author: Chief Justice MORRISS.

text:
    Desmond Dewayne JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 06-09-00115-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted June 30, 2010.
    Decided Aug. 12, 2010.

      Lew Dunn, Longview, for appellant.
    Zan Colson Brown, Asst. Dist. Atty., Carl Dorrough, Gregg County Dist. Atty., Longview, for appellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

During Desmond Dewayne Jackson’s six-day jury trial for capital murder arising from a robbery and shooting of Melvin Brad Mitchell in the parking lot outside Cash America Pawn in Longview, the State spent approximately two and a half days, on rebuttal, providing evidence that, as an extraneous offense, Jackson committed an armed robbery of a Kroger grocery store in Marshall approximately a month after the charged murder. Though the State does not claim that the Kroger robbery is so similar to the pawn shop murder as to be a “signature” crime, it maintains that proof of the Kroger robbery was admissible to prove identity or intent or to rebut a defensive theory.

Jackson appeals his conviction and sentence of life imprisonment without parole, raising thirteen issues. We reverse Jackson’s conviction and remand for a new trial, because we hold that, although (1) the evidence is legally and factually sufficient, (2) admitting evidence of the Kroger robbery was reversible error.

(1) The Evidence Is Legally and Factually Sufficient

A person commits capital murder if he or she intentionally commits murder while in the course of committing or attempting to commit robbery. Tex. Penal Code Ann. §§ 19.02(b)(1), 19.03(a)(2), 29.02 (Vernon 2003). Jackson claims the State failed to prove he was involved in the crime and failed to prove the requisite intent.

In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000).

In a factual sufficiency review, we review all the evidence, but do so in a neutral light and determine whether the evidence supporting the verdict is so weak or is so outweighed by the great weight and preponderance of the evidence that the jury’s verdict is clearly wrong or manifestly unjust. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App.2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.2007); Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App.2006); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App.2006); Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App.1996).

The State presented sufficient evidence for a reasonable jury to conclude, beyond a reasonable doubt, that Jackson was guilty.

On the morning of Monday, December 10, 2007, Mitchell, an employee of the pawn shop, arrived at the bank to make a number of deposits and with a change order of $400.00 for Monday’s business. Due to an error in Friday’s deposit, the bank sent Mitchell back to the pawn shop with Friday’s deposit. Mitchell left the bank with approximately $8,884.00. After Mitchell had parked his truck, but before he entered the store with the bank bag, Mitchell was robbed and shot.

Three witnesses to the shooting testified at trial. While leaving a nearby grocery store with her friend, Maria Hernandez, Tammy Renee Flores saw a man run from the front of the pawn shop, hit the pickup truck which set off the truck’s alarm, run between the Plasma Center and the retaining wall, and then run up the hill beside the E-Z Mart, a convenience store. Flores testified she did not think anything out of the ordinary had occurred and proceeded to a nearby “Spanish store on Green Street.” Upon leaving the store on Green Street, Flores observed police cars at the pawn shop and stopped to report her observations.

Hernandez testified she heard screaming and then saw a man running with a gun in his hand.

Walter, who was cleaning a State Farm Insurance office located across the street “at an angle,” observed Mitchell go to the door of the pawn shop, enter the pawn shop, come back out, and go to the side of the building. Walter then observed an African-American person wearing a “red hoodie” run from behind the Plasma Center across the parking lot, observed the person stop in the parking lot “maybe just a second,” and then heard a gunshot. After the gunshot, Walter observed the person run behind the building in the same direction the person had come from. Walter was unable to tell whether the person was a male or female.

Cyrus Dean, the manager of the pawn shop, heard some shouting outside the shop and went to the front window to look out. Dean observed Mitchell lying on the ground between his parked truck and the building. The alarm on Mitchell’s pickup truck had been activated. Thinking Mitchell may have fallen, Dean rushed to Mitchell’s side and discovered Mitchell had been shot. Mitchell told Dean that he had been shot by “a tall, slender black dude wearing a red top.” While Dean and Mitchell were waiting on the ambulance, Mitchell also expressed a concern that, if the paramedics did not get there soon, he was going to die.

Officer Danny Stroud, a police officer with the Longview Police Department, arrived at the scene a few minutes before the ambulance. Stroud testified Mitchell appeared to be scared and kept saying, “Please hurry. Please hurry. It hurts.”

Mitchell informed Stroud that the man who shot him had come from behind the dumpsters.

Dr. Keith Pinckard, a medical examiner for Southwestern Institute of Forensic Sciences, testified Mitchell died from a gunshot wound to the chest.

Officer Kirby DeLoach, a police officer with the Longview Police Department, tracked the suspect with a certified tracking dog. The tracking dog lost the scent in a parking lot of a church located at Birdsong and Baxter Avenues. DeLoach noticed a spot of water in the parking lot of the church consistent with a spot of water created by a car’s air conditioning unit. DeLoach presumed that the suspect got into a car in the church parking lot.

Within hours of the robbery, Cash America Pawn offered a $20,000.00 reward for “information leading to the arrest and indictment of the individual(s) responsible for the robbery/murder of Melvin ‘Brad’ Mitchell.” On or about January 18, Detective Douglas Brinkley, a detective with the Criminal Investigation Division of the Longview Police Department, received a call from Ladarian Beechum, Beechum informed Brinkley that her brother, Robert Blaylock, had some information for him concerning the pawn shop robbery. Brinkley interviewed Blaylock, who lived in Atlanta, Georgia, by telephone and then traveled to Atlanta to interview Blaylock in person. Shortly before Christmas, while Jackson and Blaylock were drinking and playing a video game, Jackson admitted to Blaylock that Jackson had killed a man with a “.45.” Blaylock denied being drunk. According to Blaylock, Jackson stated he knew the guy’s routine of going to the bank in the morning and returning with money for the day. Jackson stated he stole approximately $8,000.00 and had fled through some woods. Blaylock admitted he had received the $20,000.00 reward from Cash America Pawn. Blaylock also admitted he had previously lied under oath about his finances on an application for a court-appointed attorney.

James Roberson, Jackson’s accomplice in the Kroger robbery, testified Jackson admitted that “[h]e robbed a guy, and he [had] shot him” because “[h]e wouldn’t give him the money.” Roberson testified he could not remember the details other than the victim was an older white man.

The Longview police searched Jackson’s house a total of three times. The first search was conducted pursuant to the consent of Francis Jackson, Jackson’s wife. During the search, the police seized a .82 caliber pistol, a .45 caliber automatic pistol, a box of .45 caliber Federal brand shells, twenty rounds of .45 caliber Blazer brand shells, and nine rounds of .45 caliber Remington brand shells. The second search was conducted pursuant to search warrant. The third search was conducted based on the consent of Lanie Smith, who had accepted a deed to the house in lieu of foreclosure. During this search, the police seized a .45 caliber Remington brand shell casing, which was found on the ground behind an air conditioning unit.

An analysis of the items seized provided a few links between the items and the pawn shop murder. Wade Thomas, a forensic scientist for the Texas Department of Public Safety, testified that State’s Exhibit # 19B, a shell found at the scene of Mitchell’s murder, and State’s Exhibit # 30, the shell found in the third search of Jackson’s house, were fired from the same gun. However, Thomas testified that tests to determine whether the shells were fired by the .45 caliber pistol seized at Jackson’s house were inconclusive. Thomas testified the shells seized at Jackson’s house had similar bunting markings as the shells found at the scene, supporting the conclusion that they were probably made at or near the same time. Thomas admitted on cross-examination that the same machine could make between 40,000 and 180,000 shells with the same bunting marks.

The State introduced business records from Delta Airlines which indicate Jackson flew from Atlanta to Dallas December 6, 2007, and returned to Atlanta December 11, 2007. In addition to the plane flights, the State presented evidence that Jackson had lied to the police about his whereabouts on the day of the crime, and Jackson’s wife had some poorly explained absences from work on the day of the crime. Blaylock testified Jackson claimed to have called his wife to pick him up.

The evidence is legally sufficient. “Because it is difficult to prove what a defendant was thinking, intent of the accused is not ordinarily determined by direct proof; rather, it is inferred from circumstantial evidence.” Morris v. State, 892 S.W.2d 205, 207 (Tex.App.-Texarkana 1994, no pet.). “Intent may be inferred from acts, words, or conduct of an accused, including the circumstances surrounding the acts in which the accused engages.” Id. Considering the evidence in the light most favorable to the verdict, a rational trier of fact could have found, beyond a reasonable doubt, the essential elements of capital murder.

Jackson did present some contrary evidence. Ernest, Jackson’s expert, testified the .45 caliber pistol seized at Jackson’s residence did not fire the shells contained in State’s Exhibits # 19B and # 30. Ernest testified, “[I]t’s my opinion that this particular gun is making an entirely different set of markings than these two cartridge cases.... ” The shell found in the third search should have been exposed to the elements since it was found outside close to the air conditioner. Ernest testified the shell seized in the third search was “bright and shiny” and does not appear to have “any corrosion to it, doesn’t have any significant weathering to it.” Ernest also testified there were a few grains of sand (“but not much”) on the inside of the shell and it did not appear to have been cleaned in any significant manner. Ernest conducted a test to determine whether the weathering on the shell was consistent with being exposed to the elements. Based on this test, Ernest opined that the shell could not have been exposed to the elements for more than three days. The State recalled Thomas, who testified he had cleaned the dirt off the shell with water and a cotton swab, but admitted the shell did not have any apparent corrosion. At trial and on appeal, Jackson argues the condition of the shell casing indicates it may have been planted by some unknown third party.

James Stewart, a friend of Mitchell, testified he overheard a conversation at a gas station which made him believe the men might know something about the murder. The conversation was between a heavyset black man and a tall, skinny, black man who was about 5'9" and had a tattoo on his left upper forearm. Stewart later picked out a man named Bruce Kelly from a photographic lineup. Naomi Martinez, a co-worker of Francis, testified she received a telephone call from Francis around 9:00 a.m. and the background noise sounded like what one would hear in a store like Super 1 or Wal-Mart.

