text:
    Scott D. MARTIN, Appellant, v. Ruben S. MARTIN, III, Appellee.
    No. 06-09-00069-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 13, 2010.
    Decided Nov. 3, 2010.
    Rehearing Overruled Dec. 14, 2010.

      Neil D. Kelly, Andrews Kurth, LLP, Houston, for appellant.

      Robert J. Killeen, Jr., Killeen & Stern, PC, Houston, John R. Mercy, Mercy * Carter * Tidwell, LLP, Texarkana, for ap-pellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Justice MOSELEY.

I. FACTS AND PROCEDURAL POSTURE

In the intervening years since R.S. Martin, Jr., founded the company which eventually became Martin Resource Management Company (MRMC) in 1951, it experienced substantial growth. In its current situation, MRMC is a privately held company, which is also general partner of Martin Midstream Limited Partners, a publicly-traded company, valued in the hundreds of millions of dollars. It had been successfully jointly managed for some twenty years by Ruben S. Martin, III, and Scott D. Martin, sons of the founders (who owned or controlled all of the voting shares and both of whom were on the five-member board of directors) in an informal, collaborative relationship. Formal shareholder and board meetings were infrequent and they regularly conducted votes through unanimous written consents.

Basically, an internecine power struggle over the control of MRMC arose between the brothers. Although the nature of the brothers’ dispute is complicated, essentially Ruben contended that Scott was trying to take control of the company, while Scott took the position that it was Ruben’s goal to “freeze” Scott out from corporate management. Beginning in 2006, the brothers’ relationship began to deteriorate regarding the general direction of the company and their collegial relationship was finally fractured in 2007 when Ruben decided that MRMC should seek to acquire a California refinery, while Scott opposed the move. This course of events led Scott to attempt to stop the purchase by formalizing MRMC’s corporate decision-making process, which would impose checks on any type of unilateral control of the company by Ruben. Meanwhile, control of the board of directors remained in flux.

In an effort to settle their dispute over corporate control, Ruben and Scott met together and hammered out an agreement, which was monumentalized in a nineteen-paragraph document captioned “Settlement Agreement” drafted by Scott’s attorney and signed on January 29, 2008. Among other things, the agreement required the brothers to negotiate a shareholder agreement in good faith for sixty days (later extended by agreement to ninety days) and that upon completion of “all of the obligations under this Settlement Agreement” (defined as the “Completion Date”), certain other obligations would arise. Although the parties negotiated, they were unable to agree on the terms of a shareholder agreement and none of the remaining terms have been fulfilled.

Although he acknowledged the failure to arrive at an agreement concerning the content of a shareholders’ agreement, Scott characterized Ruben’s failure to perform the other obligations set forth in the agreement as a breach of contract. Scott brought suit to enforce the agreement, seeking specific performance and damages. After a ten-day trial, the trial court submitted the case to the jury on the issues of breach and damages. In doing so, the trial court impliedly found the agreement was an enforceable contract. Holt Atherton Indus., Inc. v. Heine, 885 S.W.2d 80, 88 (Tex.1992); Burnett v. Mo-tyka, 610 S.W.2d 735, 736 (Tex.1980) (per curiam) (conclusions of law that are necessary, but not made, are deemed in support of judgment). The jury found Ruben breached the agreement and awarded Scott $3.2 million in damages and attorney’s fees of $1.5 million. The judgment awarded Scott $3.2 million in accord with the jury verdict, included provisions requiring specific performance by Ruben of certain portions of the settlement agreement, and awarded $13,533.85 in costs to Scott. Ruben filed a motion for judgment notwithstanding the verdict and alternatively a motion for new trial, contending Scott was not entitled to judgment because the settlement agreement was unenforceable as a matter of law. That motion was overruled by operation of law.

In the race to appeal, Scott prevailed. In his sole point of error, Scott claims that he was entitled to recover $16,028.15 in costs, rather than the $13,533.85 awarded in the judgment, alleging that the trial court had acted arbitrarily, picking a number between the cost figure proved up by Scott and the number argued for by Ruben. Ruben filed a cross-appeal. In his reply brief, Ruben streamlined his issues and argument. While his principal brief presented four issues, Ruben’s basic issues, as joined by Scott on cross-appeal, are whether the January 29, 2008, settlement agreement is legally enforceable, and if so, whether Scott was entitled to an award of both money damages and specific performance for breach of the agreement. Because the settlement agreement is not enforceable as a matter of law, we reverse the judgment of the trial court- and render judgment for Ruben.

II. ANALYSIS

Because resolution of Ruben’s issues is determinative of Scott’s point of error regarding the award of court costs, the issues raised by Ruben will be considered first.

In his first issue on cross-appeal, Ruben contends the settlement agreement is an unenforceable agreement to agree. Scott contends that this issue (not having been submitted to the jury) was abandoned and, thus, waived on appeal. We first address the issue of whether the agreement’s enforceability was properly preserved and then discuss the merits of the issue.

A. The Enforceability Issue Was Preserved

The central issue raised in this appeal is whether the parties’ January 29, 2008, settlement agreement is an unenforceable agreement to agree. Scott contends that Ruben abandoned the contract formation issue by not submitting a question to the jury on this issue and in failing to object to the absence of such a question. This contention is based on Ruben’s concession that he assented to the settlement agreement individually, but his assent to its terms was not in a representative ea-parity. On appeal, Ruben places more emphasis on the enforceability of the settlement agreement than at the trial level and relies less on the issue of the capacity under which he was operating at the time he signed the settlement agreement. Because he raised this issue in his motion for directed verdict and in his motion for judgment notwithstanding the verdict, or in the alternative, motion for new trial, Ruben contends that the issue of the contract’s legal enforceability has successfully been preserved. We agree.

Black’s Law Dictionary defines a “contract” as “[a]n agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law.” Black’s Law Dictionary 365 (9th ed. 2009). According to the Restatement of Contracts, the terms “agreement” and “contract” are not synonymous; “agreement” refers to a “manifestation of mutual assent on the part of two or more persons,” whereas the term “contract” refers to “a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes a duty.” Restatement (Second) of Contracts §§ 1, 3 (1981); see, e.g., Wiley v. Bertelsen, 770 S.W.2d 878, 882 (Tex.App.-Texarkana 1989, no writ) (noting that the term “agreement” is more broad than the term “contract” and that it is possible for parties to enter into an agreement but still not have a contract). Although it is possible to enter into an agreement without forming a contract, the converse is not true.

Texas Pattern Jury Charge 101.1 sets forth the basic question regarding the existence of a contract. Texas Pattern Jury Charges, Business, Consumer, Insurance & Employment, PJC 101.1 (2008). The commentary to this basic question of the existence of a contract states that 101.1 “submits the issue of the existence of an agreement. It should be used if there is a dispute about the existence of an agreement or its terms and a specific factual finding is necessary to determine whether the agreement constitutes a legally binding contract.” Id. Rather than contending that a fact issue (which would require resolution by a jury) existed with respect to whether the contract was legally binding, Ruben maintained that the contract was not enforceable as a matter of law.

The failure to object to the omission of a question on contract formation, when taking the position that no contract exists in the first instance, is inconsistent with, a waiver of that position. Ruben’s concession that a fact issue did not exist on the intent to agree does not, however, resolve the issue of whether the contract is legally enforceable. In essence, Ruben complained that there was no evidence to warrant the submission of a question of contract formation to the jury because, as a matter of law, the contract was unenforceable. The question of whether an agreement is an unenforceable agreement to agree is a question of law, not a question for the jury. See Mickens v. Longhorn DFW Moving, Inc., 264 S.W.3d 875, 880 (Tex.App.-Dallas 2008, pet. denied) (“Whether a contract is legally enforceable is a question of law for the court — not a fact issue for the jury.”); Meru v. Huerta, 136 S.W.3d 383, 390 (Tex.App.-Corpus Christi 2004, no pet.) (“[Wjhether a particular agreement is an enforceable contract is generally a question of law.”).

Moreover, Ruben properly preserved the issue of whether the contract was legally enforceable as a matter of law. To preserve an issue of law, the appellant must raise the issue through one of the following: (1) a motion for directed verdict; (2) a motion for judgment notwithstanding the verdict; (3) an objection to the submission of the question to the jury; (4) a motion to disregard the jury’s answer to a vital fact question; or (5) a motion for new trial. See Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex.1991); United Parcel Serv., Inc. v. Tasdemiroglu, 25 S.W.3d 914, 916 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). Ruben filed a motion for directed verdict on the issue of whether the contract was legally enforceable based on its status as an executory contract both at the conclusion of the plaintiffs case-in-chief and at the conclusion of the evidence. On each occasion, the motion was overruled. In addition, Ruben filed a motion for judgment notwithstanding the verdict and, alternatively, motion for new trial relying on this issue. This motion was overruled by operation of law.

Because Ruben raised this issue of law by filing the appropriate motions, the issue of the agreement’s enforceability was properly preserved.

