author: Chief Justice CORNELIUS.

text:
    Winston WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 06-99-00076-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 12, 2000.
    Decided Oct. 13, 2000.

      Tracy Davenport, State Counsel for Offenders, Huntsville, for appellant.
    James H. Elliott, Nicole Habersang, Bowie County Asst. Dist. Attys., Texar-kana, for appellee.
    Before CORNELIUS, C.J., GRANT and ROSS, JJ.
   OPINION

Opinion by

Chief Justice CORNELIUS.

Winston Williams was convicted of aggravated assault, enhanced by two prior felony convictions. In accordance with the jury’s recommendation, the trial court sentenced Williams to seventy-five years’ confinement. The evidence showed that Williams assaulted a guard at a Texas Department of Criminal Justice facility during an escape attempt. He contends that he has been subjected to double jeopardy.

Williams contends that Texas law requires each alleged offense to be placed in a separate paragraph in the indictment. He complains because the two enhancing offenses were alleged in a single paragraph in the indictment. The enhancement allegation in the indictment reads as follows:

HABITUAL OFFENDER NOTICE:

and it is further presented to said Court that prior to the commission of the primary offense or offenses set out above, the defendant Winston Williams, was finally convicted of the felony offense of Assault on a Public Servant in the District Court of Bowie County, Texas, in Cause Number 96-F-008-202 on March 5, 1997, and, that prior to the commission of the offense or offenses for which the defendant was convicted as set out above, the defendant, Winston Williams, was finally convicted of the felony offense of Aggravated Robbery in the District Court of Gregg County, Texas, in Cause Number 21,969-B on December 12,1994....

Williams contends that because no single paragraph may statutorily charge more than one offense, the enhancement allegation is invalid, and he is wrongly being punished as a habitual offender. He contends that the heightened punishment constitutes a second punishment for his prior offenses, which violates the prohibition against double jeopardy.

Williams’ argument reflects a misunderstanding of the purpose of an enhancement allegation. The purpose of an enhancement allegation is to provide the accused with notice of the prior conviction on which the State relies. Coleman v. State, 577 S.W.2d 486, 488 (Tex.Crim.App. [Panel Op.] 1979); see also Hall v. State, 619 S.W.2d 156, 158 (Tex.Crim.App. [Panel Op.] 1980). In fact, the Court of Criminal Appeals has held that it is not necessary to allege the enhancing offense in the indictment, though it is permissible and perhaps preferable to do so. Brooks v. State, 957 S.W.2d 30, 34 (Tex.Crim.App.1997). It is sufficient that the enhancement be pleaded somewhere, such as in a motion to amend the indictment. See id. at 32.

Williams relies on Tex.Code Crim.PROc.Ann. art. 21.24(a) (Vernon 1989), but it is inapplicable here. That statute provides that if multiple offenses arise out of the same criminal episode, the offenses may be joined in a single indictment, with each separate offense stated in a separate count, and that a count may contain as many paragraphs as necessary, but no paragraph may charge more than one offense. An enhancement allegation, however, is not a “count” of an indictment, Phillips v. State, 651 S.W.2d 745, 746 (Tex.Crim.App.1983), and need not have the same particularity as a count. Freda v. State, 704 S.W.2d 41, 42 (Tex.Crim.App.1986). Because an enhancement allegation does not constitute a separate count, the indictment of Williams is not defective, and he has not been subjected to excessive punishment. We therefore do not address the arguments regarding preservation of error because there is no error.

Williams’ claim of double jeopardy is without merit. The State alleged and proved two enhancing offenses. Enhanced punishments for repeat offenders do not violate the Double Jeopardy Clause of the United States Constitution. Witte v. United States, 515 U.S. 389, 400, 115 S.Ct. 2199, 132 L.Ed.2d 351, 364 (1995).

The trial court’s judgment is affirmed.

      . U.S. Const, amend. V.


source: Caselaw Access Project

author: Justice NOAH KENNEDY (Assigned).

license: Public Domain

text:
    Ricardo SALDANA, Appellant, v. The STATE of Texas, Appellee.
    No. 13-99-234-CR.
    Court of Appeals of Texas, Corpus Christi.
    Oct. 19, 2000.
    Rehearing Overruled Dec. 14, 2000.
    Kenneth Smith, Ricardo Saldana, Houston, for Appellant.

      John Holmes, Jr., Calvin Hartmann, Kelly Smith, Houston, for the State.
    Before Justices DORSEY, RODRIGUEZ, and KENNEDY.

      . Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex.Gov't Code Ann. § 74.003 (Vernon 1998).

   OPINION

Opinion by

Justice NOAH KENNEDY (Assigned).

This appeal first came to this court based upon an Anders brief. Subsequently, appellant filed a pro se motion for extension of time to file a brief which was granted. After some time elapsed during which no brief was filed, this court entered an order abating the appeal and ordering the trial court to conduct a hearing to determine whether appellant desired to prosecute his appeal, whether he was indigent, and to make appropriate findings and recommendations in accordance with Texas Rule of Appellate Procedure 38.8(b)(2).

A hearing was held at which Mr. Kenneth W. Smith was appointed to represent appellant on appeal. Mr. Smith filed a brief on April 17, 2000 to which the state filed a reply brief on July 17, 2000. Mr. Smith has filed a reply brief to the state’s brief on August 15, 2000.

Appellant was charged with aggravated sexual assault of a child. He pleaded guilty to the indictment without the benefit of a punishment recommendation from the state. His adjudication of guilt was deferred and he was placed on probation for ten years. Subsequently, the trial court found that he had violated the terms of his probation, adjudicated his guilt, and assessed punishment at confinement for ten years.

The current posture of this appeal is that appellant has presented three issues to this court. Issue one is that appellant’s original plea is invalid due to a violation of the ex post facto clause of the United States Constitution. In summary, his complaint is that after he pleaded guilty originally, the state passed the Sex Offender Registration Program Act which requires a person convicted of a sex offense to register with local law enforcement authority in a municipality in which he intends to reside for more than seven days. Tex.Code.Crim.PROC.Ann. art. 62.02(a) (Vernon Supp.2000). Appellant’s second issue is a companion to his first, i.e., appellant was not properly admonished as to the consequences of his plea, that he would have to register under the Sex Offender Registration Program Act.

The state’s reply to the first two issues is that they are waived as not having been raised on appeal from the deferred adjudication. The state cites Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App.1999). Appellant argues in reply that these issues are grounded in events which did not transpire (exist) until after the time to appeal the deferred adjudication order had expired.

With all due respect to Manuel, we are at a loss to know how appellant could have appealed something no one knew about at the time of the deferred adjudication. We address the first two issues from the standpoint of whether the enactment of the Sex Offender Registration Program violates the ex post facto provision of the U.S. Constitution. We think not.

We adopt the reasoning in the state’s brief that the Sex Offender Registration Program does not constitute “punishment” for appellant’s past crimes. Because the registration requirement is remedial in nature, i.e., a statute enacted for the advancement of the public welfare or conducive to the public good, it does not impose “punishment” for constitutional purposes and thus is not susceptible to a claim that the statute violates ex post facto principles. We hold that enactment of new penal laws which appellant has not yet violated, and might not ever violate, does not constitute the enactment of ex post facto laws. We deny the relief sought in issues one and two.

Issue three raises the question of ineffective assistance of counsel at a critical stage of the proceedings. Appellant points out that the revocation occurred on February 16, 1999 and that appellant filed his pro se notice of appeal on March 15, 1999. The result is that appellant was without counsel from his sentence date to the time present counsel was appointed. What occurred thereafter has been recited in the opening paragraphs of this opinion.

Ineffective assistance of counsel is governed by the well settled two-prong rule set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) to be (in summary) (1) did counsel’s representation fall below an objective standard of reasonableness, and (2) if so, is there a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. See also Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App.1986).

We do not consider it necessary to pass on the performance of appellant’s first counsel. The issue fails the second prong of the Strickland test. This appeal has proceeded in a normal fashion. Deference has been shown to counsel at every stage of this appeal. Appellant was allowed to file an out-of-time motion for extension of time to file a pro se brief. He was appointed new counsel to appeal his conviction and this counsel filed both a brief (49 pages) and a reply to the state’s reply brief. We hold that not having counsel between appellant’s conviction and the perfecting of this appeal has not harmed appellant and that the result would not have been different if he had had counsel during the period cited. We deny the relief requested in appellant’s third issue and AFFIRM the judgment of the trial court.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: Justice ROSS.

text:
    Betty BAKER, Appellant, v. GREGG COUNTY, Texas, and Molly Barber, Individually, Appellees.
    No. 06-99-00172-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 5, 2000.
    Decided Oct. 23, 2000.

      Jon R. Ker, Ker & Fisher, PC, Hewitt, for appellant.
    L. Charles Van Cleef, Robert S. Davis, Christi Kennedy/ Flowers, Davis Fraser, Derryberry, Van Cleef, LLP, Tyler, for appellee.
    Before CORNELIUS, C.J., GRANT and ROSS, JJ.
   OPINION

Opinion by

Justice ROSS.

Betty Baker appeals the trial court’s order granting a no-evidence motion for summary judgment filed by Gregg County and the county clerk of Gregg County, Molly Barber. Baker also appeals the granting of a traditional motion for summary judgment filed by Gregg County.