The evidence is factually sufficient. The evidence supporting the conviction is not “too weak” to support the jury’s verdict and the jury’s verdict is not against the great weight and preponderance of the evidence.

(2) Admitting Evidence of the Kroger Robbery Was Reversible Error

Jackson claims the trial court erred in admitting evidence concerning an extraneous offense. We agree.

The trial court admitted extensive evidence concerning the Kroger robbery, including more than two days of additional testimony. The State argues the extraneous offense was admissible to prove identity, to prove intent, or to rebut a defensive theory.

The Texas Rules of Evidence provide the basic framework of our analysis on the issue of whether an extraneous offense is admissible. Evidence is “relevant” that has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex.R. Evid. 401. “All relevant evidence is admissible, except as otherwise provided by ... these rules.... [E]vidence which is not relevant is inadmissible.” Tex.R. Evid. 402. Rule 404 provides: “evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” Tex.R. Evid. 404(b). Evidence of “other crimes, wrongs or acts” may be admissible if it has relevance apart from its tendency “to prove the character of a person in order to show action in conformity therewith.” Tex.R. Evid. 404(b).

The permissible “purposes” to which evidence of “crimes, wrongs, or acts” may be put include “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Tex.R. Evid. 404(b). Extraneous-offense evidence that logically serves any of these purposes is “relevant” beyond its tendency “to prove the character of a person in order to show action in conformity therewith” and subject only to the trial court’s discretion nevertheless to exclude it “if its probative value is substantially outweighed by the danger of unfair prejudice.... ” Tex.R. Evid. 403, 404(b).

An accused must be tried only for the offense with which he or she is charged. The accused may not be tried for a collateral crime or for being a criminal generally. Stafford v. State, 813 S.W.2d 503, 506 (Tex.Crim.App.1991).

Generally, evidence of extraneous offenses may not be used against the accused in a criminal trial.... While such evidence will almost always have probative value, it forces the defendant to defend himself against uncharged crimes as well as the charged offense, and encourages the jury to convict a defendant based upon his bad character, rather than proof of the specific crime charged.

Daggett v. State, 187 S.W.3d 444, 450-51 (Tex.Crim.App.2005) (footnotes omitted). “Rule 404(b) sets out an illustrative, not exhaustive, list of exceptions to the prohibition against admitting evidence of extraneous offenses including ‘proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.’ ” Id. at 451 n. 13 (citing Tex.R. Evid. 404(b)). Extraneous-offense evidence is admissible only if the evidence satisfies a two-pronged test: (1) the extraneous-offense evidence must be relevant to a fact of consequence in the ease aside from its tendency to show action in conformity with character; and (2) the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice. Page v. State, 213 S.W.3d 332, 336 (Tex.Crim.App.2006). Unfair prejudice does not arise from the mere fact that evidence injures a party’s case. Unfair prejudice may result from the tendency of the evidence to prove some adverse fact not properly in issue or unfairly to excite emotions against the defendant. Casey v. State, 215 S.W.3d 870, 883 (Tex.Crim.App.2007).

A trial court’s decision to admit or exclude evidence is reviewed under an abuse of discretion standard. McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App.2005); Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App.2002). A trial court does not abuse its discretion so long as the decision to admit evidence is within the “zone of reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (op. on reh’g). An appeals court may not substitute its own decision for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App.2003).

We will address each of the State’s arguments and then, since we find the extraneous-offense evidence was erroneously admitted, address whether the error resulted in harm.

(a) The Extraneous-Offense Evidence

After Jackson rested, the State offered rebuttal evidence concerning the extraneous offense at issue — the Kroger robbery. In an effort transcribed onto almost 250 pages of reporter’s record, fifteen witnesses testified concerning the extraneous offense, extending the trial an additional two and a half days. In addition, the State offered approximately seventeen additional exhibits, including video and audio recordings of police interrogations which were admitted into evidence. And, we note, the vast majority of that Kroger robbery evidence was presented after a weekend break and in the same week the jury deliberated and rendered its verdict.

Detective Brinkley testified that Blay-lock had provided him with information concerning another crime in which Jackson had been involved' — -the robbery of a Kroger grocery store in Marshall, Texas. Blaylock testified Jackson had claimed the Kroger robbery “was an inside deal with some guy that worked there, a manager.” According to Blaylock, Jackson admitted to wearing a wig and acting like a shopper. When Blaylock showed Jackson a video recording of the robbery that had been posted on the internet, Jackson referred to the gun in the video and said, “[Tjhat’s my baby; that’s that forty-five.” Jackson told Blaylock he had stolen $17,000.00 and it had been split three ways.

Helen Baird, an employee of Kroger, testified she and Roberson were robbed by two armed men who came into the cash room of the Kroger. Baird, though, was not asked to make an in-court identification of Jackson. The State recalled Roberson, who testified he was Jackson’s accomplice in the Kroger robbery. Roberson described how he and Jackson planned and executed the robbery. Roberson testified Jackson provided him with approximately $3,500.00 for his share of the stolen cash.

The State also presented scientific evidence linking Jackson to the Kroger robbery. Thomas, the State’s firearm expert, was recalled and testified that shell casings collected by the Marshall Police Department at the scene of the Kroger robbery were fired from the .45 caliber pistol seized at Jackson’s house. Constance Patton, a forensic scientist from the Tarrant County Medical Examiner laboratory, testified a hat recovered at the scene of the Kroger robbery had a mixture of DNA from three men on it. Jackson could not be excluded as a possible contributor of the DNA. Patton testified “99.98 percent of random unrelated individuals in the Caucasian, African-American, and Southwestern Hispanic populations would be excluded as possible contributors to the ball cap mixture.”

(b) Similarity of Offenses

When the extraneous offense is introduced to prove identity, the extraneous offense must be so similar to the charged offense that the offenses illustrate the defendant’s “distinctive and idiosyncratic manner of committing criminal acts.” Martin v. State, 173 S.W.3d 463, 468 (Tex.Crim.App.2005); see Owens v. State, 827 S.W.2d 911, 914 (Tex.Crim.App. 1992). The common characteristics of each offense must be so unusual as to act as the defendant’s “signature.” Taylor v. State, 920 S.W.2d 319, 322 (Tex.Crim.App. 1996). “No rigid rules dictate what constitutes sufficient similarities; rather, the common characteristics may be proximity in time and place, mode of commission of the crimes, the person’s dress, or any other elements which mark both crimes as having been committed by the same person.” Segundo v. State, 270 S.W.3d 79, 88 (Tex.Crim.App.2008). “Usually, it is the accretion of small, sometimes individually insignificant, details that marks each crime as the handiwork or modus operandi of a single individual.” Id. In the context of evaluating the admissibility of extraneous offenses, modus operandi refers to “a defendant’s distinctive and idiosyncratic manner of committing criminal acts.” Owens, 827 S.W.2d at 914.

In Hartsfield, this Court held an extraneous offense was admissible to prove identity when the offenses occurred in the same geographic area, were committed three days apart and at night, were committed with accomplices, and the perpetrators first emptied the cash register and then rifled through the shelves beneath the cash register at both locations. Hartsfield v. State, 305 S.W.3d 859, 872 (Tex.App.-Texarkana 2010, pet. filed). Harts-field, though, is distinguishable from the current case. The Kroger robbery occurred inside the store by two persons with a third accomplice who worked at the store. The pawn shop murder was committed in the parking lot of the pawn shop by a single person without any inside accomplice. The clothing of the suspects differed. The suspects in the Kroger robbery wore wigs and disguises, while the sole suspect in the pawn shop murder did not. The pawn shop murder and the Kroger robbery were committed a month apart, rather than the three days between the offenses in Hartsfield.

In essence, the only similarities between the pawn shop murder and the Kroger robbery are that both offenses were armed robberies committed with a .45 caliber pistol. The State has failed to direct this Court to any details, insignificant or otherwise, which would mark the crime as the mod,us operandi of a single individual. The mere fact that both offenses were armed robberies does not make them sufficiently similar to prove identity. “The State must show more than the mere repeated commission of crimes of the same type or class....” Owens, 827 S.W.2d at 915. We see no similarities that indicate a distinctive and idiosyncratic manner of committing criminal acts. Evidence concerning the Kroger robbery was not relevant to the issue of identity. As stated by the Texas Court of Criminal Appeals: “if extraneous offense evidence is not ‘relevant’ apart from supporting an inference of ‘character conformity,’ it is absolutely inadmissible under Rule 404(b).” Montgomery, 810 S.W.2d at 386-87. This decision is outside the zone of reasonable disagreement. The trial court abused its discretion in admitting the evidence of the Kroger robbery to prove identity.

(c) Proving Intent ?

Although the extraneous-offense evidence was not admissible on the issue of identity, we must still consider whether the extraneous evidence was admissible to establish intent. Intent can be inferred from acts, words, and conduct of the accused. Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App.1991). The State argues the extraneous offense was admissible to establish Jackson had the requisite intent. The State claims the extraneous offense shows Jackson intended to kill Mitchell because Mitchell resisted and no one was killed at the Kroger robbery where no one resisted.

Jackson argues the defense “never put intent at issue.” We agree. During the trial, Jackson never contested or attempted to refute the State’s evidence concerning intent. Jackson’s defensive theory was that the State failed to prove he was the person who committed the crime. The only evidence which would contest intent was the testimony of Blaylock, that Jackson said killing Mitchell “wasn’t something that I was trying to do, but, you know, I didn’t have no choice.” Blaylock’s testimony was introduced by the State on direct examination.