B. The Settlement Agreement Is Unenforceable as a Matter of Law

The primary issue in this case is whether the language expressly set forth in the agreement was sufficiently definite to be enforceable against Ruben. Whether a particular agreement is an enforceable contract is a question of law reviewed de novo. Perry Homes v. Cull, 258 S.W.3d 580, 598 (Tex.2008); Elijah Ragira/VIP Lodging Group, Inc. v. VIP Lodging Group, Inc., 301 S.W.3d 747, 754 (Tex.App.-El Paso 2009, pet. denied). On appellate review, we are not required to give any particular deference to the trial court’s legal conclusion that the contract was legally enforceable. See Cap Rock Elec. Co-op., Inc. v. Tex. Utils. Elec. Co., 874 S.W.2d 92, 99 (Tex.App.-El Paso 1994, no pet.). Rather, we are required to independently evaluate the trial court’s legal determination. Id. Legal conclusions of a trial court are to be reversed only when they are erroneous as a matter of law. America’s Favorite Chicken Co. v. Samaras, 929 S.W.2d 617, 622 (Tex.App.-San Antonio 1996, writ denied).

Even though Ruben acknowledged (with few qualifications) his assent to every term of the settlement agreement, he maintains that by its express terms, the agreement is not a final, enforceable contract; he maintains that it was, rather, a mere listing of areas the two brothers planned to address over the next few months in an attempt to resolve their disputes. The first paragraph of the agreement calls for the negotiation of a shareholder agreement binding on all MRMC shareholders. It provides that:

(1) Scott and Ruben will negotiate a shareholder agreement (“Shareholder Agreement”) that will be applicable to all shareholders. It will provide that Ruben will continue to be the CEO of Martin Resource Management Corporation {“MRMC”) but the authority to conduct the day to day operations of MRMC will be subject to those responsibilities that are delegated to him by the Board of Directors of MRMC. Scott shall have the ability to determine what authority the Board will delegate to Ruben. Scott’s duties will need to be more clearly defined and delegated by the Board as well. The Shareholders Agreement will contain provisions typically found in large, complex corporations, including provisions governing liquidity for all the shareholders. The parties will negotiate in good faith the provisions of the Shareholders Agreement and try to reach agreement on some form of buy-sell provisions contained therein. Such buy-sell provision will be subject to a 1 yr. lockup period. Finally, the Shareholder Agreement will require at least quarterly Board meetings.

It is undisputed that the parties never arrived at an agreement for the content of a shareholder agreement and never executed one.

Paragraphs five through nine, eleven, and thirteen through fifteen each contain provisions that are triggered by the “Completion Date,” as that term is defined in the agreement. The “Completion Date” is defined as the completion “of all of the obligations under this Settlement Agreement.” The dependent provisions include: (1) Wes Skelton’s resignation as MRMC ESOP Trustee; (2) Scott’s resignation as trustee for Ruben’s family trusts; (3) MRMC’s extension of employment agreements to Scott and Ruben; (4) Scott’s, Ruben’s, and the MRMC board members’ execution of mutual releases from any and all claims related to issues subject to the agreement; (5) Ruben’s transfer of one share of MRMC stock to Scott; (6) Neu-meyer’s and Skelton’s resignations from MRMC’s board, to be replaced by Ruben’s and Scott’s respective designees; (7) the extension of $2,000,000.00 loans to Scott and to Ruben, respectively, upon approval of Amegy (MRMC’s financing arm); (8) reimbursement by MRMC of all legal fees incurred by Scott, Ruben, and Margaret Martin related to the negotiations; and (9) conversion of all outstanding MRMC stock options to “non-voting,” to last until the termination of Angela’s Trust.

The bedrock of the instant dispute is that Ruben and Scott differ over the meaning of paragraph one of the settlement agreement. The interpretation of this paragraph is central to the issue of the agreement’s enforceability. Ruben maintains that the plain meaning of the settlement agreement is that Scott and Ruben would spend sixty days (later extended to ninety days) to negotiate a shareholder agreement (paragraph one) and other items that would resolve the issues between them (the remaining provisions of the agreement). Although the parties negotiated for a period of ninety days, no shareholder agreement was reached, and none of the remaining agreements were carried out. Ruben thus contends that because the obligations under the settlement agreement (including the negotiation of a shareholder agreement) were not completed, the “Completion Date” never occurred. As a result, none of the dependent provisions were triggered.

When an agreement leaves material matters open for future adjustment and agreement that never occur, it is not binding on the parties and merely constitutes an agreement to agree. Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex.2000), superseded by statute on other grounds, Vantage Sys. Design, Inc. v. Raymondville Indep. Sch. Dist., 290 S.W.3d 312, 316 (Tex.App.-Corpus Christi 2009, pet. filed); Sadeghi v. Gang, 270 S.W.3d 773, 776 (Tex.App.-Dallas 2008, no pet.). Said another way, a party cannot accept an offer so as to form a contract unless the terms of that contract are reasonably certain. Fort Worth Indep. Sch. Dist., 22 S.W.3d at 846. Contract terms are reasonably certain “if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.” Restatement (Second) of Contracts § 33(2) (1981). If an alleged agreement is so indefinite as to make it impossible for a court to fix the legal obligations and liabilities of the parties, it cannot constitute an enforceable contract. Playoff Corp. v. Blackwell, 300 S.W.3d 451, 455 (Tex.App.-Fort Worth 2009, pet. denied).

Conversely, enforceable settlement agreements need only “contain sufficient terms to determine the parties’ obligations but [are] not required to resolve all disputed issues.” W. Beach Marina, Ltd. v. Erdeljac, 94 S.W.3d 248, 258-59 (Tex.App.-Austin 2002, no pet.). “Where the evidence shows that the parties intended to enter into an agreement, the courts should find the contract to be definite enough to grant a remedy provided that there is a certain basis for determining the remedy.” America’s Favorite Chicken Co., 929 S.W.2d at 623. Parties may therefore agree upon some contractual terms, understanding them to be an agreement, and leave other contract terms to be made later. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992). It is only when an essential term is left open for future negotiation that there is nothing more than an unenforceable agreement to agree. Id. The parties here disagree regarding the enforceability of the contract based on (1) whether the completion date, as that term is defined in the agreement, was reached; and (2) whether the shareholder agreement was an essential term of the overall agreement.

(1) A Completion Date Was Not Reached

Ruben contends the parties, as a part of their “obligations” under the settlement agreement, were required to not only negotiate, but to actually reach a shareholder agreement, reduce it to writing, sign it, and adopt it as an antecedent to the other obligations. Without this obligation being brought to fruition, a “Completion Date” never happens. Without a “Completion Date,” none of the nine dependent provisions take place. In this scenario, the trial court could not determine what the parties’ rights and obligations would be under the settlement agreement because the court could not possibly know what agreement the parties would have negotiated.

Scott contends the obligation was simply to negotiate (but not necessarily agree upon and adopt) a shareholder agreement, and the parties had sixty days in which to do so (later extended to ninety days). According to Scott, the “Completion Date” is reached by fulfilling the obligation to negotiate as set out by paragraph number one of the settlement agreement. In support of this position, Scott relies on Geophysical Micro Computer Applications (Int’l) Ltd. v. Paradigm Geophysical Ltd., No. 05-98-02016-CV, 2001 WL 1270795, at *6 (Tex. App.-Dallas Oct. 24, 2001, pet. denied) (not designated for publication) (finding an obligation to “negotiate in good faith” satisfied “the mutuality of obligation requirement as a matter of law”).

Paradigm involved a letter of intent regarding the purchase of computer software. The letter clearly identified the asset to be sold, its price and adjustments to the purchase price, royalties, a method to calculate the closing date, and the payment of financing terms. The letter of intent also provided for “other terms” regarding due diligence, responsibility for closing documents, and other “necessary commercial terms.” There was no evidence in this summary judgment case that the “other terms” or other “necessary commercial terms” were essential for the contract. The court held that the trial court improperly granted summary judgment because the evidence was disputed and the language in the document was inconclusive on whether the parties intended the agreement to be a memorialization of the parties’ agreement or a condition precedent to the formation of a contract. Id. Paradigm also moved for summary judgment on the basis that the letters were not enforceable because they lacked mutuality of obligation, i.e., they were subject to the parties’ corporate approval, and Paradigm’s board had disapproved and rejected the transaction. Because the letter required the parties to negotiate in good faith, the mutuality of obligation requirement was satisfied as a matter of law; the issue of whether Paradigm discharged this obligation in good faith was a question of fact. Id. Because this case focuses, on mutuality of obligations, and not whether an agreement to negotiate in good faith amounts to an enforceable contract, it is not persuasive. Mutuality of obligation does not render an otherwise unenforceable contract, lacking essential terms, enforceable.

Ruben maintains that an agreement to negotiate in the future is unenforceable, even if the agreement calls for a good-faith effort in negotiations, citing John Wood Group USA, Inc. v. ICO, Inc., 26 S.W.3d 12, 21 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). This case involved a letter agreement for the sale of corporate assets, which stated that the essential terms of the proposed sale were “not binding.” The jury awarded damages for breach of contract. On appeal, the appellant maintained that even if the sale provisions were held to be unenforceable — as they were— the damages should nevertheless stand because the Wood Group breached the good-faith clause of the letter agreement, by which both parties intended to be bound. In support of that proposition, appellant relied on Illinois law, under which agreements to negotiate toward the formation of a contract are themselves enforceable as contracts. The court recognized, however, that under Texas law, an agreement to negotiate in the future is unenforceable, even if the agreement calls for a “good faith effort” in the negotiations. Id. at 21 (citing Radford v. McNeny, 129 Tex. 568, 104 S.W.2d 472, 474 (1937); Maranatha Temple, Inc. v. Enter. Prods. Co., 893 S.W.2d 92, 104 (Tex.App.-Houston [1st Dist.] 1994, writ denied) (presence of term “good faith effort” in agreement not talis-manie; its presence does not automatically mean the provision that contains this phrase is enforceable—an agreement to enter into good-faith negotiations in future not enforceable)).

