Jimmy Ray Shelton v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-99-00733-CR

Jimmy Ray Shelton, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
NO. 9293, HONORABLE JOHN L. PLACKE, JUDGE PRESIDING

A jury found appellant Jimmy Ray Shelton guilty of the attempted capital murders of

Brian Garvel, an Elgin police officer, and Julius Matus, a Williamson County deputy sheriff, and

sentenced him to ninety-nine years’ confinement. See Tex. Penal Code Ann. §§ 15.01, 19.03(a)(1)

(West 1994). He appeals, arguing the evidence is insufficient to support the verdict, the district court

should have included a jury instruction on voluntary intoxication, and the district court erred in

admitting, during the punishment phase of trial, several types of evidence regarding appellant’s

involvement with the Ku Klux Klan and other white-supremacist organizations. We will affirm the

judgment of conviction and reverse and remand the portion of the judgment imposing sentence.

Sufficiency of the Evidence
 In Shelton’s first two points of error, he contends the evidence is factually and legally

insufficient to support the jury’s guilty verdicts because there is no evidence he shot at the officers

or was guilty of anything more than evading arrest. We disagree.

When reviewing the legal sufficiency of evidence, we view the evidence in the light

most favorable to the verdict to determine whether a rational finder of fact could have found all the

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);

Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998), cert. denied, 526 U.S. 1070 (1999).

In reviewing factual sufficiency, we view all of the evidence in a neutral light and will reverse only

if the verdict is so contrary to the overwhelming weight of the evidence as to be unjust. Johnson v.

State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex.

Crim. App. 1996)); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.—Austin 1992, pet. ref’d

untimely filed). The jury as trier of fact resolves any conflicts in the evidence, evaluates witness

credibility, and determines the weight to be given the evidence. Johnson, 23 S.W.3d at 8.

At about 11:00 p.m. on March 26, 1999, a red Nissan pickup truck sped through a

residential area in Taylor, Texas, passing an unmarked patrol car driven by officers from the

Williamson County Sheriff’s Department. The truck failed to stop after being signaled to do so and

led as many as five patrol cars on a high-speed chase from Taylor through Elgin. Police officers

estimated the truck’s speed to have been as high as one-hundred or one-hundred-twenty miles an

hour. During the chase, someone in the truck began shooting at the patrol cars, hitting several of

them in their front bumpers and windshields. Police tried to pull alongside the truck at least three

times, and each time the truck swerved at the patrol car, forcing it to slow down and drop behind the

truck; one of those times, the truck actually rammed the police car. When the truck finally stopped,

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it had two flat tires and a third tire had been stripped completely from the wheel rim. The driver,

identified at trial as Shelton, and a passenger got out of the truck and, after Shelton was subdued with

pepper spray, both were arrested. A search of the truck found several rifles and knives, a book

instructing the reader on how to make weapons and explosives, an inert hand grenade, numerous

calibers and types of ammunition, brass knuckles, and a bull whip. The police found a semiautomatic

pistol on the floorboard and a package containing 5.22 grams of methamphetamine in Shelton’s

clothing.

Matus, a Williamson County deputy sheriff, had joined the chase in a marked patrol

car. He realized someone in the truck was shooting at him when he heard debris breaking up against

his windshield. Matus testified that his patrol car was hit twice by bullets, once in the front bumper

and once “dead-center in [his] windshield.” Matus did not know who in the truck was shooting or

if there were multiple weapons being fired from the truck.

Garvel, an Elgin Police Department police officer, had joined the chase at Elgin’s city

limits. He was leading the chase when he heard a gunshot and simultaneously was hit in the face and

arms with glass from his windshield. After the chase he examined his car and saw that a bullet from

the truck had hit the radar antenna mounted to the center of his dash. Garvel testified that after the

truck stopped and Shelton got out, he had to be told repeatedly to lie down. Once on the ground,

Shelton kept moving and pulling away as Garvel tried to put handcuffs on him, so Garvel sprayed him

with pepper spray.

Shelton was charged with two counts of attempted capital murder. A person commits

capital murder if he intentionally or knowingly causes the death of a peace officer acting in the lawful

discharge of official duties and who the defendant knows is a peace officer. Tex. Penal Code Ann.

