author:
SUE WALKER, Justice.
      LEE ANN DAUPHINOT, Justice,

text:
    Shannon WILLIAMS, Appellant, v. The STATE of Texas, State.
    No. 2-08-336-CR.
    Court of Appeals of Texas, Fort Worth.
    March 4, 2010.

      Avery McDaniel, Nicholas G. Davis, Fort Worth, for Appellant.
    Joe Shannon, Jr., Crim. Dist. Atty., Charles M. Mallín, Danielle A. Kennedy, Allenna Bangs, Heather Davenport, Asst. Crim. Dist. Attys., Fort Worth, for Appel-lee.
    Panel: DAUPHINOT, WALKER, and McCOY, JJ.
   OPINION

SUE WALKER, Justice.

I. Introduction

A jury found Appellant Shannon Williams guilty of driving while intoxicated (DWI), and the trial court assessed his punishment at sixty days in jail, probated for eighteen months, and a $750 fine. In two points, Williams contends that the evidence is factually insufficient to sustain his conviction and that the trial court erred by including the per se theory of intoxication in the jury charge. We will affirm.

II. Factual and Procedural Background

One night at approximately 1:18 a.m., Officer Nicholas Brown of the Fort Worth Police Department saw Williams’s vehicle run a red light and change lanes without signaling. Officer Brown activated his overhead lights and stopped Williams. Officer Brown noticed that Williams had a “heavy odor of alcohol about him,” bloodshot eyes, and slurred speech. Officer Brown asked Williams if he had been drinking, and Williams said he had consumed three or four beers that night.

Officer Brown called for a DWI Unit and spoke with Officer Dena Evans, a DWI investigator who asked Officer Brown to begin field sobriety tests until she arrived. Officer Brown administered the horizontal gaze nystagmus test on Williams and, based on Williams’s performance, concluded that Williams had alcohol in his system. When Officer Brown asked Williams to perform the walk and turn test, Williams refused and “just turned around, put his hands behind his back[,] and said, ‘I’m not doing anything else.’ ” Officer Brown arrested Williams.

Officer Evans arrived at 1:36 a.m. and put Williams in her patrol car. She smelled an odor of alcohol on him. While en route to the jail, Williams lay down in the backseat of the patrol car. Officer Evans testified that “[Williams] was definitely passed out.” When they arrived at the jail, Williams told Officer Evans that he was going to throw up and to hurry and let him out. Williams threw up in the sally port.

Officer Evans took Williams to the in-toxilyzer room, where she had him perform the one-leg stand and walk-and-turn tests. Officer Evans testified that Williams was slow to respond to her instructions during the field sobriety tests. Williams swayed during the one-leg stand test. He could not keep his balance while listening to directions and while performing the walk-and-turn test, and he had to reach for the wall for support at one point.

Williams took the intoxilyzer test at approximately 2:46 a.m. and 2:48 a.m., about ninety minutes after Officer Brown had stopped him; the results of both tests showed that his alcohol concentration was 0.097 at that time.

Williams was charged by information with DWI “by not having the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body or by having an alcohol concentration of at least 0.08.” At trial, Officer Brown, Officer Evans, and the senior forensic chemist for the Tarrant County Medical Examiner’s office testified for the State. The State played two videotapes for the jury. State’s Exhibit 1 is a videotape of the beginning of Officer Brown’s stop of Williams. State’s Exhibit 3 is a videotape of the inside of Officer Evans’s car while she transported Williams to the jail and of Williams performing the field sobriety tests inside the intoxilyzer room. The State also introduced the results of Williams’s intoxilyzer tests.

After both sides rested, Williams objected to the inclusion of the per se theory of intoxication in the jury charge, claiming that the State had failed to present any evidence that his alcohol concentration was 0.08 or more “at the time Mr. Williams was driving.” [Emphasis added.] The trial court overruled his objection and charged the jury on both the impairment and per se theories of intoxication. The jury entered a general verdict of “guilty” without specifying which definition of intoxication it found applied to Williams.

III. Factual Sufficiency of the Evidence

In his second point, Williams argues that factually insufficient evidence existed that he was intoxicated under either of the two statutory definitions of intoxication. Specifically, Williams contends that “the State enjoyed a lower standard when attempting to prove the [impairment] definition of intoxication because the jury was allowed to consider convicting on insufficient evidence” and that factually insufficient evidence existed that his alcohol concentration was 0.08 or more for the per se definition of intoxication.

A. Standard of Review

When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. Neal v. State, 256 S.W.3d 264, 275 (Tex.Crim.App.2008), cert. denied, — U.S. -, 129 S.Ct. 1037, 173 L.Ed.2d 471 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App.2006). We then ask whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the factfinder’s determination is clearly wrong and manifestly unjust or whether conflicting evidence so greatly outweighs the evidence supporting the conviction that the factfinder’s determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704 (Tex.Crim.App.2008); Watson, 204 S.W.3d at 414-15, 417. To reverse under the second ground, we must determine, with some objective basis in the record, that the great weight and preponderance of all the evidence, though legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.

In determining whether the evidence is factually insufficient to support a conviction that is nevertheless supported by legally sufficient evidence, it is not enough that this court “harbor a subjective level of reasonable doubt to overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly wrong or manifestly unjust simply because we would have decided differently than the jury or because we disagree with the jury’s resolution of a conflict in the evidence. Id. We may not simply substitute our judgment for the factfinder’s. Johnson v. State, 23 S.W.3d 1, 12 (Tex.Crim.App.2000); Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). Unless the record clearly reveals that a different result is appropriate, we must defer to the jury’s determination of the weight to be given contradictory testimonial evidence because resolution of the conflict “often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8. Thus, unless we conclude that it is necessary to correct manifest injustice, we must give due deference to the factfinder’s determinations, “particularly those determinations concerning the weight and credibility of the evidence.” Id. at 9. Our deference in this regard safeguards the defendant’s right to a trial by jury. Lancon, 253 S.W.3d at 704. An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant’s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003). The existence of an alternative reasonable hypothesis may be relevant to, but is not determinative in, a factual review. Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App.1999).

B. Factually Sufficient Evidence

The impairment and per se theories of intoxication do not involve separate violations of the law. Bagheri v. State, 119 S.W.3d 755, 762 (Tex.Crim.App.2003). Instead, they set forth “alternate means by which the State may prove intoxication, rather than alternate means of committing the offense.” Id. When a trial court submits alternate means by which the State may prove intoxication, the evidence is sufficient to support a general verdict of “guilty” if it is sufficient to prove any one of the alleged means. Id. at 762 n. 5; Reardon v. State, 695 S.W.2d 331, 334 (Tex.App.-Houston [1st Dist.] 1985, no pet.). Consequently, in a factual sufficiency review, factually sufficient evidence of dither theory of intoxication will support the jury's finding of guilt. See Bagheri, 119 S.W.3d at 762 n. 5.

Here, because the jury could convict Williams if it found that he was driving while intoxicated under either the impairment or per se definition of “intoxicated” and because the jury entered a general verdict of “guilty,” factually sufficient evidence of either theory will support the jury’s finding. See id. Regarding the impairment definition of “intoxicated,” the evidence at trial demonstrated that Williams ran a red light and changed lanes several times without signaling. Officer Brown testified that Williams smelled of alcohol; that he had red, bloodshot eyes; and that he slurred his speech. The officer said that Williams had told him that he had consumed alcohol that evening. The officer also explained that Williams had failed the horizontal gaze nystagmus test, showing that he in fact had alcohol in his system. Officer Brown further testified that Williams had to lean against his vehicle for balance when talking to Officer Brown.

Officer Evans also smelled alcohol on Williams. She testified that Williams passed out on the way to the jail, and the videotape of Officer Evans’s car shows that Williams lay down in the back of the officer’s car during the ride to the jail. Williams vomited when they arrived at the jail, and Officer Evans testified that his vomit smelled like alcohol. Officer Evans explained that during the field sobriety tests in the intoxilyzer room, Williams swayed and could not keep his balance. At one point, Williams had to grab the wall behind him to keep his balance while listening to the officer’s instructions.

Williams appears to argue that the State had a lower standard of proof regarding the impairment theory of intoxication because the jury could consider the results of Williams’s intoxilyzer tests. The intoxilyzer results showing that Williams’s alcohol concentration was 0.097 ninety minutes after his arrest, however, provided further evidence that Williams had consumed alcohol that night and were relevant to both theories of intoxication. See State v. Mechler, 153 S.W.3d 435, 440 (Tex.Crim.App.2005) (noting that results of intoxilyzer tests are probative of both per se and impairment theories of intoxication because they indicate whether defendant had consumed alcohol); Stewart v. State, 129 S.W.3d 93, 96 (Tex.Crim.App.2004) (same); see also Maxwell v. State, 253 S.W.3d 309, 316-17 (Tex.App.-Fort Worth 2008, pet. ref'd) (holding, in sufficiency analysis, that absence of extrapolation evidence was irrelevant to jury’s finding of guilt because jury was charged on both theories of intoxication).

Williams testified at trial and offered another explanation for some of his actions that night. He explained that he had eaten some sushi at a party, had felt sick, and had run the red light on purpose so that he could get home to throw up. He also explained that he had changed lanes without using a blinker because he saw Officer Brown’s car, thought the officer was in a hurry, and wanted to get out of his way. Although the jury could have found Williams’s testimony to be true, the mere existence of a reasonable alternative hypothesis for his running a red light, changing lanes without signaling, and throwing up does not render the evidence factually insufficient. See Wilson, 7 S.W.3d at 141; Love v. State, 199 S.W.3d 447, 454 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd).

We have reviewed the evidence in a neutral light and have given due deference to the jury’s determinations, particularly those regarding the witnesses’ demeanor and credibility. We find no objective basis in the record to hold that the jury’s verdict was clearly wrong or manifestly unjust or that it was contradicted by the great weight and preponderance of the evidence. See Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414-15, 417. Rather, the evidence presented at trial was sufficient to support the verdict, and no contrary evidence exists that would render the evidence factually insufficient under the applicable standard of review. See Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414-15, 417. Accordingly, we hold that the evidence is factually sufficient to support Williams’s conviction. We overrule his second point.

