author: COCHRAN, J.,

text:
    Antonio Zavala CARDENAS, Appellant, v. The STATE of Texas.
    No. PD-1846-09.
    Court of Criminal Appeals of Texas.
    Nov. 10, 2010.

      Maggie McBride, Hurst, for Appellant.
    Danielle A. Kennedy, Asst. Crim. D.A., Fort Worth, Jeffrey L. Van Horn, State’s Attorney, Austin, for State.
   OPINION

COCHRAN, J.,

delivered the opinion of the unanimous Court.

At appellant’s trial for aggravated sexual assault of a child, the defense attorney posed the following question during voir dire and asked each venire member to respond:

I want you to assume that you have found somebody guilty of sexual assault, aggravated sexual assault of a child. They intentionally or knowingly caused the penetration of the sexual organ of the complaining witness, of the victim, by the means of the sexual organ or any other [sic] or with a finger or with touching genital to genital ... Could you honestly ever fairly consider on an aggravated sexual assault of a child as little as five years in prison and give probation as an appropriate punishment[?]”

More than fifty members of the panel stated that they could not consider the minimum punishment. After the voir dire was completed, appellant challenged each of these jurors for cause, but the trial judge denied most of those challenges. The jury subsequently found appellant guilty and sentenced him to twenty years in prison.

The court of appeals held that defense counsel’s single voir-dire question — in combination with prior discussions of the pertinent law by the judge and the prosecutor — preserved error concerning the denial of appellant’s challenges for cause. It also held that counsel’s question was a proper one because the law requires jurors to be able to consider the full range of punishment. It reversed the case because the trial judge abused his discretion by denying appellant’s challenges for cause to jurors who unequivocally stated that they could not consider the full range of punishment. We granted the State’s petition for discretionary review to address these holdings. We agree with the court of appeals.

I.

Appellant was indicted for three counts of aggravated sexual assault of a child and a single count of indecency with a child. The charges stemmed from an incident in which Cardenas’s aunt discovered her four-year-old daughter and appellant together in bed. Suspecting that something lascivious was afoot, she drew back the bedcovers to find her daughter and appellant in a state of undress; the child’s pants and underwear were pulled down, and appellant was hastily refastening his trousers. According to the child’s testimony, appellant removed her underwear, fully exposed his penis, and rubbed his penis against her genitals. Appellant gave police a written statement admitting to “put[ting] my hand down the front of her pants” and “rubbing circles on the top of her vagina.”

After the venire panel was sworn in and before the attorneys began their voir-dire examination, the trial judge explained the general law, including the pertinent law concerning the range of punishment. During the State’s voir dire, the prosecutor asked the panel for a show of hands of those venire members who could not consider the full range of punishment for indecency with a child. Several jurors who raised their hands to indicate that they could not consider the full range of punishment were then examined in more detail. The defense later challenged two of those veniremembers because they were unable to consider the full range of punishment, and the State agreed with those challenges. The prosecutor then explained the law concerning the punishment for aggravated sexual assault of a child and repeatedly told the jurors that they must “consider the full range of punishment.... You don’t have to give it. You have to consider it.... Iam just telling you what the law says. It says for you to be on a jury, to sit here and make a decision ..., you have to be able to consider the full range.”

During his voir dire, defense counsel again explained the range of punishment for the crimes charged and the requirement that all jurors must be able to consider that full range. His final question asked whether the panel members could “honestly ever fairly consider on an aggravated sexual assault of a child as little as five years in prison and give probation as an appropriate punishment[?]” Defense counsel asked each individual venire member to answer either ‘Yes” or “No” to the question. Fifty-two of them responded that they could not consider the minimum sentence. Counsel did not seek any elaboration on their reasoning and made no attempt to rehabilitate them with further examination.

The defense counsel made forty-six challenges for cause based on the jurors’ inability to consider the full range of punishment. Of those forty-six challenges, eleven were granted with the State’s consent or lack of objection, six were granted over the State’s objection, and thirty challenges were denied.

Both sides then made their peremptory strikes. After using all of his peremptory strikes, defense counsel asked for additional peremptories and explained that nine of his strikes had been used on jurors who should have been removed for cause. He stated that he would have stricken three of the empaneled jurors had additional peremptory challenges been granted. The trial judge denied his request for more strikes, however, and the jury was sworn in over defense counsel’s objection. Ultimately, the jury convicted appellant of two counts of aggravated sexual assault of a child and a single count of indecency with a child and assessed a sentence of twenty years in prison on each count.

On appeal, appellant asserted that “the trial court erred by denying his challenges for cause to thirty members of the jury panel because they indicated that they could not consider the full range of punishment for his charges.” In holding that error was properly preserved, the court of appeals noted that the venire panel was sufficiently informed of a juror’s obligation to consider the full spectrum of punishment prior to the defense voir dire. Further, the court held that appellant had met the preservation requirements for a denied challenge for cause. While the court agreed that the defense posed a commitment question to the venire panel, it held that the question “was not improper” under the Standefer test because the question closely tracked the indictment and described the offense’s “core elements.” The court of appeals, therefore, reversed appellant’s convictions and remanded the cases for a new trial.

II.

Both the State and defense are entitled to jurors who can consider the entire range of punishment for the particular statutory offense — i.e., from the maximum to the minimum and all points in between. Jurors must be able to consider both “a situation in which the minimum penalty would be appropriate and ... a situation in which the maximum penalty would be appropriate.” Therefore, both sides may question the panel on the range of punishment and may commit jurors to consider the entire range of punishment for the statutory offense. A question committing a juror to consider the minimum punishment is both proper and permissible. However, counsel veers into impermissible commitment questions when he attempts to commit a veniremember to consider the minimum sentence based on specific evidentiary facts. For example, a party may ask the potential juror if he could consider the minimum of five years’ imprisonment in a murder case, but he may not ask if the juror could consider five years in prison in a case in which the State alleged that the defendant “tortured, garroted, poisoned, and pickled” the victim. The nonstatutory manner in which the defendant was alleged to have committed the offense adds evidentiary facts peculiar to the case on trial. That question, because it goes beyond the statutory elements and statutory manner or means, is improper under Standefer,

Once a juror expressly admits his bias against a phase of law upon which both the State and defense are entitled to rely, a sufficient foundation has been laid to support a challenge for cause. A juror who states that he cannot consider the minimum punishment for a particular statutory offense is subject to a challenge for cause. The opposing party or trial judge may then examine the juror further to ensure that he fully understands and appreciates the position that he is taking, but unless there is further clarification or vacillation by the juror, the trial judge must grant a challenge for cause if the juror states that he cannot consider the full range of punishment.

III.

A. Preservation

In its first ground for review, the State contends that the court of appeals erred in holding that appellant properly preserved the trial court’s denial of his challenges for cause. The State asserts that appellant failed to ask follow-up questions to confirm that the panel was fully aware of the law’s requirements. Therefore, according to the State, he forfeited the issue. We disagree. When the venire members have repeatedly been told of their obligation under the law to consider the full range of punishment for the statutory offense and there is no indication of their confusion, the complaining party need not ask any follow-up questions regarding their full and complete understanding of the law to preserve error.

The jury pool assembled for appellant’s trial had been twice apprised of the applicable range of punishment, once by the trial judge and again by the State, before defense counsel’s voir dire. There was no ambiguity or confusion in how the law was explained by either the trial judge or prosecutor. Indeed, the State was the first party to broach the topic of probation, providing the jury with a detailed explanation of its intricacies. The State was also the first party to ask if the panel members could consider the entire range of punishment. But the State simply asked for jurors to raise their hands if they could not consider the full range of punishment. Few volunteered. When defense counsel posed his question to each juror individually, two of them asked for further explanation, which counsel then gave. All of the others simply answered “Yes” or “No.” It is a fair inference that those jurors who did not ask questions or seek further clarification understood what probation is, that probation was an option in this case, and that five years in prison or on probation was the minimum punishment available. Therefore, anyone who responded in the negative to counsel’s question as to whether that juror could consider “as little as five years in prison and give probation as an appropriate punishment” expressed a bias against a phase of law on which the defense was entitled to rely. Absent any further questioning by the trial judge or the prosecutor to clarify each juror’s stated position, the judge was required to grant appellant’s challenges for cause.

In this case, there was no need for defense counsel to ask the panel members a further question, as the State urges. The State cites to Gardner v. State for the proposition that appellant must show that each veniremember “understood the requirements of the law and could not overcome his prejudice well enough to follow the law” and argues that, without followup questions, this burden has not been met. But in Gardner the issue was one of the uncertainty with which the particular veniremembers expressed their ability to comply with the law. One venireperson was described as “changing] her mind with each question,” while another was identified as a “classic vacillating juror.” No such vacillation plagued the jury panel in this case. A juror who — after the range of punishment has been explained to him as it was in this case by the trial judge, the prosecutor, and the defense counsel — unequivocally says “No” when asked if he can consider the minimum sentence has stated in the most concrete terms that he cannot follow that law. At that point, counsel need ask nothing more. The judge or the opposing party could explain the law further in the hope of having the juror reconsider his position, but, absent such rehabilitation, that juror is subject to a challenge for cause.

We hold that appellant properly preserved for review his denied challenges for cause.

