author: Justice YÁÑEZ.

text:
    The CHARLES MACHINE WORKS, INC., Appellant, v. BUTLER RENTAL AND SALES, INC., Appellee.
    No. 13-09-00103-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Oct. 14, 2010.
    Rehearing Overruled Nov. 18, 2010.

      Douglas E. Chaves, James W. Wray, Jr., Chaves, Resendez & Rivero, LLP, Corpus Christi, Robert D. Tomlinson, Toby M. McKinstry, Tomlinson & O’Connell, Oklahoma City, OK, for Appellant.
    Brian C. Miller, Eric I. Barrera & Will W. Pierson, Royston, Rayzor, Vickery & Williams, Corpus Christi, for Appellee.
    Before Justices YÁÑEZ, BENAVIDES, and VELA.
   OPINION

Opinion by

Justice YÁÑEZ.

Appellant, Charles Machine Works, Inc. (“Charles”), appeals the trial court’s order denying its motion for summary judgment and granting summary judgment in favor of appellee, Butler Rental and Sales, Inc. (“Butler”), on Butler’s statutory claim for indemnity for losses arising out of a products liability suit. By four issues, Charles contends that the trial court erred in granting summary judgment on Butler’s chapter 82 indemnity claim because Charles owed no duty to indemnify Butler for sums that Butler paid in settlement of claims for which Butler was independently liable. We affirm.

I. Background

In April 2006, while' inspecting a ditch being dug at a construction site, Manuel Aldape Duron Jr. was killed by a- Ditch Witch trencher manufactured by Charles and leased to Duron’s company by Butler. In April 2007, Duron’s survivors (“the plaintiffs”) sued Charles and Butler, alleging several products-liability and negligence theories against Charles and negligence theories against Butler. In its original answer, Butler asserted a cross-claim against Charles for statutory indemnity pursuant to chapter 82 of the civil practice and remedies code. The plaintiffs filed an amended petition on May 29, 2007.

By a letter dated January 4, 2008, Charles offered to indemnify Butler for claims that the trencher was defective, but refused to provide indemnity for any negligence claims against Butler. The letter offered to reimburse Butler for its reasonable attorneys’ fees “in defending the negligence claims successfully by obtaining a defense verdict or a dismissal with prejudice.” Charles did not receive a response to its offer.

On March 14, 2008, Charles executed a confidential settlement agreement with the plaintiffs, by which the plaintiffs settled and released all product liability claims against both Charles and Butler. However, the agreement expressly did not release the plaintiffs’ “claims based on Butler’s negligence, intentional misconduct or other act[s] or omission[s] for which Butler is independently liable.” On March 24, 2008, Butler filed a supplemental answer, in which it (1) re-asserted its cross-claim against Charles for statutory indemnity and (2) asserted the affirmative defense of release, contending that the March 14, 2008 settlement agreement released all claims against it.

On May 29, 2008, Butler sent a letter to Charles, advising that it had settled with the plaintiffs for $75,000, without admitting any fault. Butler’s letter sought indemnity from Charles for the $75,000 settlement amount, plus attorneys’ fees and costs, pursuant to chapter 82 of the civil practice and remedies code. On August 4, 2008, the trial court issued an “Agreed Order of Dismissal” in Butler’s favor, dismissing with prejudice “all of the [plaintiffs’] claims that have been asserted, or may have been asserted” by the plaintiffs against Butler. Thus, as of August 4, 2008, none of the plaintiffs’ claims against Butler remained pending.

On August 19, 2008, Charles filed a traditional motion for summary judgment, arguing that it was not obligated to indemnify Butler for the $75,000 in settlement monies because those funds were paid to release Butler for its own independent negligence. According to Charles’s motion, “there is evidence to suggest Butler was independently liable for Plaintiffs’ damages. The payment of $75,000 to obtain a release from any further liability is evidence that a portion of Plaintiffs’ loss is attributable to Butler’s independent negligence.” Charles also cited, as evidence of Butler’s independent liability, a statement taken from the plaintiffs’ safety expert report asserting that Butler failed to properly train and warn customers of the dangers associated with using the Ditch Witch.

In support of its motion, Charles attached the following summary judgment evidence: (1) its January 4, 2008 letter offering to indemnify Butler for products-liability claims; (2) an affidavit by Robert D. Tomlinson, Charles’s counsel, which verified that the January 4, 2008 letter offered to indemnify Butler for products-liability claims, but not for Butler’s own negligence; stated that the only response was Butler’s May 29, 2008 demand letter; and verified “Exhibit D,” describing the claims released by the settlement agreement, as an exhibit incorporated into the March 14, 2008 settlement agreement; (8) an excerpt from the plaintiffs’ expert report; (4) “Exhibit D” to the motion, entitled “Exhibit ‘A’ to Settlement Agreement Executed March 14, 2008,” releasing all products-liability claims against Charles and Butler; and (5) the May 29, 2008 letter from Butler demanding indemnity.

On September 2, 2008, Butler filed a traditional and no-evidence motion for summary judgment, which included a response to Charles’s motion and objections to (1) Nelson’s report as summary judgment evidence and (2) the characterization of Butler’s settlement as evidence of its independent culpability. In its motion, Butler asserted that (1) it was entitled to statutory indemnity unless Charles could prove the statutory exception — that Butler’s independent negligence caused the plaintiffs’ injuries — and (2) Charles could not prove that Butler’s independent negligence caused the plaintiffs’ injuries. Butler argued that Charles had the burden to prove Butler’s independent culpability, and that the evidence fails to establish any such independent culpability.

In support of its motion for summary judgment, Butler attached the following as evidence: (1) an affidavit by its counsel, Will W. Pierson, which (a) verified Exhibits 1A through IE; (b) explained why Butler’s $75,000 settlement of the plaintiffs’ claims was reasonable; and (c) outlined and explained Butler’s attorneys’ fees and expenses in defending against the plaintiffs’ claims; (2) copies of the plaintiffs’ original and first amended petitions; (3) a copy of Charles’s designation of experts; (4) excerpts from the deposition of Rich Lambert, an employee of Charles and designated as an expert witness by Charles; (5) Pierson’s curriculum vitae; and (6) a copy of Charles’s objections and responses to discovery requests sent by Butler.

Butler’s motion asserts that it is entitled to judgment on both traditional and no-evidence grounds. Butler argues that to avoid its duty to indemnify, Charles was required to prove Butler’s independent culpability in causing the plaintiffs’ injuries. In the section of its motion urging judgment on traditional grounds, Butler points to statements made by Charles’s own experts, Dr. Way Johnston and Rich Lambert. Specifically, Butler cites a statement in Johnston’s report that “there is no evidence of any negligence on the part of Butler Rental and Sales that caused the accident and resulting death of Manuel Duron.” Butler also cites a section in Lambert’s report noting that the Ditch Witch was in “excellent condition,” “operating normally,” and that the operator’s manual was on the machine.

In the no-evidence section of its motion, Butler argues that Charles has no evidence that any independent culpability by Butler caused the plaintiffs’ injuries, and thus, Charles does not meet the exception provided in section 82.002(a). Butler argues that Charles’s evidence — the statement of Dr. Nelson that Butler was guilty of two omissions and Butler’s settlement with the plaintiffs — is not competent evidence. Butler contends that the excerpts from Dr. Nelson’s report are not competent summary judgment evidence because, among other reasons, the report is unauthenticated and unsworn and Dr. Nelson’s statements are conclusory and lack a reliable foundation. With respect to Butler’s settlement with the plaintiffs, Butler cites this Court’s opinion in Oasis Oil Corp. v. Koch Refining Co. and the Texas Supreme Court’s opinion in General Motors Corp. v. Hudiburg Chevrolet in support of its position that its settlement with the plaintiffs did not terminate its indemnity claims. Thus, Butler argues, because Charles’s evidence of Butler’s independent culpability is not competent summary judgment evidence, Charles has no evidence to support its affirmative defense.

On September 16, 2008, Charles filed a response to Butler’s motion for summary judgment. As evidence of Butler’s independent culpability, Charles offered the following summary judgment evidence: (1) excerpts from Nelson’s deposition testimony; (2) an excerpt from Nelson’s expert safety report (the same statement earlier submitted by Charles as summary judgment evidence); (8) a redacted “Exhibit ‘A’ to Settlement Agreement” dated March 14, 2008; and (4) Tomlinson’s affidavit identifying the exhibits.

