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    Demarkcus L. CLARK, Appellant, v. The STATE of Texas, State.
    No. 2-08-300-CR.
    Court of Appeals of Texas, Fort Worth.
    June 17, 2010.
    Discretionary Review Refused Nov. 24, 2010.

      Wes Ball, Arlington, TX, for Appellant.

      Joe Shannon, Jr., Criminal District Attorney, Charles M. Mallín, Chief, Appellate Section, and Danielle A. Jennedy, Lisa Callaghan, and Robert Huseman, Assistant District Attorneys for Tarrant County, Fort Worth, TX, for Appellee.
    PANEL: GARDNER, DAUPHINOT, and WALKER, JJ.
   OPINION

PER CURIAM.

I. Introduction

A grand jury indicted Appellant De-markcus L. Clark on February 2, 2007. The indictment alleged that on or about July 25, 2004, Appellant intentionally caused the death of Keiss Allison by shooting him with a firearm during the course of committing or attempting to commit robbery. Appellant pleaded not guilty at his trial in August 2008. The jury found Appellant guilty of capital murder, and the trial court sentenced him to life in prison. Appellant contends in two points that the evidence is factually insufficient to sustain his conviction and that he received ineffective assistance of counsel. We affirm.

II. Factual Background

At approximately 1 a.m. on July 25, 2004, Fort Worth police officers responded to a reported shooting at an apartment complex. Officer James Chilson was the first to arrive, and he testified that he saw the victim, Keiss Allison, lying in the roadway approximately 100 feet from his apartment, with six or more people standing nearby.

Christopher Carter testified that he lived with Allison at the time of the shooting, that he met Allison while “running around looking for some dope,” that Allison was a drug dealer, and that Allison supplied drugs to him in exchange for the use of his car. Carter admitted he had abused drugs, specifically crack cocaine, the day of the shooting, but he testified he had been “clean” for about a year as of the time of trial. Carter also testified, however, that he was on parole from a fifty-year sentence for unauthorized use of a motor vehicle.

Carter testified that a “kind of a chubby fellow” driving a brown or tan Buick LeSa-bre or similar car had stopped at the apartment earlier on the night of the shooting and asked for Allison. Carter told the man Allison was not there.

Carter last saw Allison in the apartment at approximately 9 p.m. the night of the shooting when Carter left to go to the store with Tonya Fluker and other people he did not know. When he and the others returned from the store, Carter saw a man he described as “a slim fella” in the apartment parking lot carrying a pistol-grip shotgun. Carter testified that he did not see the man well enough to identify him for the police but that the car he had seen earlier that night was “possibly” at the apartment at the time. The man with the shotgun told the driver of the car that it would be best if they left. Carter “bailed out of the truck, ran into the front of the apartments[,] and ... hid behind some trash cans.” He heard about three gunshots while hiding. After he felt it was safe to do so, Carter emerged from his hiding place and sat on the curb in front of the apartments. He admitted, however, that he subsequently “kind of ran and ducked and dodged” the police for approximately two years because he did not want to be involved.

Anthony Foreman testified that Allison was a friend and one of his drug dealers. Foreman walked to Allison’s apartment about midnight the night of the shooting to “do drugs,” and when he arrived, Allison and Christopher Henderson were standing in the apartment doorway “rapping about [him] walking over there.” Foreman testified that he, Allison, and Henderson had been standing by the gate near Allison’s apartment when a gold Cutlass pulled into the parking lot. A heavy-set, African-American man got out of the passenger-seat and walked up to the fence. On Allison’s invitation, Allison and the man went inside the apartment together. A slimmer African-American man then got out of the rear passenger-seat of the car, and Henderson told the man to wait outside. The slimmer man “got mad and told [Henderson] that was his money and he was goin[g] in there about the business, too.” Foreman testified that he was able to calm the man down for a moment and that Allison opened the apartment door and invited the slimmer man inside. Henderson also went inside after a few moments.

While Foreman waited outside, the slimmer man came out of the apartment and walked to his car. At about the same time, the vehicle with Carter, Fluker, and a man named “Fish” inside drove into the parking lot. The slimmer man talked to the people in Fish’s car and then tapped on the trunk of the gold Cutlass “to alert the guy on the inside to pop the trunk.” The driver of the car, who Foreman testified he saw in the car but did not see his face, “popped his trunk button and [the slimmer man] open[ed] the trunk and pulled out a 12-gauge.” Foreman testified that the slimmer man walked up to him, pointed the shotgun at him, and told him to go inside the apartment. Foreman refused and ran toward a church behind the apartments. As he ran past a window to Allison’s apartment, Foreman heard Allison tell the men that he was not going to give them anything else and that he had given them everything he had. From the church, Foreman looked back, saw three people running away from Allison’s apartment toward the parking lot, and heard five gunshots.

Foreman ran back to Allison’s apartment and went inside to see if anyone had been shot. Not seeing anyone in the apartment, he went to a neighbor’s apartment to ask her to call the police, but Foreman heard Fluker saying, “Here he is right here.” Foreman then saw Allison lying in the middle of the street. Foreman testified that the police interviewed him that night and that he went to the police station with the officers “to let them know that [he] saw everything that happened.” On cross-examination, Foreman testified that he had previous convictions for possession and theft and that he was not able to identify anyone when a homicide detective showed him a photo spread.

Detective Matthew Hardy testified that he was the homicide detective assigned to the case and that he arrived at the scene approximately an hour and a half after the shooting. Detective Hardy testified that he interviewed Foreman, Henderson, and Fluker that night. However, the investigation continued for more than two years.

Detective Hardy interviewed Duron Gibson at the Tarrant County jail in October 2005, and Gibson directed him to Appellant a/k/a “Dough Boy.” In January 2006, Detective Hardy spoke with Fort Worth nar-cotíes officer Broadwater and a confidential informant and was able to identify Issack Fountain as a possible participant. Detective Hardy located Fountain and interviewed him at the Department of Corrections in DeQuiney, Louisiana. In the interview, Fountain minimized his own involvement and said that Appellant was the shooter.

Detective Hardy interviewed Appellant on August 21, 2006. In the interview, Appellant denied that he knew Allison or what had happened to him. Appellant also told Detective Hardy that Prinsell Williams had used his name in the past. In fact, Appellant was arrested during a federal drug investigation but later released after investigators determined that Williams had used Appellant’s name.

On August 22, 2006, Detective Hardy interviewed Carter and showed him a photo spread that included pictures of Fountain and five other African-American males. Carter identified Fountain and said, “[T]his kind of looks like the person who came up to the car that he was in, who had the shotgun,” but Carter was not completely positive of his identification. Detective Hardy prepared a different photo spread that included Appellant’s photograph, but Carter was not able to identify anyone in that photo spread.

Detective Hardy testified that between Fountain, Appellant, and Avion Anderson, a man Appellant had implicated in Allison’s death, Appellant is physically the largest and Fountain is the thinnest. Detective Hardy also said that the physical descriptions in his file indicated that Fountain is five foot, ten inches and 160 pounds, that Anderson is five foot, nine inches and 190 pounds, and that Appellant is five foot, eleven inches and either 225 or 275 pounds. Detective Hardy said that the physical descriptions in his file are generally consistent with Fountain’s, Anderson’s, and Appellant’s actual heights and weights.

Detective Hardy also interviewed Fluker and said she tentatively identified Appellant in a photo spread. On the photo spread, Fluker wrote, “I believe to my knowledge this man [Appellant] came to SUV I was in.” Detective Hardy testified that Fluker’s identification differed from the others; Fluker said the heavy-set man retrieved the shotgun from the car and other witnesses said it was the skinnier man. Detective Hardy also testified that Fluker did not identify Appellant as the man that came to the car until she saw the photo spread.

Appellant was arrested on February 5, 2007. Detective Hardy interviewed him later that day and obtained two written statements. In the first statement, Appellant admitted being at Allison’s apartment with Fountain and Anderson to obtain cocaine to sell but denied knowing Allison before that night. Appellant said that Henderson pulled a pistol-grip shotgun while Fountain and Allison were “tussling, wrestling,” that Fountain pulled a revolver and forced Henderson to the ground, that Allison pushed Fountain off of Henderson and ran out the door, and that Fountain shot Allison. Appellant also said that Fountain threatened to kill him and Anderson if they told anyone what had happened and that Fountain had stolen some cocaine from the apartment. Appellant wrote that he first learned that Allison had been killed about three days after the shooting.

In the second statement, Appellant admitted that he did know Allison before the night of the shooting, that he had met Allison at a dope house where a man named “Hot Sauce” lived, and that he had told Fountain they could get some dope to sell from Allison. Appellant stated that he and Fountain went to Allison’s apartment earlier the night of the shooting, that Allison was not there at the time, and that he and Fountain later returned to Allison’s apartment. Appellant wrote that after he and Fountain went inside Allison’s apartment, Fountain told Allison to “give me what you got,” pointed a revolver at Allison, and made Allison empty his pockets. Appellant said that Fountain took the forty dollars Allison had in his pocket, that Henderson pulled out a shotgun, and that Fountain pointed the revolver at Henderson and made him get on the ground. Appellant stated that Anderson then came through the door with the pistol-grip shotgun, that Henderson and Allison ran out the door, and that Fountain fired five or six shots at Allison.

