author: Justice BENAVIDES.

text:
    Richard Michael RECKART, Appellant, v. The STATE of Texas, Appellee.
    No. 13-09-00179-CR.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Aug. 26, 2010.

      Coretta Graham, Corpus Christi, for Appellant.

      Patrick L. Flanigan, Dist. Atty., Sinton, for Appellee.
    Before Justices RODRIGUEZ, BENAVIDES, and VELA.
   OPINION

Opinion by

Justice BENAVIDES.

Appellant, Richard Michael Reckart, appeals his conviction for continuous sexual abuse of a young child, a first-degree felony. See Tex. Penal Code Ann. § 21.02 (Vernon Supp.2009). Reckart was sentenced to thirty years’ imprisonment in the Texas Department of Criminal Justice— Institutional Division and was assessed court costs. By seven issues, Reckart argues that: (1) the trial court erroneously admitted evidence of alleged extraneous acts; (2) the trial court’s admission of uncorroborated outcry testimony violated his right to due process; (3) the evidence is legally and factually insufficient to support the conviction; (4-5) section 21.02 of the Texas Penal Code violates his right to an impartial jury because it allows the jury to reach a decision by not considering every element of the entire allegation; (6) section 21.02 violates the Eighth Amendment to the United States Constitution; and (7) section 21.02 is unconstitutional because it shifts the burden of proof to a standard that is less than “beyond a reasonable doubt.” We affirm.

I. Background

On December 2, 2008, Reckart was indicted for continuous sexual abuse of R.R., a child then younger than fourteen years of age, that allegedly occurred from September 1, 2007 through April 30, 2008. The indictment alleged that Reckart: (1) intentionally or knowingly caused the penetration of R.R.’s sexual organ by his sexual organ; (2) intentionally or knowingly caused the penetration of R.R.’s sexual organ by his finger; (3) intentionally or knowingly caused the penetration of R.R.’s mouth by his sexual organ; and (4) knowingly or intentionally caused R.R.’s sexual organ to contact his mouth. See id.

On January 23, 2009, Reckart filed a motion to quash the indictment and to dismiss the case, arguing that Texas Penal Code section 21.01 is unconstitutional and conflicts with Texas law because it allows a jury to find a defendant guilty without requiring the jury to unanimously agree as to which acts of sexual abuse the defendant committed within the relevant time frame. Id. § 21.02(d). Reckart argued that the statute violates the right to an impartial jury under the United States and Texas Constitutions, the presumption of innocence under Texas Code of Criminal Procedure article 38.03, and the due process and equal protection clauses of the United States Constitution. See U.S. Const, amend. V, VI, XIV; Tex. Const. art. I, § 15; Tex.Code Crim. Proc. Ann. art. 38.03 (Vernon Supp.2009). After a hearing, the trial court denied Reckart’s motion to quash the indictment and to dismiss. The case was tried before a jury.

A. The State’s Case-in-Chief

The State’s first witness, M.R., testified that in 2004, she met Reckart and began dating him. M.R. and her three children, R.R., R.A.R., and R.R.R., moved into a home in Ingleside with Reckart, Reckart’s daughter T.V., and another person named Michael Geizer.

In August 2007, M.R., her family, and Reckart moved to Portland. M.R. testified that when they lived in Portland, she worked two jobs; Reckart cared for the children while she was at work. After the family moved to Portland, M.R. noticed that her daughter R.R. became vocal about “hating” Reckart. R.R. would ask M.R. if she could accompany her to work. On cross-examination, M.R. testified that she did not tell the police that she had noticed mood changes in R.R.

In December 2007, Reckart’s three children, T.V., J.R., and R.L.R., moved into his house because their mother passed away. M.R. testified on cross-examination that Child Protective Services investigated the family residence in early 2008, and at that time, M.R. told the investigators that she lived with Reckart and that he was a good father.

In April 2008, Reckart and M.R. broke up. M.R. moved out of the house but was still “talking” to Reckart, which she explained included having romantic interludes. M.R. stated that R.R. knew that M.R. and Reckart were getting back together. On June 29, 2008, M.R. gave R.R. school clothes she had purchased, and R.R. reacted strangely. M.R. testified that R.R. was “scared, she was crying, she was shaking, she was just very, very scared.” M.R. tried to console R.R. and asked what was wrong. When asked by the State if R.R. told her what was wrong, M.R. said yes, but M.R. did not provide an explanation. The conversation occurred at 11:00 p.m., and M.R. had to work the next morning at 5:00 a.m. The next day, M.R. called the police.

On July 2, 2008, M.R. was interviewed by Morris Sublett with Child Protective Services. M.R. conceded on cross-examination that she did not tell Sublett that she had begun seeing Reckart again after they broke up in April 2008. Instead, she told Sublett that Reckart was harassing her. On redirect, M.R. explained that after R.R. “outcried” to her, she did not continue her relationship with Reckart.

During M.R.’s testimony on redirect, the State asked to approach the bench, stating that it intended to ask M.R. about injuries Reckart inflicted on her sons, R.R.R. and R.A.R. The State argued that the defense had painted Reckart as being a good father, and the State wanted to introduce injuries to M.R.’s other children as “extraneous offenses.” Reckart’s counsel requested a hearing outside the presence of the jury, and the trial court excused the jury. M.R. testified on voir dire about injuries both her sons suffered as a result of spankings by Reckart. After the examination by both the State and Reckart’s counsel, Reckart did not lodge a specific objection to the testimony. Rather, the trial court stated that it would admit the testimony regarding R.R.R. but not R.A.R. “over counsel’s objection.”

The jury was brought back into the courtroom. On re-direct, M.R. testified that Reckart spanked R.R.R. with a paddle, causing him bruises. M.R. stated that R.R.R. had “black and blue on his butt like blood and streaks.” M.R. stated that she asked Reckart not to spank the children, and he agreed, but then he did it again. M.R. admitted on re-cross that she did not tell Child Protective Services about these incidents and that they occurred prior to her statement in early 2008 to Child Protective Services that Reckart was a good father.

Detective Thomas Laughlin with the City of Portland Police Department testified that he received a call from M.R. on June 29, 2008, reporting “what she was told by her daughter.” Laughlin set up an interview at the Nueces County Children’s Advocacy Center for R.R. On June 30, 2008, R.R. gave an interview in which she made an outcry of sexual abuse. After the interview-, R.R. was examined by a Sexual Assault Nurse Examiner at Driscoll Children’s Hospital. Laughlin obtained an arrest warrant for Reckart on July 1, 2008, for sexual assault of a child.

On cross-examination, Laughlin testified that he never went to Reckart’s residence in Portland and did not execute a search warrant for physical evidence there. Laughlin further testified that when Rec-kart was arrested, Reckart voluntarily gave a DNA swab. Laughlin admitted that he did not know if individuals named William Franklin and Michael Whirl were living at the house in Portland at the time of the alleged sexual abuse, and he did not interview them. He conceded that the only research he conducted on the case were the interviews of M.R. and R.R., and he was unaware of any prior statements M.R. or R.R. had made to Child Protective Services regarding the living situation with Reckart.

On redirect, the State asked if M.R. gave Laughlin any physical evidence. He stated that M.R. gave him a “dildo” and a “cock ring.” He explained that during R.R.’s interview with the children’s advocacy center, R.R. told the investigator that Reckart used these devices on her.

Sandra Pardo testified that she is a Sexual Assault Nurse Examiner at Driscoll Children’s Hospital, and she conducted an examination of R.R. She stated that in eighty percent of examinations, there is no physical trauma discovered. Pardo further explained that to find DNA evidence, an examination must be conducted within the first ninety-six hours after the assault. She explained that the female sexual organ heals itself quickly, and most likely, evidence of physical trauma will have dissipated around forty-eight hours after an assault.

Pardo reported what R.R. told her in her interview, as follows:

Patient states, “When I was in sixth grade it started. My mom’s ex-boyfriend, Rick Reckart, he like [sic] sexually touched me on my breasts and my vagina and with his hands over and under my clothes. His dick and [sic] tried to put it in me, in my vagina a couple of times. About three times. Um, he would get a towel or something and come in it. He would put it in my mouth. He tried putting a dildo, he tried putting it in my vagina. He would lick me down there and stuff.”

Pardo testified, however, that there were no physical signs of sexual abuse. Defense counsel did not object to Pardo’s testimony on any grounds.

R.R. testified that, at the time of trial in March 2009, she was thirteen years old. She stated that Reckart began “hurting” her when she was eleven years old. She explained that Reckart would come to her room at night, put his hands in her pants, and touch her on and inside her “private part” with his hands and mouth. On two or three occasions, he touched her with his “private part.” Specifically, she testified that he tried to put his “private part” in her “private part,” but it “hurt too much.” R.R. further testified that Reckart made her take showers with him, and in the shower, Reckart would put his fingers in her “private part.” R.R. described a particular incident in the living room, where Reckart tried to have sex with her when they lived in Ingleside. She stated that Reckart made her shave her private area and then attempted to have sex with her in the living room.

In August 2007, R.R.’s family and Rec-kart moved to Portland. R.R. explained that between September 2007 and April 2008, Reckart continued to abuse her. R.R. testified that in Portland during that time period, Reckart made R.R. perform oral sex on him on five occasions, digitally penetrated her “private part” on more than thirty occasions, and forced her to have intercourse with him. Furthermore, R.R. testified that Reckart would put his mouth on her “private part,” and while in Portland, he did this more than twenty times. R.R. confirmed that Reckart also used “vibrators” or “dildos” on her by putting them in her “private part.”