Baker was employed in the county clerk’s office and was terminated from her job on May 5, 1994. In April 1996, she filed suit against the county alleging discrimination on the basis of age, discrimination on the basis of disability, retaliatory firing, wrongful termination, violation of free speech rights, and denial of due process. She also brought suit against Barber, in her individual capacity, ■ alleging violation of free speech rights. After almost three years of discovery, Gregg County and Barber filed a no-evidence motion for summary judgment. Baker filed her response to the motion, attaching certain exhibits. On April 6,1999, after realizing that pages from the Gregg County policy and procedures manual had not been attached to the response, Baker faxed the pages to opposing counsel and to the district clerk, requesting that the clerk file the pages and place them with her response. At the summary judgment hearing on April 12, 1999, Gregg County and Barber objected to the pages on the grounds that they were improper summary judgment evidence and that they were not submitted in a timely manner. The trial court agreed that the policy manual pages were not properly authenticated and stated that they were not proper summary judgment evidence. The court granted the no-evidencé motion on the claim against Barber and the wrongful termination, free speech, and due process claims against Gregg County.

On the following day, a jury was selected and the case proceeded to trial on the remaining claims of age discrimination and retaliatory firing. During the trial, juror misconduct occurred and the court ordered a mistrial. Gregg County then filed a traditional motion for summary judgment as to the two remaining claims, using Baker’s trial testimony as summary judgment evidence. Baker’s response conceded that the retaliatory firing claim should be dismissed, but argued that summary judgment was not appropriate as to the age discrimination claim. After a hearing, Gregg County’s traditional motion for summary judgment was granted.

In eight points of error, Baker contends that the trial court erred by granting the no-evidence motion when that motion did not comply with Tex.R. Crv. P. 166a(i) and by failing to consider the policy and procedures manual as summary judgment evidence. She claims that Tex.R. Civ. P. 166a(f) required that Gregg County and Barber object to any defects in her affidavit and that she be given an opportunity to correct those defects. She also contends that the trial court erred by granting the no-evidence motion for summary judgment with respect to her wrongful termination claim, her free speech claim, and her due process claim. Finally, Baker contends that the trial court erred in granting summary judgment on her age discrimination claim.

In 1997, paragraph (i) was added to Texas Rule of Civil Procedure 166a. This addition created the “no-evidence” motion for summary judgment. By filing a no-evidence motion for summary judgment, the party without the burden at trial can force the opposing party to bring forth some evidence of one or more elements of its claims. A no-evidence motion for summary judgment must specifically state the elements on which there is no proof. Tex.R. Civ. P. 166a(i). “The motion must be specific in challenging the evidentiary support for an element of a claim or defense; paragraph (i) does not authorize conclusory motions or general no-evidence challenges to an opponent’s case.” Tex.R. Civ. P. 166a, cmt.

The rule requires a motion to be specific in alleging a lack of evidence on an essential element of the plaintiffs’ alleged cause of action, but it does not require that the motion specifically attack the evidentiary components that may prove an element of the cause of action. The specificity requirement is designed to avoid conclusory no-evidence challenges to an opponent’s cause of action.

In re Mohawk Rubber Co., 982 S.W.2d 494, 497-98 (Tex.App.—Texarkana 1998, no pet.).

Baker contends that the no-evidence motion for summary judgment filed by Gregg County and Barber is defective because it fails to specifically allege the elements on which Baker lacked evidence. Section II of the motion, entitled “Issues Justifying Summary Judgment,” lists Baker’s claims and states the elements that are lacking in each. The motion, therefore, conforms with Rule 166a(i).

Baker next contends that the pages from the Gregg County policy and procedures manual faxed to the court on April 6, 1999, were improperly excluded as summary judgment evidence. The admission or exclusion of summary judgment evidence rests with the sound discretion of the trial court. New Braunfels Factory Outlet Ctr., Inc. v. IHOP Realty Corp., 872 S.W.2d 303, 310 (Tex.App.— Austin 1994, no writ). “Rulings concerning the admission or exclusion of summary judgment evidence are reviewed under an abuse of discretion standard.” Barraza v. Eureka Co., 25 S.W.3d 225, 228 (Tex.App.—El Paso 2000, pet. denied).

Rule 166a(c) requires that a respondent obtain leave of court to file affidavits or a written response less than seven days before the hearing. Tex.R. Civ. P. 166a(c). Rule 166a(d) allows a respondent to use summary judgment evidence not on file with the court so long as,

copies of the material, appendices containing the evidence, or a notice containing specific references to the discovery or specific references to other instruments, are filed and served on all parties together with a statement of intent to use the specified discovery as summary judgment proofs: ... (ii) at least seven days before the hearing if such proofs are to be used to oppose the summary judgment.

Tex.R. Crv. P. 166a(d). This rule does not require authentication of the evidence. McConathy v. McConathy, 869 S.W.2d 341 (Tex.1994).

Baker argues that Rules 166a(c) and 166a(d) permitted her to fax additional summary judgment evidence to the court for it to consider at the summary judgment hearing. Baker’s argument fails as to both rules because she did not submit the pages to the court at least seven days before the hearing. Baker faxed the pages to the court and opposing counsel on April 6, 1999, and the no-evidence motion was heard on April 12, 1999. In computing time under the Texas rules, the day triggering the period of time is not included. TexR. Civ. P. 4. Therefore, the pages faxed on April 6 were submitted only six days before the April 12 hearing. Her supplementation did not meet the seven-day requirement set out in both Rule 166a(c) and Rule 166a(d). Baker filed neither a motion for leave to amend nor a motion for continuance. Either of these motions, if granted by the trial court, would have given Baker the opportunity to timely supplement her response.

Although Baker’s arguments fail by computing the time requirements, we will briefly address her other arguments. First, Baker contends that according to Rule 166a(c), the trial court should have considered her faxed policy manual pages as a supplement to her motion. Rule 166a(c) applies only to affidavits and written responses; pages from a policy manual qualify as neither. Rule 166a(c) also requires leave of court, which Baker did not seek.

Next, Baker argues that the evidence submitted by fax was properly authenticated through the affidavit attached to her original response. She argues, alternatively, that she was not required to authenticate the evidence under Rule 166a(d). The trial court stated that the material was not proper summary judgment evidence, pointing out that it was not properly authenticated. Since we review the trial court’s admission or exclusion of summary judgment evidence on an abuse of discretion standard, whether the evidence was required to be authenticated is immaterial because it was clearly untimely and not properly before the court.

Rule 166a(f) provides that after a summary judgment has been granted, the party who opposed the motion cannot use a defect in the form of an affidavit as grounds for reversal unless it objected to the defect at the trial level and the other party was given an opportunity to amend the affidavit. Tex.R. Civ. P. 166a(f). Baker claims that this rule required Gregg County and Barber to object to any defects in her affidavit and that she be given an opportunity to correct those defects.

Baker misinterprets Rule 166a(f). Baker’s point on appeal does not fall within the rule because she is not seeking to reverse the trial court on the ground that it considered a defective affidavit as summary judgment evidence. To the contrary, Baker’s main point on appeal is that the trial court erred in not considering evidence that she submitted. Gregg County and Barber did properly object to the evidence at the summary judgment hearing, but they were not required to do so by Rule 166a(f). Rule 166a© gives Baker, the party against whom summary judgment was granted, no opportunity to amend her own evidence. Further, Baker never sought an opportunity to amend her evidence; she simply argued that it was proper without asking the court for permission to amend or file an untimely affidavit.

In Baker’s third point of error, she argues that the trial court improperly granted Gregg County and Barber’s no-evidence motion for summary judgment on her wrongful termination claim. In reviewing a trial court’s granting of a no-evidence motion for summary judgment, this Court reviews the evidence in the light most favorable to the nonmovant. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997).

A no evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.

Id. If the nonmovant presents evidence to create a genuine issue of material fact, the motion should not be granted. Tex.R. Civ. P. 166a(i).

Baker’s entire argument as to why some evidence existed to establish wrongful termination revolved around the “good cause” language contained in the policy and procedures manual. As previously stated, the trial court properly refused to consider that evidence. Since the manual was not before the trial court at the summary judgment hearing, we may not consider it on appeal. Without the policy manual, Baker presented no evidence to support her claim of wrongful termination. Accordingly, we hold that the trial court did not err in granting Gregg County and Barber’s motion for summary judgment with regard to Baker’s wrongful termination claim.

Baker also contends the court erred in rejecting her due process claim. The Fourteenth Amendment to the United States Constitution provides that a person may not be deprived of life, liberty, or property without due process of law. To establish a Fourteenth Amendment violation, a plaintiff must first show that he or she had a protected property interest and then show that proper procedures were not followed to protect that property interest. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71 L.Ed.2d 265, 273 (1982). A property right is “an individual entitlement grounded in state law.” Id. at 455 U.S. 430, 102 S.Ct. 1148. In Texas, employment may be terminated by an employer at will unless a specific agreement to the contrary exists. Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex.1998). A guarantee that a public employee will only be fired for cause creates a property interest in continued employment. Brandy v. City of Cedar Hill, 884 S.W.2d 913, 915 (Tex.App.—Texarkana 1994, no writ).

To avoid a no-evidence summary judgment against her, Baker first needed to establish that she had a protected property interest in her job at the county clerk’s office. The policy and procedures manual was the only document proffered by Baker to establish that she had a property right in her job. As previously discussed, the manual was not properly before the court, and it cannot be considered by this Court in reviewing the trial court’s actions. Disregarding the manual and viewing all other evidence in the light most favorable to the nonmovant, Baker presented no evidence establishing a property right in her continued employment with Gregg County. The trial court did not err in granting Gregg County’s motion for summary judgment with regard to Baker’s due process claim.