Scott’s argument, though creative, does not conform to Texas law. The shareholder agreement must be executed, not merely negotiated. The agreement itself supports this conclusion. Paragraph one states that the brothers “will negotiate a shareholder agreement” that “will be applicable to all shareholders.” Since the goal of negotiation is agreement, if the parties are required to “negotiate an agreement,” they must necessarily and ultimately conclude with a negotiated agreement. Otherwise, the parties have only attempted to negotiate an agreement. Additionally, paragraph one contains obligatory language which supports the conclusion that its terms require the execution of a shareholder agreement. It requires that (the shareholder agreement) “will provide,” “will contain,” and “will require.” Imperative statements such as these envision the object to be accomplished will, in fact, be accomplished. In failing to negotiate a shareholder agreement, the parties fell short of accomplishing this goal. Thus, the completion date — meaning completion “of all of the obligations under this Settlement Agreement” — was not reached because the obligation of executing a shareholder agreement was not completed. Without a completion date, Ruben contends the agreement is merely an agreement to agree in the future, which is not legally binding. See Fort Worth Indep. Sch. Dist., 22 S.W.3d at 846.

However, if the shareholder agreement provision of the agreement is not essential, as Scott contends, the agreement can nevertheless be enforced. See T.O. Stanley Boot Co., 847 S.W.2d at 221 (only when essential term left open for future negotiation is agreement an unenforceable agreement to agree). We, therefore, must determine whether the shareholder provision is essential to the overall settlement agreement.

(2) The Shareholder Agreement Is Essential to the Settlement Agreement

Ruben maintains that each provision of the settlement agreement is essential because all obligations, i.e., each provision of the agreement, must be completed in order to reach the completion date. Even so, Ruben characterizes the shareholder provision as the “pearl” of the agreement, an essential provision. The issue of essential contractual provisions was recently addressed in Playoff Corp., 300 S.W.3d 451.

In that case, Blackwell brought suit against Playoff, a sports trading-card company, for breach of contract. Id. at 453. After finding that a breach of contract occurred, the jury found damages of $6.1 million, but the trial court granted a take-nothing judgment notwithstanding the verdict, holding that the agreement was “legally unenforceable.” Id. at 454. The Fort Worth court affirmed. The matters in dispute in Playoff involved an employment agreement, the most hotly contested provision of which involved the issue of payment by Playoff, the employer, to Blackwell, the employee. That provision was summarized as follows:

Playoff ... would pay Blackwell 25% of the proceeds from the sale of Playoff or entities contemplated to be formed by the parties, if any, after reducing the proceeds from the sale by $5,000,000.00 (Playoffs agreed fair market value at the time of the alleged employment agreement); or 25% of the fair market value of Playoff or entities contemplated to be formed by the parties, if any, after reducing the fair market value by $5,000,000.00, on the last day of his employment if Playoff or any entity contemplated to be formed by the parties terminated Blackwell’s employment.

Id. at 453. Because the term “fair market value” was to be determined by “additional negotiation and agreement between the parties,” the “alleged agreement left a material matter open for future adjustment and agreement that never occurred.” Id. at 457. Consequently, the agreement was unenforceable as a matter of law. Id.

In contrast to Playoff, Scott maintains that while the parties contemplated future negotiations on some issues, including the shareholder provision, future negotiations do not negate contractual intent as a matter of law. Komet v. Graves, 40 S.W.3d 596, 601-02 (Tex.App.-San Antonio 2001, no pet.). In that case, an employment agreement set out the material terms of the employee’s salary and benefits, but also provided the following provisions: “[a] commission schedule structure shall be created and mutually agreed to and incorporated into this agreement” that was “to be determined by a future document” and an “[ejquity agreement to be determined in subsequent document.” Id. at 599. Because the agreement set out the effective date, salary, health insurance provisions, and vacation time and other benefits, the parties’ obligations were sufficiently outlined. In Komet, the court determined that the percentages were not material and therefore could “be left open for future negotiations without destroying the contract’s effectiveness.” Id. at 602. Because Komet determined that no essential provision was left to future negotiation, the contract was enforceable.

Scott makes the same argument in this case. He contends that the shareholder agreement was not essential to the overall agreement because it was not imperative or indispensible, pointing out that the installation of a four-member board was not predicated on the existence of a shareholder agreement (which, according to Scott, was the key essential term to the entire agreement). To effectuate the settlement agreement, the four-member board of directors would come first, and then the other documents would “fall into place.” Therefore, even when negotiations on the shareholder agreement failed, the remaining provisions of the settlement agreement were — in Scott’s estimation — enforceable.

What terms are “material” or essential to a contract should be determined on an agreement-by-agreement basis. T.O. Stanley Boot Co., 847 S.W.2d at 221 (“Each contract should be considered separately to determine its material terms.”). A close corporation such as MRMC may, by statute, be managed either by a board of directors or in the manner provided for in a shareholders’ agreement. Tex. Bus. Corp. Act Ann. art. 12.31(A)(2) (Vernon 2003). By statute, a shareholder agreement may restrict the discretion or powers of the board of directors. Or, the agreement can eliminate the board of directors and authorize the business and affairs of the corporation to be managed by one or more of its shareholders or other persons. Tex. Bus. 0Rgs. Code Ann. § 21.101(b)(1).

Paragraph one of the settlement agreement provides that the shareholder agreement will delegate responsibility to Scott to determine what authority the board of directors will delegate to Ruben to conduct the day-to-day operation of the corporation. Scott’s duties are to be more clearly defined and delegated by the board. Further, the agreement will contain provisions “typically found in large, complex corporations, including provisions governing liquidity for all shareholders.” The agreement will also include buy-sell provisions, “subject to a 1 yr. lockup period.” Sufficient detail regarding corporate management and financial governance is built into paragraph one to convince this Court that the shareholder agreement was essential to the overall settlement agreement.

Further, the proposed shareholder agreements drafted during the course of the parties’ negotiations are detailed and comprehensive. The most recent (failed) draft of the shareholder agreement was thirty pages in length with a detailed table of contents. The draft shareholder agreement addressed restrictions on disposition of shares, voluntary lifetime transfers, involuntary lifetime transfers, purchase of shares on the death of a shareholder or spouse of a shareholder, general provisions relating to transfers, voting agreements, covenants of the corporation, and a number of miscellaneous provisions. Each of these areas covered additional sub-topics in meticulous detail; each of these provisions can be excruciatingly complex and subject to intense negotiation.

While Scott maintains the shareholder agreement is not essential, a plain reading of-the entire agreement indicates otherwise. The shareholder agreement, as envisioned in the settlement agreement and as reflected by the drafts produced in negotiations, would be the foundational document of MRMC and would define the parties’ rights vis-a-vis each other and MRMC. Moreover, the shareholder agreement was fundamental to the enforcement of nine of the remaining eighteen paragraphs which, by then* express language, are dependent on completion of all of the obligations under the agreement.

Because the settlement agreement leaves this essential provision open for future agreement that never occurred, it is not binding and merely constitutes an agreement to agree in the future. See Fort Worth Indep. Sch. Dist., 22 S.W.3d at 846; Playoff Corp., 300 S.W.3d at 455; Meru v. Huerta, 136 S.W.3d 383, 391 (Tex.App.-Corpus Christi 2004, no pet.). As such, it cannot be enforced.

Because we find the settlement agreement to be unenforceable as a matter of law, we need not address the issue of whether the trial court erred in (1) awarding money damages and specific performance for a breach of contract and (2) awarding costs.

We reverse the judgment of the trial court and render a take-nothing judgment.

      . Ruben was President, Chief Executive Officer, and Chairman of the Board of MRMC, an MRMC shareholder, and the trustee of the R.S. Martin’s Children Trust No. 1 (Angela’s Trust). Scott was Executive Vice President of MRMC, a member of the Board of Directors, an MRMC shareholder, and the trustee of the Ruben S. Martin, III, Dynasty Trust (Dynasty Trust). So long as Ruben was trustee of Angela’s Trust and could control the votes of those shares, he had a slight voting advantage over Scott. However, the time for the termination of the trust was fast approaching and the brothers’ mother had the ability to remove Ruben as trustee and name another person in his stead.