IY. Jury Charge

In his first point, Williams contends that the trial court erred by including the per se theory of intoxication in its charge to the jury because the State presented insufficient evidence to show what his alcohol concentration was at the time he was driving.

Appellate review of error in a jury charge involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App.1994). Initially, we must determine whether error occurred. See id. at 731-32. If so, we must then evaluate whether sufficient harm resulted from the error to require reversal. Id.

The jury charge must distinctly set forth the law applicable to the case. See Tex.Code Crim. Proc. Ann. art. 36.14 (Vernon 2007). The trial court errs when it charges the jury on a theory of conviction that is not supported by the evidence. Sanders v. State, 814 S.W.2d 784, 787 (Tex.App.-Houston [1st Dist.] 1991, no pet.).

Here, as we explained in our factual sufficiency review above, the results of in-toxilyzer tests are relevant to both theories of intoxication because they may show that a defendant has consumed alcohol and thus “tend to make it more probable that [the defendant] was intoxicated at the time of driving.” Mechler, 153 S.W.3d at 440; see Stewart, 129 S.W.3d at 96. The court of criminal appeals recently explained,

BAC-test results, even absent expert retrograde extrapolation testimony, are often highly probative to prove both per se and impairment intoxication.[] However, a BAC-test result, by itself, is not sufficient to prove intoxication at the time of driving. There must be other evidence in the record that would support an inference that the defendant was intoxicated at the time of driving as well as at the time of taking the test.... Other evidence that would logically raise an inference that the defendant was intoxicated at the time of driving as well as at the time of the BAC test includes, inter alia, erratic driving, post-driving behavior such as stumbling, swaying, slurring or mumbling words, inability to perform field sobriety tests or follow directions, bloodshot eyes, any admissions by the defendant concerning what, when, and how much he had been drinking — in short, any and all of the usual indicia of intoxication.
In sum, the evidence is sufficient to support a jury charge on the “per se” theory of intoxication if it includes either (1) expert testimony of retrograde extrapolation, or (2) other evidence of intoxication that would support an inference that the defendant was intoxicated at the time of driving as well as at the time of taking the test.

Kirsch v. State, No. PD-0379-09, 2010 WL 447437, at *4-5 (Tex.Crim.App. Feb. 10, 2010).

Here, the jury heard evidence that Williams ran a red light and changed lanes without signaling; smelled of alcohol; had red, bloodshot eyes; slurred his speech; leaned on his vehicle for balance; and said he had consumed alcohol that evening. The jury also heard evidence that Williams passed out on the way to the jail, vomited upon arrival, and failed field sobriety tests. Following Kirsch, we hold that this evidence “supports] an inference that [Williams] was intoxicated at the time of driving as well as at the time of taking the breath test.” Id. Consequently, the intoxi-lyzer results, when coupled with the other evidence at trial, were sufficient to support a jury charge on the “per se” theory of intoxication. See id. We overrule Williams’s first point.

Y. Conclusion

Having overruled both of Williams’s points, we affirm the trial court’s judgment.

DAUPHINOT, J., filed a dissenting opinion.

LEE ANN DAUPHINOT, Justice,

dissenting.

I write separately because I do not understand the record in the same way the majority understands it, and I find that record terribly disturbing. The majority accurately reports and relies on the testimony at the trial, but the testimony is contradicted by the video record of the actual events.

Patrol Officer Nicholas Brown pulled Appellant Shannon Williams over and then called for the officer who was trained to investigate suspected offenses of driving while intoxicated (DWI), even though he was trained to conduct the horizontal gaze nystagmus (HGN) test. Officer Brown’s car either had no microphone or had the microphone turned off. He testified,

Q. Now, officers do have mikes [sic], don’t they?
A. Some of the vehicles are equiped [sic] with them, some aren’t.
Q. And this vehicle is not equiped [sic] with a mike [sic]?
A. I believe not. I don’t recall. If it did have one, I would have been wearing it.
Q. So if there was a mike [sic], we could have heard his voice, correct?
A. Yes, sir.”

Officer Brown testified that there was a video camera, but he “ran out of tape” before the film could capture Appellant’s ability to walk and to exhibit whether he had lost the normal use of his mental or physical faculties at the time he was operating the motor vehicle. Officer D. Evans, the second officer, believed that she had turned her car’s microphone off. She was mistaken. The regularity with which the units working the Camp Bowie area have no dash cameras or have malfunctioning equipment or officers who cannot remember whether they did not have the equipment or simply chose not to use it is, indeed, disturbing.

Officer Brown of the Fort Worth Police Department was on duty in approximately the 9100 block of Camp Bowie Boulevard at approximately 1:18 a.m. on October 19, 2007. He testified that he saw a blue pickup driven by Appellant and traveling west on Camp Bowie run a red light at the intersection of Camp Bowie and Norman-dale. Officer Brown pulled his patrol vehicle behind the pickup and began to follow it. He said that he saw Appellant change lanes twice without signaling. Officer Brown then activated his dash camera. The video shows the blue pickup pull on to the access road of Loop 820 and then pull over to the side of the road without incident. Officer Brown testified that he smelled the odor of alcohol and that Appellant had bloodshot eyes and slurred speech. Although there is no sound on the videotape, Officer Brown testified that in response to his questions, Appellant said that he had consumed three or four beers. Officer Brown testified that he had asked Appellant for his driver’s license and insurance and that Appellant had no problem providing the driver’s license. Officer Brown had no independent recollection of Appellant’s providing the insurance information.

Officer Brown called for a DWI unit and spoke with Officer Evans, who told him that she was some distance away and asked him to go ahead and perform the field sobriety tests. At some point, while Officer Brown was in his unit and Appellant was still in his pickup, the video recording in Officer Brown’s car stopped.

Officer Brown denied that Appellant had any particular problem getting out of the pickup or that he had to hold on to the pickup to maintain his balance. He did claim that Appellant at some point was forced to lean against the pickup to maintain his balance. Again, these actions are not reflected on the videotape because it had already stopped. According to his testimony, Officer Brown administered the HGN test, concluding that Appellant had alcohol in his system and scored six “clues” of intoxication. Officer Brown testified that at that point, Appellant said that he was not going to perform any further tests and put his hands behind his back to be handcuffed.

Appellant testified that he had been at a birthday party for a short time, approximately two hours, and had eaten some sushi that had made him sick. He testified that he told Officer Brown that he was feeling sick and could not continue the field sobriety tests. Of course, because the video equipment in Officer Brown’s car had stopped, the evidence at this point was a swearing match. Appellant also testified that as he was driving west on Camp Bowie, Officer Brown pulled out of a parking lot and followed very closely behind him. Assuming that Officer Brown wanted to pass him, Appellant pulled over into a different lane. When Officer Brown did not make an attempt to pass him, Appellant pulled back into his lane in preparation for entering the access road for Loop 820 because he was intending to return home by way of the loop. The videotape does reveal that Appellant did not signal any lane changes. There were no vehicles around, other than Officer Brown’s, and there was no testimony or other evidence that Appellant could not change lanes safely without signaling.

Officer Brown testified that he had pulled Appellant over because of his running a red light and his erratic driving. Appellant admitted that he ran a red light, and he does not challenge the original stop. But the limited amount of driving recorded on the videotape is neither erratic nor unsafe and in no way indicative of intoxication.

Officer Evans testified that she arrived at the scene of the traffic stop at 1:36 a.m. She took custody of Appellant and placed him in the back of her patrol car. Officer Evans testified that she smelled the odor of alcohol on Appellant, that his eyes were bloodshot, and that his speech was slurred. She also testified that he passed out in the back seat of her vehicle. She further testified that the microphone in her car was not on.

I have closely reviewed the videotape from Officer Evans’s car and find that, indeed, the microphone was turned on. One can hear Appellant speaking. His speech is not slurred. Indeed, his speech is clear, cogent, and coherent. He asks the officers to retrieve his billfold from his truck. He explains that he owns his own business and needs the billfold. He describes the billfold as being brown and looking like a large checkbook and tells the officers how much he appreciates their getting it for him. He asks what is going to happen to him and explains that he has never been in any kind of trouble before. He tells the officers that his handcuffs are too tight and are making his hands numb. He asks if they will cuff his hands in front. They, of course, refuse. We see him lie down on the back seat, but he has not passed out. Indeed, he continues to speak. He asks what is going to happen to him and what the next procedures will be. He asks if he can get someone to come get it, presumably his truck in the context of the events. After a short time, he thanks Officer Evans for turning on the air for him. There is a period of silence while someone drives the patrol car. Officer Evans does not speak to Appellant, and he neither speaks nor sings to her. There is no sound of snoring, and Appellant is not visible. Neither Officer Evans nor the majority suggests that she has passed out because she does not speak and is not visible on the tape.

As the ear pulls into the sally port, Appellant says that he feels very sick and asks the officer to stop because he feels that he is going to vomit. His speech is not slurred, nor does he sound inebriated. He then asks the officer to please let him out of the car because he feels that he is going to vomit. Nowhere is Officer Evans’s testimony that Appellant passed out or that his speech was slurred supported by what we see or hear on the videotape. In fact, her testimony is contradicted by what we see and hear.

When Officer Evans pulled into the sally port at the jail, she opened the car’s back door for Appellant, and he was allowed to vomit outside the police car. Nothing in the record suggests that Appellant was given anything to drink or anything with which to rinse the vomit out of his mouth before he submitted to the intoxilyzer test.