Baker next contends the court erred in granting summary judgment with regard to her free speech claim. To establish a First Amendment retaliation claim under 42 U.S.C.A. § 1983 (West Supp. 2000), “Plaintiffs must prove that: (1) Defendants were acting under color of state law; (2) Plaintiffs’ speech activities were protected under the First Amendment; and (3) Plaintiffs’ exercise of their protected right was a substantial or motivating factor in Defendants’ actions.” Harrington v. Harris, 118 F.3d 359, 365 (5th Cir.1997). To prove that speech was protected under the First Amendment, a public employee must demonstrate that the speech involved a matter of public concern and that the employee suffered adverse employment action for speaking on that matter. Id.

Baker again asserts that Gregg County and Barber’s no-evidence motion did not specifically list the elements on which her case was lacking, as required by Rule 166a(i). As previously discussed, the motion did conform with the requirements of Rule 166a(i). Specifically with regard to the free speech claim, the motion stated, “There is no evidence to support a conclusion that the plaintiff spoke on a matter of public concern as opposed to a matter of purely personal interest, or that her alleged speech was a motivating factor for any adverse job action.”

An appellant’s brief “must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex. R.App. P. 38.1(h). When the brief contains no authority to support its argument, a point is inadequately briefed. Bowles v. Reed, 913 S.W.2d 652, 661 (Tex.App.—Waco 1995, writ denied). Rule 38.1(h) and its predecessor, former Rule 74(f), have consistently been found to mean that an appellant presents the court of appeals with nothing to review when he fails to cite any authority for his argument or arguments in his points of error. Id.

After claiming that the trial court should not have considered the no-evidence motion for summary judgment because it lacked specificity, Baker asserts, in two sentences, that the no-evidence summary judgment against her on the free speech claims was improper. Baker only states that her affidavit conformed with Rule 166a(c) and gives no arguments or authorities to persuade this Court that the trial court erred. Baker’s brief presents no specific authority and only generally attacks the judgment rendered by the trial court. Since Baker’s brief does not conform with Rule 38.1(h), this Court will not address it. The trial court did not err in granting the no-evidence motion for summary judgment.

Baker also contends the trial court should not have granted Gregg County’s traditional motion for summary judgment. A traditional motion for summary judgment is proper when the movant establishes that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex.1979); Baubles & Beads v. Louis Vuitton, S.A., 766 S.W.2d 377 (Tex.App.—Texarkana 1989, no writ). The question on appeal is not whether the summary judgment proof raises a fact issue with reference to the essential elements of the plaintiffs cause of action, but whether the summary judgment proof establishes that the movant is entitled to summary judgment as a matter of law. Gonzalez v. Mission Am. Ins. Co., 795 S.W.2d 734, 736 (Tex.1990). Summary judgment for a defendant is proper when the defendant negates at least one element of each of the plaintiffs theories of recovery or pleads and conclusively establishes each element of an affirmative defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993). Because the movant bears the burden of proof, all conflicts in the evidence are disregarded, evidence favorable to the non-movant is taken as true, and all doubts as to the genuine issue of material fact are resolved in favor of the nonmovant. Nixon v. Mr. Property Mgmt., 690 S.W.2d 546, 548-49 (Tex.1985).

Gregg County presented the trial court with two grounds for traditional summary judgment. First, Gregg County argued that it conclusively negated an element of Baker’s prima facie case of age discrimination. Second, Gregg County argued that even assuming, arguendo, that it could not negate Baker’s prima facie case of age discrimination, it had legitimate, nondiscriminatory reasons for firing Baker that Baker could not controvert. Since the trial court did not specify the grounds on which it granted the summary judgment, this Court will affirm the trial court if summary judgment was proper on either ground. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993).

Since Tex. Lab.Code Ann. § 21.001, et seq. (Vernon 1996 & Supp. 2000) was modeled after the federal Age Discrimination in Employment Act (ADEA), Texas courts look to federal case law to analyze age discrimination claims. See M.D. Anderson Hosp. v. Willrich, 28 S.W.3d 22, 2000 Tex. LEXIS 85 (Tex.2000); Jaso v. Travis County Juvenile Bd., 6 S.W.3d 324, 328 (Tex.App.—Austin 1999, no pet.). Texas courts follow the burden shifting analysis set out by the United States Supreme Court in St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), when evaluating discrimination claims. A prima facie case of age discrimination requires proof that the plaintiff (1) is a member of a protected class, (2) was discharged, (3) was qualified for the position from which she was discharged, and (4) was either replaced by someone outside the protected class, replaced by someone younger, or was otherwise discharged because of her age. Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 318-19 (5th Cir.1997); Adams v. Valley Fed. Credit Union, 848 S.W.2d 182, 186 (Tex.App.—Corpus Christi 1992, writ denied). Once the plaintiff has established a prima facie case of age discrimination, the burden shifts to the defendant to show a legitimate, nondiscriminatory reason for the termination. The plaintiff then has the burden to show that the defendant’s proffered reason is pretextual. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Davis v. Chevron U.S.A., Inc., 14 F.3d 1082 (5th Cir .1994); Adams, 848 S.W.2d at 186.

Baker contends that Gregg County failed to negate any element of her prima facie age discrimination claim and that summary judgment was, therefore, improper. As summary judgment proof, Gregg County presented the trial court with Baker’s trial testimony stating that after she, then age forty-nine, was fired, the County hired Glenda Gibson, who was older than Baker. Gregg County argues that the testimony conclusively negated the fourth element of the prima facie age discrimination case because it established that Baker was not replaced by someone outside the protected class, replaced by someone younger, or otherwise discriminated against on the basis of her age. Baker argued at the trial level and also argues on appeal that another aspect of her testimony created a genuine issue of material fact with respect to that element of her age discrimination claim. She points to her testimony stating she was replaced by another county employee, Terri Shepherd, then approximately age thirty.

The main point of contention between the two parties on appeal is the meaning of the term “replaced.” Both parties ask this Court to determine the meaning of the word in the context of Title II of the Texas Labor Code. Baker argues that “replaced” means to take over or assume the terminated employee’s job duties. Gregg County argues that the person hired after the terminated employee is fired “replaces” that employee.

A determination of the meaning of the word “replaced” in the context of Title II of Texas Labor Code § 21.001, et seq., is an issue of first impression in Texas. No provision of the Code defines the word, but Section 21.001 states that the purpose of the statute is to provide state citizens with causes of action set out in federal civil rights statutes and to “secure for persons in this state ... freedom from discrimination in certain employment transactions, in order to protect their personal dignity.” Tex. Lab.Code Ann. § 21.001(4) (Vernon 1996).

In the context of age discrimination, a terminated employee is replaced by another person when the terminated employee’s position is filled by that person and that person is assigned the terminated employee’s former job duties. Consequently, a terminated employee is not replaced by a person who temporarily assumes the terminated employee’s job duties or a person who only takes over a part of those duties. When a terminated employee’s job duties are distributed among other employees after termination, those employees do not replace the terminated employee. This is not to say, however, that to come under this provision of the Labor Code, a terminated- employee must be replaced by a new hire. It is possible for a terminated employee to be replaced by someone who already works for the employer so long as that employee completely takes over the terminated employee’s job duties. This could be a common occurrence in a large company or an entity where promoting from within is the preferred method of hiring. A determination of whether an employee was actually replaced by another requires an inquiry into the job position and duties performed by the terminated employee, and an inquiry into the work performed by the person who is alleged to have replaced that employee.

The summary judgment evidence presented to the trial court consisted of Baker testifying that a younger county employee, Shepherd, took over her job duties and that an older, external applicant, Glenda Gibson, was hired after Baker was terminated. Baker offered Barber’s deposition as summary judgment evidence where Barber also stated that Shepherd replaced Baker. The summary judgment evidence does not provide this Court with a clear picture of what Baker’s duties were before she was fired and what duties Shepherd and Gibson assumed after Baker was fired. Considering the definition of “replaced” articulated above, Gregg County, as the bearer of the burden on summary judgment, was required to do more than simply propose that since a person over the age of forty was hired after Barber’s termination, she was replaced by that person. Only evidence conclusively establishing that Gibson performed the job duties previously held by Baker would negate the fourth element of Baker’s prima facie case. Baker’s testimony that her job duties were taken over by Shepherd prevents Gregg County from conclusively negating the element. Viewing all the evidence in the light most favorable to Baker, and resolving all conflicts in her favor, a reasonable fact finder could determine that she was replaced by Shepherd, a person outside of the protected age group.

Since a genuine issue of material fact existed regarding the prima facie case of age discrimination, Gregg County was required to come forward with summary judgment evidence indicating a legitimate, nondiscriminatory reason for filing Baker. Anderson v. Taylor Publ’g Co., 13 S.W.3d 56, 59 (Tex.App.—Dallas 2000, pet. denied). As its legitimate reasons, Gregg County relies on Baker’s own testimony regarding her job performance, which included making mistakes on the job and having an altercation with another employee, Carol Worrell. To defeat summary judgment, Baker was required to then present evidence that raised a fact issue with regard to Gregg County’s proffered reasons for her discharge. Willrich, 28 S.W.3d 22. Baker’s brief only addresses the existence of her prima facie case and does not point to any evidence that rebuts Gregg County’s proffered, legitimate reasons for her firing. We therefore conclude that Gregg County presented legitimate, nondiscriminatory reasons for firing Baker. Since no genuine issue of material fact exists, the trial court did not err in granting Gregg County’s traditional motion for summary judgment.