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§ 19.03(a)(1) (West 1994). A person commits criminal attempt if, with the specific intent to commit

an offense, he acts to more than merely prepare for, but fails to effect, the commission of the intended

offense. Tex. Penal Code Ann. § 15.01(a) (West 1994).

The jury charge included an instruction on the law of parties, which allows the State

to enlarge a defendant’s criminal responsibility to acts in which he may not be the principal actor.

Goff v. State, 931 S.W.2d 537, 544 (Tex. Crim. App. 1996); Rivera v. State, 990 S.W.2d 882, 887

(Tex. App.—Austin 1999, pet. ref’d). A defendant is criminally responsible for an offense committed

by another if, with the intent to promote or assist in the commission of the offense, he solicits,

encourages, directs, aids, or attempts to aid the other person in the offense. Tex. Penal Code Ann.

§ 7.02(a)(2) (West 1994); Rivera, 990 S.W.2d at 887. To establish liability as a party, the State must

show that the accused had the intent to promote or assist the commission of the offense. Lawton v.

State, 913 S.W.2d 542, 555 (Tex. Crim. App. 1995); Rivera, 990 S.W.2d at 887. The evidence must

reflect that at the time of the offense the parties acted together, each doing some part to execute the

common design. Rivera, 990 S.W.2d at 887. A common design can rarely be shown by direct

evidence and may instead be shown by the actions of the parties before, during, and after the offense.

Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1996); Rivera, 990 S.W.2d at 887-88.

Mere presence at the offense is insufficient to convict a defendant as a party; however, evidence that

the defendant was present and encouraged the commission of the offense by words or deed is

sufficient. Ransom, 920 S.W.2d at 302; Rivera, 990 S.W.2d at 888.

Whether viewed in the light most favorable to the verdict, or viewed neutrally, the

evidence supports the jury’s verdict and does not lead to a conclusion that the verdict was clearly

unjust. The evidence showed that Shelton, followed by as many as five police cars with lights flashing

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and sirens sounding, drove his truck at excessive speed for about thirty miles. Either Shelton or his

passenger fired numerous shots at the police cars, striking three of the cars in their windshields and

front bumpers. A gun was found on the floorboard of Shelton’s truck. Shelton swerved his truck

at police cars trying to draw alongside the truck, ramming one car and causing the driver to fishtail

and briefly lose control. The evidence is legally and factually sufficient to show Shelton and his

passenger acted with a common design, using deadly force against the officers in the chase. We

overrule Shelton’s first two points of error.

Voluntary Intoxication

In his third point of error, Shelton contends the district court erred in refusing to

include in the jury charge an instruction on voluntary intoxication. He claims he was entitled to the

instruction because the evidence indicated he had an “aberrant mental state, apparently cause[d] by

the ingestion of methamphetamine.” We disagree.

Voluntary intoxication is not a defense to the commission of a crime. Tex. Penal Code

Ann. § 8.04(a) (West 1994). However, evidence of temporary insanity caused by intoxication may

be introduced by the defendant for the purposes of mitigation of punishment. Id. § 8.04(b). To be

entitled to a jury instruction on voluntary intoxication, the evidence must show that the intoxication

rendered the defendant temporarily insane in that (1) he did not know his conduct was wrong or (2)

he was incapable of conforming his conduct to the law.1 Cordova v. State, 733 S.W.2d 175, 190

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Shelton does not point to evidence that shows he was temporarily insane. Likewise, his brief
does not actually argue that he was temporarily insane; instead it argues the evidence of his “aberrant
mental state” entitled him to the instruction. These oversights warrant the overruling of his point of
error. San Miguel v. State, 864 S.W.2d 493, 496 (Tex. Crim. App. 1993). However, in the interest
of justice, we will review his point.

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(Tex. Crim. App. 1987). Evidence that the defendant was intoxicated at the time of the offense does

not automatically entitle him to a mitigation instruction at punishment. Miniel v. State, 831 S.W.2d

310, 320 (Tex. Crim. App. 1992).

Dr. William Dailey evaluated Shelton and testified that when the police initially tried

to make him pull over, Shelton “became frightened and speeded up and tried to drive to get away.”

