Affirmed and Majority and Concurring Opinions filed January 19, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-03-01298-CR
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GLENN THOMAS PRINCE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 892,174
M A J O R I T Y O P I N I O N
A jury convicted appellant of capital murder, and the trial court sentenced him to life in prison. Appellant raises six issues on appeal. In his first four issues, appellant argues the trial court erred by: (1) admitting evidence of two extraneous offenses; (2) limiting defense counsel=s cross-examination of two State witnesses; (3) excluding a third party confession; and (4) allowing the State to argue the jury could use the fact appellant committed two extraneous offenses as evidence of his guilt in the charged offense. In issues five and six, appellant argues the evidence is legally and factually insufficient to sustain his conviction. We affirm.
Factual and Procedural Background
On March 13, 1982, at approximately 1:30 a.m., Cao Thanh Nguyen was found murdered in a convenience store. A few potential customers entered the store following the murder, discovered the victim=s body, and called the police. One of the customers noticed the register alarm was sounding. An employee at a service station across from the store testified that at approximately 1:50 on the morning of the murder, she heard tires squealing and saw a car rapidly depart from the convenience store.
Police who investigated the murder contacted the district manager of the convenience store and asked him to come to the store and turn off the register alarm. Only coins remained in the register, but officers found cash in the victim=s pocket. At the time of trial, the manager could not remember how much money was taken, but testified that store clerks were instructed to keep only $35.00 in the register to reduce robberies. Although an incident report might have been filed by the corporate owner of the convenience store, that corporation no longer exists so any reports have been destroyed. The investigating officers collected fingerprint evidence, blood, and other evidence from the scene, but were unable to identify the person responsible for the murder.
The case was assigned to the Harris County cold case squad in May, 1999. DNA analysis was performed on the blood samples and the crime laboratory determined that three blood samples from the floor and the victim=s shoe did not match the victim=s blood type. Appellant became a suspect after the DNA profile of the unknown samples was processed in the computer system of the Texas Department of Public Safety. Police obtained a warrant for samples of appellant=s blood and saliva. The three blood samples from the crime scene were determined to be consistent with appellant=s DNA profile. Appellant was arrested, tried, and convicted of capital murder.
Discussion
I. Extraneous Offenses
In issue one, appellant contends the trial court erred in admitting evidence of two extraneous offenses at the guilt B innocence phase of trial. During the guilt B innocence phase of the trial, after the State=s DNA expert was cross-examined regarding possible contamination of the DNA sample, the State sought to introduce evidence of two extraneous robberies appellant committed a decade after the present offense. The State argued that the defense, through cross-examination of the State=s witnesses, had offered defensive theories that the DNA evidence was contaminated and that the murder did not occur during the commission of a robbery. Specifically, the State argued that Athe defense . . . opened the door on the issue of motive, intent, mistake as to the robbery and also identity as to the individual through cross-examination of the DNA expert.@ The State then described the similarities between the 1982 capital murder and the two 1992 robberies and explained the two extraneous 1992 offenses by appellant were offered to show intent, lack of mistake, and to rebut the defensive theory that the DNA results may be mistaken due to contamination.
Appellant objected to the admission of the extraneous offense evidence pursuant to Texas Rules of Evidence 403 and 404 as follows:
I object to either of those 1992 aggravated robberies. I object that they are not relevant. I object that their prejudice outweighs any probative value; that they are inadmissible character evidence as per Texas Rules [sic] of Evidence 404 and to be tried as a criminal generally violates [appellant=s] rights to due process through both the State and Federal Constitution.