Officer Evans took Appellant inside the jail to the intoxilyzer room. The events in the intoxilyzer room were videotaped. Again, the difference between the officer’s description of Appellant’s performance on the field sobriety tests and the performance revealed on the videotape suggests that we are talking about totally different cases. At trial, Officer Evans described Appellant as unable to stand without swaying or holding on to the wall and unable to properly perform the field sobriety tests. The videotape reveals that Appellant swayed less than the officer and that Appellant performed substantially better than she did on the field sobriety tests.

At trial, Officer Evans stated that Appellant was unable to maintain a stance with one foot in front of the other, but the videotape shows that she took an inordinately long time explaining the test, repeating herself, while instructing him to stand in a very unnatural position that he eventually abandoned while he waited for her again to repeat the instructions. When Appellant did perform the test, he performed quite well. The -video also demonstrates that his speech is not slurred, although he does appear quite tired.

Officer Evans testified that Appellant had a slow response to instructions, justifying her conclusions that he had lost the normal use of his mental faculties. The video shows that every time he attempted to respond to her instructions, she told him to wait because she was not finished instructing him. Appellant did tell Officer Evans that he felt claustrophobic. Officer Evans opened the door to the intoxilyzer room.

Appellant agreed to take a breath test, and the test revealed a blood alcohol concentration of 0.097 at 2:46 a.m., approximately ninety minutes after Appellant was pulled over. Appellant was ultimately charged with DWI by not having the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body or by having an alcohol concentration of at least 0.08.

The majority relies on the officers’ testimony to the exclusion of the contradictory evidence of the video record. While determinations of credibility are the exclusive province of the trier of fact, an objective record of the actual events that contradicts the testimony must mean that the record does not support the trial court’s determination of facts.

Repeatedly, we are asked to review records of DWI stops during which there is no audio or video record of the event. In Cendejas-Fernandez v. State, concerning another DWI stop in the 9100 block of Camp Bowie, the officer could not remember whether he had failed to turn on his camera or whether he had no camera. In Helm v. State, the officer provided neither audio nor video record of the detention. And so it goes on Camp Bowie in Fort Worth.

Why do I believe there should be audio or audio and video record of the DWI stops? Because the law requires, and did so at the time of this stop, either an audio or audio and video record or the filing of a racial profiling report for each stop. The City of Fort Worth has conscientiously provided the means for complying with this law. Since at least 2004, Fort Worth has been providing in-car video cameras to police officers:

The Police Department currently has cameras in more than 240 marked Police vehicles. These include all Front Line Patrol (Beat) Vehicles, Traffic Division DWI unit, Commercial Vehicle Enforcement unit, and twelve vehicles assigned to Zero Tolerance Teams. The number of cameras nearly doubled during FY2004 due to a State grant that provided 99 additional units. This program will continue equipping vehicles requiring in-car video cameras increasing from 181 to 249 Front Line Patrol (Beat) Vehicles in FY2008-2009.
The Police Department will begin equipping Digital In-Car Video systems in FY09. The quantity of the Digital systems will be limited while tests and evaluations of various models are conducted. This will allow the department to ensure that the equipment meets the requirements of the Police Department, as well as the Prosecutors [sic] Office, maximizing the ability to prosecute cases using recorded video evidence.

I cannot agree with the majority that there is no conflict between the testimonial evidence and the record of the actual events. An appellate court should give no weight to testimony that is disproved by the objective record of the actual events. And I believe that the majority should address the issue of an officer’s intentionally disabling the audio recorder and testifying directly contrary to the audio record.

At some point, courts must address the repeated failure of officers to use the recording equipment and their repeated inability to remember whether the car they were driving on patrol or to a DWI stop contained the video equipment the City of Fort Worth has been paying for. If the law requires recording to qualify for the exception to filing racial profiling reports, then is the officer not obligated to make sure that there is tape in a traditional video camera or that a digital camera is activated? When the actual recording conflicts with the officer’s testimony, the defendant’s testimony, or another witness’s testimony, a court cannot pretend that the emperor is wearing new clothes just because someone testifies that he is.

The issue before this court is whether Appellant was intoxicated at the time he operated a vehicle in a public place, not whether the alcohol concentration in his body was above .08 ninety minutes after he stopped driving. Both officers had microphones and a video camera, yet we have no video record of Appellant’s control of his physical faculties at the scene. Given Officer Evans’s testimony that her microphone was off, we are fortunate to have an audio record. That accidental record reveals no indication of inebriation on Appellant’s part. I must respectfully disagree with the majority that lying down is evidence of intoxication, especially in light of the fact that when Appellant was sitting up against the back of the seat, he had indicated that having his hands handcuffed behind him was painful and asked to be handcuffed in front. Further, despite Officer Evans’s testimony that a person’s going to sleep because he is tired is, in her opinion, the same thing as passing out, I cannot agree that lying down is the same thing as passing out. The two are quite different.

There is no record of the alcohol concentration in Appellant’s body at the time he was driving. The only record of the alcohol concentration in Appellant’s body was made more than an hour and a half after he stopped driving, and that record was made after he had vomited. It is common knowledge that even burping can invalidate intoxilyzer test results. Officer Evans testified that if a person burped or vomited during the fifteen-minute observation period before beginning the intoxilyzer test, the observation period had to begin again, although she did not know why. I would submit that the observation properly begins again only if no residue of vomit is left in the mouth. As long as there is residue of the vomit, the testing cannot be said to be wholly reliable. And the majority may be correct that if a valid test reveals a breath alcohol level of .09, that is some evidence there was alcohol in the body when the subject was driving. But, realistically, if, at the time the test is performed, there is no evidence to show whether the body was in the absorption mode or the dissipation mode, there is no way to tell whether the alcohol concentration in the body was higher, lower, or the same when Appellant was operating his truck. In this case, there is the additional problem of Appellant’s having vomited and no evidence that the vomit residue had been cleared from his mouth when he breathed into the tube of the intoxilyzer. As the majority points out, no one attempted to prove Appellant’s blood alcohol level at the time he was operating the vehicle.

The issue is not whether Appellant could properly be cited for a traffic violation or whether there was some evidence that would allow a jury to suspect that he had been drinking, but whether the State proved beyond a reasonable doubt that he was intoxicated when he operated the vehicle. The State did not.

For these reasons, I cannot join the majority’s well-written opinion and must respectfully dissent.

      . Officer Brown explained that the Fort Worth Police Department’s DWI Unit handles only DWIs and that, although he is qualified to investigate DWIs, the DWI Unit can process them in "half the time we can, just all the paperwork, being familiar with it.”

      . The penal code defines "intoxicated” as "not having the normal use of mental or physical faculties by reason of the introduction of alcohol ... into the body” (the impairment definition) or "having an alcohol concentration of 0.08 or more” (the per se definition). Tex. Penal Code Ann. § 49.01(2) (Vernon 2003).

      .Officer Brown explained at trial that the remainder of the stop was not recorded because the videotape ran out of tape.

      . The dissent contends that the videotape is contrary to Officer Evans’s testimony and shows that Williams was not passed out. The videotape shows that Officer Evans left the scene for the jail at approximately 2:05 a.m. and that Williams lay down in the backseat at that time. He did not talk again or sit up until they arrived at the jail at 2:17 a.m., at which time he asked the officer to stop so that he could throw up. Thus, the videotape does not contradict Officer Evans’s testimony that Williams was passed out.

      . The dissent also asserts that the videotape contradicts Officer Evans's testimony about Williams's behavior in the intoxilyzer room. We find no contradiction between Officer Evans’s testimony and the videotape.

      . The dissent takes issue with the fact that the video recording of the stop began after Williams ran the red light, stopped before Williams got out of his car, and did not include audio. No evidence in the record suggests that the videotape was not full or that Officer Brown intentionally turned off the videotape before getting out of his car. Instead, Officer Brown testified that the video "[j]ust ran out of tape” and that he did not realize it until he “took it out and placed it into property.” He also testified that he did not recall if his patrol car that night was equipped with a microphone but that if it had one, he would have been wearing it. Any suspect motive on the part of the police to which the dissent alludes is not supported by the record and is not an issue raised in this appeal. See Tex. R.App. P. 47.1.

      . The dissent claims that the evidence is factually insufficient to show that Williams was intoxicated at the time he was driving, but the evidence demonstrates that Williams ran a red light (a fact that he admitted at trial), admitted drinking alcohol that night (also a fact that he admitted at trial), lay down in the backseat of the patrol car (again, an admitted fact), vomited upon arrival at the jail (yet again, an admitted fact), and failed field sobriety tests and the intoxilyzer test. Viewing the evidence in a neutral light, favoring neither party, this evidence is certainly not "so weak that the factfinder's determination is clearly wrong or manifestly unjust.” See Lancon, 253 S.W.3d at 704.

      . "Extrapolation evidence explains the correlation between the breath test results and the level of intoxication at the time of the arrest in a given case.” Martin v. Dep't of Pub. Safety, 964 S.W.2d 772, 776 (Tex.App.-Austin 1998, no pet.).

      . The court of criminal appeals issued its opinion in Kirsch after Williams filed this appeal.

      . RR Vol. II at 29-30.

      . Wiede v. State, 214 S.W.3d 17, 24-25 (Tex.Crim.App.2007); State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000), modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex.Crim.App.2006).

      . 306 S.W.3d 354, 362 (Tex.App.-Fort Worth, 2010, no pet. h.) (Dauphinot, J., dissenting).

      . 295 S.W.3d 780, 785 (Tex.App.-Fort Worth 2009, no pet.) (Dauphinot, J., dissenting). The reporter's record in Helm contains the officer’s testimony indicating that he was at the intersection of Marquita and Camp Bowie when he observed Helm’s driving.

      . See Tex.Code Crim. Proc. Ann. art. -2.133— . 135 (Vernon Supp.2009).

      . Fort Worth Crime Control and Prevention District Plan Executive Summary FY 2010, IV. Police Department Enhancements, K. In-Car Video Cameras 10 (April 17, 2009), http:// www.fortworthgov.org/ council_packe(/ren-der_file.asp?filename= 11505/ CCPD + Executive + Summary + CCPD + Budget + FY 10.doc.

