author: Justice O’NEILL.

text:
    Luis Daniel SEPULVEDA, Appellant, v. Carlos MEDRANO, Appellee.
    No. 05-10-00915-CV.
    Court of Appeals of Texas, Dallas.
    Sept. 29, 2010.

      Daniel Wyde, Wyde Law Firm, Dallas, TX, for Appellant.
    Randall B. Wood, Doug W. Ray, Ray, Wood & Bonilla, Austin, TX, Paul D. Rich, Law Office of Domingo Garcia, P.C., Dallas, TX, for Appellee.
    Before Chief Justice WRIGHT and Justices O’NEILL and MYERS.
   OPINION

Opinion By

Justice O’NEILL.

This appeal comes to us from the trial court’s take-nothing judgment on appellant Luis Daniel Sepulveda’s contest to the results of the election for the Democratic Party nomination for Precinct 5, Place 1 for Justice of the Peace, Dallas County. We conclude the appeal is moot.

Procedural History

Jose Luis Sepulveda is the incumbent Justice of the Peace, Precinct 5, Place 1 in Dallas County, Texas. Sepulveda was challenged in the March 2, 2010 Democratic Party primary election by appellee Carlos Medrano. Medrano was ultimately declared the winner of the Democratic Party primary for the Justice of Peace position, and the election results were certified.'

On March 18, 2010, Sepulveda filed an original petition contesting the election results. The petition named Medrano, Dallas County Elections Administrator Bruce Sherbet, and the Dallas County Early Voting Ballot Board (Voting Board) as defendants. On April 2, 2010, Sherbet and the Voting Board filed an original answer, plea to the jurisdiction, and affirmative defense. On April 7, 2010, Sepulveda filed a “First Amended Ex Parte Motion to Disqualify” the Honorable Eric Moyé, presiding judge of the 14th Judicial District Court, from hearing the election contest on the grounds that Judge Moyé’s judicial district includes the territory covered by the contested election. The clerk’s record contains an April 8, 2010 docket sheet entry showing a recusal order, but a copy of the order is not in the clerk’s record.

On April 12, 2010, Medrano filed his original answer. On May 4, 2010, the judge assigned to sit on the case signed an order granting Sepulveda’s motion to non-suit the claims against Sherbet and the Voting Board. On May 10, 2010, Sherbet filed a motion for protection from a discovery subpoena and notice of unserved parties.

On July 1, 2010, Sepulveda filed a first amended petition. The amended petition named only Medrano as defendant. In the amended petition, Sepulveda identified the names of the voters whose ballots he contended were illegally counted. Attached to the petition were the signed and notarized “affidavit[s] by alleged voter” of these named individuals. A non-jury trial was held on the election contest from July 6 through 16, 2010. On July 19, 2010, Medrano filed a post-trial memorandum. The trial judge signed the final judgment on July 19, 2010. The judgment stated “the declared result of the election for the Democratic nomination for Precinct 5, Place 1 for Justice of the Peace, Dallas County, Texas, is the true outcome of the election,” rendered a take-nothing judgment on the election contest, and declared the result of the election for Medrano affirmed.

On July 26, 2010, Sepulveda filed a notice of appeal. The notice of appeal was docketed in this Court on that same date and Sepulveda paid the $175 filing fee for the appeal. On July 26, 2010, Sepulveda tendered to this Court a motion to “waive appellate bond, deposit or security,” but he did not pay the $10 filing fee for the motion until August 4, 2010. This Court denied Sepulveda’s motion to waive the appellate bond by written order dated August 12, 2010.

On August 16, 2010, Sepulveda filed a motion in the trial court asking the district judge to set the deadline for filing the trial court record in the appeal. On that same date, Sepulveda filed an untimely request for findings of fact and conclusions of law. The request is not in the clerk’s record, but there is a notation on the docket sheet of the filing, and a copy is included in the appendix to Sepulveda’s brief. On August 26, 2010, the trial judge signed an order setting the due date for the record at ten days after payment was made.

On September 3, 2010, Sepulveda filed a “petition for injunction” in this Court seeking an order staying Sherbet from “submitting the general election ballot” for printing while the appeal on the election contest is pending. To the extent Sepulve-da sought mandamus relief, we concluded he had not shown he was entitled to such relief. We further concluded that to the extent Sepulveda sought injunctive relief, we did not have jurisdiction to enter a writ of injunction in an election case. In re Sepulveda, No. 05-10-01112-CV (Tex.App.-Dallas Sept, 7, 2010, orig. proceeding).

On September 13, 2010, Sepulveda’s attorney contacted the Clerk of this Court complaining the appeal had been misdock-eted as a regular, rather than accelerated, appeal, and that the record was overdue. We corrected case management to show the appeal was accelerated. We requested that Sepulveda’s counsel provide proof the record had been paid for. He sent, via email attachment, copies of two cancelled checks showing payments of $3200 each for the reporter’s record. One check was dated August 2, 2010; the second check was dated August 26, 2010. Counsel did not provide verification of payment for the clerk’s record. On September 14, 2010, this Court issued an order directing the Dallas County Clerk to file, within ten days, either the clerk’s record or written verification that Sepulveda had not paid for the record. We warned Sepulveda that if we received verification of non-payment, we would dismiss the appeal. See Tex. R.Afp. P. 37.3(b). We ordered the court reporter to file the reporter’s record within ten days.

On September 14, 2010, Sepulveda filed a petition for writ of mandamus asking this Court to order the court reporter to file the reporter’s record. On September 15, 2010, the Clerk received an e-mail from Sepulveda’s attorney asking that the petition for writ of mandamus be brought to the attention of the Court and stating he had made payment for the clerk’s record on that date. The reporter’s record was filed on September 16, 2010, and the petition for writ of mandamus was denied as moot on September 17, 2010. In re Sepulveda, No. 05-10-01144-CV (Tex.App.-Dallas Sept. 17, 2010, orig. proceeding).

On September 17, 2010, the Court sent the parties a letter informing them the reporter’s record had been filed. The letter set the due date for Sepulveda’s brief at two days after the clerk’s record was filed and the due date for Medrano’s brief at two days after Sepulveda’s brief was filed.

The clerk’s record was filed on September 21, 2010. On that same date, we sent the parties a letter notifying them of the filing and reiterating the briefing deadlines established in our September 17, 2010 letter. We specifically directed the parties to address whether this appeal was moot or the date by which it would become moot. We further notified the parties that the appeal would be submitted without oral argument on September 28, 2010. Se-pulveda filed his brief on September 22, 2010. Medrano filed his brief on September 24, 2010. Sepulveda filed a reply brief on September 27, 2010.

Mootness of Appeal

Sepulveda responded that the appeal will become moot on October 1, 2010. In support of his assertion, he cites to section 145.003(b) of the Texas Election Code. He also asserts that it is “the height of unfairness to declare this appeal moot” because “the trial court did not follow the proper procedures for ensuring the appeal was properly accelerated,” “this Court mis-cal-endared the due date for the record by not designating this case as an accelerated appeal, even though Appellant’s docketing statement and notice of appeal so indicated,” and “the court reporter delayed in filing the record of the testimony.” Se-pulveda asserts that far from sleeping on his rights, he consistently sought to ensure the appeal was accelerated, including filing two mandamus proceedings — one to force the trial court to set deadlines and the other to force the court reporter to file the record.

