Curt Anthony Porter v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-06-00220-CR ______________________________ CURT ANTHONY PORTER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 188th Judicial District Court Gregg County, Texas Trial Court No. 33782-A Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION Had he not been stopped by a train, Derrick Kennedy might still be alive today. But he was stopped, and the ensuing chain of events resulted in Kennedy's death and Curt Anthony Porter's life imprisonment for that death. The record shows Kennedy had stopped near the Tree House Apartments in Longview, Texas, for a passing train on the evening of September 26, 2005. As Kennedy sat in his car waiting for the train to pass, Porter approached. Porter had recently purchased a vehicle from Kennedy, but the car turned out to be a lemon. Porter confronted Kennedy, the two exchanged words, and shortly thereafter Porter punched the still-seated Kennedy. This prompted Kennedy to exit his vehicle, and a fight of sorts ensued. Porter would later admit that Kennedy, who was but 5' 6" tall and slightly built, got the better of the much heavier and 6' 0" tall Porter--ostensibly because Kennedy would not engage in a "fair" fight, according to Porter. Nevertheless, after the fisticuffs between the two ended, Porter drew a gun and shot the unarmed Kennedy twice, killing him. A jury found Porter guilty of murder and assessed his punishment at life imprisonment and a fine of $10,000.00. See Tex. Penal Code Ann. § 19.02 (Vernon 2003) (criminalizing murder and classifying offense as first-degree felony), § 12.42(c)(1) (Vernon Supp. 2007) (outlining punishment range for first-degree felonies). Porter now appeals, raising a multitude of issues. After reviewing the record and hearing oral argument, we overrule Porter's points of error, reform the trial court's judgment to reflect that Porter's conviction came pursuant to a violation of the Texas Penal Code (rather than the Texas Property Code), and affirm the trial court's judgment as reformed. We do so based on a number of logical steps: (1) Legally and factually sufficient evidence supports Porter's conviction. (2) The State did not necessarily comment on Porter's failure to testify. (3) Ineffective assistance of counsel has not been shown. (A) Failing to request a charge on sudden passion was not ineffective. (B) Counsel's admission, during punishment, that Porter shot Kennedy was not ineffective. (C) Not calling more character witnesses was not ineffective. (D) Not objecting to the State's arguments was not ineffective. (E) Failure to argue a two-shooter theory during guilt/innocence was not ineffective. (4) Denying Porter's motion for new trial was not error. (A) Ineffective assistance of counsel was not established. (B) The trial court did not abuse its discretion on the juror misconduct issue. (5) Porter's sentence is not cruel and unusual punishment. (6) The trial court's judgment is not void, but should be reformed. (7) The trial court did not err in failing to issue, sua sponte, a sudden-passion instruction. (1) Legally and Factually Sufficient Evidence Supports Porter's Conviction In three points of error, Porter contends the evidence produced at trial is legally and factually insufficient to support his conviction. We disagree. Under a challenge to the legal sufficiency of the evidence, we must consider the evidence adduced at trial in the light most favorable to the jury's verdict and determine, based on that evidence and reasonable inferences therefrom, whether a jury could have rationally found the essential elements of the charged crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006); McDowell v. State, 235 S.W.3d 294, 296 (Tex. App.--Texarkana 2007, no pet.). In conducting this review, we must give deference to "the responsibility of the trier of fact fairly to resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 318-19. We should also look at "events occurring before, during and after the commission of the offense, and may rely on actions of the defendant which show an understanding and common design to do the prohibited act." Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone may be sufficient to establish guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). On appeal, the same standard of review is used for both circumstantial and direct evidence cases. When reviewing the evidence for factual sufficiency, we review all the evidence admitted at trial in a neutral light. The evidence supporting a jury's verdict may be factually insufficient if the evidence supporting the jury's verdict is so weak that the jury's judgment appears clearly wrong or manifestly unjust or if the evidence supporting the judgment of conviction is outweighed by the great weight and preponderance of the evidence. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); McDowell, 235 S.W.3d at 296. This factual sufficiency standard requires that we reach "a high level of skepticism" before we may reverse a jury's verdict based on factual insufficiency. Roberts, 220 S.W.3d at 524. A person commits the crime of murder in Texas if the actor (1) intentionally or knowingly, (2) causes the death, (3) of another. Tex. Penal Code Ann. § 19.02(b)(1). The indictment in this case alleged Porter caused Kennedy's death by shooting him with a firearm. In addition to proving each element of the charged offense, the State must generally prove that at least one element of the crime occurred in the county under whose auspices the case is being prosecuted--in this case, Gregg County. See Tex. Code Crim. Proc. Ann. art. 13.17 (Vernon 2005). To support its burden of proof, the State offered the testimony of several witnesses and produced several exhibits for the jury's consideration. (a) The State's Evidence Ladarius Hodge and Charles Crump both testified that, on the evening of September 26, 2005, they saw Porter and Kennedy fighting near the Tree House Apartments in the south part of Longview. Both Crump and Hodge told the jury that, once the physical struggle ended, they saw Porter draw a gun and shoot at Kennedy several times. According to both of these witnesses, Porter then fled the scene and had caught a ride with Hodge to the home of Porter's girlfriend. (1) Hodge told the jury that, when Porter got inside the vehicle, Porter was holding a small, dark-colored revolver--the same gun Hodge testified he had seen Porter use earlier to shoot Kennedy. Hodge had also given police a written statement, which was admitted at trial. This written statement was consistent with Hodge's trial testimony, but it was inconsistent with Hodge's initial denial to police of having witnessed any crime whatsoever on the night of the shooting. And like Hodge, Crump initially denied to police that he had been at the crime scene when Kennedy was shot; Crump similarly was later more forthcoming to police. Elicia Sanders, a former schoolmate of Porter, was at the Tree House Apartments at the time of Kennedy's murder. Sanders told the jury that, while she had not heard any gunfire on the evening of Kennedy's murder, she did see Crump and Porter running from the area where she later learned a shooting had occurred. She described Porter as being dressed in shorts and wearing a white sleeveless T-shirt, with a second shirt draped around his neck. Britney McClain told the jury that she and her roommate heard shots being fired in the area of the apartment complex on the evening in question. McClain said she shortly thereafter saw a "bigger black male" wearing a sleeveless shirt running across the complex. Another witness, Ginger Orange, who was also a resident of the apartments, similarly testified that she had seen an "African American, heavy set" man--who "looked kind of young," wore two shirts (the bottom layer being a white T-shirt and the top layer being a darker colored shirt), and wore his hair in braids--running away from the scene of the shooting. During her testimony, McClain told the jury that she saw the running man drop a small, perhaps silver colored, handgun. The runner then turned around, picked up the gun, and continued fleeing the crime scene. Both Orange and McClain said the shooter was ultimately driven away in a car. The State asked neither McClain nor Orange to make an in-court identification of Porter as being one of the persons they had seen fleeing the apartment complex on the night of Kennedy's murder. Dr. Lynn Salzberger, the medical examiner who autopsied Kennedy, testified the victim died as a result of being shot twice at close range by a firearm. Detective David Cheatham of the Longview Police Department testified that Kennedy was shot and killed at Longview's Tree House Apartments, in Gregg County, Texas. Around 9:55 p.m. on September 26, Cheatham was dispatched to these apartments regarding a shooting. Cheatham's investigation ultimately led him to consider Porter a suspect in Kennedy's murder. Cheatham located and arrested Porter September 27 for an outstanding traffic warrant. Once in custody, and after waiving his Miranda (2) rights, Porter responded to police questioning about Kennedy's murder during two separate interviews, recordings of which