      . See Tex.Code Crim. Proc. Ann. art. 2.135.

      . See 37 Tex. Admin. Code § 19.4.(c) (2006) (Tex. Dep’t of Safety, Breath Alcohol Testing Regs.) ("All breath alcohol testing techniques, in order to be approved, shall meet, but not be limited to, the following: (1) a period during which an operator is required to remain in the presence of the subject. An operator shall remain in the presence of the subject at least 15 minutes before the test and should exercise reasonable care to ensure that the subject does not place any substances in the mouth.”); Heeth v. State, No. 01-94-00975-CR, 1997 WL 212268, at *3 (Tex.App.Houston May 1, 1997, no pet.) (not designated for publication) ("In the present case, Deputy Whitley explained that the state requires officers to observe a DWI arrestee for fifteen minutes prior to administering the intoxilyzer test to make sure that he consumes no more alcohol, introduces no other substances into his mouth, and does not vomit. All of these acts would affect the results of the intoxilyzer test.”).

      . See, e.g,, Pastrano v. State, No. 04-95-00268-CR, 1996 WL 382983, at *1 (Tex.App.San Antonio July 10, 1996, no pet.) (not designated for publication) ("The intoxilyzer expert testified that a burp which brought up liquid could affect the results although a burp which only brought up vapor from the stomach would have no effect.”); Hujar v. State, No. 01-94-00024-CR, 1995 WL 431503, at *4 (Tex.App.-Houston [1st Dist.] July 20, 1995, no pet.) (not designated for publication) ("Officer Jones testified that if a subject belched or burped before a test it could bring up residual alcohol from the stomach and cause a falsely high reading. He testified that if a subject burps, he must start the 15-minute waiting period over.”).


source: Caselaw Access Project

author: Justice O’NEILL.

license: Public Domain

text:
    TEXAS MUTUAL INSURANCE COMPANY, Appellant, v. Ralf G. BOETSCH, Appellee.
    No. 05-08-00749-CV.
    Court of Appeals of Texas, Dallas.
    March 9, 2010.

      Mary A. Keeney, Graves, Dougherty, Hearon & Moody, Mary Barrow Nichols, Shannon Leigh Pounds, Austin, Sandra Cockran Liser, Jennifer Willingham, Brown, Dean, Wiseman, Proctor, Hart & Howell, LLP, Fort Worth, for appellant.
    Bradley Dean McClellan, Rodriguez & Craddock, Austin, Patrick O. Naylor, Patrick O. Naylor, P.C., Irving, for appellee.
    Before Justices MORRIS, O’NEILL, and FILLMORE.
   OPINION

Opinion by

Justice O’NEILL.

In this workers’ compensation case, appellant Texas Mutual Insurance Company appeals a judgment granted in favor of appellee Ralf G. Boetsch. In three issues, Texas Mutual contends (1) the trial court erred in granting Boetsch’s motion for partial summary judgment on his impairment rating, (2) the trial court’s jury charge contained a reversible comment on the weight of the evidence, and (3) Texas Mutual was entitled to a jury determination on reasonable and necessary attorney’s fees. We conclude the method used for determining Boetsch’s impairment rating was not valid, but that the jury charge did not contain reversible error. We reverse the trial court’s judgment with respect to the impairment rating and render judgment that Boetsch’s impairment rating is 27%. We conclude Texas Mutual was not entitled to a jury trial on attorney’s fees; nevertheless, in light of our partial reversal of the trial court’s judgment, we remand the issue of attorney’s fees to the trial court for apportionment.

In 2003, Boetsch suffered a compensable on-the-job neck and back injury. Boetsch filed a claim for workers’ compensation benefits. Texas Mutual was the workers’ compensation carrier for Boetseh’s employer. As a result of the injury, Boetsch had corrective spinal fusion surgery. The surgery was successful, but after the surgery, he suffered a seizure in the recovery room. Boetsch was referred to a neurologist, Dr. Charles Tuen. Tuen diagnosed Boetsch with a seizure disorder. According to Tuen, the cause of the seizure disorder was the surgery.

Dr. Ronnie Shade was the designated doctor under the Workers’ Compensation Act assigned to determine Boetsch’s date of Maximum Medical Improvement (MMI) and to assign an impairment rating. It is undisputed that Boetsch reached his statutory MMI date on April 17, 2005. Shade assigned an impairment rating of 36%. He based this rating on the Guides to the Evaluation of Permanent Impairment (the Guides) adopted by the American Medical Association (AMA) as well as certain “Advisories” adopted by the Texas Department of Insurance, Division of Workers’ Compensation (Division). The 36% impairment rating included impairment attributable to Boetsch’s neck and back injury as well as a seizure disorder. Shade indicated that if he did not use the advisories to determine Boetsch’s impairment rating, it would be 27%.

Texas Mutual disputed Shade’s use of the Division’s advisories to determine Boetsch’s impairment rating. Texas Mutual also disputed whether Boetsch suffered from a compensable seizure disorder. Following contested case hearings on both issues, the hearing officer found in Boetsch’s favor on both issues and assigned a 36% impairment rating. Texas Mutual appealed both decisions to the Division’s appeals panel. The Division affirmed. Texas Mutual then sought judicial review by filing suit in district court pursuant to section 410.252 of the Texas Labor Code. See Tex. Lab.Code Ann. § 410.252 (Vernon 2006). Boetsch answered and filed a counterclaim seeking attorney’s fees under section 408.221 of the labor code. See Tex. Lab.Code Ann. § 408.221 (Vernon 2006).

There were two issues before the trial court in this suit for judicial review: (1) whether the impairment rating attributable to Boetsch’s neck and back injury was properly determined, and (2) whether Boetsch suffered a compensable seizure disorder. The trial court decided the impairment rating issue on competing motions for summary judgment. However, the issue of whether Boetsch suffered a compensable seizure disorder was tried to a jury. After the jury determined Boetsch did suffer from a compensable seizure disorder, the trial court ruled on Boetsch’s motion for summary judgment that the impairment rating concerning his back and neck injury was properly determined. The trial court rendered judgment that Boetsch’s impairment rating was 36%.

In its first issue, Texas Mutual contends the trial court erred in granting summary judgment that the impairment rating attributable to Boetsch’s neck and back injury was properly determined. According to Texas Mutual, the impairment rating was invalid because it was based on advisories that were adopted by the Division in contravention of the labor code.

The labor code requires the Division to use the Guides published by the AMA when determining an impairment rating. Tex. Lab.Code Ann. § 408.124 (Vernon 2006). The Guides contain specific provisions concerning how to calculate an impairment rating for injuries following spinal fusion surgery. The Guides specifically prohibit an impairment to be based on loss of motion caused by corrective spinal fusion surgery. To fill a perceived gap in the Guides, the Division adopted Advisories 2003-10 and 2003-10B to assign impairment ratings for injuries following spinal fusion surgery. These advisories permit consideration of loss of motion caused by corrective spinal fusion surgery. Shade used these advisories to assign an impairment rating to Boetsch’s neck and back injury.

In Texas Department of Insurance v. Lumbermens, the Austin Court of Appeals concluded that Advisories 2003-10 and 2003-10B were invalid and cannot be used to assess impairment ratings. Tex. Dep’t of Ins. v. Lumbermens, 212 S.W.3d 870, 876 (Tex.App.-Austin 2006, pet. denied). In Bell v. Zurich American Insurance Co., — S.W.3d -, - (Tex.App.-Dallas 2009, no pet. h.), this Court, agreeing with Lumbermens, reversed a summary judgment because the defendant’s impairment rating was based on Advisories 2003-10 and 2003-10B. We held that it is not appropriate under the Guides for an examining doctor to base his determination of an impairment rating on Advisories 2003-10 or 2003-10B and an impairment rating based on those advisories is invalid. Bell, — S.W.3d at -; see also Fireman’s Fund Ins. Co. v. Weeks, 259 S.W.3d 335, 342 (Tex.App.-El Paso 2008, pet. denied) (Advisories 2003-10 and 2003-10B invalid from issuance). That decision is binding and we accordingly conclude any impairment rating based on the advisories is invalid.

In the alternative, Boetsch argues the 36% impairment rating was appropriate notwithstanding the prohibition against using the advisories. The summary judgment evidence is conclusive that the 36% impairment rating was based on the advisories. Boetsch admitted as much in his motion for summary judgment, expressly stating that his impairment rating should be 27% if the advisories cannot be used. There is no evidence in the record that Boetsch’s impairment rating is 36% without the advisories. Because we conclude the advisories should not have been used, we conclude the trial court erred in granting Boetsch’s motion for summary judgment. As shown by the summary judgment record, the 27% impairment rating is appropriate if the advisories are not used, assuming Boetsch suffers from a compen-sable seizure disorder. We therefore turn to Texas Mutual’s second point of error, which concerns whether the impairment rating should include impairment for a seizure disorder.

The issue of whether Boetsch suffered a compensable seizure disorder was tried by a jury. Because Texas Mutual brought this suit for judicial review, it had the burden to prove by a preponderance of the evidence that Boetsch did not suffer from a compensable seizure disorder. See Tex. Lab.Code Ann. § 410.303 (Vernon 2006). The jury found it failed to meet this burden, and Texas Mutual does not challenge the jury’s determination. Rather, in its second issue, Texas Mutual contends we should reverse the jury’s ver-diet because .the trial court commented on the weight of the evidence when it defined “seizure disorder” in the jury charge.

We begin by noting that it was Texas Mutual that first requested the trial court to include a definition of seizure disorder in the trial court’s charge. Specifically, it requested seizure disorder be defined as “recurrent seizures.” Instead, the trial court defined seizure disorder as “recurrent seizures, or the propensity to develop repeated or recurrent seizures.” At the charge conference, Texas Mutual objected to the definition as constituting a comment on the weight of the evidence.