Medrano responded that the appeal is moot because the Dallas County Elections Administrator has already mailed over 9000 ballots to persons entitled to vote in the general election. Thus, he asserts it is too late to hold a new election and still comply with all pre-election statutes for the general election. In support of his assertion, Medrano attached to his brief Sherbet’s affidavit regarding the mailing of these ballots.

Analysis

It is well established that “a challenge to the candidacy of an individual becomes moot “when any right which might be determined by the judicial tribunal could not be effectuated in the manner provided by law.’ ” Brimer v. Maxwell, 265 S.W.3d 926, 928 (Tex.App.-Dallas 2008, no pet.) (citing Polk v. Davidson, 145 Tex. 200, 204, 196 S.W.2d 632, 634 (1946) (orig. proceeding)). “An election contest case becomes moot, and the issues no longer justiciable, when a final judgment adjudging the validity or invalidity of a candidate’s certificate of nomination is not entered in time for election officials to comply with the statutory deadlines for preparing and conducting the general election, or when absentee balloting has begun during the pendency of the appeal.” Salazar v. Gonzales, 931 S.W.2d 59, 60 (Tex.App.-Corpus Christi 1996, no writ); Moore v. Barr, 718 S.W.2d 925, 926 (Tex.App.-Houston [14th Dist.] 1986, no writ); Gutierrez v. Montemayor, 2000 WL 33225302, at *1 (Tex.App.-San Antonio Dec. 29, 2000, no pet.) (not designated for publication); see also Polk, 145 Tex. at 204, 196 S.W.2d at 634.

Sepulveda’s reliance on Section 145.003 is misplaced. Subsection (b) provides,

(b) A candidate in the general election for state and county officers may be declared ineligible before the 30th day preceding election day by:
(1) the party officer responsible for certifying the candidate’s name for placement on the general election ballot, in the case of a candidate who is a political party’s nominee; or
(2) the authority with whom the candidate’s application for a place on the ballot is required to be filed, in the case of an independent candidate.

Tex. Elec.Code Ann. § 145.003(b) (West 2010). However, section 145.003 of the election code is entitled “Administrative Declaration of Ineligibility.” Subsection (a) specifically states, “[ejxcept for judicial action in which a candidate’s eligibility is in issue, a candidate may be declared ineligible only as provided by this section.” Tex. Elec.Code Ann. § 145.003(a) (emphasis added). Thus, by its plain language, section 145.003 does not apply to this election contest, which was brought in the district court, and the thirty-day period set out in section 145.003(b) does not govern the date on which this appeal is moot.

Rather, the governing statute is section 86.004 of the election code, which is entitled “Time for Providing Ballot to Voter.” Section 86.004 provides,

(a) Except as provided by Subsection (b), the balloting materials for voting by mail shall be mailed to a voter entitled to vote by mail not later than the seventh calendar day after the later of the date the clerk accepts the voter’s application for a ballot to be voted by mail or the date the ballots become available for mailing, except that if that mailing date is earlier than the 45th day before election day, the balloting materials shall be mailed not later than the 38th day before election day.
(b) For the general election for state and county officers, the balloting materials for a voter who indicates on the application for a ballot to be voted by mail or the federal postcard application that the voter is eligible to vote early by mail as a consequence of the voter’s being outside the United States shall be mailed on or before the later of the 45th day before election day or the seventh calendar day after the date the clerk receives the application. However, if it is not possible to mail the ballots by the deadline of the 45th day before election day, the clerk shall notify the secretary of state within 24 hours of knowing that the deadline will not be met. The secretary of state shall monitor the situation and advise the clerk, who shall mail the ballots as soon as possible in accordance with the secretary of state’s guidelines.

Tex. Elec.Code Ann. § 86.004 (West 2010).

The general election is on Tuesday, November 2, 2010. Section 86.004 provides that early voting by mail is to begin on the 45th day before the general election. The Texas Secretary of State’s Election Advisory 2010-06 sets the November 2, 2010 election law calendar. In accordance with section 86.004, the Secretary of State set the deadline to mail an early voting ballot as September 18, 2010, the 45th day before November 2, 2010. Sherbet’s affidavit states that mailing of the ballots has begun and that over 9000 ballots have been mailed.

Although Sepulveda contends Sherbet’s affidavit is not properly before the Court, we conclude otherwise. “The mootness doctrine implicates subject matter jurisdiction.” Trulock v. City of Duncanville, 277 S.W.3d 920, 923 (Tex.App.Dallas 2009, no pet.). “Appellate courts are prohibited from deciding moot controversies.” Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex.1999). “Each court of appeals may, on affidavit or otherwise, as the court may determine, ascertain the matters of fact that are necessary to the proper exercise of its jurisdiction.” Tex. Gov’t Code Ann. § 22.220(c) (West Supp. 2010). We conclude, therefore, that Sherbet’s affidavit is cognizable for purposes of determining whether this appeal is moot. See Seals v. City of Dallas, 249 S.W.3d 750, 754-55 (Tex.App.-Dallas 2008, no pet.).

Because early voting ballots have already been mailed in accordance with the statutory time limits, we conclude the appeal became moot on September 18, 2010. See Polk, 145 Tex. at 204, 196 S.W.2d at 634; Salazar, 931 S.W.2d at 60; Moore, 718 S.W.2d at 926; Gutierrez, 2000 WL 33225302, at * 1.

As to Sepulveda’s complaint that determining the appeal is moot would be the “height of unfairness” because he did what he was supposed to, the procedural history of the appeal suggests otherwise. Sepulve-da did not ask the trial court to set a record-filing deadline until almost one month after the appeal was filed. He made partial payment for the reporter’s record on August 2, 2010, a week after he filed his notice of appeal. However, he did not make the second payment for the reporter’s record until August 26, 2010, one month after the appeal was filed. Se-pulveda did not pay for the clerk’s record until September 15, 2010, nearly two months after the notice of appeal was filed and three days before the appeal became moot.

Additionally, contrary to his assertion that one of his mandamus petitions sought to require the judge to set a record due date, that “petition for injunction” sought an order to stay the printing of the ballot until this Court ruled on the accelerated appeal. In the petition, Sepulveda mentioned he had filed a motion to set the deadline for the record, which the judge did not rule on until August 26, 2010, and then only after counsel sent the trial judge an e-mail saying counsel would file a petition for writ of mandamus if the judge would not rule on the motion. The second mandamus related to the court reporter and was filed after this Court had already issued an order giving the court reporter a deadline. That petition complained primarily about the court reporter requiring additional monies for the record above the $6400 Sepulveda had already paid. Se-pulveda could have handled both of these issues, regardless of the relief to which he might have been entitled, by filing motions in the appeal rather than by filing original proceedings.

Finally, Sepulveda failed to pay for the clerk’s record until September 15, 2010. This appeal could have proceeded without the reporter’s record. See Tex.R.App. P. 37.3(c). However, without the clerk’s record, the appeal would have been dismissed. See Tex.R.App. P. 37.3(b). Because Se-pulveda did not pay for the clerk’s record until September 15, 2010, the record was not filed until September 21, 2010, which was after the appeal became moot. Therefore, despite all his complaints about how the appeal was docketed in this Court and what the trial court and court reporter did or did not do, Sepulveda’s failure to pay for the clerk’s record until September 15, 2010 made it impossible for this Court to hear the appeal before it became moot.