were admitted into evidence and played for the jury. During these interviews, Porter told police that he and Kennedy saw each other at the Tree House Apartments sometime after 8:00 p.m. the evening in question. Porter and Kennedy got into a dispute over a car that Kennedy had sold Porter and that had begun malfunctioning shortly after the sale. Porter admitted he and Kennedy then got into a fistfight over the car. But Porter told police that, once the fight ended, Porter left Kennedy and was taken to his girlfriend's home by Hodge. Porter repeatedly denied killing Kennedy or owning or possessing a gun at any time. Porter claimed he spent that night with his girlfriend and was with her at the time of the murder. Porter was able to solicit testimony from Detective Cheatham that Cheatham has little faith in Hodge and Crump for telling the truth. (b) Porter's Evidence Sundra Richardson, Porter's girlfriend, testified that Porter came to her home the evening of September 26, though she was unsure of the time he arrived. Richardson told the jury that she and Porter talked briefly about Porter having been involved in a confrontation or fight earlier that evening. She then said Porter had spent the night at her home that night. Richardson told the jury she was shocked when she learned police suspected Porter as Kennedy's killer. She said she does not believe Porter would kill another human being. She also testified she had never seen Porter in possession of a firearm. During her direct examination by Porter's trial counsel, Richardson admitted that she is currently under felony community supervision for a drug conviction. (c) Analyzing Evidentiary Sufficiency The testimony from Crump and Hodge is sufficient to establish the necessary elements of Porter's murder conviction. Additionally, these testimonies were corroborated by other, disinterested witnesses. For example, while the State asked neither McClain nor Orange to identify Porter in court as being the same man they had previously seen fleeing the murder scene, the jurors in this case could easily have concluded that those witnesses' descriptions matched Porter's general physical appearance at the time of the murder. This is because Porter's custodial interview (which was taken the day following the murder) shows Porter wearing a sleeveless undershirt, he appears to be substantially overweight, and he is wearing his hair in braids--all physical characteristics which Orange and McClain had used to describe Kennedy's killer. Robinson also testified she had seen Porter in possession of a small gun a few days before Kennedy's murder. We thus conclude the direct and circumstantial evidence, as well as the reasonable inferences that may be made therefrom, provide legally sufficient evidence to support the jury's verdict. With respect to factual sufficiency, there are several problems with the State's case. First, several witnesses (most notably Detective Cheatham) characterized Hodge and Crump as liars. Such characterizations of the State's only eyewitnesses, if believed by the jury, would undoubtedly tend to discount the weight the jury might accord their testimonies. Second, the police did not recover any tangible evidence (like a murder weapon, gunshot residue, or something with Porter's fingerprints) to create a physical evidence connection between Porter to the murder that otherwise might corroborate the arguably sketchy witness testimony. Third, Richardson testified that Porter spent the night at her home (although her testimony is unclear as to what time Porter arrived that evening). On balance, however, we cannot conclude that the evidence supporting the jury's verdict is so weak that the verdict appears manifestly unjust. Nor can we conclude the evidence supporting the jury's verdict is outweighed--even marginally--by contrary evidence. Thus, we conclude the evidence is factually sufficient to support Porter's conviction. Porter's points of error urging evidentiary insufficiency are overruled. (2) The State Did Not Necessarily Comment on Porter's Failure To Testify Porter also contends the State twice impermissibly commented on Porter's failure to testify in his own defense. "It is settled law that neither the trial judge nor the prosecution may comment on the defendant's failure to testify, and that any such comment violates the Fifth Amendment privilege against self-incrimination." Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007). To violate the right against self-incrimination, the offending language must be viewed from the jury's standpoint and the implication that the comment referred to the defendant's failure to testify must be clear. It is not sufficient that that language might be construed as an implied or indirect allusion. The test is whether the language used was manifestly intended or was of such character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify. In applying this standard, the context in which the comment was made must be analyzed to determine whether the language used was of such character. Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001). The first challenged comment by the State occurred during the opening portion of the State's summation: We've proven to you that on the 26th day of September, 2005[,] Derrick Kennedy was shot by a firearm. We don't have the firearm. There's only one person that knows where the firearm is. We don't have it. We don't have to have it. We're not talking about casings being hit on the back by a rock. You've got to have a firearm to discharge it. We've got the casings that went into that young man's body and ended his life. They were fired intentionally. They were fired knowingly. You don't accidentally shoot a gun two times at somebody. (Emphasis added.) The other asserted comment by the State came just before the case was submitted to the jury: Now, you heard enough testimony in cross-examination on scientific evidence to kind of know where that is. Bottom line is, the experts told you what would or wouldn't show [sic] and what they would need. We can't find the gun and I agree there is one person that knows where that gun is. You know, what's the facts surrounding this? (Emphasis added.) Porter did not object to either argument at trial. In Cruz, the State had argued, "They want to say that it's self-defense. Well, in order to have self-defense, what has to happen is someone says, 'Yeah, I committed this crime. I committed this murder. I did this and I intended to do this because I was in fear of my life.'" 225 S.W.3d at 547. This State's highest criminal court analyzed the context of that argument and held the State did not impermissibly comment on the defendant's failure to testify because the argument at issue concerned the verity of the accused's written statement to police and did not concern anything to which he failed to testify at trial. Id. at 548-50. In the case at bar, we conclude the State's challenged arguments do not comment on Porter's failure to testify. The State was summarizing all the evidence during the relevant portions of the jury argument. By the time of closing argument, the jury had already seen videotapes of Porter's custodial interviews, during which Porter repeatedly denied having ever owned or possessed a gun. Being mindful of such interview evidence, we conclude that, from the jury's perspective, the State's challenged arguments amount to reasonable comments on Porter's denials during those custodial interviews about having ever possessed or owned a gun--claims that, based on the entire tenor of the closing argument, the State clearly believed to be untrue. Cf. Coleman v. State, 881 S.W.2d 344, 358 (Tex. Crim. App. 1994) (four permissible areas of jury argument include summation of evidence, reasonable deductions from evidence, answer to argument of opposing counsel, and plea for law enforcement). The challenged arguments are not comments on Porter's failure to testify at trial. (3) Ineffective Assistance of Counsel Has Not Been Shown Porter also contends his trial counsel provided ineffective assistance by (a) failing to request a charge on sudden passion, (b) arguing Porter drew a pistol and shot Kennedy, (c) failing to elicit available character evidence for the jury's consideration during the punishment phase, (d) failing to object to the State's closing argument at guilt/innocence, and (e) failing to argue a two-shooter theory to create reasonable doubt as to Porter's guilt. (a) Failing To Request a Charge on Sudden Passion Was Not Ineffective Counsel did not request the trial court's punishment charge include a sudden-passion instruction. At the hearing on Porter's motion for new trial, counsel admitted that the substance of his punishment argument concerned a plea for mitigation in that Porter had acted under "sudden passion." Porter's appellate counsel then asked trial counsel, "[I]f that is indeed what was behind what you were getting at to the jury would it have not been better practice at the charge conference on punishment to bring that up and request the court to include that as part of the charge to the jury?" Trial counsel responded, "Yes. I agree." Porter's appellate counsel then asked, "Can you give