Charles attached only eight pages from Nelson’s deposition testimony. The testimony established that Nelson had not conducted .any interviews at other companies that rent trenchers to determine whether those companies provide any training to customers that rent trenchers. Nelson testified, in pertinent part:

Q [Butler’s counsel]: Now, you reviewed the deposition testimony of the [trencher] operator in this case, Alfonso Cardenas, correct?
A [Nelson]: Yes.
Q: And he in fact had been operating trenchers for Duron & Duron for over 15 years.
A: That’s my understanding, yes.
Q: Okay. So you would expect someone with that length of time operating trenchers to have a lot of service hours with an RT 40 trencher, or similar trencher—
[Unidentified counsel]: Object to form.
Q [Butler’s counsel]: — prior to the accident?
A: Yes.
Q: And you would agree that someone in that position would be an experienced operator of a trencher.
[Unidentified counsel]: Object to form.
A: He’s got a lot of hours in, let’s put it that way.
Q: And you would agree that someone with that much experience wouldn’t need any type of basic training on how to operate a trencher.
A: I would disagree. Sometimes, you know, somebody could have 1,500 hours worth of experience, or they could have one hour of experience repeated 1,500 times. In other words, just because he’s got time in doesn’t mean that he’s been properly trained.
Q: That really wasn’t my question, but I’ll get into that. My question was,' [y]ou agree that Mr. Cardenas had about 15 years of experience using trenchers similar to the RT 40 prior to the accident.
A: Yes.
Q: He was not a first time user—
A: Correct.
Q: —of the RT 40 at the time of the accident.
A: That’s my understanding, yes.
Q: He wasn’t even a relatively new user of the RT 40 at the time of the accident.
A: That’s correct.
Q: So you would agree with me that any training that Butler would have provided to him prior to the accident wouldn’t have made any difference, — []
[Unidentified counsel]: Objection, form.
Q [Butler’s counsel]: —correct?

Inexplicably, the excerpt ends with this question from Butler’s counsel as to whether any training by Butler would have made a difference — the only question in the record that arguably addresses whether the plaintiffs’ loss was “caused by” Butler’s alleged failure to train. Charles chose not to include Nelson’s answer to the question.

On September 23, 2008, the trial court apparently heard both motions for summary judgment. On December 18, 2008, the court signed an “Agreed Order of Dismissal,” by which the plaintiffs dismissed all products-liability claims against Charles and Butler pursuant to a settlement agreement. The order notes that “prior to entry of this Order of Dismissal,” the plaintiffs had settled all their claims against Butler and that an order of dismissal against Butler was entered on August 4, 2008.

On January 22, 2009, the trial court issued its “Final Summary Judgment,” by which the court: (1) overruled Butler’s objections to Charles’s summary judgment evidence; (2) denied Charles’s motion for summary judgment; (3) granted Butler’s motion for summary judgment “on all issues”; (4) found that Butler is entitled to recover $75,000 in reasonable damages, $83,923.25 in reasonable attorneys’ fees and expenses incurred in defending against the plaintiffs’ claims, and $7,786.19 in reasonable attorneys’ fees and expenses to enforce its right to indemnification, for a total of $166,709.44 awarded to Butler; and (5) awarded Butler post-judgment interest and specified amounts for appellate costs in the event of an unsuccessful appeal by Charles. This appeal followed.

II. Standard of Review and Applicable Law

Here, Charles’s motion was a traditional motion for summary judgment and Butler’s motion was a combined “traditional” and “no-evidence” motion. We review the trial court’s grant of summary judgment de novo. “When, as here, both parties file a motion for summary judgment with the trial court, and one is granted and one is denied, the reviewing court determines all questions presented and renders the judgment that should have been rendered by the trial court.” When the trial court does not specify the basis for its ruling, it is the appellant’s burden on appeal to show that none of the independent grounds that were asserted in support of summary judgment is sufficient to support the judgment. Thus, when the trial court’s order granting summary judgment does not specify the grounds on which it was granted, we will affirm the summary judgment if any of the advanced theories support the judgment.

When a party moves for summary judgment under both rules 166a(c) and 166a(i) of the Texas Rules of Civil Procedure, we will first review the trial court’s judgment under the standards of rule 166a(i). If the appellant fails to produce more than a scintilla of evidence under that burden, then there is no need to analyze whether appellee’s summary judgment proof satisfies the less stringent rule 166a(c) burden.

Section 82.002(a) of the civil practice and remedies code imposes a duty on manufacturers to indemnify sellers for a “loss arising out of a products liability action.” “It provides an exception ‘for any loss caused by the seller’s negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is independently liable.’ ” Thus, to escape its duty to indemnify, the manufacturer must establish that the seller’s independent culpable conduct “caused” the plaintiffs’ loss. Until the manufacturer establishes that a seller’s independent conduct caused the plaintiffs injury, a mere allegation of negligence in the plaintiffs pleadings is sufficient to invoke the manufacturer’s duty to indemnify the seller for all theories properly joined to a products liability claim. As the Texas Supreme Court recently clarified, “what matters is not merely whether but why a seller is independently liable.” “‘[T]he duty to indemnify under this section ... applies without regard to the manner in which the action is concluded’ — whether by judgment, settlement, or dismissal.”

III. Discussion

We begin by addressing Butler’s no-evidence motion that Charles had no evidence that any independent culpability by Butler caused the plaintiffs’ injuries. As noted above, in response to Butler’s motion, Charles offered: (1) excerpts from Nelson’s deposition testimony; (2) paragraph 19 from Nelson’s expert report; and (8) “Exhibit A” to the March 14, 2008 settlement agreement. We conclude that none of Charles’s evidence established that the plaintiffs’ injuries were caused by Butler’s independent culpability.

As noted, Charles was required to prove that Butler’s independent culpability “caused” the plaintiffs’ injuries. Nelson’s deposition testimony established only that: (1) Nelson had not contacted other local companies that rent construction equipment to determine whether those companies provide training to their customers; and (2) in Nelson’s opinion, although Cardenas had extensive experience operating trenchers and did not believe he needed training, he may not have been properly trained. The only question in the excerpted portions of Nelson’s testimony which arguably addressed whether the plaintiffs’ loss was “caused by” Butler’s alleged failure to train — and therefore, might have raised a fact question as to causation — was not answered in the excerpted testimony. As to paragraph 19 in Nelson’s report, the only identifiable alleged “failure” attributable to Butler is the alleged “failure to properly train [its] rental customers in the safe use of the rented equipment,” and failure to “warn [its customers] of any potential dangers associated with its use.” This evidence does not raise a fact question as to whether the plaintiffs’ injuries were “caused by” Butler’s alleged “failure to train” or “failure to warn.”

With regard to the offer of “Exhibit A” to the March 14, 2008 settlement agreement, Charles argues that because the March 14, 2008 settlement agreement settled all products-liability claims against it and Butler, we must necessarily infer that Butler’s subsequent settlement with the plaintiffs could only have been to release claims for which Butler was independently liable. It is clear, however, that Texas law does not support Charles’s argument. An inference is insufficient to establish the exception to a manufacturer’s duty to indemnify; instead, to invoke the exception, a manufacturer must prove: (1) that the seller was independently culpable and (2) that the seller’s conduct “caused” the loss. As the supreme court explained its decision in Meritor,

In Meritor, we again refused to limit the indemnity obligation by holding that Section 82.002(a)’s exception to a manufacturer’s general indemnity obligation is established only by a finding that a seller’s independent conduct caused the plaintiffs injury. Until such a finding is made, a mere allegation of negligence in the plaintiffs pleadings is sufficient to invoke the manufacturer’s duty to indemnify the seller for all theories properly joined to a products liability claim.[]

The Texas Supreme Court recently clarified several issues concerning the applicability of section 82.002’s exception to a manufacturer’s duty to indemnify. In Fresh Coat, Inc. v. K-2, Inc., numerous homeowners sued: (1) K-2, the manufacturer of allegedly defective synthetic stucco components; (2) Fresh Coat, the contractor that installed the product on several homes; and (3) Life Forms, the homebuilder. Life Forms sought indemnity from K-2 and Fresh Coat; Fresh Coat sought indemnity from K-2. As the court explained:

K-2, Life Forms, and Fresh Coat settled with the homeowners. Fresh Coat paid the homeowners just over $ 1 million. Fresh Coat also settled with Life Forms, paying $ 1.2 million to cover part of Life Forms’ payment to the homeowners. The case proceeded to trial on various claims the defendants brought against each other. This appeal concerns claims Fresh Coat asserted against K-2. Fresh Coat sought indemnity from K-2 for its settlements with the homeowners and Life Forms, as well as $ 726,642 in attorney fees. The claims were tried to a jury, and Fresh Coat received a judgment for all the damages requested.
The court of appeals affirmed the trial court’s judgment except with regard to the settlement payment Fresh Coat made to Life Forms. The court rejected K-2’s arguments that its EIFS [] was not a “product” and that Fresh Coat was not a “seller,” and upheld the indemnity award as to the payment to the homeowners. However, with respect to Fresh Coat’s settlement with Life Forms, the court agreed with K-2 that it owed Fresh Coat no statutory indemnity duty because Fresh Coat would have been liable to Life Forms under the contract between the two regardless of whether either of them caused a defect in the EIFS.[]