Even if Baker had properly preserved the issue of pretext, the result would be the same since there is no evidence sufficient to rebut the legitimate reasons offered by Gregg County. Recently, the United States Supreme Court stated that “a plaintiffs prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves, 120 S.Ct. 2097. The Texas Supreme Court recognized the Reeves case and stated that for purposes of summary judgment in Texas, stray remarks, as well as subjective beliefs, are insuffi-dent to create a fact issue with regard to pretext. Willrich, 28 S.W.3d 22.

The only evidence tending to rebut the legitimate reason offered by Gregg County and to suggest age discrimination is the deposition testimony of Jean Council. Council, also a former employee of Gregg County, stated that she was replaced in the clerk’s office by Baker. Council stated in her deposition that she had heard Barber make a comment that older people did not learn as well as younger people. Council’s testimony does not place Barber’s statement in any specific context. It is apparent that this statement, if made by Barber, was not directed toward Baker or her employment in the clerk’s office. Since the statement was obviously made during Council’s employment at the clerk’s office, it was made before Baker was hired. Barber’s comment bore no relation to Baker. The court did not err in granting the traditional motion for summary judgment.

The judgment is affirmed.

      . Before filing her response, Baker filed her first amended original petition, dropping the disability discrimination claim.

      . The Gregg County policy and procedures manual was essential for Baker’s wrongful termination claim because it established the county’s policy of firing workers only for good cause.

      ."[This comment] is intended to inform the construction and application of the rule.” Tex.R. Civ. P. 166a, cmt.

      . In her brief, Baker also claims that Gregg County and Barber stated the wrong standard for a no-evidence motion for summary judgment. To the contrary, Gregg County and Barber set out the standards for both a traditional motion for summary judgment and a no-evidence motion for summary judgment. Tex.R. Civ. P. 166a does not prohibit such hybrid motions. See Grant v. Southwestern Elec. Power Co., 20 S.W.3d 764, 768 (Tex. App. — Texarkana 2000, pet. filed).

      . See Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex.1996) (affidavit filed two days before hearing without leave of court was improper summary judgment evidence); see Neimes v. Kien Chung Ta, 985 S.W.2d 132, 138 (Tex.App. — San Antonio 1998, pet. dism’d by agr.) (response filed later than seven days before hearing without court order was improper summary judgment evidence).

      . "Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend." Tex.R. Civ. P. 166a(f).

      . Baker also argues that she was able to establish a prima facie case through showing a pattern of discrimination by Gregg County. DeMoranville v. Specialty Retailers, Inc., 909 S.W.2d 90 (Tex.App. — Houston [14th Dist.] 1995), rev’d in part on other grounds, 933 S.W.2d 490 (Tex.1996), cited by Baker, does not support the idea that a pattern of discrimination can support a prima facie case of discrimination. It uses a pattern analysis to determine the deadline for filing a discrimination complaint with the Equal Employment Opportunity Commission.

      . Although not binding on this Court, several federal decisions support this interpretation of the word "replaced” in the context of age discrimination cases. See Godfredson v. Hess & Clark, Inc., 173 F.3d 365 (6th Cir. 1999) (employee is replaced when another is hired or reassigned to perform employee’s duties; redistribution among existing employees is not replacement); LeBlanc v. Great Am. Ins. Co., 6 F.3d 836 (1st Cir.1993) (temporary assignment does not equal replacement); Roper v. Exxon Corp., 11 F.Supp.2d 679 (E.D.La.1998) (transfer of work to other employees is not replacement by those employees).


author: Justice GRANT.

text:
    METAL INDUSTRIES, INC. OF CALIFORNIA d/b/a Kwik-Way Corporation, Appellants, v. Annie M. FARLEY, Appellee.
    No. 06-99-00068-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Sept. 14, 2000.
    Decided Oct. 24, 2000.

      John R. Mercy, Mercy, Carter & Elliott, LLP, Texarkana, for appellant.
    Kenneth L. Ross, Lance W. Hinson, Ross, Hudgens & Graves, Longview, for appellee.
    Before CORNELIUS, C.J., GRANT and HILL, JJ. (JOHN HILL, Sitting by Assignment).
   OPINION

Opinion by

Justice GRANT.

Annie M. Farley became an employee of Metal Industries, Inc. of California d/b/a Kwik-Way Corporation when it purchased the Mount Pleasant factory at which she had been employed for the previous fifteen years doing work involving repetitive motions with her hands. When Ms. Farley began experiencing problems with her hands, she reported it to her supervisor and asked to see a doctor. Her request was immediately granted, and she was ultimately diagnosed with carpal tunnel syndrome, for which she underwent surgery on both wrists and a subsequent surgery to correct a resulting finger drop.

Ms. Farley qualified for light-duty release and returned to work after an absence of approximately two months. In compliance with Ms. Farley’s light-duty release requiring that she lift no more than ten to fifteen pounds and refrain from repetitive motions with her hands, Metal Industries first provided her with clerical duties and then with work on a foot-operated machine in the screen door department. This latter job required repetitive motions with her hands to a lesser extent than any of her previous assembly-line work at the facility. During this month in the screen door department, Ms. Farley was relieved of the regular quota requirement, and other employees were instructed to do her lifting for her.

Two months after her return and one month after she began working in the screen door department, Ms. Farley’s doctor ordered that she attend a one-month work hardening program, which ultimately enabled her to increase her work abilities to lifting twenty to twenty-five pounds. Ms. Farley returned to work operating the foot-operated machine in the screen door department for approximately one month and worked all assigned shifts with no complaints from her superiors, prior to the May 1996 meeting with plant manager Jerry Hunter at which her employment was terminated.

Testimony regarding what happened in the May 1996 meeting differs. While Ms. Farley testified Mr. Hunter informed her she would be permanently laid off, Mr. Hunter testified that Ms. Farley requested to be laid off because she felt that she could no longer do the work.

Ms. Farley brought an action under Texas Labor Code §§ 451.001 through 451.003 (the Anti-Retaliation Statute), which prohibits discriminatory practices against employees who have been injured on the job, instituted or caused to be instituted in good faith any proceeding under the Texas Workers’ Compensation Act, hired a lawyer, filed a workers’ compensation claim, or testified in a workers’ compensation proceeding. Tex.Lab.Code Ann. §§ 451.001-.003 (Vernon 1996). Following a full jury trial on the merits, the jury returned a verdict finding that Metal Industries had discharged or discriminated against Ms. Farley in violation of the Anti-Retaliation Statute. The jury assessed compensatory damages at $108,500, representing past and future lost earnings and benefits and mental anguish. Pursuant to the jury verdict, the trial court rendered judgment for Ms. Farley for $121,194.71. Metal Industries appeals the judgment and damages award.

On appeal Metal Industries contends (1) the evidence was legally and factually insufficient to support the jury’s finding of a causal link between Ms. Farley’s workers’ compensation claim and her discharge; (2) the evidence did not support an award of past and future lost earnings and benefits that extend beyond the date of the plant’s closure; (3) the evidence did not support an award of mental anguish damages.

In its first point of error, Metal Industries contends that the evidence did not support the jury’s finding that it violated the Anti-Retaliation Statute. To prove a violation of the Anti-Retaliation Statute, a plaintiff is required to prove as part of her prima facie case a causal link between the filing of her workers’ compensation claim and her discharge. Metal Industries contends Ms. Farley’s evidence on this point was legally insufficient, pointing to the lack of direct evidence of such a causal link and arguing that the small amount of circumstantial evidence presented amounts to no evidence at all. Metal Industries also attacks the factual sufficiency of the evidence contending that, due to a failure of proof on the causation issue, the great weight of the evidence dictates a finding it did not violate the Anti-Retaliation Statute.

In reviewing the evidence for legal sufficiency, we consider only the evidence and inferences supporting the jury’s findings and disregard all evidence and inferences to the contrary. Redman Homes, Inc. v. Ivy, 920 S.W.2d 664, 667 (Tex.1996). Anything more than a scintilla of evidence is legally sufficient to support the jury’s finding. Read v. Scott Fetzer Co., 990 S.W.2d 732, 737 (Tex.1998). As such, we must determine whether the proffered evidence as a whole rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Transp. Ins. Co. v. Moñel, 879 S.W.2d 10, 25 (Tex.1994).

This court has previously held that the Anti-Retaliation Statute requires an employee to prove a causal link between the filing of a workers’ compensation claim and subsequent discharge. Hogue v. Blue Bell Creameries, L.P., 922 S.W.2d 566, 569 (Tex.App.—Texarkana 1996), writ denied, 930 S.W.2d 88 (Tex.1996) (per curiam). The Texas Supreme Court has established the standard of causation for this purpose: the employee’s protected conduct must be such that, without it, the employer’s prohibited conduct would not have occurred when it did. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). Thus, Ms. Farley was required to prove that, but for her filing of a workers’ compensation claim, Metal Industries would not have fired her when it did. Circumstantial evidence that may show this causal link includes (1) knowledge of the compensation claim by those making the decision to terminate; (2) a negative attitude toward the employee’s injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment of the injured employee in comparison to similarly situated employees; and (5) evidence that the stated reason for discharge was false. Id. at 451. Moreover, at least two appellate courts ruling on the issue since Continental Coffee have interpreted that decision to mean strong evidence showing the stated reason for discharge is false is alone a sufficient basis from which to infer a causal link between an employee’s workers’ compensation claim and subsequent discharge. See Wyler Indus. Works, Inc. v. Garcia, 999 S.W.2d 494, 501 (Tex.App.—El Paso 1999, no pet.); Duhon v. Bone & Joint Physical Therapy Clinics, 947 S.W.2d 316, 319 (Tex.App.-Beaumont 1997, no writ).