Shelton told Dailey that he was unaware that his passenger was going to shoot at the police with a

pistol that was in the truck until he heard gunfire. At that point, Shelton said, he feared he would be

shot and continued to try to escape. Shelton told Dailey that at the time of the chase, he had not slept

for three days and had been using amphetamines. Dailey testified that large doses of amphetamines

can cause “significant behavioral disorders,” including hallucinations, disorganized thinking, and

problems with judgment and behavioral control. He also said the drug can cause a user to feel

paranoid. Dailey said that, based on evidence that Shelton was sometimes unintelligible,

unresponsive, or catatonic after his arrest, Shelton was probably experiencing sleep deprivation and

drug withdrawal. Symptoms of withdrawal include glazed eyes, intermittent unresponsiveness, and

irritability. Symptoms of amphetamine abuse include incoherentness, confusion, and disorganized

conversation. Dailey also testified that Shelton displayed some indications of an antisocial personality

disorder. Dailey admitted that much of his opinion was based on information provided by Shelton.

Dailey noted in his report that Shelton may have been motivated to perform poorly on a memory test.

Dailey also stated he simply reported Shelton’s version of the chase; he said he did not necessarily

believe that version was true. He said, “It is not intended to be a statement of what I think is actually

true. It’s simply the history that he provides.” Dailey did not testify that at the time of the chase,

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Shelton was so intoxicated that he was unable to tell his conduct was wrong, nor did he testify that

Shelton could not, by reason of his drug use, conform his conduct to the law.

There is no evidence indicating Shelton was temporarily insane at the time of the

offense. Nowhere does the evidence suggest that he did not know his conduct was wrong or that he

could not conform his conduct to the law. See Beavers v. State, 856 S.W.2d 429, 432-33 (Tex. Crim.

App. 1993) (evidence of drug abuse, addiction, childhood abuse, and retarded emotional development

did not entitle defendant to instruction); Miniel, 831 S.W.2d at 320 (evidence of marijuana use and

“shotgunning” beer did not entitle defendant to instruction); Still v. State, 709 S.W.2d 658, 661 (Tex.

Crim. App. 1986) (evidence that defendant drank “quite a bit” on day of offense did not raise issue

of temporary insanity); Rainey v. State, 949 S.W.2d 537, 543 (Tex. App.—Austin 1997, pet. ref’d)

(evidence showed defendant was intoxicated but did not suggest he did not know right from wrong);

Madden v. State, 628 S.W.2d 161, 162 (Tex. App.—Eastland 1982, pet. ref’d) (evidence that

defendant consumed Valium and six pack of malt beer, felt he was in “walking sleep,” and

remembered only part of offense did not raise issue of whether he knew conduct was wrong or could

not conform conduct to law). Evidence that Shelton was intoxicated at the time of the offense does

not entitle him to the instruction. Miniel, 831 S.W.2d at 320. The district court did not err in

refusing the instruction. We overrule Shelton’s third point of error.

Evidence of Shelton’s Membership in Racist Organization

In his fourth point of error, Shelton argues the district court erred in admitting, during

the punishment phase of the trial, evidence bearing Ku Klux Klan (KKK) and other white supremacist

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insignias.2 In his fifth point of error, he argues it was error for the district court to allow testimony

during the punishment phase about the nature and activities of the KKK. Finally, in his sixth point

of error, he contends the district court erred in admitting during the punishment phase evidence of

his involvement in the KKK. 3 We agree.

An individual’s right to join groups and associate with others holding the same views

is protected by the First Amendment. Dawson v. Delaware, 503 U.S. 159, 163 (1992); Mason v.

State, 905 S.W.2d 570, 576 (Tex. Crim. App. 1995). However, the Constitution does not bar the

admission of all evidence concerning a defendant’s beliefs and associations; such evidence may be

admissible if it is relevant. Dawson, 503 U.S. at 166-68; Mason, 905 S.W.2d at 576-77. To prove

relevance, the State must show (1) proof of the group’s violent and illegal activities and (2) the

defendant’s membership in the group. Dawson, 503 U.S. at 166-67; Mason, 905 S.W.2d at 577.