The supreme court held that: • (1) synthetic stucco is a “product;” (2) Fresh Coat, the contractor that installed it, is a “seller”; and (3) “the manufacturer’s statutory obligation to indemnify the contractor covers a settlement payment made by the contractor to the homebuilder where the contractor may have been independently obligated by contract to indemnify the homebuilder.” K-2 argued that it should not have to indemnify Fresh Coat for the settlement payment that Fresh Coat made to Life Forms because Fresh Coat’s contract with Life Forms contained an indemnity provision which required Fresh Coat to indemnify and hold Life Forms harmless for any homeowner claims regardless of any fault by Life Forms. The supreme court concluded that Fresh Coat was entitled to indemnity from K-2 for its settlement payment to Life Forms because K-2 had not proven that section 82.002(a)’s exception was applicable. The court reasoned:

The court of appeals focused solely on Fresh Coat’s independent liability, and did not find the reason for that liability relevant. Fresh Coat argues that Section 82.002(a) creates an exception for the manufacturer’s duty to indemnify that only applies when the seller tor-tiously causes a loss. We agree with Fresh Coat that K-2 has not proven that Fresh Coat caused the loss via the type of act or omission contemplated in the statute.
Section 82.002(a) excepts the manufacturer from indemnity only when it proves that a loss was “caused by the seller’s negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is independently liable.” K-2 argues it should not be liable for contractual obligations that it was not a party to, namely, any losses Fresh Coat suffered solely as a result of its contract with Life Forms rather than as a result of Fresh Coat’s products-liability obligations. But Section 82.002(a) does not exempt manufacturers from their indemnity obligations for “any loss ... for which the seller iindependently liable.” Such a reading disregards the 20 words between “any loss” and “for which .... ”
The 20 words in Section 82.002(a) that K-2 ignores make clear that what is important is not merely whether a seller is independently liable, but why. Otherwise, all of those intervening words in Section 82.002(a) would be needless. Although we have not previously held that what matters is not merely whether but why a seller is independently liable, this Court has suggested as much: “To escape this duty to indemnify, the indem-nitor must prove- the indemnitee’s independent culpability.”
Section 82.002(a) exempts from indemnity a seller’s own “negligence, intentional misconduct,” or act “such as negligently modifying or altering the product” for which the seller would be independently liable. Section 82.002(a) does not always exempt losses arising from a contractual indemnity obligation. We express no opinion as to whether a loss need always be tortious to fit within the ambit of Section 82.002(a) — the statute includes “other act[s] or omission[s]” that may not necessarily be tortious. On today’s facts, though, K-2 has not conclusively established a loss for which it is exempt from indemnity.[]

In the present case, even if we accepted Charles’s argument that Butler’s subsequent settlement with the plaintiffs could only have been to release claims for which Butler was independently liable, Charles has presented no evidence raising a fact issue as to why Butler is independently liable. As in Fresh Coat, Charles’s argument urges us to ignore the twenty words in section 82.002(a) that “make clear that what is important is not merely whether a seller is independently liable, but why.”

IV. Conclusion

We hold that Charles presented no evidence raising a genuine issue of fact that any independent culpability by Butler caused the plaintiffs’ injuries. Accordingly, the trial court did not err in granting summary judgment in Butler’s favor and in denying Charles’s motion for summary judgment. We overrule all of Charles’s issues and affirm the trial court’s judgment.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 82.002 (Vernon 2005).

      . Specifically, Charles characterizes its issues as follows:
      1. The [judgment appealed requires Charles to indemnify Butler for sums Butler paid the Plaintiffs to settle claims based on “Butler's negligence, intentional misconduct or other acts or omissions for which Butler is independently liable,” that is, claims that the statute specifically exempts from the obligation to indemnify.
      2. Charles’[s] settlement of all claims against Butler except those for which Butler is independently liable (language of 82.002) fully redeems Charleses] obligation as a manufacturer to indemnify a seller of the manufacturer’s product when seller is sued both in product liability and negligence.
      3. Charles settled all claims asserted by the Durons against Butler except claims defined in Section 82.002 as those for which Butler was "independently liable.” Therefore, when Butler, thereafter, paid the Durons $75,000.00 in settlement^] it could not have been to settle any claim for which Charles was obligated to indemnify Butler, such claims having been previously settled by Charles. Butler has not, and can not, prove a loss for which it is entitled to indemnity.
      4. Charles’[s] partial satisfaction of the Judgment by paying all of the attorney's fees and costs incurred by Butler in defense of Plaintiffs’ suit fully satisfies any possible indemnity obligation Charles may have to Butler since the remainder of the Judgment is for sums paid by Butler in settlement of Butler's "independent liability” and its fees and costs incurred in this suit to enforce an indemnity obligation that is not owed.
      Each of these "issues” appears to be sub-points in a single argument: that Charles had no duty to indemnify Butler for the amount Butler paid in settlement because the settlement was to release claims for which Butler was independently liable.

      . The negligent acts and omissions alleged by the plaintiffs against Butler included: renting the Ditch Witch without the proper accessories and equipment; failing to provide adequate operational instructions and training to the renters; and failing to properly train and/or supervise its own employees.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 82.002, which provides, in pertinent part:
      (a) A manufacturer shall indemnify and hold harmless a seller against loss arising out of a products liability action, except for any loss caused by the seller’s negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is independently liable.

      (e) The duty to indemnify under this section:
      (1) applies without regard to the manner in which the action is concluded; and
      (2) is in addition to any duty to indemnify established by law, contract, or otherwise.

        Id.

      . The March 4, 2008 settlement agreement is not included in the record. Attached as evidence to Charles’s motion for summary judgment is a document designated as "Exhibit ‘A’ to Settlement Agreement Executed March 14, 2008.” Exhibit A states that it is "hereby incorporated” into the settlement agreement. As noted, it states that the plaintiffs are settling and releasing the products liability claims against Charles and Butler, but states that it does not apply to the plaintiffs’ claims against Butler for Butler’s independent negligence or liability.

      . There is no indication in the record that the trial court was ever provided a copy of the settlement agreement.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 82.002.

      . The statement in the report — apparently, an excerpt from the report of plaintiff’s safety expert, Dr. Gary Nelson — is attached as summary judgment evidence to Charles's motion and states as follows:
      19. Regarding Butler Rental, they failed to recognize the dual purpose the trench cleaner serves as discussed above and [failed to] install such "option” on all their trenchers for the protection of their customers!,] and in accordance with the third rule of hazard control, failed to properly train their rental customers in the safe use of the rented equipment, and warn them of any potential dangers associated with its use.
      We note that "Exhibit C,” attached to Charles's motion, consists only of the first page of the report and what appears to be page 18, containing the paragraph referencing Butler. The paragraphs immediately preceding paragraph 19 on Page 18 appear to address various alleged inadequacies in the Operating Manual. Thus, it is impossible to determine, on the record, what alleged “failure[s] to recognize ... and install" Dr. Nelson was referring to in paragraph 19.

      . See Tex.R. Civ. P. 166a(c), (i).

      . We note that many pages of the attached exhibits appear to be out of order in the clerk's record, and some pages are apparently missing.

      . In the exceipted testimony, Lambert testified that Butler did not alter or modify the Ditch Witch, did not participate in the content or placement of the warning decals on the machine, and did not participate in determining the content of the operator’s manual for the machine.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 82.002(a).

      . 60 S.W.3d 248, 255 (Tex.App.-Corpus Christi 2001, pet. denied) ("Clearly, if a statutory seller's pretrial settlement of a qualifying products liability action is reasonable, then the statutory seller is entitled to indemnification from the statutory manufacturer.").

      . 199 S.W.3d 249, 255-56 (Tex.2006) ("This follows from section 82.002(e)(1), which states that ‘the duty to indemnify under this section ... applies without regard to the manner in which the action is concluded’ — whether by judgment, settlement, or dismissal.”).

      . Emphasis added.

      . The record before us does not include a reporter's record of the hearing. However, the docket sheet reflects an entry for “Motion for Summary Judgment Hearing” on September 23, 2008 and the court’s final summary judgment recites that the court "heard” the motions on September 23, 2008.

      . Charles has made partial payment to Butler of $83,923.25 in attorneys' fees and expenses, and the court approved a supersedeas bond filed by Charles in the amount of $114,565.19.

      . D.R. Horton-Tex., Ltd. v. Market Int'l Ins. Co., 300 S.W.3d 740, 743 (Tex.2009).

      . HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 352 (Tex.2009).

      . Coffey v. Singer Asset Fin. Co., 223 S.W.3d 559, 562-63 (Tex.App.-Dallas 2007, no pet.) (citing Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995)).

