimants avers that both the cylinder and the valve were defective and asserts separate claims alleging defectiveness against both Manchester as to the cylinder and ECI as to the valve, which would trigger the duty to indemnify as to both ECI and Manchester.

The only exception to the duty to indemnify is found in Section 82.002(a) which states that a manufacturer must indemnify a seller “except for any loss caused by the seller’s negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is independently liable.” Tex. Civ. Prac. & Rem.Code Ann. § 82.002(a) (Vernon 2005).

The burden of proof to determine whether a seller is independently liable is on the party seeking to avoid the duty to indemnify, in this situation, Manchester. Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90-91 (Tex.2001). This requires more than allegations in pleadings, but requires proof. Hudiburg, 199 S.W.3d at 255-56; Meritor, 44 S.W.3d at 91. At the trial on the merits of the indemnification claim, Manchester did not offer proof that ECI was negligent, committed intentional misconduct, or committed any other act or omission for which it was independently liable as required to avoid the duty of indemnification. In fact, Manchester at all times agreed that the valve sold by ECI was not defective and continued to use that same valve in its cylinders after this incident.

Likewise, there was no proof offered by ECI that Manchester was negligent, committed intentional misconduct, or committed any other act or omission for which it was independently liable. The parties stipulated that the cylinder was not defective in its design.

The proof given as required in Hudi-burg established that neither the cylinder nor the valve were defective. As such, if the proof establishes that both parties are innocent manufacturers/sellers, as here, then offsetting indemnity is appropriate. Hudiburg, 199 S.W.3d at 257. We overrule Manchester’s first issue. Because we have found that offsetting indemnification is appropriate in these circumstances, it is not necessary to address the constitutionality of the indemnification statutes. Therefore, we need not address Manchester’s second issue that the indemnity statute is constitutional as applied to ECI.

Conclusion

We find that Manchester was entitled to indemnification from ECI. We also find that ECI was entitled to indemnification from Manchester. We find that the trial court did not err by offsetting these obligations and entering its take-nothing judgment. We affirm the judgment of the trial court.