the Court any reason here today as we sit here in terms of trial strategy or otherwise as to why you would not have done that?" Trial counsel admitted, "No. I can't give the court a reason why I didn't do that." This admission by his trial counsel forms Porter's first basis for claiming ineffective assistance now on appeal. In this forum, the State suggests that a sudden-passion instruction would have been inconsistent with Porter's general theory of the case. The State contends that "[a]n abrupt change in theory in the midst of trial would not be credible." That may be a good general proposition, but such an argument ignores the fact that trial counsel did, in fact, change his trial strategy in the middle of the case--as evidenced by comparing the tenor of his closing argument on guilt/innocence with his argument at punishment. The State also argues that the evidence did not support giving a sudden-passion instruction. To be entitled to a sudden-passion instruction, there must be evidence that the defendant caused the victim's death while the defendant acted "under the immediate influence of sudden passion arising from an adequate cause." Tex. Penal Code Ann. § 19.02(d) (emphasis added). The Texas Penal Code further defines "adequate cause" as something "that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." Tex. Penal Code Ann. § 19.02(a)(1). In Willis v. State, 936 S.W.2d 302, 305 (Tex. App.--Tyler 1996, pet. ref'd), the defendant was arguing with his stepson when the latter walked out of their home and broke out the windows of the defendant's car. Willis then went to another part of the home and retrieved a gun, which the defendant used to repeatedly shoot his stepson in the back. Id. at 305-06. In his videotaped confession, Willis testified the shooting was in self-defense. Id. at 306. In holding that the issue of sudden passion arising from adequate cause was not raised, the Tyler court noted that, in the videotaped confession, the defendant never stated that the incident caused him to be afraid or angry or that he acted under any emotional distress, and there was no other testimony to that effect. Id. at 309. Declaring that "we are not free to recognize the requisite heightened emotional state by implication" and "[i]t is not enough to merely depict the defendant's physical behavior and the physical context in which it arose," the Tyler court held that the issue simply was not raised. Id. In Saldivar v. State, 980 S.W.2d 475, 505 (Tex. App.--Houston [14th Dist.] 1998, pet. ref'd), the defendant contended she was entitled to a charge on sudden passion arising from an adequate cause because she had become enraged after the victim divulged that the victim's father had accused Saldivar of embezzlement and lesbianism, which led to a continued argument in a motel room and immediately escalated into a killing. Id. In holding that sudden passion arising from an adequate cause was not raised, the Houston court admitted the victim initially provoked the defendant's anger. Id. at 506. However, the appellate court concluded Saldivar's testimony did not amount to evidence of the extreme emotional and psychological state for which the definitions of sudden passion and adequate cause call. Id. The court noted that, to justify a charge on sudden passion arising from an adequate cause, the defendant's reactions to the triggering provocations must be an objectively common response that an ordinary, reasonable person would make. Id. An aberrational response to a stimulus that results in death will not meet the statutory definitions under chapter nineteen of the Texas Penal Code. Id. In reaching its holding, the court stated, "Shooting an employer and friend in the back as she walks away from an argument is not an objectively common response in an ordinary reasonable person." Id. In this case, there is no evidence that the previous fight between Kennedy and Porter would have produced a degree of anger, rage, or resentment in a person of ordinary temper to the necessary degree that would cause such an ordinary person to lose his or her sensibilities and instinctively respond by drawing a pistol and shooting Kennedy--especially when all the eyewitnesses said Porter shot Kennedy after the fight had ended and the two had physically separated. In fact, during Porter's jailhouse interviews, he repeatedly states he was unafraid of Kennedy (in light of the size differential between the two) and was an otherwise peaceable man. Finally, Porter's own statement to police shows he was the aggressor in the initial confrontation, a factor that some courts have said deprives a murderer of the right to claim self-defense. See, e.g., Westbrook v. State, 846 S.W.2d 155, 159 (Tex. App.--Fort Worth 1993, no pet.) (defendant not entitled to sudden-passion instruction when evidence showed he was initial aggressor). Because no evidence supports any claim that the shooting was produced by an adequate cause, Porter would not have been entitled to an instruction on sudden passion. Cf. Adanandus v. State, 866 S.W.2d 210, 230-31 (Tex. Crim. App. 1993) (evidence showed defendant shot victim after scuffle between two had ended; victim in prone position and defendant in upright position when fatal shot fired). Ineffective assistance based on this claim is unsupported by the record. (b) Counsel's Admission, During Punishment, that Porter Shot Kennedy Was Not Ineffective Defense counsel's theory of the case during guilt/innocence was that Porter did not shoot Kennedy. Counsel's theory of the case changed, however, once the trial went into the punishment phase. In his punishment summation, Porter's trial counsel assumed the shooting and sought to mitigate blame: At some point, [Porter] snaps, loses his temper completely. Now, that's what happens when you mix young men and firearms and violent physical confrontations. People lose their temper, they snap, they do things that on sober reflection they'd never do. So that's what we have. We have one moment of extreme anger. And I'm not putting all the blame on Derrick Kennedy. I'm not putting all the blame on Curt Porter either, but what he did was wrong and deserves the punishment. On appeal, Porter now argues that counsel's argument during punishment amounted to ineffective assistance because such argument amounted to an admission of the crime. It is not unreasonable for a trial attorney to accept the jury's verdict on guilt/innocence and try to mitigate punishment by arguing that the facts show the defendant acted not out of cold-bloodedness, but out of sudden whim. Such an argument might persuade a jury to assess punishment at the lower end of the applicable sentencing range. The fact that such an argument did not work here does not necessarily mean that the argument was devoid of a reasonable trial strategy; the result (of Porter receiving a maximum punishment) merely means counsel's trial strategy did not work. We cannot say that no reasonable attorney would have employed such a strategy. As such, we cannot conclude the record on this issue will support a finding of ineffective assistance. (c) Not Calling More Character Witnesses Was Not Ineffective Porter also claims he received ineffective assistance at trial because his trial counsel failed to call more than one character witness on his behalf during punishment. The appellate record shows that, during punishment, Porter's trial counsel called but one witness, Reverend Adrian Porter. At the hearing on Porter's motion for new trial, Porter called several more witnesses, each of whom testified that he or she would have testified as character witnesses on Porter's behalf at the punishment trial, if only they had been called. Porter's trial counsel explained that he called none of these witnesses because he had instructed them each to be at Porter's trial by 8:30 on the morning of the punishment trial and that none, except for Reverend Porter, arrived until after 9:00, which was well after the punishment trial had begun. Because of their untimely arrival, Porter's trial counsel did not have the opportunity to discuss their potential testimonies before calling them to the witness stand. Additionally, the at-issue witnesses came into the courtroom during Reverend Porter's testimony, "the rule" had been invoked by both sides in this case, and these witnesses had listened to part of Reverend Porter's testimony. Porter's trial counsel testified to his belief that, by hearing Reverend Porter's testimony, each witness had violated "the rule" and thus would have been excluded by the State had Porter's trial counsel attempted to call any of them to testify. The only character witness who had not violated "the rule" and who was in court at the proper time, Reverend Porter, did testify on behalf of the accused. The explanation by Porter's trial counsel on this issue portrays a reasoned trial strategy. While a different lawyer might have sought a waiver of "the rule" for these witnesses, there is no evidence in the record that either the trial court or the elected district attorney (who was the lead prosecutor in this case) would have allowed the witnesses to testify. We conclude the record before us does not support Porter's claim