The trial court found the extraneous offenses were relevant, that their probative value outweighed their prejudicial value, and they tended to show motive, intent, opportunity, and lack of mistake. The trial court granted appellant a running objection to the evidence on extraneous offenses. At defense counsel=s request, the trial court instructed the jury they could only consider evidence of the extraneous offenses Ain determining the motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment and for no other purpose.@ The extraneous offense evidence is summarized as follows:
Lam Nguyen
On December 15, 1992, Lam Nguyen was the cashier at a convenience store on Maxey Road. That morning appellant entered and asked for cigarettes. Nguyen informed him that he did not have any and appellant left. Shortly thereafter, appellant re-entered the store, and asked to use the restroom. Nguyen informed him they did not have a public restroom and appellant left. Nguyen turned to wash his hands at a sink behind the front counter when he heard a noise. He turned and saw appellant with a knife. When appellant demanded the money, Nguyen bent down and said, AWhere is my gun?@ Appellant was frightened, ran out of the door, and drove off very quickly. Nguyen recorded the license plate number, called the police, and made a report. Later, after Nguyen identified appellant in a line-up, appellant was tried and convicted.
Jennie Estrada
On December 16, 1992, Jennie Estrada was a clerk at convenience store in Southeast Houston. Appellant entered the store at night and asked to use the restroom. Estrada explained to him that they did not have a public restroom. Appellant then asked about an older Asian man who worked at the store, and Estrada informed him that Nahija was not working at the time. Appellant left and later returned with his hand behind his back, and asked for cigarettes. Appellant then raised a crowbar in a threatening manner and Estrada backed up and grabbed the phone to call the police. Appellant hit the no-sale button on the register, it opened, and he took all of the cash, but not the coins. Appellant then left the store and drove off in a car. Thereafter, Estrada identified appellant in a line-up.
A. Rule 404
Generally, evidence of a person=s character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion. Tex. R. Evid. 404(a). Evidence of other crimes, however, may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b). Thus, identity, intent, and the rebuttal of defenses are valid purposes for admitting evidence pursuant to Rule 404(b). Johnson v. State, 68 S.W.3d 644, 651 (Tex. Crim. App. 2002) (extraneous offenses were relevant to establish a scheme of robbing to show that the murder was committed during the course of the robbery to support a capital murder indictment).
If the trial court determines the offered evidence has relevance apart from or beyond character conformity, it may admit the evidence and instruct the jury the evidence is limited to the specific purpose the proponent advocated. Montgomery v. State, 810 S.W.2d 372, 387B88 (Tex. Crim. App. 1990). Questions of relevancy should be left largely to the trial court, relying on its own observations and experience, and the conviction will not be reversed absent an abuse of discretion. Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993).
B. Intent
For the extraneous act to be admitted, the State must show it is relevant to a factor of consequence contested in the case. Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996). Intent is a fact of consequence when the indictment requires the State to show beyond a reasonable doubt that a defendant committed an act with a specific intent. Morgan v. State, 692 S.W.2d 877, 880 (Tex. Crim. App. 1985). In this case, the indictment required the State to prove beyond a reasonable doubt that appellant killed the store clerk with the intent to commit a robbery. Thus, appellant=s intent to commit robbery was a fact of consequence.
An extraneous act is relevant if it serves to make an elemental fact more or less probable. Montgomery, 810 S.W.2d at 387B88. The mode of committing the offenses and the circumstances surrounding the offenses in this case are sufficiently similar for the extraneous offenses to be relevant to intent. Id. The primaryindicted and extraneous offenses were similar in that: (1) all three offenses were committed with a blunt instrument or a knife; (2) all three offenses were committed at convenience stores; (3) all three offenses were committed in Harris County; (4) all three offenses were committed by appellant, alone; (5) the two completed robberies resulted in the coins not being taken; (6) in all three offenses, nothing was stolen from the store clerk; and (7) in all three offenses appellant drove away very quickly. Because appellant=s subsequent conduct made it more probable that he intended to commit robbery at the time the murder was committed, evidence of that conduct was relevant.