At trial, it was undisputed that following his surgery Boetsch suffered a seizure and that the post-operative seizure was the result of the surgery and therefore com-pensable. The only fact issue submitted to the jury was whether Texas Mutual showed Boetsch did not suffer from a permanent “seizure disorder” as a result of the surgery.

According to Texas Mutual’s expert, Dr. Gregg Shalan, someone who has “repeated seizures” has a seizure disorder. He testified that any seizure disorder Boetsch may have was not caused by the surgery. Sha-lan acknowledged that the single post-surgery seizure was caused by the surgery. More specifically he said, the seizure was caused by medications given during the surgery. According to Shalan, when a seizure is induced by medications, a patient is not at an increased risk of future seizures.

Shalan conceded he could not say with any medical certainty whether or not Boetsch has a seizure disorder and acknowledged he has never personally examined Boetsch. He testified he is familiar with Dr. Tuen, and if Tuen diagnosed Boetsch as having a seizure disorder, he would not dispute that diagnosis. He nevertheless said he would disagree with Tuen to the extent Tuen asserted seizure disorder can ever be caused by surgery or any drugs administered during surgery.

Tuen testified Boetsch definitely had a seizure disorder and that it was caused by the surgery. According to Tuen, if a patient suffers from a seizure from the stress of surgery, he is more susceptible to future seizures and thus has a seizure disorder. Tuen also based his diagnosis of seizure disorder on an ambulatory EEG that was performed on Boetsch after the surgery. This EEG showed certain sharp waves indicative of a seizure disorder. Boetsch has been on anti-seizure medication since Tuen’s diagnosis. Tuen suspects Boetsch had a second seizure following the post-surgery seizure and, as a consequence, increased Boetsch’s anti-seizure medication.

In this issue, Texas Mutual contends the trial court erred in commenting on the weight of the evidence when it defined seizure disorder as including “the propensity to develop repeated or recurrent seizures.” Rule 277 provides “[t]he court shall not in its charge comment directly on the weight of the evidence or advise the jury of the effect of their answers, but the court’s charge shall not be objectionable on the ground that it incidentally constitutes a comment on the weight of the evidence or advises the jury of the effect of their answers when it is properly a part of an instruction or definition.” See Tex.R. Civ. P. 277. An impermissible comment on the weight of the evidence occurs when, after examining the entire charge, it is determined that the judge assumed the truth of a material controverted fact or exaggerated, minimized, or withdrew some pertinent evidence from the jury’s consideration. Redwine v. AAA Life Ins. Co., 852 S.W.2d 10, 14 (Tex.App.-Dallas 1993, no writ). An instruction also will be held to be an improper comment on the weight of the evidence if it suggests to the jury the trial judge’s opinion concerning the matter about which the jury is asked. Id. Reversal is required if an improper comment on the weight of the evidence is one that was calculated to cause and probably did cause the rendition of an improper judgment. Id. In making this determination, this Court must consider the pleadings of the parties, the evidence presented at trial, and the charge in its entirety. Alleged error will be deemed reversible only if, when viewed in the light of the totality of these circumstances, it amounted to such a denial of the rights of the complaining party as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Tex. R.App. P. 44.1(a)(1); see Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass’n, 710 S.W.2d 551, 555 (Tex.1986).

After reviewing the record as a whole, we cannot conclude the trial court’s definition of seizure disorder constituted a comment on the weight of the evidence. Whether Boetsch had a seizure disorder is relevant insofar as it constitutes a permanent impairment for purposes of assessing an impairment rating. Thus, the relevant issue, and for what Boetsch is seeking compensation, is that he is at an increased risk of having future seizures, not for any seizures he may have suffered in the past. Reviewing the expert testimony in context, they disagreed on how to best determine whether Boetsch was at risk for future seizures. According to Tuen, a single seizure, induced by surgery, justified a finding of future propensity. According to Shalan, a single seizure induced by surgery would not increase the risk of future seizures. The trial court’s definition in no way would suggest to the jury that the trial court agreed or disagreed with either expert. Thus, the trial court’s definition of seizure disorder did not assume the truth of a material controverted fact or exaggerate, minimize, or withdraw some pertinent evidence from the jury’s consideration. Therefore, we conclude the definition did not constitute an improper comment on the weight of the evidence.

Moreover, even if the definition constituted a comment on the weight of the evidence, we cannot conclude the definition probably led to the rendition of an improper judgment. Again, as noted above, whether Boetsch suffered a seizure disorder was not seriously contested. Although Shalan testified a seizure disorder is “repeated seizures,” he did not specifically exclude the propensity of having future seizures as constituting a seizure disorder. Moreover, Texas Mutual’s case was based on evidence that Boetsch was not more “susceptible” to future seizures. If the jury believed Shalan, the charge would have required the jury to find in favor of Texas Mutual on this issue. We cannot conclude the trial court’s definition of seizure disorder probably led to the rendition of an improper judgment. We resolve the second issue against Texas Mutual.

In the third issue, Texas Mutual contends the trial court erred in not submitting the issue of attorney’s fees to the jury. The trial court awarded Boetsch his attorney’s fees under the provisions of section 408.221 of the labor code. See Tex. Lab.Code Ann. § 408.221 (Vernon 2006). According to Texas Mutual, it was entitled to a jury determination of this issue. However, in Insurance Co. of State of Pennsylvania v. Muro, 285 S.W.3d 524, 581 (Tex.App.-Dallas 2009, pet. filed), this Court decided this precise issue against Texas Mutual. See also Transcont’l Ins. v. Crump, 274 S.W.3d 86, 100-02 (Tex.App.-Houston [14th Dist.] 2008, pet. granted); Discover Prop. & Cas. Ins. Co. v. Tate, 298 S.W.3d 249, 262 (Tex.App.-San Antonio 2009, pet. filed) (Marion, J., dissenting). Specifically, we held that because section 408.221 requires evidence to be submitted to the trial court and requires the trial court to consider several factual issues, the trial court, not a jury, determines the amount of attorney’s fees to be awarded under the statute. Muro, 285 S.W.3d at 531.

According to Texas Mutual, our decision in Muro conflicts with the Texas Supreme Court’s opinion in City of Garland v. The Dallas Morning News, 22 S.W.3d 351, 367 (Tex.2000). In City of Garland, the supreme court held that a statute requiring the trial court to “assess” reasonable attorney’s fees did not mean that the trial court was required to determine the amount of such fees. Thus, a jury determination was required, if requested. Id. However, unlike statutes that merely require trial courts to “assess” or “award” reasonable fees, section 408.221 of the labor code requires the trial court consider specified factual issues, including the time and labor required, the skill required, and the novelty and difficulty of the questions presented. See Tex. Lab.Code Ann. § 408.221 (Vernon 2006). Thus, unlike the statute in City of Garland, the amount of attorney’s fees awarded under section 408.221 are to be decided by the trial court.

In the alternative, Texas Mutual contends the labor code violates its right to a jury trial under the Texas Constitution. The Texas Constitution has two provisions that protect the right to a trial by jury. Article I, section 15, protects the right to a jury trial for those actions or analogous actions which were tried by a jury when the Texas Constitution was adopted in 1876. Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 636 (Tex.1996). Attorney’s fees were not recoverable at common law. New Amsterdam Cas. Co. v. Tex. Indus., Inc., 414 S.W.2d 914, 915 (Tex.1967).

Texas Mutual nevertheless asserts it was entitled to a jury trial on the issue of attorney’s fees because Boetsch’s claim for attorney’s fees is analogous to “common law civil penalty actions.” It further asserts such claims were tried by a jury in 1876. Texas Mutual has made no attempt to show how a claim for attorney’s fees is analogous to any particular civil penalty action. Instead, it vaguely asserts attorney’s fees claims and civil penalty actions generally are both “penal in nature.” Moreover, Texas Mutual has not shown a right to a trial by jury existed for all “civil penalty actions.” See e.g., Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex.1993) (mere fact that civil penalties assessed does not show analogous action). We conclude Texas Mutual has not shown the two claims are analogous. Therefore, it has not shown section 408.221 violates section I, section 15. Crump, 274 S.W.3d at 102.

Article V, section 10 also provides for a right to a trial by jury for all “causes” brought in the district courts. Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 527 (Tex.1995). In Garcia, the supreme court held that a suit seeking judicial review of an administrative decision under the Workers’ Compensation Act was not a “cause” and therefore does not implicate the right to a trial by jury. Id. at 527. Because the proceeding before the trial court did not constitute a cause under article V, section 10, neither does Boetsch’s claim for attorney’s fees in that proceeding. See Crump, 274 S.W.3d at 102. We resolve the third issue against Texas Mutual.

We nevertheless conclude the trial court’s award of attorney’s fees should be reversed and remanded. If a carrier appeals multiple issues on judicial review and prevails on some, but not all, the trial court shall apportion and award fees to the claimant’s attorney only for the issues on which the claimant prevails. Here, the claimant did not prevail on the 86% impairment rating, but did prevail on the issues regarding the seizure disorder. Consequently, we must remand the issue of attorney’s fees to the trial court for apportionment.

We reverse the trial court’s judgment assigning a 86% impairment rating and render judgment that Boetsch’s impairment rating is 27%. We reverse and remand the issue of attorney’s fees to the trial court for further proceedings consistent with this opinion.

      . Boetsch nevertheless asserts Lumbermens should not be applied retroactively. At the time of Boetsch’s contested case hearing, the Lumbermens decision had not been decided and the Division was using the advisories to assess impairment ratings. However, to the extent we rely on Lumbermens in this case, we do so not for any preclusive effect, but only for its precedential value. For the reasons explained in Lumbermens, the advisories violate the labor code.

      . The definition given closely tracked one of the proposed definitions Texas Mutual had requested prior to trial. Specifically, one of the definitions Texas Mutual proposed for seizure disorder was "Seizure Disorder is defined as repeated or recurrent seizures. 'Seizure Disorder' can also include an increased risk of suffering a future seizure.”