The State argues Jackson contested intent by discussing the intent requirement during voir dire. We are not persuaded by this argument. Jackson did not contest intent by discussing the issue during voir dire. The State has failed to direct this Court to where in the record Jackson placed intent at issue. When the State’s evidence on intent “is uncontradict-ed by the defendant or not undermined by cross-examination of the State’s witnesses, the offer of other crimes is unjustified due to the lack of relevancy.” Rankin v. State, 974 S.W.2d 707, 719 (Tex.Crim.App.1996) (op. on reh’g); DeLeon v. State, 77 S.W.3d 300, 312 (Tex.App.-Austin 2001, pet. ref'd). Because Jackson never contested intent, the extraneous-offense evidence was inadmissible under Rule 404. See Tex.R. Evid. 404.

Even if Jackson had contested intent, the probative value of the offense is substantially outweighed by the danger of unfair prejudice. See Tex.R. Evid. 403. Our analysis is guided by the following factors known as the Montgomery factors: (1) how eompellingly the extraneous-offense evidence serves to make a fact of consequence more or less probable; (2) the potential the other offense evidence has to impress the jury “in some irrational but nevertheless indelible way”; (3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and (4) the force of the proponent’s need for this evidence to prove a fact of consequence, that is, does the proponent have other probative evidence available to him or her to help establish this fact, and is this fact related to an issue in dispute. Montgomery, 810 S.W.2d at 389-90; see Wheeler v. State, 67 S.W.3d 879, 888 (Tex.Crim.App.2002); Hartsfield, 305 S.W.3d at 873.

The first factor weighs slightly against the admission of the extraneous offense. The State argues the Kroger robbery is probative of intent in the pawn shop murder because no one died in the Kroger robbery where no one resisted. The State argues that Mitchell resisted in the pawn shop robbery and, therefore, the Kroger robbery establishes that the actor intended to cause the death of Mitchell during the pawn shop robbery. While this argument has some logic, the argument is extremely tenuous. It requires a rather large inference to be made by the jury. The probative value of the Kroger robbery concerning intent is, at best, extremely marginal. Thus, the Kroger robbery is not terribly compelling in making a fact of consequence more or less probable.

The second factor weighs heavily against the admission of the extraneous offense. Although the extraneous-offense evidence was accompanied by an instruction of its limitations, the evidence had to impress the jury “in some irrational but nevertheless indelible way.” While all extraneous offenses are inherently prejudicial, we believe this extraneous offense is unusually prejudicial. Rule 403 does not exclude all prejudicial evidence, but only evidence where the probative value is substantially outweighed by the danger of unfair prejudice. The Kroger robbery had significant potential “to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” See Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). The jury was presented with evidence that Jackson committed a second armed robbery approximately a month after the pawn shop murder. Thus, the Kroger robbery had substantial potential to convince the jury that Jackson was a criminal in general and, therefore, probably committed the charged offense.

The third factor weighs heavily against the admission of the extraneous offense. The time needed to develop the evidence was substantial. The State’s rebuttal consumed approximately two and a half days of a six-day trial. The State called fifteen witnesses and introduced seventeen exhibits. During this entire time, the jury was distracted from consideration of the indicted offense.

The remaining factor also weighs heavily against the admission of the extraneous-offense evidence to prove intent. As noted above, intent was not a significant dispute at trial — if it was even disputed at all. A jury could reasonably infer intent from the evidence introduced concerning the pawn shop murder. In essence, the State had no need for this evidence to prove a fact of consequence.

All of the factors weigh against the admission of the extraneous-offense evidence to prove intent. Three of these factors weigh heavily against its admission. The State had no need for the evidence to prove intent, the time needed to develop the evidence was substantial, and the evidence had significant potential to impress the jury “in some irrational but nevertheless indelible way.” Even if the evidence was relevant, the probative value of the offense is substantially outweighed by the danger of unfair prejudice. This decision is outside the zone of reasonable disagreement. The trial court abused its discretion in admitting the evidence of the Kroger robbery to prove intent.

(d) Rebutting a Defensive Theory Is Not in Issue

The State alternatively argues the extraneous offense was admissible to rebut defensive theories. The trial court, though, instructed the jury it could not consider the extraneous evidence:

FOR ANY PURPOSE UNLESS YOU FIND BEYOND A REASONABLE DOUBT THAT THE DEFENDANT COMMITTED SUCH OTHER OFFENSES, IF ANY WERE COMMITTED, AND EVEN THEN YOU MAY ONLY CONSIDER SUCH EVIDENCE IN DETERMINING THE INTENT OR THE IDENTITY OF THE DEFENDANT IN RELATION TO THE OFFENSE ON TRIAL, AND YOU MAY NOT CONSIDER THESE OFFENSES FOR ANY OTHER PURPOSE.

(Emphasis added.) The Texas Court of Criminal Appeals has held that an appellate court cannot affirm a trial court’s decision to admit extraneous-offense evidence to rebut a defensive theory if the trial court failed to instruct the jury, in the trial court’s limiting instruction, on the extraneous evidence admissibility to rebut a defensive theory. Owens, 827 S.W.2d at 917; see Curtis v. State, 89 S.W.3d 163, 171 (Tex.App.-Fort Worth 2002, pet. ref'd) (refusing to consider whether admission of extraneous-offense evidence to rebut defensive theory was proper because jury was not instructed on that basis). The Texas Court of Criminal Appeals held, “[ajbsent such additional instruction, there is no way for an appellate court to know whether the jury properly applied the evidence of appellant’s ‘system’ to rebut the weight or credibility of appellant’s ‘frame-up’ theory or relied on it for an improper basis such as character conformity.” Owens, 827 S.W.2d at 917. Here, the jury was not instructed that it could consider the extraneous-offense evidence to rebut a defensive theory. As such, we cannot consider whether the extraneous-offense evidence was admissible to rebut a defensive theory. The trial court erred in admitting the evidence concerning the Kroger robbery.

(e) Harm

The next step in our analysis is to determine whether the error resulted in harm. Error in admitting evidence concerning extraneous offenses is reviewed under Rule 44.2(b) of the Texas Rules of Appellate Procedure. Casey v. State, 215 S.W.3d 870, 885 (Tex.Crim.App.2007) (finding under Rule 44.2(b) the error in admitting photographs was harmless). Rule 44.2(b) provides that an appellate court must disregard a nonconstitutional error that does not affect a criminal defendant’s “substantial rights.” Tex.R.App. P. 44.2(b). An error affects a substantial right of the defendant when the error has a substantial and injurious effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). A criminal conviction will not be reversed for nonconstitutional error if the appellate court, after examining the record as a whole, “has fair assurance that the error did not influence the jury, or had but a slight effect.” Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998); see Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App.2002).

In assessing the likelihood that the jury’s decision was adversely affected by the error, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case. The reviewing court might also consider the jury instruction given by the trial judge, the State’s theory and any defensive theories, closing arguments and even voir dire, if material to appellant’s claim.

Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App.2000); see Motilla, 78 S.W.3d at 355.

The State argued at oral argument that the error was harmless because the trial court gave a limiting instruction before the State presented the extraneous-offense evidence and the court’s instructions to the jury contained a limiting instruction. We are not convinced that the limiting instruction rendered the error harmless.

The Amarillo Court of Appeals addressed a similar argument in Bjorgaard v. State, 220 S.W.3d 555, 562 (Tex.App.Amarillo 2007), pet. dism’d, improvidently granted, 253 S.W.3d 661 (Tex.Crim.App.2008). In that case, the appellant was charged with attempted sexual assault of his ten-year-old niece. Id. at 558. The State introduced evidence that the appellant had previously been convicted of indecency with a child. Id. After determining the evidence should not have been admitted, the Amarillo court concluded that, even “if the jury did heed the trial court’s admonishment, the admonishment itself could be viewed as permitting consideration of the evidence for an improper purpose.” Id. at 562. As discussed above, the Kroger robbery should not have been admitted to prove either identity or intent in the pawn shop murder. Thus, the limiting instruction instructed the jury it could consider, albeit for a limited purpose, evidence it should not have considered. An instruction, which instructs a jury to consider inadmissible evidence for a limited purpose, still instructs a jury to consider inadmissible evidence. The evidence should not have been considered for any purpose during the guilt/innoeence phase of the trial. The limiting instruction does not render the error harmless.

In conducting a harm analysis, the presence of overwhelming evidence of guilt can be a factor in the evaluation of harmless error. Motilla, 78 S.W.3d at 357. Jackson admitted to Blaylock that he had committed the pawn shop murder. Jackson admitted to Blaylock that he had studied the victim’s routine of going to the bank in the morning and returning with money and that he had killed the man with a “.45.” Jackson stated he stole approximately $8,000.00 and had fled through some woods. Roberson testified Jackson admitted “[h]e robbed a guy, and he [had] shot him” because “[h]e wouldn’t give him the money.” Shells seized during the first search of Jackson’s house had similar bunting markings as the shells found at the scene. Jackson flew from Atlanta to Dallas December 6, 2007, and returned to Atlanta December 11, 2007. Jackson’s wife had some poorly explained absences from work on the day of the crime. Jackson lied to the police on a number of occasions concerning his whereabouts on the day of the crime. Last, the shell casing found during the third search of Jackson’s house was fired from the same gun as a shell casing found at the scene of the pawn shop murder. Although there is substantial evidence of guilt, the evidence is not overwhelming. The evidence of guilt weighs in favor of a finding that the error did not influence the jury, but is not the sole factor in our analysis.

The Texas Court of Criminal Appeals has stressed “an appellate court should consider overwhelming evidence of guilt, but that that should be only one factor in the analysis.” Id. at 357. Other relevant factors in a harm analysis are “ ‘the character of the alleged error and how it might be considered in connection with other evidence in the case.’ ” Id. at 359 (quoting Morales, 32 S.W.3d at 867).