Detective Hardy testified that Appellant did not admit in either of his statements to receiving any of the proceeds of the robbery, to disposing of the cartridges from the revolver, or to having the intent before going to Allison’s apartment to commit an offense other than purchasing drugs. Detective Hardy agreed that Appellant admitted to being at the scene but did not admit to being a party to the murder. Detective Hardy also testified that Appellant had given him information about a murder Fountain had committed in 1997 or 1998, that he filed a case against Fountain for that murder, and that the information Appellant provided about that murder was accurate.

On cross-examination, Detective Hardy agreed that the majority of people he interviewed in this case were involved with drugs in one way or another. He testified that the family initially directed him to a person named Jonathan Williams and that he was aware of two different people known as “Dough Boy” in the Fort Worth area. Detective Hardy also said that he prepared approximately ten photo spreads in the case and that several people were not able to make any identifications.

Fountain testified that he is in custody for two murders and a federal drug case. He said that he is serving a thirty-five year sentence for the federal drug case, that he pleaded guilty to two murders and received two sentences of twenty-two years and six months to run concurrently, and that a condition of his State plea bargain required him to testify truthfully in Appellant’s case. Fountain also said that he had been on parole for a different felony drug case in Louisiana and that he had other felony convictions in Tarrant County for attempted murder, evading arrest, and detention of a vehicle.

Fountain further testified that Appellant and Anderson are his cousins and that Appellant is known as “Dough Boy.” Fountain said that he, Appellant, and Anderson had smoked “weed” the night of the shooting and were at another cousin’s apartment when Appellant started talking about “hitting a lick,” which he understood to mean to commit a robbery. Fountain testified that Appellant said that he wanted to “go hit a lick” on Allison and that Appellant called Allison to set up the robbery by telling Allison that he needed to buy some drugs. Fountain said he understood from Appellant that Allison had a lot of drugs and money. Fountain testified that he did not know Allison before the night of the shooting.

Fountain said that he, Appellant, and Anderson went to Anderson’s sister’s house to get three guns: a shotgun, a revolver, and a .45. Fountain said he had the shotgun and Appellant had the revolver. Anderson drove to Allison’s apartment, Appellant rode in the passenger seat, and Fountain rode in the back. Fountain testified that when they arrived at the apartment, he saw Fish in the parking lot and told Fish to leave. Fountain said that he and Appellant got out of the car, that Anderson stayed in the car, and that he and Appellant went into the apartment with Allison and another man he did not know. The man Fountain did not know initially said they both could not go inside, but Allison invited them both into the apartment.

Fountain testified that Allison was “weighing up the dope” inside the apartment and that Appellant pulled out a revolver and made Allison and the other man get on the floor. Fountain then went to the car and retrieved a shotgun. Fountain said that on his way back into the apartment, another man on the side of the building ran through the gate. Fountain went back into the apartment, and Anderson followed him inside. They were looking through the apartment for things to take in the robbery when “all of a sudden [Allison] got up and ran.” Fountain testified that Appellant shot Allison four or five times as Allison ran.

Fountain testified that after the shooting, he, Appellant, and Anderson went to Fountain’s sister’s house and split up what they had stolen: “$1,500, about ten grams of cocaine, crack[,] and a scale.” Fountain said he emptied the revolver after the shooting and threw the rounds in the trash, even though it was Appellant’s gun, because “when you do stuff like that with people, you’ve got to help clear yourself, too, man. And that’s just part of what I did.” Fountain said that there was an agreement among them to rob Allison but that there was no agreement for murder. Fountain admitted on cross-examination that this was not the first “dope house” that he had “jacked.”

Fountain testified that he recalled telling Detective Hardy that this type of violence was not normal for Appellant. Fountain also said he was aware that a man named Bertram Bell had claimed to have heard him brag to his girlfriend that he had committed the murder. Fountain said his girlfriend testified in his federal case that she did not know anything about Allison getting killed.

Kevin Spencer testified that he had known Appellant, Fountain, Anderson, and Allison for several years before the shooting. He said that he was currently serving a fifteen-year sentence in a federal penitentiary for conspiracy to distribute and manufacture cocaine arising out of a federal drug investigation. Spencer testified that the prosecutors had agreed to notify federal authorities of his assistance if he testified truthfully in Appellant’s trial so that he could apply for “Rule 35 credit,” one of only a few procedures he believed might potentially reduce his federal sentence.

Spencer testified that he talked with Appellant three different times after the shooting and that Appellant told him, “I put my work in.” Spencer explained, “[i]n street terms[,] when they say they ‘put their work in,’ you know, nine times out of ten you’re going to shoot someone with the intention to kill them.” Spencer testified that Appellant told him he shot Allison because Allison went for a gun, but he also said Appellant bragged about having “put that work in” and seemed proud of having done so. Spencer said Appellant told him people in the neighborhood “think I won’t put the work in. I’m going to put the work in.” Spencer testified that he believed Appellant wanted people to think he was a gangster and that killing Allison was a way for Appellant to “make his point.”

Bertram Bell testified for Appellant. He said that he was brought to trial from Florida where he is serving a twenty-year sentence for conspiracy to distribute arising out of a federal drug investigation. Bell testified that he told Detective Hardy that he overheard a conversation between Fountain and his girlfriend in which Fountain said that he and Appellant went to Allison’s apartment but that Appellant stayed in the car and did not know what was happening. Bell admitted, however, that he did not hear the entire conversation.

Bell testified that he was aware of Fountain always having a shotgun and that Fountain had even pulled a shotgun on him when Fountain had tried to rob him in the past. Bell told Detective Hardy during an interview that Fountain had a shotgun and a .380. Bell testified that he likes Appellant and that he does not like Fountain.

Dr. Gary Sisler testified that he performed an autopsy on Allison’s body on July 25, 2004. Dr. Sisler testified that Allison had an entry wound to his right lateral forearm, an exit wound on the inside of his forearm, a re-entry wound to his right chest, an entry wound to his back, and an entry wound near his abdomen. Dr. Sisler also said that he recovered three bullets from Allison’s body. Dr. Sisler testified that the wound to Allison’s chest was fatal, that the cause of death was multiple gunshot wounds, and that he classified Allison’s death as a homicide. Robert Adkins, a retired firearms examiner, testified that he examined the three bullets removed from Allison’s body and determined that all three bullets were fired from the same gun, a Smith and Wesson revolver.

III. Applicable Law

Section 19.03(a) of the penal code provides in pertinent part, “[a] person commits [capital murder] if the person commits murder as defined under Section 19.02(b)(1) and ... the person intentionally commits the murder in the course of committing or attempting to commit ... robbery.” Tex. Penal Code Ann. § 19.03(a). Section 19.02(b)(1) of the penal code provides that a person commits murder if he “intentionally or knowingly causes the death of an individual.” Id. § 19.02(b)(1) (Vernon 2008). Section 29.02 of the penal code provides in relevant part that a person commits robbery “if, in the course of committing theft ... and with intent to obtain or maintain control of the property, he ... intentionally, knowingly, or recklessly causes bodily injury to another.” Id. § 29.02(a)(1) (Vernon 2005).

IV. Sufficiency of the Evidence

In his first point, Appellant contends the evidence is factually insufficient to sustain his capital murder conviction. He argues that only unobjected-to hearsay and testimony from a convicted felon corroborated the accomplice’s testimony. Because it is unclear whether Appellant challenges the sufficiency of the evidence corroborating his accomplice’s testimony, the factual sufficiency of the evidence, or both, we review the evidence for corroboration of the accomplice’s testimony and for factual sufficiency.

A. Accomplice Witness Testimony

The accomplice-witness rule is a statutorily imposed sufficiency review and is not derived from federal or state constitutional principles that define the legal and factual sufficiency standards. Cathey v. State, 992 S.W.2d 460, 462-63 (Tex.Crim.App.1999), cert. denied, 528 U.S. 1082, 120 S.Ct. 805, 145 L.Ed.2d 678 (2000). An accomplice is a person who participates before, during, or after the commission of the crime and can be prosecuted for the same offense as the defendant or for a lesser-included offense. Medina v. State, 7 S.W.3d 633, 641 (Tex.Crim.App.1999). Fountain is an accomplice as a matter of law because he was also charged with and pleaded guilty to Allison’s murder. See Brown, 270 S.W.3d at 567 (stating witness in capital murder case was accomplice as a matter of law because he “participated in the crime and ... was subsequently convicted of aggravated robbery in accordance ■with a plea agreement for his participation”). Article 38.14 of the code of criminal procedure provides that “[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.” Tex.Code Crim. Proc. Ann. art. 38.14.