      . The terms of the "Settlement Agreement” are summarized as follows:
      Paragraph one: "Scott and Ruben will negotiate a shareholder agreement....”
      Paragraph two: "The parties shall work together to better organize the use of MRMC airplanes.”
      Paragraph three: “Scott may elect to sell any Colorado house and the proceeds shall be split according to ownership in such house.”
      Paragraph four: "Scott and Ruben shall be permitted to invite anyone to the MRMC Board meetings.”
      Paragraph five: "Upon completion of all of the obligations under this Settlement Agreement (the “Completion Date ”), Wes Skelton shall resign as a co-trustee of the ESOP and Ruben and Scott shall remain as the sole co-trustees.”
      Paragraph six: "Upon the Completion Date, Scott shall resign from all trustee positions relating to any trust of Ruben’s and a successor trustee shall be appointed at Ruben's discretion.”
      Paragraph seven: "On or before the Completion Date, Scott and Ruben shall each be given Employment Agreements with equal compensation and severance packages.”
      Paragraph eight: “Upon the Completion Date, Scott, Ruben and the officers and directors of MRMC shall execute mutual releases from any and all claims related to the issues subject to this Agreement.”
      Paragraph nine: "Upon the Completion Date, Ruben will transfer one share of common stock of MRMC to Scott."
      Paragraph ten: "Scott and Ruben will be the MRMC representatives appointed to the Arcadia joint venture board of directors.”
      Paragraph eleven: "Upon the Completion Date, Don Neumeyer and Wes Skelton will resign from the MRMC Board. Ruben and Scott will each have the right to appoint 1 additional Board member.... This shall be accomplished through a Unanimous Consent of Shareholders.”
      Paragraph twelve: "On the Effective Date, Ruben and Scott shall be appointed as co-investment trustee's [sic] of Angela’s Trust.”
      Paragraph thirteen: "Upon the Completion Date, Ruben and Scott will each receive equal unsecured loans of up to $2,000,000 from MRMC, subject to Amegy approval on all of the terms and conditions of such loan.”
      Paragraph fourteen: "Upon the Completion Date, Scott, Ruben and Margaret Martin will be reimbursed by MRMC for all legal, consulting and other related expenses incurred in connection with the negotiation of the issues that are the subject of this Settlement Agreement.”
      Paragraph fifteen: "Upon the Completion Date, any and all outstanding stock options in MRMC shall be converted to non-voting shares upon exercise.”
      Paragraph sixteen: "There will be no shareholder votes except by unanimous consent until the Completion Date.”
      Paragraph seventeen: "Board action for MRMC will only be taken through unanimous consent until the Completion Date.”
      Paragraph eighteen: "Scott and Ruben will use their good faith efforts to work through counsel to document the agreements contained herein within sixty (60) days of the Effective Date.”
      Paragraph nineteen: "Angela will become employed by MRMC (at a location of her choosing), if she wishes.”

      . Scott maintains that because April 30, 2008, marked the end of the ninety-day negotiation period under the agreement, this was the date upon which all obligations under the agreement were to be fulfilled, i.e., the completion date. In his third amended original petition, Scott alleged that "Ruben has failed and refused to perform the obligations and undertakings required of him under the terms of the Settlement Agreement.”

      . The jury was also asked to determine whether Ruben and Scott were ultimately able to vote 100% of the voting shares of MRMC on the date of the agreement, whether Ruben and Scott were ultimately able to vote 67% of the voting shares on the date of the agreement, and whether by virtue of their shared voting power on the date of the agreement, Ruben and Scott were able to select and remove officers and directors of MRMC as well as the trustees for the Martin Resource Management Employee Stock Ownership Trust. The jury’s positive response to these issues, as well as to the monetary damage question, is not in dispute.

      . In his sur-reply brief, Scott contends Ruben improperly presented new issues on reply, in violation of Rules 38.1(f) and 38.3 of the Texas Rules of Appellate Procedure. Tex.R.App. P. 38.1(f) ("The [initial] brief must state concisely all issues or points presented for review.”); Tex.R.App. P. 38.3 (reply brief should address matters raised in appellee's brief). Because Ruben fully briefed the issues regarding the agreement’s legal enforceability and the propriety of the award of specific performance in addition to monetary damages, these issues are squarely before this Court.

      . Shareholder agreements in Texas are subject to the requirements of Chapter 21, Subchapter C of the Texas Business Organizations Code — and require approval and ratification by all shareholders, among other things, to be effective. Tex. Bus. Orgs. Code Ann. § 21.101(b) (Vernon 2010 pamphlet).

      . Paragraphs two, three, and four of the agreement address treatment of MRMC assets, such as use of the MRMC planes, sale of any "Colorado house,” and Scott's and Ruben’s ability to invite whomever they wish to attend MRMC Board meetings.

      . Each of these paragraphs is prefaced by the language, "Upon the Completion Date,” or "On or before the Completion Date."

      . The remaining paragraphs — ten, sixteen, seventeen, and nineteen — require that the MRMC Board could take action only by unanimous consent through the "Completion Date”; provide that Angela Alexander may be employed by MRMC at a location of her choosing, and state that both Scott and Ruben will be the MRMC representatives appointed to the Arcadia joint venture board of directors.

      .Ruben points out that many of the provisions of the setdement agreement require MRMC board approval. Darren Inoff, attorney for Scott, drafted the settlement agreement. Inoff provided Scott with a list of decisions that required MRMC board approval. Those decisions include: the election or removal of officers from the corporation; entering into or amending any employment or severance agreement with any officer or employee of the corporation, and all compensation programs (including base salaries and bonuses) for officers and key employees; the purchase, sale, lease, transfer or other acquisition or disposition of assets (including equity interests in any entity) in a transaction or series of transactions in excess of a given amount; any real estate lease or purchase; any commencement or settlement of any litigation; and approval of any other item specifically required elsewhere in the shareholder's agreement, bylaws, or articles of incorporation. These categories of actions requiring board approval apply to paragraphs three, five, seven, eight, eleven, thirteen, fifteen, sixteen, and seventeen.

      . Paragraph eighteen of the settlement agreement provides that “Scott and Ruben will use their good faith efforts to work through counsel to document the agreements contained herein within sixty (60) days of the Effective Date.”

      . The definition of "Completion Date” as the completion of all obligations under the agreement, in light of the nine provisions to be concluded upon the completion date, creates a never-ending chain of events which cannot, logically, result in a completion date.

      . The provision requiring a four-member board is not a part of the shareholder agreement; it is contained in paragraph eleven of the settlement agreement. Paragraph eleven states:
      Upon the Completion Date, Don Neumeyer and Wes Skelton will resign from the MRMC Board. Ruben and Scott will each have the right to appoint 1 additional Board member, it being assumed (but not required) that Bob Bondurant will be Ruben's appointment and Mike Gayler will be Scott’s appointment. Courtney Stovall and Angela Alexander shall also be appointed as advisory, non-voting Board members. This shall be accomplished through a Unanimous Consent of Shareholders. Under no circumstances will these changes constitute a Change of Control under any employment agreement, retention or severance agreement or any other agreement entered into by MRMC. The current Board shall execute a written consent authorizing these Board changes to confirm that these changes shall not constitute a Change of Control. The composition of the Board cannot be changed until The R.S. Martin Jr., Children’s Trust No. One f/b/o Angela Santi Jones (also known as Angela J. Alexander) ("Angela's Trust") terminates upon which time any shareholder shall be entitled to call a special meeting for the purpose of proposing a new slate of directors of the MRMC Board. The Bylaws shall be amended accordingly to permit this Board composition (since Bylaws currently require seven (7) Board members).

      . After a hard fought battle, Scott and Ruben agreed on a board of Scott and his designee and Ruben and his designee. It was not Scott's intention that the four-member board be contingent on or subject to the successful negotiation of a shareholder agreement. The four-member board provision does appear to be an essential provision of the overall agreement, given the degree of specificity it contains. That does not, however, resolve the issue of whether the shareholder provision is essential to the settlement agreement.

      . Both Scott and Ruben testified they could vote 100% of the shares of MRMC. Scott testified, with respect to paragraph eleven, that if Skelton did not want to resign, he could be made to resign. Scott and Ruben controlled the MRMC board vote on January 29, 2008, so any provisions requiring action by the board of directors could be effectuated by their board votes. The MRMC board appoints the trustees of the ESOP as well, so the board could also effectuate changes to the ESOP.

      .This section of the Business Corporation Act expired on January 1, 2010, but was in effect at the time the settlement agreement was executed. Tex. Bus. Corp. Act Ann. art. 11.02 (Vernon Supp. 2010).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Richard Dewayne SNELSON, Appellant, v. The STATE of Texas, Appellee.
    No. 07-10-0259-CV.
    Court of Appeals of Texas, Amarillo, Panel A.
    Nov. 10, 2010.

      Richard Dewayne Snelson, Abilene, pro se.
    Richard Gore, Asst. Crim. Dist. Atty., Canyon, for State.
    Before CAMPBELL and HANCOCK and PIRTLE, JJ.
   OPINION

PER CURIAM.

On March 9, 2005, Appellant was convicted of possession of a controlled substance with intent to deliver in a drug-free zone, enhanced, and sentenced to sixty years confinement. Although the judgment of conviction recited “that the State of Texas do have and recover of the said defendant all costs in this proceeding incurred,” the summary portion of the judgment left blank the amount of those costs. That judgment became final and mandate issued on October 5, 2007.