Conclusion

Because early voting by mail began on September 18, 2010, we conclude this appeal is moot. We dismiss the appeal.

No motions for rehearing will be entertained. See Tex. Elec.Code Ann. § 232.014(e) (West 2010).

      . See Tex. Elec.Code Ann. § 231.004 (West 2010).

      . The request for findings of fact and conclusions of law was due within twenty days after the trial court’s judgment was signed, in this case by Monday, August 9, 2010. See Tex.R. Civ. P. 4, 296 (20th day fell on Sunday). Sepulveda states in his reply brief that on the first day of trial, he provided the trial judge with a copy of the amended petition filed on July 1, 2010. This action, Sepulveda asserts, was, in effect, a "de facto” request for findings of fact and conclusions of law, making the request premature but effective. Sepulve-da cites no authority for the proposition that providing the trial judge with a copy of an amended petition constitutes a request for findings of fact and conclusions of law.

      . This is now called early voting by mail. See generally Tex Elec.Code Ann. § 86.004 (West 2010).

      . The Texas Election Code provides that the Secretary of State has the responsibility to obtain and maintain uniformity in the application, operation, and interpretation of the election code and of the election laws outside this code. In performing that duty, the secretary is to prepare “detailed and comprehensive written directives and instructions relating to and based on” the code and the election laws outside the code, and to distribute them to the appropriate state and local authorities having duties in the administra-lion of the election laws. Tex. Elec.Code Ann. § 31.003 (West 2010). Election Advisory 2010-06, which sets out the November 2, 2010 Election Law Calendar, contains such written instructions regarding the election.

      . Sepulveda filed a motion to strike Sherbet's affidavit on September 27, 2010. Medrano filed a response to the motion to strike on September 28, 2010.


source: Caselaw Access Project

author: BRIAN HOYLE, Justice.

license: Public Domain

text:
    AMERICAN HOME ASSURANCE COMPANY, Appellant, v. Susan POEHLER, Appellee.
    No. 12-09-00293-CV.
    Court of Appeals of Texas, Tyler.
    Oct. 20, 2010.

      Greg D. Solcher, Robert D. Stokes, for Appellant'.
    Bradley D. McClellan, Frank D. Wee-don, for Appellee.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J. and HOYLE, J.
   OPINION

BRIAN HOYLE, Justice.

American Home Assurance Company has filed a motion for rehearing, which is overruled. We withdraw our opinion delivered on July 30, 2010, and substitute the following opinion in its place.

American Home Assurance Company (American Home) appeals the trial court’s judgment in favor of Susan Poehler in its suit for judicial review of certain decisions by the Texas Department of Insurance, Division of Workers’ Compensation (the Division). American Home raises five issues on appeal. We affirm in part, reverse and render in part, and reverse and remand in part.

Background

Poehler was working as a machine operator for FKI Industries when she sustained a lower back injury in the course and scope of her employment. As a result of her injury, Poehler underwent significant medical treatment, including two surgeries. Poehler sought workers’ compensation benefits.

To determine the amount of Poehler’s benefits, the Division assigned Dr. Phillip Williams to examine Poehler and provide an impairment rating percentage for her injury. Dr. Williams determined that Poehler reached maximum medical improvement on December 21, 2004, with a 20% impairment rating. Dr. Williams’s certification of a 20% impairment rating was based upon the use of Division Advisory 2003-10.

FKI Industries had a workers’ compensation insurance policy with American Home, and American Home challenged Dr. Williams’s certification of Poehler’s impairment rating. In a letter of clarification regarding Poehler’s impairment rating, Dr. Williams stated that

[b]ased on examination and without utilizing the [Division] Advisory, her whole person impairment rating would be 5% via Table 72, DRE Category II. However, I think that it is also important to point out that if the [range of motion] model was used as a differentiator, [Poehler’s] impairment would fall more closely to a 20% (DRE IV), [than] a 5% (DRE II).

The dispute regarding Poehler’s impairment rating had an effect on Poehler’s entitlement to supplemental income benefits because a worker with an impairment rating of less than 15% is not entitled to supplemental income benefits. Thus, American Home also challenged Poehler’s entitlement to supplemental income benefits.

Several benefit contested case hearings were held regarding Poehler’s impairment rating and entitlement to supplemental income benefits. At the conclusion of each of the benefit contested ease hearings, the hearing officer ruled that Poehler’s impairment rating is 20% and that she is entitled to supplemental income benefits for the quarter in question. American Home appealed the rulings to an appeals panel of the Division. Again, in each case, the appeals panel of the Division affirmed the hearing officer’s rulings.

American Home then sought judicial review of the 20% impairment rating and award of supplemental income benefits for quarters 1, 2, 3, 5, 6, 7, and 8. The trial court consolidated all of the issues into one case, and the case proceeded to a bench trial. At the conclusion of the trial, the trial court agreed with the Division that Poehler’s impairment rating is 20% and that she is entitled to supplemental income benefits for quarters 1, 2, 3, 5, 6, 7, and 8. The trial court further awarded Poehler attorney’s fees. This appeal followed.

Jurisdiction

In her appellate brief, Poehler questioned whether this court has jurisdiction over this dispute. Specifically, Poeh-ler stated, [American Home] may also be burdened with a jurisdictional loss from not preserving any other valid rating than the 20% [impairment rating]. Poehler’s brief does not contain a clear and concise argument with appropriate citations to authorities and to the record for her contention that subject matter jurisdiction is lacking. See Tex.R,App. P. 38.1(h). Nevertheless, we address Poehler’s jurisdictional argument because we must ascertain that subject matter jurisdiction exists even if the parties have not questioned it. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex.2004).

Applicable Law

Subject matter jurisdiction involves a court’s power or authority to hear a dispute. Tellez v. City of Socorro, 226 S.W.3d 413, 413 (Tex.2007). Subject matter jurisdiction cannot be forfeited. Id. at 414. However, procedural defects made in bringing a complaint to a court can be forfeited. Id.

Workers’ compensation benefits are the exclusive remedy of an injured worker covered by workers’ compensation insurance coverage. Tex. Labor Code Ann. § 408.001 (Vernon 2006); Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514, 516 (Tex.2007). At the administrative level, disputes proceed through a benefit review conference, a benefit contested case hearing, and, finally, an administrative appeal. Morales, 241 S.W.3d at 516. A party that has exhausted its administrative remedies may seek judicial review of the Division’s decision. Tex. Labor Code Ann. § 410.251 (Vernon 2006).

The judicial review is conducted under a modified de novo review. Morales, 241 S.W.3d at 516. The Division’s decision may be tried to either the court or a jury, with the appealing party bearing the burden of proof by a preponderance of the evidence. Tex. Labor Code Ann. §§ 410.303-.304 (Vernon 2006); Morales, 241 S.W.3d at 516. The trial is limited to issues decided by the Division appeals panel and on which judicial review is sought. Tex. Labor Code Ann. § 410.302 (Vernon 2006). Unless the court finds that the injured worker’s condition has substantially changed, evidence of the extent of impairment is limited to that evidence presented to the Division. Id. §§ 410.306-.307 (Vernon 2006). Further, the factfin-der in its determination of the extent of impairment shall adopt one of the impairment ratings provided to the Division. Id. § 410.306.