B. Counsel’s Question was not an Improper Commitment Question

In its second ground for review, the State argues that appellant’s question “was replete with facts that would have bound jurors to a certain answer after learning several ‘hypothetical’ facts that were taken straight from the facts of the actual case.” At trial, the prosecutor argued that certain “magic” language was necessary to support a challenge for cause. In his view, defense counsel was required to add the phrase, “if the facts justify it and the law allows it” to create the proper foundation for challenges. No such magic language is required.

First, appellant’s counsel asked the jurors if they could “ever fairly consider” five years in prison or give probation as an appropriate punishment in an aggravated sexual assault of a child case. The plain meaning of defense counsel’s question is “could you ever consider — under any facts at all — the minimum punishment?” The word “ever” would certainly encompass “if the facts justify it,” thus the first half of the State’s proposed language is implicit in the question asked.

Second, there is no doubt that the “law allow[ed]” five years in prison or on probation as a punishment for aggravated sexual assault at the time this case was tried in 2005. Forcing defense counsel to tack on “if the law allows it” would turn a correct statement of the offense’s minimum punishment into something far more enigmatic, especially since the trial judge, prosecutor, and defense counsel had already told the jurors what the minimum punishment was. Appellant’s counsel elicited a clear and concise response from each panel member as to whether he could consider the minimum punishment as the law allows. The second half of the State’s proposed language would not aid in explaining the law; it would almost certainly mystify the jurors, as they had already been told that the law did allow five years in prison or on probation as the minimum punishment.

The State’s final argument is that the scenario painted by defense counsel contained too many hypothetical facts. But defense counsel’s words in prefacing his question closely tracked the statutory language of the Penal Code. His question contained no evidentiary facts; all of the facts contained in his question were statutory elements or statutory manners and means. The State cites Sells v. State, , in which we held that the question, “Can you imagine a set of circumstances, set of facts where you would find a person guilty of capital murder, of killing a young girl where you would [not impose the death penalty?]” was an improper commitment question. That question “sought to commit [the venireperson] to a particular answer after learning a particular fact,” namely, that a young girl had been killed. The capital murder statute in Texas has no statutory element of a “young girl” being killed. The defendant in Sells had been charged with murder in the course of committing burglary, thus the age of the victim was irrelevant for purposes of Stande-fer commitment questions. But had the defendant been charged with capital murder for the intentional killing of a child under six, he could have properly committed the jurors to consider a sentence other than the death penalty for the murder of a child under six.

Likewise, in Atkins v. State, we held that the question, “If the evidence, in a hypothetical case, showed that a person was arrested and they had a crack pipe in their pocket, and they had a residue amount in it, and it could be measured, and it could be seen, is there anyone who could not convict a person, based on that[?]” was an improper commitment question. A proper commitment question would have been “Can you follow a law that says a person can be found guilty of possessing a residue amount?” The latter language remains the proper phrasing under today’s holding as it contains no evidentiary facts or non-statutory manners and means.

Defense counsel’s commitment question contained no evidentiary facts such as “Can you consider the minimum sentence if the child was a relative of the defendant’s?” Or “Can you consider the minimum sentence if the child was a four-year-old?” Or “Can you consider the minimum sentence if the child was of the same sex as the defendant?” Those are improper questions because they go beyond the statutory language of the criminal offense. Here, counsel did not include any facts in his hypothetical that went beyond the statutory elements and statutory manner and means of committing that offense.

C. Conclusion

We hold that the court of appeals was correct in concluding that the trial court abused its discretion by denying appellant’s challenges for cause to jurors who unequivocally stated that they could not consider the minimum punishment. A commitment question may include any or all of the statutory elements and statutory manners and means contained in the indictment, but the inclusion of evidentiary facts or non-statutory manners and means remains improper under the Standefer test.

We affirm the judgment of the court of appeals.

      . Cardenas v. State, 305 S.W.3d 773, 780 (Tex.App.-Fort Worth 2009).

      . Id. at 781-82.

      . Id. at 782.

      . The State’s grounds for review are as follows:
      1. Did the Court of Appeals err in determining that Appellant’s blanket question to the entire venire panel — with no follow up— was sufficient to preserve error?
      2. Was Appellant’s question — which inquired whether, in an intentional and knowing sexual assault of a child, by means of digital or genital penetration of the victim, the jury could ever give probation as an appropriate punishment-an improper commitment question?

      . The judge explained that appellant is charged with the offense of aggravated sexual assault of a child. The range of punishment for that offense is not less than five nor more than 99 years or life in the Institutional Division of the Texas Department of Criminal Justice. In addition to that, a fine of up to $10,000 may be assessed. The range of punishment for the offense of indecency with a child is not less than two nor more than 20 years in the Institutional Division of the Texas Department of Criminal Justice. And in addition to that a fine of up to $10,000 may be assessed in that case also.
      Probation is an option if the sentence is ten years or less. The defendant may be granted probation if, one, he has never before been convicted of a felony offense and the jury determines that the defendant deserves probation.

      . The prosecutor explained that indecency with a child is a second-degree felony. This is for touching. It can even be touching the private areas, the breasts, anus, the female sexual organ with your hand. And it can even be over the clothes. And we talked about that. It’s between a minimum of two years all the way up to 20 years in prison and also up to a $10,000 fine....
      So between — for indecency with a child, can everyone on my right, your left, keep an open mind and consider the minimum of two all the way up to 20 years in prison? Can everyone do that?
      [Response by a show of hands]
      Okay. And I am going to flip it around. Is there anyone who cannot do that?

      . Panel members numbers seven and twenty-six.

      . The prosecutor and the defense used very similar language and techniques in questioning the panel regarding the range of punishment, but the prosecutor asked the panel members to voluntarily raise their hands if they could not follow the law concerning the range of punishment, while the defense counsel asked every panel member to respond "Yes” or "No.”

      . After the defense made its first challenge for cause, the prosecutor stated,
      Judge, we would object to that. Counsel asked the wrong question, is the bottom line. And frankly, to make it easier, I assume he will challenge for cause numerous other jurors. There’s some that we would agree to, but for the most part, he asked the wrong question, and that’s the bottom line. His question very specifically was, "Can you honestly ever fairly consider as little as five years in prison and give probation as an appropriate punishment,” and that’s not what the law provides. And frankly, I think this court has been present in other jury selections where Defense counsel asked the wrong question. And the real question that is supported by case law is if the facts justify it and the law allows it, can you consider it. And counsel very specifically asked him to entertain a hypothetical and to imagine factual circumstances where they could give that, and that’s inappropriate. It’s the wrong question. And we would agree to the challenges for cause which I anticipate are coming on the Defense part for No. 7, 8, 9, 16, 17, 26, 34, 52 and 68. Everyone else challenged under that question, we would object to.

      . Appellant’s motion for a directed verdict of not guilty was granted on one of the aggravated sexual assault counts.

      . Cardenas, 305 S.W.3d at 776.

      . Id. at 780 (”[W]e hold that under the limited circumstances of this case, such a followup question was not required. The jury had previously been repeatedly informed by the trial court and the State that a jury must act without prejudice and that the law commands that they consider the minimum punishment regardless of their personal views, and in that context, the panel members’ answers to the question at issue demonstrated that they could not do so.”).

      . Id. (“To preserve error on his challenges for cause, [appellant] had to (1) assert a clear and specific challenge for cause, (2) use a peremptory challenge on the complained-of veniremember, (3) exhaust all of his peremptory challenges, (4) request and be denied additional peremptory challenges, and (5) be forced to accept an objectionable juror on the jury. [Appellant] did all of these things; the State has not argued otherwise.”) (internal citations omitted).

      . Standefer v. State, 59 S.W.3d 177, 182 (Tex.Crim.App.2001) ("[F]or a commitment question to be proper, one of the possible answers to that question must give rise to a valid challenge for cause.").

      . Cardenas, 305 S.W.3d at 782.

      . Id. at 781-82.

      . Johnson v. State, 982 S.W.2d 403, 405-06 (Tex.Crim.App.1998).

      . Fuller v. State, 829 S.W.2d 191, 200 (Tex.Crim.App.1992).

      . See Martin v. State, 200 S.W.3d 635, 640 (Tex.Crim.App.2006) (both the defense and the State are permitted to voir dire potential jurors concerning the range of punishment for felony and misdemeanor driving-while-intoxicated charges); Mathis v. State, 576 S.W.2d 835, 839 (Tex.Crim.App.1979).

      . Davis v. State, 313 S.W.3d 317, 346 (Tex.Crim.App.2010) ("When the law requires a certain type of commitment from jurors, such as considering the full range of punishment, an attorney may ask prospective jurors to commit to following the law in that regard.”).

      . See Standefer, 59 S.W.3d at 181 (“[Q]uestions concerning a juror's ability to consider the full range of punishment for a particular offense meet ... the definition of commitment questions but are nevertheless proper.”).

      . See, e.g., Barajas v. State, 93 S.W.3d 36, 38, 40 (Tex.Crim.App.2002) (improper to ask whether jurors could be impartial in a case involving a victim who was eight to ten years old); Moore v. State, 999 S.W.2d 385, 406-07 (Tex.Crim.App.1999) (improper to ask juror, who stated that she could consider youth as a mitigating factor, whether she would consider a nineteen-or twenty-year-old a "youth" for purposes of imposing the death penalty); Penry v. State, 903 S.W.2d 715, 740 (Tex.Crim.App.1995) (improper to ask whether victim-impact evidence would prevent a juror from assessing a life sentence).

      . See Barajas, 93 S.W.3d at 38 n. 1.