More than two years later, using the same cause number, the trial court signed and entered an Order to Withdraw Inmate Funds (Pursuant to TX. GOV’T. CODE, Sec. 501.014(c)). Appellant attempts to appeal this “order.” Appellant’s notice of appeal also asked the trial court to rescind or modify the withdrawal notification. On April 12, 2010, Appellant filed a Second Motion To The Court Requesting It To Rescind Its Order Based Upon No Subject Matter Jurisdiction. Finding that the withdrawal notification is not an appealable order, we abate this appeal pending the trial court’s disposition of Appellant’s request for rescission or modification.

Background

By the withdrawal notification at issue, the trial court directed the Texas Department of Criminal Justice Institutional Division to withhold from Appellant’s account the sum of $2,228.50, consisting of $1,950 for attorney’s fees and other miscellaneous court costs. A Bill of Costs, generated the same date that the withdrawal notification was entered, was attached.

In Harrell v. State, 286 S.W.3d 315 (Tex.2009), the Texas Supreme Court held that a withdrawal notification directing prison officials to withdraw money from an inmate account pursuant to § 501.014(e) is a civil matter akin to a garnishment action or an action to obtain a turnover order. Harrell, 286 S.W.3d at 317-19. Discussing the due process accorded to the appellant, the Court balanced the three factors discussed in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and found that Harrell had “already received some measure of due process.” Harrell, 286 S.W.3d at 320. In determining whether Harrell was accorded constitutional due process, the Court concluded that because Harrell had received notice of the withdrawal (a copy of the withdrawal notification) and an opportunity to contest the dollar amount and statutory basis of the withdrawal (a motion to rescind or modify the withdrawal notification), he received all that due process required. Id. at 321. The Court added that neither notice nor an opportunity to be heard need occur before the funds are withdrawn. Id.

By his pro se brief, Appellant asserts the withdrawal notification violates his due process rights, attacks the notification as void due to lack of subject matter jurisdiction, and contends that if the notification is valid, then section 501.014(e) of the Texas Government Code is unconstitutional. By its brief, the State questions the finality of the withdrawal notification asserting that no final, appealable order has been entered.

We agree with the State that no final, appealable order has been entered by the trial court. Because the trial court has yet to rule on Appellant’s motion to rescind or modify the withdrawal notification, we are unable to determine if Appellant has been given all that due process requires and, accordingly, we find Appellant’s notice of appeal to be premature. See Tex.R.App. P. 27.1(a) and 27.2.

Accordingly, this Court abates this appeal for 90 days from the date of this order to allow Appellant time to take such action as is necessary to (1) present his motion to the trial court; (2) schedule any necessary hearing; and (3) obtain from the trial court a final, appealable order addressing that motion. See Iacono v. Lyons, 6 S.W.3d 715 (Tex.App.-Houston [1st Dist.] 1999, no pet.).

If the trial court enters an appealable order addressing Appellant’s motion to rescind or modify the withdrawal notification, all appellate briefing deadlines shall proceed in accordance with Rule 38.6 of the Texas Rules of Appellate Procedure. If the trial court does not enter an appeal-able order within the time frame allowed, this appeal will be subject to dismissal or further abatement. See Ramirez v. State, 318 S.W.3d 906 (Tex.App.-Waco 2010, no pet.) (dismissing appeal from a withdrawal notification after finding there was no final, appealable order).

It is so ordered.

      . This document is not an "order" in the traditional sense of a court order, judgment, or decree issued after notice and hearing in either a civil or criminal proceeding. The controlling statute, Tex. Gov’t Code Ann. § 501.014(e) (Vernon Supp. 2010), describes the process as a "notification by a court” directing prison officials to withdraw sums from an inmate’s account, in accordance with a schedule of priorities set by the statute, for the payment of "any amount the inmate is ordered to pay by order of the court.” See id. at § 501.014(e)(1)-(6). See also Harrell v. State, 286 S.W.3d 315, 316, n. 1 (Tex.2009). This document is more akin to a judgment nisi. A judgment nisi, commonly used in bond forfeiture proceedings, is a provisional judgment entered when an accused fails to appear for trial. A judgment nisi triggers the issuance of a capias and it serves as notice of the institution of a bond forfeiture proceeding. It is not final or absolute, but may become final. See Safety Nat'l Cas. Corp. v. State, 273 S.W.3d 157, 163 (Tex.Crim.App.2008). Nisi means "unless,” so a judgment nisi is valid unless a party takes action causing it to be withdrawn. Id. Similarly, a withdrawal notification issued pursuant to § 501.014(e), triggers the withdrawal from an inmate account, serves as notice of the collection proceeding, and continues to operate unless the inmate takes action causing the notification to be withdrawn. Therefore, rather than refer to that document as an order, we prefer to use the term "withdrawal notification” to avoid confusion with an underlying court order or judgment actually ordering the payment of a sum certain, falling within at least one of the six priority categories listed in the statute.

      . Several courts, including this Court, have frequently referred to these inmate accounts as "trust” accounts. The term "trust” has been removed from their statutory references. Act of May 11, 1989, 71st Leg., R.S., ch. 212, § 2.01 1989 Tex. Gen. Laws 918, 958, amended by, Act of May 17, 1999, 76th Leg., R.S., ch. 326, § 1 1999 Tex. Gen. Laws 1235, 1236 (current version at Tex. Gov't Code Ann. § 501.014 (Vernon Supp. 2010)). Accordingly, they are simply inmate accounts.

      . Attorney’s fees for court-appointed counsel are not properly includable as a cost of court without a judicial determination that the defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided. Tex.Code Crim. Proc. Ann. art. 26.05(g) (Vernon 2010); Mayer v. State, 309 S.W.3d 552, 556 (Tex.Crim.App.2010).

        . See Johnson v. Tenth Judicial District Court of Appeals at Waco, 280 S.W.3d 866, 869 (Tex.Crim.App.2008) (holding that orders directing withdrawal of funds from inmate trust accounts are not a criminal matter).


author: Justice CARTER.

text:
    William Allen COOPER, Appellant, v. The STATE of Texas, Appellee.
    No. 06-10-00083-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 20, 2010.
    Decided Nov. 16, 2010.
    Rehearing Overruled Dec. 7, 2010.
    Troy A. Hornsby, Miller, James, Miller & Hornsby, LLP, Texarkana, for appellant.
    Jeffrey W. Shell, Atty. and Counselor at Law, Rockwall, Val Varley, Red River County and Dist. Atty., Clarksville, for appellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Justice CARTER.

In the 50s, before the advent of video cameras and cell phone videos, a popular song advised us that standing on the corner and watching females pass by was acceptable conduct and that “you can’t go to jail for what you’re thinking.” Watching may still be acceptable conduct, but recording that parade may violate the law in Texas today.

William Allen Cooper was convicted by a jury of an offense entitled Improper Photography or Visual Recording. The offense is a state jail felony, and on two counts, he was sentenced to the maximum punishment: two years in a state jail facility on each prosecution and a $10,000.00 fine. See Tex. Penal Code Ann. § 21.15 (Vernon Supp.2010).

I. Issues on Appeal

Cooper raises several issues on appeal, including a Batson claim, issues about the unsupported assessment of costs against him, and issues concerning the harm caused by improperly admitted evidence and an improper opening statement by the prosecutor — that attempted to convince the jury to convict based not on the evidence, but on evidence that it could not see until punishment (when the rest of the story would be revealed). We need not address those issues, as we reverse both convictions based on insufficiency of the evidence.

As applied to this prosecution, the statute criminalizes the act of photographing/recording a visual image of another at a location not a bathroom or private dressing room without that person’s consent, and with intent to arouse or gratify the sexual desire of any person.

II. Facts

Cooper was convicted for making video recordings (shot through a window) of females walking down the sidewalk, or down the street, in front of either his home or business. The subjects were fully clad and were not in a private area. We have duplicates made by the State of the only two tapes involved, containing several hours of video, which the State edited into a short “best of’ video for the jury’s perusal. All of these were introduced into evidence and made available to the jury. The videogra-pher used the zoom function on the camera at various times to obtain close-ups of specific parts of female anatomy. Those close-ups are what the State relies upon to prove intent — the statute requires the video to have been made with the intent to arouse or gratify the sexual desire of a person. The State argues that this choice of subject matter would allow a jury to find the requisite intent, and counsel does not argue to the contrary.

III. Sufficiency of the Evidence

The critical issue in this review is whether the evidence is sufficient to allow a rational jury to decide that the State had proven, beyond a reasonable doubt, that Cooper was the videographer. In evaluating Cooper’s legal sufficiency challenge, we apply the Jackson standard as explained in Brooks.

The relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, 448 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In the Brooks plurality opinion, the Texas Court of Criminal Appeals found “no meaningful distinction between the Jackson v. Virginia legal-sufficiency standard and the Clewis factual-sufficiency standard, and these two standards have become indistinguishable.” Brooks v. State, 323 S.W.3d 893, 902 (Tex.Crim.App.2010) (4-1-4 decision). Further, a proper application of the Jackson v. Virginia legal sufficiency standard is as exacting a standard as any factual sufficiency standard. See id. at 905. In a concurring opinion, Judge Cochran pointed out that the United States Supreme Court has rejected a legal sufficiency test that requires a finding that “no evidence” supports the verdict because it affords inadequate protection against potential misapplication of the “reasonable doubt” standard in criminal cases. Id. at 915 (Cochran, J., concurring). Rather than meeting a mere “no evidence” test, legal sufficiency is judged not by the quantity of evidence, but by the quality of the evidence and the level of certainty it engenders in the fact-finder’s mind. Id. at 917.