      . The specific 10% impairment was attributed under the Guides for “paroxysmal disorder with predictable characteristics and unpredictable occurrence that does not limit activities but is a risk to the patient or limits performance of daily activities.”


author: G. ALAN WALDROP, Justice.

text:
    Brian Mark PRIBYL, Appellant, v. Kathleen Rae PRIBYL, Appellee.
    No. 03-09-00009-CV.
    Court of Appeals of Texas, Austin.
    March 11, 2010.
    Rehearing Overruled April 2, 2010.

      Jimmy L. Verner, Jr., Verner & Brum-ley, P.C., Dallas, TX, for Appellant.
    J. Scott Milner, The Milner Law Firm, Austin, TX, for Appellee.
    Before Chief Justice JONES, Justices PEMBERTON and WALDROP.
   OPINION

G. ALAN WALDROP, Justice.

Appellee Kathleen Rae Pribyl filed suit in district court against her ex-husband, appellant Brian Mark Pribyl, asserting a breach of contract claim. She filed this claim post-judgment in the same cause number as the parties’ previous and final divorce. Kathleen alleged that Brian breached a collaborative law agreement they had entered into during the course of their divorce proceedings. The matter was tried to the bench, and the district court entered judgment in favor of Kathleen. We hold that Kathleen’s breach of contract claim in this case is an attempt to re-allocate marital property that has already been divided and awarded pursuant to a final divorce decree, and is an impermissible collateral attack on the divorce decree. Therefore, her breach of contract claim is barred by res judicata. We reverse and render.

On January 7, 2004, Brian Pribyl filed suit in the 353rd Judicial District Court for divorce from his wife Kathleen. On January 21, 2004, the Pribyls and their attorneys executed a Collaborative Law Participation Agreement. See Tex. Fam.Code Ann. § 6.603 (West 2006). The collaborative law agreement provided, in relevant part, as follows:

The parties and their lawyers agree to make full disclosure of the nature, extent and value of the parties’ income, and their assets and liabilities, including any factors or developments which may affect any aspect of these components of the case.... Participation in the Collaborative Law process, and the settlement reached, is based upon the assumption that both parties have acted in good faith and have provided complete and accurate information to the best of their abilities.

After pursuing the collaborative process and failing to reach an agreement, the parties participated in a mediation. See id. § 6.602(a) (West 2006). The mediation resulted in a settlement agreement and on May 21, 2004, the Pribyls entered into a “Mediated Settlement Agreement” under which they “settled all issues relating to their divorce.” On September 17, 2004, the district court entered a final decree of divorce in the divorce proceeding in accordance with the terms of the settlement agreement. See id. § 6.602(c).

In May or June of 2007, Kathleen learned that Brian had been awarded 2,000 stock options by his employer at a time when the 2004 divorce case was pending. Neither Brian nor his attorney informed Kathleen or her attorney of the existence of these stock options during either the collaborative process or the mediation. Kathleen and her attorney were aware of other stock options that had been granted to Brian by his employer on previous occasions. These options were the subject of negotiations and were specifically allocated in the settlement agreement and later specifically awarded in the agreed divorce decree. The settlement agreement did not, of course, make a specific reference to the additional options granted to Brian during the pendency of the divorce because these options were not disclosed to Kathleen or her attorney. However, the agreed divorce decree contained the following provision relating to unspecified stock options:

BRIAN MARK PRIBYL is awarded ... [a]ll sums, whether matured or unma-tured, accrued or unaccrued, vested or otherwise, together with all increases thereof, the proceeds therefrom, and any other rights related to any ... employee stock option plan ... or other benefits existing by reason of the husband’s past, present, or future employment ....

Therefore, under the terms of the 2004 agreed divorce decree, Brian was awarded all unspecified stock options, including the undisclosed 2004 stock options granted during the pendency of the divorce.

On September 26, 2007, Kathleen filed a petition for “post-divorce division of property, breach of contract, and fraud” in the same cause number as the 2004 divorce proceeding. Kathleen’s claims were based on Brian’s alleged violation of the collaborative law agreement’s provision requiring full disclosure of assets and property. Following a bench trial, on November 25, 2008, the district court entered a Final Order and Judgment awarding Kathleen 50 percent of the previously undisclosed stock options, as well as pre- and post-judgment interest, attorneys’ fees, and costs. The 2008 judgment made no mention of, and did not purport to amend or alter, the 2004 agreed judgment entered in the same cause. Brian appeals the 2008 judgment.

Brian contends that this lawsuit is an impermissible attack on a prior judgment. The doctrine of res judicata applies to a final divorce decree to the same extent that it applies to any other final judgment. Baxter v. Ruddle, 794 S.W.2d 761, 762 (Tex.1990). A judgment finalizing a divorce and partitioning the property is res judicata with respect to any attempt to relitigate the division of property at a later time. See Day v. Day, 603 S.W.2d 213, 215 (Tex.1980); Moreno v. Alejandro, 775 S.W.2d 735, 738 (Tex.App.-San Antonio 1989, writ denied); see also Tex. Fam. Code Ann. § 9.007(a) (West 2006) (“A court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce or annulment.”).

The division of the parties’ community property was at issue in the 2004 divorce proceedings, and at least some portion of the value of the undisclosed 2004 stock options was community property. The 2004 agreed judgment unambiguously awarded all unspecified stock options— which would include the 2004 options — to Brian. The petition in this suit was filed in the same cause number as the 2004 judgment. It does not seek to amend or alter the 2004 judgment. Nonetheless, at issue in this proceeding is whether Kathleen was entitled to any portion of the value of the 2004 stock options and whether she should recover damages for failing to have had an opportunity to negotiate for this value during the 2004 divorce. The damages sought by Kathleen in this suit are the amounts that she claims she would have received had the 2004 judgment divided the 2004 stock options in a manner similar to the other stock options specifically partitioned instead of in the manner provided by the general provision awarding 100 percent of unspecified options to Brian. Kathleen’s breach of contract claim is, therefore, an attempt to modify the property division set out in the original agreed divorce decree without modifying or altering the original decree. Such claims are barred by res judicata. See Brown v. Brown, 236 S.W.3d 343, 348 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (if plaintiff seeks merely to claim share of asset already divided by divorce decree, post-divorce property division action is barred by res judicata).

Under certain circumstances, an attack on a prior judgment may be permissible if it alleges fraud in the opposing party’s obtaining the judgment and seeks to impose a constructive trust on amounts awarded to the opposing party under the judgment. See State v. Durham, 860 S.W.2d 63, 67 (Tex.1993). Such an attack on a final judgment may be maintained only if the alleged fraudulent conduct is “extrinsic” to the judgment. See Brown ing v. Prostok, 165 S.W.3d 336, 347 (Tex.2005); see also Henderson v. Chambers, 208 S.W.3d 546, 552-53 (Tex.App.-Austin 2006, no pet.) (examining allegations of fraud to determine whether intrinsic or extrinsic). We need not address whether Kathleen’s claims in this case involve extrinsic or intrinsic fraud, however, because Kathleen does not base her claims on fraud. Kathleen pleaded and tried only a breach of contract claim based on an alleged breach of the collaborative law agreement. Kathleen does not allege that Brian’s actions constituted fraudulent conduct extrinsic to the 2004 judgment, thereby subjecting that judgment to a permissible attack at this point. Consequently, Kathleen’s lawsuit constitutes an impermissible collateral attack on the 2004 agreed divorce decree. See Hagen v. Hagen, 282 S.W.3d 899, 902 (Tex.2009) (“Attempting to obtain an order that alters or modifies a divorce decree’s property division is an impermissible collateral attack.”).

We note that once the trial court’s plenary power has expired, the appropriate vehicle for a direct attack on a judgment is to file a bill of review in the trial court. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003).

On expiration of the time within which the trial court has plenary power, a judgment cannot be set aside by the trial court except by bill of review for sufficient cause, filed within the time allowed by law; provided that the court may at any time correct a clerical error in the record of a judgment and render judgment nunc pro tunc under Rule 316, and may also sign an order declaring a previous judgment or order to be void because signed after the court’s plenary power had expired.

Tex.R. Civ. P. 329b(f). A petitioner in a bill of review must ordinarily plead and prove (1) a meritorious defense to the cause of action alleged to support the judgment, (2) that the petitioner was prevented from making by the fraud, accident, or wrongful act of his opponent, and (3) that the petitioner was not negligent. King Ranch, 118 S.W.3d at 751-52.

However, Kathleen did not elect to pursue a bill of review or any other direct attack on the 2004 agreed divorce decree. Rather, she alleged a breach of the collaborative law agreement as a means of altering the effect of the 2004 agreed divorce decree. This type of attack on an otherwise valid judgment is not permitted. The problematic nature of Kathleen’s claims in this proceeding is illustrated by the fact that, as the record stood after the trial court’s 2008 judgment, there was a final judgment from 2004 awarding the stock options at issue to Brian and there was a judgment from 2008 awarding a portion of the same stock options to Kathleen. Neither judgment mentioned the other or attempted to modify or alter the other. The two judgments simply conflicted. This is precisely the type of situation that the doctrine of res judicata is designed to prevent. Consequently, we reverse and vacate the 2008 Final Order and Judgment entered by the district court in this cause and render judgment that Kathleen take nothing on her claim for breach of the collaborative law agreement.

      . The stock options were subject to a vesting schedule under which 20 percent would vest on April 23 of each year from 2007 to 2011.

      . Brian does not dispute that he was aware of the grant of stock options before the parties negotiated and signed off on the mediated settlement agreement. Brian also does not dispute that the Collaborative Law Participation Agreement required the parties to disclose the existence of assets and property.

      . In her amended petition — Kathleen’s live pleadings at the time of trial — Kathleen asserted only a breach of contract claim.