The character of the erroneously-admitted evidence weighs heavily in favor of a finding of harm. “Extraneous-offense evidence is ‘inherently prejudicial, tends to confuse the issues, and forces the accused to defend himself against charges not part of the present case against him.’ ” Sims v. State, 273 S.W.3d 291, 294-95 (Tex.Crim.App.2008) (quoting Pollard v. State, 255 S.W.3d 184, 185 (Tex.App.-San Antonio 2008), aff'd, 277 S.W.3d 25 (Tex.Crim.App.2009)). By its very nature, an improperly admitted extraneous offense tends to be harmful. It encourages a jury to base its decisions on character conformity, rather than evidence that the defendant committed the offense with which he or she has been charged.

The evidence that Jackson committed the Kroger robbery was overwhelming. Roberson provided detailed testimony concerning the Kroger robbery. Jackson had admitted committing the Kroger robbery to Blaylock. The shell casings collected at the scene of the Kroger robbery were fired from the pistol seized at Jackson’s house. A hat recovered at the scene of the Kroger robbery after being abandoned by the robbers had a mixture of DNA from three men on it. Jackson could not be excluded as a possible contributor of the DNA despite the fact that “99.98 percent of random unrelated individuals in the Caucasian, African-American, and Southwestern Hispanic populations” would be excluded as possible contributors. The overwhelming evidence of the Kroger robbery had enormous potential for confusing the jury and enormous potential to encourage the jury to base its decision on character conformity.

Our concerns about the nature of the erroneously admitted extraneous evidence are enhanced when the evidence is considered in connection with the other evidence in the case. Although evidence suggests Jackson committed the pawn shop robbery, it was not without contradiction. The evidence establishing identity consisted of mainly the shell casing found at Jackson’s residence and the admissions Jackson made to Blaylock and Roberson. The credibility of both Blaylock and Roberson was challenged by Jackson. Blay-lock admitted he had received the $20,000.00 reward and admitted he had previously lied under oath about his finances on an application for a court-appointed attorney. Roberson was Jackson’s accomplice in the Kroger robbery. Jackson also argued that the shell found at Jackson’s house during the third search may have been planted by an unknown third party.

The evidence of the Kroger robbery may have had a profound effect on the jury’s decision concerning the credibility of Blaylock and Roberson. It is not our role to speculate as to whether the jury would have still believed Blaylock and Roberson. Credibility choices are the sole province of the jury. Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App.1999). Our role is to determine the “likelihood that the error materially affected the jury’s deliberations.” McCarthy v. State, 65 S.W.3d 47, 55 (Tex.Crim.App.2001) (citing Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988)). The overwhelming evidence that Jackson committed the Kroger robbery may have quieted any lingering doubts the jury had concerning the credibility of Blaylock and Roberson. The extraneous-offense evidence may have had a significant influence on the jury when it was considering the credibility of the State’s witnesses.

In considering how the erroneously admitted evidence might be considered in connection with other evidence in the case, the emphasis of the evidence by the State should be considered. See Lajoie v. State, 287 S.W.3d 345, 355 (Tex.App.-Fort Worth 2007, no pet.) (State’s overt emphasis contributed to harm of admitting defendant’s request for counsel); see also McCarthy, 65 S.W.3d at 55 (considering State’s emphasis of error in assessing harm under Rule 44.2(a)). Unlike the erroneously admitted evidence in Motilla, the erroneously admitted evidence in this case is not innocuous and is not brief. The State’s rebuttal consumed approximately forty percent of the trial — approximately two and a half days of a six-day trial, and the bulk of that occurring after a weekend break. The State called fifteen witnesses and introduced seventeen exhibits. The evidence linking Jackson to the Kroger robbery was considerably stronger than the evidence linking Jackson to the pawn shop murder. The State emphasized the extraneous offense during its closing argument and admitted it had “spent a significant time ... talking about an extraneous matter.” Although the State generally referred to the extraneous offense when discussing identity and intent, the State deviated from these limitations on at least one occasion. The State argued Jackson would not have convinced Roberson to participate in the Kroger robbery “if Mr. Jackson isn’t able to convince him that he’s already gotten away with one.” Although the State’s emphasis was not as overt as the emphasis in Lajoie, it nonetheless affects whether the error resulted in harm.

As noted above, the evidence of guilt, while substantial, was not overwhelming. Even more important, the evidence of guilt was not free from contradictions. When the character of the erroneously admitted evidence and its connection to the other evidence is considered, we are unable to reach a fair assurance that the error did not influence the jury, or had but a slight effect. We conclude the trial error in admitting evidence concerning an extraneous offense — the Kroger robbery — resulted in reversible error. Because we have found the error in admitting the extraneous offense constitutes reversible error, it is unnecessary to address Jackson’s remaining issues.

Although the evidence is legally and factually sufficient, admitting, over Jackson’s objections, extensive evidence concerning the extraneous offense was error and was harmful. We reverse Jackson’s conviction for capital murder and remand for a new trial.

      . Because we conclude the error in admitting the extraneous-offense evidence was reversible error, it is not necessary to address Jackson's remaining issues.

      . All of the witnesses except Ruth Walter testified Mitchell had not entered the pawn shop. Walter, though, testified Mitchell had entered the shop and then returned to the parking lot.

      . The Jacksons had purchased the home from Smith, a Longview police officer. The home was owner financed by Smith and the Jack-sons gave Smith a deed to the home in lieu of foreclosure. Smith then consented to the third search. Smith testified that he did not participate in the investigation and that no one suggested to Smith that he “need[ed] to hurry up and get Mrs. Jackson or Mr. Jackson out of that property so that [the police] can get down there and search it again.”

      . Thomas testified his notes “indicate a possible elimination,” but he classified the test as "inconclusive” because the pistol “wasn’t collected until well after the offense date" and “the firearm could have been altered between the time of offense and time of collection.” Richard Ernest, the defense expert, testified the .45 caliber pistol was "well worn,” but testified thousands of rounds would probably be needed to wear the rifling out and it would be very unlikely for that many bullets to be fired in a month and a half.

      .At one point, Jackson claimed he was in Georgia when the offense was committed. Later, Jackson claimed he had visited a cousin on the day of the offense. The cousin denied he had seen Jackson since Thanksgiving 2007. Jackson’s statements are contradicted by the airline records. In addition, Dana Dessesaure, an employee at the daycare which cared for Jackson’s children, testified Jackson picked up his children around 2-2:30 on the day of the murder.

      .Francis Jackson left her job at approximately 9:00 a.m. to take diapers to her children’s daycare. Francis returned at 10:12 a.m., but left again at 10:56 a.m. to do field work for her company. Although the field work should have only taken half an hour and her lunch break was only one hour, she did not return for two and a half hours. After making a call around 1:54 p.m., Francis left for the rest of the day to deal with a family emergency.

      . The record contains no details concerning the similarity of this test to the conditions to which the shell was exposed at the scene.

      . ■ Francis had claimed to be purchasing diapers during her first absence from work on the day of the pawn shop murder.

      . Jackson also argues the State was required to corroborate the testimony of Roberson under the accomplice-witness rule. The State fails to respond to Jackson’s accomplice-witness argument. In addressing this argument, we start by pointing out that Roberson was not complicit in the offense being tried — the pawn shop murder — but he was Jackson’s accomplice in the extraneous offense — the Kroger robbery. Separating the two offenses for this analysis is important, because Roberson provided testimony relevant to both the pawn shop murder and the Kroger robbery. Because Roberson was not an accomplice in the pawn shop murder, Roberson's testimony regarding the murder need not be corroborated. Because there is sufficient corroboration of Jackson’s involvement in the extraneous offense, we need not decide whether Roberson’s testimony as to the extraneous offense must be corroborated.
      Under the accomplice-witness rule, one cannot be convicted on the testimony of an accomplice unless that testimony is corroborated by other evidence tending to connect the defendant with the offense charged. Tex Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). The test for weighing the sufficiency of corroborating evidence is to eliminate from consideration the accomplice’s testimony and then examine the remaining testimony and evidence to determine if there is evidence that tends to connect the defendant with the commission of the offense. Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App.1993); Hall v. State, 161 S.W.3d 142, 149 (Tex.App.-Texarkana 2005, pet. ref'd). To determine the sufficiency of corroboration, we must view the corroborating evidence in the light most favorable to the jury’s verdict. Gill v. State, 873 S.W.2d 45, 48 (Tex.Crim.App.1994).
      Roberson was not an accomplice in the pawn shop murder. "Commission of a different 'downstream' offense, even with knowledge of the prior criminal act charged against the defendant” is insufficient to make a witness an accomplice witness. Tucker v. State, 689 S.W.2d 235, 237 (Tex.App.-El Paso 1985, pet. ref'd). Although there is sufficient evidence independent of Roberson’s testimony that tends to connect Jackson to the pawn shop murder, Roberson was not an accomplice to the pawn shop murder, and corroboration of Roberson's testimony concerning the pawn shop murder was not required.
      On the other hand, Roberson was an accomplice as a matter of law in the Kroger robbery, because he had been indicted for the Kroger robbery. See Goff v. State, 931 S.W.2d 537, 545 (Tex.Crim.App.1996); Badillo v. State, 963 S.W.2d 854, 857 (Tex.App.San Antonio 1998, pet. ref'd). None of the cases cited by Jackson involve witnesses who were accomplices to an extraneous offense. "Whether the rule applies to accomplice witness testimony concerning extraneous offenses properly proved by the State at the guilt-innocence stage has not been resolved.” 43 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 31.253 (West 2001); see Rice v. State, 605 S.W.2d 895, 903 (Tex.Crim.App. [Panel Op.] 1980) (op. on reh’g) (declining to decide issue).
      If the accomplice-witness rule were to apply to the extraneous offense, the State would be required to establish sufficient corroboration of Roberson’s testimony to connect Jackson to the Kroger robbery. Roberson’s testimony concerning the Kroger robbery was corroborated by Jackson's admission to Blay-lock that Jackson had committed that robbery, the shell casing found at the Kroger store and matched to the gun found at Jackson’s house, and the DNA analysis conducted on a hat left at the scene of the Kroger robbery by the suspects and containing DNA that did not exclude Jackson, but did exclude 99.98 percent of others in the population. The nonaccomplice evidence does not have to directly link the accused to the crime, does not have to establish guilt beyond a reasonable doubt, and need not prove all the elements of the alleged offense. Gill, 873 S.W.2d at 48; Munoz, 853 S.W.2d at 559. The nonaccomplice evidence tends to connect Jackson with the Kroger robbery. The corroboration of the accomplice testimony was sufficient as to the extraneous offense.