      . Browning v. Prostok, 165 S.W.3d 336, 344 (Tex.2005) (citing Provident Life Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.2003)); Coffey, 223 S.W.3d at 563.

      . Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004).

      . Id.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 82.002(a); Fresh Coat, Inc. v. K-2, Inc., 318 S.W.3d 893, 899 (Tex.2010).

      . Fresh Coat, Inc., 318 S.W.3d at 899 (quoting Tex. Civ. Prac. & Rem.Code Ann. § 82.002(a)).

      . Id. at 901 (“ ‘To escape this duty to indemnify, the indemnitor must prove the indemni-tee's independent culpability.’") (quoting Gen. Motors Corp. v. Hudiburg Chevrolet, Inc., 199 S.W.3d 249, 255 (Tex.2006) (emphasis in Fresh Coat)).

      . Owens & Minor, Inc. v. Ansell Healthcare Prods., 251 S.W.3d 481, 484 (Tex.2008).

      . Fresh Coat, Inc., 318 S.W.3d at 901.

      . Hudiburg, 199 S.W.3d at 256 (quoting Tex. Civ. Prac. & Rem.Code Ann. § 82.002(e)(1)); see Oasis Oil Corp., 60 S.W.3d at 255.

      . See Ford Motor Co., 135 S.W.3d at 600.

      . Butler objected to Nelson’s expert report and deposition testimony, but the trial court overruled those objections and considered the evidence. Because the trial court considered it, we consider it also; however, we need not, and do not, state any opinion as to the propriety of the trial court’s decisions regarding Butler's objections.

      . Fresh Coat, Inc., 318 S.W.3d at 901.

      . This argument was asserted in Charles's third issue.

      . See Meritor Automotive, Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 91 (Tex.2001) ("[I]t must be established that seller’s conduct 'caused' the loss.”); Hudiburg, 199 S.W.3d at 255 ("To escape this duty to indemnify, the indemnitor must prove the indemnitee’s independent culpability.”); see also Emplrs. Ins. Co. v. Penn-America Ins. Co., 705 F.Supp.2d 696, 711 (S.D.Tex.2010) ("[T]o invoke the exception to the statutory duty to indemnify, a manufacturer must prove the seller’s independent culpability”); Dean’s Campin' Co. v. Hardsteen, No. 01-00-1190-CV, 2002 WL 1980840, at *4, 2002 Tex.App. LEXIS 6256, at *13 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (mem.op.) ("This holding imposes on the manufacturer the burden to prove that the exception to the manufacturer's duty to indemnify the seller applies.”).

      . Owens & Minor, Inc., 251 S.W.3d at 484 (emphasis added) (internal citations omitted) (citing Meritor, 44 S.W.3d at 88-91); see also Toyota Indus. Equip. Mfg. v. Carruth-Doggett, Inc., 325 S.W.3d 683, 689-90 (Tex.App.-Houston [1st Dist.] 2010, pet. filed) (mem.op.) ("Thus, Meritor held that a negligence claim that is properly joined to a products liability action is to be considered part of the products liability action in terms of a manufacturer’s duty to indemnify an innocent seller, and the manufacturer is required to indemnify the seller for any loss arising out of the action except when there is a finding that the seller independently caused the loss.") (citing Meritor, 44 S.W.3d at 87) (emphasis added).

      . See Tex. Civ. Prac. & Rem.Code Ann. § 82.002(a).

      . Fresh Coat, Inc., 318 S.W.3d at 895-896.

      . Id. at 896.

      . "EIFS" is an acronym for exterior insulation and finishing system. Id. at 896.

      . Id. at 896 (internal footnotes omitted)-.

      . Id. at 895.

      . Id. at 900.

      . Id. at 900.

        . Id. at 901-902 (internal footnotes and citations omitted).

      . Id. at 901.

      . See Tex.R. Civ. P. 166a(i); Tex. Civ. Prac. & Rem.Code Ann. § 82.002(a).

      . Because of our disposition, we need not address Butler's traditional motion for summary judgment or Charles’s arguments challenging it. See Browning, 165 S.W.3d at 344 (noting we may affirm summary judgment if any of the advanced theories support the judgment).


source: Caselaw Access Project

author: BILL MEIER, Justice.

license: Public Domain

text:
    Lawrence Edward WALKER, Appellant, v. The STATE of Texas, State.
    No. 02-09-00209-CR.
    Court of Appeals of Texas, Fort Worth.
    Oct. 14, 2010.

      M. Shawn Matlock, The Matlock Law Firm, P.C., Fort Worth, TX, for Appellant.
    Joe Shannon, Jr., Crim. Dist. Atty., Charles M. Mallín, Chief of the Appellate Section, Helena F. Faulkner, Caroline Kim, Anna Hernandez, Asst. Crim. Dist. Attys. for Tarrant County, Fort Worth, TX, for State.
    PANEL: LIVINGSTON, C.J.; MeCOY and MEIER, JJ.
   OPINION

BILL MEIER, Justice.

I. Introduction

Appellant Lawrence Edward Walker appeals his convictions for terroristic threat against a public servant and hindering proceedings by disorderly conduct. In six issues, Appellant argues that the evidence is legally and factually insufficient to support his convictions and that sections 22.07 and 38.13 of the penal code are unconstitutional as applied to him because they violate his right to free speech. We will affirm.

II. PROCEDURAL BACKGROUND

The State charged Appellant with the offenses of terroristic threat and hindering proceedings by disorderly conduct. Appellant pleaded not guilty to both offenses. After a jury found Appellant guilty of both offenses, the trial court sentenced Appellant to 200 days in jail and a $4,000 fine for each offense. The trial court then suspended Appellant’s sentences and placed him on community supervision for twenty-four months for both offenses. This appeal followed.

III. Evidentiary Sufficiency

In his first and second issues, Appellant argues that the evidence is legally and factually insufficient to support his conviction for terroristic threat. In his fourth and fifth issues, Appellant contends that the evidence is legally and factually insufficient to support his conviction for hindering proceedings by disorderly conduct. The court of criminal appeals recently held that there is “no meaningful distinction between the Jackson v. Virginia legal-sufficiency standard and the Clewis [v. State, 922 S.W.2d 126 (Tex.Crim.App.1996)] factual-sufficiency standard” and that “the Jackson v. Virginia standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. All other cases to the contrary, including Clewis, are overruled.” See Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex.Crim.App.2010). Accordingly, we will apply the same standard of review to all of Appellant’s sufficiency complaints.

A. Standard of Review

In reviewing the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the prosecution in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex.Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex.Crim.App.2008), cert. denied, — U.S. -, 129 S.Ct. 2075, 173 L.Ed.2d 1139 (2009). Thus, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). Instead, we “determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.Crim.App.2007). We must presume that the factfinder resolved any conflicting inferences in favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; Clayton, 235 S.W.3d at 778.

B. Applicable Facts

On October 23, 2008, Appellant went to County Criminal Court #4 (“the court”) and filled out an application for a court-appointed attorney. Judge Deborah Nek-hom is the judge of the court. After Appellant was assigned an attorney, he called Vincent Giardino, the court coordinator, and complained about his attorney. Giar-dino relayed Appellant’s complaint to Judge Nekhom.

On November 7, 2008, Appellant again went to the court for docket. Appellant had been appointed a new attorney, Carey Walker. Upon entering the court, Carey introduced himself to Appellant and asked Appellant to go into the hall with him to talk about Appellant’s case. Carey had no prior communication with Appellant.

After less than five minutes of speaking with Appellant, Carey went back into the court and told Judge Nekhom that he did not feel like he could continue to represent Appellant. Judge Nekhom then called Appellant to approach, and Appellant had a “smart-mouthed” and “very sarcastic” tone. Judge Nekhom told Appellant that he needed to cooperate with his attorney, and Appellant kept interrupting her. Judge Nekhom then told Appellant that he needed to hire his own attorney because he could not get along with the two attorneys he had been appointed. Appellant stated something to the effect of “Well, I’m not going to do that, so let’s just — let’s go, girl.” Appellant held out his hands to be handcuffed. Judge Nekhom then held Appellant in contempt of court for three days for his behavior in the courtroom. The bailiff escorted Appellant to the holding cell.

Judge Nekhom then got her court reporter, Michelle Seay, to put her conversation with Appellant on the record. The bailiff got Appellant from the holding cell and brought him back out in front of Judge Nekhom. Judge Nekhom then had essentially the same conversation with Appellant, although this time it was recorded by Seay.

After the second conversation, the bailiffs were escorting Appellant back to the holding cell when Appellant stopped, turned toward Judge Nekhom, “bowed his chest out,” and said, “Let’s do it, Nekhom. It’s me and you now.” David Montgomery, a bailiff in Judge Nekhom’s court, then opened the door to the holding cell area and quickly placed Appellant inside. After Appellant made the statement, Judge Nekhom had to leave the courtroom to compose herself.