R.R. explained that she did not tell anyone about this at first because she was afraid her mother would not believe her and because Reckart made her promise. R.R. further testified, without objection from defense counsel, that she saw Rec-kart hit her brother with a belt, causing “bruises all over him and bleeding.”

R.R. recalled Child Protective Services interviewing her when Reckart’s children first came to live with her family. She confirmed that she did not tell Child Protective Services investigator Manuel Cano what Reckart was doing because she was “afraid [she] was going to get in trouble.” R.R. stated that she finally told her mother because she found out that Reckart was trying to talk to M.R. again after their breakup and because she “thought they were going to get back together.” She did not want them to get back together “because he would start touching [her] and stuff.”

On cross-examination, R.R. conceded that when she gave her interview at the Child Advocacy Center, she did not discuss the living room incident. She clarified, however, that the living room incident occurred in Portland, not Ingleside. She conceded that other people were in the house when some of the incidents took place, but she could not testify whether anyone else heard what was happening at the time. R.R. further testified that when Child Protective Services interviewed her in February 2008, before her outcry, she told the investigator that Reckart was a good father, that he never abuses any of his children, and that everyone in the house got along. R.R. testified that she was testifying against Reckart because she wanted him to go to jail and because she was seared of him.

B. Defense’s Case

Reckart then called witnesses in his defense. William Franklin testified that he stayed at Reckart’s house in Portland for about six months during 2007 and 2008. He testified that he never observed anything unusual at the home and never heard any noises coming from R.R.’s room at night. He testified that he never witnessed any unusual bruises on M.R.’s children and that he never noticed Reckart and R.R. being missing for long periods of time. Franklin stated that he never observed R.R. acting scared of Reckart.

Michael Eugene Whirl testified that he lives with Reckart and had been staying with Reckart when M.R. and her children were living there. Like Franklin, Whirl stated that he never observed R.R. acting afraid of Reckart and that he never heard any noises in the middle of the night. Likewise, he never saw Reckart discipline or spank R.R.’s brothers.

Reckart’s neighbor, Melvin Farrera, testified that he witnessed Reckart with his children and that Reckart was a loving father. Farrera stated that R.R. never appeared scared or afraid of Reckart. R.R. did not act abnormally and participated with the family.

Clifford Cole testified that he was a friend and neighbor of Reckart’s. He never witnessed anything unusual going on with the children, and R.R. never appeared scared of Reckart. Again, Cole reiterated the testimony of Farrera, Whirl, and Franklin that he never witnessed any bruises on either of R.R.’s brothers. Cole opined that Reckart was a good parent.

Manuel Cano testified that he previously worked as an investigator for Child Protective Services. In January '2008, Cano was assigned to investigate Reckart and his children because Reckart had recently obtained custody of them. Cano interviewed R.R. at school. Reckart’s attorney asked what questions Cano had asked R.R., and Cano responded that he asked the “basic stuff’ and if “she had ever been touched inappropriately by members of her family or by anybody else, for that matter.” The State objected, and a hearing was held at the bench at which the State told the trial court that there was a ruling on a motion in limine “as far as the victim — she being victim of her cousin previously.” Reckart’s counsel stated that he just wanted to know about the situation with Reckart, and that he was not “trying to go there.” The testimony continued, and Cano stated that R.R. told him that the home with Reckart was a happy environment and that she felt safe there. Cano stated that he discussed “good touches and bad touches,” and R.R. indicated that nothing like that had happened with Reckart. R.R. told Cano that Rec-kart was a good father. Cano also testified that R.R.’s brothers seemed happy, and he did not notice anything out of the ordinary.

On cross-examination, Cano explained that he was investigating Reckart because he had received a report from school personnel that Reckart had been medically neglecting his two children. He also stated that it is not unusual for a child not to tell when they are still living with a perpetrator of sexual abuse.

Reckart then testified. He stated that he and M.R. broke up in April 2008, but then they decided to get back together, and he proposed marriage. She accepted a ring from him, and two weeks later, R.R. alleged that Reckart had sexually abused her. M.R. called him and asked him to pick her up down the street, and M.R. came to his house. M.R. told him what R.R. said, but she had not called the police. According to Reckart, M.R. told him that “if she really believed it she would have called the cops already.” Reckart told M.R. that he had not abused R.R. Four or five days later, Reckart was arrested.

Reckart denied that he ever abused R.R. and denied that he had ever been alone with R.R. He claimed that he was a good father. Reckart testified that he believes in firm discipline. He admitted that he spanked his children, but he denied ever bruising them or making them bleed. He admitted that he had a light, ping-pong paddle that he used to spank the children.

Kimberly Wikoff testified that she had known Reckart for two years and had been to his house often. Wikoff lived down the street from Reckart. She visited when M.R. was there. Wikoffs daughter, D.W., was a friend to R.R. Wikoff testified that she never observed Reckart abusing the children and that he was a good father. R.R. never appeared intimidated by Rec-kart.

D.W. testified that R.R. would sometimes make statements about her relationship with Reckart. D.W. believed that R.R. did not like Reckart and did not like it that he was dating her mother. D.W. testified that R.R. told her that she “was going to do something for them to break up.”

Kimberly Hudspeth testified that she was Reckart’s former mother-in-law and that he was a good father. She never witnessed him abusing any child.

T.V. testified that she is Reckart’s daughter and, at the time of trial, she was eleven years old. She testified that she stayed with R.R. at Reckart’s house in Portland, and she shared a room with R.R. T.V. stated that she never saw Reckart do anything “mean” to R.R. T.V. never saw R.R. act scared of Reckart, and they were a happy family.

Reckart’s other daughter, J.R., testified that she lived with Reckart in Portland when R.R. lived there. She claimed that she slept in the same room with R.R. J.R. stated that she did not witness her dad “do anything” to R.R.

C. Rebuttal Witnesses

The State then called its rebuttal witnesses. R.R.’s brother, R.A.R., testified that he was in sixth grade. He stated that Reckart spanked him with a ping pong paddle “once or twice a day.” R.A.R. testified that Reckart also spanked his brother, R.R.R. R.A.R. explained that the spankings would leave bruises on his butt. R.A.R. testified that he had seen Reckart go upstairs to see his sister R.R. R.A.R. stated that Reckart would be alone with R.R. during those times. On cross-examination, R.A.R. admitted telling Cano, during the Child Protective Services Investigation, that “everything was fine at home” and that he liked living there. R.A.R. also told Cano that Reckart was a good father.

R.R.’s other brother, R.R.R., also testified, stating he was in the fourth grade at the time of trial. He stated that Reckart spanked him with a belt and with a paddle on his back and on his butt “a lot.” R.R.R. said that the spankings left marks on his back and on his butt and made him bleed. R.R.R. further stated that Reckart kicked him in the chest. R.R.R. explained that Reckart told him to tell M.R. that he had fallen out of a tree. Reckart’s attorney did not object during R.A.R.’s testimony or during R.R.R.’s testimony.

M.R. then testified again. The State asked her to recall the night that R.R. told her “about what was happening with her and your ex-boyfriend.” The State then asked if M.R. recalled “approximately what time it was that [R.R.] told you about the abuse?” M.R. answered that it was 11:00 p.m. M.R. testified that she confronted Reckart and “told him that [she] couldn’t believe that he had put his hands on my children that way....” When Rec-kart told her that he loved her children, M.R. told him “maybe he loved them just a little bit too much.” Reckart responded that he “never touched her.” Defense counsel did not object to this testimony.

The jury found Reckart guilty of continuous sexual abuse of a young child. A punishment hearing was held, after which the jury sentenced Reckart to thirty years’ imprisonment in the Texas Department of Criminal Justice-Institutional Division. This appeal ensued.

II. Extraneous Offenses

By his first issue, Reckart argues that the trial court erred by allowing evidence of extraneous bad acts allegedly committed by Reckart. Specifically, he argues that the State should not have been allowed to question M.R. in its case-in-chief about injuries Reckart allegedly caused to her sons. He argues that the testimony was admitted over his objection, and it violated Texas Rule of Evidence 404(b). See Tex.R. Evid. 404(b). We hold that Reckart waived any error in the admission of this evidence.

Initially, when the State wanted to question M.R. about Reckart spanking her sons, the attorneys approached the bench and asked for a hearing outside the jury’s presence. After hearing M.R.’s proposed testimony, the trial court ruled that it would admit the testimony regarding Rec-kart’s spanking of R.R.R. but not of R.A.R. “over counsel’s objection.” Thus, Reckart’s counsel obtained a favorable ruling as to testimony regarding Reckart spanking R.A.R. M.R. then was allowed to testify that Reckart spanked R.R.R., but her testimony did not address R.A.R.

On rebuttal, the State called R.A.R., who testified without objection that Rec-kart spanked him with a ping pong paddle “once or twice a day.” R.A.R. testified that Reckart also spanked his brother, R.R.R. R.A.R. explained that the spankings would leave bruises on his butt.

In order to preserve a challenge to the trial court’s admission of evidence, the complaining party must have lodged a timely objection and have obtained an adverse ruling. Tex.R.App. P. 33.1(a); Tex.R. Evid. 103. “[O]verruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling.” Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App.1998); see also Moore v. State, 999 S.W.2d 385, 402 (Tex.Crim.App.1999) (“The admission of the same evidence from another source, without objection, waives previously stated objections.”).