      . While the State contended that the hooded sweatshirt worn at the pawn shop was a disguise, we do not find that contention compelling.

      . The State argues, because the defense impeached Blaylock with the evidence that he received a $20,000.00 reward, the Kroger robbery was admissible to show Blaylock was willing to testily concerning the Kroger robbery despite not receiving a reward. Alternatively, the State argues the Kroger robbery was admissible to explain a typographical error in the search warrant which authorized the third search of Jackson's residence.

      . We note that, on at least two occasions, the Texas Court of Criminal Appeals has applied the "grave doubts" analysis instead of the “fair assurance” analysis. See Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App.2002); Ford v. State, 73 S.W.3d 923, 925 (Tex.Crim.App.2002); see also Aguirre-Mata v. State, 125 S.W.3d 473, 487 (Tex.Crim.App.2003) (Holcomb, J., dissenting). Under this analysis, which is roughly equivalent to the "fair assurance” analysis, the error is reversible if the court has “grave doubts” about whether an error did not affect the outcome. See Burnett, 88 S.W.3d at 637; see also O’Neal v. McAninch, 513 U.S. 432, 434, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). “Grave doubt” means "in the judge's mind, the matter is so evenly balanced that [the judge] feels himself in virtual equipoise as to the harmlessness of the error.” O'Neal, 513 U.S. at 434, 115 S.Ct. 992; Burnett, 88 S.W.3d at 637. The "grave doubts” analysis would result in the same conclusion as the "fair assurance” analysis. Despite the substantial evidence of guilt, we entertain grave doubts concerning whether the evidence did have a substantial or injurious influence on the jury. While the evidence of guilt favors a finding of harmless error, the character of the erroneously-admitted evidence and its connection to the other evidence favors a finding of harm. Our balancing concludes these factors are so evenly balanced that the decision regarding the harmlessness of the error is in "virtual equipoise.” Because we have grave doubts concerning whether the evidence did have a substantial or injurious influence, the error in admitting the extraneous evidence resulted in harm.


source: Caselaw Access Project

author: Justice MURPHY.

license: Public Domain

text:
    Mary Lou SHEEHAN, Appellant/Cross-Appellee, v. Bruce E. ADAMS, Sammi J. Adams, Appellees, and Lori Arnold d/b/a Coldwell Banker Apex Realtors, Appellee/Cross-Appellant.
    No. 05-08-01340-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 16, 2010.

      Chad Michael Ruback, The Ruback Law Firm, Dallas, TX, for Appellant/Cross-Ap-pellee.
    Russell H. Daniels, Bush & Motes, PC, Arlington, TX, Steven K. Terry, Newsom, Terry & Newsom, L.L.P., Dallas, TX, for Appellee/Cross-Appellant.
    Before Justices MORRIS, LANG, and MURPHY.
   OPINION

Opinion By

Justice MURPHY.

We must determine in this appeal whether legally sufficient evidence supports a jury’s statutory fraud and DTPA verdict in favor of Mary Lou Sheehan, the purchaser of a twenty-year old house located in Mesquite, Texas. Applying well-established law that a vital fact may not be established by piling inference upon inference, we conclude the evidence was legally insufficient to support the verdict. Accordingly, the trial court did not err when it granted a judgment notwithstanding the verdict. The trial court also did not abuse its discretion in failing to award appellate attorney’s fees to cross-appellant Lori Arnold d/b/a Coldwell Banker Apex Realtors. We affirm the trial court’s judgment.

I. BACKGROUND

In April 2002, Sheehan contacted Bethe-na Smith, a real estate agent associated with Coldwell Banker, to represent her in the purchase of her first house. Coldwell Banker is a real estate services firm. Around that same time, Bruce and Sammi Adams listed their house with Walter Cole, a real estate agent who was also associated with Coldwell Banker.

After twice visiting the Adamses’ house in May 2002, Sheehan signed a purchase contract. Pursuant to the contract, the Adamses delivered the “Seller’s Disclosure Notice” as required by section 5.008 of the Texas Property Code. See Tex. Prop.Code Ann. § 5.008 (Vernon Supp. 2009). Bruce filled out the seller’s disclosure, checking the box indicating he and Sammi were unaware of any defects or malfunctions in the foundation, walls, floors, ceilings, or roof. He further indicated that the only condition of which they were aware was “Settling.” Next to the box where he checked “Yes” for settling, Bruce inserted a handwritten comment in which he characterized the settling as “NORMAL.”

After he filled out the seller’s disclosure but before the house was inspected, Bruce called Cole about a “hairline crack” in the brick on the west side of the exterior of the house (the west-side crack). Pursuant to their discussion, Bruce made no changes to the disclosure.

Sheehan hired Randal Duncan, a licensed house inspector with All Pro Inspections, to perform the inspection. Sheehan’s primary concern for Duncan was the foundation because of the disclosure that the house had “normal” settlement. Duncan inspected the Adamses’ house on May 9, 2002 and, after a three-hour inspection, delivered a report to Sheehan. The Adamses, Sheehan, and Smith were present for the inspection, during which Duncan noticed some exteri- or cracks in the brick of the house. He did not note them on his report because he considered them normal for a house of that age. Duncan told Sheehan he found no problems with the foundation. His report specifically included the notation that the foundation was inspected and “[t]here were no signs of significant cracks or movement noted in the foundation at this time.” He did note roof and termite issues and recommended that Sheehan consult with a roofer. Sheehan signed the inspection agreement and termite report. Based on the inspection report, the parties amended the contract to require the Adamses to pay the roof repair cost.

Sheehan, with Smith present, conducted a final walk-through on May 15, 2002, the day before closing. Sheehan then signed the “Buyer’s ‘Walk Thru’ and Acceptance Form,” acknowledging her inspection of the property and noting the specific repairs, such as the roof replacement, to be completed before closing. She saw no cracks in the house’s interior and admitted she never looked at the exterior. The acceptance form included a notice that the “real estate brokers and the Seller have no knowledge of any defects in the Property other than what has been disclosed in the Seller’s Disclosure Notice or other written information.”

Closing was finalized May 16, 2002, and Sheehan moved in on May 29, 2002. In August 2002, Sheehan discovered cracks in the interior and exterior walls of the house. In an e-mail to Smith dated August 12, 2002, Sheehan wrote:

I just discovered some huge cracks in the walls in my bedroom and ceiling of the living room. I went outside and there is about a 3 foot vertical crack in the brick outside my bedroom wall. I’m pretty sure that it just happened. But isn’t this something that Randall Duncan should have been able to check out?

Sheehan wrote she was “very upset” and asked Smith what she should do. Smith responded that a “brick crack” in this “dry, hot weather” is not uncommon and recommended Sheehan hire a foundation expert. Smith also recommended that Sheehan follow a watering program “to keep the foundation stable.”

Two weeks later, on August 25, 2002, Sheehan received a proposal from Power Lift Foundation Repair, Inc. to perform foundation work. Power Lift estimated it would cost Sheehan $10,475 to “Halt settlement” and “Regain elevation as practical.” Power Lift also noted a recommendation: “Implement watering system to maintain consistent moisture level around perimeter of foundation.”

Sheehan also hired a geotechnical engineer, Edward Scoular, to assess the condition of the foundation. Scoular was a principal with Independent Foundation Engineers, Inc., a firm that specialized in evaluating foundations. Scoular prepared a report dated September 20, 2002, noting cracks in the mortar and brick, wall and ceiling sheetrock, and the foundation. Scoular did not offer an opinion as to when the foundation actually failed. Thereafter, Sheehan received a second proposal to fix the foundation, prepared by Ram Jack of Texas, Inc. On November 20, 2002, Power Lift also provided Sheehan with a revised proposal, which incorporated Scoular’s recommendations.

Sheehan originally made written demand on the Adamses and Duncan seeking payment for foundation repairs. After filing suit, she settled her claims against Duncan and All Pro, and those claims were dismissed.

Sheehan sued the Adamses and Arnold, alleging violations of the Texas Deceptive Trade Practices and Consumer Protection Act, fraud, breach of contract, and breach of fiduciary duty. All allegations were premised on a claim the house had a foundation problem that was both misrepresented and not disclosed. After the jury returned a verdict in favor of Sheehan, the trial court granted motions for JNOV by the Adamses and Arnold and rendered judgment that Sheehan take nothing on her claims. The judgment also included an award of attorney’s fees in favor of Arnold and against Sheehan through trial. The trial court made no findings of fact, however, regarding appellate fees and concluded Arnold was not entitled to such recovery.

Both Sheehan and Arnold appeal the trial court’s judgment. In Sheehan’s first issue, she contends the trial court erred in granting the motions for JNOV because the record contains legally sufficient evidence to support the jury’s findings that the Adamses violated the DTPA and the Adamses and Arnold committed statutory fraud.

II. STANDARD OF REVIEW AND APPLICABLE LAW

A judgment notwithstanding the verdict is proper when (1) there is no evidence to support one or more of the jury findings on issues necessary to liability, or (2) a legal principle precludes recovery. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.2003) (per curiam); John Masek Corp. v. Davis, 848 S.W.2d 170, 173 (Tex.App.-Houston [1st Dist.] 1992, writ denied).