When evaluating the sufficiency of corroboration evidence under the accomplice-witness rule, we “eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the crime.” Malone v. State, 253 S.W.3d 253, 257 (Tex.Crim.App.2008) (quoting Solomon v. State, 49 S.W.3d 356, 361 (Tex.Crim.App.2001)). The corroborating evidence need not prove the defendant’s guilt beyond a reasonable doubt by itself. Id.; Trevino v. State, 991 S.W.2d 849, 851 (Tex.Crim.App.1999). Nor is it necessary for the corroborating evidence to directly link the accused to the commission of the offense. Cathey, 992 S.W.2d at 462. Rather, the evidence must simply link the accused in some way to the commission of the crime and show that “rational jurors could conclude that this evidence sufficiently tended to connect [the accused] to the offense.” Simmons v. State, 282 S.W.3d 504, 508 (Tex.Crim.App.2009). Additionally, “[p]roof that the accused was at or near the scene of the crime at or about the time of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction.” Malone, 253 S.W.3d at 257 (quoting Brown v. State, 672 S.W.2d 487, 489 (Tex.Crim.App.1984)). But “mere presence alone of a defendant at the scene of a crime is insufficient to corroborate accomplice testimony.” Id. (quoting Golden v. State, 851 S.W.2d 291, 294 (Tex.Crim.App.1993)).

Here, the evidence offered to corroborate Fountain’s testimony begins with Appellant’s written statements to Detective Hardy. In the written statements, Appellant admitted that he was inside Allison’s apartment with Fountain at the time of the shooting. In addition, Spencer testified that Appellant told him on three occasions that he “put his work in,” that “putting your work in” meant shooting someone with the intent to kill, and that Appellant bragged about killing Allison. This evidence tends to connect Appellant to the commission of the offense alleged in the indictment. See Brown, 270 S.W.3d at 568 (stating that “under most circumstances, an admission or confession will be sufficient to corroborate the accomplice-witness testimony” and holding that accomplice testimony sufficiently corroborated by admitted perjurer who testified Brown acted unusually the day of the offense and admitted to being at the scene). The fact that Spencer’s testimony may have been subject to impeachment as coming from an admitted felon goes to the weight of the evidence, not to its admissibility, and was within the province of the jury as the exclusive judge of the credibility and the weight to be given Spencer’s testimony. See id. Consequently, we hold that Fountain’s testimony was sufficiently corroborated and was properly considered by the jury under the requirements of article 38.14. See Tex.Code Crim. Proc. Ann. art. 38.14. We overrule this portion of Appellant’s first point.

B. Factual Sufficiency

1. Standard of Review

When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. Steadman v. State, 280 S.W.3d 242, 246 (Tex.Crim.App.2009); Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App.2006). We then ask whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the factfin-der’s determination is clearly wrong and manifestly unjust or whether conflicting evidence so greatly outweighs the evidence supporting the conviction that the factfin-der’s determination is manifestly unjust. Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at 414-15, 417. To reverse under the second ground, we must determine, with some objective basis in the record, that the great weight and preponderance of all the evidence, although legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.

Unless we conclude that it is necessary to correct manifest injustice, we must give due deference to the factfinder’s determinations, “particularly those determinations concerning the weight and credibility of the evidence.” Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App.2000); see Steadman, 280 S.W.3d at 246. Evidence is always factually sufficient when it preponderates in favor of the conviction. Steadman, 280 S.W.3d at 247; see Watson, 204 S.W.3d at 417. Unless the record clearly reveals that a different result is appropriate, we must defer to the jury’s determination of the weight to be given contradictory testimonial evidence because resolution of the conflict “often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8. Our deference in this regard safeguards the defendant’s right to a trial by jury. Lancon v. State, 253 S.W.3d 699, 704 (Tex.Crim.App.2008).

2. The Evidence is Factually Sufficient

Having determined that Fountain’s accomplice-witness testimony was sufficiently corroborated, we now analyze all the evidence — including Fountain’s testimony — in a neutral light to determine if factually sufficient evidence exists to support Appellant’s conviction. See Steadman, 280 S.W.3d at 246.

Reviewing all the evidence in a neutral light, we recall that many of the people Detective Hardy interviewed in this case were involved with drugs in one way or another, that Detective Hardy prepared approximately ten photo spreads in the case, that several people were not able to make any identifications, that Allison’s family initially directed Detective Hardy to Jonathan Williams, that Detective Hardy knew of at least two people in the area known as “Dough Boy,” and that Appellant was mistakenly arrested in a federal drug case because someone else had used Appellant’s name. We also recall that Fluker tentatively identified Appellant in a photo spread as the person that approached her car in the apartment parking lot and that Fluker’s identification differed from the others because she said the heavy-set man, not the skinnier man, retrieved the shotgun from the car. Further, Carter, on parole from a fifty-year sentence, identified Fountain from a photo spread as the man outside the apartment with the shotgun, but Carter testified that he had used crack the day of the shooting and that he did not see the man well enough to identify him for the police. In addition, Appellant admitted to being at the scene of the shooting, but did not admit to being a party to the murder, to receiving any of the proceeds of the robbery, to disposing of the cartridges from the revolver, or to having the intent before going to Allison’s apartment to commit an offense other than purchasing drugs. There was also testimony from Bell that impeached Fountain’s credibility and that Fountain had admitted to shooting Allison. And Fountain admitted that he emptied the revolver after the shooting, that this was not the first “dope house” that he had “jacked,” and that this type of violence was not normal for Appellant. Finally, Spencer testified .that Appellant bragged to him about shooting Allison, but Spencer testified in exchange for the State’s agreement to notify federal authorities of his cooperation.

However, the jury also heard evidence that Appellant admitted being at Allison’s apartment with Fountain and Anderson to obtain cocaine to sell and that Appellant told Spencer that he “put his work in,” meaning he shot Allison with the intent to kill. Spencer said that Appellant bragged about having “put that work in,” that Appellant seemed proud of having done so, that Appellant wanted people to think he was a gangster, and that killing Allison was a way for Appellant to “make his point.” Furthermore, Fountain testified that Appellant initiated the talk about robbing Allison and that Appellant called Allison and told him he needed to buy some drugs in order to set up the robbery. Fountain said he had the shotgun and Appellant had the revolver. Fountain testified that he and Appellant went into the apartment with Allison, that Appellant pulled out a revolver and made Allison and the other man get on the floor, that Fountain then went to the car for the shotgun and returned to the apartment, and that Appellant shot Allison four or five times after Allison got up and ran. Fountain also testified that they had stolen “$1,500, about ten grams of cocaine, crackf,] and a scale.” Finally, the firearms examiner testified that the three bullets removed from Allison’s body were fired from a Smith and Wesson revolver.

Moreover, we note that several witnesses corroborated extraneous parts of Fountain’s testimony. For example, Carter testified that “a slim fella” with a shotgun told him and others in his car to leave, and Detective Hardy said Carter tentatively identified the man with the shotgun as Fountain from a photo spread. Further, Foreman testified that Henderson initially told the skinnier man he could not go inside the apartment with Allison, that the skinnier man entered but later walked out of Allison’s apartment, talked to the people in Fish’s car, and retrieved a shotgun from the car. The jury could have considered this testimony in weighing Fountain’s credibility.

Finally, the fact that several witnesses are convicted felons does not necessarily render the evidence factually insufficient. The witnesses were impeached with evidence of their convictions, and the jury is the exclusive judge of the credibility of the witnesses and of the weight to be given to their testimony. See Johnson, 23 S.W.3d at 8 (describing difficulty in assessing credibility from “a cold appellate record” and stating credibility assessment “usually requires deference to the jury’s conclusion”).

Viewing the evidence in a neutral light, we conclude a rational trier of fact could have found beyond a reasonable doubt that Appellant intentionally or knowingly caused the death of Allison in the course of committing or attempting to commit robbery. See Tex. Penal Code Ann. §§ 19.02(b)(1), 19.03(a)(2). Therefore, we cannot say that the evidence is so weak that the jury’s determination is clearly wrong or manifestly unjust or that the conflicting evidence so greatly outweighs the evidence supporting the convictions that the jury’s determination is manifestly unjust. See Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414-15, 417. Accordingly, we hold that the evidence is factually sufficient to support the jury’s verdict, and we overrule the remainder of Appellant’s first point.

V. Effectiveness of Counsel

In his second point, Appellant contends that he received ineffective assistance of counsel because his trial attorney did not object to Detective Hardy’s hearsay testimony that Fluker identified Appellant as the person who approached her vehicle with a weapon the night of the incident. The State responds that we should overrule Appellant’s second point because Appellant did not file a motion for new trial to develop the record and the record is silent concerning Appellant’s counsel’s reasoning and strategy.

A. Standard of Review

To establish ineffective assistance of counsel, Appellant must show by a preponderance of the evidence that his counsel’s representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App.2005); Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Crim.App.2001); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999). There is no requirement that we approach the two-pronged inquiry of Strickland in any particular order, or even address both components of the inquiry if the appellant makes an insufficient showing on one component. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.

A reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim. Thompson, 9 S.W.3d at 813-14. “In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel’s actions.” Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome the presumption of reasonable professional assistance, “any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Id. (quoting Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate court to simply infer ineffective assistance based upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex.Crim.App.2007).