At the punishment stage, the State introduced over Shelton’s objection the following

evidence: a Confederate States of America belt buckle; three Confederate flags; a holster and knife

on which “Ku Klux Klan” was written; gloves with the Confederate flag on them; a vest with KKK

emblems; a Bible containing the following inscription, “Reverend Jimmy Ray Shelton, Imperial

Wizard, Church of the Konfederate [sic] Ghosts, Knights of the Ku Klux Klan”; a photograph of

2
Shelton asked for and received a timely running objection to any evidence of his membership
in the KKK or other such groups. He argued that the evidence was offered for the sole purpose of
prejudicing the jury against Shelton. The State countered that the evidence was allowable character
evidence, and the district court admitted the evidence.
3
Shelton’s brief does not present argument explaining why the introduction of the evidence was
reversible error. He does not argue that the State failed to show his membership in a group involved
in violent and illegal activities. He contends the evidence only served to inflame the jury and that “[i]t
can not be said that the admission of [the evidence] was harmless error in light of” the sentence
imposed. Shelton sufficiently raises the issue, and we will address his contentions.

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Shelton’s left hand on which is a tattoo of a spider web and black widow spider; a photograph of his

chest with a tattoo of a spider and the letters “KKK”; a business card indicating Shelton was Grand

Dragon of the American Knights of the KKK; and a racist joke hunting license. All of the above

evidence was found in Shelton’s truck, in his wallet, or on his person.

The State called Joseph Roy, Director of Intelligence for the Southern Poverty Law

Center, a group involved in litigation against and education about white supremacist groups, to testify

about such groups and their activities. Roy gathers information about the KKK, other “hate groups,”

and some militias. Roy testified that the Southern Poverty Law Center does not seek to suppress the

free-speech rights of the organizations it sues, but sues when the groups “abandon their

constitutionally protected activity and get involved in some kind of criminal activity or . . . civil tort.”

Roy related the history of the KKK, starting right after the Civil War:

Almost overnight it became very — a vigilante mentality set into it. There are
disguises and secrecy and the rumors that were going around about them got them
involved in a lot of lynchings and burnings and other criminal activity back during that
time and so they disbanded the Klan because it had become so violent; but it grew so
fast so quickly and it was so large that they had a life of their own and the
disbandment didn’t take effect and they’ve been with us ever since the 1860s. They
probably had the largest numbers in the early 1920s, 1925, in that area. There were
almost five million members nationally. You had judges and doctors and lawyers and
Supreme Court Justices and even a president were in the Klan organization. . . . [In
the 1920s] there was a big scandal out of Indiana where one of the national leaders
got involved in a child torture murder and most of the members — had members
almost overnight abandon the Klan . . . . After that there was another resurgence in
growth in the 60s because of the civil rights movement and then we started on a steep
decline for about five years here recently in the — in the late 80s, early 90s, and then
for the last two years there’s been a resurgence in growth . . . because of technology
like the Internet they were able to recruit a lot more people, reach a lot more people
with their information.

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 Roy testified that the KKK is a system of different organizations around the country;

there are about 160 local chapters and about 50 “specifically different groups.” He said the chapters

are independent of one another but may interact and attend the same functions. Roy testified as

follows:

Question: You’ve already described, Mr. Roy, that your organization targets instances
where the Klan may step out of bounds outside their free speech. Is that a common
occurrence or is it just a once in a great while that something might happen or some
— some activity might be conducted or condoned by the Klan that would be outside
the scope of what our Constitution would condone?
Roy: Well, there are a lot of — it’s a lot more complicated than that before we step
in with a lawsuit. We try to file a suit that will have the biggest impact on a national
level and not just a localized —

Question: I’m not —

Roy: There’s a number of cases where we might or might not have sued them, but
we’ve only had like five or six various suits against these organizations.
Question: I think what my question really is geared towards is not simply what your
organization would file a civil lawsuit about. I’m just asking you in general to give
the jury a characterization of the Klan as to whether or not they are an organization
that may or may not be likely to conduct themselves in some sort of criminal way.