C. Terroristic Threat

Appellant argues that the evidence is insufficient because he did not make a threat nor did he “threaten to commit any crime of violence.” Appellant’s sufficiency complaints center around his statement, “Let’s do it, Nekhom. It’s me and you now.”

Section 22.07 defines the offense of ter-roristic threat. Tex. Penal Code Ann. § 22.07 (Vernon Supp. 2010).. The relevant portion of section 22.07 provides that a “person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to” “place any person in fear of imminent serious bodily injury.” Id. § 22.07(a)(2). Additionally, an offense under subsection (a)(2) is a “Class B misdemeanor, except that the offense is a Class A misdemeanor if the offense” “is committed against a public servant.” Id. § 22.07(c)(2).

The amended information alleged that Appellant

did then and there intentionally threaten to commit an offense involving violence against a person or property, namely by stating to Judge Deborah Nekhom “Let’s do it, Nekhom. It’s me and’you now,” with intent to place Judge Deborah Nekhom in fear of imminent serious bodily injury and Judge Deborah Nek-hom was a public servant, namely a Tarrant County criminal court judge.

In Dues v. State, the Texas Court of Criminal Appeals stated:

Therefore, in order to commit this offense [terroristic threat] the accused must have the specific intent to place any person in fear of imminent serious bodily injury.... Intent can be inferred from the acts, words, and conduct of the accused. However, the accused’s intent cannot be determined merely from what the victim thought at the time of the offense. Indeed, for this offense to be completed it is not necessary that the victim or anyone else was actually placed in fear of imminent serious bodily injury. Additionally, it is immaterial to the offense whether the accused had the capability or the intention to carry out his threat. All that is necessary to complete the offense is that the accused by his threat sought as a desired reaction to place a person in fear of imminent serious bodily injury.

634 S.W.2d 304, 305-06 (Tex.Crim.App.1982) (internal citations omitted); see also Swaringen v. State, No. 02-08-00132-CR, 2009 WL 579328, at *4-5 (Tex.App.-Fort Worth Mar. 5, 2009, no pet.) (mem. op., not designated for publication).

Judge Nekhom testified that she took Appellant’s statement, “Let’s do it, Nek-hom. It’s me and you now,” as a threat. She stated that she “feared imminent threat, and he was certainly capable of injuring me. I was frightened.” Judge Nekhom testified that she felt that Appellant intentionally meant to put her in fear because of his words, the tone of his voice, and his body language. She stated that the entire morning Appellant had been trying to upset her. Additionally, she stated that her daily routine has been affected since Appellant’s statement. Judge Nek-hom testified that she is more cautious when she goes places and that she is “very careful.” She stated that it is her opinion that Appellant is capable of causing her bodily harm.

Giardino stated that he was escorting Appellant to the holdover when Appellant stopped by the stairwell that led up to Judge Nekhom’s bench, turned to face Judge Nekhom, “bowed his chest out,” and stated something to the effect of “Let’s do it, Nekhom. It’s just you and me now.” Appellant was approximately five feet away from Judge Nekhom when he made the statement. Giardino stated that Appellant looked angry and that he was not handcuffed at this point.

Carey testified that although Appellant made no movement toward Judge Nekhom after he stated, “Let’s do it, Nekhom. It’s me and you now,” he interpreted Appellant’s statement as a physical threat towards Judge Nekhom.

Montgomery testified that he was escorting Appellant to the holding cell when Appellant made the threatening statement to Judge Nekhom. He stated that Appellant was not handcuffed. Montgomery then opened the door to the holding area and got Appellant “away from the Judge to stop any further escalation of any possible conflict.” Montgomery stated that Appellant turned toward Judge Nekhom when he made the threatening statement. Montgomery stated that he did not have to physically restrain Appellant after the statement. He further stated that he took Appellant’s statement as a threat and believed that Appellant intended to put Judge Nekhom in fear.

Chad Lee, a defense attorney, testified that he went into Judge Nekhom’s courtroom during the middle of the hearing with Appellant. He stated that Appellant kept talking over Judge Nekhom and that Appellant had “aggressive body language.” Lee stated that he took Appellant’s statement as a “threatening remark towards the Judge.”

Robert Hinton, an attorney, testified that he was in the courtroom when Appellant made the statement to Judge Nek-hom. He stated that when Appellant made the statement, his body language was “very threatening. It was a stare, a fixed facial expression, and it was a threat.” He stated that the statement was “chilling” and that he felt concerned for Judge Nekhom and for the safety of the courtroom. Hinton stated that after the statement was made, there was “a hush in the courtroom.”

Appellant contends that he did not make a threat to commit any crime of violence. He asserts that his statement cannot be interpreted as a threat on its face. However, all of the witnesses testified that they took Appellant’s statement as a threat. Additionally, Giardino stated that Appellant “bowed his chest out” towards Judge Nekhom when he made the statement.

Appellant argues that his statement was not a threat because the bailiff did not take any action to restrain him. However, Montgomery testified that after Appellant made the statement, he opened the door to the holding area and got Appellant “away from the Judge to stop any further escalation of any possible conflict.” As such, Montgomery did take action to immediately separate Appellant from Judge Nek-hom.

Viewing the evidence in the light most favorable to the prosecution, we hold that any rational trier of fact could have found the essential elements of the offense of terroristic threat beyond a reasonable doubt. See Jackson, 448 U.S. at 319, 99 S.Ct. at 2789; Clayton, 235 S.W.3d at 778. The evidence is thus sufficient to support Appellant’s conviction. Accordingly, we overrule Appellant’s first and second issues.

D. Hindering Proceedings by Disorderly Conduct

Appellant argues that the evidence is insufficient to support his conviction for hindering proceedings by disorderly conduct because his statement was not a disturbance.

Section 38.13 of the penal code provides that “[a] person commits an offense if he intentionally hinders an official proceeding by noise or violent or tumultuous behavior or disturbance.” Tex. Penal Code Ann. § 38.13(a) (Vernon 2003). Official proceeding is defined as “any type of administrative, executive, legislative, or judicial proceeding that may be conducted before a public servant.” Tex. Penal Code Ann. § 1.07(a)(33) (Vernon Supp. 2010). Additionally, the relevant definition of a “public servant” includes “an officer, employee, or agent of government.” Id. § 1.07(a)(41)(A).

Judge Nekhom testified that after Appellant made the statement, she had to leave the courtroom to compose herself. She stated that it took several minutes before she went back into the courtroom. After Judge Nekhom returned to the courtroom, she resumed conducting court business.

Judge Nekhom stated that when she had to call Appellant to the bench to discuss his dispute with his attorney, other general court business was being conducted in the courtroom. She stated that the court clerk was processing plea paperwork, the court coordinator was working on passing cases and talking with attorneys, and attorneys were waiting for Judge Nekhom to hear their clients’ cases.

Appellant contends that his statement was not a disturbance. He points to Hinton’s testimony that after the statement, it was “business as usual” to support his contention. However, as stated above, Judge Nekhom had to remove herself from the courtroom after the statement, which slowed down the court business.

Appellant further argues that because Carey had been removed as his attorney, “it is hard to imagine how he could have disrupted his own proceedings.” He also points to the fact that the proceedings had been concluded and he was on his way to the holding cell when the statement was made to support his contention. However, there is nothing in the record to support Appellant’s statement that Carey had been removed as his attorney at the time that Appellant made the statement. Additionally, even though Appellant was being escorted to the holding cell when he made the statement, there is nothing in the record to show that Judge Nekhom had stated that the proceedings had ended. In fact, the court reporter was still transcribing when Appellant made the statement.

Viewing the evidence in the light most favorable to the prosecution, we hold that any rational trier of fact could have found the essential elements of the offense of hindering proceedings by disorderly conduct beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Clayton, 235 S.W.3d at 778. The evidence is thus sufficient to support Appellant’s conviction. We overrule Appellant’s fourth and fifth issues.

IV. FREE Speech PROTECTION

In his third and sixth issues, Appellant argues that sections 22.07 and 38.13 are unconstitutional as applied to him because the provisions violate his right to free speech under the First Amendment to the United States Constitution. Both issues revolve around Appellant’s statement, “Let’s do it, Nekhom. It’s me and you now.”

When reviewing the constitutionality of a statute, we presume that the statute is valid and that the legislature acted reasonably in enacting the statute. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App.2002). The person challenging the statute must prove its unconstitutionality. Id.

The First Amendment prohibits laws that abridge freedom of speech. U.S. Const, amend. I. The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech. Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 1547, 155 L.Ed.2d 535 (2003).