At least one of our sister courts has determined that this statutory scheme does not provide a trial court with jurisdiction to set aside a doctor’s impairment rating for an injured worker when no alternative rating was presented to the jury. Am. Zurich Ins. Co. v. Samudio, 317 S.W.3d 336, 349 (Tex.App.-Houston [1st Dist.] 2010, no pet.). But see DeLeon v. Royal Indem. Co., No. 03-08-00532-CV, 2010 WL 323128, *5, 2010 Tex.App. LEXIS 565, at *14-15 (Tex.App.-Austin Jan. 27, 2010, pet. filed) (mem.op.) (without discussing jurisdiction, finding only impairment rating invalid and dismissing case so that injured worker could pursue new impairment rating determination).

Application

Here, the Division was presented with the opinion of only one doctor, but with more than one impairment rating. Dr. Williams examined Poehler and determined that her impairment rating is 20% based on Division Advisory 2003-10. In a letter of clarification, Dr. Williams stated that Poehler’s impairment rating is 5% if based solely on the injury model of the Guides, utilizing Table 72, without reference to Division Advisory 2003-10. Thus, the trial court had two impairment ratings to consider and had jurisdiction over the dispute. Tex. Labor Code Ann. §§ 410.251, 410.306. Because the trial court properly exercised jurisdiction over the dispute, we have jurisdiction to review the trial court’s final judgment.

Impairment Rating

In its first and second issues, American Home argues that the trial court improperly found Poehler’s impairment rating to be 20%.

Applicable Law

An injured worker covered by workers’ compensation insurance receives impairment income benefits if he continues to have impairment after reaching maximum medical improvement (MMI). Tex. Labor Code Ann. § 408.121 (Vernon 2006). The injured worker’s impairment must be based on an objective clinical or laboratory finding. Id. § 408.122 (Vernon 2006). After the injured worker has been certified by a doctor as reaching MMI, the certifying doctor evaluates the condition and assigns an impairment rating for the injured worker. Id. § 408.123 (Vernon 2006). For an impairment rating to be valid, the impairment rating must be determined by use of the appropriate edition of the Guides to the Evaluation of Permanent Impairment. Id. § 408.124 (Vernon 2006). The parties agree that the fourth edition of the Guides is the appropriate edition. See 28 Tex. Admin. Code § 130.1(c) (2004) (Tex. Dep’t Ins., Div. Workers’ Comp.)

The fourth edition of the Guides primarily utilizes an injury model, which relies on objectively verifiable evidence to place patients into one of eight diagnosis-related estimate (DRE) categories. Tex. Dep’t of Ins. v. Lumbermens Mut. Cas. Co., 212 S.W.3d 870, 872 (Tex.App.-Austin 2006, pet. denied). As pertinent to this case, the Guides require either loss of motion segment integrity or a structural inclusion for an injured worker to receive a 20% impairment rating (DRE IV) for a lumbosacral spine injury in the context of spinal fusion surgeries. See id. To establish the requisite loss of motion segment integrity, the Guides require that flexion and extension x-rays taken before the spinal fusion surgery demonstrate translation of at least five millimeters of one vertebra on another or angular motion at a motion segment that is eleven degrees more than at an adjacent motion segment. Id. at 872-73.

Because many doctors were performing spinal fusion surgeries without taking preoperative flexion and extension x-rays, the Division issued Advisories 2003-10 and 2003-10B. Id. at 873. These advisories attempted to provide an alternative standard for assessing a 20% impairment rating when there are no preoperative x-rays. Id. But because the advisories contradict the fourth edition of the Guides, one of our sister court has ruled the advisories are invalid. Id. at 876-77.

Application

Dr. Williams’s determination that Poeh-ler’s impairment rating is 20% was based on Division Advisory 2003-10. Dr. Williams did not review flexion and extension x-rays taken before Poehler’s spinal fusion surgery. Instead, he was convinced that Poehler would not have had the spinal fusion surgery without loss of motion segment integrity. However, the Guides require more than Dr. Williams’s belief. Without presurgery x-rays, Dr. Williams could not provide objectively verifiable evidence to place Poehler’s impairment rating at 20%. Further, we agree with our sister court that Division Advisory 2003-10 cannot be considered in determining an injured worker’s impairment rating. Thus, Dr. Williams’s opinion of Poehler’s impairment rating using Division Advisory 2003-10 is based on legally insufficient evidence and is an invalid impairment rating.

Poehler argues that even if Division Advisory 2003-10 cannot be used as a basis to support Poehler’s 20% impairment rating, the 20% impairment rating can be justified by either the use of range of motion as a differentiator or consideration of Poehler’s back surgeries as allowed by Table 70 of the Guides. We disagree.

It is uncontroverted that Dr. Williams stated in a letter of clarification to the Division that Poehler’s impairment rating is 5% if based solely on the injury model of the Guides without reference to Division Advisory 2003-10, and somewhere between 5% and 20%, and closer to 20%, if range of motion is used as a differentiator. However, Dr. Williams did not provide an exact percentage of impairment for Poehler with range of motion being used as a differenti-ator. Further, based on the record before us, Dr. Williams never mentioned Table 70 of the Guides to the Division. Therefore, the Division was not presented with a specific percentage impairment rating based on either the use of range of motion as a differentiator or the use of Table 70 of the Guides.

Additionally, no evidence of a change in Poehler’s condition was presented to the trial court. But even if such evidence had been presented, Dr. Williams’s trial testimony still lacked an exact percentage of impairment for Poehler with range of motion being used as a differentiator. Finally, Dr. Williams’s trial testimony failed to reference a finding regarding Poehler’s proper placement in Table 70 of the Guide.

American Home established that Poeh-ler’s impairment rating of 20% was not supported by legally sufficient evidence. We sustain American Home’s first and second issues.

Remedy

In its third issue, American Home argues that since the impairment rating determined by the trial court is invalid, the proper remedy in this case is either assessing Poehler’s impairment rating as 5% based on the valid opinion of Dr. Williams, or dismissing the case so that Poehler lacks an impairment rating and can return to the Division. Poehler, during oral argument, argued that, if we get to this point, the proper remedy is dismissing the case without providing Poehler an impairment rating, so that she may return to the Division. However, we lack authority to simply dismiss the case. See Samudio, 317 S.W.3d at 349.

Because Dr. Williams’s opinion of Poeh-ler’s impairment rating based on Division Advisory 2003-10 is invalid, the Division was presented with only one valid impairment rating, the 5% impairment rating based on Table 72. Thus, Poehler’s impairment rating is 5%. See Bell v. Zurich Am. Ins. Co., 311 S.W.3d 507, 511-12 (Tex.App.-Dallas 2009, pet. filed). We sustain that portion of American Home’s third issue requesting a determination that Poeh-ler’s impairment rating is 5%. We overrule the remainder of its third issue.