C. Remoteness
Appellant further contends the extraneous offenses were not admissible because they were committed more than ten years after the offense for which he was indicted. Rule 404, however, contains no time limitation. Templin v. State, 711 S.W.2d 30, 34 (Tex. Crim. App. 1986). The rules of evidence impose time limitations on some evidence, such as prior convictions used to impeach a witness=s testimony. Tex. R. Evid. 609. Rule 609 contains a general limitation of 10 years for criminal convictions offered Afor the purpose of attacking the credibility of a witness.@ That rule does not apply here because the extraneous offense evidence was not offered to attack a witness=s credibility. The factors of similarity and remoteness of extraneous offenses are important only as to the relevancy and probative value of the offered evidence of extraneous offenses. Linder v. State, 828 S.W.2d 290, 297 (Tex. App.CHouston [1st Dist.] 1992, pet. ref=d).
A line of cases decided before September 1, 1986, the date the Texas Rules of Evidence were first enacted, held that extraneous offenses committed more than a few years before the charged offense were too remote to be admissible. See Bachhofer v. State, 633 S.W.2d 869, 872 (Tex. Crim. App. 1982) (extraneous offense committed four years and four months prior to instant offense too remote); James v. State, 554 S.W.2d 680, 683 (Tex. Crim. App. 1977) (sexual assault committed two years and nine months prior to instant offense too remote); Robledo v. State, 480 S.W.2d 401, 402 (Tex. Crim. App. 1972) (forgery committed four years and three months prior to instant offense too remote).
Those cases are distinguishable on their facts. In Bachhofer, the alleged extraneous offense took place in another state, and there was no final conviction for the extraneous offense. 633 S.W.2d at 872. In James, the court emphasized that the extraneous offense was committed by appellant when he was younger than thirteen years old and took place in a different state. 554 S.W.2d at 683. In Robledo, the court=s decision was based on a specific forgery statute that excluded remote offenses. 480 S.W.2d at 402. Another and more important distinguishing characteristic of these earlier cases is that they were tried under common law principles, Awhich tended to favor exclusion of evidence.@ Montgomery, 810 S.W.2d at 375. The court noted in Montgomery that the Anew rules favor the admission of all logically relevant evidence.@ Id.; see also Lavarry v. State, 936 S.W.2d 690, 695 (Tex. App.CDallas 1996, pet. ref=d) (an unadjudicated ten‑year‑old extraneous offense was not so remote as to bar its admission).
In this case, two extraneous offenses were admitted to show appellant intended to commit a robbery when he murdered the store clerk. The fact that those offenses were committed ten years after the murder does not affect their admissibility on the issue of intent. The extraneous acts were similar to the charged offense and were probative evidence that appellant intended to rob the convenience store.
D. Rule 403
Although admissible under Rule 404(b), the same evidence may be inadmissible under Rule 403 if the probative value of such evidence is substantially outweighed by unfair prejudice. When a further objection is made to extraneous offense evidence under Rule 403, the trial court must determine whether the danger of undue prejudice outweighs the probative value of the evidence. The relevant criteria in making such a determination include the following factors:
(1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable, a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense;
(2) the potential the other offense evidence has to impress the jury Ain some irrational but nevertheless indelible way@;
(3) the time the proponent will need to develop the evidence, during which the jury will be distracted from the consideration of the indicted offense;
(4) the force of the proponent=s need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.
Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999); Montgomery, 810 S.W.2d at 390. We review the trial court=s ruling on whether to exclude evidence of other crimes under Rule 403 by an abuse of discretion standard. Montgomery, 810 S.W.2d at 391.