B. Analysis

Detective Hardy testified that Fluker tentatively identified Appellant in a photo spread. In addition, on State’s Exhibit 24, the photo spread from which Fluker identified Appellant, Fluker had written, “I believe to my knowledge this man [Appellant] come to SUV I was in.” Appellant did not object to Detective Hardy’s testimony about Fluker’s statements to him, the admission of the photo spread, or the inclusion of Fluker’s written comment on the photo spread. According to Appellant, this unobjected-to hearsay, in combination with the testimony of a convicted felon, placed Appellant at the scene and in possession of a pistol-grip shotgun. We note, however, that the jury also heard testimony by Detective Hardy that Appellant admitted to being inside the apartment with Fountain and Anderson when Allison was killed and testimony by Fountain that Appellant shot Allison.

Appellant did not file a motion for new trial, and the record is silent as to defense counsel’s reasons for not objecting to Detective Hardy’s testimony or the photo spread. Generally, a silent record that provides no explanation for counsel’s actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App.2003); Edwards v. State, 280 S.W.3d 441, 445 (Tex.App.-Fort Worth 2009, pet. ref'd).

Based on the record before us, in light of the strong presumption of reasonable professional assistance by defense counsel, and in the absence of any opportunity for defense counsel to explain his motive for not objecting to Detective Hardy’s testimony and the photo spread, we cannot say that Appellant has met his burden of showing by a preponderance of the evidence that his trial counsel’s representation fell below the standard of prevailing professional norms. See Strickland, 466 U.S. at 690, 104 S.Ct. at 2066; Rylander, 101 S.W.3d at 110; Thompson, 9 S.W.3d at 813; Edwards, 280 S.W.3d at 445; see also Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005) (stating that “trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective”). We overrule Appellant’s second point.

VI. Conclusion

Having overruled each of Appellant’s points, we affirm the trial court’s judgment.

      . See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp.2009).

      . Carter described Fluker as a "crackhead” that he and Allison knew from "the life of dealing drugs.”

      . Fluker and Henderson did not testify at Appellant's trial. Detective Hardy said he unsuccessfully tried locating them before trial.

      . The October 2004 physical description in Detective Hardy’s file listed Appellant at 225 pounds, and the January 2006 description listed Appellant at 275 pounds.

      . Appellant did not object to Detective Hardy’s testimony about Fluker's statements to him, the admission of the photo spread, or the inclusion of Fluker’s written comment on the photo spread.

      . Detective Hardy testified that he did not have enough corroborating information from his investigation to charge Anderson with Allison’s murder. And although the State called Anderson as a witness at trial, Anderson advised the trial court outside the presence of the jury that he would refuse to testify because of three pending felony cases.

      . Fountain testified that he pleaded guilty to murder in Allison’s death and that he pleaded guilty to a 1997 or 1998 murder. As a matter of law, Fountain’s trial testimony was that of an accomplice-witness. See Brown v. State, 270 S.W.3d 564, 567 (Tex.Crim.App.2008), cert, denied, - U.S. -, 129 S.Ct. 2075, 173 L.Ed.2d 1139 (2009).

      . To impeach Spencer’s credibility, defense counsel asked Spencer if he had anything to do with the murder of Appellant’s brother, Montrell Clark. Spencer denied involvement, and Detective Michael Carroll testified that he investigated Montrell's murder, that Eddie Taylor was charged and pleaded guilty to murdering Montrell, and that Spencer was never a suspect in Montrell’s murder.

      . Assistant United States Attorney Mike Wor-ley testified as a rebuttal witness for the State. He said that he prosecuted many of the defendants in the federal drug investigation, that Bell pleaded guilty in that case and provided information about several defendants, and that Bell recanted his testimony as to all but one of the defendants. Worley testified that the government could have asked the court to rescind Bell’s plea agreement because he violated his plea agreement by recanting his testimony.

      . Appellant does not challenge the legal sufficiency of the evidence and acknowledges that the evidence is legally sufficient to sustain his conviction because of Carter's testimony and Fluker’s hearsay identification of Appellant as a person at the scene with a weapon.


source: Caselaw Access Project

author: Justice MARTIN RICHTER.

license: Public Domain

text:
    LAS COLINAS OBSTETRICS-GYNECOLOGY-INFERTILITY ASSOCIATION, P.A., Appellant, v. Veronica VILLALBA, M.D., Appellee.
    No. 05-09-00031-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 4, 2010.
    Rehearing Overruled Oct. 7, 2010.

      Tricia R. Deleon, William J. Moore, Janelle S. Forteza, J. Brett Busby, Bracewell & Giuliani, LLP, Dallas, TX, for Appellant.
    David Grant Crooks, Abby L. Ewing, Barry L. Hardin, David, Goodman, Ma-dole, PC, Dallas, TX, for Appellee.
    Before Justices MOSELEY, MARTIN RICHTER, and MYERS.
   OPINION

Opinion By

Justice MARTIN RICHTER.

Las Colinas Obstetrics-Gynecology-Infertility Association, P.A. (Association) appeals the trial court’s judgment in favor of Veronica Villalba, M.D. (Villalba). In three issues, the Association challenges the legal and factual sufficiency of the trial court’s findings with respect to Villalba’s contractual entitlement to bonus payments, Villalba’s breach of contract, and Villalba’s breach of fiduciary duty to the Association. We reverse and remand in part, and affirm in part.

BACKGROUND

In 2002, the Association, a regional medical association providing gynecological and obstetric services, hired Villalba, a licensed physician, and shortly thereafter the parties memorialized the terms of their employment relationship in an engagement agreement. In 2005, the Association and Villalba modified and extended the engagement letter by letter agreement. Together, the engagement agreement and the letter agreement (collectively, the agreement) governed the parties’ contractual obligations and detailed how Villalba would be compensated.

The agreement based Villalba’s compensation on the amount collected each month for medical services she performed. Specifically, the agreement provided that the first $15,000 collected per month would be paid to Villalba as compensation, and the next $22,500 would be retained by the Association as overhead attributable to Vil-lalba. For collections attributable to Vil-lalba which exceeded $37,500 on a monthly basis, the agreement stated the excess would first cover any deficits to the Association for any month in which the Association did not receive $22,500 per month. The excess was then subject to adjustments for future malpractice insurance increases and payments made by the Association to cover Villalba’s hospital accounts receivable. A spreadsheet attached to the agreement as Exhibit “A” illustrated these calculations. After covering deficits and adjustments, the excess was divided between Villalba and the Association with Villalba receiving seventy percent of the first $10,000 of excess collections and eighty percent of amounts over $10,000 as a bonus. The 2005 letter modifying the agreement extended the term of the agreement, stated that the bonus calculation would remain the same, and provided for a biweekly advance of $1,500 toward the quarterly bonus.

On December 1, 2005, Villalba gave the Association ninety days notice of her resignation as required by the agreement. Upon receiving Villalba’s notice of resignation, the Association calculated that bonus amounts already advanced to Villalba exceeded the bonus amounts actually earned. The Association began making deductions from Villalba’s compensation to recoup the amounts it believed she was overpaid, withholding the following amounts: $3,500 in December, 2005; $9,000 in January, 2006; and $13,223 in February, 2006. On January 25, 2006, Villalba took a medical leave from the Association. Her last day of employment was February 28, 2006.

In May 2006, Villalba sued the Association and its president, Dr. John J. Zavale-ta (Zavaleta), for failing to pay her compensation and bonuses earned before her last day of employment. Villalba claimed the Association failed to promptly bill for services and procedures Villalba performed for a number of her patients. Had the claims been filed timely, Villalba asserted they would have been paid prior to her last day of employment and the amounts paid would have been credited to her for compensation purposes. At the time of trial, Villalba’s live pleading also asserted claims that the Association breached the agreement by failing to provide necessary equipment, staff, and support required to perform her duties; interfering with patient billing and submission of claims; refusing to pay her compensation for collections attributable to her but omitted from her compensation calculation; and reducing her salary while she was disabled. Villalba’s Fifth Amended Petition also included claims for quantum meruit and violation of the Texas Criminal Wiretap Act and Federal Wiretap Act. The Association and Zavaleta generally denied Villalba’s claims and asserted a counterclaim against Villalba for breach of contract by accepting and refusing to return bonuses she had not earned, failing to devote her full time, interest and best efforts to the Association, and failing to maintain patient paperwork. The Association’s counterclaim also included a claim that Villalba breached her fiduciary duty and duty of loyalty to the Association by planning and establishing a competing medical practice and soliciting Association patients and employees while still employed by the Association.

At the conclusion of the bench trial, the trial court signed a final judgment awarding Villalba actual damages of $26,517.00 against the Association, together with prejudgment interest of $8,971.01, and attorneys’ fees of $54,500.00. The judgment also ordered that Villalba take nothing from Zavaleta, and the Association take nothing from its counterclaim against Vil-lalba. The trial court issued extensive findings of fact and conclusions of law. The Association filed a motion for new trial which was overruled by operation of law. This appeal followed.