With respect to point (1), it is undisputed that the parties making the decision to fire Ms. Farley were aware that she had filed a workers’ compensation claim. Regarding point (3), Metal Industries’ Director of Human Resources, Doug Bartal, testified that Metal Industries had a policy never to terminate an employee injured on the job unless the employee chose to take a voluntary termination and that the company’s aggressive back-to-work policy dictated employees be given every opportunity to continue on light duty. Crediting Ms. Farley’s testimony, as we must in a no-evidence challenge, that she did not choose to terminate her employment, but rather that she was involuntarily terminated, we can only conclude Metal Industries violated its established company policies by placing Ms. Farley on permanent layoff against her will. In a final point regarding company policy, although Ms. Farley suggests Metal Industries departed from its established company policies by not offering her medical leave so that she could maintain her insurance benefits for some further period, such a departure from policy would be demonstrated rather by a refusal to grant such leave had she requested it, which she did not do.

Finally, with regard to point (4), Ms. Farley presented evidence that Metal Industries’ stated reason for discharge was false. Although Metal Industries takes the position that she quit, Ms. Farley testified that Mr. Hunter told her he was placing her on permanent layoff due to cutbacks. Mr. Hunter testified, however, that he used the word “permanent” on her termination notice so that he would be able to hire someone to replace Ms. Farley. He also testified that he designated “permanent layoff’ as the reason for Ms. Farley’s departure to aid her in a claim for unemployment benefits, but later acknowledged that whether a layoff was permanent was immaterial to a claim for unemployment benefits. Metal Industries’ response to the Texas Workforce Commission listed “reduction in workforce” as the reason for Ms. Farley’s termination. But Metal Industries’ personnel director, Rhonda Kittle, testified that Metal Industries’ response to the Texas Workforce Commission’s inquiry was untrue. Finally, evidence showed that 101 people had been hired between the date of Ms. Farley’s discharge and the end of 1997. This conflicting evidence permits an inference that Metal Industries’ stated reason for discharge, assuming it did discharge Ms. Farley, was false.

Referring to the above five-point list, Ms. Farley presented some evidence that the parties making the decision to fire her were aware of her claim, that Metal Industries did not adhere to established company policies, and that the stated reason for discharge was false. Applying the legal sufficiency standards stated above, we find this evidence sufficient to support the jury’s finding that Metal Industries violated the Anti-Retaliation Statute.

When considering a factual sufficiency challenge to a jury’s verdict, we must consider and weigh all of the evidence, not just that evidence which supports the verdict. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.1998). We set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Id. at 407. We may not pass on the witness’s credibility or substitute our judgment for that of the jury, even if the evidence would clearly support a different result. Id.

Metal Industries contends that the jury’s finding of a causal link between Ms. Farley’s termination and her workers’ compensation claim is contrary to the great weight of the evidence. Ms. Farley’s circumstantial evidence on the causation issue was met with testimony of Metal Industries’ employees who explained the departure from established company policies and the false statements regarding the reason for her discharge as measures taken to help Ms. Farley secure unemployment benefits. They further testified that she was not terminated, but rather that she quit. Nevertheless, it would not have been against the great weight and preponderance of the evidence for the jury, crediting Ms. Farley’s testimony and discounting that of Metal Industries’ employees, to have inferred a causal connection between her discharge and her workers’ compensation claim. We overrule point one.

In its second and third points of error, Metal Industries contends that even if Ms. Farley did properly prove a violation of the Anti-Retaliation Statute, the evidence does not support the damages award. Metal Industries argues that an award of damages for past and future lost earnings and benefits beyond March 81, 1998, the date on which Metal Industries ceased operations at its plant in Mount Pleasant, is improper. Metal Industries further argues that the evidence does not support an award of mental anguish damages.

The proper measure of lost wages damages for a violation of the Anti-Retaliation Statute is the amount the employee would have earned had she not been discharged in violation of the statute. See Tex.Lab.Code Ann. § 451.002(a); Canutillo Indep. Sch. Dist. v. Olivares, 917 S.W.2d 494, 500 (Tex.App.—El Paso 1996, no writ). With respect to future lost wages, a plaintiff is not required to prove an exact amount, but only facts from which a jury can determine the proper amount. Goodman v. Page, 984 S.W.2d 299, 305 (Tex.App.— Fort Worth 1998, pet. denied) (citing Mclver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 712 (1943)).

Metal Industries contends Ms. Farley cannot as a matter of law recover damages for lost wages after March 31, 1998, because it ceased operating its Mount Pleasant plant on that date, and she would consequently no longer have been a Metal Industries employee as of that date. It cites Stevens v. Nat’l Educ. Ctrs., Inc. in support of its argument. 990 S.W.2d 374, 378 (Tex.App. — Houston [14th Dist.] 1999), pet. ref'd, 11 S.W.3d 185 (Tex.2000) (per curiam). In its review of the damages award in an Anti-Retaliation Statute case, the Stevens court found the evidence legally insufficient to support an award of damages beyond the date of a school’s closing because no evidence was presented that the school had a formal transfer policy or that it had on closing transferred any of its employees to other schools. In the instant case, Wing Industry employees testified that Wing Industries, the company to whom Metal Industries leased the premises and equipment on March Bl, 1998, now employs substantially all of Metal Industries’ former employees doing near or about their former jobs at near or about their former wages and benefits. The evidence shows ownership of the Mount Pleasant plant had changed at least two times during Ms. Farley’s tenure, and she had always maintained her employment, as had most other plant employees. Moreover, Ms. Farley testified that she had no difficulty working in the screen door department after the work hardening program and that she intended to work at the Mount Pleasant facility until retirement. Although Wing Industries had no legal obligation to hire Ms. Farley, these facts show that she established at least a probability that it would have done so had she been a Metal Industries employee when Wing Industries leased the facilities. Ms. Farley also offered the testimony of an expert, Dr. Tim Kane of the University of Texas at Tyler, on the issue of calculating past and future lost earnings. Ms. Farley presented facts from which the jury could determine a proper damages award. Her testimony that she planned to continue at the plant, together with testimony that almost all Metal Industries employees maintained their employment after the premises were leased to another manufacturer amounts to more than a scintilla of evidence in support of the jury’s damages award.

Metal Industries contends the evidence does not support the jury’s award of mental anguish damages. A legal sufficiency challenge on this point must fail where a plaintiff has introduced either “direct evidence of the nature, duration, and severity of mental anguish, thus establishing a substantial disruption in the daily routine” or other evidence of “a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger.” Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995). The Texas Supreme Court has acknowledged the difficulty of the reviewing court’s task, noting that we must “distinguish between shades and degrees of emotion.” Id.

Ms. Farley offers her testimony and that of Sheila Littleton in support of the award of mental anguish damages. Ms. Littleton, Ms. Farley’s workers’ compensation adjustor, testified that Ms. Farley seemed to be distressed that she was losing her job; Ms. Farley testified on the issue of mental anguish as follows:

Q ... How did that make you feel, what he was doing, terminating you permanent?
A Well, the word “permanent” means “that’s it” and it was hurtful.
I automatically felt that I was less of a person that [sic] I was before, it hurt my self esteem, I was devastated and scared, angry, I felt like I had really been betrayed because I had went through [the work hardening] program hoping to get my job back or a job that they thought I could do.
It effected [sic] my sleep, my nerves, I was irritable, hard — it’s hard to cope with a disappointment like that. I was terribly disappointed.

While this evidence amounts to more than a scintilla in support of the jury’s award of mental anguish damages, it fails to establish by direct evidence a substantial disruption in Ms. Farley’s daily routine as required to survive a factual sufficiency challenge. Absent such a showing by direct evidence, we must evaluate whether circumstantial evidence demonstrates a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger.

In addition to experiencing feelings of loss of self-esteem, anger, devastation, and betrayal, Ms. Farley testified to experiencing loss of sleep and effects on her nerves. Applying the Texas Supreme Court’s standards and taking into consideration the application that has been made by other appeals courts of the state, we find the jury’s finding that Ms. Farley suffered compensable mental anguish is not against the great weight and preponderance of the evidence. See Texas Animal Health Comm’n v. Garza, 27 S.W.3d 54 (Tex.App.-San Antonio 2000, no pet. h.) (upholding mental anguish damages where plaintiff presented testimony that he was depressed and irritable and experienced sleeplessness and hives); Wyler Indus. Works, 999 S.W.2d at 509 (upholding mental anguish damages where plaintiff testified to a loss of self-esteem, humiliation, marital discord, and sleeping difficulties); Stevens, 990 S.W.2d at 379 (upholding mental anguish damages award where plaintiff testified to feelings of devastation and depression and to a loss of weight); Goodman, 984 S.W.2d at 306 (upholding mental anguish damages award where plaintiff testified to feelings of devastation and humiliation and experienced stomach problems). Thus, we overrule point three.

We affirm the trial court’s judgment.

ROSS, J., not participating.