We thus examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007) (citing Jackson, 443 U.S. at 318-19, 99 S.Ct. 2781). If we determine that the evidence is legally insufficient to sustain a conviction, the proper remedy is to reverse the case and order acquittal. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); Taylor v. State, 626 S.W.2d 543, 545 (Tex.App.-Texarkana 1981, pet. ref'd).

We measure the evidence “by the elements of the offense as defined by the hypothetically correct jury charge for the case.” Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). The hypothetically correct jury charge “sets out the law, is authorized by the indictment, does , not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id.

A. Evidence of Cooper as the Recorder

Certain matters are undisputed. The videos were taken from inside Cooper’s house and from inside his business (a detail shop). They were taken with a camera that was found near his residence and that had previously been in his residence. The tapes themselves were found inside his house. The evidence also shows that Cooper did not have sole access to either his home or business. Cooper had teenage children who visited the house, Maria Goo-den (Cooper’s ex-girlfriend) had an eighteen-year-old son, and Cooper had employees at the business. There is no testimony from any source that any individual saw Cooper using the video camera either while taking these videos, or at any other time.

The State relies on the location of the filming, the testimony of a police officer, Brandon Harbison, and the testimony of Cooper’s ex-girlfriend as evidence that Cooper filmed the video.

The police officer testified the ex-girlfriend (Gooden) had told him that Cooper made the videos because she had seen him on the recording. The officer did not testify that Cooper made the videos — only that he had been told by Gooden that Cooper had done so.

Q. Do you know whether or not Mr. Cooper was the one videotaping these girls, the one who was operating the camera?
A. I was told so by Maria Gooden.

The language used by the officer in his nonresponsive answer to the question does not provide direct testimony that Cooper made the video. It provides evidence that the ex-girlfriend told him that Cooper made the video. Even if a portion of this evidence was admitted before the jury, since the officer was merely quoting Goo-den, the basis of the evidence must stand on the testimony of Gooden.

On redirect examination, the officer testified that “he was in the video — one of the videos, and I don’t remember which tape it was on, for a very short time.”

Gooden testified that after she found the camera in the house, she thought Cooper was operating the camera, because she had seen images of Cooper on it when she viewed the first tape. Objections were raised to her testimony, along with impassioned discussion before the judge (and out of the hearing of the jury) by counsel, who stated that he had watched the DVD copies of the tapes (which the State then reaffirmed were true and accurate copies of all of the tapes) and had seen nothing with Cooper appearing.

After the discussion at the bench, the trial court ruled as follows:

THE COURT: Ladies and gentlemen, there was a question about a clip, and I have sustained the objection. The tape will speak for itself. And so you shall disregard any reference to the tape.

Accordingly, Gooden’s prior testimony about what she had seen on the tape was removed from the jury’s consideration.

Despite this directive from the trial judge, the prosecutor attempted to obtain the same testimony again:

Q. At one point I believe you testified you thought you saw him or you could identify—
[Defense counsel]: Judge, we’re going to — we’ll re-urge our motion — objection. I’m sorry. I mean this — I’m not sure this isn’t the same question just rephrased.
THE COURT: Well, let’s get to playing the tapes so the tapes will speak for themselves. We don’t need the commentary as to what they are or whatever.

As a result of these proceedings, none of the testimony of Gooden about what she observed on the video was placed before the jury during that exchange. The court quite reasonably concluded that the jury could observe the videos and reach its own conclusions without her extraneous explanation of what she believed she had seen on one of them — at some undefined and unspecified point in the recording.

Later, however, the State attempted to circumvent the trial court’s ruling, and to some degree succeeded.

The prosecutor asked Gooden:

Q. Do you know who was making these videotapes that you found?
A. William Cooper.
Q. And how do you know that?
A. Because there’s a clip in one of them that he’s wearing his shirt that I used to wash, and I know his build and body and his favorite chair.

Then, on cross-examination, the following transpired:

Q. Now, you say he’s in one of these videos?
A. Yes.
Q. So if he’s in one, who took that picture?
A. He was holding the camera. You could see him holding the camera at this angle. Like that.
Q. How do you know that?
A. You can see it. It’s a quick clip. You can rewind it and watch it again.

IV. Analysis of Sufficiency of the Evidence that Cooper Recorded the Videos

A. The Video Recordings

The Texas Court of Criminal Appeals has very recently explained the test for legal sufficiency of the evidence in Brooks. The sole hypothetical provided by the Texas Court of Criminal Appeals for our elucidation is one that shows the court intends for review to be not just of the quantity (“no evidence standard”), but the quality of the evidence presented. That hypothetical is easily applicable to the situation before this Court in this case.

The store clerk at trial identifies A as the robber. A properly authenticated surveillance videotape of the event clearly shows that B committed the robbery. But, the jury convicts A. It was within the jury’s prerogative to believe the convenience store clerk and disregard the video. But, based on all the evidence, the jury’s finding of guilt is not a rational finding.

Brooks, 32B S.W.3d at 907 (emphasis added). Under a pure “no evidence” analysis, there is obviously some evidence in the hypothetical to support conviction of robber A. The clerk testified A did it. In Judge Cochran’s concurrence joined by Judge Womack, it is explained that legally sufficient evidence is of such sufficient strength, character, and credibility to engender certainty beyond a reasonable doubt in the reasonable fact-finder’s mind — evidence lacking that strength is legally insufficient. Under this analysis, the above example is legally insufficient.

Just as in the example in Brooks, under a “no evidence” or “quantity” analysis, there is some evidence to support conviction. Gooden testified that she saw Cooper in the videotape. Harbison testified, albeit very briefly and in some conflict with his own prior testimony, that he had seen Cooper in a very short clip in the videotape. The State has not attempted to identify where such evidence may be found on the videos.

This Court has the videos. We have reviewed them carefully. At various points, the inside of the residence or business is visible and identifiable. There is a little red chair as described by Gooden— but unoccupied. The video quality is very poor — there are four thick lines of static running across the screen for their entirety. The focus of the camera is on females walking up and down a public street. The zoom feature is used regularly to focus on particular portions of their anatomy.

What does not appear in any of these videos is the critical fact. There is no recording of any portion of the videogra-pher taking the pictures of the two complainants — or of any individual taking any other videos of other females through the windows. At no point does the body of the individual taking the pictures become visible, in any part. There is no picture of Cooper, or of any shirt that could have been recognized by Gooden.

In summary, there is no testimony that anyone saw Cooper filming the videos, but there is testimony that they saw Cooper on the videotape. After a painstaking review of all of the evidence, including the videos themselves, it is clear that the video recordings do not contain any pictures of Cooper — or anyone else — that could reveal who was operating the camera when making the recordings that are the subject of this prosecution. It is, therefore, under the explanations made in Brooks of sufficiency review and the hypothetical provided, and applying the standard of Jackson as explained therein, not rational for a jury to conclude that Cooper took the videos based upon the testimony of Gooden and Harbison.

B. Circumstantial Evidence

Is the remaining evidence sufficient to allow a rational jury to determine beyond a reasonable doubt that Cooper was the videographer? Ownership of the camera proves ownership. Without more, it cannot prove beyond a reasonable doubt that the camera was used at a particular time by a particular person. There is no evidence that Cooper had sole possession of the location from which the videos were made. The evidence shows to the contrary. The uncontroverted evidence shows that- at least several other people had access to both locations over an extended period of time.

The question as properly sent to the jury in its charge, consonant with the indictment, asked whether it found

from the evidence beyond a reasonable doubt that on or about the 2nd day of October, 2008, in Red River County, Texas, the defendant, WILLIAM ALLEN COOPER, did intentionally or knowingly commit the offense of Improper Photography or Visual Recording, by then and there, with intent to arouse or gratify the sexual desire of the defendant, record by videotape a visual image of another, namely, [Jane Doe] at a location that was not a bathroom or private dressing room, without the consent of the said [Jane Doe], then you shall find the Defendant guilty of improper visual recording as charged in the indictment.

By analogy, in many controlled substance cases, the issue is whether one, not in exclusive possession of the drug, has sufficient contact (links) to it to be jointly in possession. If that were the only issue here, we would find no difficulty in affirming a jury finding that Cooper had possession of the camera — it was found in his house, the camera was his, etc. But here, another step is required — there must be evidence that Cooper recorded the images. Proving that he at one time had possession of the video camera does not provide any evidence that he filmed the particular recordings involved. Under the review of the evidence required by Brooks, even in the light most favorable to the verdict, a rational jury could not conclude that this evidence is such as to permit it to find beyond a reasonable doubt that Cooper recorded those visual images.

We reverse the conviction and render a judgment of acquittal.

      . "Standing on the Corner” from the show "The Most Happy Fella” (1956) (Frank Loes-ser) Recorded by The Four Lads, Dean Martin, and The King Brothers.