Supplemental Income Benefits

In its fourth issue, American Home argues that the trial court improperly found Poehler entitled to supplemental income benefits for quarters 1, 2, 3, 5, 6, 7, and 8.

Applicable Law

If other requirements are met, an injured worker with an impairment rating of 15% or more is entitled to supplemental income benefits. Tex. Labor Code Ann. § 408.142 (Vernon 2006). When seeking judicial review of the Division’s decision, the appealing party bears the burden of proof by a preponderance of the evidence. Id. § 410.303; Morales, 241 S.W.3d at 516. The trial court is limited to issues decided by the Division appeals panel and on which judicial review is sought. Tex. Labor Code Ann. § 410.302.

When findings of fact are filed by the trial court, the findings form the basis of the judgment upon all grounds of recovery and of defense embraced in the findings. Tex.R. Civ. P. 299. On appeal, the judgment may not be supported by a presumed finding of any ground of recovery or defense if no element of that ground has been included in the findings. Id. All grounds of recovery or defense upon which no finding is made or requested are forfeited. Traweek v. Larkin, 708 S.W.2d 942, 947 (Tex.App.-Tyler 1986, writ ref'd n.r.e.).

Application

Because we have determined that Poehler’s impairment rating is not 15% or more, Poehler is not entitled to supplemental income benefits under section 408.142. However, Poehler argues that she is entitled to supplemental income benefits under the doctrine of procedural default. At the beginning of the trial, Poeh-ler stated that the supplemental income benefits for quarter 1 could be disposed of on the basis of default. This assertion is supported by the fact that American Home sought judicial review, as to quarter 1, of the Division’s decision that [American Home] waived the right to contest the claimant’s entitlement to supplemental income benefits by failing to timely request a benefit review conference.

Because American Home was the party seeking judicial review of this decision, American Home had the burden of proof on the issue. Tex. Labor Code Ann. § 410.30S. But American Home presented no evidence and sought no findings to support its position that it did not forfeit the right to contest supplemental income benefits for quarter 1. To avoid the Division’s decision that Poehler is entitled to supplemental income benefits for quarter 1, American Home had to establish that it did not waive the right to contest Poehler’s entitlement to supplemental income benefits for this quarter. Thus, based on the default, the trial court’s judgment that Poehler is entitled to supplemental income benefits for quarter 1 is correct.

Regarding supplemental income benefits for quarters 2, 3, 5, 6, 7, and 8, the Division did not find default. Obviously then, American Home did not seek judicial review of a decision of the Division as to default for those quarters. To prevail on a theory of default as to those quarters, Poehler, not American Home, had the burden of proof. But Poehler presented no evidence and sought no findings to support her position that American Home defaulted the right to contest supplemental income benefits for quarters 2, 3, 5, 6, 7, and 8. Therefore, Poehler cannot rely on proee-dural default principles as to quarters 2, 3, 5, 6, 7, and 8.

We overrule American Home’s fourth issue as to supplemental income benefits for quarter 1. We sustain American Home’s fourth issue as to supplemental income benefits for quarters 2, 3, 5, 6, 7, and 8.

Attorney’s Fees

In its fifth issue, American Home argues that the trial court improperly awarded Poehler attorney’s fees and improperly denied American Home’s request for a jury trial on the issue of attorney’s fees.

Applicable Law

When a worker’s compensation insurance earner seeks judicial review of the Division’s decision regarding compensability or benefits, the carrier is liable for reasonable and necessary attorney’s fees incurred by the claimant if the claimant prevails on the issue. Id. § 408.221(c) (Vernon 2006). When the carrier seeks judicial review of multiple issues and the injured worker prevails on some, but not all, of those issues, the trial court must apportion and award fees to the injured worker’s attorney only for the issues on which the injured worker prevails. Id.; Tex. Mut Ins. Co. v. Boetsch, 307 S.W.3d 874, 882 (Tex.App.-Dallas 2010, pet. filed). In approving attorney’s fees, the court must consider the time and labor required, the novelty and difficulty of the questions involved, the skill required to perform the legal services properly, the fee customarily charged in the locality for similar legal services, the amount involved in the controversy, the benefits to the claimant that the attorney is responsible for securing, and the experience and ability of the attorney performing the services. Tex. LaboR Code Ann. § 408.221(d) (Vernon 2006).

Although the framework of the statute requires the trial court to consider several factual issues, the carrier still is entitled to a jury determination of the reasonableness and necessity of the claimant’s attorney’s fees where attorney’s fees are disputed. Transcontinental Ins. Co. v. Crump, — S.W.3d -, - (Tex.2010). The trial court then considers the jury’s determination of the amount of reasonable and necessary fees in approving fees pursuant to subsection (d). Id.

Application

Based on our determination that Poeh-ler’s impairment rating of 20% is invalid, and that Poehler is not entitled to supplemental income benefits for quarters 2, 3, 5, 6, 7, and 8, American Home did not lose all issues on which it sought judicial review. When the trial court assessed attorney’s fees against American Home, it had determined that American Home was unsuccessful on all issues on which it sought judicial review. Thus, we agree with American Home that the trial court’s award of attorney’s fees to Poehler is incorrect.

Because American Home was not successful on all of its issues, Poehler is entitled to some amount of attorney’s fees. However, American Home is also entitled to a jury issue on the amount of attorney’s fees. Id. Therefore, we sustain American Home’s fifth issue, and remand the attorney’s fees issue to the trial court. The reasonableness and necessity of Poehler’s attorney’s fees will be decided by a jury, and the trial court will then consider the jury’s determination in deciding the amount of attorney’s fees to approve pursuant to subsection (d).

Disposition

As to quarter 1 of Poehler’s supplemental income benefits, we afñrm the judgment of the trial court. As to Poehler’s impairment rating, we reverse the judgment of the trial court and render judgment that Poehler’s impairment rating is 5%. As to quarters 2, 3, 5, 6, 7, and 8 of Poehler’s supplemental income benefits, we reverse the judgment of the trial court and render judgment that Poehler is not entitled to supplemental income benefits for quarters 2, 3, 5, 6, 7, and 8. As to the trial court’s award of attorney’s fees to Poehler, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

      . Poehler’s brief contains occasional statements indicating that a default as to quarter 1 results in a lack of jurisdiction to review the 20% impairment rating and quarters 2, 3, 5, 6, 7, and 8. However, each of the other quarters in question was contested by American Home before the Division. Further, because the Division had not previously resolved any quarter based upon this argument, it was Poehler's burden to prove the issue existed. Poehler failed to do so in the trial court.


author: JOSEPHINE LINKER HART, Judge.

text:
    2009 Ark. App. 472
    William Edward SNIDER, Appellant, v. STATE of Arkansas, Appellee.
    No. CA CR 08-507.
    Court of Appeals of Arkansas.
    June 17, 2009.