We review challenges to a trial court’s ruling on a motion for JNOV under the same legal-sufficiency test applied to appellate no-evidence challenges. City of Keller v. Wilson, 168 S.W.3d 802, 822-23, 827 (Tex.2005). Under that standard, we consider the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. Id. at 822. We credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. Id. at 827. If more than a scintilla of probative evidence supports the finding, the legal sufficiency challenge fails. Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex.2004). More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Transp. Ins. Co. v. Monel, 879 S.W.2d 10, 25 (Tex.1994). In contrast, evidence that creates no more than “a mere surmise or suspicion of its existence” is only a scintilla and, thus, no evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)); see also Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex.2001) (per curiam) (Phillips, C.J., concurring and dissenting) (if evidence is “so slight that any plausible inference is purely a guess, it is in legal effect no evidence”).

A jury’s verdict or finding may be based on inferences that are fairly drawn from the facts in evidence. Briones v. Levine’s Dep’t Store, Inc., 446 S.W.2d 7, 10 (Tex.1969); see also Lozano, 52 S.W.3d at 149 (circumstantial evidence may be used to establish any material fact). A vital fact, however, may not be established by piling inference upon inference. Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 858 (Tex.1969); see also Rounsaville v. Bullard, 154 Tex. 260, 276 S.W.2d 791, 794 (1955). Thus, “facts from which an inference may properly be drawn must be established by direct evidence, not by other inferences.” Entex, A Div. of Noram Energy Corp. v. Gonzalez, 94 S.W.3d 1, 8 (Tex.App.-Houston [14th Dist.] 2002, pet. denied) (citing Rounsaville, 154 Tex. 260, 276 S.W.2d at 794).

III. DISCUSSION

A. JNOV in favor of Bruce and Sammi Adams

Sheehan relies on the same evidence to support her argument the evidence was legally sufficient to support both the jury’s DTPA and statutory fraud findings against the Adamses. Those claims are based solely on the seller’s disclosure notice of “normal” settling and the indication of no significant problems with the foundation.

Sheehan first contends the jury could infer from the evidence that a west-side crack on the exterior of the house, coupled with interior cracks that were repaired, were symptoms of foundation problems and abnormal settling. From those inferences, she suggests the jury could reasonably infer the Adamses violated the DTPA by representing the house had characteristics which it did not have and that the house was another grade, quality, or standard than the one represented. Similarly, Sheehan argues the jury could reasonably infer from the inferences of foundation problems and abnormal settling that the Adamses made false statements.

She begins by relying on testimony of the Adamses about interior cracks they hired construction workers to repair in early 2002 and the testimony of one of the workers, Gary Ratliff. Ratliff described “a lot of cracks” and that the cracks were “not normal for movement of just a house.” He testified he repaired about twenty cracks on all sides of the interior of the house and described the work as a major house repair. He also said he saw three hairline cracks in the foundation before Sheehan purchased the house. There was no photographic evidence of any of the cracks he described, and he testified that when he saw the house several years later, the condition of the house was 80% worse than his first visit.

Sheehan also relies on testimony about the west-side crack. Bruce and Sammi testified they knew about the west-side crack and that Bruce had been aware of it for four years. Sheehan places significance on a telephone call between Bruce and Cole after Bruce completed the disclosure notice but before the inspection. After describing a “hairline” crack on the exterior of the house that had not “done anything for four years,” Cole told him such a crack was not “unusual for a house that age” and explained that the inspector would see it and make any recommendations for a foundation company or engineer to look at the house. Sheehan maintains Bruce “was apparently concerned” about the settling representations and asked Cole whether they should amend the seller’s disclosure notice “in light of the crack on the outside of the house.” She argues that despite knowing about the west-side crack, the Adamses nevertheless represented in the seller’s disclosure that the house had no foundation problems and the settling was “normal.” Sheehan testified she would not have bought the house had she known about the foundation problems.

Sheehan had no photographic evidence that depicted the cracks on the day she moved into her house. She did not take a picture of the west-side crack until October 2, 2002, nearly two months after she first saw the crack in August 2002. The October 2002 photograph of the west-side crack was offered as Exhibit 46 and will be referred to as such.

1. DTPA Claims

The jury was asked whether Bruce and Sammi Adams engaged in “any false, misleading, or deceptive act or practice that [Sheehan] relied on to her detriment and that was the producing cause” of her damages. The jury was instructed that a “[f]alse, misleading, or deceptive act or practice” means any of the following: (1) “Representing that the house is or will be of a particular standard, quality, or grade if it is of another” (Tex. Bus. & Com.Code Ann. § 17.46(b)(7) (Vernon Supp. 2009)); (2) “Representing that the house would have characteristics that it did not have” (id. § 17.46(b)(5)); or (8) “Failing to disclose information about the house that was known at the time of the transaction with the intention to induce [Sheehan] into a transaction she otherwise would not have entered into if the information had been disclosed” (id. § 17.46(b)(24)) [Question No. 5]. If they answered “Yes” to question five, the jury was then asked whether the Adamses engaged in such conduct knowingly, meaning they had “actual awareness of the falsity, deception, or unfairness” of the act or practice. [Question No. 6].

To prevail on a DTPA claim, Sheehan had to establish the Adamses violated a specific provision of the Act, that the violation was a producing cause of her injury, and that she relied on the false, misleading, or deceptive act or practice to her detriment. Id. § 17.50(a)(1); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex.1996). The Adamses cannot be held liable under the DTPA for “failing to disclose information [they] did not actually know.” Prudential Ins. Co. of Am. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 162 (Tex.1995); see also Pfeiffer v. Ebby Halliday Real Estate, Inc., 747 S.W.2d 887, 889-90 (Tex.App.-Dallas 1988, no pet.). That is because under section 17.46(b)(24), the failure to disclose information requires the Adamses to have known the information at the time of the transaction and failed to bring it to Shee-han’s attention. Tex. Bus. & Com.Code Ann. § 17.46(b)(24). Proof that the Adamses should have known the information is not enough. Prudential Ins. Co., 896 S.W.2d at 162; Rich v. Olah, 274 S.W.3d 878, 887 (Tex.App.-Dallas 2008, no pet.).

No witness testified to seeing the crack as it appeared in Exhibit 46 in April or May 2002. Specifically, Sheehan, Smith, and Cole all testified they saw no exterior cracks in April or May 2002. The Adams-es testified they knew about the west-side crack, but at that time, it was just a small hairline crack, too thin to insert a piece of paper. Bruce testified it had not changed much in four years. Duncan also testified he saw a crack in the brick, but it was just a small crack that did not otherwise alarm him or require notation on his inspection report.

Sheehan’s experts all testified that a crack does not necessarily evince a foundation problem without more. Scoular testified that foundations can bend and flex, and that such bending can cause cracks. Scoular also testified that if all that existed was a hairline crack and nothing else, this would be a minor issue. He affirmed that foundations can fail within weeks. Similarly, Phillip Carter, a vice president of Ram Jack, testified foundation movement that causes cracks does not necessarily mean the foundation itself has cracked. Sheehan never noticed any cracks after the time she moved into her house, and when she e-mailed Smith in August of 2002, she indicated the cracks “just happened.”

The Adamses testified they repaired two cracks in the house’s interior and fixed some bedding and taping in spots on the vaulted ceilings. Ratliff testified to mak-mg the repairs. While Ratliff characterized the interior repairs as “major,” no witness agreed that his testimony was accurate. Even considering the repairs as major, neither Ratliff nor any other witness connected those interior repairs or visual cracks to a foundation failure at the time the repairs were completed in early 2002. See Pfeiffer, 747 S.W.2d at 890 (previous repairs and problems without evidence of the relationship to “foundation problems” insufficient). Scoular testified he saw signs of repairs, but he was unsure when the repairs were made and did not opine as to when the foundation actually failed.

Sheehan admits the only representations that form the basis of her DTPA complaints were those made by Bruce when he filled out the seller’s disclosure notice. Section 5.008 of the Texas Property Code requires the seller to complete the notice “to the best of seller’s belief and knowledge as of the date the notice is complet-ed_” Tex. Prop.Code Ann. § 5.008(d). Bruce indicated on that notice that neither he nor Sammi were aware of any defects or malfunctions with the foundation, but they were aware that “normal” settling had occurred. The seller’s disclosure form also included a notice that it was a “DISCLOSURE OF SELLER’S KNOWLEDGE OF THE CONDITION OF THE PROPERTY” as of the date signed and that it was “NOT A SUBSTITUTE FOR ANY INSPECTIONS OR WARRANTIES” buyer might wish to obtain. The disclosure form further contained the notice that it was “NOT A WARRANTY OF ANY KIND BY SELLER, SELLER’S AGENTS, OR ANY OTHER AGENT.” Bruce and Sammi each signed the disclosure on April 24, 2002; Sheehan signed on May 14, 2002. Immediately above the parties’ signatures, the disclosure included an additional notice to the buyer: “YOU ARE ENCOURAGED TO HAVE AN INSPECTOR OF YOUR CHOICE INSPECT THE PROPERTY.”

In disclosing facts to a buyer, a seller is charged only with disclosing those material facts that “put a buyer exercising reasonable diligence on notice of the condition of the house.” Cole v. Johnson, 157 S.W.3d 856, 860 (Tex.App.-Fort Worth 2005, no pet.). The evidence shows Bruce’s disclosure of “settling” had an effect on Sheehan; she testified that this disclosure raised a “red flag” about the foundation. In fact, she hired Duncan to perform an inspection, and the first thing she asked him when he finished was whether he saw any problems with the foundation.