Roy: Well, the Klan in general has a rich historical reputation back to the Civil War
of murders and lynchings and violence, especially in the 60s. I mean, that’s the guild
that the Klan design and structure comes out of. I mean, it’s — if you start a Klan
organization that’s who you’re trying to — to attract to your ranks, is that type of
person. It’s like if you were to start a commune you wouldn’t call it the Charles
Manson commune unless that’s the type person that you wanted in your organization
and —

Question: Well, is there a profile of the typical Klan person?
Roy: Well, most clansmen without exception — and even other groups in the hate-
group category fall under the same general description. These are people normally
that are angry. They’re frustrated. They feel like they’ve lost control of their life.
They’re looking for acceptance. They’re involved in a lot of scapegoatism. They’re
looking for people to blame for their own failures. That’s why they select blacks and
Jews and Hispanics and other non-blacks [sic] as the target of their woes. I mean,
these are the people that are conspiring against them or causing them all the failures
in their lives.

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 They’re also looking for instant empowerment. That’s why weapons are so important
to these extremist organizations that, you know, you have a gun and I don’t. You
know, the person with the gun is in charge and it gives them a feeling of acceptance.
They use these titles like Exalted Cyclops and Klaliff and, you know, the list goes on
and on, . . . these are people that couldn’t hold a job one day and the next day they’re
telling people what to do. So it fulfills a big vacancy in their life and they usually fall
in that range.

Roy was asked about the American Knights of the KKK and how they differ from

other KKK organizations. He said the American Knights is one of the largest, fastest-growing, most

active, and “hardest recruiting” KKK organization in the country. Roy said his organization had

written an article about the American Knights titled, “Knights of Thuggery.” He testified that:

[T]he thing that separates the American Knights from other Klan groups is most Klan
groups without exception have adopted more of a — and this may sound strange, but
they have adopted a more politically correct stance or a more socially acceptable
stance. They’re more PR-minded. In other words, they may say we’re not racist,
we’re racialist. We’re not segregationist, we’re separatist. We don’t hate anybody,
we just love white folks. That’s the public side that you see of most Klan groups and
it’s business as usual on the private side, but at least they make an effort.

The American Knights, one of the reasons for their success is there [sic] an in-your-
face type group. They try to — they’ll get permits. They’ll try to — once they get
police protection they’ll try to reach out and target different individuals and pick on
them by making — you know, if somebody is gay they’ll make gay jokes; if
somebody’s black, they’ll make black jokes; you know, whatever the case may be, to
get them riled up to where the counter-protesters will respond, and they’ve been quite
successful in it; and they do this to draw new recruits to show that they’re a powerful
organization. They do it to get news media coverage. I mean, that’s — most any
group that matches, one of the main reasons is to get coverage. There’s no such thing
as bad media for these groups because it gets their message out.

Question: Are most of the people that have — that are in the power structure of the
American Knights, are they fine, upstanding citizens or what are they like?
Roy: Well, one of the reasons we wrote this particular article about the American
Knights was because so many of their members that were in leadership roles had prior
criminal records.

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 Roy went on to name several officers of the American Knights who have criminal

records. He was asked, “What is the function of cross burning within the Klan?” Roy answered,

“Well, a cross burning is not a Klan ceremony.” Roy described some of the titles and offices within

the American Knights and set out the basic power structure of the group. Roy said Shelton had been

connected with the American Knights and identified as:

Reverend Jimmy Shelton, which is a status he holds with a front group called The
Church of the American Knights of the KKK. He also has been identified as the
Exalted Cyclops of [a North Carolina KKK organization]; and he’s also been
identified as an Imperial Knight Hawk, which is a national security officer.

Roy said Shelton was reportedly banished from the group in August 1998, but a week

later, he was seen handing out KKK literature with the man who runs the American Knights’ national

office. Roy said the national leadership usually tries to distance itself from members who are in legal

trouble and such members are usually on “leave of absence.” Roy did not know anything about the

Konfederate Ghosts of the KKK, a group Shelton may have founded after August 1998.

Rick Lunsford, detective with the North Carolina Police Department, testified he was

familiar with Shelton from observing him at KKK activities. Lunsford played for the jury a videotape

compilation of Shelton’s appearances at and participation in various KKK rallies.