Although Reckart preserved his objection to testimony M.R.’s regarding Rec-kart’s spanking of R.R.R. by obtaining a ruling outside the presence of the jury, see Tex.R. Evid. 103, the record reflects that he never obtained an adverse ruling as to her testimony regarding R.A.R., and Rec-kart did not object when R.A.R. testified that Reckart spanked him. See Tex.R.App. P. 33.1(a). The testimony from R.A.R. was essentially the same; therefore, Rec-kart waived his arguments regarding this testimony by allowing R.A.R.’s testimony without objecting and pursuing the objection to an adverse ruling. Id.; Leday, 983 S.W.2d at 718. We overrule Reckart’s first issue.

III. UNCORROBORATED OUTCRY TESTIMONY

Reckart’s second issue states: “The admission of uncorroborated outcry testimony during trial violated Reckart’s right of Due Process.” However, in his argument, Reckart does not address how or why his right of due process was violated. Rather, Reckart argues that R.R.’s outcry statement to her mother was inadmissible under article 38.072 of the Texas Code of Criminal Procedure because R.R. was over the age of twelve when she made her outcry and because her statements were not specific enough. See Tex.Code Crim. Prog. Ann. art. 38.072 (Vernon Supp. 2009). Furthermore, he asserts that he was “not afforded the opportunity to really test the veracity of [R.R.j’s allegations since [R.R.j’s past sexual behavior was not allowed as evidence.”

Reckart has waived any “due process” challenge to outcry testimony because he has failed to brief that argument to this Court. Tex.R.App. P. 38.1(i). Moreover, Reckart waived any challenge to M.R.’s testimony regarding R.R.’s outcry by failing to object at trial. Tex.R.App. P. 33.1(a); Tex.R. Evid. 103; Rosas v. State, 76 S.W.3d 771, 776-77 (Tex.App.-Houston [1 Dist.] 2002, no pet.) (citing Holland v. State, 802 S.W.2d 696, 699-700 (Tex.Crim.App.1991); Beckham v. State, 29 S.W.3d 148, 153 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (holding complaints that article 38.072 violates confrontation rights under federal constitution require objection to preserve error)). Accordingly, we overrule his second issue.

IV. Sufficiency of the Evidence

By his third issue, Reckart argues that the evidence is legally and factually insuffi-eient to support the verdict. Specifically, he argues that although the alleged victim, R.R., testified to the acts alleged to be sexual abuse, the evidence is legally insufficient because R.R.’s testimony was uncorroborated, unsubstantiated, and not credible. Reckart argues that the evidence is factually insufficient because several witnesses testified that Reckart was a good father and did not abuse R.R. and because R.R.’s testimony was uncorroborated, unsubstantiated, and not credible. We disagree.

A. Standard of Review and Applicable Law

When reviewing the legal sufficiency of the evidence, we must determine whether “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’ — not whether ‘[we believe] that the evidence at the trial established guilt beyond a reasonable doubt.’ ” Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App.2009) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). “[W]e assess all of the evidence ‘in the light most favorable to the prosecution.’ ” Id. (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781). “After giving proper deference to the fact-finder’s role, we will uphold the verdict unless a rational factfinder must have had reasonable doubt as to any essential element.” Id. at 518 (citing Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App.1992)).

“Evidence that is legally sufficient, however, can be deemed factually insufficient in two ways: (1) the evidence supporting the conviction is ‘too weak’ to support the factfinder’s verdict, or (2) considering conflicting evidence, the factfinder’s verdict is ‘against the great weight and preponderance of the evidence.’ ” Id. (quoting Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App.2006)). In conducting a factual sufficiency review, we consider all of the evidence in a neutral light and will “find the evidence factually insufficient when necessary to ‘prevent manifest injustice.’ ” Id. (quoting Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997)). “An appellate court gives due deference to the findings of the fact-finder, but the appellate court may substitute its judgment for the jury’s credibility and weight determinations to a very limited degree.” Render v. State, 316 S.W.3d 846, 859 (Tex.App.-Dallas 2010, pet. filed) (citing Watson, 204 S.W.3d at 416-17; Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App.2000)). “However, the existence of contrary evidence is not enough to support a finding of factual insufficiency.” Id. A conflict in the evidence will not justify a new trial simply because the appellate court disagrees with the jury’s resolution of that conflict. Id. (citing Watson, 204 S.W.3d at 417). “An appellate court must give deference to a jury’s decision regarding what weight to give contradictory testimonial evidence because the decision is most likely based on an evaluation of credibility and demeanor, which the jury is in a better position to judge.” Id. (citing Lancon v. State, 253 S.W.3d 699, 706 (Tex.Crim.App.2008)).

We measure the legal and factual sufficiency of the evidence based on a hypothetically correct jury charge. Grotti v. State, 273 S.W.3d 273, 280-81 (Tex.Crim.App.2008). A hypothetically correct jury charge “accurately promulgates the law, is authorized by the indictment, does not unnecessarily increase the state’s burden of proof or restrict the state’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id.

Texas Penal Code section 21.02 provides that a person commits the offense of continuous sexual abuse against a child if: “(1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and (2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age.” Tex. Penal Code Ann. § 21.02(b).

B. Legal Sufficiency

Reckart argues that the evidence supporting the conviction was legally insufficient because the State’s case was based on one witness, R.R., who gave uncorroborated, unsubstantiated, and non-credible testimony about the alleged abuse. First, Reckart argues that R.R. told Child Protective Services investigator Cano a “completely different story” and that at trial, R.R. embellished her story by adding facts that did not appear in any of her prior interviews. Second, Reckart argues that R.R.’s story was “doubtful” because there were other people who lived with R.R. who did not hear or see any of the abuse. Finally, Reckart points out that (1) the State did not present any DNA test results, (2) local police did not adequately investigate the case by overlooking possible witnesses, (3) there were no physical signs of abuse, and (4) R.R. did not exhibit “stress.”

Texas law provides that the testimony of a child sexual abuse victim alone is sufficient to support a conviction based on that abuse. Tex.Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); Ozuna v. State, 199 S.W.3d 601, 606 (Tex.App.-Corpus Christi 2006, no pet.). “Courts give wide latitude to testimony given by child victims of sexual abuse.” Ozuna, 199 S.W.3d at 606. “The victim’s description of what happened to him need not be precise, and he is not expected to express himself at the same level of sophistication as an adult.” Id.; see also Cano v. State, No. 13-09-00042-CR, 2010 WL 2205169, at *9 (Tex.App.-Corpus Christi June 3, 2010, pet. filed) (mem. op., not designated for publication). In fact, even if the victim has recanted the allegations, the jury is entitled to credit the earlier allegations and disbelieve the recanted testimony. Saldana v. State, 287 S.W.3d 43, 60 (Tex.App.-Corpus Christi 2008, pet. ref'd). Thus, R.R.’s testimony is legally sufficient to sustain the conviction, despite Reckart’s contentions. We overrule his legal sufficiency challenge.

C. Factual Sufficiency

Similarly, Reckart argues that several witnesses testified that he was a good father and that he did not abuse R.R. He asserts that in a 2008 investigation, Child Protective Services did not find any evidence of abuse. Moreover, he argues that M.R. was demonstrably not a credible witness because when M.R. first learned about R.R.’s allegations, she confronted Reckart instead of going to the police immediately. M.R. also told Child Protective Services that “Reckart was a good father” during the 2008 investigation, but at trial, she suggested that she always suspected something.

Furthermore, Reckart argues that R.R. was not a credible witness. Specifically, R.R. did not provide exact dates for each alleged incident but only provided a general time frame. During the 2008 investigation, R.R. did not tell the Child Protective Services investigator about any abuse. R.R. admitted on cross-examination to changing her story a few times and that she wanted Reckart to go to jail.

At most, Reckart merely points to conflicts in the evidence and to credibility issues that are most appropriately resolved by the jury. See Render, 316 S.W.3d at 859. As we noted earlier, there is no requirement that the victim’s testimony be corroborated, and the alleged inconsistencies in R.R. and M.R.’s testimony were within the province of the jury to resolve. See id.; see also Cano, 2010 WL 2205169, at *10. We will defer to the jury’s determination regarding the weight of the testimony. See Render, 316 S.W.3d at 859. We overrule Reckart’s third issue.

V. Right to an Impartial Jury

By his fourth and fifth issues, Rec-kart argues that section 21.02 of the Texas Penal Code violates his right to trial by an impartial jury under the Sixth Amendment to the United States Constitution and article I, section 10 of the Texas Constitution. See U.S. Const, amend. VI; Tex. Const. art. I, § 10; Tex. Penal Code Ann. § 21.02. He argues that under section 21.02(d), a jury is not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. Tex. Penal Code Ann. § 21.02(d). Subsection (d) provides:

If a jury is the trier of fact, members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. The jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse.

Id.

In his fourth issue, Reckart argues that: It is the duty of the jurors to consult with one another and to deliberate with a view to reaching an agreement. Each of juror [sic] must decide the case for his or herself, but only after an impartial consideration of ALL the evidence with fellow jurors. If each juror can randomly pick any two or more acts without agreement, it undermines the weight or effect of our rules for the mere purpose of returning a verdict.

Reckart cites Durrough v. State, in which the Texas Court of Criminal Appeals held that an impartial jury is one that does not favor a party or an individual because of the emotions of the human mind, heart, or affections. 562 S.W.2d 488, 489-90 (Tex.Crim.App.1978). In his fifth issue, Reckart argues that section 21.02 is “facially” unconstitutional and “vague” because it “encourages arbitrary and discriminatory enforcement by interfering with the fundamental right to a fair and impartial jury.”