      . See Williams v. State, 773 S.W.2d 525, 536 (Tex.Crim.App.1988) (holding that a juror is biased as a matter of law if he unequivocally expresses an inability to consider five years probation as possible punishment for the lesser-included offense of murder in a capital-murder trial); see also Jordan v. State, 635 S.W.2d 522, 523 (Tex.Crim.App.1982) (reversible error to deny a defendant’s challenge for cause against a juror who could not consider probation for the lesser-included offense of murder in a capital murder case).

      . Cumbo v. State, 760 S.W.2d 251, 255-56 (Tex.Crim.App.1988); Pierce v. State, 696 S.W.2d 899, 902 (Tex.Crim.App.1985) (defendant has the right to challenge for cause any juror who could not give the minimum punishment, including probation).

      . See Moore v. State, 999 S.W.2d 385, 400 (Tex.Crim.App.1999) ("When the record reflects that a venireman vacillates or equivocates on his ability to follow the law, the reviewing court must defer to the trial court.”).

      . The prosecutor explained,
      Let me show you what the requirements of probation are. Probation, first of all, it’s a court ordered supervision of a person who has been found guilty. The sentence is suspended. In a case you would have to say, okay, we heard the facts and he is deserving of ten years or less. And not only that, we believe for whatever reason — I don’t know what the situation would be, but you would believe in this situation that he was deserving of not going to prison and having that sentence suspended. While he is on probation if he violates the conditions, the judge may revoke the probation and order the defendant to carry out the remainder of his sentence in prison or in custody. The requirements: You cannot have ever been convicted of a felony before. And then prior to the trial even starting, the defendant has to file an application or a petition. And this is what else you would have to have: The jury would have to unanimously agree that the sentence should be ten years or less. Okay? You would have to agree on that. In addition to agreeing on that, the defendant must deserve, he must deserve probation. And eligibility, just because he is eligible for it, he doesn’t have a prior felony, doesn't mean he is entitled to it. Okay?
      So what I’m talking about here is that included in the range of punishment of five to 99 years or life for aggravated sexual assault and two to 20 years for indecency with a child is also, if these things are proven, the possibility of probation. Okay? So the question I have for you, since you haven’t heard any evidence, can you consider the full range of punishment? Can you consider the full range of punishment? And remember, in order for the lower end, including probation, these things would have to be there. And most importantly, the defendant would have to deserve probation. And guess who gets to decide that? You do. You do. So, not having heard anything more at this point, I know it's a long process here, on my left, your right, this section, can you guys consider the full range of punishment for both cases since you haven’t heard any evidence yet, all right, and afford him his rights?

      . One juror asked, "Is this probation on top of the five years or is it probation of five years?” Defense counsel responded, "The length of probation is determined by the judge. His sentence is five years and you recommend probation." That juror then asked, "So would the probation be up to five years? Or would it be on top of the five years?” The trial judge intervened and said, "I think [the prosecutor] indicated earlier that the sentence would be served on probation, then he would serve the five years in the penitentiary.” Another juror then said that he did not hear the judge’s statement, and counsel explained, "It would be a sentence in prison, but probation for a certain length of time that’s determined by the judge. And if they violate that, then they would serve that time in prison.”

      . Before trial, appellant filed a motion for probation and swore that he had never been convicted of a felony.

      . 306 S.W.3d 274 (Tex.Crim.App.2009).

      . Id. at 295.

      . Id. at 297.

      . Id. at 298.

      . See Williams, 773 S.W.2d at 536.

      . Pierce v. State, 696 S.W.2d 899, 902-03 (Tex.Crim.App.1985) (rejecting State's argument that defense counsel’s voir dire question concerning the minimum punishment was too broad to preserve error, and stating "had the State been concerned about this deficiency in questioning, they had ample opportunity to address this specific question to both [venire members]. As it was, the State made no attempt to question either juror about probation.”).

      . The State also asserts that appellant’s hypothetical asked the jurors whether they would "be able to grant-not consider, but grant' — -probation under these specific facts.” State’s Brief at 8. Although it might be possible to interpret defense counsel’s question as asking if jurors could give probation rather than consider giving probation, no juror seemed to misunderstand that counsel was asking them if they could follow the law regarding the minimum punishment. The State urges that, under a proper interpretation of the question, the word "give” transforms the entire sentence into an improper commitment question. According to the State’s view, defense counsel was asking the panel members if they could merely consider five years of imprisonment while at the same time firmly resolving to give probation. This reading is overly strained.
      First, a more appropriate meaning to assign the question, and the one we believe that defense counsel conveyed to the jury, is whether the panel members could consider giving probation in an aggravated-sexual-assault-of-a-child case. This interpretation simply reflects the prosecutor’s previous voir dire explanation concerning the availability and requirements of probation. See note 27 supra.

      Second, had the tone and tenor of counsel’s question conveyed the notion that the jurors must commit to actually granting probation, the experienced trial prosecutor surely would have objected to that improper question. He did not do so, either at the time counsel posed the question to the panel and asked for individual responses, or at the time he objected to defense counsel’s challenges for cause. Clearly, he did not think it was an improper question; he simply believed that it was not a sufficient question to establish bias against the minimum punishment.
      Third, the State did not make this argument in the court of appeals, therefore that court had no opportunity to address it. Having failed to raise this argument either at trial or on direct appeal, the State comes too late now.

      . See note 9 supra.

      . The generally accepted definitions of "ever” include, "At any time”; "On any supposition, by any chance, at all”; "In any degree.” The Compact Edition of the Oxford English Dictionary, 907-08 (Oxford University Press 1971).

      . Tex. Penal Code §§ 12.32(a) (minimum punishment for a first-degree felony is five years), 22.021(e) (aggravated sexual assault is a felony of the first degree); Tex.Code Crim. Proc. art. 42.12, § 4(a) (allowing jury-assessed probation). For offenses committed on or after September 1, 2007, a jury may not recommend probation in an aggravated-sexual-assault case if the victim is younger than fourteen years old. Tex.Code Crim. Proc. art. 42.12, § 4(d)(5).

      . The pertinent sections of the Penal Code read: "A person commits an offense ... if the person ... intentionally or knowingly ... causes the penetration of the anus or sexual organ of a child by any means; ... [or] causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person including the actor[.]” Tex. Penal Code § 22.02l(a)(l)(B)(i) & (iii).
      Counsel’s question tracks those statutory provisions:
      I want you to assume that you have found somebody guilty of sexual assault, aggravated sexual assault of a child. They intentionally or knowingly caused the penetration of the sexual organ of the complaining witness, of the victim, by the means of the sexual organ or any other [sic] or with a finger or with touching genital to genital.

      . See Barajas v. State, 93 S.W.3d 36, 38 n. 1 (Tex.Crim.App.2002) ("Parties may not ask whether venire members can consider probation under the particular facts of the case beyond the offense as charged in the indictment.”).

      . 121 S.W.3d 748 (Tex.Crim.App.2003).

      . Id. at 757-58.

      . Tex. Penal Code § 19.03(a)(8)

      . 951 S.W.2d 787 (Tex.Crim.App.1997).

      . Id. at 789.

      . Id. at 790; see also Tex. Health & Safety Code § 481.115(b) (possession of less than one gram of a Penalty Group I substance is a state-jail felony).


source: Caselaw Access Project

author: HOLCOMB, J., MEYERS, J.,

license: Public Domain

text:
    Chris Joshua MEADOUX, Appellant, v. The STATE of Texas.
    No. PD-0123-10.
    Court of Criminal Appeals of Texas.
    Nov. 17, 2010.

      J. Cheves Ligón, Public Defender, San Antonio, for Appellant.
    J. Barrett Shipp, Asst. D.A., San Antonio, Jeffrey L. Van Horn, State’s Attorney, Austin, for State.
   HOLCOMB, J.,

delivered the opinion of the Court,

in which KELLER, P.J., and PRICE, WOMACK, KEASLER, HERVEY, and COCHRAN, JJ., joined.

The court of appeals held that the Eighth Amendment did not bar Chris Joshua Meadoux’s sentence of life without parole for a capital crime that he committed at the age of sixteen. We affirm.

On October 3, 2007, a Bexar County grand jury returned an indictment charging Meadoux with capital murder under Texas Penal Code § 19.03(a)(2) and (a)(7). On August 4, 2008, the State brought Mea-doux to trial under the indictment. During the guilt stage of trial, the State presented evidence that, on January 24, 2007, in Bexar County, Meadoux murdered Luis Martinez and Johnny You during a single criminal transaction and then tried to cover up his crime by burning the victims’ bodies in a house fire. At the conclusion of the guilt stage, the jury found Meadoux guilty as charged in the indictment. The trial court, in accordance with Texas Penal Code §§ 8.07(c) and 12.31(a), assessed Meadoux’s punishment at imprisonment for life without the possibility of parole.

On direct appeal, Meadoux argued, for the first time, that the prohibition on cruel and unusual punishments contained in the Eighth Amendment barred the State from subjecting a juvenile capital offender to imprisonment for life without parole. Meadoux argued, in effect, that Texas Penal Code § 12.31(a), as it was then written, was unconstitutional as applied to juveniles. See footnote two, supra. More specifically, Meadoux argued that: (1) juveniles were less morally culpable (i.e., less blameworthy) for their crimes than are adult offenders; (2) life imprisonment without the possibility of parole did “not serve as a measurable deterrent [for] juveniles”; and (3) the Legislature’s recent amendment of Texas Penal Code § 12.31(a) to provide for life imprisonment with the possibility of parole for juvenile capital offenders “signifie[d] that the evolving standard of decency, at least in Texas, forb[ade] the categorical assessment of [life without parole] for juvenile capital offenders.” For a remedy, Mea-doux asked that the case be remanded to the trial court “for sentencing that takes into consideration the particular circumstances in this case.”