      J. Sky Tapp, Hot Springs, for appellant.
    Dustin McDaniel, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
   JOSEPHINE LINKER HART, Judge.

| .This case is once more before us after we ordered re-briefing in an unpublished January 28, 2009 opinion. We now decide this case on the merits. Edward Snider appeals his conviction by a Columbia County jury on charges of residential burglary, committing a terroristic act, and two counts of aggravated assault. For these crimes, Snider received consecutive sentences totaling 384 months in the Arkansas Department of Correction and a fine of $20,000. On appeal, Snider argues that the trial court erred in admitting into evidence a tape of three 911 calls that one of the victims, Jana Blackwell, made near the time of his alleged crimes and a videotape of Blackwell’s statement made to police shortly after they responded to the 911 call. Blackwell did not testify at trial. We agree that the trial court erred in admitting the videotape of Blackwell’s interview with police. However, we find the error to be harmless beyond a reasonable doubt and affirm the convictions.

1^Because Snider does not challenge the sufficiency of the evidence, we will only briefly summarize the facts before considering his allegations of error. Snider and Blackwell divorced in August 2006. Blackwell was awarded possession of the marital residence, but Snider continued to live with her until December 21, 2006, when she insisted that he leave. By this time, Snider had rented another residence and had moved most of his personal belongings to that dwelling. However, Snider’s boat, a significant quantity of hand tools, fishing tackle, and camping gear remained at Blackwell’s house.

Blackwell began dating Robert Travis Barnwell several months before the divorce. He worked on an off-shore oil rig, but pursued his romance with Blackwell every third week when he received shore leave. Blackwell eventually banned Snider from her residence to make room for her new paramour, with whom she intended to spend the Christmas holiday.

On the rain-soaked Christmas Eve of 2006, Snider decided that he should “meet” Blackwell’s boyfriend. Snider, accompanied by his son, William Coby Snider, who had resided with his dad and Blackwell prior to the divorce, went to Blackwell’s house. Snider went to the door, only to be chased from the porch by Barnwell, who was wielding Blackwell’s thirty-eight special revolver. Snider got back into his truck and spun out of the yard, splattering mud on Barnwell’s truck.

Snider returned to his house and started drinking. Toxicology reports introduced at the trial indicated that Snider had also ingested methamphetamine and Xanax. Eventually, William left to go to Christmas dinner with his fiancee. Meanwhile, Blackwell had called 911 Rand reported Snider’s intrusion.

After his son William left, Snider armed himself with a Sig Sauer P226 forty-caliber semi-automatic pistol and a twelve-gauge Remington shotgun and drove his four-wheeler back to Blackwell’s house. He parked a tenth of a mile from the residence and walked toward the house. Snider paused in the yard and fired several rounds of buckshot into the residence. Barnwell and Blackwell scurried for cover, with Blackwell concealing herself in her bedroom closet. After kicking the door, Snider entered and fired three shots from his handgun into the bedroom. One of the bullets struck Barnwell in the leg. A scuffled ensued, and Blackwell left the bedroom to call 911. Barnwell claimed that Snider pressed his Sig Sauer to his chest, but the gun jammed. Barnwell then “cold-cocked” Snider. The beating that ensued resulted in Snider sustaining a concussion and broken facial bones. Snider was also shot with Blackwell’s thirty-eight.

When police arrived, they found Snider writhing in pain on the kitchen floor. He was suffering from a gunshot in the leg and severe facial contusions. A dozen live shotgun rounds were found on Snider’s person. The two guns that he brought into the residence had been placed on the back porch. Five spent shotgun shells were found in the yard, and three forty-caliber slugs were found in the bedroom. Lieutenant Mike McWilliams turned on his video camera and began videotaping the scene. Eventually, he conducted an interview of Blackwell, who fairly calmly responded to his questions concerning the events that had transpired that night.

|4The error complained of in this appeal was brought about because Blackwell did not testify at Snider’s trial. Rather than merely accepting Blackwell’s absence, or compelling her attendance, the State chose to introduce her to the jury by playing the three recorded phone calls she made to 911 and a videotaped interview conducted by the police after they responded to the crime scene. We review the decision by the trial court to admit this evidence under an abuse of discretion standard. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003).

Although listed as separate points, we will consider Snider’s arguments concerning the admission of Blackwell’s videotaped interview together. He contends that the trial court abused its discretion by admitting Blackwell’s statement into evidence because it did not qualify as an excited utterance and it violated his right to confront the witness. Regarding whether the interview qualified as an excited utterance, Snider analyzes his case in terms of the five factors listed in Barrett and asserts that the factors indicate that the statement should have been excluded. The five factors are (1) the lapse of time, (2) the age of the declarant, (3) the physical and mental condition of the declarant, (4) the characteristics of the event, and (5) the subject matter of the statement. Id. The Barrett court further held that it must appear that the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive, rather than the product of reflection and deliberation.

Snider asserts that the lapse of time, approximately thirty minutes, allowed Blackwell to “calm down and reflect upon what happened”; that Blackwell’s age of thirty-seven, as 15compared to situations involving very young children, militates against finding that her interview was an excited utterance; that her mental condition was not that of a person that had been brutally traumatized, as in the case of a rape victim, but rather one who was able to answer a police officer’s questions; that Blackwell was uninjured and “safe” when she gave her interview; and that the statements that Blackwell made were in response to police questioning. We agree with this analysis. Our review of the video shows that while Blackwell was certainly upset by the events that she had just witnessed, her answers to police questions were deliberate and thoughtful, not “excited or impulsive.” Accordingly, it was error for the trial court to admit Blackwell’s interview as an excited utterance. Our rules of evidence prevent the admissibility of hearsay evidence. Ark. R. Evid. 802. A recitation of past events does not constitute an excited utterance. Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987).

Regarding Snider’s related argument that introduction of the videotaped interview also violated his right to confront Blackwell, we likewise agree. We acknowledge that there was some question in our minds regarding whether this issue was preserved. Certainly, this issue could have been more thoroughly argued to the trial court. Snider did not mention the United States Supreme Court’s seminal case of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), or its progeny, or even argue to the trial court that Blackwell’s interview constituted “testimonial hearsay.” However, Snider did argue that admitting into evidence Blackwell’s |fiout-of-court statements denied him the right to cross-examine Blackwell. In Caswell v. State, 63 Ark.App. 59, 973 S.W.2d 832 (1998), we held that such an argument was sufficient to preserve an appellate argument invoking the Confrontation Clause. We also acknowledge that Snider could have been more direct in asserting that his cross-examination argument applied both to admitting the 911 tapes, which was obvious, and to the videotaped interview. However, it was obvious to the trial judge who disposed of Snider’s objection to the video with the “same ruling” he made with regard to the 911 tape. Accordingly, we reach the merits of Snider’s Confrontation Clause argument.

As Snider notes, although the Crawford court did not give a comprehensive definition of what constitutes “testimonial hearsay,” it did specifically mention “police interrogations.” While a correct statement of the law, we note that the Supreme Court later, to a degree, limited this definition in Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), by stating that statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. Conversely, such statements are deemed “testimonial” when the circumstances objectively indicate that there is no such ongoing emergency and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Id. Blackwell’s interview was |7clearly obtained after the emergency had passed and was conducted as part of a criminal investigation. Accordingly, we agree that Blackwell’s videotaped interview qualifies as testimonial hearsay, and Snider’s Sixth Amendment rights under the Confrontation Clause were violated. We hold that the trial court erred in admitting the video tape for this reason as well.