The Adamses knew the house experienced settling. Yet there is no direct evidence of a defect in May 2002; and there is no evidence either Bruce or Sammi Adams actually knew, based on the nature of the cracks as they existed at the time, that the settling was abnormal or that an actual defect existed. Rather, Cole agreed that based on what he saw in the house, “normal” was a good word to use. Rat-liffs testimony that he saw three hairline cracks in the foundation and that the interior cracks were “not normal” house movement is insufficient evidence to support a finding of the Adamses’ knowledge of a defective condition or abnormal settling prior to Sheehan’s purchase. See Pfeiffer, 747 S.W.2d at 890.

Moreover, the Adamses never represented to Sheehan that the foundation was in good condition. Instead, they checked the box indicating they were unaware of any foundation defects or malfunctions. Sheehan’s own inspector, Duncan, was the only person who offered an opinion, after his inspection, that there were no problems with the foundation.

The jury’s findings may be upheld without direct evidence as long as the conclusion may fairly and reasonably be inferred from the facts. See Briones, 446 S.W.2d at 10; Lozano, 52 S.W.3d at 149 (circumstantial evidence may be used to establish any material fact). Here, no witness opined the foundation had a defect or malfunction in May 2002. Sheehan’s position requires the jury to infer first that a foundation defect or malfunction existed in May 2002. Then, from knowledge of a hairline crack and interior repairs, the jury had to infer that the Adamses must have known the foundation was broken at the time they sold the house to Sheehan. This vital fact may not be established by piling inference upon inference. See Schlumberger Well Surveying Corp., 435 S.W.2d at 858. Not even Sheehan’s own expert opined as to when the foundation failed. While Ratliff testified he saw hairline foundation cracks at the time he performed the interior repairs, he testified he did not inspect the foundation. Nor did his testimony establish a foundation failure at that time. Without any direct evidence, the multiple inferences the jury was required to draw to reach its verdict that the Adamses misrepresented a foundation defect are, in effect, no evidence. See id,.; see also Ford Motor Co., 135 S.W.3d at 601 (mere surmise or suspicion is no evidence).

For Sheehan to recover on her claim the Adamses failed to disclose a foundation defect, she must show the facts the Adamses failed to disclose were material. Pfeiffer, 747 S.W.2d at 889. As demonstrated, the record is void of any direct evidence of omission of a material fact, and Sheehan cannot support a verdict built only on inferences. Schlumberger, 435 S.W.2d at 858. The facts disclosed actually raised “red flags” to Sheehan that there could be foundation problems, and she acted on the disclosure by hiring, directing, and questioning her inspector specifically about her concern. Even if direct evidence supported the inference the Adams-es knew of a problem, Sheehan points to no evidence that the west-side crack as shown in Exhibit 46 existed in May 2002. Of those who actually noticed a crack, they all described it as “hairline.” The hairline crack and interior repairs are not evidence Bruce or Sammi knew of a foundation failure at that time or that the settling disclosed was anything but normal. One cannot be held liable under the DTPA for failure to disclose facts they do not know. Pfeiffer, 747 S.W.2d at 890 (citing Robinson v. Preston Chrysler-Plymouth, Inc., 633 S.W.2d 500, 502 (Tex.1982)).

We conclude the evidence is legally insufficient to support the jury’s finding in question five that Bruce and Sammi Adams violated a provision of the DTPA. Because the jury’s answer to question six was conditioned on an affirmative finding in question five, we do not reach the question of whether the evidence supports a finding that Bruce and Sammi knowingly engaged in a false, misleading, or deceptive act or practice. We turn to the question of whether the evidence is legally sufficient to support the jury’s finding of statutory fraud.

2. Statutory Fraud

Like Sheehan’s DTPA claims, her statutory fraud claim is premised on the representations Bruce made in the seller’s disclosure statement. To recover for fraud under section 27.01 of the Texas Business and Commerce Code, Sheehan had to show the Adamses made a false representation of a past or existing material fact, to her, for the purpose of inducing her to enter into a contract and that she relied on the false representation in entering into that contract. Tex. Bus & Com. Code Ann. § 27.01(a)(1) (Vernon 2009). “[P]ure expression^] of opinion will not support an action for fraud.” Transp. Ins. Co. v. Faircloth, 898 S.W.2d 269, 276 (Tex.1995); Trenholm v. Ratcliff, 646 S.W.2d 927, 930 (Tex.1983). Whether a statement is an actionable statement of “fact” or merely one of “opinion” depends on the circumstances in which the statement is made. Transp. Ins. Co., 898 S.W.2d at 276.

Sheehan again argues if the jury inferred the interior and exterior cracks are symptoms of foundation problems and abnormal settling, it would be reasonable for the jury to have inferred that the representations related to the foundation and normal settlement were false. Further, because the Adamses were trying to sell their house, the jury could reasonably infer they made the representations for the purpose of inducing Sheehan to buy their house.

Under section 5.008 of the Texas Property Code, the Adamses are required to complete the form to the best of their belief and knowledge. Tex. Prop.Code Ann. § 5.008(d). The notice provisions on the disclosure that both the Adamses and Sheehan signed warned further that the disclosure was based on the seller’s knowledge of the condition of the property and was not a warranty of any kind, was not a substitute for any inspections, and the buyer was encouraged to have an inspector of buyer’s choice inspect the property. As described above, Sheehan offered no direct evidence of a material defect existing in May 2002 or that the Adamses’ “belief and knowledge” as to the settling was false. There was also no evidence that the Adamses intended anyone who read the disclosure to fail to inspect the property in reliance on the disclosure of “normal” settling. Rather, Bruce was told by Cole that the inspector would follow up on the disclosure, and Sheehan read the disclosure to see if anything “stood out.” The words “settling” and “normal” caused Sheehan to take actions to determine what the language meant and to assure herself no foundation problems existed.

Reviewing this record in the light most favorable to the jury’s verdict, we cannot conclude more than a scintilla of probative evidence supports the finding that the Adamses made a false representation of a past or existing material fact on which Sheehan relied. Without any direct evidence, the multiple inferences Sheehan cites to support her verdict amount to no more than mere suspicion and, thus, no evidence. Ford Motor Co., 135 S.W.3d at 601. We therefore conclude the evidence in support of Sheehan’s statutory fraud claim is legally insufficient. Because the evidence in support of Sheehan’s DTPA and statutory fraud claims is legally insufficient, we conclude the trial court correctly granted a judgment notwithstanding the verdict in favor of the Adamses.

B. JNOV in favor of Lori Arnold

Sheehan’s claims against Arnold are premised on Arnold’s liability for the conduct of Cole. Tex. Occ.Code Ann. 1101.803 (Vernon 2009) (broker is liable for “any conduct engaged in ... by a salesperson associated with or acting for the broker”). Cole affiliated his real estate agent’s license with Arnold’s broker’s license and was associated with Coldwell Banker. Sheehan asserts Arnold, through her agent Cole, committed fraud because Cole “didn’t disclose known defects in the house.”

In question eight, the jury was asked whether Cole committed statutory fraud against Sheehan. See Tex. Bus. & Com. Code Ann. § 27.01(d). Answering that question, however, was conditioned on an affirmative answer that the Adamses committed statutory fraud. Because we conclude there is legally insufficient evidence to support the jury’s finding that Bruce and Sammi Adams committed statutory fraud, question eight must be disregarded. Accordingly, the trial court properly granted a judgment notwithstanding the verdict in favor of Arnold.

Sheehan’s second issue concerning attorney’s fees is also contingent. Because we have resolved Sheehan’s first issue against her, we do not reach issue two. Tex.R.App. P. 47.1.

IV. CROSS-APPEAL

By cross-appeal, Arnold asserts under a legal sufficiency standard that she conclusively established all vital facts in support of her recovery of appellate attorney’s fees, and the trial court abused its discretion in failing to award those fees. It is Arnold’s burden to bring a record showing the trial court abused its discretion. See Sanchez v. AmeriCredit Fin. Servs., Inc., 308 S.W.3d 521, 526 (Tex.App.-Dallas 2010, no pet.).

Here, Arnold fails to identify where in the record she made a legal claim for attorney’s fees. See Tex.R.App. P. 38.1(i) (the brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and record). The record also fails to show a pleading in which she ever requested attorney’s fees. See Tex.R. Civ. P. 301 (trial court’s judgment must conform to pleadings); see also Ex parte Fleming, 532 S.W.2d 122, 123 (Tex.Civ.App.-Dallas 1975, no writ) (court’s jurisdiction to render judgment is invoked by pleadings; judgment unsupported by pleadings is void). Additionally, we do not know the basis for the trial court’s denial of appellate attorney’s fees. See Sanchez, 308 S.W.3d at 526. And we must presume that a trial court acted within its discretion unless the record discloses the contrary. Navistar Int’l Corp. v. Valles, 740 S.W.2d 4, 6 (Tex.App.-El Paso 1987, no writ).

On this record, we cannot conclude the trial court abused its discretion by failing to award appellate fees. We overrule Arnold’s cross-point.

V. CONCLUSION

Having overruled Sheehan’s issues and Arnold’s cross-point, we affirm the judgment of the trial court.


author: MACKEY K. HANCOCK, Justice. JAMES T. CAMPBELL, Justice,

text:
    Rocky A. HILL, Appellant, v. The STATE of Texas, Appellee.
    No. 07-09-00323-CR.
    Court of Appeals of Texas, Amarillo, Panel A.
    Aug. 19, 2010.

      Ronald Delarose, Attorney at Law, Lubbock, TX, for Appellant.
    Kollin Shadle, Assistant Criminal District Attorney, Lubbock, TX, for Appellee.
    Before CAMPBELL and HANCOCK and PIRTLE, JJ.
   OPINION

MACKEY K. HANCOCK, Justice.

Appellant, Rocky A. Hill, entered a plea of guilty to four counts of aggravated robbery without benefit of any plea bargain. After hearing the punishment evidence, the trial court assessed appellant’s punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a period of 20 years on each count. Appellant appeals this judgment. We affirm.