In its response brief, the State argued simply that Meadoux did “not provide any persuasive authority holding that a juvenile may not be constitutionally sentenced to imprisonment for life [without parole].” Notably, the State did not challenge Mea-doux’s right to argue his Eighth Amendment claim for the first time on appeal.

The court of appeals, with little substantive analysis, rejected Meadoux’s Eighth Amendment claim and affirmed the trial court’s judgment. Meadoux v. State, 307 S.W.3d 401, 415-17 (Tex.App.-San Antonio 2009). We granted Meadoux’s petition for discretionary review in order to determine whether the court of appeals erred in rejecting his Eighth Amendment claim. See Tex.R.App. Proc. 66.3(b).

In his brief to this Court, Meadoux reiterates the arguments that he made below and, in addition, argues that: (1) “juveniles are unfinished creatures whom we cannot label as irretrievably depraved”; (2) “placing [a juvenile] in prison for life without parole enacts disproportionately severe retribution and inflicts needless pain and suffering”; (3) “ensuring public safety can be met with life sentences and the parole system”; and (4) although “the majority of states have available juvenile life without parole,” “the Eighth Amendment is not a ‘constitutional Gallup poll’ designed to mandate whatever the day’s consensus is.”

In its response brief, the State argues that: (1) the Eighth Amendment “contains no textual or jurisprudential basis for a categorical ban on life sentences without parole for juveniles of a certain age who commit heinous, violent murders”; (2) “a majority of [American] jurisdictions have statutes allowing life sentences without parole for juvenile offenders”; and (3) “[t]he Eighth Amendment allows ... legislatures to make judgments to protect public safety requiring incapacitating juvenile offenders who have been convicted of [capital] murder.”

The Eighth Amendment to the Constitution of the United States provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This provision was made applicable to the states by the Due Process Clause of the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 666-67, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). In determining whether a particular punishment is cruel and unusual, “courts must look beyond historical conceptions to ‘the evolving standards of decency that mark the progress of a maturing society.’ ” Graham v. Florida, — U.S. —, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010) (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion)). “This is because ‘the standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.’ ” Kennedy v. Louisiana, 554 U.S. 407, 419, 128 S.Ct. 2641, 2649, 171 L.Ed.2d 525 (2008) (quoting Furman v. Georgia, 408 U.S. 238, 382, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Burger, C.J., dissenting)).

In accordance with contemporary national standards of decency, the Eighth Amendment prohibits the imposition of punishments that are inherently barbaric or grossly disproportionate to the offense. Graham, 130 S.Ct. at 2021. Meadoux’s argument, in effect, is that life without parole is a grossly disproportionate punishment when assessed against a juvenile capital offender. In the parlance of the United States Supreme Court, Meadoux’s argument is “a categorical challenge to a term-of-years sentence.” Id. at 2022.

When faced with such a categorical challenge, the judiciary, in determining whether the punishment at issue is grossly disproportionate to the offense, must consider: (1) whether there is a national consensus against imposing the punishment for the offense; (2) the moral culpability of the offenders at issue in light of their crimes and characteristics; (3) the severity of the punishment; and (4) whether the punishment serves legitimate penological goals. Id. at 2022 & 2026.

National Consensus. The best evidence of a national consensus with respect to the appropriateness of a particular punishment for a particular offense is the legislation enacted by the nation’s legislatures. Atkins v. Virginia, 536 U.S. 304, 312, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). “Actual sentencing practices are [also] an important part of [a court’s] inquiry into consensus.” Graham, 130 S.Ct. at 2023.

Meadoux concedes that the majority of states have available, in their penal statutes, life imprisonment without the possibility of parole for juvenile homicide offenders, and he has offered no evidence indicating that sentencers in those states are actually moving away from assessing such punishment to such offenders. He points to the Texas Legislature’s recent amendment of Texas Penal Code § 12.31(a), requiring life imprisonment with the possibility of parole for juvenile capital offenders, as evidence of this state’s contemporary standards of decency. But such evidence does not prove a national consensus with respect to the appropriateness of life without parole for juvenile capital offenders. We also note that the Legislature specified that the amendment of § 12.31(a) was not to be applied retroactively, suggesting that the Legislature did not think it was actually cruel and unusual to impose life without parole on juvenile capital offenders.

In short, Meadoux has not established that there is presently a national consensus against imposing life without parole on a juvenile for the offense of capital murder.

Moral Culpability. In Graham, 130 S.Ct. at 2026, the Supreme Court stated:

“Roper [v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005),] established that because juveniles have lessened culpability they are less deserving of the most severe punishments. As compared to adults, juveniles have a lack of maturity and an underdeveloped sense of responsibility; they are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure; and their characters are not as well formed. These salient characteristics mean that it is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption. Accordingly, juvenile offenders cannot with reliability be classified among the worst offenders. A juvenile is not absolved of responsibility for his actions, but his transgression is not as morally reprehensible as that of an adult.” (Citations and internal quotation marks omitted.)

On the other hand, the Supreme Court also recognized in Graham that there is a moral line between murder— and, we would add, capital murder — and other serious violent offenses against the individual. Graham, 130 S.Ct. at 2027. Defendants who kill are categorically more deserving of the most serious forms of punishment than are defendants who do not kill, intend to kill, or foresee that life will be taken. Ibid. Serious nonhomieide crimes may be devastating in their harm, but in terms of moral depravity and of the injury to the person and to society, they cannot be compared to murder, especially capital murder, in their severity and irre-vocability. Ibid.

It follows that a juvenile capital offender’s moral culpability is still great even if it is diminished as compared to that of an adult capital offender.

The Punishment. Life imprisonment without the possibility of parole is the second most severe penalty permitted by our law. In Graham, 130 S.Ct. at 2027-28, the Supreme Court stated:

“[L]ife without parole sentences share some characteristics with death sentences that are shared by no other sentences. The State does not execute the offender sentenced to life without parole, but the sentence alters the offender’s life by a forfeiture that is irrevocable. It deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency — the remote possibility of which does not mitigate the harshness of the sentence.
“Life without parole is an especially harsh punishment for a juvenile. Under this sentence a juvenile offender will on average serve more years and a greater percentage of his life in prison than an adult offender. A 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only. This reality cannot be ignored.” (Citations omitted.)

Penological Goals. Four goals of penal sanctions have been recognized as legitimate: retribution, deterrence, incapacitation, and rehabilitation. Id. at 2028. “A sentence lacking any legitimate peno-logical justification is by its nature disproportionate to the offense.” Ibid.

Society is entitled to impose severe sanctions on a juvenile capital offender “to express its condemnation of the crime and to seek restoration of the moral imbalance caused by the offense.” Ibid. But “[tjhe heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender.” Tison v. Arizona, 481 U.S. 137, 149, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). So, “[w]hether viewed as an attempt to express the community’s moral outrage or as an attempt to right the balance for the wrong to the victim, the case for retribution is not as strong with a minor as with an adult.” Roper, 543 U.S. at 571, 125 S.Ct. 1183. Nevertheless, in the case of a juvenile capital offender, the case for retribution is still strong.

Deterrence, on the other hand, is not served by imposing life without parole, as opposed to imposing life with parole, on a juvenile capital offender. “[T]he same characteristics that render juveniles less culpable than adults suggest ... that juveniles will be less susceptible to deterrence.” Ibid. “Because juveniles’ lack of maturity and underdeveloped sense of responsibility often result in impetuous and ill-considered actions and decisions, they are less likely to take a possible punishment into consideration when making decisions.” Graham, 130 S.Ct. at 2028-29 (citation, internal quotation marks, and some punctuation omitted). To the extent that any punishment has a deterrent effect on a teenager, the punishment of life with parole is itself a severe sanction, especially for a youth.

Regarding the penological goal of incapacitation, Meadoux argues that public safety can be ensured “with life sentences and the parole system.” He argues specifically that “[t]ime-tested guidelines are already in place in Texas to assess whether an applicant for parole is too risky to be released back into civil society.” Nevertheless, we believe that, given the enormity of the crimes committed by juvenile capital offenders, the Legislature could reasonably conclude that such offenders are incorrigible or probably so, and that the only prudent course of action is to separate them from society forever.

As for rehabilitation, “a sentence of life imprisonment without parole ... cannot be justified by [it].” Id. at 2029-30. “The penalty forswears altogether the rehabilitative ideal. By denying the defendant the right to reenter the community, the State makes an irrevocable judgment about that person’s value and place in society.” Id. at 2030.

We can summarize the preceding discussion as follows: (1) Meadoux has not established that there is presently a national consensus against imposing life without parole on a juvenile for the offense of capital murder. (2) A juvenile capital offender’s moral culpability, even if diminished as compared to that of an adult capital offender, is still great. (3) Life without parole is a severe sentence, especially for a juvenile. (4) Life without parole for juvenile capital offenders finds justification in the penological goals of retribution and incapacitation but not in the goals of deterrence or rehabilitation. Considering and balancing these four factors together, we conclude that Meadoux has not carried his burden of showing that, according to contemporary national standards of decency, the punishment of life without parole for juvenile capital offenders is grossly disproportionate to the offense.