However, our inquiry does not end there, as we must consider whether the error was harmless. Snider concedes that arguments concerning violations of a defendant’s rights under the Confrontation Clause as well as arguments concerning evidentiary rulings are subject to harmless-error analysis. Sparkman v. State, 91 Ark.App. 138, 208 S.W.3d 822 (2005). We must affirm if the error is harmless beyond a reasonable doubt. We hold that it is.

The elements of each of the four offenses for which Snider was convicted were proven by evidence that was completely independent from the evidence that was contained in Blackwell’s videotaped interview. Contrary to Snider’s characterization of Blackwell as the “star witness,” in this case, that title belonged to Barn-well. Indeed, it was uncontroverted that Blackwell for much of the incident was either hiding in a closet or had fled the residence to call 911. Moreover, after the trial court had ruled that the videotaped interview would be admitted, Snider’s trial counsel secured admissions from the police that most of Blackwell’s knowledge of the case came from what Barnwell had told her. Further, while there were discrepancies between what Blackwell stated in her interview, particularly concerning how Barnwell came to possess her thirty-eight, if anything, these discrepancies aided the defense’s theory of the case, not the State’s. Finally, Barnwell’s testimony was well corroborated by | ^physical evidence and was either confirmed or not contradicted by Snider’s own testimony. As noted previously, shotgun shells were found in the yard and on Snider’s person, and Snider confirmed that the shotgun that was found on the back porch was his. Snider was found inside the residence, as were slugs and empty casings from his forty-caliber pistol, which he also confirmed that he owned. Finally, Barnwell had a gunshot wound that was inflicted with Snider’s pistol. Accordingly, we hold that although the trial judge clearly erred in admitting Blackwell’s videotaped interview, the error was harmless beyond a reasonable doubt.

Snider next argues that the trial court erred in admitting the tape of the 911 calls because their probative value is substantially outweighed by the danger of unfair prejudice in violation of Rule 403 of the Arkansas Rules of Evidence. He contends that the tapes were not necessary to prove any part of the State’s case and that they were cumulative of other evidence and served no other purpose than to prejudice the jury against him by attempting to show that Blackwell was in fear of her life. He asserts that the error was particularly egregious because he was not able to cross-examine Blackwell. We hold that admission of the 911 tapes is not reversible error.

We agree that the probative value of the 911 tapes was low — the statements on the tape were, at best, cumulative of other evidence presented at trial. Moreover, we cannot disagree that the primary purpose of admitting the 911 tapes appeared to be tied to an effort to create sympathy for the victims in this case. Accordingly, the prejudice clearly outweighed the probative value of the 911 tapes, and therefore, it was error for the trial court to admit the 911 tapes. However, we find the error to be harmless for the same reasons we found admission |9of Blackwell’s videotaped statement to police harmless. Finally, to the extent that Snider is arguing that his rights under the Confrontation Clause were violated because he was not able to cross-examine Blackwell about her statements on the tape, 911 calls have been held to not be “testimonial hearsay” for the purposes of Confrontation Clause jurisprudence. Brown, v. State, 96 Ark.App. 66, 238 S.W.3d 614 (2006) (citing Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)).

Affirmed.

BAKER, J., agrees.

ROBBINS, J., concurs.

      . The trial judge disposed of Snider’s motion to exclude the videotaped interview by stating that he was allowing its introduction for the same reason that he allowed the 911 recordings to be introduced.


author: M. MICHAEL KINARD, Judge.

text:
    2009 Ark. App. 504
    Deandrae LEWIS, Appellant, v. STATE of Arkansas, Appellee.
    No. CACR 08-1343.
    Court of Appeals of Arkansas.
    June 24, 2009.

      Rice & Adams, by: Brian K Woodruff, Jacksonville, for appellant.
    Dustin McDaniel, Att’y Gen., by: Pamela A. Rumpz, Ass’t Att’y Gen., for appellee.
   M. MICHAEL KINARD, Judge.

liDeandrae Lewis appeals from his convictions for aggravated residential burglary, theft by receiving, and fleeing. He was sentenced to twelve years’ imprisonment for the aggravated residential burglary and fined $100 for each misdemeanor (theft by receiving and fleeing). On appeal, Lewis challenges the sufficiency of the evidence supporting his aggravated-residential-burglary and theft-by-receiving convictions. He also contends that the trial court erred in allowing the admission of hearsay evidence by witness Eli Wilbert. We affirm.

The events underlying appellant’s convictions took place in Jacksonville on April 2, 2008, and the early morning hours of April 3, 2008. Police responded to a report of a home invasion and, a few blocks away, a report of suspicious activity outside a vacant 12house. Mark Smith’s residence on Ruth Ann Drive was broken into. Eli Wilbert, Smith’s neighbor, testified that on the evening in question he was watching a movie with his wife when they heard a “loud boom” that “shook [their] whole apartment.” The sound came from Mark Smith’s house, and Wilbert testified that it sounded like it came from the back door. Wilbert stepped out his back door and looked around, and he could see that Smith’s door was ajar. When he went back to the front door, he saw Smith and another man running down the street. Wilbert testified that Smith “appeared very distraught, upset, yelling. He was screaming ‘help, help, help! Call the police! Call the police!’ ” Wilbert testified that four black males whom he had never seen before came out of the house. According to Wilbert, one of the men was carrying a shotgun. He was wearing a white “hoodie” with distinctive coloring on it. All four men ran and got into a gray four-door sedan, “like a Malibu.” The car left at a very high rate of speed, and it struck the curb “very hard” during its second turn.

Wilbert testified that he had an opportunity to go to Smith’s house after the incident. He described the house as “ransacked” and “really in disarray”; he described the back door as “severely kicked in and damaged.” After giving his statement to the police, Wilbert was taken to Michelle Street, which was six or seven blocks away, where he identified a car as the one in which the men drove away. Wilbert testified that there was front left-side damage to the front tire, which was the same tire he had seen hit the curb. |aWilbert also saw keys, which he recognized as Smith’s, in the back seat of the car. Wilbert identified the two suspects in custody as being two of the individuals he saw coming out of Smith’s house and a shotgun as being the one he saw back on Ruth Ann Drive.

Michelle Lofton, who lives at # 1 Michelle Lane in Jacksonville, testified that her husband called police late on the evening of April 2, 2008. She stated that she was watching television when she heard a noise that sounded like someone was having car trouble. The noise got louder and louder and then stopped. Lofton looked outside and saw movement around a vacant house across the street. She saw a car and two or three people moving around outside of the vehicle. She observed someone go through the side gate and into the backyard of the vacant house, at which point she decided to wake up her husband. Suspecting vandalism, they called the police.

Officer Melissa Williams of the Jacksonville Police Department responded to the call regarding the suspicious vehicle at # 4 Michelle Lane. She testified that she and Officer Robert Slash responded within minutes. As they were getting out of their police cars, they “heard a clink, like something hitting concrete.” They saw a black male wearing a light-colored jacket or sweatshirt run from the driveway across the front of the house to the north end of the house. They heard a board break and saw him jump over the privacy fence. Neither officer attempted to pursue the man beyond the backyard. A suspect was soon apprehended, and Williams identified the suspect as appellant.

|4Upon searching the vehicle in the driveway, Williams found a set of keys with a pool ball key chain; the keys did not fit the ignition of the car. Outside the car was a ball cap, which Williams believed someone had taken off while trying to change the front tire. The front tire of the vehicle had been blown out, and there was a spare on that tire with the lug nuts not yet tightened. The original tire and hubcap were nearby, as was a single-barrel shotgun.