      . The filth type of circumstantial evidence, evidence that the stated reason for discharge was false, has not heretofore been used by this court in this type of case. See, e.g., Hogue

        v. Blue Bell Creameries, L.P., 922 S.W.2d 566, 569 (Tex.App.—Texarkana 1996), writ denied, 930 S.W.2d 88 (Tex.1996) (per curiam). In Continental Coffee Prods, v. Cazarez, the Texas Supreme Court quotes for purposes of review an appeals court standard that includes this type of evidence and neither approves nor disapproves of the list. The Texas Supreme Court did, however, go on to rely heavily on this type of evidence in upholding the appeals court. Cont’l Coffee Prods, v. Cazarez, 937 S.W.2d 444, 451 (Tex.1996). Moreover, other appeals courts that have addressed the issue have included this type of circumstantial evidence in their analyses. See, e.g., Jenkins v. Guardian Indus. Corp., 16 S.W.3d 431, 436 (Tex.App.-Waco 2000, no pet. h.); Wyler Indus. Works, Inc. v. Garcia, 999 S.W.2d 494, 501 (Tex.App.—El Paso 1999, no pet.); Gorges Foodservice, Inc. v. Huerta, 964 S.W.2d 656, 665 (Tex.App.—Corpus Christi 1997, no writ); Cont’l Coffee Prods. Co. v. Cazarez, 903 S.W.2d 70, 78 (Tex.App.—Houston [14th Dist.] 1995), affd in part, rev'd in part on other grounds, 937 S.W.2d 444 (Tex.1996). Cf., Texas Animal Health Comm’n v. Garza, 27 S.W.3d at 59-60 (Tex.App.—San Antonio 2000, no pet. h.). As such, and because it is pertinent to the facts of this case, we include it in our analysis.

      . Ms. Farley points to no competent evidence in the record that Metal Industries displayed a negative attitude toward her injured condition or that she was subject to discriminatory treatment in comparison to similarly situated employees. Indeed, as Metal Industries points out, it made every attempt to expediently address her injury and to accommodate Ms. Farley both before and after her surgeries.


author: DONALD R. ROSS, Justice.

text:
    Bruce Wayne CORBIN, Appellant, v. The STATE of Texas, Appellee.
    No. 06-99-00158-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Nov. 1, 2000. ,
    Decided Nov. 2, 2000.

      Lew Dunn, Longview, for appellant.
    C. Patrice Savage, Asst. Dist. Atty., William M. Jennings, Gregg County Dist. Atty., Longview, for State.
    Before CORNELIUS, C.J., GRANT and ROSS, JJ.
   OPINION

DONALD R. ROSS, Justice.

Bruce Corbin appeals from his conviction in a bench trial for the offense of possession of cocaine with intent to deliver. One felony enhancement was proven, and the court sentenced Corbin to thirty years’ imprisonment and a $10,000.00 fine. Cor-bin contends, on state and federal constitutional grounds, that the trial court erred in overruling his motions to suppress evidence and to suppress his written statement.

Corbin was stopped for a traffic violation. The arresting officer, Deputy James Benson, testified that when Corbin got out of his car he smelled what he believed to be the odor of marihuana smoke. He also testified that Corbin did not appear intoxicated and that he did not conduct sobriety tests. Benson did a pat-down search, which revealed nothing except a device on Corbin’s back which Corbin explained was a back brace that he had to use following an injury. The officer asked Corbin if he had ever been arrested, and Corbin told him he had not. While Benson was preparing a warning citation, he received information that Corbin had been arrested a number of times, including numerous arrests for narcotics.

At that point, Benson searched Corbin more thoroughly and found a package of cocaine taped to Corbin’s back. He then arrested Corbin. The next morning Cor-bin was interrogated by Melanie Thompson. She testified that she took his statement, typed it, and let him read it. However, on cross-examination she was confronted by the written document, which indicated that the document was read to Corbin because he was unable to read or write. Thompson then corrected her prior testimony and stated that she had forgotten the situation. She then testified that the document correctly reflected that the statement was read to him by a secretary.

Corbin first contends that the officer had no probable cause to initially stop and detain him because he had not violated any traffic law. To address this issue as formulated, we first look to see if there is evidence that he had violated a traffic law. The State relies on evidence of a violation of Tex.Transp.Code Ann. § 545.060(a) (Vernon 1999), which provides that, “An operator on a roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely.”

Officer Benson testified that at about 1:00 a.m. he saw Corbin driving at a rate of fifty-two miles per hour (in a sixty-five-mile-per-hour zone), cross over the line on the shoulder of the road, and travel across the white stripe for probably twenty feet, and then re-enter the lane of travel he had been in. He testified that he chose to stop Corbin based on the lateness of the night, the fact that Corbin was traveling over ten miles below the speed limit, and because Corbin had moved out of his lane.

Corbin argues that the initial traffic stop was a violation of both federal and state constitutional rights because there was no probable cause to support the stop. His federal argument is based on the Fourth Amendment, which ensures the right of the people to be secure against unreasonable searches and seizures. Under the Fourth Amendment, a temporary detention constitutes a seizure of a person within the meaning of the provision. To avoid constitutional entanglements, the stop must be reasonable in nature and based on a reasonable suspicion.

Similarly, under Article I, § 9 of the Texas Constitution and its companion statute, Tex.Code Crim.PROC.Ann. art. 1.06 (Vernon 1977), people are to be secure from all unreasonable seizures or searches.

In the analysis of a traffic stop, the question is whether the State proved the reasonableness of the stop. See Russell v. State, 717 S.W.2d 7, 9-10 (Tex.Crim.App.1986). An officer may stop and briefly detain a person for investigative purposes even in the absence of evidence rising to the level of probable cause if the officer has a reasonable suspicion supported by articulable facts, which taken together with rational inferences from those facts, lead him to conclude that the person is, has been, or soon will be engaged in criminal activity. Woods v. State, 956 S.W.2d 33, 35 (Tex.Crim.App.1997), citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In determining whether the intrusion was reasonable, an objective standard is applied. The question is whether the facts available to the officer at the moment of the seizure or search would lead a person of reasonable caution to believe that the action taken was appropriate. Davis v. State, 947 S.W.2d 240, 243 (Tex.Crim.App.1997). Because the facts are not in dispute, we make a de novo determination of whether those facts give rise to the requisite “reasonable suspicion.”

This Court has addressed several situations similar to the case before us, but are not directly on point. In Zervos v. State, 15 S.W.3d 146, 152 (Tex.App.—Texarkana 2000, pet. ref'd), the appellant was stopped because of the officer’s “reasonable belief’ that he had violated a traffic law. Tex. Transp.Code Ann. § 545.104 (Vernon 1999) states that “[a]n operator shall use the signal ... to indicate an intention to turn, change lanes, or start from a parked position.” The officer testified that Zervos changed lanes without signaling. This is in apparent violation of a mandatory statute, and on its face justifies the officer in having the requisite reasonable belief that a traffic law had been violated.

In Powell v. State, 5 S.W.3d 369 (Tex. App.-Texarkana 1999, pet. ref'd), cert. denied, — U.S. —, 120 S.Ct. 1976, 146 L.Ed.2d 805 (2000), as acknowledged by the majority opinion, the appellant did not dispute whether the officer had reasonable suspicion to stop him based on his observation that Powell failed to maintain a single lane of travel in violation of Section 545.060 of the Transportation Code. This Court opined in dicta that the officer nonetheless had the authority to stop and detain him for that violation. We went on to say that it was sufficient to show that the officer reasonably believed that a violation was in progress, citing as authority Drago v. State, 553 S.W.2d 375, 377-78 (Tex. Crim.App.1977); Edgar v. Plummer, 845 S.W.2d 452 (TexApp.—Texarkana 1993, no wilt); and Valencia v. State, 820 S.W.2d 397 (TexApp. — Houston [14th Dist.] 1991, pet. refd).

Each of the cases we cited involved conduct that violated a mandatory statute. In Drago, the defendant turned out of a wrong lane in violation of posted signs regulating his actions. In Plummer, a civil suit, the officer testified that he had stopped the plaintiff because he was speeding (in violation of a mandatory statute) and also because he drove over a shoulder stripe. In Valencia, the defendant was stopped for blocking traffic and swerving across the road into oncoming traffic, both of which violate mandatory statutes.

To the extent these cases rely on the “failure to maintain a single lane” statute (Transportation Code § 545.060(a)) as justification for the stops, such justification may have been overstated. This statute does not provide that any movement over a dividing line between lanes or between a lane and a shoulder is necessarily a criminal offense. Rather, this statute presumes a certain degree of common sense will be applied to the review of a driver’s actions by requiring that a driver shall drive “as nearly as practical entirely within a single lane .... ” and that he may not move from the lane unless the movement can be made safely. Tex.TRAnsp.Code Ann. § 545.060(a).

The application of this particular statute was discussed in detail by the Austin Court of Appeals in Hernandez v. State, 983 S.W.2d 867, 871 (Tex.App.—Austin 1998, pet. ref'd). In that case, the court recognized that the statutory language shows an intent to create a violation only

when the vehicle fails to stay within its lane and the movement is not safe or is not made safely. The court’s decision is buttressed by the vagueness of the requirement that the driver drive within a single lane “as nearly as practical,” which is language notably different than that in the mandatory statutes mentioned above. As pointed out in both Hernandez and Gajewski v. State, 944 S.W.2d 450, 452 (Tex.App.—Houston [14th Dist.] 1997, no pet.), however, this does not give a driver free rein to weave all over a road in the absence of other traffic, because although not an inherently illegal act, when an officer observes other factors, the officer may stop the driver based on a reasonable suspicion that the driver has lost control of his mental or physical faculties.

In this case, the stop was nominally for a traffic violation consisting of a driver crossing over a side stripe for twenty feet. The officer testified that he observed the car make this movement at a speed that was well below the posted limit. While this testimony established that the driver did not drive “entirely within a single lane,” it did not establish that this movement was made unsafely. We conclude that the officer could not reasonably rely on Section 545.060(a) to justify this stop. However, the officer explained that other factors went into his decision to stop the car. Based on a recent decision by the Texas Court of Criminal Appeals, we believe that at least one of those factors justified the officer’s stop of Corbin’s car.