We overrule Meadoux’s ground for review and affirm the judgment of the court of appeals.

MEYERS, J., filed a dissenting opinion, in which JOHNSON, J., joined.

MEYERS, J.,

dissenting in which JOHNSON, J., joined.

When the Supreme Court said, in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), that the Eighth Amendment forbids the execution of anyone under the age of 18, Texas commuted the sentences of juveniles on death row to life in prison. Shortly thereafter, the Legislature amended the Capital Felony section of the Penal Code and instituted life without parole for offenses committed on or after September 1, 2005. However, effective September 1, 2009, the Legislature added a provision to that section stating that juveniles found guilty of a capital felony shall receive a life sentence rather than life without parole. See Tex. Penal Code § 12.31(a). Because Appellant’s offense occurred in 2007, he is stuck in the period between the commutation of death sentences to life that occurred in 2005 and the Texas Legislature’s decision to prohibit life without parole for offenses committed by juveniles on or after September 1, 2009. This is similar to what occurred after Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (Penry I), where the Supreme Court held that the jury instructions at the punishment hearing did not provide for consideration of mitigating evidence, but the Texas Legislature did not add the mitigation special issue to Code of Criminal Procedure Article 37.071 until 1993. In that situation, we allowed new punishment hearings, with the proper instructions, for those whose trial occurred between Penry I’s 1989 holding that the jury did not have an adequate vehicle to give effect to mitigating evidence and the Legislature’s 1993 change to the statute. Here we should conclude that juveniles who were sentenced to life without parole between 2005 and 2009 should be given a new punishment hearing.

Considering that juveniles who were previously on death row, who were found by a jury to be a future danger, and who were sentenced to death had their sentences commuted and now have a chance of parole, it’s ridiculous to say that a juvenile who was not even eligible for the death penalty should have received a sentence of life without parole. The fact that Texas commuted the sentences of juveniles on death row to life, rather than life without parole, and that our Legislature subsequently determined that life without parole is inappropriate for juvenile offenders indicates that the sentence in Appellant’s case is unreasonably harsh. Therefore, I respectfully dissent.

      . Meadoux, who was sixteen at the time of the offense, was certified to stand trial as an adult. See Tex. Fam.Code § 54.02.

      . Texas Penal Code § 8.07(c) provides: "No person may, in any case, be punished by death for an offense committed while the person was younger than 18 years.” At the time of Meadoux’s offense, Texas Penal Code § 12.31(a) provided in relevant part: "An individual adjudged guilty of a capital felony in a case in which the state does not seek the death penalty shall be punished by imprisonment in the institutional division for life without parole.”
      In 2009 the Legislature amended § 12.31(a) to provide in relevant part: "An individual adjudged guilty of a capital felony in a case in which the state does not seek the death penalty shall be punished by imprisonment in the Texas Department of Criminal Justice for life [i.e., with parole], if the individual's case was transferred to the court under Section 54.02, Family Code.” The Legislature provided that the amendment of § 12.31(a) "applie[d] only to an offense committed on or after [September 1, 2009].”

      . Meadoux cited Holberg v. State, 38 S.W.3d 137, 139 n. 7 (Tex.Crim.App.2000), for the proposition that he could raise the validity of the Texas capital sentencing scheme for the first time on appeal. In Holberg we relied upon Rabb v. State, 730 S.W.2d 751, 752 (Tex.Crim.App.1987), for the rule that questions involving the validity of a statute on which a defendant’s conviction was based should be addressed by appellate courts even when such issues were raised for the first time on appeal. The Rabb rule was overruled in Karenev v. State, 281 S.W.3d 428, 434 (Tex.Crim.App.2009).

      . Meadoux’s sole ground for review reads as follows: "The Court of Appeals erred in finding that in light of recent Supreme Court jurisprudence and statutory changes a juvenile’s sentence of life without parole was still constitutional.”

      . The State, citing Texas Rule of Appellate Procedure 33.1, also argues that Meadoux failed to preserve his Eighth Amendment claim for appellate review. However, the State failed to make this argument below, the court of appeals did not address it, and we did not grant review to consider it. Although it is true that "issues of error preservation are systemic in first-tier review courts,” Menefee v. State, 287 S.W.3d 9, 18 (Tex.Crim.App.2009), that means only that a court of appeals may not reverse a judgment of conviction without first addressing any issue of error preservation. Here, the court of appeals affirmed the trial court's judgment of conviction. Given our disposition of the case, there is no need for us to address error preservation or to remand the case to the court of appeals for it to do so.

      . "Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commitment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete.” Graham v. Florida, - U.S. -, 130 S.Ct. 2011, 2036, 176 L.Ed.2d 825 (2010) (Stevens, J., concurring).

      . Meadoux, as the party challenging Texas Penal Code § 12.31(a) as it was written at the time of his offense, has the burden of establishing its unconstitutionality. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App.2002).


author: Justice MOSELEY.

text:
    Anthony Allen LONDON, Appellant, v. The STATE of Texas, Appellee.
    No. 05-07-00983-CR.
    Court of Appeals of Texas, Dallas.
    Dec. 5, 2008.
    Discretionary Review Refused April 29, 2009.

      Lori L. Ordiway, Dallas, for Appellant.
    Craig Watkins, Dallas County Dist. Atty., Patricia Poppoff Noble, Asst. Dist. Atty., Dallas, for The State of Texas.
    Before Justices MOSELEY, FRANCIS, and LANG.
   OPINION ON RECONSIDERATION ON PDR

Opinion by

Justice MOSELEY.

We withdraw our opinion of September 25, 2008, and vacate the judgment of that date. This corrected opinion is substituted as the opinion of the Court. See Tex.R.App. P. 50(a).

Appellant Anthony Allen London shot and killed Kerwin Holmes. A jury convicted appellant of murder and assessed punishment at twenty years’ imprisonment. Appellant brings six issues arising from the guilt/innocence phase of the trial. As discussed herein, we resolve these issues against appellant.

Appellant brings an additional three issues arising from the punishment phase, including his fifth issue in which he complains the trial court erred by instructing the jury on sudden passion because the instruction did not require the jury to render a unanimous verdict on this issue. The State agrees the instruction was improper but argues there was no egregious harm. Because we conclude the error caused egregious harm, we resolve appellant’s fifth issue in his favor, reverse the trial court’s judgment as to punishment, and remand the case for a new punishment hearing. See Tex.Code CRiM. PROC. Ann. art. 44.29(b) (Vernon Supp.2008).

I. BACKGROUND

The indictment alleged both that appellant intentionally and knowingly caused Holmes’s death by shooting him with a firearm, and that appellant intended to cause serious bodily injury to Holmes and committed an act clearly dangerous to human life by shooting him, causing his death.

At the time of the incident, Holmes was sixteen years old, and appellant was about twenty years old. On March 28, 2006, at about 1:00 p.m., Holmes and his girlfriend were walking from a store to Holmes’s residence at a motel. They met appellant, and an argument began between Holmes and appellant. Appellant ran into a room at another nearby motel. Holmes got into the back seat of a car driven by Roderic Fowlks and sat behind him. Also in the car were Fowlks’s girlfriend and another passenger. As the car drove away, appellant returned to the street with a gun and fired at the retreating car. A bullet pierced the car’s rear window and hit Holmes in the head, killing him. The jury returned a general verdict that appellant was guilty of murder “as charged in the indictment.”

II. SUFFICIENCY OF THE EVIDENCE

In his first and second issues, appellant contends the evidence is legally and factually insufficient to support the jury’s rejection of his claim of self-defense.

A. Standard of Review and Applicable Law

When reviewing challenges to the legal sufficiency of the evidence, we apply well-established standards. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App.2005); Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App.2003). Further, our review encompasses all the evidence, whether properly or improperly admitted. See Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App.2006), cert. denied, 552 U.S. 842, 128 S.Ct. 87, 169 L.Ed.2d 66 (2007).

In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App.2006). We will reverse a verdict of guilty on a factual sufficiency challenge only when we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. at 417. See Garza v. State, 213 S.W.3d 338, 344 (Tex.Crim.App.2007). We measure the factual sufficiency of the evidence against a hypothetically correct jury charge authorized by the indictment. See Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App.2002); Gollihar v. State, 46 S.W.3d 243, 254 (Tex.Crim.App.2001); Malik v. State, 953 S.W.2d 234, 239-40 (Tex.Crim.App.1997).

A defendant has the burden of producing some evidence to support a claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App.2003). The State has the burden of persuasion in disproving self-defense. Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App.1991). This burden does not require the State to produce evidence refuting the self-defense claim; rather, the burden requires the State to prove its case beyond a reasonable doubt. Id. Self-defense is an issue of fact to be determined by the jury. Id. at 913-14. A jury verdict of guilty is an implicit finding rejecting the defendant’s self-defense theory. Id. at 914.

In reviewing a challenge to the legal and factual sufficiency of the evidence to support a jury’s rejection of a defense to prosecution, we use the same standards used in reviewing the sufficiency of the evidence to support a verdict of guilt, looking at the sufficiency of the evidence to support both the verdict as well as the rejection of the defense. Zuliani, 97 S.W.3d at 595 (factual sufficiency standard); Saxton, 804 S.W.2d at 914 (legal sufficiency standard).