Keeping the above standards in mind, we examine whether the trial court abused its discretion in admitting the extraneous offense evidence in this case. First, the extraneous offenses made intent to commit robbery or attempted robbery in 1982 more probable and rebutted appellant=s theory that the money missing from the register was either in the clerk=s pocket or a result of miscalculation. Second, although extraneous offenses always possess the potential to influence the jury, any impermissible inference of character conformity can be minimized through a limiting instruction. Lane v. State, 933 S.W.2d 504, 520 (Tex. Crim. App. 1996). In this case, the trial court gave a limiting instruction before the evidence of the extraneous offenses was presented to the jury, and in the jury charge. Third, the prosecutor used a minimal amount of time to develop evidence of the extraneous offenses. Significantly less than ten percent of the testimony in the State=s case-in-chief was used to develop the extraneous offenses. See id. (holding extraneous offense testimony constituting less than twenty percent of the testimony in the State=s case-in chief is not excessive). Finally, the State needed the extraneous offense evidence to show intent to commit robbery. Appellant attacked the evidence of robbery claiming the money in the clerk=s pocket could have been the missing money from the register or the missing money from the register could have been the result of miscalculation. Thus, intent to commit robbery was a contested issue, and the extraneous offense evidence was necessary to show an intent to, or scheme of, robbing convenience stores. Under these circumstances, the probative value of the extraneous offense evidence outweighs any unfair prejudicial effect. The trial court did not abuse its discretion in admitting the extraneous offenses. Appellant=s first issue is overruled.
E. Jury Argument Regarding Extraneous Offenses
Appellant argues in his fourth issue that the trial court erred in allowing the State to argue to the jury that they could use the extraneous offenses as evidence of his guilt in the charged offense. Specifically, the State argued:
You also have the fact that you have heard other offenses. There is a special instruction in the charge as to how you are to consider that. You can take that into consideration for motive, intent, and it can go towards whether you believe that we proved beyond a reasonable doubt a robbery was committed in this particular offense and I submit to you that it was.
The trial court overruled appellant=s objection to this argument, and referred the jury to the charge.
Appellant=s issue four is predicated on a successful resolution of his first issue. Appellant argues that because the evidence of extraneous offenses was inadmissible, the State could not argue those offenses in closing argument. To be permissible, the State=s jury argument must fall within one of the following four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94‑95 (Tex. Crim. App. 1992).
In the present case, the State=s jury argument could reasonably be deemed as summation of the evidence or a reasonable deduction from the evidence. The prosecutor properly informed the jury the could consider the extraneous offenses for limited purposes. Furthermore, the instruction by the trial court to follow the charge would cure any error. Cf. Clarke v. State, 785 S.W.2d 860, 875 (Tex. App.CFort Worth 1990), affirmed, 811 S.W.2d 99 (Tex. Crim. App. 1991) (argument not referring to limited nature of admissibility of extraneous offenses held improper). Because the extraneous offenses were properly admitted for limited purposes, the State=s argument was a reasonable deduction from the evidence. Appellant=s fourth issue is overruled.
II. Cross-examination of State=s Witnesses
In issue two, appellant argues the trial court erred in limiting the cross-examination of State=s witnesses John Martin Smith and Patrick Brooks. Smith and Brooks were the customers who discovered the body of the store clerk. Appellant argues his main defense was that he was not guilty of capital murder because there was no evidence that any murder occurred during the commission of an aggravated robbery or attempted aggravated robbery. Appellant contends the State had very little evidence, if any, to link appellant to a robbery, and the State wanted the jury to believe that appellant either stole money from the register or attempted to steal money from the register. One of the ways the State tried to accomplish this was to have the jury believe appellant at least attempted to open the register by hitting keys on the register that set off the alarm.
Through cross-examination, appellant sought to show the register alarm began sounding after John Smith went into the back room to look at the victim, indicating that it was at that time an attempt to open the register occurred. To show that Brooks may have triggered the register alarm, appellant sought to cross-examine both John Smith and Patrick Brooks regarding a statement Brooks made when he entered the store. Brooks said, AHey Wong Tong@ AIf you don=t get out here, I=m gonna rob ya.@ The State objected, and the trial court sustained the objection finding the prejudicial effect outweighed the probative value of the statement.