      . Extrinsic fraud is fraud that denies a losing party the opportunity to fully litigate at trial all the rights or defenses that could have been asserted. Browning v. Prostok, 165 S.W.3d 336, 347 (Tex.2005); see also Montgomery v. Kennedy, 669 S.W.2d 309, 313 (Tex.1984) ("[T]he concealment of a material fact by a fiduciary charged with the duty of full disclosure is extrinsic fraud.”). Intrinsic fraud relates to the merits of the issues that were presented and presumably were or should have been settled in the former action. Id. at 347-48 (quoting Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex.1989)).

      . We also do not want to be read as condoning the actions of Brian in this case. Whether intentional or not, the failure to disclose the 2004 options during the divorce negotiations was significant. Had the stock options been disclosed, there is little doubt at least some portion of their value would have gone to Kathleen in the settlement. While the finality of a valid judgment and the passage of time might hamper an effective remedy in a situation like this, they do not change the fact of the failure to disclose.

        . A collateral attack, unlike a direct attack, does not attempt to secure the rendition of a single, correct judgment in place of the former judgment. Ramsey v. Ramsey, 19 S.W.3d 548, 552 (Tex.App.-Austin 2000, no pet.). Rather, it is an attempt to avoid the effect of a judgment in a proceeding not instituted for the purpose of correcting, modifying, or vacating the judgment, but in order to obtain some specific relief against which the judgment currently stands as a bar. Browning, 165 S.W.3d at 346.

      . A litigant does not need to comply with the bill-of-review procedures in order to make a direct attack on a judgment in which the court did not even possess the "jurisdictional power” to hear the case and render judgment at all. See McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710-11 (1961). There is no allegation in this case that the trial court did not have the jurisdictional power to enter the 2004 agreed divorce decree.

      . Relief may or may not be available under a bill of review when the information allegedly concealed was available during the original divorce proceeding through normal discovery procedures. See Kennell v. Kennell, 743 S.W.2d 299, 300-01 (Tex.App.-Houston [14th Dist.] 1987, no writ). Because Kathleen has not pursued a bill of review in this case, we express no opinion regarding the effect of the voluntary disclosure provisions in a collaborative law agreement on a direct attack by bill of review of a judgment obtained after a failure to comply with the disclosure provisions in such an agreement.


author: BOB McCOY, Justice.

text:
    In re ESTATE OF Conard L. FLORENCE, Deceased.
    No. 2-08-445-CV.
    Court of Appeals of Texas, Fort Worth.
    March 11, 2010.
    Rehearing Overruled April 1, 2010.

      Shannon, Gracey, Ratliff & Miller, L.L.P., Lisa H. Jamieson, and Joseph W. Spence, Fort Worth, TX, for Appellant.
    Gardere Wynne Sewell LLP, William G. Whitehill, Stacy R. Obenhaus, and James C. Scott, Dallas, TX, Langley & Banack and Joyce W. Moore, San Antonio, TX, for Appellees.
    Panel: LIVINGSTON, McCOY, and MEIER, JJ.
   OPINION

BOB McCOY, Justice.

I. Introduction

In two issues, Appellant Jarrell B. Or-mand appeals the denial of his motion for summary judgment and the granting of Appellees Mary Gene Ness, Carroll Edward Florence, III, and Joseph S. Florence’s cross-motion for summary judgment. We affirm and remand for further proceedings.

II. Factual and Procedural History

The genesis of this appeal is the construction of the language of a will and the treatment of certain estate property by the decedent’s widow.

Conard’s Will:

On July 28, 1981, Conard Florence executed a will (“Conard’s Will”). He died almost a year later, survived by his wife Eleanor Bankhead Florence. On August 16, 1982, Conard’s Will was admitted to probate. Pursuant to the will, the probate court appointed Eleanor as executor of Conard’s estate.

Article II of Conard’s Will bequeathed to Eleanor all of his interests in the couple’s residence, club memberships, insurance policies, all other “tangible property,” and a pecuniary gift. Article III provided in pertinent part:

I give, devise and bequeath all of the rest, residue and remainder of my Estate, real, personal and mixed, of whatever kind and character and wheresoever situated, including the balance of my separate property and my interest in the community estate of my wife, Eleanor Bankhead Florence, and myself, to Eleanor Bankhead Florence, Trustee, in Trust for the uses and purposes on the terms and conditions hereinafter set forth:
Upon the death of my wife, the remaining corpus and income shall be distributed to or for the benefit of such person or persons, in such amounts and proportions and upon such terms, trusts, conditions and limitations as my said wife shall appoint by a Will, which Will specifically refers to the power herein given her; provided, however, that my wife shall have no power to appoint the corpus of this Trust or any part thereof to herself or her estate, or to her creditors, or to the creditors of her estate ....

Conard’s Will also directed that income from the testamentary trust (“Trust”) be paid to Eleanor during her lifetime. Finally, Conard’s Will provided that, upon Eleanor’s death, if she had not exercised her special power of appointment over the Trust assets, the remaining Trust corpus and income would be divided into three shares of equal value, one for each of Conard’s then-living niece and nephews— Mary, Edward, and Joseph.

Eleanor’s Will:

On May 26, 2004, Eleanor died and her will (“Eleanor’s Will”), executed June 8, 2001, was admitted to probate. Eleanor’s Will designated her nephew Ormand as independent executor of her estate and it left her estate to Ormand and to Conard’s niece and nephews — Mary, Edward, and Joseph. Eleanor did not exercise her power to appoint other persons to receive the corpus of the Trust.

Conard’s Estate and Trust:

Upon Eleanor’s death, the probate court appointed Joseph to be the successor independent executor of Conard’s open estate and the Heirs to be successor co-trustees of the Trust.

In August 2004, Ormand, acting as executor of Eleanor’s Will, met with the Heirs to discuss Conard’s estate. During the meeting, Ormand suggested that the term “tangible property” in Article II of Co-nard’s Will included personal and real property. The Heirs, on the other hand, asserted that Conard intended for “tangible property” to mean “tangible personal property,” thereby excluding real property.

The Heirs’ Declaratory Action:

Ultimately, the Heirs filed two lawsuits against Ormand, one related to Conard’s estate wherein they sought declaratory relief regarding the meaning and intent of certain provisions in Conard’s Will and the other related to Eleanor’s estate wherein they alleged that Eleanor breached her fiduciary duties and committed negligence and gross negligence. The two lawsuits were later consolidated and merged into one suit.

After consolidation, the Heirs filed an amended, consolidated petition seeking a declaratory judgment regarding the interpretation of the term “tangible property” as used in Article II of Conard’s Will. Apart from the aforementioned pleadings and motions asking the probate court to interpret and declare the meaning of the term “tangible property,” subsequent motions were filed questioning whether the statute of limitations barred the parties from asserting their respective positions regarding the meaning of “tangible property.”

Ormand’s Motion for Summary Judyment:

On September 4, 2008, Ormand filed a motion for summary judgment on the ground that the four-year limitations period on the Heirs’ will construction claim began to run when Conard’s Will was admitted to probate in 1982. Ormand argued that, because the Heirs fell under the category of “interested persons” in Co-nard’s estate, they were deemed to have constructive knowledge of the contents of Conard’s Will and therefore should have raised their challenges within four years after Conard’s Will was admitted for probate — that is, some time before August 16, 1986.

The Heirs’ Response and Cross-Motion for Summary Judgment:

In their response, the Heirs asserted that a will beneficiary’s declaratory action does not begin to accrue until the executor does some “overt act” showing that he is not going to abide by the will’s terms as construed by the beneficiary.

The Heirs filed a cross-motion for summary judgment on two grounds. First, the Heirs asked for a no evidence summary judgment on the ground that Or-mand cited no summary judgment evidence of any overt act occurring more than four years prior to their filing a declaratory action that would have notified them “that anyone, let alone [Ormand] or Eleanor, construed Conard’s [W]ill differently than [the Heirs] do now.” Second, the Heirs asked for a traditional summary judgment on the ground that Ormand was barred from asserting an interpretation of Conard’s Will different from what Eleanor had employed in dealing with Conard’s estate and Trust over the twenty-one-year time period between Conard’s death and her own death.

The Heirs attached to their motion Eleanor’s 1983 estate tax return, in which Eleanor claimed that at least $472,693 in assets from Conard’s estate had passed into the Trust. They also attached a letter that Eleanor had written to her lawyer acknowledging that the Trust should be funded and asking her lawyer to take the steps necessary to complete that process. Their motion alleged that:

... as Executrix and Trustee, Eleanor (1) maintained a checking account in the Estate’s name; (2) executed oil, gas, and mineral leases regarding the properties at issue in the name of the Estate and [ ] Trust; (3) executed division orders regarding the properties at issue in the name of the Estate and [] Trust; (4) directed oil, gas and mineral production companies to distribute royalties, which were generated from Conard’s family legacy real property, to the Estate and [ ] Trust; (5) deposited those royalties in the Estate checking account; and (6) used the Estate checking account to pay for, among other expenses, the taxes incurred by the [ ] Trust on the royalties generated from Conard’s family legacy real property.

Following a hearing on these motions, the probate court denied Ormand’s motion for summary judgment on statute of limitations and granted the Heirs’ cross-motion for summary judgment. This appeal followed.

III. Statute of Limitations

In two issues, Ormand argues that the trial court erred by denying his motion for summary judgment and by granting the Heirs’ cross-motion for summary judgment. Although both parties agree that a four-year statute of limitations applies in this case, they do not agree on when that limitations period began to run, or when it accrued. See Tex. Civ. Prac. & Rem.Code Ann. § 16.051 (Vernon 2008) (proscribing a residual limitations period of four years).

A. Standard of Review

When both parties move for summary-judgment and the trial court grants one motion and denies the other, the reviewing court should review both parties’ summary judgment evidence and determine all questions presented. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005).