Reckart, however, does not cite any cases that support his claim that the right to an impartial jury under the Federal or State Constitution includes the right to a unanimous jury, and we have found none. See Apodaca v. Oregon, 406 U.S. 404, 411— 12, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) (plurality agreeing that in state criminal prosecution, less than unanimous verdict did not violate Sixth Amendment right to impartial jury); see also State v. Espinoza, No. 05-09-01260-CR, 2010 WL 2598982, at *3 (Tex.App.-Dallas June 30, 2010, pet. filed) (not designated for publication). We overrule Reckart’s fourth and fifth issues.

VI. Eighth Amendment

By his sixth issue, Reckart argues that the jury instructions in this case were internally contradictory and created inherent confusion, rendering the statute unconstitutional and in violation of the Eighth Amendment. See U.S. Const. amend. VIII. Reckart relies on Penry v. Lynaugh, 492 U.S. 302, 322-28, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (Penry I), and Penry v. Johnson, 532 U.S. 782, 782-85, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001), arguing that if the jury receives “mixed signals,” then the conviction violates the Eighth Amendment. The problem with Reckart’s brief, however, is that he does not identify which jury-instructions he claims were conflicting and gave the jury “mixed signals.” Under the circumstances, this argument is inadequately briefed. Tex.R.App. P. 38.1(i). We overrule Reckart’s sixth issue.

VII. Proof Beyond a Reasonable Doubt

By his seventh issue, Reckart argues that section 21.02(d), quoted above, allows the State to obtain a conviction on less than proof beyond a reasonable doubt, which he argues violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution, Texas Code of Criminal Procedure article 38.08, and Texas Penal Code section 2.01. See U.S. Const. amend. XIV; Tex.Code Crim. Proc. Ann. art. 38.03; Tex. Penal Code Ann. § 2.01. Reckart’s argument is that:

Section 21.02 of the penal Code inherently changes the burden of proof required by criminal procedure. By allowing the jury to bypass evaluating each element of the offense beyond a reasonable doubt, the presumption of innocence is eliminated or severely reduced. Not to reach a unanimous decision on each element of the offense, especially on one or more charges, fundamentally violates the constitution. Therefore, this Court should reverse Reckart’s conviction and sentence, and vacate his judgment.

We disagree with the main premise underlying Reckart’s argument-that the statute allows a non-unanimous verdict on each element of the offense. See Render, 316 S.W.3d at 857-58; see also Espinoza, 2010 WL 2598982, at *3 (Tex.App.-Dallas June 30, 2010, pet. filed) (mem. op., not designated for publication); Jacobsen v. State, 325 S.W.3d 733, 739-40 (Tex.App.Austin 2010, no pet.) (mem. op., not designated for publication).

In Ngo v. State, the State relied on evidence that at different times the defendant committed three different acts that the applicable statute defined as separate criminal offenses and not as means of committing a single criminal offense, and it used that evidence to obtain a single conviction. 175 S.W.3d 738, 745 (Tex.Crim.App.2005). The court of criminal appeals held that “the failure to instruct the jury that it must be unanimous on which specific criminal act the defendant committed violated the defendant’s state constitutional and statutory right to a unanimous jury verdict.” Id. at 752. The court further held, however, that the jury need not agree on all the “underlying brute facts [that] make up a particular element.” Id. at 747 (citing Richardson v. United States, 526 U.S. 813, 815, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999)).

In Render v. State, the Dallas Court of Appeals held that section 21.02 did not allow for a non-unanimous verdict on the essential elements of the offense and distinguished Ngo, because “[t]he applicable statute in Ngo defined the three acts involved as separate criminal offenses while the applicable statute here defines the two or more acts involved as means of committing a single criminal offense.” 316 S.W.3d at 857 (emphasis added) (citing Jefferson v. State, 189 S.W.3d 305, 312-13 (Tex.Crim.App.2006) (holding that an injury could be caused in any of multiple ways and the jury does not have to unanimously agree as to any particular act or omission); Landrian v. State, 268 S.W.3d 532, 535 (Tex.Crim.App.2008) (“The Legislature has considerable discretion in defining crimes and the manner in which those crimes can be committed”)). Section 21.02 allows the State to seek a single conviction for a “series” of acts of sexual abuse with evidence that, during the relevant time period, the accused committed two or more different acts that section 21.02 defines as means of committing a single criminal offense and not as two or more separate criminal offenses. Id. Thus, each act of sexual abuse is not an “element” of the offense; rather, the “series” is the element of the offense, and the acts of sexual abuse are merely the manner and means of committing an element of the offense. Id.; Jacobsen, 325 S.W.3d at 737 (“Under the plain language of section 21.02, it is the commission of two or more acts of sexual abuse over the specified time period — that is, the pattern of behavior or the series of acts — that is the actus reus element of the offense as to which the jurors must be unanimous in order to convict.”). Thus, we conclude that the statute does not allow for a non-unanimous verdict on an essential element of the offense. We overrule Reckart’s seventh issue.

VIII. Conclusion

Having overruled all Reckart’s issues, we affirm the trial court’s judgment.

      . During cross-examination of M.R., Rec-kart’s attorney approached the bench to discuss a matter subject to the State's motion in limine. Reckart’s attorney indicated that at some point, there was a note from school about R.R. engaging in sexual activity with boys, and Reckart's counsel wanted to address it with M.R. The trial court asked, “What’s that got to do with this?” Reckart's attorney replied, "Okay. I'll reserve it for later.” Reckart's attorney, however, did not bring it up again.

      . We note that Reckart does not argue that section 21.02 violates article I, section 13 of the Texas Constitution, which provides that the jury in a criminal case must render a unanimous verdict. Our holding, however, undermines the basic premise that would support such an argument.


source: Caselaw Access Project

author: J. WOODFIN JONES, Chief Justice.

license: Public Domain

text:
    In the Interest of K.M.P.
    No. 03-10-00006-CV.
    Court of Appeals of Texas, Austin.
    Aug. 31, 2010.

      Karl E. .Hays, Law Office of Karl E. Hays, Austin, TX, for Appellant.
    Samuel Downing McDaniel, Austin, TX, for Appellee.
    Before Chief Justice JONES, Justices PURYEAR and PEMBERTON.
   OPINION

J. WOODFIN JONES, Chief Justice.

K.M.P.’s father, Jason Perry, filed a motion to enforce the possession terms of the custody portion of the couple’s divorce decree against K.M.P.’s mother, Mandy Boyt. Boyt filed a special appearance and a plea to the jurisdiction, collaterally attacking the court’s original 2004 decree as void for lack of subject-matter jurisdiction. The trial court granted Boyt’s special appearance and plea to the jurisdiction and dismissed Perry’s enforcement action. Perry appeals in three issues, asserting that the trial court misapplied the presumptions of validity given to the decree on collateral attack and therefore erred in (1) granting Boyt’s special appearance, (2) finding that the court lacked jurisdiction over Perry’s enforcement action, and (3) dismissing that suit for lack of jurisdiction. We will affirm the trial court’s dismissal order.

FACTUAL AND PROCEDURAL BACKGROUND

Perry and Boyt divorced in 2004. The divorce decree contained an initial custody determination for K.M.P., the couple’s only child. The possession provisions of the decree were amended in 2008. After Boyt allegedly failed to comply with the terms of the modified decree, Perry filed an enforcement action. In response, Boyt asserted that the trial court lacked subject-matter jurisdiction over the enforcement action because it had lacked jurisdiction from the outset to render the custody portion of its original decree. Boyt argued that, because it lacked initial jurisdiction, the court now lacked continuing, exclusive jurisdiction to modify or enforce the void decree. She also contended that, because the court lacked continuing, exclusive jurisdiction over the case and the parties, and because she had not been otherwise served with process in the enforcement action, the court also lacked personal jurisdiction over her. The trial court granted Boyt’s special appearance and plea to the jurisdiction and dismissed Perry’s enforcement action. Perry perfected this appeal.

STANDARD OF REVIEW

Whether a court has subject-matter jurisdiction is a question of law that we review de novo. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex.2004). Subject-matter jurisdiction is never presumed and cannot be waived. Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 442-44 (Tex.1993).

In the present enforcement action, Boyt is collaterally attacking the original custody determination by asserting that the 2004 decree is void. If, as Boyt asserts, the court lacked subject-matter jurisdiction or personal jurisdiction when it rendered the initial custody determination, that judgment would be void and subject to collateral attack. See Austin Indep. Sch. Dist. v. Sierra Club, 495 S.W.2d 878, 881 (Tex.1973); Wagner v. D’Lorm, 315 S.W.3d 188, 191-92 (Tex.App.-Austin 2010, no pet.). “In a collateral attack, the judgment under attack is presumed valid,” Stewart v. USA Custom Paint & Body Shop, Inc., 870 S.W.2d 18, 20 (Tex.1994), and “every reasonable presumption to uphold [the judgment] will be indulged,” Rolison v. Puckett, 145 Tex. 366, 198 S.W.2d 74, 77 (1946). “In order for a collateral attack to be successful the record must affirmatively reveal the jurisdictional defect.” White v. White, 142 Tex. 499, 179 S.W.2d 503, 506 (1944).

[I]f the record in the cause does not negative the existence of facts authorizing the court to render the judgment, the law conclusively presumes that such facts were established before the court when such judgment was rendered, and evidence dehors the record to the contrary will not be received.

Id.

We limit our review to determining whether the record affirmatively and conclusively negates the existence of jurisdiction, not whether the court otherwise erred in rendering its judgment. See id. While we indulge every reasonable presumption in favor of the judgment’s validity, we may consider only the face of the record and may not presume that “something omitted from the clerk’s record might have supported jurisdiction” when faced with a record that otherwise negates jurisdiction. Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex.2008).