of ineffective assistance on this issue. (d) Not Objecting to the State's Arguments Was Not Ineffective Porter next contends he received ineffective assistance from his trial counsel because the latter did not object to the State's closing argument during guilt/innocence. The State's challenged statements in this sub-issue are the same statements made by the State that were the subject of Porter's point of error asserting that the State commented on Porter's failure to testify. We have already addressed the appropriateness of the State's challenged arguments during guilt/innocence, and found that they presented no reversible error. Accordingly, we similarly conclude Porter's trial counsel did not render ineffective assistance by failing to object to the State's challenged arguments because such arguments (when viewed in context and from the perspective of the jury) did not necessarily comment on Porter's failure to testify at trial, but instead permissibly commented on evidence contained in Porter's custodial interviews. (e) Failure to Argue a Two-Shooter Theory During Guilt/Innocence Was Not Ineffective Finally, Porter contends his trial counsel provided ineffective assistance by failing "to argue to the jury that the two bullets and two wounds raised a reasonable doubt about Appellant's guilt, because that evidence points to the presence of two weapons and two assailants, not to Appellant." The substance of an attorney's closing argument is inherently a product of trial strategy. See generally Ramirez v. State, 229 S.W.3d 725, 730-31 (Tex. App.--San Antonio 2007, no pet.). Porter's trial counsel argued that the evidence was insufficient because the State's witnesses were incredible, an argument that is both common among the defense bar of this state and entirely reasonable based on the notable testimony adduced at trial on the lack of credibility of both Hodge and Crump, the State's primary witnesses. Now, with the advantage of hindsight, appellate counsel would now present a different theory of the case in an effort to create reasonable doubt among the jurors' minds. Simply because a jury did not buy into a defense strategy does not mean the strategy was flawed or substandard. Finally, we note that, even if we accepted Porter's claim that his trial counsel's argument fell below professional norms, the record before us provides no evidence that such argument necessarily prejudiced Porter. Cf. Ex parte McFarland, 163 S.W.3d 743, 758 n.50 (Tex. Crim. App. 2005) (capital murder habeas applicant did not demonstrate record established that, but for counsel's allegedly inadequate closing argument, jury would have answered special issues differently). We overrule this point of error. (4) Denying Porter's Motion for New Trial Was Not Error Porter also contends the trial court erred by overruling his motion for new trial. Porter's motion for new trial raised two issues: (A) ineffective assistance of trial counsel and (B) juror misconduct. The trial court heard testimony on both issues at an evidentiary hearing on Porter's motion. At the conclusion of the hearing, the trial court took the matter under advisement and later summarily denied the motion without explanation. Porter now asserts the trial court should have granted a new trial based on the proof of either ineffective assistance or juror misconduct. We review a trial court's ruling on a motion for new trial for abuse of discretion. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). It should also be noted, however, that "both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact." Strickland v. Washington, 466 U.S. 668, 698 (1984); see also Williams v. Taylor, 529 U.S. 362, 419 (2000). Therefore, although we generally use an abuse-of-discretion standard to review decisions to grant or deny motions for new trial, we are not bound by the trial court's conclusion regarding effectiveness of counsel. See Strickland, 466 U.S. at 698; Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005). If the trial court is not in an appreciably better position than the appellate court to determine an issue of ineffective assistance, the reviewing court may independently determine the issue while necessarily affording deference to the trial court's factual findings. Miller v. Fenton, 474 U.S. 104, 117 (1985); Villarreal v. State, 935 S.W.2d 134, 139 (Tex. Crim. App. 1996) (McCormick, P.J., concurring). (a) Ineffective Assistance of Counsel Was Not Established We have addressed Porter's claims of ineffective assistance on their merits. On the same basis as we stated above, we conclude the trial court was not bound to find ineffective assistance. We, therefore, conclude the trial court did not err by denying Porter's motion for new trial to the extent that it was based on a claim of ineffective assistance of counsel. (b) The Trial Court Did Not Abuse Its Discretion on the Juror Misconduct Issue To his motion for new trial Porter attached affidavits from several trial spectators. The first, Raven Covy, is Porter's fiancé. Covy testified that she observed one of Porter's jurors sleeping during the trial. Another spectator, Vivian Porter, testified that he saw some of the jurors sleeping during his grandson's trial. Porter's mother, Tumar Porter, similarly testified to having seen sleeping jurors. The trial court was in the best position to evaluate the credibility of the witnesses on this issue and could also rely on its independent memory and observations of the jurors during trial. As the trial court's decision to deny Porter's motion for new trial could have been based on either its determination of witness credibility or the court's independent recollection of events (or both), and because the trial court was in an appreciably better position both to determine witness credibility and to observe the now at-issue jurors during trial, we must defer to such a determination and overrule Porter's claim of error. (5) Porter's Sentence Is Not Cruel and Unusual Punishment Porter also contends the jury's assessment of his punishment at life imprisonment constitutes cruel and unusual punishment. Several considerations require us to overrule this contention. First, Porter's punishment fell within the range authorized by our law. He was convicted of murdering Kennedy by shooting him with a firearm. Murder is a first-degree felony. See Tex. Penal Code Ann. § 19.02(c). The punishment range for a first-degree felony is imprisonment for life or for any term not more than ninety-nine years or less than five years. See Tex. Penal Code Ann. § 12.32(a) (Vernon 2003). "Texas courts have traditionally held that as long as the punishment is within the range prescribed by the Texas Legislature, the punishment is not excessive, cruel, or unusual." Sierra v. State, 157 S.W.3d 52, 65 (Tex. App.--Fort Worth 2004), aff'd, 218 S.W.3d 85 (Tex. Crim. App. 2007); see also Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Alberto v. State, 100 S.W.3d 528, 529 (Tex. App.--Texarkana 2003, no pet.). Because Porter's life sentence fell within the statutory punishment range, his claim that his sentence constitutes cruel and unusual punishment--and thereby violates the Eighth Amendment to the United States Constitution--lacks support in our jurisprudence. See U.S. Const. amend. VIII. Second, to determine whether Porter's life sentence is cruel, unusual, or similarly disproportionate, evidence in the appellate record would be needed regarding what sentences other Texas defendants have received for murder. See Harmelin v. Michigan, 501 U.S. 957 (1991); Solem v. Helm, 463 U.S. 277, 292 (1983). There is no such evidence in this appellate record. Nor is there is any evidence in the appellate record of what sentences other defendants in other states have received for murder. See Solem, 463 U.S. at 292. Thus, even if we were to ignore the appellate jurisprudence of this State and conclude that a life sentence is necessarily too severe a punishment to assess against someone convicted of murder, the appellate record contains insufficient evidence for use in analyzing the remaining Solem factors to determine whether Porter's appellate record will support a challenge to his sentence under the Eighth Amendment. Cf. Guin v. State, 209 S.W.3d 682, 687-88 (Tex. App.--Texarkana 2006, no pet.); Williamson v. State, 175 S.W.3d 522, 525 (Tex. App.