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . Section 21.15. Improper Photography or Visual Recording
      (a) In this section, "promote” has the meaning assigned by Section 43.21.
      (b) A person commits an offense if the person:
      (1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room:
      (A) without the other person's consent; and
      (B) with intent to arouse or gratify the sexual desire of any person;
      (2) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is a bathroom or private dressing room:
      (A) without the other person’s consent; and
      (B) with intent to:
      (i) invade the privacy of the other person; or
      (ii) arouse or gratify the sexual desire of any person; or
      (3)knowing the character and content of the photograph, recording, broadcast, or transmission, promotes a photograph, recording, broadcast, or transmission described by Subdivision (1) or (2).
      (c) An offense under this section is a state jail felony.
      (d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section or the other law.
      (e) For purposes of Subsection (b)(2), a sign or signs posted indicating that the person is being photographed or that a visual image of the person is being recorded, broadcast, or transmitted is not sufficient to establish the person’s consent under that subdivision.

      . Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996).

      . Malik controls "even in the absence of alleged jury charge error.” Gollihar v. State, 46 S.W.3d 243, 255 (Tex.Crim.App.2001).

      . Counsel objected to the evidence as hearsay. His objection was sustained, but the court declined to instruct the jury to disregard the evidence.

      . As mentioned earlier, Judge Cochran, in a concurring opinion, explained that the United States Supreme Court had rejected a legal sufficiency test that requires a finding that "no evidence” supports the verdict. Brooks, 323 S.W.3d at 916 (Cochran, J., concurring).

      . Further supporting this reasoning is the source of the hypothetical: a dissent in Johnson v. State, 23 S.W.3d 1 (Tex.Crim.App.2000) (which two members of this plurality had joined). In that opinion, Presiding Judge McCormick explained,
      A properly applied Jackson v. Virginia standard, therefore, is much more exacting than Clewis claims. Jackson v. Virginia requires the reviewing court to consider all the evidence in the “light most favorable to the verdict,” and then it requires the reviewing court to decide whether the jury’s finding of guilt is “rational.” A properly applied Jackson v. Virginia standard is essentially as exacting a standard as a "factual sufficiency” standard which means that when the evidence meets the Jackson v. Virginia standard, it can never be "factually insufficient” and when the evidence is "factually insufficient,” it will always be insufficient under the Jackson v. Virginia standard.

        Johnson v. State, 23 S.W.3d 1, 15-16 (Tex.Crim.App.2000).


author: ELANA CUNNINGHAM WILLS, Justice.

text:
    2009 Ark. 375
    Billy Terrell ADAMS, Appellant, v. STATE of Arkansas, Appellee.
    No. CR 08-1353.
    Supreme Court of Arkansas.
    June 25, 2009.
    Rehearing Denied Sept. 10, 2009.

      James Law Firm, by: William O. “Bill” James, Jr., Little Rock, for appellant.
    Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for appellee.
   ELANA CUNNINGHAM WILLS, Justice.

JLjA White County jury convicted Appellant Billy Terrell Adams of capital murder and he received a sentence of life in prison without parole. Adams brings four points for reversal on appeal, arguing that the trial court erred by (1) improperly questioning a juror and failing to require additional deliberation before accepting the verdict as unanimous; (2) refusing to strike a juror for cause; (3) denying Adams’s motions for a directed verdict; (4) refusing Adams’s proffered jury instructions. We affirm.

I. Sufficiency of the Evidence

Because of double-jeopardy concerns, Adams’s third point, challenging the sufficiency of the evidence, will be addressed first. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). Adams argues that the trial court erred by denying his motions for a directed verdict because |2the State did not present sufficient evidence to establish that he murdered Charles “Chucky” Cunningham with premeditation and deliberation. Specifically, Adams contends that “[b]y asserting the affirmative defense of mental disease or defect, [he] proved by a preponderance of the evidence that he did not [have] the requisite mental state” for a capital murder conviction.

An appeal from a denial of a motion for a directed verdict is a challenge to the sufficiency of the evidence. Woolbright v. State, 357 Ark. 63, 160 S.W.3d 315 (2004). Reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict was supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence that is forceful enough to compel a conclusion one way or the other beyond speculation or conjecture. Benson v. State, 357 Ark. 43, 160 S.W.3d 341 (2004). The reviewing court views the evidence in the light most favorable to the verdict, and considers only evidence that supports the verdict. Clem v. State, 351 Ark. 112, 117, 90 S.W.3d 428, 430 (2002).

Under Arkansas law a person commits capital murder if “[w]ith the premeditated and deliberated purpose of causing the death of another person, the person causes the death of any person.” Ark. Code Ann. § 5-10-101(a)(4) (Repl.2006). Premeditation and deliberation may be formed in an instant. McFarland v. State, 337 Ark. 386, 989 S.W.2d 899 (1999). Intent can rarely be proven by direct evidence; however, a jury can infer premeditation and deliberation from circumstantial evidence, such as the type and character of the weapon used; the nature, extent, and location of wounds inflicted; and the conduct of the accused. Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000).

At trial, Corporal Van Winkle of the Searcy Police Department testified that he was dispatched to investigate a report of a fight in progress on June 8, 2007. Arriving at the scene of the fight, Van Winkle observed Adams standing on the front porch of his home, holding a shotgun. As Van Winkle exited his police car, he witnessed Adams fire once into the victim’s vehicle. The victim backed his vehicle out of the driveway and sped away. Adams then looked at Van Winkle, went inside his house, and closed the front door. After a trooper from the Arkansas State Police and another Searcy Police Department officer responded to Van Winkle’s call for assistance, three officers eventually entered Adams’s home and found him hiding in a closet. Van Winkle testified that after Adams was placed into handcuffs, he “appeared normal” and “he didn’t look as though he had been in an altercation.”

A second eyewitness, Robert Weaver, testified that he was fueling a truck at his place of employment near Adams’s home when he heard an altercation. Walking to a fence, he saw Adams and Cunningham fighting as two females watched. At one point in the fight, Cunningham was on top of Adams, “pounding him” in the words of Weaver, until a female “grabbed [Cunningham] and made him stop.” Adams got up from the ground and went inside his house, and Cunningham got inside his vehicle parked in Adams’s driveway. Weaver testified that Adams then “came back outside and was talking to [Cunningham] through the window of the vehicle,” before he went back inside his house a second time and reemerged with a shotgun. According to Weaver, as Cunningham began to drive away, |4Adams fired the shotgun.

Other evidence presented by the State included testimony from Dr. Adam Craig, medical examiner for the Arkansas State Crime Lab, that Cunningham’s autopsy showed that his death resulted from “fatal, non-survivable” wounds caused by shotgun pellets. Dr. Craig testified that Cunningham bled to death within “one or two minutes to five plus or minus minutes” after receiving the shotgun blast.

Adams bases his assertion that he proved that he did not have the requisite mental state for a capital murder conviction on the expert testimony of a forensic psychiatrist. Dr. Bob Gale testified for the defense and opined that Adams’s “judgment” and “ability to control his emotions went out the window” due to “mental disease,” and that there was nothing that he read in police reports or that he “heard directly or indirectly from the Defendant that indicates premeditation” in the murder of Cunningham. However, Dr. Gale also testified that Adams was competent to stand trial, knew right from wrong, and understood the shotgun’s operation and effect.

A “jury is not bound to accept the opinion testimony of any witness as true or conclusive, including the opinion testimony of experts.” Navarro v. State, 871 Ark. 179, 191, 264 S.W.3d 580, 539 (2007). This court’s “standard of review of a jury verdict rejecting the defense of mental disease or defect is whether there is any substantial evidence to support the verdict.” Id. at 190, 264 S.W.3d at 538. Viewing the evidence in the light most favorable to the State, substantial evidence was presented to the jury to support a verdict that Adams murdered Cunningham with premeditation and deliberation.

|SII. Jury Poll

Adams argues that the trial court erred in questioning a juror due to the answer she gave regarding her vote during the jury poll. Specifically, Adams asserts that the verdict was not unanimous, and that Arkansas statutes and case law regarding jury polls required the trial court to send the jury out for further deliberations. According to Adams, the “consequence of the continued questioning by the trial judge is that it created a situation where the trial judge not only violated statutory procedure but committed such a serious error and consequent violation of [his] rights as to require reversal of [his] conviction.” The State asserts that Adams’s failure to raise this point at trial by making a contemporaneous objection precludes appellate review.

After the jury rendered its guilty verdict, Adams requested that the trial court poll the jury and the following colloquy took place:

Court: Ms. Crisler?
Crisler: That was the way we all voted.
Court: That was the way you voted.
| hCrisler: No, not. I didn’t really want to but I was convinced.
Court: Okay ma’am. The question is whether that is your verdict. Yes or no?
Crisler: Yes. That was the way I voted.

The failure to make a contemporaneous objection to an irregularity of a jury verdict constitutes a waiver of the irregularity. Smith v. State, 310 Ark. 30, 832 S.W.2d 497 (1992). In Smith, the jury sentenced the defendant to a term of forty years in prison. However, when the jury was polled, a juror responded that her individual verdict was “Ten years.” Id. at 31, 832 S.W.2d at 498. The trial court then questioned the juror as follows:

Court: You’re telling me this is not your verdict?
Juror: Yes, that’s my verdict.
Court: This is your individual verdict?
Juror: Um-hmm.