DISCUSSION

Subject-Matter Jurisdiction & Collateral Attack

We begin by addressing Perry’s second and third issues regarding the court’s subject-matter jurisdiction. Boyt asserts that the court lacked subject-matter jurisdiction to make its original child-custody determination because the court’s findings of jurisdictional fact as recited in the 2004 decree, taken in conjunction with the jurisdiction provisions in the family code, affirmatively negated the court’s jurisdiction. Boyt argues that, lacking jurisdiction from the outset, the court had no “continuing, exclusive jurisdiction” over the custody issue and thus no jurisdiction to modify or enforce its decree.

Section 152.201 of the family code confers subject-matter jurisdiction on Texas courts to decide initial matters of child custody only if certain prerequisites are met:

(a) Except as otherwise provided in Section 152.204, [which governs temporary emergency jurisdiction,] a court of this state has jurisdiction to make an initial child custody determination only if:
(1) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(2) a court of another state does not have jurisdiction under Subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 152.207 or 152.208, and:
(A) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(B) substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
(3) all courts having jurisdiction under Subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 152.207 or 152.208; or
(4) no court of any other state would have jurisdiction under the criteria specified in Subdivision (1), (2), or (3).
(b) Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

Tex. Fam.Code Ann. § 152.201 (West 2009). “ ‘Commencement’ means the filing of the first pleading in a proceeding.” Id. § 152.102(5) (West 2009). The term “home state” is defined as follows:

“Home state” means the state in which a child lived with a pai'ent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with a parent or a person acting as a parent. A period of temporary absence of a parent or a person acting as a parent is part of the period.

Id. § 152.102(7) (emphasis added).

In support of her assertion that the court lacked initial jurisdiction over the custody matter, Boyt points to the 2004 divorce decree itself. In finding and reciting pertinent facts about the “child of the marriage,” that decree lists K.M.P.’s “Home state” as “Georgia.” Boyt argues that such a finding of jurisdictional fact conclusively negates the court’s jurisdiction. Noting that, on collateral attack, we must presume the court’s jurisdiction, Perry asserts that the court’s home-state finding may be construed consistently with its exercise of jurisdiction. In further support of that presumption, he points to the following recital in the decree:

The Court finds that the pleadings of [Perry] are in due form and contain all the allegations, information, and prerequisites required by law. The Court, after receiving evidence, finds that it has jurisdiction of the case and of all the parties and that at least sixty days have elapsed since the date the suit was filed.... All persons entitled to citation were properly cited.

After examining the record and attempting to reconcile the court’s seemingly inconsistent findings in light of our deferential standard of review on collateral attack, we agree with Boyt that, because the court expressly found Georgia to be KM.P.’s home state, it lacked subject-matter jurisdiction over the initial custody determination. See id. § 152.201(a)(1). Perry, however, urges us to presume that the court applied one of the alternate provisions in section 152.201 to establish its jurisdiction. We conclude that none of those provisions is consistent with the court’s home-state finding or otherwise applies in light of that finding. Subsection 152.201(a)(2) applies only if there is no state that has jurisdiction under (a)(1), or if a state with jurisdiction in (a)(1) has declined to exercise jurisdiction. The court’s finding that Georgia was K.M.P.’s home state means that Georgia had jurisdiction over the initial custody decision, so the first clause of (a)(2) does not apply. The second clause, which requires a finding that Georgia declined jurisdiction in favor of Texas, finds no support in the record and would be unreasonable to presume. See White, 179 S.W.2d at 506 (court indulges all reasonable presumptions in favor of judgment’s validity). Subsections (a)(3) and (a)(4) do not apply for the reasons we have just articulated: Georgia met the requirement of (a)(1), and a presumption that Georgia declined jurisdiction is not supported by the record. Finding no basis in section 152.201(a) for Texas’s initial child-custody jurisdiction, we hold that the trial court lacked jurisdiction to make an initial custody determination. See Tex. Fam.Code Ann. § 152.201(b) (“Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.”). Accordingly, the child-custody portion of the 2004 decree is void and without effect. See Austin Indep. Sch. Dist., 495 S.W.2d at 881.

Perry argues that the 2004 decree did not state that KM.P.’s home state was Georgia on the date of the commencement of the proceeding — the key date for the jurisdictional inquiry — but only constituted a finding of K.M.P.’s home state on the date the decree was entered. The court’s finding merely stated: “Home state: Georgia.” Thus, asserts Perry, the court could have concluded that K.M.P.’s home state was Texas when the proceedings commenced but later became Georgia in the months that elapsed while the action was pending. We disagree that this is a reasonable reading of the court’s finding. First, the family code’s definition of “home state” for children older than six months contains a temporal requirement, itself based on the date that custody proceedings commenced: “‘Home state’ means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. ...” Tex. Fam.Code Ann. § 152.102(7) (emphasis added). Therefore, in finding that K.M.P.’s home state was Georgia, the court implicitly— and necessarily — found that K.M.P. had lived in Georgia for at least six consecutive months before the commencement of this custody proceeding. Such a finding precludes any possibility that Texas was K.M.P.’s home state at the time the proceeding was commenced. Second, we may not assume that the court’s home-state fact-finding referred to the decree’s rendition date instead of the date the proceeding was commenced. The relevant date for the home-state jurisdictional inquiry is the latter. Construing the court’s clear, unambiguous finding of jurisdictional fact to mean the opposite would be unreasonable. See White, 179 S.W.2d at 506.

Because we conclude that the face of the decree itself affirmatively negates the jurisdictional facts necessary to support the trial court’s subject-matter jurisdiction over its original custody determination, the trial court also lacked continuing, exclusive jurisdiction over Perry’s enforcement action. Accordingly, the court did not err in granting Boyt’s plea to the jurisdiction. We overrule Perry’s second and third issues. Having determined that the court lacked jurisdiction, we do not consider Perry’s remaining issue.

CONCLUSION

Because the trial court correctly determined that it lacked subject-matter jurisdiction, we affirm the court’s dismissal order.


author: BRIAN QUINN, Chief Justice.

text:
    Jasmin DELIJEVIC, Appellant, v. The STATE of Texas, Appellee.
    No. 07-09-0273-CR.
    Court of Appeals of Texas, Amarillo, Panel B.
    Sept. 7, 2010.
    James E. Wooldridge, Attorney at Law, Amarillo, TX, for Appellant.

      Wesley G. Clayton, Warren L. Clark, Assistant Criminal District Attorney, Canyon, TX, for Appellee.
    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
   Opinion

BRIAN QUINN, Chief Justice.

Jasmin Delijevic (appellant) appeals his conviction for possessing a controlled substance and contends that the trial court erred in failing to 1) grant his motion to suppress evidence, 2) allow him an opportunity to examine a computer within the State’s possession, and 3) instruct the jury regarding the purportedly unlawful stop and the admissibility of the evidence obtained as a result of that stop. We affirm.

Background

Officer Elizabeth Allen with the Amarillo Police Department testified that she stopped the car in which appellant rode due to “[a]n improper left turn, ... and also an expired registration.” After approaching the vehicle, she received identification from both the driver and appellant. Furthermore, appellant requested leave to go to the bathroom. That leave was temporarily denied him so that she could first determine if there were any outstanding warrants encompassing either individual. And, as she was returning to her squad car, the officer saw appellant “reaching down into the floorboard area and looking back over his shoulder displaying some furtive movement.” It appeared to her that appellant was trying to secrete or retrieve something, and she grew concerned for her safety.

Though no outstanding warrants were discovered, the officer solicited backup because she intended to arrest the driver. Apparently, he had committed a plethora of traffic violations, which included his operation of the vehicle without insurance. The backup arrived. At that point, Officer Allen asked appellant to step out of the vehicle and for consent to search his person. Appellant acceded to both requests. It was during that search that methamphetamine was discovered on appellant’s person.

Issue One — Suppression of Evidence

Appellant contends that he was denied due process and a fair trial when the trial court failed to grant his motion to suppress evidence. Suppression was allegedly required because there was no basis justifying either the initial stop of the car or ensuing search of appellant. We overrule the issue.

As described above under “Background,” the record contains evidence from which reasonable minds could have concluded that the vehicle’s driver committed various traffic violations in the presence of the officer. Furthermore, an officer may legitimately stop those committing traffic "violations. State v. Patterson, 291 S.W.3d 121, 123 (Tex.App.-Amarillo 2009, no pet.). So too could reasonable minds have deduced, from the evidence of record, that the eventual search of appellant was consensual. Given this, we cannot say that the decision to deny the motion to suppress fell outside the zone of reasonable disagreement and evinced an instance of abused discretion. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997) (discussing the pertinent standard of review and our need to defer to the trial court’s interpretation of evidence and resolution of historical fact).

Issue Two — Computer Examination

In his second issue, appellant contends that the trial court erred by refusing to abide by art. 39.14(a) of the Texas Code of Criminal Procedure and allow him “to examine a computer in the possession of the State that may have produced exculpatory evidence of the actual events occurring during the stop in which evidence was seized, and of evidence tampering by the State.” That is, the trial court allegedly erred in prohibiting him from inspecting a computer hard drive to determine if a video of the entire stop could be located on it. We overrule the issue for several reasons.

First, appellant failed to inform us of where in the record the trial court denied his request to examine the computer. Instead, he directs us to a passage in the record wherein the court refused to pay $3,300 to a supposed expert in California to inspect the machine and determine whether more data than what he already had appeared in it. This is problematic because saying that the computer cannot be inspected is one thing. Saying that the court will not approve the expenditure of a large sum of money to a particular person to conduct an inspection is something else. And, while the latter may have happened, we cannot find anything of record illustrating that the former occurred as well. Simply put, we cannot find where the trial court did that of which appellant now complains. Tex.R.App. P. 33.1(2)(A) (holding that before an objection is preserved for review, the trial court must rule on it).