Appellant argued at trial that testimony regarding the statement by Smith was admissible under the statement against penal interest exception to the hearsay rule. See Tex. R. Evid. 803(24). On appeal, appellant contends he was denied his sixth amendment right to confront the witnesses against him. See U.S. Const. amend. VI. The Confrontation Clause provides criminal defendants with the right to physically face those who testify against them and the right to conduct cross‑examination. Delaware v. Fensterer, 474 U.S. 15, 18B19, 106 S. Ct. 292, 294, 88 L. Ed. 2d 15 (1985). To preserve error on Confrontation Clause grounds, an objection must be made at trial as soon as the basis for such objection becomes apparent. Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000). An objection on hearsay does not preserve error on Confrontation Clause grounds. Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004). Appellant did not object on Confrontation Clause grounds. Because appellant=s issue on appeal does not comport with the objection made at trial, he has waived error. See Banda v. State, 890 S.W.2d 42, 62 (Tex. Crim. App. 1994). Appellant=s second issue is overruled.
III. Third Party Confession
Appellant next argues the trial court erred when it excluded the third party confession of James Edward Lyles II. Appellant argues the statement by Lyles that another person, Bobby Welch, admitted he committed this murder was admissible under the hearsay exception for statements against penal interest. See Tex. R. Evid. 803(24). The trial court ruled there was not enough corroborating evidence to allow Lyles=s statement to be admitted.
Counsel for appellant stated outside the presence of the jury that Lyles=s testimony would be as follows:
[Defense counsel:] If I were allowed to call James Edward Lyles, II, to the witness stand in the trial of this case, he would under oath testify that he was in Pasadena, Texas, . . . in July of 1982.
In July of 1982, he was in the presence of an individual that he called ASpider@ and he was in the presence of an individual by the name of Bobby Welch and that three of them went into a UtoteM store and that inside this UtoteM store, the manager of the UtoteM store was an Oriental, didn=t have any thumbs, and he was trying to get the change made for this Bobby Welch guy and he was moving slow. Bobby Welch didn=t like it and had some words with that individual who had words back with him. At that point in time, Bobby Welch pulled a knife out and told that individual that he was going to gut him just like he did the clerk over on . . . . - - on Richey, that in conversations with those individuals later, he determined what he was talking about was this capital murder that we=re in trial on today that occurred on Richey Road on March 12, slash, 13, 1982.
In response, the State argued that if Lyles testified, he would be impeached with a statement Lyles made in 1984. In the 1984 statement, Lyles stated he was arrested and in the custody of the Pasadena Police Department when he told an officer that he wanted to talk to a detective about a murder. Lyles told the detective that he knew a man by the name of Bobby Welch who made a statement about killing a clerk in Pasadena.
Lyles said he and Welch went into a convenience store where an Asian clerk was working. The clerk and Welch argued about something, and after they left the store, they both made disparaging remarks about the clerk and Asians. At that point, Welch said to Lyles, AThat is why I gutted the son of a bitch on Richey.@ The State argued nothing else was said about the clerk being killed, but Lyles might also testify that Welch was a Aknife freak,@ who always carried four or five knives with him. The State informed the trial court that Lyles had one prior conviction, assault on a woman. The State also proffered to the court that Welch=s DNA did not match the DNA found at the crime scene.
The trial court held there was not enough corroborating evidence to allow Lyles to testify as to Welch=s statement. We review the trial court=s decision to exclude this hearsay evidence of a statement against penal interest under an abuse of discretion standard. Cunningham v. State, 877 S.W.2d 310, 313 (Tex. Crim. App. 1994).
A statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. Tex. R. Evid. 803 (24). Factors relevant to this inquiry include: (1) whether the guilt of the declarant is inconsistent with the guilt of the defendant; (2) whether the declarant was so situated that he might have committed the crime; (3) the timing of the declaration; (4) the spontaneity of the declaration; (5) the relationship between the declarant and the party to whom the statement was made; and (6) the existence of independent corroborative facts. Woods v. State, 152 S.W.3d 105, 113 (Tex. Crim. App. 2004).