The protections afforded by the First Amendment, however, are not absolute, and courts have long recognized that the government may'regulate certain categories of expression consistent with the Constitution. Id.; Coggin v. State, 123 S.W.3d 82, 87 (Tex.App.-Austin 2003, pet. ref'd). The First Amendment permits “restrictions upon the content of speech in a few limited areas, which are ‘of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ ” Black, 538 U.S. at 358-59, 123 S.Ct. at 1547.

The First Amendment permits a State to ban a “true threat.” Id. at 359, 123 S.Ct. at 1547; Watts v. United States, 394 U.S. 705, 708, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664 (1969). The Supreme Court in Black explained that:

“True threats” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats “protect[s] individuals from the fear of violence” and “from the disruption that fear engenders,” in addition to protecting people “from the possibility that the threatened violence will occur.” Intimidation in the constitutionally proscriba-ble sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.

Black, 538 U.S. at 359-60, 123 S.Ct. at 1548 (internal citations omitted).

Here, Appellant’s argument is essentially the same as his sufficiency argument above. Appellant argues that his statement was not a threat. Additionally, he asserts that his statement was not an “expression to kill or injure.”

However, as explained above, the State met its burden to prove that Appellant threatened Judge Nekhom. Appellant made a threatening statement to Judge Nekhom, “bowed his chest out” towards Judge Nekhom, and had “aggressive body language.” Appellant’s argument that he was simply voicing his “frustration” does not afford him protection under the First Amendment to threaten a trial court judge. Accordingly, we hold that sections 22.07 and 38.13 of the penal code are not unconstitutional as applied to Appellant. Thus, we overrule Appellant’s third and sixth issues.

V. Conclusion

Having overruled Appellant’s six issues, we affirm the trial court’s judgments.

      . Because Appellant's last name and his attorney’s last name are the same, we will refer to Carey Walker as "Carey.”


author: TERRIE LIVINGSTON, Chief Justice.

text:
    Bill GUNTER, Appellant, v. The STATE of Texas, State.
    No. 02-09-00315-CR.
    Court of Appeals of Texas, Fort Worth.
    Oct. 21, 2010.

      J. Rex Barnett, Pittsburgh, PA, for Appellant.
    Joe Shannon, Jr., Crim. Dist. Atty., Charles M. Mallín, Asst. Crim. Dist. Atty., Chief of Appellate Section, Kimberly Wesley, Hugo Martinez & Kalere Jacob-Coleman, Fort Worth, for State.
    PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
   OPINION

TERRIE LIVINGSTON, Chief Justice.

In four points that challenge the sufficiency of the evidence to convict him and the trial court’s alleged failure to give a limiting instruction in the guilt-phase jury charge about an extraneous offense, appellant Bill Gunter appeals his conviction for driving while intoxicated (DWI). We affirm.

Background Facts

In December 2008, Fort Worth Police Department Officer Joshua Caprio received a call about a motorcycle accident that had occurred near a gas station parking lot in Tarrant County. When Officer Caprio arrived at the scene, he saw appellant, who was alone, smelled like alcohol, had bloodshot eyes, and was staggering while trying to pick up the motorcycle. According to Officer Caprio, appellant said that he had been at a bar called The Red Barn, that he had drunk four beers, and that he was driving the motorcycle home before he hit a slick spot and crashed. Officer Caprio gave appellant a horizontal-gaze-nystagmus test, which appellant failed by showing the maximum amount of clues for intoxication. Officer Caprio arrested appellant.

At the jail, appellant told Fort Worth Police Department Officer Renee Frias that he had been drinking and driving that day. Appellant treated some of his bloody scrapes and breathed twice into an intoxi-lyzer machine, which registered his alcohol concentration at more than twice the legal limit.

A grand jury indicted appellant for DWI. At trial, appellant pled not guilty, but the jury found him guilty and assessed his punishment at fifteen years’ confinement. Appellant filed his notice of appeal.

Evidentiary Sufficiency

In reviewing the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Clayton, 235 S.W.3d at 778.

The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex.Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex.Crim.App.2008), cert. denied, - U.S. -, 129 S.Ct. 2075, 173 L.Ed.2d 1139 (2009). Thus, when performing a sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). We must presume that the factfinder resolved any conflicting inferences in favor of the prosecution and defer to that resolution. Clayton, 235 S.W.3d at 778.

In his first two points, appellant contends that the evidence is insufficient to show that his DWI offense occurred in Texas. Texas has jurisdiction over an offense if the conduct comprising the offense occurs inside this state. Tex. Penal Code Ann. § 1.04(a)(1) (Vernon 2003); Torres v. State, 141 S.W.3d 645, 654 (Tex. App.-El Paso 2004, pet. ref'd); St. Julian v. State, 132 S.W.3d 512, 515 (Tex.App.Houston [1st Dist.] 2004, pet. ref'd) (“The State may prosecute only those crimes that occur within or directly affect the state.”). “[JJurisdiction, like any other requisite of an offense, can be proven circumstantially.” Vaughn v. State, 607 S.W.2d 914, 920 (Tex.Crim.App. [Panel Op.] 1980); see Walker v. State, 195 S.W.3d 250, 257-58 (Tex.App.-San Antonio 2006, no pet.) (“Walker’s house, where the offense occurred, is ... in Guadalupe County; ... and Payne is the constable for Precinct 3 in Guadalupe County and as such is a certified peace officer for the State of Texas. This evidence is sufficient to meet the State’s burden.”); James v. State, 89 S.W.3d 86, 89 (Tex.App.-Corpus Christi 2002, no pet.) (holding that evidence that the offense occurred in the city of Beaumont and Jefferson County was sufficient to circumstantially establish jurisdiction in Texas); Hewitt v. State, 734 S.W.2d 745, 747 (Tex.App.-Fort Worth 1987, pet. ref'd) (holding similarly).

Officer Caprio testified that he works for the Fort Worth Police Department, that he responded to an accident in Tarrant County, and that he took appellant to the Tarrant County jail. Officer Frias affirmed that he is a certified peace officer in Texas and that he works for the Fort Worth Police Department. The jury also heard testimony from a senior forensic chemist who works for the Tarrant County Medical Examiner’s Office. One of the witnesses that appellant called said that he had lived in Tarrant County since 1993. Another witness called by appellant said that he lived on “McCullum Street in Fort Worth.” Finally, the record does not contain any evidence indicating that the offense occurred outside of Texas.

Viewing the evidence in the light most favorable to the verdict, we hold that these references and the other references in the record to Fort Worth and Tarrant County comprise sufficient circumstantial evidence for the jury to implicitly find that appellant’s DWI offense occurred in Texas. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Clayton, 235 S.W.3d at 778. Thus, we overrule appellant’s first two points.

In appellant’s third point, he contends that the evidence is insufficient to prove that he operated a motor vehicle. A person commits DWI when the person “is intoxicated while operating a motor vehicle in a public place.” Tex. Penal Code Ann. § 49.04(a). The penal code does not define “operating.” See id.; Denton v. State, 911 S.W.2d 388, 389 (Tex.Crim.App.1995). “However, the court of criminal appeals has held that, to find operation of a motor vehicle, ‘the totality of the circumstances must demonstrate that the defendant took action to affect the functioning of his vehicle that would enable the vehicle’s use.’ ” Dornbusch v. State, 262 S.W.3d 432, 436 (Tex.App.-Fort Worth 2008, no pet.) (quoting Denton, 911 S.W.2d at 390). Thus, “any action that is more than mere preparation toward operating the vehicle” qualifies as “operating” for DWI. Id. at 436.

Appellant presented evidence that, if believed by the jury, would show that he did not operate the motorcycle. Specifically, appellant called three witnesses who collectively testified that appellant did not drive the motorcycle away from The Red Barn on the day in question but instead got into Mitchell McClendon’s blue truck before McClendon drove away from the bar while someone else drove appellant’s motorcycle in front of the truck and eventually crashed it. Appellant’s witnesses said that after the motorcycle crashed, appellant stayed with it while McClendon went to get a motorcycle ramp. According to McClendon, while he was getting the ramp, the police arrived and saw appellant near the motorcycle.

The three witnesses’ testimony seems to be supported by the testimony of Melissa Melon, an employee of a convenience store located near where the police arrested appellant, and by Donna Ford, an employee of The Red Barn. Melon said that while she was using the store’s register on the day in question, she noticed a motorcycle in a street and saw three men trying to take it to a parking lot. She said that after helping some customers, she looked out of the store again and saw one of the men by himself. Melon admitted that she did not know who had been driving the motorcycle.

Ford said that she saw appellant call someone named “Mitchell or something to that effect” to pick him up from the bar and that appellant was so drunk that he “wouldn’t have been able to get on that bike without falling over on it.” She testified that there “would have been laughter” if appellant would have tried to get on the motorcycle.