Factual and Procedural Background Appellant presents a single issue for our consideration. Because the issue raised by appellant does not touch upon the legal or factual sufficiency of the evidence to support the convictions, we will limit our recitation of the facts to those that are germane to the issue.

Appellant was indicted on four counts of aggravated robbery on March 25, 2008. On July 9, 2008, appellant’s trial counsel filed a motion suggesting appellant’s incompetency to stand trial, and requesting that the trial court enter an order for the examination of appellant by a competent expert. The trial court entered an order to have appellant examined by Dr. Robert Morgan to determine appellant’s competency to stand trial. Appellant was examined by Dr. Robert Morgan and Dr. Lucas Shaw. Based on the examination, the doctors reported back to the trial court that appellant was competent to stand trial. Subsequent to the competency examination, appellant’s trial counsel filed a request to have appellant examined regarding the issue of an insanity defense. On October 29, 2008, the trial court ordered a second examination by Dr. Morgan on the issue of competency to stand trial. Notwithstanding the trial court’s order, Dr. Morgan examined appellant concerning insanity on July 28, 2009. The report of this examination was filed with the district clerk’s office on August 5, 2009.

On August 17, 2009, appellant entered guilty pleas, to each of the four counts of aggravated robbery. After receiving appellant’s guilty pleas the trial court ordered a pre-sentence investigation and set the hearing on punishment for August 31, 2009. During the punishment hearing, both Dr. Morgan and Dr. Shaw testified about the results of the competency examination and the examination conducted for purposes of an insanity defense. Each doctor testified that appellant was competent to stand trial and that, at the time of commission of the indicted offenses, the appellant “was not suffering from a mental disease or defect such that he did not know that his conduct was wrong.” Both doctors did testify that appellant suffered from various mental health issues ranging from psychotic disorder not otherwise specified, poly-substance dependence, and malingering. Appellant’s family also presented testimony regarding appellant’s apparent mental health issues. After hearing all of this evidence, the trial court sentenced appellant to four concurrent 20 year sentences. It is from these judgments that appellant appeals.

Appellant presents a single issue alleging that “the trial court abused its discretion in failing to give due weight and consideration to the mental disposition of the [appellant] and the possible effect of not having available the diagnosis of the unclassified psychosis to inform its determination of the level of punishment to assess.” This issue is multifarious, at best, and makes it difficult for the Court to determine what action the trial court took or failed to take that led to appellant’s rights being violated or the entry of an erroneous judgment. See Tex.R.App. P. 38.1(f). However, we will consider the issue raised in light of the brief filed and try to determine, with reasonable certainty, the alleged error of which appellant complains. See Stults v. State, 23 S.W.3d 198, 205 (Tex.App.-Houston [14th Dist.] 2000, pet. ref d).

Appellant appears to argue that, based on the evidence presented during the punishment hearing, the trial court had a duty to stop the punishment hearing on its own motion, and order appellant be further examined for purposes of an insanity defense. Additionally, appellant appears to contend that this court should change the law in the State of Texas to recognize “irresistible impulse” as a defense to prosecution under the provisions of the insanity defense. We find no error in the procedure followed by the trial court and, therefore, we will affirm the trial court’s judgment.

Raising the Insanity Defense

A criminal defendant who desires to raise the insanity defense does so by following the guidelines set forth in chapter 46C of the Texas Code of Criminal Procedure. See Tex.Code Cpjm. PRoc. Ann. ch. 46C. Under Texas law, insanity is an affirmative defense to prosecution. See Tex. Penal Code Ann. § 8.01 (Vernon 2003), Martinez v. State, 867 S.W.2d 30, 34 (Tex.Crim.App.1993). Under the current statutory scheme, a criminal defendant is required to file a notice of intent to raise an insanity defense at least 20 days before the ease is set for trial. See Tex.Code Crim. Proc. Ann. art. 46C.051(b)(2). This process must be met or the criminal defendant will not be allowed to introduce evidence on the issue of insanity, absent good cause for failure to give the required notice. See art. 46C.052.

In the case before the Court, appellant’s counsel did not give the required notice. The record reflects that a report of the doctors’ second examination of appellant was filed in the district clerk’s office on August 5, 2009. This is within the 20 day period of the statute. See art. 46C.051(b)(2). However, appellant’s trial counsel did not seek either a continuance or a ruling that good cause existed for not giving the requisite 20 day notice. Whether or not counsel should have done either is not an issue before this Court. Simply speaking, any claimed error relating to the trial court’s failure to consider evidence of appellant’s insanity defense was not preserved for our review. See Rule 33.1(a)(1)(A).

As to appellant’s contention that the trial court should have sua sponte stopped the punishment hearing upon receiving evidence of appellant’s mental health issues, appellant has presented no authority for that proposition. Although appellant likens that procedure to the procedure adopted for determining the competency of an individual to stand trial, such comparison is without any authority. In fact, in ruling on the issue of the trial court’s duty to sua sponte order an examination for purposes of an insanity defense under the previous statute, our sister court has held that, since no notice was filed, there was no issue of insanity before the trial court and the trial court had no duty to sua sponte order any type of psychiatric examination. See Gomez v. State, Nos. 14-99-00465-CR & 14-99-00466-CR, 2001 WL 306275, at *3-4, 2001 Tex.App. LEXIS 2094, at *9-*12 (Tex.App.-Houston [14th Dist.] Mar. 29, 2001, pet. refd) (not designated for publication). We agree with the Gomez court, and hold that the trial court has no duty to sua sponte stop the punishment hearing to order a psychiatric examination for purposes of an insanity defense when no timely notice of intent to pursue such a defense has been given. Accordingly, appellant’s issue as to the sua sponte duty of the trial court is overruled.

Conclusion

Having overruled appellant’s contention, the judgment of the trial court is affirmed.

CAMPBELL, J., concurring.

JAMES T. CAMPBELL, Justice,

concurring.

The court construes Gomez to hold that the trial court had no duty sua sponte to order a psychiatric examination to determine the defendant’s sanity at the time of the offense because the defendant failed to file the notice required by statute of his intention to offer evidence on such a defense. See Gomez, 2001 WL 306275, at *8-4, 2001 Tex.App. Lexis 2094, at *9-*12 (citing Tex.Code Crim. Proc. Ann. art. 46.03 § 2(a)(1) (Vernon 1979) (now art. 46C.052)). While not inaccurate, the court’s description of Gomez and its application to this case could leave the impression that the outcome here might be different if counsel simply had filed the statutorily-required notice. But such is not the case, as a broader application of Gomez makes clear. As Gomez says, the defendant there neither filed the notice of intention to offer evidence on an insanity defense, nor specifically alleged she was insane. Gomez, 2001 WL 306275, at *3, 2001 Tex.App. Lexis 2094, at *10-*11. The opinion goes on to state that “insanity was not an issue at [Gomez’s] plea hearing or sentencing; rather, [Gomez] submitted the affidavits [allegedly containing indications of insanity] for the purpose of obtaining community supervision in lieu of confinement.” Id. at *3, 2001 Tex.App. Lexis 2094, at *11.

Similar statements can be made in this case. Although appellant’s experienced trial counsel sought both competency and insanity examinations of appellant, and both examinations were conducted, by the time of appellant’s plea hearing, neither his competency to stand trial nor his sanity at the time of the offenses was at issue. Moreover, as the court points out, the statutory consequence of a defendant’s failure to give notice of intention to offer evidence on an insanity defense is that the evidence is not admissible absent good cause for the lack of notice. Tex. Code Crim. Proc. Ann. art. 46C.052 (Vernon 2006). Here, the trial court deferred a finding of guilt until it heard the punishment evidence. Before the finding of guilt, without objection from the State, appellant called four witnesses, including the psychologists who performed the competency and insanity examinations. He thoroughly examined both experts. So appellant suffered no exclusion of evidence. Moreover, as I read it, his questioning of the psychologists was not directed at showing an insanity defense (which, of course, would have been inconsistent with his guilty plea in the first place, see Ex parte Williams, 703 S.W.2d 674, 682 (Tex.Crim.App.1986) (“[a] plea of guilty waives all nonjurisdictional defenses ... ”)), but at showing his need for treatment rather than merely a long prison sentence. In that effort, appellant had some success, as his sentence was far short of the maximum available to the trial court.

As I see it, appellant is like Gomez in that insanity was not an issue at his plea hearing or his sentencing, and his evidence of his mental condition was aimed at mitigating his punishment, not asserting his insanity. His ability .to accomplish that aim was not affected by his failure, vel non, to give notice of an intention to assert insanity. With these additional comments, I join the opinion and judgment of the court.

      . See Tex. Penal Code Ann. § 29.03(a)(3) (Vernon 2003).

      . See Tex Code Crim. Proc. Ann. ch. 46B. (Vernon Supp.2009).

      . See Tex.Code Crim Proc. Ann. cli. 46C. (Vernon 2006).

      . See Tex.Code Crim. Proc. Ann. art. 42.12(9) (Vernon Supp.2009).

      . Further reference to the Rules of Appellate Procedure will be by reference to “Rule

      . Further reference to the Texas Criminal Procedure Code shall be by reference to "art.

      . Most of appellant's argument regarding the sua sponte duty of the trial court is premised upon the proposition that "irresistible impulse” should be a part of the insanity defense in the State of Texas. However, "irresistible impulse” is not now, nor has it ever been, recognized as a part of the affirmative defense of insanity by the jurisprudence of the State of Texas. See Freeman v. State, 166 Tex.Crim. 626, 317 S.W.2d 726, 730 (1958). For this court to include such a doctrine into the affirmative defense doctrine of insanity would involve this Court making the law and not simply insuring that the law is followed. See Rodriguez v. State, 953 S.W.2d 342, 353 (Tex.App.-Austin 1997, pet. ref'd) (citing Turner v. Cross, 83 Tex. 218, 18 S.W. 578, 579 (1892)). This we cannot do.