Detective Mark Humphries of the Jacksonville Police Department testified that he responded to # 4 Michelle Lane to process the vehicle for latent fingerprints, and to do tape lifts for DNA, hair samples, and/or blood that may have been left at the scene. The latent prints Humphries submitted did not contain sufficient ridge detail to be used for identification purposes.

Antonio Kenny testified that he was with appellant on the night in question. Kenny was arrested and charged with residential burglary and theft of property, but those charges were later dropped. At the time of trial, Kenny was on supervised probation in an unrelated case. Part of his plea deal was that he testify at appellant’s trial. Kenny testified that on the night in question he, appellant, and another man went to Jacksonville in an Impala. Appellant and the other individual knocked on the door of a residence; when no one answered, they went around to the back and entered. The two men who had been in the house tried to run out the front door, but were stopped. They were “arguing, fussing, and exchanging words” for no longer than five minutes. According to Kenny, it was ^appellant who had a shotgun. The two men who lived there ran out the front door, and he, appellant, and the other man drove away. They hit a curb and damaged the car, and they pulled into a driveway to fix it. The police pulled up, and Kenny ran. The police picked him up about an hour and a half later.

At the close of the State’s case, appellant moved for a directed verdict on all charges. As to the aggravated residential burglary, defense counsel argued that no evidence was presented that (1) appellant did not have permission to be at Smith’s residence or (2) appellant entered to commit a crime punishable by imprisonment. No argument was made regarding the misdemeanor theft-by-receiving charge. Appellant’s motion was denied. Following the jury’s verdicts, a judgment and commitment order was filed in this ease on August 26, 2008. Appellant timely filed a notice of appeal.

Appellant’s first point on appeal is that the trial court erred in denying his motion for a directed verdict. On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Page v. State, 2009 Ark. 112, 313 S.W.3d 7. We will affirm the circuit court’s denial of a motion for directed verdict if there is substantial evidence, either direct or circumstantial, to support the jury’s verdict. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond speculation or conjecture. See id. Furthermore, the appellate court views the evidence in the fight most favorable to the verdict, and only evidence supporting the verdict will be considered. See id.

| (A person commits aggravated residential burglary if (1) he commits residential burglary of a residential occupiable structure occupied by any person and (2) he is armed with a deadly weapon, represents by word or conduct that he is armed with a deadly weapon, or inflicts or attempts to inflict death or serious physical injury upon another person. See Ark. Code Ann. § 5-39-204 (Supp.2007). A person commits residential burglary if he enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing in the residential occupiable structure any offense punishable by imprisonment. Ark.Code Ann. § 5 — 39—201(a)(1) (Repl.2006).

Appellant argues that there was no evidence presented that he did not have permission to be at Mark Smith’s residence at 1105 Ruth Ann. In his brief, appellant writes:

Witness Eli Wilbert testified that he saw Mark Smith outside his residence running down the street in a distraught and upset manner, but Witness Eli Wilbert had no personal knowledge of why Mark Smith was acting in this manner. Absent testimony from Mark Smith, it cannot be known whether Appellant was invited into the home, whether Appellant entered and remained unlawfully, why Mark Smith left the home in an upset and distraught manner, and whether his leaving had anything to do with Appellant.

We hold that the evidence in this case, albeit circumstantial, was sufficient to support the verdict. We make no distinction between circumstantial and direct evidence when reviewing for sufficiency of the evidence. Booker v. State, 335 Ark. 316, 320, 984 S.W.2d 16, 19 (1998). However, for circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence. Id. Whether the evidence excludes every other reasonable hypothesis is left to the jury to determine. Id. On |7appeal, we review the evidence in the light most favorable to the appellee. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001).

Here, the evidence was that appellant and another man broke down Smith’s back door. They entered the residence and an argument ensued. Then, a “distraught” Smith ran from his home yelling that he needed help and asking someone to call the police. Appellant and those with him quickly left the scene carrying a shotgun. Thus, the evidence is more than sufficient to prove that appellant did not have permission to be in Smith’s residence. Appellant’s next subpoint, that there was no evidence that appellant had a shotgun upon entering Smith’s home, is not preserved for appellate review because it was not argued before the trial court. See Ark. R.Crim. P. 33.1.

Appellant also argues that the evidence was insufficient to show that he committed theft by receiving of the car keys. The State contends that this argument is not preserved for appellate review because his motion to the trial court was made too late. Indeed, a review of the record reveals that appellant made a specific motion for directed verdict as to the theft-by-receiving charge involving the keys during discussion of jury instructions, after both sides had rested. This was too late. See Ark. R.Crim. P. 33.1; State v. Holmes, 347 Ark. 689, 66 S.W.3d 640 (2002) (recognizing that a sufficieney-of-the-evidence argument was not preserved by a motion for directed verdict made during closing argument). If we were to reach the merits of this argument, we would still affirm. A person commits the offense of theft by receiving if he receives, retains, or disposes of stolen | ^property of another person knowing the property was stolen or having good reason to believe the property was stolen. Ark. Code Ann. § 5-36-106(a) (Repl.2006). Here, appellant concedes the keys belonged to Mark Smith, but seems to argue that there was no evidence that the keys were stolen or that he was the one who stole them. We disagree. The unrebutted evidence showed the stolen keys were found in the car that appellant and his accomplices used for the burglary of Smith’s residence. The possession of stolen property, if not satisfactorily explained to the jury, is sufficient to sustain a conviction for theft by receiving. Wilson v. State, 10 Ark.App. 176, 662 S.W.2d 204 (1983).

For his second point on appeal, appellant argues that the trial court erred in allowing the admission of hearsay evidence by witness Eli Wilbert. At trial, Wilbert testified that the men he observed coming out of Smith’s home were “not supposed to be there,” at which point defense counsel made a hearsay objection. The objection was overruled. Appellant contends that Wilbert’s statement that appellant was not supposed to be at the home of Mark Smith was hearsay because it was not within Wilbert’s personal knowledge.

The decision to admit or exclude evidence is within the sound discretion of the circuit court, and we will not reverse a circuit court’s decision regarding the admission of evidence absent a manifest abuse of discretion. Rodriguez v. State, 372 Ark. 335, 276 S.W.3d 208 (2008) (citing Morris v. State, 358 Ark. 455, 193 S.W.3d 243 (2004); Pugh v. State, 351 Ark. 5, 89 S.W.3d 909 (2002)). Moreover, we will not reverse absent a showing of prejudice. Id.

Appellant’s hearsay argument is misplaced. Hearsay is an out of court statement offered in evidence to prove the truth of the matter asserted. See Ark. R. Evid. 801(c). The trial court did not abuse its discretion in overruling appellant’s hearsay objection.

Affirmed.

VAUGHT, C.J., and BROWN, J., agree.

      . Appellant was convicted on a charge of theft by receiving of keys; he was acquitted on a separate charge of theft by receiving of a Chevrolet Malibu.

      . Smith was deceased by the time of trial.