However, in contrast to the testimony given by the witnesses that appellant called, the State provided testimony from two officers who said that appellant told them that he had been driving the motorcycle home from the bar before he crashed it. Officer Frias also said that appellant’s arm was injured and looked like it had a “road rash,” which supports the State’s theory that he crashed the motorcycle.

In our sufficiency review, we must defer to the jury’s resolution of conflicting evidence. Clayton, 285 S.W.3d at 778. Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found that appellant operated a vehicle; the evidence is therefore sufficient to support his conviction. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Clayton, 235 S.W.3d at 778. We overrule appellant’s third point.

Extraneous Offense Instruction

In his fourth point, appellant argues that the trial court erred by not giving a limiting instruction in its guilt-phase jury charge about an extraneous offense. He alleges that during a conversation that was recorded by a video taken from a camera in a patrol car, one officer told another officer that appellant had an illegal knife. Appellant contends that “[e]ven absent an objection by Appellant’s counsel, the trial court should have included a section in the jury charge instructing the jury that they could consider the evidence of the extraneous offense only for a limited purpose, and then only if they found the evidence beyond a reasonable doubt.”

However, the court of criminal appeals has held,

[I]f a defendant does not request a limiting instruction ... at the time that evidence is admitted, then the trial judge has no obligation to limit the use of that evidence later in the jury charge. This doctrine is a sensible one because otherwise a jury might sit through most of a trial under the mistaken belief that certain evidence is admissible for all purposes when, in fact, it is not. Once evidence has been admitted without a limiting instruction, it is part of the general evidence and may be used for all purposes.... Taking the cases together, then, a limiting instruction concerning the use of extraneous offense evidence should be requested, and given, in the guilt-stage jury charge only if the defendant requested a limiting instruction at the time the evidence was first admitted.
... Because the trial judge had no duty to give any limiting instruction concerning the use of an extraneous offense in the guilt-phase jury charge, it naturally follows that he had no duty to instruct the jury on the burden of proof concerning an extraneous offense.

Delgado v. State, 235 S.W.3d 244, 251, 254 (Tex.Crim.App.2007) (footnotes and citations omitted). Based on Delgado, we have held that a defendant forfeited his complaint on appeal about a lack of a limiting instruction in a jury charge when the defendant did not request the instruction at the time that the evidence was admitted. Smith v. State, 316 S.W.3d 688, 700 (Tex.App.-Fort Worth 2010, pet. ref'd); see Martin v. State, 176 S.W.3d 887, 899 (Tex.App.-Fort Worth 2005, no pet.).

Because the evidence that contains the “illegal knife” comment — State’s Exhibit 2 — was admitted at trial without a request for a limiting instruction by appellant, we hold, under Delgado, that appellant has forfeited his complaint on appeal about the lack of such an instruction in the guilt-phase jury charge. See Delgado, 235 S.W.3d at 251, 254. We overrule appellant’s fourth point.

Conclusion

Having overruled all of appellant’s points, we affirm the trial court’s judgment.

      . See Tex. Penal Code Ann. § 49.04 (Vernon 2003). To enhance appellant’s punishment range, appellant’s indictment alleged that he had three prior DWI convictions. See id. § 49.09(b)(2) (Vernon Supp.2010).

      . After the briefing and submission of this case, the court of criminal appeals held that there is "no meaningful distinction between the ... legal-sufficiency standard and the ... factual-sufficiency standard, and these two standards have become indistinguishable.” Brooks v. State, 323 S.W.3d 893, 902 (Tex.Crim.App.2010). Thus, the Jackson standard is the "only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. All other cases to the contrary ... are overruled.” Id. at 912. Accordingly, we apply the Jackson standard of review to appellant’s sufficiency complaints.

      . The trial court’s charge instructed the jury that to convict appellant, it had to find that he operated a motor vehicle while intoxicated in "Tarrant County, Texas.”


text:
    In the Matter of M.C.S., JR.
    No. 02-09-00332-CV.
    Court of Appeals of Texas, Fort Worth.
    Oct. 21, 2010.

      Richard A. Gladstone, Fort Worth, TX, for M.C.S., Jr.
    Joe Shannon, Jr., Criminal District Attorney, Charles M. Mallín, Assistant Criminal District Attorney, Chief of Appellate Section, Kimberly Colliet Wesley & Charles Vanover, Assistant Criminal District Attorneys, Fort Worth, TX, for State.
    PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
   OPINION

TERRIE LIVINGSTON, Chief Justice.

In one point, appellant M.C.S., Jr. contends that the evidence is insufficient to support the trial court’s judgment of delinquency. We affirm.

Background Facts

In July 2009, the State filed a petition that accused appellant of violating section 42.092 of the penal code by setting a bat on fire and therefore cruelly torturing or killing it. The trial court found probable cause to believe that appellant had engaged in delinquent conduct, ordered that he be detained in a detention center, and appointed an attorney to represent him.

On August 10, 2009, the trial court held a hearing on the State’s petition, which appellant and his mother attended. Toward the beginning of the hearing, the following conversation occurred:

THE COURT: Now, according to the pleadings, you’re charged with cruelty to animals, a charge that, if you were an adult, carries with it possible jail time. As a juvenile, it carries with a possibility of being placed on probation or going to the Texas Youth Commission. Either one of those things can last at least until your 18th birthday and even up to your 19th birthday, so you’re entitled to a trial. You’re not required to admit to this charge, and you’re not going to make anybody angry, you’re not going to change the punishment range or mak[e] things worse for yourself by asking for a trial.
You’ve signed waivers saying a trial is not necessary. You have agreed that the attorneys can just tell me what the evidence is in this case without the need of the formalities of a trial and so I’m going to hear the evidence about what happened, it looks like, back in July, and if I find it to be true, proceed on with some additional evidence to decide whether or not you should be put on probation or not and what the conditions should be.[]
All right. [Appellant’s counsel], would you waive a full reading of the petition?
[APPELLANT’S COUNSEL]: Yes, Your Honor.
THE COURT: Let’s proceed.
[THE STATE]: ... May it be ... agreed and stipulated that the Respondent did violate section 42.092 of the Texas Penal Code, when on or about the 23rd day of July of 2009, in the County of Tarrant and State of Texas, he did then and there intentionally or knowingly torture, kill, or — or torture or kill in a cruel manner or cause serious bodily injury to an animal, to wit, a bat, by setting it on fire and burning it.
The State is prepared to call Fort Worth police officers who would testify that they responded in reference to a disturbance where kids were knocking on doors and then running away. They noticed a group of youths at the apartment complex. They made contact and the group denied having any involvement; however, as the officers were leaving, they saw the Respondent light something on fire and when they turned around, the Respondent took off running. The Respondent was subsequently chased and caught, at which time the officers later discovered the object that had been burnt by the Respondent was in fact a bat that was in a — that a girl had in a glass jar.
The officers would also testify that this offense did occur within Tarrant County and the State of Texas, and the State would rest.
[APPELLANT’S COUNSEL]: No objections, judge.

The trial court then received a placement summary and evidence about appellant’s social history. It also heard testimony from appellant and his mother. The trial court adjudicated appellant delinquent, placed him on probation (with several delineated conditions), and ordered that he complete treatment at the Texas Adolescent Treatment Center.

In September 2009, appellant, who was represented by new counsel, filed a motion for new trial, contending that the evidence is insufficient to support the trial court’s judgment and that he did not knowingly or voluntarily sign the written stipulation of evidence. Appellant’s motion was overruled by operation of law. Appellant also filed his notice of this appeal.

Evidentiary Sufficiency

Appellant contends that the evidence is insufficient to support the trial court’s judgment because (1) the stipulation at the hearing does not satisfy the required statutory elements, (2) he was not properly given statutory warnings, (3) the written stipulation was involuntary, and (4) he did not orally acknowledge at the hearing that he agreed to the oral stipulation. Although appeals of juvenile court orders are generally treated as civil cases, we apply a criminal sufficiency standard. In re L.A.S., 135 S.W.3d 909, 913-14 (Tex.App.-Fort Worth 2004, no pet.); In re J.D.P., 85 S.W.3d 420, 422 (Tex.App.-Fort Worth 2002, no pet.). In reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007).

Statutory elements

A person commits the offense of cruelty to nonlivestock animals if the person intentionally, knowingly, or recklessly “tortures an animal or in a cruel manner kills or causes serious bodily injury to an animal.” Tex. Penal Code Ann. § 42.092(b)(1). Under section 42.092, an “animal” is a domesticated living creature or a wild living creature that has been previously captured; the “term does not include an uncaptured wild living creature.” Id. § 42.092(a)(2).