STANDARD OF REVIEW

In an appeal from a bench trial, the trial court’s findings of fact have the same weight as a jury verdict. Aland v. Martin, 271 S.W.3d 424, 428-29 (Tex.App.-Dallas 2008, no pet.); HTS Sens., Inc. v. Hailwood Realty Partners, L.P., 190 S.W.3d 108, 111 (Tex.App.-Houston [1st Dist.] 2005, no pet.). When challenged, findings of fact are not conclusive if there is a complete reporter’s record. Aland, 271 S.W.3d at 429; HTS Servs., 190 S.W.3d at 111. When there is a reporter’s record, the trial court’s findings of fact are binding only if supported by the evidence. HTS Servs., 190 S.W.3d at 111. We review the sufficiency of the evidence supporting the findings by applying the same standards we use in reviewing the legal and factual sufficiency of the evidence supporting a jury verdict. Catalina v. Blas-del, 881 S.W.2d 295, 297 (Tex.1994); Aland, 271 S.W.3d at 429.

An appellant challenging the legal sufficiency of an adverse finding on an issue for which it did not have the burden of proof must demonstrate there is no evidence to support the adverse finding. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). In evaluating the legal sufficiency of the evidence to support a finding, we must determine whether the evidence as a whole would enable reasonable and fair-minded people to differ in their conclusions. Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994); Aland, 271 S.W.3d at 429. We view the evidence in the light most favorable to the fact-finding, credit favorable evidence if a reasonable fact-finder could do so, and disregard contrary evidence unless a reasonable fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005); Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287 S.W.3d 877, 888 (Tex.App.-Dallas 2009, no pet.). Anything more than a scintilla of evidence is legally sufficient to support a challenged finding. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998); OAIC Commercial Assets, L.L.C. v. Stonegate Village, L.P., 234 S.W.3d 726, 736 (Tex.App.-Dallas 2007, pet. denied).

To evaluate the factual sufficiency of the evidence to support a finding, we consider all the evidence and set aside the finding only if the evidence supporting it is so weak or so against the overwhelming weight of the evidence that the finding is clearly wrong and unjust. See Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Alan Reuber Chevrolet, 287 S.W.3d at 888. In a bench trial, the trial court judges the credibility of the witnesses, determines the weight to be given to their testimony, and resolves conflicts and inconsistencies in the testimony. See City of Keller, 168 S.W.3d at 819; Hinkle v. Hinkle, 223 S.W.3d 773, 778 (Tex.App.-Dallas 2007). We may not substitute our judgment for the fact-finder’s, even though, after reviewing the evidence, we would reach a different conclusion from that of the trier of fact. Essex Crane Rental Corp. v. Striland Constr. Co., Inc., 753 S.W.2d 751, 755 (Tex.App.-Dallas 1988, writ denied.); Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.App.-Dallas 1986, writ ref'd n.r.e.).

We review de novo a trial court’s conclusions of law. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). If we determine that the trial court made an erroneous conclusion of law, we will not reverse if the trial court rendered the proper judgment. Id. We uphold conclusions of law if the judgment can be sustained on any legal theory supported by the evidence. Simpson v. Simpson, 727 S.W.2d 662, 664 (Tex.App.-Dallas 1987, no writ).

BREACH OF CONTRACT BY THE ASSOCIATION

The Association’s first issue pertains to Villalba’s claim that the Association breached the agreement and presents three distinct but related arguments. First, the Association argues the trial court’s factual findings with respect to Vil-lalba’s bonus calculation and omitted collections were unsupported by legally or factually sufficient evidence. Second, the Association contends the trial court erred in granting judgment in favor of Villalba on her breach of contract claim because the trial court’s interpretation of Villalba’s bonus calculation in the contract was erroneous. Third, because Villalba did not plead or advocate a challenge to the Association’s method of calculating her bonus, the Association asserts it did not have fair notice that the trial court would interpret the contract provisions that set forth the method and formula for calculating Villal-ba’s compensation.

A. Applicable Law

In construing a written agreement, we must ascertain and give effect to the parties’ intentions as expressed in the agreement. Frost Nat’l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310, 311-12 (Tex.2005) (per curiam); Carbona v. CH Medical, Inc., 266 S.W.3d 675, 680 (Tex.App.-Dallas 2008, no pet.). We discern intent from the agreement itself and the agreement must be enforced as written. Deep Nines, Inc. v. McAfee, Inc., 246 S.W.3d 842, 846 (Tex.App.-Dallas 2008, no pet.). We consider the entire writing and attempt to harmonize and give effect to all the provisions of the contract by analyzing the provisions with reference to the whole agreement. Frost Nat’l Bank, 165 S.W.3d at 312; Hackberry Creek Country Club, Inc. v. Hackberry Creek Home Owners Ass’n, 205 S.W.3d 46, 55 (Tex.App.-Dallas 2006, pet. denied).

Whether an agreement is ambiguous is a question of law for the court to decide by looking at the contract as a whole in light of the circumstances existing at the time the contract was entered. Coker v. Coker, 650 S.W.2d 391, 394 (Tex.1983); Hackberry Creek Country Club, 205 S.W.3d at 56. An ambiguity does not arise simply because the parties advance conflicting interpretations of the contract. Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex.2006); Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861 (Tex.2000). A contract is ambiguous when its meaning is uncertain and doubtful or is reasonably susceptible to more than one interpretation. Seagull Energy E & P, 207 S.W.3d at 345; Jacobson v. DP Partners Ltd. Partnership, 245 S.W.3d 102, 106 (Tex.App.-Dallas 2008, no pet.). If the agreement can be given a certain or definite legal meaning or interpretation, it is not ambiguous, and we will construe it as a matter of law. Coker, 650 S.W.2d at 393.

Neither the parties nor the trial court found this agreement ambiguous, and we likewise agree that it is not. Its meaning is therefore a question of law. Coker, 650 S.W.2d at 394. “The intent of the parties must be taken from the agreement itself, not from the parties’ present interpretation, and the agreement must be enforced as it is written.” Calpine Producer Servs., L.P. v. Wiser Oil Co., 169 S.W.3d 783, 787 (Tex.App.-Dallas 2005, no pet.). A court will not change a contract merely because the court or one of the parties comes to dislike its provisions or thinks that something else is needed. Id.

B. Collections

Villalba’s compensation was governed by article 3 of the agreement. Article 3, paragraph 7 required the Association, its agents and employees to work together to make sure that all services performed by Villalba were properly credited for purposes of calculating Villalba’s bonus. Article 4 provided that upon termination of the agreement, Villalba was entitled to receive only the compensation accrued but unpaid as of the date of the termination. The trial court found that “on occasions in 2005 and the first two months of 2006, the Association and its agents and employees failed to bill responsible parties promptly for services rendered by Dr. Villalba, with the result that Dr. Villalba did not receive proper credit for such services for purposes of calculating her bonuses.” The court found that Villalba should be credited with additional collections from nine patients and increased Villalba’s collections by $9,660. The Association challenges the trial court’s findings and asserts Villalba did not present legally or factually sufficient evidence to support the validity of the omitted collections.

At trial, Villalba testified that during her first three years of practice, her gross charges and cash collections were consistent but in August or September, 2005, her cash collections began to drastically reduce. She noticed the Association’s billing department was submitting her claims late or failing to properly credit her for claims, which ultimately affected her collections. She testified that although she complained to Zavaleta and Kit Williams, the Association’s accountant, nothing was done. Vil-lalba explained that after a physician performs a procedure, usually the claim is submitted to insurance or the party responsible for payment within a couple of days. She conceded the Association had no control over how long it took an insurance company to process and pay a claim but in her experience, claims were generally paid within thirty days. Veronica Anderson, the Association’s chief operating officer and custodian of records, testified there was no rule within the Association that claims had to be filed within two days or thirty days. The Association just made sure to file claims within ninety days because claims filed over ninety days after service would be denied as untimely.

Villalba testified she was not credited for collections attributable to services she performed for at least eighteen patients because the claims were untimely submitted by the Association to insurance companies, or the services were credited to other doctors within the Association. With respect to the eighteen patients identified by Villalba, she described the services provided, the dates the services were performed, the dates the corresponding invoices were submitted, the amounts charged for such services, and the dates on which such amounts were paid. Villalba explained that she compiled her list of patients (the omitted collections list) after reviewing explanations of benefits received from insurance companies, surgical reports from the hospital, and patient receipts. She then compared her list with patient posting details produced by the Association.

As custodian of the Association’s records, Anderson testified that after reviewing its patient billing records, the Association determined Villalba was entitled to collections credit for three of the patients on her omitted collections list — Hinojosa, Patel, and Paz. The Association did not agree, however, that Villalba was entitled to collections credit for the other fifteen patients on her list, including the six patients for whom the trial court gave credit — Cooper, Shveta, Hernandez, Ceballos, Vijayvargiya, and Jaquez.

At trial, Villalba testified she treated Cooper on August 18, 2005, but the Association submitted the claim late and it was denied. Anderson testified the Association never billed for services to Cooper. With respect to Shveta, Villalba testified she treated her on August 8, 2005. Anderson testified she was unable to tell from the records why the Association did not bill or collect for services to Shveta. Villalba testified she treated Hernandez on November 11, 2005, but the claim for $2,665.93 was not paid until March 1, 2005. Anderson testified that Villalba was not entitled to credit because Hernandez had pelvic reconstruction surgery and only Zavaleta performed that surgery. Anderson further stated that Villalba received credit for assisting Zavaleta with the procedure. Ceballos was treated by Villalba on December 2, 2005, but the claim for $416 was submitted 227 days later. Anderson could not determine when the claim was filed but testified Ceballos used a different doctor to deliver her baby so the Association did not get paid. With respect to Vijayvargi-ya, Villalba provided service on November 30, 2005, but the Association’s posting details reflected the service date being February 28, 2006. In addition, the service was credited to a different doctor. A claim was ultimately filed on March 11, 2006, and the Association received payment of $1,836.43 on May 26, 2006. Villal-ba testified she treated Jaquez on December 31, 2005. A claim was submitted 73 days later. Anderson testified that Villal-ba was not given credit for the payment of $1971 because the claim was paid after Villalba left the Association.