--Texarkana 2005, no pet.); Alberto, 100 S.W.3d at 530. Finally, the United States Supreme Court has repeatedly stated that the determination of appropriate punishment ranges for felony offenses is a matter of legislative prerogative. See, e.g., Harmelin, 501 U.S. at 962 (Scalia, J., writing for the majority). To the extent Porter asks this Court to effectively rewrite this State's punishment laws, we decline the invitation. Because Porter's sentence fell within the applicable punishment range, his punishment presumptively passes muster under the Eighth Amendment. (6) The Trial Court's Judgment Is Not Void, But Should be Reformed Porter also contends "[t]he trial court reversibly erred when, in its judgment, it imposed sentence under section 19.02(b)(1), Texas Property Code, thereby having no jurisdiction to pronounce sentence, and, therefore, the judgment is void and of no effect." (Emphasis added.) While the written judgment cites to a nonexistent Section 19.02(b)(1) of the Texas Property Code, the remainder of the judgment makes clear that Porter was convicted of murder. See Tex. Penal Code Ann. § 19.02(b)(1) (one way to commit murder). The State contends the judgment's reference to the Texas Property Code is merely a clerical error that can be reformed either on appeal or through a nunc pro tunc judgment entered by the trial court. (3) The State is correct. The trial court's judgment referencing Article 19.02 of the Texas Property Code, rather than Section 19.02 of the Texas Penal Code, amounts to a mere clerical error and is not the product of judicial reasoning. See Dudley, 223 S.W.3d at 722; and contrast Harris v. State, 153 S.W.3d 394, 396-97 (Tex. Crim. App. 2005) (trial court's decision to increase sentence by fifteen years after first sentence vacated on appeal, not permissible correction of unauthorized sentence nor permitted revision of judgment via nunc pro tunc). We have the authority to reform the trial court's judgment to reflect that the jury found Porter guilty of murder in violation of Section 19.02 of the Texas Penal Code. See, e.g., French v. State, 830 S.W.2d 607 (Tex. Crim. App. 1992); Gonzalez v. State, 527 S.W.2d 540, 541 n.1 (Tex. Crim. App. 1975). Accordingly, the trial court's judgment is reformed to reflect Porter was convicted for violating the Texas Penal Code rather than the Texas Property Code. We otherwise overrule this point of error. (7) The Trial Court Did Not Err in Failing to Issue, Sua Sponte, a Sudden-Passion Instruction Finally, Porter contends the trial court erred by failing to, sua sponte, instruct the jury on sudden passion. We disagree. "If a defendant is convicted of murder, he or she may argue at punishment that he or she caused the death of the victim while under the immediate influence of sudden passion arising from adequate cause." Bradshaw v. State, No. 06-06-00178-CR, 2007 WL 4224853, at *1 (Tex. App.--Texarkana Dec. 3, 2007, no pet.). "If a defendant establishes by a preponderance of the evidence that he or she did so, the offense level is reduced from a first-degree to a second-degree felony." Id. (citing Tex. Penal Code Ann. § 19.02; Trevino v. State, 100 S.W.3d 232, 237 (Tex. Crim. App. 2003)). "'Sudden passion' means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation." Tex. Penal Code Ann. § 19.02(a)(2). "Adequate cause" is that "cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." Tex. Penal Code Ann. § 19.02(a)(1). In this case, the trial court could have reasonably concluded the evidence did not warrant a sudden-passion instruction. Porter was the initial aggressor in the fight precipitating Kennedy's death. Porter introduced a deadly weapon into the fracas. After he and Kennedy ended their scuffle, Porter drew a gun and shot the unarmed Kennedy. Porter did not testify that he had acted out of sudden fear, anger, or other emotion that was so intense that neither he nor any other normal human being could have overcome such passion. Therefore, without such evidence coming from Porter or some other source, the trial court had no evidence before it to mandate a sudden-passion instruction. We conclude the trial court did not err by failing to so instruct the jury. We reform the trial court's judgment to substitute "Penal Code" for "Property Code" and affirm the judgment as reformed. Josh R. Morriss, III Chief Justice Date Submitted: February 13, 2008 Date Decided: March 10, 2008 Do Not Publish 1. Crump testified that he called 9-1-1 for an ambulance following the shooting. Several others testified about calling 9-1-1 after hearing the shooting. 2. Miranda v. Arizona, 384 U.S. 436 (1966). 3. Neither party to this appeal has directed the Gregg County District Clerk to supplement the record with a nunc pro tunc judgment from the trial court. See Hughes v. State, 493 S.W.2d 166, 170 (Tex. Crim. App. 1973) (trial court may issue judgment nunc pro tunc to correct clerical error); State v. Dudley, 223 S.W.3d 717, 721-22 (Tex. App.--Tyler 2007, no pet.) (nunc pro tunc is correct method for trial court to correct errors in judgment that are not product of judicial reasoning); see also Tex. R. App. P. 34.5(c) (any party may request supplementation of appellate record). Accordingly, we assume this issue has not been made moot by the trial court's issuance of a corrected judgment. he finding of January 1, 1998, is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust. Since the discovery date is factually sufficient, we will not address UPRC's remaining counter-arguments concerning the negligence claim. Because the Burkes' negligence claim was filed against UPRC more than two years after the accrual of that cause of action, it is barred by the statute of limitations. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (Vernon 2002). The Burkes' Attorney's Fees The Burkes argue that the award of zero dollars in attorney's fees is against the great weight and preponderance of the evidence. UPRC argues the Burkes failed to preserve error, if any. No motion for new trial was filed concerning the issue of attorney's fees. A motion for new trial must be filed in order to preserve a factual sufficiency review. Tex. R. Civ. P. 324(b). The Burkes have failed to preserve error concerning the issue of attorney's fees. Breach of Contract Theory In its first point of error, UPRC argues that the Burkes do not have a cause of action for breach of contract. UPRC argues that the agreement only contains two promises by UPRC to the Burkes. According to UPRC, the contract only requires it to pay ten dollars per acre for surface access to conduct the operation and to pay for claims or damages arising from any testing done on the Burkes' own land. The dispute concerning the contract issue revolves around whether the contract term "seismic testing" is limited to testing done on the Burkes' land or whether it includes UPRC's actions in conducting the survey, which included the Burkes' land. We conclude that the contract includes more than merely surface activity. UPRC argues that there is no evidence that any seismic work on the Burkes' land affected or even approached the water well. Instead, the focus of the trial was on a line of shot holes across the road on a neighbor's property. These holes were just across the property line and relatively close to the Burkes' water well. UPRC contends these activities are not covered by the contract because they were not conducted on the Burkes' land. In response to Question 1, the jury found UPRC failed to comply with the agreement with the Burkes. Question Number 1 asked: Did Union Pacific Resources Company fail to comply with the agreement dated September 22, 1997 between itself and the Burkes? Answer "Yes" or "No". Answer: Yes The agreement in question, which UPRC refers to as the "testing agreement," provides specifically: We respectfully request permission to conduct a Seismograph survey across surface and or mineral property(s) owned and/or leased by you as defined according to the following legal description; . . . . Our operations will be conducted in accordance with standard Geophysical practices and in a prudent and careful manner, and we agree to hold you free and harmless from any and all claims and damages that may result from our work by virtue of your permission herein granted, including all land owned or claimed by lessor adjacent or contiguous to the land particularly described above, whether the same be in said survey or surveys or in adjacent surveys although not included within the boundaries of the land particularly described above. When interpreting contracts, the primary concern of this Court is to give effect to the parties' intentions as expressed in the contract. CMS Partners, Ltd. v. Plumrose USA, Inc., 101 S.W.3d 730, 732 (Tex. App.—Texarkana 2003, no pet.). In determining the parties' intentions, intent must be taken from the agreement itself, not from the parties' present interpretation. Id. The agreement will be enforced as created regardless of whether the parties contracted wisely. Id. UPRC urges this Court to adopt a construction of this agreement which would only produce liability for the testing actually done on the Burkes' land. Under this construction, the contract exposes UPRC to liability only for damage caused by testing done on the Burkes' land, not for testing done on a neighbor's land. UPRC contends the contract is limited to work being done "by virtue of your permission herein granted." The "hold harmless" clause includes the clarification "including all land owned or claimed by lessor . . . ." Further, the clause refers to "property described hereinabove," i.e., the Burkes' ninety-four-acre tract. While the "hold harmless" clause refers only to operations occurring on the Burkes' land, we disagree that the objective intent of the entire agreement does not apply to work done on someone else's land. The contract, as a whole, is not limited to surface activities on the Burkes' land. The contract includes UPRC's actions in conducting the survey, which involves the Burkes' land. The contract is a form contract clearly developed for both mineral and surface owners. There are several blanks and boxes intended to designate whether permission is being obtained from a surface owner or a mineral owner. Although the "hold harmless" clause may be limited to the Burkes' land, it is only one clause in the contract. The objective intent of the parties was to require that the seismic testing be conducted in a safe and prudent manner. This interpretation is reasonable because there are many reasons UPRC would seek permission to conduct the seismic survey and would be willing to make this promise to obtain the said permission. UPRC's argument fails because the objective intent of the standard practices clause is not confined to activities on the Burkes' land. The contract as a whole applies to the survey, rather than activities on the Burkes' land. The permit, the contract at issue, involves granting of permission by the Burkes to UPRC to conduct a "seismic survey" across the Burkes' land. Courts should give terms their plain, ordinary, and generally accepted meaning unless the contract indicates otherwise. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996). Technical words and terms in a contract are to be construed by the courts as those terms are usually understood by persons in the profession or business to which the terms relate, unless it is clear that the terms were used in a different sense. Oil Ins. Ass'n v. Royal Indem. Co., 519 S.W.2d 148, 150 (Tex. Civ. App.—Houston [14th Dist.] 1975, writ ref'd n.r.e.); Frost v. Martin, 203 S.W. 72, 74 (Tex. Civ. App.—Fort Worth 1918, no writ). The United States Department of Agriculture pamphlet on geophysical operations, which was introduced into evidence, defines seismic testing as a method of exploring for hydrocarbons under the ground. Seismic testing relies on the mathematical analysis of various echoes or reflective waves that are generated when an explosive charge is detonated at the bottom of a deep hole. Thus, seismic testing involves more than mere surface activity. It involves surface activities such as detonation of explosives and the drilling of holes, as well as the waves generated by the explosions and the analysis of these waves. We conclude that the phrase "seismic testing" in the contract includes generating reflective underground waves. The Burkes argued on appeal and at trial that UPRC is liable because it did not conform to the "standard Geophysical practices" or conduct the blasting "in a prudent and careful manner." Although the standard practices clause is in the same sentence as the hold harmless clause, they are contained in independent clauses. An independent clause can stand alone as a sentence. William Strunk, Jr. & E. B. White, The Elements of Style, p. 5 (4th ed. 2000). The qualifying language that may limit the hold harmless clause to activities on the Burkes' land does not apply to the standard practices clause. Therefore, the standard practices clause applies to the "seismic survey," which includes subsurface activities such as the generation and measurement of the waves. The standard practices clause creates an express warranty guaranteeing that UPRC's actions and the actions of its agents will be "conducted in accordance with standard Geophysical practices and in a prudent and careful manner." The Burkes presented ample evidence that UPRC's activities were not conducted in a "prudent and careful manner" and some evidence that they were not conducted in accordance with "standard Geophysical practices." Therefore, the Burkes did have a cause of action for breach of the contract. Third-Party Beneficiary Theory At the end of trial, the Burkes requested a trial amendment to add a cause of action based on being a third-party beneficiary to a contract between UPRC and Schlumberger's Geco-Prakla division. The Burkes argue they are third-party beneficiaries because the contract clearly intends to secure payment of damages to the Burkes' well. UPRC responds the agreement is merely an indemnity agreement between it and Schlumberger. There is a presumption against, not in favor of, third-party beneficiary agreements. MCI Telecomm. Corp. v. Tex. Util. Elec. Co., 995 S.W.2d 647, 652 (Tex. 1999); Carson Energy, Inc. v. Riverway Bank, 100 S.W.3d 591, 600 (Tex. App.—Texarkana 2003, pet. denied). Absent clear indication in the contract that the parties intended to confer a direct benefit to the third party, the third party may not maintain an action as a third-party beneficiary. MCI Telecomm. Corp., 995 S.W.2d at 651; Carson Energy, Inc., 100 S.W.3d at 600; Hurley v. Lano Int'l, Inc., 569 S.W.2d 602, 603 (Tex. Civ. App.—Texarkana 1978, writ ref'd n.r.e.). A third party may recover on a contract made by other parties only if the parties intended to secure some benefit to that third party and only if the parties entered into the contract directly for the third party's benefit. MCI Telecomm. Corp., 995 S.W.2d at 651; Carson Energy, Inc., 100 S.W.3d at 600; Hurley, 569 S.W.2d at 603. To qualify as one for whose benefit the contract was made, the third party must show he or she is either a donee or creditor beneficiary of the contract, i.e., not one who is benefitted only incidentally. MCI Telecomm. Corp., 995 S.W.2d at 651; Carson Energy, Inc., 100 S.W.3d at 600; Hurley, 569 S.W.2d at 603. One is a donee beneficiary if the performance promised will, when rendered, come to him or her as a pure donation. MCI Telecomm. Corp., 995 S.W.2d at 651; Carson Energy, Inc., 100 S.W.3d at 600. If, on the other hand, that performance will come to him or her in satisfaction of a legal duty owed to him or her by the promisee, he or she is a creditor beneficiary. MCI Telecomm. Corp., 995 S.W.2d at 651; Carson Energy, Inc., 100 S.W.3d at 600. The duty to creditor beneficiaries may be an "indebtedness, contractual obligation or other legally enforceable commitment" owed to the third party. MCI Telecomm. Corp., 995 S.W.2d at 651; Carson Energy, Inc., 100 S.W.3d at 600; Hurley, 569 S.W.2d at 603. In determining whether a third party can enforce a contract, the intention of the contracting parties is controlling. A court will not create a third-party beneficiary contract by implication. MCI Telecomm. Corp., 995 S.W.2d at 651; Carson Energy, Inc., 100 S.W.3d at 600. The intention to contract or confer a direct benefit to a third party must be clearly and fully spelled out, or enforcement by the third party must be denied. MCI Telecomm. Corp., 995 S.W.2d at 651; Carson Energy, Inc., 100 S.W.3d at 600; Hurley, 569 S.W.2d at 603. Consequently, a presumption exists that parties contracted for themselves unless it "clearly appears" they intended a third party to benefit from the contract. MCI Telecomm. Corp., 995 S.W.2d at 651; Carson Energy, Inc., 100 S.W.3d at 600; Hurley, 569 S.W.2d at 603. In the case at bar, the contract was formed between Schlumberger's Geco-Prakla division and UPRC. The Burkes do not argue they were a party to the contract. The contract provides: U.P.R.C. has agreed to the following distances and charge sizes in the vicinity of a new water well that was drilled after the shot points were drilled. This water well is situated on the North side of highway 1798 and between receiver lines 412 and 424. This well was drilled to service a new cattle feedlot. It was drilled to a depth of 600' and cased with PVC casing. Geco-Prakla understands that U.P.R.C assumes all responsibility for any damages or costs to this water well resulting from Shot Points shot in the vicinity's [sic] as listed below: . . . . Agreed and accepted on Nov. 23, 1997. by /s/ B.D. Bates There is no language in the contract indicating the contract was for the benefit of the Burkes. An indemnity agreement does not create third-party beneficiary status unless the third party is a creditor beneficiary and the contract was formed for his or her benefit. MCI Telecomm. Corp., 995 S.W.2d at 651; Hurley, 569 S.W.2d at 603. The agreement simply does not support a claim of third-party beneficiary for the Burkes. Without privity of contract or a clear indication the Burkes were third-party beneficiaries, the Burkes cannot recover on this contract. The Burkes' Pleadings In its third point of error, UPRC argues that the pleadings were insufficient as to the damages to the dead cattle and weight loss to the cattle. Because the Burkes did not include the deceased cattle and the decreased weight loss to the cattle as damages in their petition, UPRC argues these damages cannot be awarded. The Burkes contend the damages due to the dead cattle and decreased weight gain are direct damages rather than special damages. The case cited by the Burkes, i.e., Humble Pipe Line Co. v. Day, 172 S.W.2d 356, 358 (Tex. Civ. App.