Id. at 31-32, 832 S.W.2d at 498. At the conclusion of the jury poll, the trial court in Smith asked, “Is there any reason known to anyone why sentencing shouldn’t be imposed at this time?” Id. at 32, 832 S.W.2d at 498. The defense did not respond and the trial court imposed the sentence. As Adams argues in the present case, the appellant in Smith argued that the trial court erred in accepting the jury verdict, because the poll indicated that the verdict was not unanimous. This court refused to consider the argument because it was raised for the first time on appeal, stating that we have “consistently refused to consider arguments on appeal in the absence of a specific, contemporaneous objection at trial.” Id. at 32, 832 S.W.2d at 499.

Citing Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003), however, Adams asserts that “an error by the trial court involving any feature of the fundamental right to a trial by jury is so great that the issue will be considered by an appellate court, even absent an objection by trial court counsel.” In Anderson, this court stated that “a contemporaneous objection is generally required to preserve an issue for appeal, even a constitutional issue.” Id. at 395, 108 S.W.3d at 599. However, the court discussed four exceptions to the general rule as set forth in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), noting that the exceptions are “narrow exceptions that are to be rarely applied.” Anderson, 353 Ark. at 396, 108 S.W.3d at 600. The exceptions are applicable under the following situations:

(1) when the trial court fails to bring the jury’s attention to a matter essential to its consideration of the death penalty itself; (2) when the defense counsel has no knowledge of the error and hence no opportunity to object; (3) when the error is so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury correctly; and (4) Ark. R. Evid. 103(d) provides that the appellate court is not precluded from taking notice of errors affecting substantial rights, although they were not brought to the attention to the trial court.

Id. at 395, 108 S.W.3d at 599.

In Anderson, this court first determined that the appellant effectively made a Wicks argument on appeal without specifically citing Wicks. The appellant in Anderson contended that “the prosecutors comments to potential jurors during voir dire constituted such a serious error that the circuit court should have intervened and admonished the jury as to the correct statement of the law” Id. at 396, 108 S.W.3d 592. Here, although Adams cites Anderson, he Rdoes not mention or discuss the underlying language of any Wicks exception or indicate which exception applies to the present case. Thus, unlike Anderson, Adams fails to effectively make an argument for application of a Wicks exception that would permit this court to address the issue for the first time on appeal. Moreover, we note that the facts of this case do not present a situation of comparable seriousness as that presented in Anderson. See also Greene v. State, 343 Ark. 526, 37 S.W.3d 579 (2001).

Accordingly, this court will not address this point. Here, as in Smith, Adams failed to make a contemporaneous objection at the conclusion of the jury poll when the trial judge inquired if there was any reason not to release the jury and impose the sentence.

III. Juror Selection

Adams argues that the trial court erred when it refused to grant Adams’s request to strike juror Martin for cause, because she “had indicated her equivocation regarding following the law in this case.” Thus, Adams contends, the trial court violated his Constitutional right to an impartial jury. The State argues that the trial court did not abuse its discretion in denying Adams’s motion to strike juror Martin.

In Jones v. State, 374 Ark. 475, 478, 288 S.W.3d 633, 636 (2008) (citations omitted), this court stated as follows regarding the qualification of jurors:

A juror is presumed to be unbiased and qualified to served, and the burden is on the appellant to prove otherwise. It is for the trial court to decide whether a juror is qualified, and that finding will not be reversed absent a showing of abuse of discretion. We have held that the appellant must demonstrate prejudice in arguing that a juror should have been removed.

Further “ ‘[i]n matters involving impartiality of jurors, we have consistently deferred to the trial court’s opportunity to observe jurors and gauge their answers in determining whether their impartiality was affected.’” Id. at 479, 288 S.W.3d at 636 (quoting Echols v. State, 326 Ark. 917, 991, 936 S.W.2d 509, 548 (1996)).

In asserting that the trial court erred by allowing a biased juror to be seated, Adams cites Martin’s responses to questioning during voir dire stating that she could “try” to listen to the other jurors and reach a unanimous verdict, that taking a life “irked” her due to her religious convictions, and that she could “try to be” a fair juror. However, Martin also answered “Yes” when asked “Do you believe in self-defense”; answered ‘Tes” when asked | inif she could “follow the law as the Judge gives it to you, in what we call the jury instructions at the end”; and answered “I could try, yes” and “I could do it” when asked if she could listen to both sides. Review of the record shows that juror Martin did not evidence any specific bias against Adams, nor did she express any opinion concerning Adams’s guilt. In Corley v. State, 162 Ark. 178, 257 S.W. 750, 751 (1924), this court stated that

[t]he rule is that a juror is not disqualified from trying a person accused of a particular crime because he has a prejudice against the crime charged, if such prejudice against a particular crime would not prevent the juror from impartially considering the question of the guilt of the accused.

Adams fails to overcome the presumption of impartiality accorded juror Martin, nor has he demonstrated actual prejudice resulting from the trial court’s refusal to strike her from the jury. Although juror Martin indicated her general feelings on the subject of murder during voir dire, she did not evidence any particular bias against Adams. The trial judge noted that juror Martin expressed “an opinion that is held by probably most people.” Mindful of this court’s deference to the trial court’s opportunity to observe jurors and weigh their answers in determining questions of impartiality, we hold that the trial court did not abuse its discretion in refusing to strike juror Martin for cause.

IV. Proffered Jury Instructions

For his final point for reversal, Adams argues that the trial court erred in refusing to admit his proffered jury instructions, because the proffered instructions were “more inclusive and a more clear statement of the law on the various issues than the model jury instructions.”

A trial court’s ruling on whether to submit a jury instruction will not be reversed |nabsent an abuse of discretion. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). “A non-AMI Criminal instruction should be given only when the trial judge finds that the AMI Criminal instruction does not state the law or that AMI Criminal does not contain a needed instruction on the subject.” Clark v. State, 374 Ark. 292, 305, 287 S.W.3d 567, 576 (2008). Even if an appellant’s proffered instructions contain correct statements of the law, it is not error for the trial court to refuse to submit them to the jury. Id.

Here, the AMI Criminal instructions submitted to the jury addressed mental disease or defect and lesser-included offenses. In addition to instructions on the elements of capital murder, the jury was instructed on lesser included offenses of first-degree murder, second-degree murder, and manslaughter. With respect to Adams’s defense of mental disease or defect, the jury was specifically instructed that Adams was guilty of manslaughter if “he committed the act under the influence of extreme emotional disturbance for which there was a reasonable excuse.” Further, the jury was instructed that “[a] person is not criminally responsible for his conduct, if, at the time of that conduct, as a result of mental disease or defect, he lacked the capacity to appreciate the criminality of his conduct.”

Adams does not assert that the AMI jury instructions submitted to the jury inaccurately , reflected the law. Thus, despite his contention that his proffered instructions were “more inclusive” and “a more clear statement of the law on the various issues,” the trial court did not err in refusing to submit them to the jury.

112The record in this case has been reviewed for other reversible error as required by Ark. Sup.Ct. R. 4 — 3(i) (2009), and none has been found.

Affirmed.

      . For statutory authority on this point, Adams cites both Ark. Code Ann. § 16-64-119(d)(1) and Ark.Code Ann. § 16-89-128. Section 16-64-119 was part of the Civil Code of 1868. It pertains to civil trials and is, therefore, inapplicable here. Section 16-89-128 was part of the Criminal Code of 1868. It addresses jury polls in criminal trials and provides that
      [u]pon a verdict’s being rendered, the jury may be polled at the instance of either party, which consists of the clerk or judge asking each juror if it is his or her verdict. If one (1) answers in the negative, the verdict cannot be received.

      . Citing Watson v. State, 289 Ark. 138, 709 S.W.2d 817 (1986), the State also contends that Adams failed to preserve this point for appellate review, asserting that "[wjhen a biased juror is forced upon a defendant, he must make an appropriate record at the end of voir dire.” In Watson, the appellant argued that, because "he used two peremptory jury challenges for jurors who should have been dismissed for cause, he was forced to allow two jurors objectionable to him to be seated.” Id. at 139, 709 S.W.2d at 818. This court affirmed the trial court “because the appellant did not make a record showing the manner in which the jurors he complained of were objectionable.” Id. Specifically, the Watson court stated that "to preserve this error for appeal, we require the appellant to show prejudice, i.e., that he was forced to accept a juror against his wishes,” but that ”[n]o such record was made at the close of jury voir dire.” Id. In Watson, however, the appellant did not object to the two jurors at issue until after the trial began, and after a seated juror was dismissed for misconduct and replaced with an alternate. The basis of this court's affirmance of the trial court was not the lack of a timely objection. We concluded that “[wjhether or not the objection came too late, the appellant did not present to the trial court and has not presented to us any possible basis for finding the last two jurors to have been objectionable.” Id. Thus, Watson does not support the State's argument that a party must make an additional objection at the conclusion of voir dire, and the facts are clearly distinguishable. Here, Adams objected to seating Martin as a juror during voir dire and requested that the trial court dismiss her for cause. Accordingly, this point is preserved for our review.

      . The trial court stated that Adams’s seventeen pages of proffered instructions appeared to be statements of legal principles taken from "case law or head notes or some other legal book or treatise." Further, the trial court found that some of the instructions proffered by Adams incorrectly stated legal issues, and the instructions that did correctly reflect legal principles duplicated the AMI criminal instructions submitted to the jury by the court.