As charged here, a person commits the offense of murder if he intentionally or knowingly causes the death of an individual, or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1), (2) (Vernon 2003). As applicable to this case, a person is justified in using deadly force against another when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other’s use or attempted use of unlawful deadly force, and a reasonable person in the defendant’s situation would not have retreated.

B. Discussion

There was evidence from bystanders and the people in the car that, during their confrontation immediately before the shooting, appellant and Holmes exchanged “fighting words” and were preparing to engage in a fistfight. Appellant retreated, Holmes got into the car, and, as the car was leaving, appellant returned with a gun. Appellant fired about six shots towards the retreating car. There was testimony that no one, other than appellant, displayed a weapon before appellant shot Holmes, and then Fowlks stopped the car, took a gun from the console, and got out of the car.

Appellant admitted he left after talking to Holmes and then returned, after which someone in the car, which was “driving real slow,” started shooting at him. He then shot back at the car, and retreated a second time. Appellant contends he was “under attack” from Holmes and his associates and he could not retreat. He testified he was in fear for his life when he saw a person in the car with a gun.

The evidence is undisputed that appellant retreated after his face-to-face confrontation with Holmes and then returned to the scene with a gun. In addition, appellant relies on his own testimony that Holmes and others threatened him by “saying bad words” about him and threatening his family by hitting his aunt with rocks. He points to a police officer’s testimony that Holmes was known as a fighter; in response to the question whether Holmes “terrorize[d] that neighborhood,” the officer responded, “I had a few calls on him, yes.”

Appellant’s testimony alone will not conclusively prove self-defense as a matter of law. See Letson v. State, 805 S.W.2d 801, 805-06 (Tex.App.-Houston [14th Dist.] 1990, no pet.). The jury is the sole judge of the witnesses’ credibility and weight to give to their testimony. See Swearingen, 101 S.W.3d at 97. Considering all the record evidence in the light most favorable to the jury’s verdict, we conclude a rational jury could have found appellant guilty of all of the elements of the offense of murder beyond a reasonable doubt and rejected appellant’s self-defense claim. See id. at 95; Saxton, 804 S.W.2d at 914. Thus, we resolve appellant’s first issue against him.

Appellant argues that inconsistencies in the testimony of some of the State’s witnesses — including whether appellant had a backpack and a gun and the length and style of appellant’s hair — render the evidence factually insufficient. However, inconsistencies in the descriptions of appellant do not render the evidence insufficient to support a conviction. See Cooks v. State, 844 S.W.2d 697, 708 (Tex.Crim.App.1992). Likewise, we reject appellant’s argument that credibility issues among the State’s witnesses — such as contradictions as to whether a witness had talked to the State before trial; Fowlks’s admission that he did not immediately admit he had a gun; a witness gave a false name when questioned about the shooting; and another witness was convicted of the murder of appellant’s aunt’s boyfriend later the same day — render the evidence factually insufficient. See Swearingen, 101 S.W.3d at 97.

After reviewing the evidence in a neutral light, we cannot say the evidence supporting the conviction and the jury’s implied rejection of appellant’s self-defense claim is so obviously weak as to undermine confidence in the factfinder’s determination or is so greatly outweighed by contrary proof. See Garza, 213 S.W.3d at 344; Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 414; Zuliani, 97 S.W.3d at 595. Concluding the evidence is factually sufficient to support the jury’s verdict, we resolve appellant’s second issue against him.

III. EXCLUSION OF EVIDENCE

Relying on rules of evidence 404(a)(2) and 404(b), appellant argues his third and fourth issues together. In his third issue, appellant contends the trial court abused its discretion by excluding evidence of Holmes’s gang involvement. Outside the jury’s presence, Paul Cox testified Holmes was a member of a violent gang and Cox’s life had been threatened. In response to the State’s relevancy objection, counsel argued the evidence was relevant to Holmes’s reputation. Counsel then asked Cox if appellant knew these things about Holmes, and Cox replied in the affirmative. The State then argued that self-defense had not yet been raised, and such evidence had to relate to appellant’s state of mind. The trial court ruled the evidence inadmissible.

In his fourth issue, appellant makes the same complaint as to evidence of Holmes’s “violent past.” During direct examination, appellant testified that when he first encountered Holmes, Fowlks and “all those other people of his” were “saying bad words” about him and “[s]aying that they do me and stuff like that.” Appellant testified they threatened his aunt and her boyfriend and earlier had thrown rocks at his aunt, hitting her and causing her to call the police. Appellant then testified as to his version of the events: he left after talking to Holmes; he returned and saw the car being driven “real slow”; he saw someone in the car with a gun who shot at him; and he shot back at the car. Appellant was asked if he was “scared of these people,” to which he replied in the affirmative.

Then counsel asked, “Did your aunt’s boyfriend get murdered a few hours after this happened?” The State asked to approach the bench, and a hearing was held outside the jury’s presence. The State objected that the second murder was not relevant to Holmes’s murder and that it had been stipulated that another individual committed the second murder. Defense counsel argued that “this has come up with the police officers ... working two murders” and that it showed “the violence of [Holmes] and the associates, what was going through [appellant’s] mind at the time as to — you know, as to why he did what he had to do, because he knew they’d come back and kill him.” The State argued that what happened before the alleged offense was relevant, but what happened after that was not relevant.

The trial court requested more information, and defense counsel elicited the following testimony: appellant knew Holmes and his associates to be violent; they “terrorized the neighborhood”; after appellant fired his weapon, someone chased after him; appellant’s aunt’s boyfriend was present at Holmes’s shooting; the boyfriend “end[ed] up getting killed” by Holmes’s friend, who was a member of the same gang; at the time, appellant did not know who killed the boyfriend; appellant was afraid of “the same thing, them coming and killing” him. The State again argued that the second murder was irrelevant to state of mind because it happened “after the fact.” Counsel argued it was evidence as to appellant’s state of mind, “how these people were violent” and “why he fired that weapon because they were going to come back and kill him.” The evidence was not admitted.

A. Standard of Review and Applicable Law

We review a trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App.2002). We reverse only when the trial court’s decision was so clearly wrong as to fall outside the zone of reasonable disagreement. Id. We uphold the trial court’s ruling if it was correct on any theory reasonably supported by the evidence and applicable to the case. Id.

Generally, a defendant in a homicide prosecution who raises the issue of self-defense may introduce evidence of the victim’s violent character. Tex.R. Evid. 404(a)(2); Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App.2002); Reyna v. State, 99 S.W.3d 344, 346 (Tex.App.-Fort Worth 2003, pet. ref'd). The defendant may offer opinion or reputation testimony to prove the victim acted in conformity with his violent nature. Tex. Rs. Evid. 404(a)(2), 405(a); Torres, 71 S.W.3d at 760; Reyna, 99 S.W.3d at 346. Specific, violent acts of misconduct may be admitted to show the reasonableness of the defendant’s fear of danger, or to show that the victim was the first aggressor. Torres, 71 S.W.3d at 760; Reyna, 99 S.W.3d at 346-47. See Mozon v. State, 991 S.W.2d 841, 846 (Tex.Crim.App.1999) (victim’s extraneous acts of violence admissible to show defendant’s state of mind pursuant to rule of criminal evidence 404(b)).

This general rule is not without limitation. Evidence of specific bad acts is only admissible to the extent it is relevant for a purpose other than to show character conformity. Tex.R. Evid. 404(b); Torres, 71 S.W.3d at 760; Reyna, 99 S.W.3d at 347. When a deceased’s unambiguous, violent, or aggressive act needs no explaining, evidence of the deceased’s extraneous conduct would have no relevance apart from its tendency to prove his character conformity, and thus would be inadmissible. Tex.R. Evid. 404(b); Reyna, 99 S.W.3d at 347. See Thompson v. State, 659 S.W.2d 649, 653-54 (Tex.Crim.App.1983). Before a specific, violent act will be admissible to support a claim of self-defense, there must be some evidence of a violent or aggressive act by the deceased that tends to raise the issue of self-defense and that the specific extraneous conduct may explain. See Torres, 71 S.W.3d at 761; Thompson, 659 S.W.2d at 653-54.

B. Discussion

1. First Aggressor

First, appellant argues the evidence as to gang affiliation and Holmes’s “proclivity for violence” was admissible to show Holmes was the first aggressor. However, we may not overturn a trial court’s decision on a legal theory not presented to the trial court. See Vasquez v. State, 225 S.W.3d 541, 543 (Tex.Crim.App.2007); Hailey v. State, 87 S.W.3d 118, 122 (Tex.Crim.App.2002). See also Tex.R.App. P. 33.1(a)(1). Because appellant did not present his “first aggressor” argument in the trial court, he has failed to preserve it for review.

2. Appellant’s State of Mind

Next, appellant argues Holmes’s “extraneous acts of violence” were admissible to show appellant’s state of mind. He argues the evidence showed he reasonably believed he was in danger when he thought he was being confronted and attacked by Holmes and members of his gang and reasonably believed his own use of force was immediately necessary to protect himself.

Although appellant’s issue refers to Holmes’s “violent past,” appellant’s argument includes references to evidence of the murder of his aunt’s boyfriend and evidence that someone chased appellant after he shot Holmes. Evidence as to these events — which took place after appellant killed Holmes — is irrelevant to appellant’s state of mind when he fired the shot. See Tate v. State, 981 S.W.2d 189, 193 (Tex.Crim.App.1998) (discussing evidence of victim’s previous threat of harm to prove intent or motive to cause harm). Further, through a stipulation of evidence, the jury was informed that one of the bystanders was convicted of a murder that occurred in a room of one of the motels following Holmes’s death. Therefore, we conclude the trial court did not abuse its discretion in excluding evidence of the death of appellant’s aunt’s boyfriend and that someone chased appellant after he shot Holmes.