—Waco 1943, writ ref'd w.o.m.), did involve both dead cattle and weight loss to the cattle. However, the discussion of special damages is limited to the decrease in market value of the land. In Day, a landowner brought suit for damage to her land and cattle caused by large quantities of crude oil which escaped from a nearby pipeline and settled in and near a creek running through her farm. Id. Humble argued that the decreased value of the land was a special damage, and the court held that the damage to the land was a direct damage because it was reasonably foreseeable. Id. Day does not stand for the proposition that the dead cattle and weight loss were direct damages, although the court did allow Day to recover for the dead cattle and weight loss. Our analysis is that the dead cattle and the decreased weight gain of the surviving cattle are special damages rather than direct or general damages. Direct damages "flow naturally and necessarily" from the wrong and "compensate the plaintiff for the loss that is conclusively presumed to have been foreseen by the defendant from his wrongful act." Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 816 (Tex. 1997). "Special damages are those that proximately result from the defendant's wrongful conduct but are of such an unusual nature that they would normally vary with the circumstances of the individual case in which they occur." Sherrod v. Bailey, 580 S.W.2d 24, 28 (Tex. Civ. App.—Houston [1st Dist.] 1979, writ ref'd n.r.e.). Special damages are those damages "which result naturally, but not necessarily, from the acts complained of." Henry S. Miller Co. v. Bynum, 836 S.W.2d 160, 163 (Tex. 1992) (Phillips, J., concurring); see Arthur Andersen & Co., 945 S.W.2d at 816. The death of cattle and the losses incurred due to the decreased weight gain do not necessarily flow from damage to a water well. They are damages which will normally vary with the circumstances of each case. The damages resulted from the sand, which caused the calves stress and increased their susceptibility to illnesses. The damages did not naturally and necessarily flow from the damage to the well. Further, the losses due to decreased weight gain are analogous to lost profits, which have consistently been held to be special damages in Texas. See Naegeli Transp. v. Gulf Electroquip, Inc., 853 S.W.2d 737, 739 (Tex. App.—Houston [14th Dist.] 1993, writ denied). Our conclusion is that the damages due to the dead cattle and the decreased weight gain of the cattle are special damages. Under the common law, "special damages" are not recoverable unless the defendant had notice that the plaintiff would suffer such damages. Id. "When items of special damage are claimed, they shall be specifically stated." Tex. R. Civ. P. 56. In order to be recoverable, special damages must be pled. Lesikar v. Rappeport, 33 S.W.3d 282, 306 n.1 (Tex. App.—Texarkana 2000, pet. denied); see Bynum, 836 S.W.2d at 163 (Phillips, J., concurring). Before our analysis progresses any further, we must determine whether error was preserved. Rule 90 of the Texas Rules of Civil Procedure requires that any defect "either of form or of substance" must be "pointed out by exception in writing" and brought to the attention of the trial court. Tex. R. Civ. P. 90. UPRC did not specially except to the pleadings or object to the introduction of evidence concerning the special damages. However, UPRC did object to the submission of the damage question to the jury on the basis that the damages resulting from the dead cattle and the decreased weight gain of the cattle were not "supported by Plaintiffs' general pleadings." Because UPRC objected to the submission of the issue to the jury, the issue was not tried by consent. See Tex. R. Civ. P. 67; see also Matthews v. Gen. Accident Fire & Life Assurance Corp., 161 Tex. 622, 343 S.W.2d 251, 255 (1961); Harkey v. Tex. Employers' Ins. Ass'n, 146 Tex. 504, 208 S.W.2d 919, 923 (1948). Therefore, error was preserved for our review. The trial court, though, did not abuse its discretion in submitting the question concerning damages to the jury. In order to warrant submission to the jury, the issues must be raised by both the pleadings and the evidence. Tex. R. Civ. P. 278; City of Princeton v. Abbott, 792 S.W.2d 161, 167 (Tex. App.—Dallas 1990, writ denied). The sufficiency of the pleadings is judged based on whether they provide the opponent with fair and adequate notice. Roark v. Allen, 633 S.W.2d 804, 809–10 (Tex. 1982); Howell v. Mauzy, 899 S.W.2d 690, 707 (Tex. App.—Austin 1994, writ denied). The purpose of this rule is to allow an opposing party to adequately prepare for trial. Roark, 633 S.W.2d at 810. "Fair notice" requires that "an opposing attorney of reasonable competence" can ascertain the nature and basic issues of the controversy. City of Alamo v. Casas, 960 S.W.2d 240, 251 (Tex. App.—Corpus Christi 1997, pet. denied). In order for the pleadings to be sufficient, the defendants must have fair notice of the special damages being asserted. See Sherrod, 580 S.W.2d at 28 (holding that defendants did not have fair notice that "damages to the improvements" were being sought). The Burkes argue that the DTPA demand letter, which was attached to the pleadings, is sufficient to meet the pleading requirement. A party may attach and incorporate into its pleadings written instruments "constituting, in whole or in part, the claim sued on, or the matter set up in defense." Tex. R. Civ. P. 59. UPRC contends that the demand letter cannot be incorporated into the pleadings because it does not constitute the claim sued on. The notice requirement of the DTPA must be pled. Hines v. Hash, 843 S.W.2d 464, 467 (Tex. 1992). Because notice must be pled in a DTPA action, we conclude that notice under the DTPA forms part of the DTPA claim or a matter concerning a defense. See Houston Cmty. Coll. Sys. v. Schneider, 67 S.W.3d 241, 242–43 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (copies of worker's compensation proceedings incorporated into the pleadings); Skepnek v. Mynatt, 8 S.W.3d 377 (Tex. App.—El Paso 1999, pet. denied) (attached affidavit in support of special appearance deemed incorporated). Therefore, the DTPA demand letter was incorporated as part of the Burkes' DTPA claim against PWW. The remaining issue is whether the enumeration of special damages in the DTPA claim is sufficient to plead those special damages against another defendant, specifically UPRC, in a different cause of action, specifically breach of contract. The incorporation of the DTPA demand letter provided UPRC with fair notice of the special damages. In the attached letter, the Burkes listed the following damages: "the Burkes waited over a year without potable water and suffered a loss of use of their residence, expenses in transporting cattle, weight loss on cattle, and death of cattle . . . ." In their petition, the Burkes alleged: The damages suffered by Plaintiffs in connection with the Defendants' improper, wrongful, and/or negligent conduct in this case are in excess of the minimum jurisdictional limits of this Court. At this point in time, Plaintiffs' damages are in an amount not less than $204,321.50; however, Plaintiffs expressly and specifically reserve the right to amend and/or supplement the aforementioned damages figure as this litigation progresses. This is the only paragraph in the petition other than the attachment which addresses the Burkes' damages. The petition clearly indicates that the same damages are being brought against all defendants. The Burkes use the plural form of "defendants," indicating that the paragraph is referring to multiple defendants. Further, it is clear that all of the injuries came from the same injury, i.e., the sand in the well. When there are no special exceptions, a petition will be construed liberally in favor of the pleader. Roark, 633 S.W.2d at 810. Since the petition alleges the same damage amount against all defendants, any attorney of reasonable competence would have fair notice that the special damages enumerated in the attached DTPA letter are being asserted against all the defendants. UPRC cites Employers Casualty Co. v. Transport Insurance Co. for the proposition that the attachment does not provide fair notice. Employers Cas. Co. v. Transport Ins. Co., 444 S.W.2d 606, 610 (Tex. 1969). Employers Casualty, though, held that neither the pleading nor the attachment gave fair notice that the plaintiff was seeking "recovery in subrogation." Employers Cas. Co., 444 S.W.2d at 610. In this case, the attachment does provide fair notice that special damages for the dead cattle and the decreased weight gain of the cattle were being sought. Further, the depositions of Russell and Lori Burke indicate that UPRC was well aware that the Burkes were seeking damages for the dead cattle and the decreased weight gain of the surviving cattle. In this case, the pleading against PWW, which specifically pled the special damages, provided fair notice to UPRC that the same special damages would be asserted against them. We are not holding that special damages pled against one defendant will always be sufficient against other defendants. However, in this case, the pleading gave fair notice of the special damages to UPRC. Because we are to liberally construe pleadings in favor of the pleader in absence of any written special exceptions, the pleadings did specifically plead the special damages. Sufficiency of the Evidence of the Damages In its points of error four and five, UPRC argues there is insufficient evidence of the actual damages. The jury awarded the Burkes $1.5 million in actual damages. Question B asked the jury: What sum of money, if paid now