The Texas Court of Criminal Appeals has recently recognized the existence of the community caretaking function in Texas. The court has decided that “[a]s part of his duty to ‘serve and protect,’ a police officer may stop and assist an individual whom a reasonable person-given the totality of the circumstances — would believe is in need of help.” Wright v. State, 7 S.W.3d 148, 151 (Tex.Crim.App.1999). In that case, the court set out a nonexclusive list of four factors it believed would aid in determining whether a police officer acted reasonably in stopping an individual to determine if that person needed assistance:

(1) the nature and level of the distress exhibited by the individual;
(2) the location of the individual;
(3) whether or not the individual was alone and/or had access to assistance independent of that offered by the officer; and
(4) to what extent the individual — if not assisted — presented a danger to that person’s self or to others.

Wright, 7 S.W.3d at 152.

The officer in this case testified that he stopped the car to determine whether Cor-bin was sleepy or intoxicated and therefore was not safe to be driving. He stated that “at this time of the morning I was concerned that Mr. Corbin had possibly been drinking or was falling asleep. Coupled with the fact that he left his lane of travel, he was traveling at a speed of, I believe, 52 miles per hour in a 65-mile-per-hour speed zone, which is quite a whole lot less.” He also testified that if Corbin had left his lane of travel “shortly after he did the first time,” he could have collided with concrete columns at an overpass.

In applying the factors set out by Wright, in this case the officer saw Corbin drift over a side stripe for twenty feet and while following him for approximately a mile before catching up to him saw no other variations from the norm. The nature and level of distress exhibited by the individual was thus very low. The location of the individual was on a somewhat isolated stretch of interstate highway, which would suggest the unavailability of immediate assistance should any be required. This factor rates somewhat higher, but still fairly low. The individual was alone in the vehicle, and thus had no access to other help either in remaining awake or being assisted if necessary. Finally, as we noted above, the officer testified that had the driver left his lane shortly after the time that he did, he could have possibly hit concrete columns at a particular overpass.

The evidence could be taken to show that the driver was having difficulty staying awake. Applying the factors set out in Wright, we conclude that given the totality of the circumstances, the officer could have reasonably believed that the driver was in need of help and stopped the vehicle to make this determination. Therefore, the stop was reasonable pursuant to the officer’s exercise of the community caretaking function. Corbin’s contentions to the contrary are overruled.

Corbin next contends that the trial court violated his federal and state constitutional rights by admitting his statement. He contends that the court’s determination was in error because of the dichotomy between the testimony of Melanie Thompson on direct examination and on cross-examination. Thompson interrogated Cor-bin and took a statement from him which she transcribed. On direct examination she testified that she let Corbin read the statement and determine its correctness. On cross-examination, she reviewed the last page of the statement and then corrected her testimony. She stated that she had forgotten that in this case the defendant was unable to read. She then testified that Corbin had not read the transcription, but instead a secretary in the office had read the statement to him and he had initialed each paragraph as she read it.

At a suppression hearing, the trial court is the exclusive trier of fact and judge of the credibility of the witnesses, and our review of the judge’s ruling is limited to a determination of whether the trial court abused its discretion. The general rule is that an appellate court should afford almost total deference to a trial court’s determination of the historical facts that the record supports, especially when the trial court’s fact findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We are also to afford such deference to a trial court’s ruling on the “application of law to fact questions,” also known as “mixed questions of law and fact,” if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Hernandez v. State, 957 S.W.2d 851 (Tex.Crim.App.1998); see Guzman, 955 S.W.2d at 89.

In this case, the witness did change her testimony on reviewing the written document and realizing that she had made a mistake in her testimony. It was within the purview of the trial court as the finder of fact in this proceeding to determine in which instance her testimony was correct. As stated above, we must defer to the trial court’s determination where its decision is based on the credibility and demeanor of the witness. Error has not been shown.

Corbin also contends that the taking of his statement violated Article I, § 10 of the Texas Constitution and Tex.Code Crim.PROC.Ann. art. 38.21 (Vernon 1977), art. 38.22 (Vernon 1977 & Supp.2000). In a brief argument under that contention he complains that the State faded to prove that Corbin knowingly, intelligently, and voluntarily waived the rights enumerated in Article 38.22, but does not set out any particular failing in this regard. On review of the record, we find no argument in this respect before the trial court and do not find where any contention under the statute was presented to the trial court for review. Error is not preserved for review if it varies from the objection. Tex. R.App.P. 33.1; Martinez v. State, 22 S.W.3d 504, 507 (Tex.Crim.App.2000). The contention of error is overruled.

The judgment is affirmed.

      . That case goes on to opine that a person may be arrested for failing to wear a seat belt, a holding that (in another case) is presently on review before the United States Supreme Court. The Fifth Circuit held in Atwater v. Lago Vista, 165 F.3d 380 (5th Cir.1999), that despite the existence of a Texas statute arguably authorizing arrest, a police officer may not arrest for such a minor violation as the failure to wear a seat belt. The court granted a rehearing en banc and reversed the panel decision at 195 F.3d 242. The United States Supreme Court has granted certiorari. - U.S. -, 120 S.Ct. 2715, 147 L.Ed.2d 981 (2000).

      . See also Ehrhart v. State, 9 S.W.3d 929, 930-31 (Tex.App. — Beaumont 2000, no pet.); State v. Arriaga, 5 S.W.3d 804, 806 (Tex. App. — San Antonio 1999, pet. refd); State v. Tarvin, 972 S.W.2d 910 (Tex.App. — Waco 1998, pet. refd).

      . Atkinson v. State, 848 S.W.2d 813, 815 (Tex. App. — Houston [14th Dist.] 1993, no pet.) (holding that the elements of an offense under this statute include both failure to operate within a marked lane and moving from that lane without first ascertaining that the movement can be made with safety).


author: CORNELIUS, Chief Justice.

text:
    John Wayne CHARLESTON, Appellant, v. The STATE of Texas, Appellee.
    No. 06-99-00141-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 26, 2000.
    Decided Nov. 2, 2000.

      Ralph K. Burgess, Norton Burgess, LLP, Texarkana, for appellant.
    Randal Lee, Crim. Dist. Atty., Tina M. Richardson, Cass County District Attorney’s Office, Linden, for State.
    Before CORNELIUS, C.J., GRANT and ROSS, JJ.
   OPINION

CORNELIUS, Chief Justice.

John Wayne Charleston appeals his jury conviction for aggravated robbery. Charleston presents three points of error. First, he asserts there is legally and factually insufficient evidence to support the conviction. Second, he contends his trial attorney’s failure to move for a directed verdict constituted ineffective assistance of counsel. Finally, he argues that the trial court erred in denying his motion to disqualify his attorney.

On the morning of December 16, 1998, Nelva Whatley received a telephone call from a man she believed was an employee of the local gas company. The man asked her to wait for him so he could check her home’s gas valves and have her sign paperwork. At about 8:00 a.m., the man, later identifed as Charleston, arrived at the Whatleys’ home. He was driving a white truck similar to those owned by the gas company, and he was dressed in what appeared to be a uniform. He used a meter to inspect the home and tightened a gas valve with a wrench. He then told Whatley that he was going to go to his truck to get the paperwork. At that point, Whatley walked into the bathroom to get a tissue. When she returned to the living room, Charleston grabbed her, held the wrench over her head, and told her she was being robbed. He ordered her to lie on the floor, taped her wrists together, and took the rings off her fingers. Charleston then asked Whatley the location of her safe. After Whatley told him she had no safe, he asked where her money was. She told him it was in her car, which was parked in a garage separate from the house. Charleston forced Whatley to walk with him to the car and show him where the money was located. He took the money, and as the two walked back to the house, Whatley noticed that Charleston was driving a white pickup with license plates bearing the numbers 1-9-2. Charleston once again forced Whatley onto the floor and this time placed a rocking chair over her. He grabbed her purse, ran out of the house, and drove away.

After she was certain Charleston was gone, Whatley ran through the woods to a neighbor’s home and called her husband; he then called 9-1-1 and reported the attack to the police. A few hours later, based on information provided by What-ley’s husband, Charleston was approached by a state trooper. Charleston was driving a white truck with license plates bearing the numbers 1-9-2 and met the description of Whatley’s assailant. Whatley was called to the police station, where she identified Charleston as her attacker by pointing out his picture in a police photograph book.

The grand jury of Cass County indicted Charleston, and James Verschoyle was appointed as his attorney. Before trial, Charleston filed a pro se motion to disqualify Verschoyle, alleging a conflict of interest because Verschoyle had represented Whatley’s husband in business dealings five years earlier. The court denied the motion, and the case proceeded to trial. The jury found Charleston guilty of aggravated robbery, and the court sentenced him to thirty-five years’ confinement.

Charleston contends there is legally and factually insufficeint evidence to show that he used a deadly weapon in the attack, so a conviction for aggravated robbery cannot stand. In reviewing a legal sufficiency question, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App.1995).

Charleston was charged with aggravated robbery and robbery. A person commits robbery if, in the course of committing theft and with the intent to obtain or maintain control of property, he knowingly or intentionally threatens or places another in fear of imminent bodily injury or death. Tex. Pen.Code Ann. § 29.02 (Vernon 1994). A person commits aggravated robbery if he uses or exhibits a deadly weapon in the course of a robbery. Tex. Pen.Code Ann. § 29.03 (Vernon 1994). The indictment alleged that Charleston “used and exhibited a deadly weapon, to-wit: a wrench.”