Next, we consider the exclusion of evidence of Holmes’s “violent past” — gang affiliation and terrorizing the neighborhood. We cannot agree that this evidence met the conditions for admission under rules 404(a)(2) and 404(b). Assuming Holmes shot at appellant from the car, his doing so was an unambiguous act of aggression and violence that needed no explanation. In Reyna, 99 S.W.3d at 347, the Fort Worth Court of Appeals reached the same conclusion when the victim allegedly “flashed his gun” and shot first at the appellant. There, as here, the victim’s alleged conduct was unambiguous. The Reyna court held the proffered testimony did “nothing more than show character conformity.” Id. (citing Tex.R. Evid. 404(b)). That reasoning and conclusion apply here as well. Accordingly, we resolve appellant’s third and fourth issues against him.

IV. CHARGE ERROR

A. Unanimity: Guilt/Innocence Charge

In his eighth issue, appellant argues his right to a unanimous verdict under the Texas Constitution was violated when the jury was allowed to return a non-unanimous verdict of guilty because the jury charge alleged two separate statutory offenses of murder. Specifically, appellant argues that subsections 19.02(b)(1) and (2), cited above, constitute two separate offenses. See Tex. Penal Code Ann. § 19.02(b)(1), (2). In his ninth issue, he argues his right to a unanimous verdict under the Due Process Clause of the United States Constitution was also violated for the same reason.

1. Applicable Law

Under the Texas Constitution, a jury verdict in a felony case is required to be unanimous, and under our state statutes, unanimity is required in all criminal cases. Ngo v. State, 175 S.W.3d 738, 745 (Tex.Crim.App.2005). Unanimity in this context means that each and every juror agrees that the defendant committed the same, single, specific criminal act. Id. “The principle justification for the unanimity requirement is that it ensures that each juror is convinced beyond a reasonable doubt that the prosecution has proved each essential element of the offense.” Jefferson v. State, 189 S.W.3d 305, 311 (Tex.Crim.App.2006) (internal quotations and citations omitted), cert. denied, 549 U.S. 957, 127 S.Ct. 386, 166 L.Ed.2d 276 (2006). Thus, while jury unanimity is required on the essential elements of the offense, when the statute in question establishes different modes or means by which the offense may be committed, unanimity is generally not required on the alternate modes or means of commission. Id.

2. Discussion

Here, the application paragraph of the jury charge at guilt/innocence authorized the jury to find appellant guilty if, in part, it found that he: (1) intentionally or knowingly caused Holmes’s death by shooting him; or (2) intended to cause him serious bodily injury and committed an act clearly dangerous to human life by shooting him. Whether appellant intentionally caused Holmes’s death, or whether appellant intended to cause Holmes serious bodily injury and committed an act clearly dangerous to human life that caused Holmes’s death, only a single crime of murder was committed. See Jefferson, 189 S.W.3d at 312 (discussing means of committing course of conduct element of injury to a child); Yost v. State, 222 S.W.3d 865, 877-78 (Tex.App.-Houston [14th Dist.] 2007, pet. ref'd) (applying Jefferson analysis to charge on murder pursuant to section 19.02(b)(1) and (2) and citing Aguirre v. State, 732 S.W.2d 320, 326 (Tex.Crim.App.1982) (op. on reh’g)). We reject appellant’s argument that the jury charge alleged two separate statutory offenses of murder, allowing the jury to return a non-unanimous verdict of guilty. Concluding the jury charge contained no error, we need not address whether appellant suffered any harm. See Ngo, 175 S.W.3d at 743. We resolve appellant’s eighth and ninth issues against him.

B. Unanimity: Punishment Charge

Following the application paragraph, the charge on punishment stated: “An affirmative (‘yes’) answer on the issue submitted must be unanimous, but if the jury is not unanimous in reaching an affirmative answer, then the issue must be answered ‘no.’ ” In his fifth issue, appellant contends the trial court erred by instructing the jury on sudden passion because it did not require the jury to render a unanimous verdict on the issue. Because he did not object at trial, appellant argues the error caused him egregious harm.

1. Applicable Law

If a defendant is convicted of murder, he may argue at punishment that he caused the death of the complainant while under the immediate influence of sudden passion arising from an adequate cause. Tex. Penal Code Ann. § 19.02(d). If a defendant establishes by a preponderance of the evidence that he did so, the offense level is reduced from a first-degree to a second-degree felony. Id.; Trevino v. State, 100 S.W.3d 232, 237 (Tex.Crim.App.2003). See Tex. Penal Code Ann. § 19.02(a)(1), (2) (defining “sudden passion” and “adequate cause”).

Article 37.07, section 3(c) of the code of criminal procedure provides:

If the jury finds the defendant guilty and the matter of punishment is referred to the jury, the verdict shall not be complete until a jury verdict has been rendered on both the guilt or innocence of the defendant and the amount of punishment. In the event the jury shall fail to agree on the issue of punishment, a mistrial shall be declared only in the punishment phase of the trial, the jury shall be discharged, and no jeopardy shall attach. The court shall impanel another jury as soon as practicable to determine the issue of punishment.

Tex.Code Crim. Proc. Ann. art. 37.07, § 3(c) (Vernon Supp.2008) (emphasis added). Thus, this statute requires “unanimity with respect to the jury’s preliminary vote on sudden passion.” Sanchez v. State, 23 S.W.3d 30, 34 (Tex.Crim.App.2000).

In Sanchez, the trial court charged the jury that “[a]n affirmative (‘yes’) answer on the issue [of sudden passion] submitted must be unanimous, but if the jury is not unanimous in reaching an affirmative answer, then the issue must be answered ‘no.’ ” Sanchez v. State, No. 05-97-01389-CR, 1999 WL 173986, at *7 (Tex.App.-Dallas Mar. 31, 1999) (not designated for publication), aff'd, 23 S.W.3d 30 (Tex.Crim.App.2000). The court of criminal appeals determined that charge was erroneous. Sanchez, 23 S.W.3d at 34.

2. Discussion

The charge to the jury here is identical to that in Sanchez. Accordingly, this jury charge was erroneous. The State agrees the instruction was improper but argues there was no egregious harm.

Having determined the jury charge on punishment was erroneous, we next consider whether the error caused egregious harm. See Bluitt v. State, 137 S.W.3d 51, 53 (Tex.Crim.App.2004) (applying egregious-harm standard to unobject-ed-to jury charge error); Williams v. State, 851 S.W.2d 282, 287 (Tex.Crim.App.1993) (same), overruled on other grounds by Posey v. State, 966 S.W.2d 57, 63 (Tex.Crim.App.1998). See also Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh’g). We must decide whether the error created such harm that the appellant did not have a fair and impartial trial. Almanza, 686 S.W.2d at 171. “The actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Id.

In support of his egregious harm argument, appellant relies on our unpublished opinion in Ibarra v. State, No. 05-04-01294-CR, 2005 WL 1022700 (Tex.App.Dallas May 3, 2005, no pet.) (not designated for publication). In that case, there was evidence and argument that appellant acted on sudden passion. The jury charge contained the same language as in Sanchez and this case. After the jury rejected the sudden passion special issue, the judge asked the jury if the verdict represented “your individual verdict on the special issue,” and each juror raised his or her right hand. Ibarra, 2005 WL 1022700, at *5. The trial judge also read the sentence assessed by the jury and asked if it reflected “your individual verdict in this phase of the trial.” Again, the record reflected that each juror raised his or her right hand. Id.

On appeal, we considered not whether there was any evidence the verdict was not unanimous, but whether there was any evidence that it was. The State argued the verdict forms — stating “we, the jurors” — “presumes that all the jurors agreed.” Id. We said that language “is no evidence that the jurors unanimously agreed to a ‘no’ vote on the issue of sudden passion.” Id. Further, we said:

The instruction states the issue must be answered “no” if the jury is not unanimous in reaching an affirmative answer. This clearly provides for one juror to decide appellant was not under the immediate influence of sudden passion, thereby preventing a “yes” answer.

Id. Additionally, we rejected the collective vote as evidence the jury voted unanimously concerning the sudden passion special issue:

Although the jurors raised their hands collectively when asked if the “no” answer reflected their individual verdict, no individual poll was taken. In light of the erroneous instruction, the record does not establish that each individual juror voted “no.” Rather, the record reflects that the collective vote was “no.” Because this could have been the result of the jury not being unanimous in reaching an affirmative answer, we conclude the error was actual and egregious.

Id.

We conclude there is no meaningful distinction between the facts in this case and Ibarra. Here, there was evidence and argument as to appellant’s sudden passion. Specifically, his step-mother testified appellant was upset during this incident, and she never knew him to be a violent person previously. In addition, appellant’s father agreed that appellant “just lost it” that day. In closing argument, the State drew the jury’s attention to the sudden passion issue and the language in the charge:

The 12 of you would all have to say, yes, we find that the Defense has proved by a preponderance of the evidence that sudden passion is met in this case. If one of you say, no, then your answer is no....