1. Traditional Summary Judgment

A movant is entitled to summary judgment on an affirmative defense if the mov-ant conclusively proves all the elements of the affirmative defense. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 228 (Tex.1999); see Tex.R. Civ. P. 166a(b), (c). To accomplish this, the movant must present summary judgment evidence that establishes each element of the affirmative defense as a matter of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 148 S.W.3d 794, 798 (Tex.2004).

2. No-Evidence Summary Judgment

After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant’s claim or defense. Tex.R. Civ. P. 166a(i). The motion must specifically state the elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.2009). The trial court must grant the motion unless the nonmovant produces summary judgment evidence that raises a genuine issue of material fact. See Tex.R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex.2008).

B. Ormand’s Motion for Summary Judgment

In his first issue, Ormand argues that the trial court erred by denying his motion for summary judgment. Ormand contends that the Heirs, as interested persons, are charged with notice of the contents of the probate records, including Conard’s Will. See Tex. Prob.Code Ann. § 3 (Vernon Supp.2009); Mooney v. Harlin, 622 S.W.2d 83, 85 (Tex.1981). Thus, Ormand asserts that because the term “tangible property” has consistently been interpreted to include both real and personal property, the Heirs had four years from the date of Conard’s Will being admitted for probate in which to bring their declaratory action claiming that Conard intended for the term “tangible property” to mean something different from its accepted legal meaning. We disagree.

The Uniform Declaratory Judgments Act (“UDJA”) is intended “to settle and to afford relief from uncertainty and insecurity with respect to rights ... and it is to be liberally construed and administered.” Tex. Civ. Prac. & Rem.Code Ann. § 37.002 (Vernon 2008); accord Cobb v. Harrington, 144 Tex. 360, 367, 190 S.W.2d 709, 713 (1945); Puretex Lemon Juice, Inc. v. Cal. Prods., Inc., 324 S.W.2d 449, 453 (Tex.Civ.App.-San Antonio 1959), aff'd, 160 Tex. 586, 334 S.W.2d 780 (1960). The UDJA provides that “[a] person interested under a ... will ... may have determined any question of construction or validity arising under the instrument ... and obtain a declaration of rights, status, or other legal relations thereunder.” Tex. Civ. Prac. & Rem.Code Ann. § 37.004(a) (Vernon 2008). Heirs at law and devisees under a will are interested persons with standing to contest a will and they may do so in a declaratory judgment action. See Tex. Prob.Code Ann. § 3(r); Foster v. Foster, 884 S.W.2d 497, 501 (Tex.App.-Dallas 1993, no writ); see also Hartmann v. Solbrig, 12 S.W.3d 587, 594 n. 7 (Tex.App.-San Antonio 2000, pet. denied); Harkins v. Crews, 907 S.W.2d 51, 55 (Tex.App.-San Antonio 1995, writ denied).

Although we agree with Ormand that the Heirs were interested persons who had standing to bring a declaratory judgment action at the time Conard’s Will was admitted to probate, we do not agree with Ormand’s contention that their claim arose and began to accrue at that time. The only evidence presented showed that over the twenty plus years between Co-nard’s death and Eleanor’s death, Eleanor treated the term “tangible property” as if it meant “tangible personal property.” And it was not until Ormand became the executor of Eleanor’s estate and asserted a different interpretation that a conflict arose between the Heirs and Eleanor — or rather, Eleanor’s estate. Thus, we agree with the Heirs that the facts of this appeal are analogous to the facts in Murphy v. Honeycutt, 199 S.W.2d 298, 299 (Tex.Civ.App.-Texarkana 1946, writ ref'd), and in Hornbeck v. Moran, No. 05-96-1127-CV, 1998 WL 315624, at *1 (Tex.App.-Dallas June 17, 1998, pet. denied) (not designated for publication).

In Murphy, the heirs filed a declaratory judgment action thirteen years after the decedent’s will had been admitted to probate, arguing that the sale of certain property by the decedent’s widow was void because she only had a life estate in the property, making them the true owners of the property. 199 S.W.2d at 298. The purchaser of the property, however, argued that the heirs’ claims were barred by the four-year statute of limitations. Id. The trial court and the court of appeals sided with the heirs, holding that their claim had not begun to accrue until the widow deeded the property to the purchaser, thereby demonstrating that she was not going to abide by the heirs’ construction of the will. Id. at 299.

Likewise, in Hombeck, the decedent’s children filed a declaratory judgment action against the decedent’s step-children fifteen years after the decedent’s will had been admitted to probate. 1998 WL 315624 at *1. The children asserted that the decedent’s wife had received only a life estate and not a fee simple interest in certain property and that they were the remain-dermen of that property. Id. The decedent’s wife, however, had left the property in question to the step-children, and the step-children argued that limitations barred the declaratory action. Id. The trial court and the court of appeals sided with the children, holding that the claim was not barred by limitations because the accrual date occurred when the step-children refused to acknowledge the remain-dermen’s interest in the estate based on the remaindermen’s interpretation of the decedent’s will. Id. at *4.

Ormand argues that Mmphy and Hombeck are both distinguishable because the plaintiffs’ causes of action in both cases arose out of an attempt to enforce the plain language of the will, while the Heirs’ cause of action arises out of an attempt to rewrite the plain language of the will. Or-mand’s argument, however, is based on the assumption that “tangible property” does not and cannot mean “tangible personal property” as the Heirs assert. To support his argument, Ormand isolates the term “tangible property” in Conard’s Will and asks this court to apply the generally accepted meaning — that is, that tangible property means personal and real property. However, the proper standard in construing a will is to focus on the testator’s intent. See San Antonio Area Found. v. Lang, 35 S.W.3d 636, 639 (Tex.2000). The testator’s intent is ascertained by looking at the language found within the four corners of the will. Id If possible, all parts of the will must be harmonized, and every sentence, clause, and word must be considered in ascertaining the testator’s intent. See Steger v. Muenster Drilling Co., Inc., 134 S.W.3d 359, 372 (Tex.App.-Fort Worth 2003, pet. denied).

Ormand’s argument leads us down a path that requires us to address the merits of the case. Because this is not an appeal on the merits but rather on limitations, we decline to go down that road. We hold that, as a matter of law, the Heirs’ declaratory judgment action did not begin to accrue until Ormand asserted his interpretation of “tangible property,” thereby demonstrating that he was not going to abide by the Heirs’ construction of Conard’s Will. See Murphy, 199 S.W.2d at 299; Hornbeck, 1998 WL 315624, at *4. We further hold that the trial court did not err by denying Ormand’s motion for summary judgment on statute of limitations. Accordingly, we overrule Ormand’s first issue.

C. The Heirs’ Cross-Motion for Summary Judgment

In his second issue, Ormand contends that the trial court erred by granting the Heirs’ cross-motion for summary judgment because (1) the Heirs’ proposed accrual test is incorrect and, therefore, the Heirs’ no-evidence argument fails and (2) Or-mand’s limitations defense is not “in substance” a declaratory action that is barred by limitations.

When a party moves for summary judgment under both rules 166a(c) and 166a(i), we will first review the trial court’s judgment under the standards of rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). If the appellant failed to produce more than a scintilla of evidence under that burden, then there is no need to analyze whether the appellees’ summary judgment proof satisfied the less stringent rule 166a(c) burden. Id.

In the first part of the Heirs’ cross-motion for summary judgment, they asserted that the trial court should strike Ormand’s limitations defense because there is no evidence of any overt act occurring more than four years prior to their filing a declaratory action. Because we addressed this argument under Ormand’s first issue, and concluded that “overt act” is the proper accrual test and that it was not until Ormand became the executor of Eleanor’s estate and asserted a different interpretation that a conflict arose between the Heirs and Eleanor — or rather, Eleanor’s estate, we need not address it again. See Tex.R.App. P. 47.1. We hold, therefore, that the trial court did not err by granting the Heirs’ cross-motion for summary judgment. Accordingly, we overrule this portion of Ormand’s second issue, which is dispositive, and do not reach the remaining portion of Ormand’s second issue.

IV. Conclusion

Having overruled Ormand’s first issue, we affirm the portion of the trial court’s October 22, 2008 order denying Ormand’s motion for summary judgment — thus, the Heirs’ tangible personal property claims are not barred by the statute of limitations. Having overruled the dispositive portion of Ormand’s second issue, we affirm the portion of the trial court’s October 22, 2008 order granting the Heirs’ cross-motion for summary judgment. We remand this case to the trial court for further proceedings.

      . From this point on, we refer to Appellees as Mary, Edward, and Joseph in their individual capacities and as "the Heirs” in their collective capacity.

      . This is an interlocutory appeal of a summary judgment and cross-summary judgment in a probate case. See De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex.2006); Crowson v. Wakeham, 897 S.W.2d 779, 781 (Tex.1995).

      .It is the term "tangible property” that is the subject of this appeal.

      . The import of the parties’ positions is that if "tangible property” includes realty as opined by Ormand, then that realty was inherited by Eleanor and upon her death was then inherited by the Heirs and Ormand. On the other hand, if “tangible property” does not include realty as opined by the Heirs, then that realty was placed into the Trust and upon Eleanor’s death, it would pass to the Heirs, excluding Ormand.

      . The Heirs asserted that the only possible explanation for $472,693 in assets passing into the Trust was that a portion of Conard's real property had passed into the Trust.

      . In support of these contentions, the Heirs attached bank account statements; tax statements; tax receipts; and oil, gas, and mineral lease and division orders.

      . See Wheeler v. Box, 671 S.W.2d 75, 78 (Tex.App.-Dallas 1984, no writ) (finding that tangible property is commonly understood to be property that is capable of being handled or touched and includes both real and personal property); Cont’l Homes Co. v. Hilltown Prop. Owners Assn, Inc., 529 S.W.2d 293, 296 (Tex.Civ.App.-Fort Worth 1975, no writ) (stating that tangible property includes both real and personal property); Erwin v. Steele, 228 S.W.2d 882, 885 (Tex.Civ.App.-Dallas 1950, writ ref'd n.r.e.) (construing a will).