Nor do we read appellant’s complaint as attacking the trial court’s refusal to approve the expenditure of $3,300. Indeed, whether that sum was reasonable goes unaddressed by appellant. Nor does he seem to contend that but for the expenditure of $3,300, the computer could not be inspected. So, the validity of the ruling actually made by the court is not attacked.

And, finally, we find the wording of art. 39.14(a) would seem to prevent us from finding merit in appellant’s contention. That provision allows for the inspection of items “which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State.... ” Tex. Code Crim. Proc. Ann. art. 39.14(a) (Vernon Supp.2009) (emphasis added). When deciding whether to grant appellant’s discovery request, the trial court heard evidence explaining why a video memorializing the entire stop was and could not be produced. This led the trial judge to comment that the evidence “helps me understand that I don’t believe this outfit in California ... would be able to get any information other than what they’ve already been provided.” One can reasonably interpret this utterance as the court opining that the computer did not contain the additional evidence sought by appellant. And, if it did not contain material evidence, its inspection was not mandated by art. 39.14(a). Moreover, appellant cites us to nothing of record suggesting that the trial court was mistaken in so concluding. Given this, we cannot say that any purported decision to withhold inspection of the computer constituted an abuse of discretion.

Issue Three — Jury Instruction

In his final issue, appellant contends the trial court erred in failing to provide the jurors instructions conforming to articles 38.22 and 38.23 of the Code of Criminal Procedure. Both articles touch upon the admissibility of inculpatory statements made by the accused and/or evidence obtained through the detention or search of the accused. We overrule the issue.

Despite proffering statements of law and excerpts from the Code of Criminal Procedure, appellant makes no effort to analyze how those things applied to the circumstances before us. Nor does he identify for us the written or oral statement upon which he founds his art. 38.22 complaint. Similarly missing is any discussion about the presence of a custodial interrogation, which that same article mandates. Herrera v. State, 241 S.W.3d 520, 526 (Tex.Crim.App.2007) (holding that article 38.22 applies only to statements garnered through custodial interrogation).

Also apparent is appellant’s failure to specify any evidentiary conflict regarding the manner and means utilized by the officers in obtaining the evidence of his guilt. Such a conflict is a prerequisite to the application of art. 38.23. Oursbourn v. State, 259 S.W.3d 159, 177 (Tex.Crim.App.2008) (stating that art. 38.23 applies when there exists material questions of fact regarding whether the evidence was obtained lawfully). Instead, appellant simply concludes that the trial court erred in failing to submit particular instructions. Such a conclusion is not enough to comply with the briefing requirements of Rule 38.1(i) of the Texas Rules of Appellate Procedure or to preserve the complaint. See Cardenas v. State, 30 S.W.3d 384, 393 (Tex.Crim.App.2000) (holding that the failure to cite to authority and present argument constitutes inadequate briefing).

The judgment of the trial court is affirmed.


author: Justice MOSELEY.

text:
    TEXAS VITAL CARE, Appellant, v. The STATE of Texas, Appellee.
    No. 06-10-00157-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Sept. 13, 2010.
    Decided Sept. 14, 2010.

      H. Arnold Shokouhi, Levi G. McCathern II, McCathern Mooty, LLP, Dallas, for appellant.
    Michael S. Evans, Bonham, for appellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Justice MOSELEY.

Texas Vital Care was issued three citations for violation of City of Bonham Ordinance No. 1048, an ordinance restricting the transportation of emergency and non-emergency patients in the City of Bonham. Texas Vital Care was found guilty of violating the ordinance upon trial in the Bonham Municipal Court of Record and was fined $500.00 on each of the three violations. The municipal court denied Texas Vital Care’s motion for new trial, and Texas Vital Care appealed to the County Court of Fannin County. See Tex. Gov’t Code Ann. § 30.00014(a) (Vernon Supp.2009).

The State filed a motion to dismiss the appeal, alleging Texas Vital Care’s noncompliance with Section 30.00015 of the Texas Government Code, requiring the filing of an appeal bond in order to perfect an appeal to the county court. Having determined that no appeal bond had been filed, the county court dismissed the appeal and remanded the case to municipal court for execution of sentence. Texas Vital Care now attempts to appeal the county court’s order of dismissal to this Court.

Although not raised by any party, we must notice, even sua sponte, the matter of our own jurisdiction over the merits of this appeal because jurisdiction is fundamental and cannot be ignored. State v. Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App.1996), overruled on other grounds by State v. Medrano, 67 S.W.3d 892, 903 (Tex.Crim.App.2002). The record reflects that the county court dismissed the appeal because Texas Vital Care failed to file an appeal bond in the municipal court of record.

A defendant may appeal to a court of appeals if he is convicted in a municipal court of record only if “the fine assessed against the defendant [in municipal court] exceeds $100 and if the judgment is affirmed” by the county court. Tex. Gov’t Code Ann. § 30.00027(a) (Vernon 2004). In this case, Texas Vital Care was convicted in a municipal court of record and the fine assessed for each conviction was $500.00. However, the judgment of the municipal court was never addressed on the merits. Instead, the county court dismissed the appeal for failure to file an appeal bond. It, therefore, appears that because the judgment was not affirmed by the trial court, this Court does not have jurisdiction to hear the appeal as the statutory requirements of Section 30.00027(a) of the Texas Government Code have not been satisfied.

The only reported case addressing the issue now before this Court is Jamshedji v. State, 230 S.W.3d 224 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd). In that case, the appellate court determined that it lacked jurisdiction to entertain an appeal after the county criminal court dismissed the appeal from a municipal court of record for want of jurisdiction. The court determined that the right to appeal exists only where a conviction in municipal court has been affirmed by the county court. Id. at 225. A situation effectively identical to this one was addressed in a memorandum opinion by the Fort Worth Court of Appeals. The court held that because the county criminal court dismissed, rather than affirmed the municipal court judgment, there is no right to appeal. The appeal was therefore dismissed for want of jurisdiction. McDowell v. State, No. 2-07-260-CR, 2007 WL 3037710 (Tex. App.-Fort Worth Oct. 18, 2007, pet. ref'd) (mem. op., not designated for publication).

One convicted of a crime has no common law or constitutional right to appeal. Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App.1992). The right to appeal is, instead, purely a statutory right. Id. “[T]o the extent that the legislature has created such a right, one hoping to invoke it must abide by the statutory requirements creating it.” Ford v. State, 20 S.W.3d 777, 779 (Tex.App.-Amarillo 2000, no pet.). The right to invoke the jurisdietion of this Court in a case originating in a municipal court of record is determined by Section 30.00027. See Alexander v. State, 240 S.W.3d 72, 75 (Tex.App.-Austin 2007, no pet.). This section limits our jurisdiction to those cases in which the judgment was affirmed by the appellate court. Tex. Gov’t Code Ann. § 30.00027. This Court is not at liberty to ignore or rewrite this legislative mandate. Because the municipal court judgment was not affirmed by the appellate court, this Court has no jurisdiction. If an appellate court is without jurisdiction over an appeal, it can only dismiss the appeal. See Sherman v. State, 12 S.W.3d 489, 492 (Tex.App.-Dallas 1999, no pet.).

We dismiss the appeal for want of jurisdiction.

      . The citations were actually issued in the full name of Texas Vital Care: Bells Savoy Community Emergency Services, Inc., d/b/a Texas Vital Care EMS.

      . Municipal courts of record are provided for by Chapter 30 of the Texas Government Code. A municipality may choose to have either a "municipal court” or a "municipal court of record," but not both. See Tex. Gov't Code Ann. § 30.00003(e) (Vernon 2004). A primary distinction between these types of municipal courts is that a “municipal court” established under Section 29.002 of the Texas Government Code is not a court of record. See Tex Gov’t Code Ann. § 29.002 (Vernon 2004). Thus, an appeal from such a municipal court is necessarily by trial de novo because there is no "trial record” for the county court to consider on appeal. See State v. Blankenship, 170 S.W.3d 676, 680 n. 7 (Tex.App.-Austin 2005, pet. ref'd); Tweedie v. State, 10 S.W.3d 346, 348 (Tex.App.-Dallas 1998, no pet.). By comparison, an appeal from a municipal court of record must be "based only on errors reflected in the record.” Tex.Code Crim. Proc. Ann. art. 44.17 (Vernon 2006); see also Tex Gov't Code Ann. § 30.00014(b) (Vernon Supp. 2009).

      . This provision of the Texas Government Code affords the right of appeal from "a judgment or conviction in a municipal court of record.... The county criminal courts or county criminal courts of appeal in the county in which the municipality is located or the municipal courts of appeal have jurisdiction of appeals from a municipal court of record.” Tex Gov't Code Ann § 30.00014(a).

      . Section 30.00015 requires that if the defendant is not in custody,
      [T]he defendant may not take an appeal until the defendant files an appeal bond with the municipal court of record. The bond must be approved by the court and must be filed not later than the 10th day after the date on which the motion for new trial is overruled.
      Tex. Gov't Code Ann. § 30.00015(a) (Vernon 2004).

      . While unpublished, or memorandum, opinions are not binding precedent, such opinions may be considered as persuasive authority. See also Underwood v. State, No. 14-06-00763-CR, 2007 WL 1745297 (Tex.App.Houston [14th Dist.] June 19, 2007, no pet.) (mem. op., not designated for publication) (right to appeal to court of appeals from municipal court of record judgment exists only when judgment is affirmed by the county court).