In the present case, the guilt of the declarant is inconsistent with the guilt of appellant. There is no evidence in the record indicating the declarant=s location or situation at the time of the murder. The declaration was made several months after appellant was arrested for the murder. The statement was made by the declarant to either the clerk of the store in the presence of his acquaintances or to some of his acquaintances in their car after he became angry at a convenience store clerk for taking a long time to make change following a purchase. This inconsistency is the result of the declarant making two different statements. The statement did not indicate that the declarant had intimate familiarity with the crime. It merely revealed general facts that could have been in the news reports of the crime or arrest. Furthermore, following the statement, Welch was investigated and his DNA did not match the DNA at the crime scene.
Accordingly, the six factors and physical evidence establish that the statement was unreliable. Because there were insufficient corroborating circumstances to indicate the trustworthiness of Welch=s statements, we conclude appellant failed to show the trial court abused its discretion. Appellant=s third issue is overruled.
IV. Legal and Factual Sufficiency of the Evidence
In issues five and six, appellant argues the evidence is legally and factually insufficient to sustain his conviction for capital murder. Appellant contends the evidence is legally insufficient because the State failed to prove, beyond a reasonable doubt, that appellant committed murder while in the course of committing or attempting to commit the offense of aggravated robbery. Appellant also contends the evidence is factually insufficient because no rational jury could have found appellant committed murder while in the course of committing or attempting to commit the offense of aggravated robbery.
When conducting a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@ Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). When conducting a factual sufficiency review, we view all of the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). There are two ways in which the evidence may be factually insufficient: (1) if the evidence supporting the verdict, when considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; and (2) weighing both evidence supporting the verdict and evidence contrary to the verdict, the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484B85. In conducting the factual-sufficiency review we must give appropriate deference to the jury=s findings, and we may not substitute our judgment for that of the jury. Id. at 482.
A person commits the offense of capital murder if he commits murder as defined under Section 19.02(b)(1) of the Texas Penal Code and he intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat. Tex. Pen. Code Ann. ' 19.03(a)(2). Appellant was charged with committing murder in the course of committing or attempting to commit robbery. The evidence presented in this case is both legally and factually sufficient to support appellant=s conviction of capital murder. John Smith testified that he did not know when the register alarm was first triggered, but he noticed it when he was searching near the register for a flashlight to check the victim=s vital signs. Patrick Brooks did not recall hearing the register alarm. The register=s alarm was sounding when the convenience store=s district manager entered the store. He turned the alarm off at the request of the police. No bills were found in the register following the murder. The district manager testified that he calculated the amount of money missing at the time of the offense, but could not recall at the time of trial. On cross-examination, the manager testified that the money was not there and agreed he could not tell whether it was the result of mismanagement or someone taking the money. Several of the police officers and crime scene investigators heard the register alarm. The fingerprints on the register, however, did not match appellant=s prints. DNA comparisons showed appellant=s blood was found on or near the victim=s body.
Viewing the evidence in the light most favorable to the verdict, we hold the evidence was legally sufficient for a rational jury to find the essential elements of capital murder beyond a reasonable doubt. Viewing the evidence in a neutral light, we observe that the jury decided in this case to believe the testimony elicited by the State regarding the robbery and to disbelieve appellant=s cross-examination regarding the clerk taking the money or miscalculation of the money in the register. Because the jury is the sole judge of the weight and credibility of the witness testimony, and because the proof of guilt was not so obviously weak as to undermine confidence in the jury=s determination of guilt beyond a reasonable doubt, or so greatly outweighed by contrary proof as to indicate that the beyond-a-reasonable-doubt standard could not have been met, we hold the evidence was factually sufficient to support the verdict. Appellant=s fifth and sixth issues are overruled.
The judgment of the trial court is affirmed.
/s/ John S. Anderson
Justice
Judgment rendered and Majority and Concurring Opinions filed January 19, 2006.
Panel consists of Justices Anderson, Hudson, and Frost. (Frost, J. Concurring)
Publish C Tex. R. App. P. 47.2(b).