A wrench is not a deadly weapon per se, so the State was required to prove that, in the manner of its use or intended use, it was capable of causing death or serious bodily injury. Tex. Pen.Code Ann. § 1.07(a)(17)(B) (Vernon 1994). The Court of Criminal Appeals recently stated that “an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury.” McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App.2000). In McCain, the court upheld a conviction for aggravated robbery where the assailant robbed a woman while carrying a butcher knife in his back pocket. While the assailant attacked the victim, she noticed the knife in his back pocket and was afraid he would cut her with it. Finding the knife to be a deadly weapon, the court stated,

[T]he mere carrying of a butcher knife during such a violent attack as occurred in the present case was legally sufficient for a factfinder to conclude that the “intended use” for the knife was that it be capable of causing death or serious bodily injury. Hence, the evidence was legally sufficient to show that the butcher knife was a deadly weapon under the circumstances.

McCain v. State, 22 S.W.3d at 503.

The evidence presented to the jury regarding the wrench used in this robbery consisted of the following testimony of the victim on direct examination:

Q. The wrench that you were talking about, did he at any time — how did he use that, other than tightening the—
A. —he tightened the valve up, and he wheeled me around when he grabbed me and told me I was being robbed, I saw it above my head like this.
Q. Do you think you would have been — based upon the manner and means of him using that, if he had used that as a weapon, would that have caused you serious bodily injury?
A. One blow would have killed me.

Additionally, Officer Ray Copeland testified on direct examination as follows:

Q. And you got an interview from Ms. Whatley and she described a wrench. Based upon your education, training and experience, could that wrench be a deadly weapon?
A. Yes, sir.

Charleston contends that the evidence is insufficient to support the use of a deadly weapon finding because the wrench was not introduced in evidence, the size and appearance of the wrench were not described, and he never verbally threatened serious injury or death. In light of the holding in McCain, we must determine if Charleston intended to use the wrench in a manner that would be capable of causing serious bodily injury or death. McCain v. State, 22 S.W.3d at 503.

First, we determine if the jury could have found that it was Charleston’s intent to use the wrench in such a manner that it would be capable of causing serious bodily injury or death. Whatley testified that Charleston told her she was being robbed. She further testified that Charleston grabbed her, wheeled her around, and held the wrench over her head. According to Whatley’s testimony, she, Charleston, and the wrench were in extremely close proximity. Although Charleston made no verbal threat except to tell Whatley she was being robbed, it can be inferred from the fact that he grabbed Whatley, wheeled her around, and held the wrench over her head while telling her he was robbing her, that he intended to use the wrench as a threat of bodily injury. It is not reasonable to speculate that, in this violent attack on Whatley, his holding the wrench above her head was a meaningless gesture. A rational fact finder could conclude that Charleston used the wrench to facilitate the robbery, and that he intended to strike Whatley with the wrench or place her in fear of injury.

Next we consider whether there is legally sufficient evidence to show that the wrench was capable of causing death or serious bodily injury. Charleston contends that in order for the evidence to be legally sufficient, some evidence of the size and shape of the wrench must be before the jury. The Texas Court of Criminal Appeals has approved several factors to be used in determining whether an object is capable of causing death or serious bodily injury: (1) physical proximity between the victim and the object, Tisdale v. State 686 S.W.2d 110, 115 (Tex.Crim.App.1984); (2) the threats or words used by the assailant, Williams v. State, 575 S.W.2d 30 (Tex.Crim.App. [Panel Op.] 1979); (3) the size and shape of the weapon, Blain v. State, 647 S.W.2d 293, 294 (Tex.Crim.App.1983); (4) the weapon’s ability to inflict death or serious injury, id.; and (5) the manner in which the defendant used the weapon, id. No one factor is determinative, and each case must be examined on its own facts. Brown v. State, 716 S.W.2d 939, 946^7 (Tex.Crim.App.1986). Either expert testimony or lay testimony may be sufficient to support a finding. English v. State, 647 S.W.2d 667, 668-69 (Tex.Crim.App.1983). Introducing the weapon in evidence assists the jury, but the jury may determine the weapon was capable of causing death or serious bodily injury even if it is not in evidence. Id. at 669.

The jury heard Whatley’s testimony that one blow from the wrench would have killed her. Additionally, Officer Ray Copeland testified that, based on What-ley’s description of the wrench to him, the wrench was capable of being used as a deadly weapon. Considering the close proximity between Charleston and What-ley, the violent manner in which Charleston grabbed and handled Whatley, the way Charleston used the wrench while he articulated his act of robbery, Whatley’s testimony that the wrench could have killed her, and the testimony of the officer, the evidence is legally sufficient for the jury to find that Charleston used a deadly weapon. We therefore find that the jury’s verdict of aggravated assault was based on legally sufficient evidence.

A factual sufficiency review requires us to view the evidence in a neutral light, comparing the evidence that tends to prove the element in dispute with the evidence that tends to disprove the element. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). We set aside the verdict only if the evidence is so weak or is so against the great weight and preponderance of the evidence as to make the verdict clearly wrong and unjust.

The only element disputed by Charleston on factual sufficiency grounds is that he used a deadly weapon. As stated, the only testimony regarding the weapon was given by Whatley and the police officer. No other evidence was offered by the prosecution or the defense regarding the wrench. The jury had only that testimony to rely on in concluding that Charleston used a deadly weapon. It is not the province of this Court to evaluate the credibility of witnesses. In our review, we must employ appropriate deference to avoid substituting our judgment for that of the jury, and our evaluation should not substantially intrude on the jury’s role as the sole judge of the weight and credibility given to witness testimony. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim.App.1996). Accordingly, we conclude that the jury’s finding that Charleston used a deadly weapon is not clearly wrong or against the great weight and preponderance of the evidence.

Charleston also contends that his trial attorney’s failure to move for a directed verdict constituted ineffective assistance of counsel. The Sixth Amendment to the United States Constitution not only guarantees the right to counsel, but the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The standard for testing claims of ineffective assistance of counsel was set out in Strickland and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). To prevail on an ineffective assistance of counsel claim, the appellant must prove by a preponderance of the evidence that his counsel’s representation fell below an objective standard of reasonableness, and the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. at 686, 104 S.Ct. 2052; Rosales v. State, 4 S.W.3d 228, 231 (Tex.Crim.App. 1999).

We have determined that the jury’s verdict convicting Charleston of aggravated assault is based on legally and factually sufficient evidence; therefore, the failure of Charleston’s trial attorney to move for a directed verdict did not prejudice his defense, and the claim of ineffective assistance fails.

Charleston contends that the trial court erred in denying his motion to disqualify his counsel, thereby allowing the attorney to represent him while under a conflict of interest. Charleston contends this also constituted ineffective assistance of counsel. To demonstrate ineffective assistance of counsel on this basis, Charleston must show that his counsel was burdened by an actual conflict of interest, and that the conflict had an adverse effect on counsel’s performance. Cuyler v. Sullivan, 446 U.S. 335, 348-50, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); see also Strickland v. Washington, 466 U.S. at 687-94, 104 S.Ct. 2052; Monreal v. State, 947 S.W.2d 559, 564 (Tex.Crim.App.1997).

First we determine whether defense counsel labored under an actual conflict of interest. If counsel is required to choose between advancing his client’s interests and the interests of another, there is an actual conflict of interest. Monreal, 947 S.W.2d at 564, citing James v. State, 763 S.W.2d 776, 779 (Tex.Crim. App.1989). A defendant is denied effective assistance of counsel when the attorney simultaneously represents a criminal defendant and a key prosecution witness, even if the matters are unrelated. Castillo v. Estelle, 504 F.2d 1243 (5th Cir.1974); Ramirez v. State, 13 S.W.3d 482 (Tex.App.—Corpus Christi 2000, no pet. h.). Additionally, a defendant is denied effective representation when the attorney is unable to properly cross-examine a witness due to a prior representation of that witness. Ramirez v. State, 13 S.W.3d at 488.

Mr. Verschoyle represented Whatley’s husband five years earlier in some real estate and oil and gas transactions, but he never represented Mrs. Whatley. At the time of trial, Verschoyle was not actively representing Mr. Whatley and had not done so in five years. He did not represent Mr. Whatley and Charleston simultaneously, nor did he represent the two on a substantially related matter. Verschoyle was not hindered in his cross-examination of Mrs. Whatley. He thoroughly examined her regarding her ability to identify Charleston, her ability to recall the precise time of day that he entered her house, and her ability to recall the precise time of day that she examined the police photograph book. There is no evidence indicating that Mr. Verschoyle’s previous representation of Mr. Whatley impaired his cross-examination of Mrs. Whatley. Since Mr. Verschoyle’s representation of Mr. Whatley ended five years before the trial, concerned an unrelated matter, and did not hinder him in his cross-examination of Mrs. Whatley, Mr. Verschoyle did not labor under an actual conflict of interest.

For the reasons stated, we affirm the judgment of the trial court.

      . Whatley and her husband had recently had gas lines installed in their new home, so she did not believe the call was out of the ordinary.

      . Charleston argues that Mrs. Whatley may have had community property rights in the subject matter of Verschoyle’s representation of her husband and that the case should be remanded to the trial court for a hearing on the matter. Whether Mrs. Whatley had a community property interest in the subject matter of Mr. Whatley’s representation is immaterial since the representation ceased five years before the trial, concerned an unrelated matter, and did not hinder Verschoyle in his cross examination of Mrs. Whatley.