The State clearly satisfied the second prong of the Dawson test, producing

considerable evidence indicating Shelton’s association with various Klan groups. Dawson, 503 U.S.

at 165-66; Mason, 905 S.W.2d at 577. However, the State’s evidence falls short of the first prong,

proof of the group’s violent and illegal activities. Dawson, 503 U.S. at 166; Mason, 905 S.W.2d at

577. Roy testified that the KKK had a “rich historical reputation” of violent and illegal behavior, but

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said that was especially true some thirty to forty years ago. He further testified that the American

Knights was a separate organization from the KKK, and that it gets permits to hold rallies and then,

through inflammatory language, incites counter-protesters to react violently. In essence, Roy testified

that the American Knights’ behavior is obnoxious but legal and permitted. Roy never testified that

the American Knights goes beyond its permitted rallies to commit violent or illegal activities. The

State’s evidence does not satisfy Dawson’s first prong, and the evidence appears to have been

introduced “simply because the jury would find these beliefs morally reprehensible.” Dawson, 503

U.S. at 167 (State introduced only vague stipulation of group’s abstract beliefs; no proof group had

committed or endorsed illegal and violent acts); see, e.g., Mason, 905 S.W.2d at 577 (evidence of

defendant’s membership in group involved in illegal drugs, prostitution, weapons manufacture,

contract killings, and assaults); Beasley v. State, 902 S.W.2d 452, 456 (Tex. Crim. App. 1995)

(evidence of membership in gang involved in “violent and criminal behavior, such as ‘drug trafficking,

robberies, and witness intimidation’”); Fuller v. State, 829 S.W.2d 191, 196 (Tex. Crim. App. 1992)

(evidence that group was “not law-abiding,” used intimidation and fear, and had violence as “main

function,” but State did not prove defendant’s membership); Aguilar v. State, 29 S.W.3d 268, 270

(Tex. App.—Houston [14th Dist.] 2000, no pet.) (evidence of defendant’s membership in “criminal

street gang”).

As demonstrated by a review of the above cases, the State’s evidence does not satisfy

the standard for admissibility set out by the Supreme Court and the court of criminal appeals. The

State did not prove that the KKK or the American Knights, during a relevant time period, had

committed unlawful or violent acts or had endorsed such acts. See Dawson, 503 U.S. at 166. The

evidence of Shelton’s involvement with these groups was not tied in any way to his crime. See id.

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There is no evidence that elements of racial hatred were involved in Shelton’s crime. See id. Like

the Supreme Court in Dawson, we must conclude that Shelton’s First Amendment rights were

violated by the admission of the KKK evidence, because the evidence proved nothing more than

Shelton’s abstract beliefs. Id. at 167. It was not relevant to prove any aggravating circumstances.

See id. We are left with no choice but to sustain Shelton’s fourth, fifth, and sixth points of error.

Constitutional error directly offends the United States or Texas constitutions without

regard to any statute or rule that may apply. Tate v. State, 988 S.W.2d 887, 890 (Tex. App.—Austin

1999, pet. ref’d). Constitutional error requires reversal unless we determine beyond a reasonable

doubt that the error did not contribute to the punishment. Tex. R. App. P. 44.2(a); Tate, 988 S.W.2d

at 889. Non-constitutional error requires reversal if we determine it affected the defendant’s

substantial rights. Tex. R. App. P. 44.2(b); Tate, 988 S.W.2d at 889. Considering the range of

punishment available to the jury, five to ninety-nine years, and the sentence imposed, ninety-nine

years, we are not assured that, whether constitutional or non-constitutional, the error did not

contribute to the punishment or affect Shelton’s substantial rights. Tex. Penal Code Ann. § 12.32(a)

(West 1994).

We therefore reverse the portion of the judgment imposing sentence. We affirm the

judgment of conviction as to the finding of guilt. The portion of the judgment imposing punishment

is reversed and remanded to the district court for further proceedings. Tex. Code Crim. Proc. Ann.

art. 44.29(b) (West Supp. 2001).

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 Lee Yeakel, Justice

Before Justices Kidd; Yeakel and Jones*

Affirmed in Part, Reversed and Remanded in Part

Filed: February 28, 2001

Publish

*
Before J. Woodfin Jones, Justice (former), Third Court of Appeals, sitting by assignment. See
Tex. Gov’t Code Ann. § 75.003(a)(1) (West 1998).

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