In addition to Villalba, other witnesses testified at trial regarding the Association’s collection problems. Palmira Salinas, former accounts manager for the Association, testified that after Villalba submitted her notice of resignation, Za-valeta instructed Salinas to delay filing claims for insurance payments on high cost procedures. She testified that she withheld charges for all of the doctors so it would not look like only Villalba’s claims were being held. Salinas further testified that Zavaleta instructed her to not give Villalba access to patient medical and billing records.

Zavaleta testified Villalba came to him once or twice to discuss concerns about the billing department. Although he asked Villalba for specific examples that he could discuss with Salinas, the billing coordinator, Villalba failed to provide him with the information. He denied ever instructing Salinas to hold claims or restrict Villalba’s access to the medical and billing records of her patients. However, he testified that he believed Salinas held his claims because she was upset with him. Zavaleta stated that in March 2006, he hired Jacqueline Bailleu, president of JPack Medical Management Solutions, to audit the billing records to determine why collections had declined so dramatically. He testified he thought the Association was experiencing a computer problem. With respect to the decrease in Villalba’s collections, Zavaleta testified that Villalba inflated the number of surgeries for which she claimed to be the primary surgeon instead of the assistant surgeon. The amount paid to a primary surgeon is significantly higher than the amount paid to an assistant surgeon.

Bailleu testified that in March or April, 2006, Zavaleta hired her to conduct an audit of the Association’s computer system to determine why cash flow had dropped significantly in the past quarter. She discovered that from January through March, 2006, a significant number of claims had been intentionally put on hold in the computer and had never been submitted for payment. She was unable to determine who put the claims on hold. She further testified that all of the claims were for patients of Zavaleta. She found no evidence of Villalba’s claims being held. She acknowledged that she performed her audit after Villalba left the Association.

As the trier of fact, the trial court judged the credibility of the witnesses, determined the weight to be given to their testimony, and resolved conflicts and inconsistencies in the testimony. The trial court found the Association failed to promptly bill and properly credit Villalba for collections from nine patients — three patients for whom the Association agreed collections should have been credited to Villalba (Hinojosa, Patel, and Paz), and six additional patients from Villalba’s list of eighteen (Cooper, Shveta, Hernandez, Ce-ballos, Vijayvargiya, and Jaquez). The trial court found Villalba failed to sustain her burden of proof with respect to the remaining patients on her omitted collections list. Applying the appropriate standards of review, we conclude legally and factually sufficient evidence exists to support the trial court’s findings that the Association failed to properly credit Villalba for services provided to nine patients. We further conclude legally and factually sufficient evidence exists to support the trial court’s findings that Villalba’s collections should be increased by the amount of $9,660 for such services.

C. Bonus Calculation

The trial court found, and the parties do not dispute, that article 3 of the contract provided the method and formula for calculating Villalba’s compensation, including bonus. On a monthly basis, Villal-ba was to receive the first $15,000 of cash collections as compensation. The Association was entitled to retain the next $22,500 of cash collections as overhead attributable to Villalba. With respect to Villalba’s bonus calculation, the agreement states:

4. For collections attributable to Dr. Villalba which exceed $87,500.00 on a monthly basis, the excess will first go back to cover any deficits to Las Colinas OB/GYN when the Association did not receive $22,500.00 per month.
5. Assuming there is no deficit from prior months, then the excess will be accumulated and divided as follows, subject to the two “Adjustments” which are hereinbelow stated in Subparagraph 8. of this Article 3:
LAS COLINAS VILLALBA OB/GYN
First $10,000.00 monthly 70% 30%
Over $10,000.00 80% 20%

According to article 3, paragraph 8 of the agreement, the “adjustments” referenced above in paragraph 5 include fifty percent of future malpractice increases and payments the Association made to the hospital for Dr. Villalba’s accounts receivables. The agreement stated that in order for Villalba to receive a bonus, her average monthly collections had to exceed $37,500 over the term of the agreement. If not, it was possible that a bonus paid quarterly would have to be withheld from future salary. An example of the compensation calculation was attached to the agreement as Exhibit “A”; however, Exhibit “A” did not include examples of the monthly excess bonus calculation described in paragraph 5.

Using the compensation and bonus formula in the contract, the trial court calculated Villalba’s compensation and bonus for January 2005 through February 2006 and found that Villalba was owed a bonus of $26,517 on the last day of her employment. The trial court concluded that “Article 3 of the Contract did not provide for the accrual of ‘negative bonus’ amounts in months when Dr. Villalba’s collections were less than $37,500, but only allowed such deficits to be deducted from future surplus collections before Dr. Villalba was entitled to additional bonuses.”

The Association challenges the trial court’s conclusion of law as legally incorrect, and the findings of fact supporting the conclusion, based upon the court’s interpretation of the contract, as unsupported by legally or factually sufficient evidence. In support of its argument that the contract provides for accrual of negative bonus amounts, the Association points to several terms of the contract that required negative bonus adjustments, such as the negative adjustment to cover overhead deficits for prior months and the negative adjustments to monthly excess collections for malpractice insurance increases and hospital accounts receivable. We acknowledge the contract expressly authorizes such negative adjustments. However, the Association attempts to persuade us that article 3, paragraph 5 contemplates a negative bonus percentage calculation for those months in which there is no excess to be divided between Villalba and the Association.

The Association, Villalba, and the trial court each prepared a spreadsheet reflecting Villalba’s compensation and bonus calculations. All three spreadsheets used the same numbers for Villalba’s charges, collections, salary and overhead. All three spreadsheets made negative adjustments to cover malpractice insurance increases and hospital accounts receivables. All three spreadsheets used the same methodology to arrive at amounts in the monthly bonus pool and the cumulative bonus pool. The monthly bonus pool amount was determined by subtracting compensation, overhead, malpractice insurance increases and hospital accounts receivables from Vil-lalba’s monthly collections. The cumulative bonus pool amount was a running total of monthly bonus pool amounts for the term of the agreement. In months when Villalba’s monthly bonus pool was a positive number, all three spreadsheets added that positive amount to the cumulative bonus pool. Likewise, in months when Villal-ba’s monthly bonus pool was a negative number, all three spreadsheets subtracted that negative amount from the cumulative bonus pool.

The significant difference between the spreadsheets occurred in calculating bonus percentages, specifically in months when Villalba’s monthly bonus pool was a negative number. For those months, based on its interpretation of article 3, paragraph 5 of the agreement, the trial court did not calculate a bonus percentage. The Association and Villalba, on the other hand, calculated a bonus percentage on the negative amount and subtracted it from amount of total bonus to be paid to Villalba. After examining the agreement as a whole to determine the intent of the parties, we conclude the trial court properly interpreted article 3, paragraph 5 of. the agreement with respect to months in which there was no excess. The plain language of the agreement provides for a bonus percentage calculation when there is an excess. The contract does not state the bonus percentage shall be calculated on a monthly basis regardless of whether there is an excess or a deficit. Although other negative adjustments in this article are expressly stated, the agreement is silent with respect to the calculation of bonus percentages when the monthly bonus pool is a negative amount. Therefore, we conclude the agreement as written does not provide for negative bonus percentage calculations.

Although we conclude the trial court utilized the correct methodology, we conclude the trial court’s calculations were erroneous. The bonus calculation in article 3, paragraph 5 is conditioned upon there being no deficits in prior months. According to article 3, paragraph 4, “for collections attributable to Dr. Villalba which exceed $37,500 on a monthly basis, the excess will first go back to cover any deficits to Las Colinas OB/GYN when the Association did not receive $22,500 per month.” In May 2005, July 2005, January 2006, and February 2006, Villalba’s monthly bonus pool contained an excess. However, for each month there were deficits from prior months in which the Association did not receive $22,500 per month and the malpractice insurance and hospital receivables adjustments were not made. The trial court failed to first deduct amounts necessary to cover deficits for prior months before calculating the bonus percentage. Consequently, bonus amounts calculated for those months are incorrect. Because the monthly bonus calculations affect the total bonus amount to be paid to Villalba, we remand to the trial court for recalculation of Villalba’s bonus in accordance with this opinion.

D. Fair Notice

The Association contends it is entitled to a new trial because the trial court’s judgment did not conform to the pleadings. See Tex.R. Civ. P. 301. The Association asserts that because Villalba did not plead that the bonus formula applied by the Association was incorrect, the Association did not have fair notice that the trial court would find that a negative bonus adjustment was not proper under the agreement. The Association does not dispute that both parties claimed a breach of article 3 of the agreement, but argues that both did so pursuant to the Association’s interpretation of that article.