Appellant asserts that the oral stipulation quoted above does not show that the bat was alive when it was set on fire or that it had been previously captured. But the stipulation particularly states that appellant violated section 42.092 and uses the term “animal” as the statute does. Also, the stipulation states that appellant tortured or killed the bat by setting it on fire and that the bat was in a glass jar; these facts establish that the bat was previously alive and had been captured. The record does not contain any contradicting evidence showing that the bat was dead or had not been captured when it was set on fire. Thus, we hold that the stipulation comprises sufficient evidence to support the statutory elements of cruelty to nonli-vestock animals. See id. § 42.092(b)(1); Clayton, 235 S.W.3d at 778; see also In re R.L.S., 707 S.W.2d 726, 728 (Tex.App.-Beaumont 1986, no writ) (holding that a stipulation served as sufficient evidence in a juvenile case); In re J.L., 664 S.W.2d 119, 120-21 (Tex.App.-Corpus Christi 1988, no writ) (overruling a juvenile’s point based on his stipulation).

Statutory warnings

Next, appellant contends that he did not receive proper statutory warnings. The family code provides that at the beginning of an adjudication hearing, the juvenile court judge shall explain to the child (1) the allegations made against the child, (2) the nature and possible consequences of the proceedings, including the law relating to the admissibility of the record of a juvenile court adjudication in a criminal proceeding, (8) the child’s privilege against self-incrimination, (4) the child’s right to trial and to confrontation of witnesses, (5) the child’s right to representation by an attorney if he is not already represented, and (6) the child’s right to trial by jury. Tex. Fam.Code Ann. § 54.03(b) (Vernon Supp. 2010); see In re T.W.C., 258 S.W.3d 218, 220 (Tex.App.-Houston [1st Dist.] 2008, no pet.). Appellant admits that the trial court explained the charge to him and told him about his possible punishment; however, he contends that the court failed to warn him about his privilege against self-incrimination in the court’s “streamlined and simplified admonishments.”

However, section 54.03 of the family code also states that to preserve for an appeal “the failure of the court to provide the child the explanation required by Subsection (b), the attorney for the child must comply with Rule 33.1, Texas Rules of Appellate Procedure, ... before the child pleads to the petition or agrees to a stipulation of evidence.” Tex. Fam.Code Ann. § 54.03(i) (emphasis added). Neither appellant nor his trial counsel complained about his statutory admonishments before appellant agreed to the stipulation of evidence; thus, we hold that appellant failed to preserve any error related to the admonishments. See Tex.R.App. P. 33.1; Tex. Fam.Code Ann. § 54.03(i); In re E.F., 986 S.W.2d 806, 809 & n. 8 (Tex.App.-Austin 1999, pet. denied); see also In re R.W.G., No. 02-02-00083-CV, 2003 WL 1564310, at *2 (Tex.App.-Fort Worth Mar. 27, 2003, no pet.) (mem. op.) (“At no time ... did Appellant lodge an objection to the lack of the required warning. Accordingly, the alleged arguable error was not preserved.”).

The written stipulation

Appellant also contends that “[tjhere is no evidence in the record that [he] voluntarily signed the stipulation” even though the stipulation, which his trial attorney also signed, states that he “voluntarily consented] to the stipulation of evidence in this case.” Appellant relies on article 51.09 of the family code, which states that rights granted to a child by law may be waived if (1) the waiver is made by the child and the attorney for the child, (2) the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it, (3) the waiver is voluntary, and (4) the waiver is made in writing or in court proceedings that are recorded. Tex. Fam.Code Ann. § 51.09 (Vernon 2008). Courts review voluntariness by examining the totality of the circumstances. See In re R.M., 880 S.W.2d 297, 299 (Tex.App.-Fort Worth 1994, no writ).

Appellant raised the voluntariness issue for the first time in his motion for new trial. As recently stated by the Amarillo Court of Appeals,

The granting or denying of a motion for new trial is within the discretion of the trial court. In reviewing the trial court’s decision, our standard of review is whether the trial court abused its discretion. A trial court abuses its discretion when its action or decision is not within the zone of reasonable disagreement. A trial judge’s ruling on a motion for new trial is presumed to be correct.

In re M.M.L., 241 S.W.3d 546, 560 (Tex.App.-Amarillo 2006, pet. denied) (citations omitted); see In re R.V., Jr., 8 S.W.3d 692, 693 (Tex.App.-Fort Worth 1999, pet. denied).

At the hearing on appellant’s motion for new trial, his mother testified that she did not get to talk with him on the day of the adjudication hearing, that she did not see the stipulation before he signed it, that neither she nor he understood the waiver of his rights, and that before the day of the hearing, he had planned to “tell the judge that he did not do it.” She also said that appellant had a learning disability and that he did “not deserve a felony” because he did not light the bat on fire and was only “at the wrong place at the wrong time.” But the attorney who represented appellant at the adjudication hearing said during the motion for new trial hearing that she had numerous conversations with appellant’s mother, that she ensured that appellant understood the documents that he was signing, and that the State waived two of appellant’s charges when it proceeded with the cruelty to animals charge.

Appellant did not testify at the motion for new trial hearing. The attorney who represented him during that hearing conceded that he could not “develop as to whether ... [appellant] did or did not have knowledge and signed these things voluntarily and knowingly.”

We conclude that the trial court could have reasonably determined that appellant’s stipulation was voluntary and denied (by operation of law) his motion for new trial, despite his mother’s testimony, based on the cumulative effect of (1) the explicit recital of voluntariness in the written stipulation, (2) appellant’s trial attorney’s testimony that appellant understood what he was signing, and (3) the trial court’s instruction to him at the adjudication hearing that he was not “required to admit to this charge” and was “not going to make anybody angry” by asking for a trial. Thus, we hold that the trial court did not abuse its discretion by denying his motion for new trial. See M.M.L., 241 S.W.3d at 560.

The oral stipulation

Finally, appellant argues that the oral stipulation presented by the State during the adjudication hearing was “so defective that it failed to reveal whether [he] was knowingly, intelligently, voluntarily and willingly” making the stipulation. Specifically, appellant contends that the trial court should have sought an oral response from appellant after the State presented the stipulation and that his counsel’s “[n]o objections” response was insufficient.

Appellant relies on our decision in In re M.A.O., in which we recited the following events that occurred in that ease:

When asked to make a plea as to the burglary of a habitation allegation, Appellant pleaded true. Appellant agreed that he understood his rights and that he was pleading true because that was what he intended to do and for no other reason. Appellant also agreed that he had not been threatened through fear of force, promised anything in exchange for his plea of'true, or pressured to plead through any persuasion or hope of pardon. Appellant acknowledged that he was knowingly, intelligently, voluntarily, and willingly making his plea of true.

No. 02-03-00262-CV, 2004 WL 1746890, at *1 (Tex.App.-Fort Worth Aug. 5, 2004, no pet.) (mem. op.). Based on M.A.O. and other cases, appellant contends that an “oral in[-]eourt Stipulation should contain an audible utterance from the juvenile.” [Emphasis added.] But appellant has not cited authority showing that such an “audible utterance” must occur to validate a stipulation, and we have found none. Also, appellant’s argument contravenes section 51.09 of the family code, which states that a juvenile may waive rights “in writing or in court proceedings that are recorded.” Tex. Fam.Code Ann. § 51.09(4) (emphasis added). Therefore, we cannot agree with appellant’s contention that for his stipulation to be effective, he was required to personally, orally reaffirm it during the adjudication hearing.

For all of these reasons, having rejected each of appellant’s arguments, we overrule his sole point.

Conclusion

Having overruled appellant’s only point, we affirm the trial court’s judgment.

      . See Tex. Penal Code Ann. § 42.092(b)(1) (Vernon Supp. 2010). The State’s petition indicated that appellant was sixteen years old at the time of the petition's filing and contained paragraphs alleging that he also fled from police and gave an officer a false date of birth.

      . Appellant and his trial attorney signed a stipulation of evidence stating they were informed of and understood appellant's rights to present and confront witnesses but that they were voluntarily consenting "to the stipulation of evidence in this case.” They specifically consented to the "introduction of testimony by oral stipulation.” They acknowledged in the same document that they understood the consequences of appellant's waiving his right to a jury trial.

      . After the briefing and submission of this case, the court of criminal appeals held that there is "no meaningful distinction between the ... legal-sufficiency standard and the ... factual-sufficiency standard, and these two standards have become indistinguishable.” Brooks v. State, 323 S.W.3d 893, 902 (Tex.Crim.App.2010). Thus, the Jackson standard is the "only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. All other cases to the contrary ... are overruled.” Id. at 912. Accordingly, we apply the Jackson standard of review to áppellant's sufficiency complaint.

      . Appellant concedes that a stipulation may constitute sufficient evidence to support a juvenile adjudication.

      . We do not express an opinion on whether the trial court's statement to appellant that he was not "required to admit to this charge" satisfied the court’s duty to inform appellant about his privilege against self-incrimination.