The State argues that the record contains no evidence that the jury’s verdict was not unanimous, and thus appellant’s argument that the verdict was not unanimous is “pure speculation.” It notes that the trial judge read the jury’s verdict on punishment and asked, “If that’s your verdict, will everybody raise your hands?” Then he stated, “Let the record reflect all 12 hands were raised.”

Our reasoning and conclusion follow that in Ibarra. Here, the collective “show of hands” vote — as in Ibarra — is not an individual poll of jurors. In light of the instruction given, the jury’s collective vote does not establish that each individual juror voted “no” on the sudden passion special issue. Because the collective response could have been the result of the jury not being unanimous in reaching an affirmative answer, we conclude the error caused appellant egregious harm. See Almanza, 686 S.W.2d at 171. We sustain his fifth issue. In light of our disposition of appellant’s fifth issue, we conclude we need not address appellant’s sixth and seventh issues. See Tex.R.App. P. 47.1.

V. CONCLUSION

Having resolved appellant’s fifth issue in his favor, we reverse the trial court’s judgment and remand the case for a new punishment hearing. See Tex.Code Crim. Proc. Ann. art. 44.29(b).

      . Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 9.31, 1993 Tex. Gen. Laws 3586, 3598; Act of May 12, 1995, 74th Leg., R.S., ch. 190, § 1, 1995 Tex. Gen. Laws 1919; Act of May 16, 1995, 74th Leg., R.S., ch. 235, § 1, 1995 Tex. Gen. Laws 2141, 2142, all amended by Act of Mar. 20, 2007, 80th Leg., R.S., ch. 1, §§ 2, 3, 2007 Tex. Gen. Laws 1, 1-2 (current versions at Tex. Penal Code Ann. §§ 9.31, .32 (Vernon Supp.2008)).

      . The trial court said, "All right. I’ll overrule it.” However, he subsequently said, “I don't think that [i.e., the killing of a witness to the first offense] has anything to do with this.” Appellant contends the trial court excluded all the evidence offered during the hearing outside the presence of the jury, the State does not disagree, and we agree that was the trial court’s ultimate ruling.

      . In his sixth issue, appellant contends he received ineffective assistance of counsel when trial counsel failed to object to the error in the sudden passion instruction. In his seventh issue, appellant contends the evidence is factually insufficient to support the jury's failure to find in appellant’s favor on the sudden passion issue.


author: Justice O’NEILL.

text:
    ZENITH INSURANCE COMPANY, Appellant, v. Carmen AYALA, Appellee.
    No. 05-08-00276-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 26, 2009.

      John V. Fundís, Downs & Stanford, P.C., Dallas, TX, for Appellant.
    William Randell Johnson, Law Offices of William Randell Johnson, Plano, TX, Leslie Casaubon, The Casaubon Firm, L.L.P., Lewisville, TX, for Appellee.
    Before Justices WRIGHT, O’NEILL and LANG.
   MEMORANDUM OPINION

Opinion By

Justice O’NEILL.

This is a workers’ compensation case. Zenith Insurance Company (“Carrier”) appeals summary judgment for Carmen Ayala. The trial court granted summary judgment on the ground that the Carrier waived its right to dispute that the com-pensable injury included lumbar spondylo-listhesis and lumbar radicular syndrome. We affirm the trial court’s judgment.

Background

On January 28, 2006, Carmen sustained injuries, including an injury to her lower back, at work when a window fell on her. The parties stipulated (a) Carmen’s injury was compensable; (b) the Carrier received its first notice of the injury on March 1, 2006; (c) the Carrier has not contested compensability; and (d) the Carrier did not dispute the compensable injury included the Lumbar Condition before July 28, 2006.

Carmen’s initial diagnosis was augmented on April 13, 2006 to include a diagnosis of lumbar radicular syndrome. Within a week, on April 20, 2006, a second doctor reported a specific diagnosis of both lumbar radicular syndrome and L5-S1 spon-dylolisthesis. Carmen was scheduled for an epidural steroid injection (“ESI”) which required pre-authorization. A “Notice of Utilization Review Findings” and a “Notice of Intent to Issue an Authorization” were issued on April 27, 2006 by the Carrier’s utilization vendor. The ESI was performed shortly thereafter.

Because of the Carrier’s July 28, 2006 dispute notice, a contested case hearing was conducted by a hearing officer of the Texas Department of Insurance, Division of Workers’ Compensation (“TWC”) who concluded “[t]he compensable injury of January 23, 2006 extends to include the [Lumbar Condition] by operation of [the Carrier’s] extent waiver. [The Carrier] has waived the right to contest compensa-bility of [the Lumbar Condition] by not timely contesting the diagnosis in accordance with Texas Labor Code Section 409.021.... ” The Carrier appealed the hearing officer’s decision to a TWC appeals panel where the decision was affirmed. The Carrier then filed this case seeking reversal of the administrative rulings.

Both parties moved for summary judgment on the waiver issue. The trial court granted Carmen final summary judgment that the Carrier waived its right to raise its extension of the injury dispute, and by operation of the Carrier’s waiver, the com-pensable injury included the Lumbar Condition. On appeal, the Carrier raises two issues: (1) does the compensable injury extend to include the Lumbar Condition; and (2) has the Carrier waived its right to dispute the extension of the compensable injury.

Standard of Review

The standards for reviewing summary judgments are well established, and we follow them in reviewing this appeal. PACCAR Fin. Corp. v. Potter, 239 S.W.3d 879, 881-82 (Tex.App.-Dallas 2007, no pet.) (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985) (summary judgment standards of review)). When both parties move for summary judgment, each party bears the burden of establishing it is entitled to judgment as a matter of law. Id. (citing City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.2000)). If the trial court grants one motion and denies the other, the non-prevailing party may appeal the granting of the prevailing party’s motion as well as the denial of its own motion. Holmes v. Morales, 924 S.W.2d 920, 922 (Tex.1996). When the appellant raises issues as to both motions, we review the summary judgment evidence presented by both parties and determine all questions presented. PACCAR Fin. Corp., 239 S.W.3d at 881-82.

Discussion

Before reaching the Carrier’s extent of injury issue, we first consider its second issue of whether it waived its right to dispute compensability of the Lumbar Condition. Under Section 409.021(c) of the Texas Labor Code,

[i]f an insurance carrier does not contest the compensability of an injury on or before the 60th day after the date on which the insurance carrier is notified of the injury, the insurance carrier waives its right to contest compensability. The initiation of payments by an insurance carrier does not affect the right of the insurance carrier to continue to investigate or deny the compensability of an injury during the 60-day period. Tex. Lab.Code Ann. § 409.021(c) (Vernon 2006).

The documents issued to preauthorize Carmen’s ESI were dated April 27, 2006. Also, among Carmen’s medical records were an April 13, 2006 diagnosis of the Lumbar Condition by the so-called company doctor, a magnetic resonance imaging report transcribed on April 14, 2006, and a confirmation of the company doctor’s diagnosis by a specialist on April 20, 2006. The Carrier did not dispute compensability of the Lumbar Condition until July 28, 2006 — 62 days after the Carrier’s own documents show prior notice of the injury.

The Carrier contends the Texas Administrative Code abrogates application of Texas Labor Code section 409.021 to Carmen’s Lumbar Condition which it characterizes as an extension of a compensable injury. Specifically, the Carrier argues that 28 Tex. Admin. Code § 124.3 operates to remove any waiver period in cases where the extent of any injury, whether existing or new, is at issue. The Carrier’s argument however, contradicts this court’s recent decision where we held that the TWC regulation does not apply to preclude waiver as to existing injuries and the issue of compensability may not be reopened absent newly discovered evidence. Sanders v. American Protection Ins. Co., 260 S.W.3d 682, 685 (Tex.App.-Dallas 2008, no pet.). This court reasoned the regulation contemplates a situation where, after the initial injury and expiration of the sixty day period, a new dispute arises with regard to a body part, system or injury. Id. at 685.

At the very latest, the medical records the Carrier needed to ascertain the extent of Carmen’s injury were in its offices by April 27, 2006 when the preauthorization for Carmen’s ESI was issued. In addition, the Carrier could have discovered the information it needed on April 13, 2006 from the company doctor. The parties stipulated the Carrier received its first notice of Carmen’s injury on March 1, 2006. So, within the investigation period, the Carrier had the information it needed to dispute whether the compensable injury included the Lumbar Condition. Then, it failed to dispute the extent of the injury until July 28, 2006. We conclude the Carrier waived its right and overrule its second issue. Our decision of the second issue obviates our need to discuss the Carrier’s first issue.

Conclusion

We affirm the trial court’s summary judgment for Carmen Ayala.

      . Lumbar spondylolisthesis is a misalignment of the spine where one of the spine bones slips forward over the one below it. The condition often involves slippage of the fifth lumbar vertabra over the top of the sacrum.

      . Lumbar radicular syndrome results from compressed or irritated nerve roots in the spine. In this opinion, lumbar radicular syndrome and lumbar spondylolisthesis are collectively referred to as the "Lumbar Condition.”

      . The Texas Administrative Code provides that section 409.021 does not apply to disputes about the extent of an injury. 28 TEX. ADMIN. CODE § 124.3(e) (Tex. Ins. Dep’t, Investigation of Injury and Notice of Denial/Dispute).

      . We acknowledge the case we relied on in the Sanders case, State Office of Risk Mgmt. v. Lawton, 256 S.W.3d 436 (Tex.App.-Waco 2008, pet. filed), is now before the Texas Supreme Court.