      . The best evidence of legislative intent is the statutory text. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). The language of Section 30.00027(a) is clear and unambiguous.


text:
    Tony MILLER, Individually and d/b/a Tony Miller Renovations & Construction, Appellant, v. Gail McCARTY, Appellee.
    No. 06-10-00007-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Sept. 8, 2010.
    Decided Sept. 21, 2010.

      Courtney S. Floyd, Richard W. Espey, Espey & Associates, PC, San Antonio, for appellant.
    Michael A. Friedman, Friedman Law Office, Texarkana, for appellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Justice MOSELEY.

Spencer and Gail McCarty experienced problems with their Bowie County home which appeared to be caused by flaws in its foundation. In November or December 2007, Spencer made contact with a family friend, Tony Miller, doing business as Tony Miller Renovations and Construction, to repair the foundation. Spencer died during December 2007 and Gail contracted with Miller to perform the work, this being the construction of pilings under the foundation to give added support to the foundation’s southwest corner. Upon commencement of the anticipated repairs, Miller discovered concrete pilings beneath the foundation which indicated that there had apparently been two previous attempts to ameliorate the foundation problem. Although the existence of these unexpected pilings created more difficulty than Miller had anticipated when bidding the work, he attempted to work around them, but was unable to do so. Various disputes arose regarding the deposit McCarty was to pay, the existence of an agreement that more work was needed to lend additional support to the entire south end of the house, and the existence and impact of an alleged plumbing leak which Miller maintained was the precipitating cause of the foundation problems. As a result of the cumulative disputes, work on the job ceased with Miller and McCarty blaming each other, McCarty claiming that Miller voluntarily quit and Miller maintaining that he had been ordered by McCarty to leave the job site.

McCarty filed suit against Miller individually and as Tony Miller Renovations & Construction, alleging negligence, breach of contract, and violations of the Texas Deceptive Trade Practices — Consumer Protection Act (DTPA). Tex. Bus. & Com. Code Ann. §§ 17.41-.63 (Vernon 2002 & Supp. 2010). Miller alleged contributory negligence, counterclaimed for breach of contract, and pled excuse for his failure to perform. After a jury trial, the jury found: (1) that both parties were negligent; (2) that McCarty had been damaged in the sum of $4,700.00 due to Miller’s nonperformance of the contract; (3) that Miller performed compensable work of the value of $2,937.50; and (4) that both parties had failed to comply with the contract; (5) but that Miller’s failure to comply with the contract was excused. The issue of attorney’s fees was submitted to the trial court. McCarty submitted attorney’s fees of $18,135.00 and Miller submitted attorney’s fees of $1,800.00.

After the filing of warring motions for judgment non obstante veredicto and motions to enter judgment, the trial court entered a judgment which (1) disregarded the jury’s finding that Miller was excused from complying with the contract, and (2) after weighing offsets, payments, attorneys’ fees, and costs of court, awarded McCarty judgment for $18,204.90.

On appeal, Miller argues that the trial court erred in disregarding the jury’s finding that Miller’s breach of contract was excused on the stated basis that the finding was inconsistent with the greater weight of the evidence. Miller further contends that because the jury found that he was excused from performance of the contract, the trial court erred in awarding McCarty attorney’s fees and recovery for damages.

In her cross-appeal, McCarty contends that: (1) there is factually insufficient evidence that Miller and McCarty were twenty percent and eighty percent negligent, respectively; (2) there is factually insufficient evidence that McCarty failed to comply with the contract; (3) there is factually insufficient evidence that Miller’s failure to comply with the contract was excused; and (4) the trial court erred because it did not award attorney’s fees consistent with the uncontroverted evidence.

As to Miller’s appeal, we reverse the trial court’s order disregarding the jury’s finding because there is legally and factually sufficient evidence that Miller’s failure to comply with the contract was excused. We also reverse the award against Miller for damages incurred by McCarty and the attorney’s fee award given to her.

As to McCarty’s cross-appeal, we reject McCarty’s argument that: (1) there is legally and factually insufficient evidence that McCarty was negligent; (2) there is legally and factually insufficient evidence that McCarty failed to comply with the contract; and (3) there is legally and factually insufficient evidence that Miller’s failure to comply was excused.

Standard of Review

The issues on appeal are the legal and factual sufficiency of the jury findings and the trial court’s decision to disregard one of those findings. A trial court may disregard a jury’s finding only if there is no evidence to support the finding. Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex.1994); C. & R. Transp., Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966). In determining a no-evidence issue, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001); Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); Hooper v. Smallwood, 270 S.W.3d 234 (Tex.App.-Texarkana 2008, pet. denied).

In a legal sufficiency review, we view the evidence in a light favorable to the finding, crediting favorable evidence if a reasonable fact-finder could, and disregarding contrary evidence unless a reasonable fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). Anything more than a scintilla of evidence is legally sufficient to support the jury finding. Cazarez, 937 S.W.2d at 450. When reviewing the factual sufficiency of evidence, we examine all the evidence and set aside a finding only if it is so contrary to the evidence as to be clearly wrong and unjust. Bledsoe Dodge, L.L.C. v. Kuberski, 279 S.W.3d 839, 841-42 (Tex.App.-Dallas 2009, no pet.); Cameron v. Cameron, 158 S.W.3d 680, 683 (Tex.App.-Dallas 2005, pet. denied).

Legally and Factually Sufficient Evidence Regarding Miller’s Excuse to Comply with Contract

In its answer to Question 7, the jury found that Miller’s failure to comply with the contract was excused. Finding that the answer was “inconsistent with the greater weight of evidence,” the trial court granted McCarty’s motion to disregard the jury’s answer to Question 7. Miller argues that the trial court erred because there is sufficient evidence that Miller’s failure to comply was excused. Contra-veningly, McCarty contends that there is legally and factually insufficient evidence to support the jury’s finding in the first place.

At trial, Miller argued that his failure to comply with the contract was excused because: (1) he and McCarty agreed that a new contract would take the place of the original, (2) McCarty failed to comply with a material obligation of the contract, and/or (3) McCarty repudiated the contract. The charge of the court listed each of these potential excuses for performance in its instructions; therefore, the jury was permitted under those instructions to find Miller’s excuse from performance on any one or more possibly inconsistent grounds without specifying the specific reason.

A contract that is modified or amended by the mutual consent of the parties constitutes a new agreement that takes the place of the original. S & D Group, Inc. v. Talamas, 710 S.W.2d 680 (Tex.App.-Corpus Christi 1986, writ ref'd n.r.e.); Martin v. Davis Constructors, Inc., 552 S.W.2d 873, 877 n. 4 (Tex.App.San Antonio 1977, writ ref'd n.r.e.).

Here, the contract called for Miller to repair McCarty’s foundation in three phases. It is undisputed that phase one included the installation of six concrete piers beneath the southwest corner of McCarty’s residence for a total cost of $4,000.00. The contract required McCarty to pay Miller $2,000.00 at the beginning of phase one and another $2,000.00 upon the completion of phase one. Shortly after McCarty paid the initial $2,000.00 and Miller began work, Miller discovered concrete blocks near the foundation that were apparently part of a previous attempt to repair the foundation.

Miller testified that after he attempted to work around the previous foundation repair work, McCarty inquired of him what would be needed to raise the entire south end of the residence (as opposed to raising only the southwest corner as had been previously contemplated by the parties). Miller advised that this change would require six additional piers added to phase one of the contract, an action that would elevate the total cost of phase one by $1,875.00. Miller also testified that in order to do the expanded work, he would require one-half of the additional cost (or an additional $937.50) before he commenced work. Miller testified that McCarty paid $500.00 of the $937.50, but failed to pay the remaining $437.50.

McCarty admitted having paid Miller the additional $500.00 which Miller mentioned, but attributes that additional payment to a very different fact circumstance. Instead, McCarty testified that Miller approached her and said he was broke and needed more money and that plea is the sole reason she paid him the additional $500.00. McCarty specifically denied requesting that Miller add more piers and, by implication, denies modifying or amending the original contract in any way.

The conflicting evidence raises a fact issue as to whether a new agreement was made. It is the jury’s province to resolve conflicts in the evidence. Wilson, 168 S.W.3d at 819-20. The jury remains the sole judge of witnesses’ credibility and the weight to be given then testimony; it is free to accept or reject all or part of a witness’s testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003). Having considered all the evidence, we find legally and factually sufficient evidence from which the jury could have determined that the parties agreed that a new contract would take the place of the original. See Bradford, 48 S.W.3d at 754. The jury’s finding is supported by more than a scintilla of evidence and is not so against the great weight and preponderance of the evidence that it is clearly unjust. Therefore, the trial court erred in disregarding the jury’s answer to Question 7, and we reverse that portion of the judgment.

Legally and Factually Sufficient Evidence to Support the Jury’s Findings

McCarty’s 80% Negligence

In her pleadings, McCarty made allegations of violations of the DTPA. At trial, McCarty argued that Miller’s negligence was responsible for the damages to her home. While Miller admitted to damaging a few patio tiles and some of the brick on the home, he contended that the rest of the damages were the result of McCarty’s failure to timely repair the foundation problem or the plumbing leak that allegedly caused it.

The issues were presented to the jury and, in its answers to Questions 1 and 2, the jury found that the negligence of both McCarty and Miller proximately caused the damages. The jury found McCarty to be eighty percent negligent and Miller to be twenty percent negligent. In her cross-appeal, McCarty argues that there is legally and factually insufficient evidence to support the finding that she was eighty percent negligent. We disagree.