A trial court’s judgment must conform to the pleadings. Tex.R. Civ. P. 301. The petition must give fair and adequate notice of the claims asserted. SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 354-55 (Tex.1995); Moneyhon v. Moneyhon, 278 S.W.3d 874, 878 (Tex.App.-Houston [14th Dist.] 2009, no pet.). We liberally construe the petition to contain any claims that reasonably may be inferred from the specific language used in the petition and uphold the petition as to those claims, even if an element of a claim is not specifically alleged. SmithKline Beecham, 903 S.W.2d at 354. Villalba’s petition alleged she was entitled to damages based on the Association’s breach of article 3 in withholding Villalba’s salary and bonus. Interpretation of a contract is a question of law for the court. See Coker, 650 S.W.2d at 394. Notwithstanding the Association’s argument that the trial court should have used the Association’s interpretation of the bonus formula, it is well established that the intent of the parties to a unambiguous contract must be taken from the agreement itself and not from the parties’ interpretation. See Coker, 650 S.W.2d at 393; Calpine Producer Servs., 169 S.W.3d at 787. We conclude the Association had fair and adequate notice that the trial court would be construing the agreement between the parties "with particular attention on the provisions addressing Villalba’s compensation and bonus.

BREACH OF CONTRACT BY VILLALBA

In its second issue, the Association asserts the trial court erred in finding Villal-ba did not breach the contract by failing to pay back unearned bonus advances. At trial, the Association argued Villalba failed to pay back unearned bonus advances in the amount of $3,367. We conclude the trial court did not err in finding Villalba did not owe the Association for unearned bonus amounts. Even though we reverse for recalculation of Villalba’s bonus, the additional collections credited to Villalba and the trial court’s methodology for calculating Villalba’s bonus result in bonus amounts owed to Villalba by the Association. We resolve the second issue against the Association.

BREACH OF FIDUCIARY DUTY BY VILLALBA

In its third issue, the Association argues the trial court erred in finding the Association failed to prove Villalba liable for breach of contract and breach of fiduciary duty. In its counterclaim against Villalba, the Association asserted she breached the agreement and her fiduciary duty to the Association by establishing a competing medical practice, soliciting employees, and soliciting clients while still employed by the Association.

To prove its claim for breach of contract, the Association was required to establish a valid contract, the Association performed or tendered performance, Villalba breached the contract, and the Association was damaged as a result of Villalba’s breach. See Hackberry Creek Country Club, 205 S.W.3d at 55. To prove its claim for breach of fiduciary duty, the Association was required to prove the existence of a fiduciary duty, breach of the duty, causation, and damages. Abetter Trucking Co., Inc. v. Arizpe, 113 S.W.3d 503, 508 (Tex.App.-Houston [1st Dist.] 2003, no pet.).

When a party attacks the factual sufficiency of an adverse finding on an issue on which it has the burden of proof, it must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001); Phan v. Addison Spectrum, L.P., 244 S.W.3d 892, 897 (Tex.App.-Dallas 2008, no pet.); Rowlett/2000, Ltd. v. City of Rowlett, 231 S.W.3d 587, 590 (Tex.App.-Dallas 2007, no pet.). In reviewing a “matter of law” challenge, we first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Dow Chem., 46 S.W.3d at 241; Phan, 244 S.W.3d at 898. If there is no evidence to support the finding, we then examine the entire record to determine if the contrary proposition is established as a matter of law. Dow Chem., 46 S.W.3d at 241. We find error only if the contrary proposition is conclusively established. Id.; Phan, 244 S.W.3d at 898. Here, the Association had the burden of proof on its breach of contract and breach of fiduciary duty claims.

On September 18, 2008, Villalba filed a motion pursuant to rule 193.6 of the Texas Rules of Civil Procedure, seeking to exclude all evidence on damages in support of the Association’s claim for breach of contract in excess of the amount of $515 (the amount of bonus the Association claimed Villalba was overpaid and should pay back). In her motion, Villalba asserted the Association failed to disclose the amount and method of calculating its damages for its claim against her for breach of contract in excess of $515. At the pretrial hearing, the trial court heard arguments from both parties on Villalba’s motion to exclude, and based on rule 193.6, sustained Villalba’s objection to the Association’s evidence. Tex.R. Civ. P. 193.6(a). In its order, signed September 18, 2008, the trial court ordered the Association to refrain from any mention of “evidence on damages in support of Defendants’ claim for breach of contract in excess of the amount of $515.00 (for failing to disclose the amount and method of calculating same).” On September 22, 2008, Villalba filed a supplemental motion, expanding her description of evidence to be excluded due to the Association’s failure to timely disclose the amount and method of calculating damages to include any evidence in support of damages asserted by the Association on its breach of fiduciary duty and breach of loyalty claims. According to the record, the trial court did not rule on the supplemental motion but informed the parties it would consider objections to such evidence at the time they arose during the course of trial. During the trial, the trial court sustained objections to the admissibility of evidence regarding damages on the Association’s breach of contract and breach of fiduciary duty claims.

Since the record contains no evidence of damages in support of the Association’s claim for breach of contract and breach of fiduciary duty, we conclude the trial court did not err in finding the Association failed to prove Villalba was liable for breach of contract (in excess of the amount of $515 claimed as unearned bonuses) or breach of fiduciary duty. Dow Chemical, 46 S.W.3d at 242. The Association’s third issue is resolved against it.

CONCLUSION

We affirm in part and reverse in part. We affirm the judgment of the trial court as to Villalba’s omitted collections, the trial court’s interpretation of the compensation provisions of the agreement, Villalba’s breach of the agreement, and Villalba’s breach of fiduciary duty. We reverse in part and remand for recalculation of Villal-ba’s bonus.

      . The three spreadsheets added differing amounts of "omitted collections" as discussed above. Therefore, the amount of monthly collections on the three spreadsheets reflected these differences.


author: ANNE GARDNER, Justice.

text:
    Jerrel NEYLAND, Appellant, v. Jeanne RAYMOND, Appellee.
    No. 2-09-410-CV.
    Court of Appeals of Texas, Fort Worth.
    Aug. 31, 2010.

      Harry “Trey” Harris, Law Offices of Harris & Harris, Fort Worth, TX, for Appellant.
    Elizabeth Parmer, Fort Worth, TX, for Appellee.
    PANEL: GARDNER and McCOY, JJ.; and WILLIAM BRIGHAM (Senior Justice, Retired, Sitting by Assignment).
   OPINION

ANNE GARDNER, Justice.

INTRODUCTION

Appellant Jerrel Neyland appeals from a final decree divorcing him from appellee Jeanne Raymond. In three issues, Ney-land argues that the trial court abused its discretion by disproportionately dividing community property in favor of his ex-wife, Raymond. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Neyland and Raymond married in 1987. Raymond filed for divorce in July 2008, and the case came to trial on June 18, 2009. The parties stipulated that they had resolved nearly all issues between them and that the only matter remaining for the court’s adjudication was the division of the parties’ retirement accounts and their home in Burundi, Africa. The parties both represented to the court that there was no dispute concerning the values of the retirement accounts. After hearing testimony from the parties regarding the value of the Burundi home, the trial court signed a final divorce decree awarding the retirement accounts to Raymond and the Burundi home to Neyland. Neyland filed a motion for new trial, attaching new evidence that he claimed would show that the Burundi home was nearly valueless and that the property division was therefore manifestly unjust. The trial court denied Ney-land’s motion for new trial, and he now appeals.

LAW AND APPLICATION TO FACTS

A. Standard of Review

In a divorce proceeding, the trial court is charged with dividing the community estate in a “just and right” manner, considering the rights of both parties. Tex. Fam.Code Ann. § 7.001 (Vernon 2006); Boyd v. Boyd, 131 S.W.3d 605, 610 (Tex.App.-Fort Worth 2004, no pet.). Trial courts are afforded wide discretion in dividing marital property upon divorce; therefore, a trial court’s property division may not be disturbed on appeal unless the complaining party demonstrates from evidence in the record that the division was so unjust and unfair as to constitute an abuse of discretion. Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex.1985); Boyd, 131 S.W.3d at 610.

In a trial to the court in which no findings of fact or conclusions of law are filed, the trial court’s judgment implies all findings of fact necessary to support it. Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex.1996); In re Estate of Rhea, 257 S.W.3d 787, 790 (Tex.App.-Fort Worth 2008, no pet.). But when a reporter’s record is filed, these implied findings are not conclusive, and an appellant may challenge them by raising issues challenging the sufficiency of the evidence. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002); Estate of Rhea, 257 S.W.3d at 790. In family law cases, however, the abuse of discretion standard of review overlaps with the traditional sufficiency standard of review; thus, legal and factual insufficiency are not independent reversible grounds of error but are relevant factors in assessing whether the trial court abused its discretion. Boyd, 131 S.W.3d at 611.