McCarty knew of the home’s foundation problems as early as November 2005, but she did not attempt to have them repaired until Miller began work in December 2007. Several witnesses testified to the condition of the home prior to Miller beginning work. Mike Moon, a plumber, testified that he noticed a “steep” downward slope in the floor of the home. Joe Russ, Jr., a construction manager for an engineering company that does failure analysis, foundation repair, and other construction, testified that he noticed a slope in the floor years prior to McCarty buying the house. Just prior to Miller’s work, he was in the home and saw damages consistent with foundation problems: the floor had a downward slope to it, the fireplace listed to one side, doors would not open or latch, and there were deep cracks in the walls and “cracks, rips, [and] tears in the sheetrock” and wall paper.

McCarty argued that the pre-existing problems with the walls, doors, and molding got worse after Miller’s work. McCarty’s expert architect, Mark Glenn, testified to the home’s condition several weeks after Miller stopped working on the McCarty residence. Outside, he saw several large, water-filled holes that were dug under the home, broken pipes, “jerry-rigged electrical and gas connections,” damage to a small portion of the home’s brick exterior, and some damage to “small patio slabs.” Inside, he observed “[m]edium to large sized cracks” in the drywall, doors that were stuck, and separated crown molding. Glenn testified that based on the information he was given at the time of his inspection, Miller’s work “definitely contributed to the more extensive damage.”

Determining the degree, if any, that the parties’ respective negligence proximately caused McCarty’s damages is the province of the jury. See Pearson v. DeBoer, Inc., 99 S.W.3d 273, 276 (Tex.App.-Corpus Christi 2003, no pet.); see Smith v. Cent. Freight Lines, Inc., 774 S.W.2d 411, 412 (Tex.App.-Houston [14th Dist.] 1989, writ denied). The jury determined that the negligence of both Miller and McCarty “proximately cause[d] the occurrence in question.” It is the jury’s role to weigh witnesses’ credibility and determine whether McCarty’s conduct contributed to her damages, and if so, to what degree. Golden Eagle Archery, 116 S.W.3d at 761. Here, the jury could have reasonably concluded that McCarty’s two-year delay in repairing the foundation was the predominant proximate cause of the wall cracks, jammed doors, sloped floor, and other damages, as well as any aggravation thereof. We find the evidence supporting the jury’s finding to be more than a scintilla and not so weak or the finding so against the great weight and preponderance of the evidence that it was clearly wrong and unjust. Therefore, we overrule this point of error.

Failure of McCarty to Comply with Contract

In its answer to Question 5, the jury found that McCarty failed to comply with the contract. McCarty contends that the evidence supporting the finding is legally and factually insufficient. We disagree.

Hereinabove, we found sufficient evidence that the parties agreed that a new contract would take the place of the original contract. Under the terms of the modified contract, six additional piers were required at an additional cost of $1,875.00. Miller required McCarty to pay one-half of the additional cost ($937.50) at the outset. Miller testified that McCarty failed to make the required up-front payment. Even though she denied modifying the contract, McCarty paid Miller an additional $500.00, but did not pay him the remaining $437.50.

This issue was contested and a fact issue was presented to the jury, which it resolved against McCarty and determined that she failed to comply with the contract. We conclude the evidence supporting the finding amounts to more than a scintilla and was not so weak or the finding so against the great weight and preponderance of the evidence that it was clearly wrong and unjust.

Issue of Attorney’s Fees

The parties stipulated that attorney’s fees would be determined by the trial court through submitted affidavits. McCarty’s affidavit reflected attorney’s fees of $18,135.00, but the trial court awarded McCarty only $14,000.00 in attorney’s fees. McCarty contends that the trial court erred by failing to award the $18,135.00 in attorney’s fees because the evidence was undisputed and must be taken as true as a matter of law.

The jury having determined that Miller was excused from performing the contract, Miller had no obligation to perform. Had McCarty recovered in her claim of breach of contract, she would have been entitled to attorney’s fees. Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (Vernon 2008). Because Miller was found by the jury to have been excused from performance, he cannot now be held liable for attorney’s fees in a suit to enforce a contract, the performance of which he has been excused.

Accordingly, a discussion of the parameters which guide a trial court in the award of attorney’s fees is unnecessary and would be superfluous.

We overrule this point of error.

No point of error was raised as to the correctness of Miller’s quantum meruit claim and attorney’s fee award. Because there is sufficient evidence that Miller’s breach was excused, McCarty did not prevail on her contract claim, and therefore, is not entitled to either damages or attorney’s fees. See Tex. Civ. Prac. & Rem.Code Ann. §§ 38.001-006 (Vernon 2008 & Supp. 2010).

We reverse the awards as to McCarty, as to both damages and attorney’s fees, and render judgment that McCarty take nothing. We further render judgment in favor of Miller in accordance with the jury’s verdict.

      . By citing the "greater weight of evidence” as its basis for disregarding the jury’s answer, the trial court failed to use the proper "no-evidence” standard. However, we will affirm the trial court’s decision if there is less than a scintilla of evidence to support any of Miller's theories of excuse. See Point Lookout W., Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex.1987) (per curiam); see also In re Acevedo, 956 S.W.2d 770, 775 (Tex.App.-San Antonio 1997, orig. proceeding); Hawthorne v. Guenther, 917 S.W.2d 924, 931 (Tex.App.-Beaumont 1996, writ denied); Luxenberg v. Marshall, 835 S.W.2d 136, 141-42 (Tex.App.-Dallas 1992, no writ).

      . Miller also argued that the trial court erred because i| failed to apply the proper standard of “no evidence” when ruling on the motion and it failed to address all three of Miller's proffered reasons for excuse.

      . The jury did not specify the grounds upon which they found Miller’s breaclj to be excused. Having found sufficient evidence supporting one of Miller's proffered grounds for excuse, we need not address the others.

      . In late 2005 and early 2006, McCarty contacted a repair company, received an estimate, and agreed to a contract to have her foundation repaired, but McCarty later canceled that contract.

      . There was conflicting testimony regarding whether Miller initially covered the holes and whether McCarty or anyone else subsequently removed the tarpaulin covers, causing the holes to fill with water. Glenn testified that failing to cover the holes and allowing them to stay filled with water would aggravate the existing foundation problems.


author: Justice MYERS.

text:
    P & A REAL ESTATE, INC., Appellant, v. AMERICAN BANK OF TEXAS, Appellee.
    No. 05-10-00538-CV.
    Court of Appeals of Texas, Dallas.
    Sept. 21, 2010.

      Jules P. Slim, Irving, TX, for Appellant.
    Stephen C. Rasch, Richard B. Phillips, Thompson & Knight, L.L.P., Dallas, TX, for Appellee.
    Before Chief Justice WRIGHT and Justices O’NEILL and MYERS.
   OPINION

Opinion By

Justice MYERS.

The trial court signed a default judgment against P & A Real Estate, Inc. on November 2, 2009. On that same date, the trial court granted American Bank of Texas’s motion to sever its claims against P & A Real Estate from its claims against the remaining two parties. P & A Real Estate filed a timely motion for new trial under the original cause number. Subsequently, it filed a second untimely motion for new trial under the severed cause number. In its second motion for new trial, P & A Real Estate explained that it filed the first motion for new trial in the original cause number because it had not yet been notified of the new cause number. On April 30, 2010, P & A Real Estate filed its notice of restricted appeal.

American Bank of Texas moved to dismiss on the ground that the notice of appeal was untimely. That motion was originally denied. We now have before us American Bank of Texas’s motion to reconsider. In its motion to reconsider, American Bank of Texas argues that a restricted appeal is not available to P & A Real Estate because it had filed a motion for new trial. In its response to the original motion to dismiss, P & A Real Estate argued that its timely filed motion for new trial is irrelevant because it was filed under the wrong cause number.

A party who did not participate — either in person or through counsel — in the hearing that resulted in the judgment complained of and who did not timely file a post-judgment motion or notice of appeal, may file a notice of restricted appeal within six months after the judgment is signed. Tex.R.App. P. 30. However, when a party files a timely post-judgment motion, we lack jurisdiction over a restricted appeal. See Laboratory Corp. of Am. v. Mid-Town Surgical Center, Inc., 16 S.W.3d 527, 528 (Tex.App.-Dallas 2000, no pet.).

The supreme court has held that a motion for new trial is effective even though it was filed under the wrong cause number. Blankenship v. Robins, 878 S.W.2d 138, 139 (Tex.1994). The court held that the filing of the motion for new trial under the wrong cause number was a bona fide attempt to invoke the appellate court’s jurisdiction. Id. The supreme court has also held that a notice of appeal is effective even though it had the wrong cause number on it because there was no suggestion of confusion. See City of San Antonio v. Rodriguez, 828 S.W.2d 417, 418 (Tex.1992) (per curiam).

In the second motion for new trial filed under the severed cause number, P & A Real Estate explained the first motion for new trial was filed in the old cause number was because it had not been notified of the assignment of the new cause number. There was never any suggestion of any confusion. Because P & A Real Estate filed a timely post-judgment motion, a restricted appeal is not an option.

Pursuant to the regular appellate timetable, the notice of appeal was due January 31, 2010. See Tex.R.App. P. 26.1(a)(1). The notice of appeal filed by P & A Real Estate on April 30, 2010 was untimely.

Without a timely filed notice of appeal, this Court lacks jurisdiction. See Tex. R.App. P. 25.1(b). Accordingly, we grant American Bank of Texas’s motion to reconsider its motion to dismiss. We dismiss this appeal for want of jurisdiction. See Tex.R.App. P. 42.1(a)(1).