Accordingly, to determine whether there has been an abuse of discretion because the evidence is legally or factually insufficient to support the trial court’s decision, we engage in a two-pronged inquiry: (1) did the trial court have sufficient evidence upon which to exercise its discretion, and (2) did the trial court err in its application of that discretion? Id. The applicable sufficiency review comes into play with regard to the first question. Id. We then proceed to determine whether, based on the elicited evidence, the trial court made a reasonable decision. Id.; see also Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986) (stating that, to determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable).

B. Sufficiency of the Evidence

Neyland addresses the first prong of this inquiry in his first issue by arguing that the trial court had insufficient evidence of the Burundi home’s value. The record does not set forth the specific dollar amount that the trial court found the Burundi home to be worth. However, the trial court’s judgment implies that it found the home to be sufficiently valuable that its decision to award Neyland the home and Raymond a total of $30,553.08 in the parties’ three retirement accounts was a just and right division of property. See Pharo, 922 S.W.2d at 948; Estate of Rhea, 257 S.W.3d at 790.

Anything more than a scintilla of evidence is legally sufficient to support the trial court’s implied finding of the Burundi home’s value. See Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). When reviewing an assertion that the evidence is factually insufficient to support the implied finding, we set aside the finding only if, after considering and weighing all of the evidence in the record pertinent to that finding, we determine that the evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986) (op. on reh’g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); In re King’s Estate, 150 Tex. 662, 664, 244 S.W.2d 660, 661 (1951).

Raymond’s inventory listed the current fair market value of the Burundi home as approximately $50,000 to $70,000. Ney-land’s inventory listed the current fair market value as “unknown.” At trial, Raymond testified that the home is a “very good high quality house.” It is “a big home” located “in the capital where .it’s like three bedrooms and it is in cement and bricks.” She explained that the house has “three bedrooms and then one living area and one dining area and then we have a patio attached to it together, and it has three rooms and three bathrooms and then one room for the keeper, the garden, you know.” She added that the home had a garage and a garden and that it sits on an acre of land in Burundi’s capital in “a very nice area” where government ministers also live. She testified that $70,000 was an accurate value for the property. She also stated that Neyland had rented out the house after she and Neyland had left Burundi. She testified that Neyland’s sister had “handled” the business of renting the house for them but that the sister had spent the rental money instead of putting it in the bank for them.

Neyland, for his part, testified that the home was worth only $150. He said that he had built the house himself twenty years ago but that it now had a “big crack.” He claimed that he was ready to tear down the house, but he also testified that his mother and other family members were living in the house and had been there “for a long time.” He said that his mother had to live in the house because she had a back problem and living in the house was better for her than living in the country.

After reviewing the testimony, we conclude that the trial court had sufficient evidence upon which to exercise its discretion. The parties’ evidence on the Burundi home’s value differed widely, but viewing it under the appropriate standards of review, we hold that the parties’ testimony constituted sufficient evidence upon which the trial court could base its property division. See Cont’l Coffee, 937 S.W.2d at 450; Leitch, 935 S.W.2d at 118; Pool, 715 at 635; Garza, 395 S.W.2d at 823. We overrule Neyland’s first issue.

C. Reasonableness of the Trial Court’s Exercise of Discretion

Neyland argues in his second issue that the trial court abused its discretion by awarding a disproportionate division of the parties’ property — “nearly 100%” — to Raymond. Again, because the record does not contain the trial court’s finding with regard to the Burundi home’s value, we cannot determine the relative percentages awarded to the respective parties. We can, however, infer that the trial court found that it was sufficiently valuable so that the property division was fair under the circumstances of this case. See Pharo, 922 S.W.2d at 948; Estate of Rhea, 257 S.W.3d at 790.

Even if we assume, as Neyland urges, that the trial court awarded Raymond a disproportionately large share of the marital property, a disproportionate award does not necessarily establish an abuse of discretion. A trial court may award an unequal division of marital property when a reasonable basis exists for doing so. Loaiza v. Loaiza, 130 S.W.3d 894, 899 (Tex.App.-Fort Worth 2004, no pet.). The court may consider a variety of factors in evaluating the parties’ relative positions and crafting a fair — but not necessarily equal — division of property. The trial court did not have evidence before it relating to most of these factors, but it did have Raymond’s testimony that Neyland had rented out the house and that his sister had used rental income from the home. It also had Neyland’s testimony of the nature of the home — that he had built the home himself, that his family had lived in the Burundi home “for a long time,” and that his mother had stayed there because of her bad back.

In light of the trial court’s implied finding that the Burundi home had a sufficient monetary value to render the property division just and right, and in light of the testimony regarding Neyland’s family’s longtime use of the home without any evidence of reimbursement to the community estate, we hold that Neyland has not shown that the that the division was so unjust and unfair as to constitute an abuse of discretion in this case. See Jacobs, 687 S.W.2d at 733; Boyd, 131 S.W.3d at 610. We overrule his second issue.

D. Denial of Motion for New Trial

In his third issue, Neyland argues that the trial court abused its discretion by failing to hold a hearing on his motion for new trial and by denying his motion in spite of the new evidence submitted with it. Whether to grant a new trial based on newly discovered evidence is within the discretion of the trial court. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex.1988), overruled in part on other grounds by Moritz v. Preiss, 121 S.W.3d 715 (Tex.2003); Marvelli v. Alston, 100 S.W.3d 460, 483 (Tex.App.-Fort Worth 2003, pet. denied). A party seeking a new trial on the ground of newly discovered evidence must show that (1) the evidence has come to light after trial, (2) it was not owing to want of due diligence that the evidence did not come to light sooner, (3) the new evidence is not cumulative, and (4) the evidence is so material that it would likely produce a different result if a new trial were granted. Marvelli, 100 S.W.3d at 483. The due diligence requirement has not been met if the same diligence used to obtain the evidence after trial would have had the same result if exercised before trial. Hutson v. Tri-County Properties, LLC, 240 S.W.3d 484, 491 (Tex.App.-Fort Worth 2007, pet. denied).

Neyland’s motion for new trial attached printouts from various internet websites regarding Burundi’s financial condition, gross national product, and per capita income, as well as a currency converter with the exchange rate between the Burundi franc and the United States dollar. Neyland’s motion does not contain any contention that these printouts were unavailable at the time of trial, so he has failed to satisfy the first requirement of obtaining a new trial as to this evidence. See Marvelli, 100 S.W.3d at 483.

In addition to the internet printouts, Neyland attached the deed to the Burundi property, a real estate appraisal of the property, and photographs of the home. Neyland claimed in his motion for new trial that the deed had become available only after the trial court had heard the evidence and that the real estate appraisal had been unobtainable prior to trial. He provides no further explanation regarding why the evidence was not available before trial, and he does not offer any evidence showing that he exercised due diligence in attempting to procure this evidence sooner. Moreover, he testified at trial that “the house in Burundi, the value is almost zero. I’m ready to bring — to do everything to present, Your Honor, until you see the house.” He testified that he had called his sister to find out the exchange rate, and he told the court, “I can call my sister to take the picture of the house.”

Neyland’s motion for new trial does not explain why he could not have already called his sister or otherwise obtained the new evidence before the date of trial. Neyland has therefore failed to demonstrate that it was not owing to want of due diligence that the evidence did not come his attention sooner. See Hutson, 240 S.W.3d at 491; Marvelli, 100 S.W.3d at 483. We hold that the trial court did not abuse its discretion by denying Neyland’s motion for new trial. See Jackson, 660 S.W.2d at 809; Marvelli, 100 S.W.3d at 483.

Neyland also complains that the trial court abused its discretion by failing to hold a hearing on his motion for new trial. Citing Hensley v. Salinas, 583 S.W.2d 617, 618 (Tex.1979), Neyland asserts that when a party files a motion for new trial with a sworn affidavit on the grounds of newly discovered evidence, the trial court must hold a hearing to receive the evidence. But Hensley does not require a hearing on every motion for new trial that claims newly discovered evidence; it states only that “when a motion presents a question of fact upon which evidence must be heard, the trial court is obligated to hear such evidence when the Motion for New Trial alleges facts, which if true, would entitle the movant to a new trial and when a hearing for such purpose is properly requested.” Id. Here, Ney-land’s motion contained no showing of due diligence and therefore raised no question of fact regarding his entitlement to a new trial. Accordingly, the trial court was not required to hold a hearing on his motion, and it therefore did not abuse its discretion by ruling on the motion without a hearing. We overrule Neyland’s third issue.

CONCLUSION

Having overruled Neyland’s three issues, we affirm the trial court’s judgment.

      . According to Raymond's inventory filed with the trial court, the value of her 401(k) plan was $3,567.96, and the value of her 403(k) plan was $4,061.16. Neyland’s inventory reported the value of his retirement account as $22,923.96.

      . These factors include the spouses' capacities and abilities, benefits that the party not at fault would have derived from continuation of the marriage, business opportunities, education, relative physical conditions, relative financial condition and obligations, size of the separate estates, and the nature of the property. See Schlueter v. Schlueter, 975 S.W.2d 584, 588 (Tex.1998); Murff v. Murff, 615 S.W.2d 696, 699 (Tex.1981). Other factors that the trial court may consider are fraud on the community, wasting of community assets, child custody, and fault in the breakup of the marriage. Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815, 820-21 (Tex.App.-Fort Worth 2007, no pet.).