in cash, would fairly and reasonably compensate Burkes for their damages, if any, resulting from the occurrence in question? . . . . Consider the following elements of damages and none other: a.losses incurred on weight gain of cattle that were a natural, probable, and foreseeable consequence of Union Pacific Resources failure to comply b.losses incurred on dead cattle that were a natural, probable, and foreseeable consequence of Union Pacific Resources failure to comply c.reasonable and necessary cost incurred in repairing the water well in question At trial, the Burkes' counsel requested $700,000.00 for the decreased weight gain, $400,000.00 for the dead cattle, and $7,600.00 for the well repair. The Burkes did not request damages related to increased veterinary expenses. In total, the Burkes requested that the jury award $1,107,600.00 in actual damages. The jury awarded $1.5 million. UPRC argues there is no evidence of "reasonable and necessary" costs to repair the well. UPRC asks us to "delete" and "overturn" the damage finding of $1.5 million. UPRC also alleges the award was excessive and not supported by the evidence. These allegations challenge both the legal and factual sufficiency of the evidence. UPRC preserved the error for both the legal and factual sufficiency reviews. In its motion for judgment notwithstanding the verdict, it argued there was no evidence of the damages and objected to the submission of the jury question on the basis that there was no evidence. UPRC argued in its motion for new trial that the damages were excessive. On appeal, the Burkes argue that the damage award can be supported by the evidence. The evidence was that the Burkes processed 14,000 cattle in the operation. We understand the Burkes' argument concerning damages as follows: Weight Gain: 14,000 x $50.00 = $700,000 Veterinary Expenses (Weight Gain): 14,000 x $40.00 = $560,000 Dead Cattle: 500 replaced cattle x $500 = $250,000 Well Repair: $7,800 $1,617,800 Thus, the Burkes argue the jury could have awarded a total of $1,617,800.00. We note the Burkes are not contending the jury could have awarded damages for dead cattle which the Burkes did not replace. Lori Burke testified that 1,200 to 1,300 cattle died. Of the dead cattle, the Burkes replaced approximately 500. It is unclear as to the ownership of the remaining 800 dead cattle. It appears that some of the cattle were owned in some form of partnership. On appeal, the Burkes argue that the jury's award is supported by the evidence because of the increased cost of veterinary care caused by the sand in the water. We disagree that the veterinary expenses can be awarded as part of the loss due to the decreased weight gain element of damage. The Burkes contend that the veterinary expenses are related to decreased weight gain of the cattle. Our conclusion is that the veterinary expenses are too dissimilar from the decreased weight gain to be awarded under that element. No question was submitted to the jury concerning the increased veterinary expenses. Because the veterinary expenses are not attributable to "losses incurred on weight gain" of the cattle, they cannot be used to support the award. In addition, the amount of the increased veterinary costs argued by the Burkes is unsound. The forty-dollar figure asserted by the Burkes referred to testimony that, when a calf died, the calf that replaced it would then have to be vaccinated. This resulted in an increased cost of forty dollars per head rather than twenty dollars per head. The testimony pertained only to the replaced cattle. Thus, this evidence provides evidence of damages in the amount of $10,000.00 (500 replaced cattle x ($40.00–$20.00)), rather than $560,000.00. The veterinarian testified that vaccination costs were increased by the lack of water, because the medicines would not perform as well when cattle were dehydrated. The Burkes have not shown where evidence of these increases can be found in the record. Further, as discussed above, the Burkes did not submit a question concerning veterinary expenses. The remaining damages asserted by the Burkes are supported by the evidence. As a result of the problems with sand in the well, Lori Burke testified their cost to increase a calf's weight was much greater than the average cost. On average, the calves in their operations gained only one and a half pounds per day instead of the expected two and a half pounds. In total, the decreased weight gain resulted in a loss of twenty-five dollars per head per month. Since each calf stayed at the feedlot an average of two months, the Burkes lost fifty dollars per head. The Burkes replaced approximately 500 head of the dead cattle for their customers. Lori Burke testified that the cattle were selling on average between $400.00 and $500.00 per head. Russell testified that it cost $7,800.00 to repair the well. Thus, the maximum amount supported by the evidence is as follows: Decreased Weight Gain - 14,000 head x $50/per head $ 700,000 Dead Cattle: Replaced Cattle - 500 head x $500/per head $ 250,000 Well Repair - 7,800 $ 7,800 $ 957,800 These calculations assume that cattle were selling at the maximum price of $500.00 per head. Thus, the jury's award of $1.5 million is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Settlement Credit UPRC argues it is entitled to credit for the Schlumberger settlement. The Burkes and PWW settled with Schlumberger before trial for $125,000.00. Of this amount, $13,500.00 was awarded to PWW. UPRC argues it is entitled to a settlement credit under the one satisfaction rule. The Burkes contend the Schlumberger settlement could have been attributable to damages other than those asserted against UPRC. When a single, indivisible injury occurs, the plaintiff may recover only once for that injury. See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 8 (Tex. 1991); Facciolla v. Linbeck Constr. Corp., 968 S.W.2d 435, 449 (Tex. App.—Texarkana 1998, no pet.). The party seeking a settlement credit has the burden to prove its right to such a credit. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 927 (Tex. 1998); Cohen v. Arthur Andersen, L.L.P., 106 S.W.3d 304, 310 (Tex. App.—Houston [1st Dist.] 2003, no pet.). The party must prove the settlement amount and introduce in the record either the settlement agreement or some evidence of the settlement amount. Ellender, 968 S.W.2d at 927; Cohen, 106 S.W.3d at 310. "If the nonsettling party meets this burden, the burden shifts to the plaintiff to tender a valid settlement agreement allocating the settlement between (1) damages for which the settling and nonsettling defendant [sic] are jointly liable, and (2) damages for which only the settling party was liable." Cohen, 106 S.W.3d at 310; see Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 391–92 (Tex. 2000). The plaintiff is in the better position to prove the proper allocation of the settlement. Ellender, 968 S.W.2d at 928. If the plaintiff fails to satisfy this burden, then the nonsettling party is entitled to a credit equaling the entire settlement amount. Cohen, 106 S.W.3d at 310; see Ellender, 968 S.W.2d at 928. UPRC introduced the settlement agreement into the record. Therefore, the burden shifted to the Burkes to prove the damages for which only the settling party was liable. On appeal, the Burkes argue that the Schlumberger settlement can be attributed to damages for loss of the use of their residence and additional costs in transporting cattle. Although pled in their eighth amended petition, neither of these damages was submitted to the jury. However, the record does not indicate the Burkes made this argument to the trial court. The Burkes argued to the trial court that UPRC was responsible for proving the proper allocation of the settlement. Because the Burkes failed to meet their burden of proving the damages solely attributable to Schlumberger, the full amount of the settlement should be credited toward the judgment. The award should be reduced by $111,500.00. PWW's Tortious Interference Claim UPRC contends in its seventh point of error that PWW's tortious interference with contractual relations claim is barred by the statute of limitations. UPRC argues that the discovery rule does not apply to claims of tortious interference as a matter of law because these types of injuries are neither inherently undiscoverable nor objectively verifiable. This Court has noted that the discovery rule is a "very limited exception" to the statute of limitations. Schindley, 13 S.W.3d at 67. The discovery rule only applies when the nature of the plaintiff's injury is both inherently undiscoverable and objectively verifiable. Altai, Inc., 918 S.W.2d at 456. As discussed below, there is sufficient evidence to support the jury's finding as to the discovery date of the injury. For purposes of this discussion, we will assume that the discovery rule applies. PWW argues that tortious interference should be governed under the residual statute of limitations, Section 16.051, instead of Section 16.003. Section 16.051 provides that "[e]very action for which there is no express limitations period, except an action for the recovery of real property, must be brought not later than four years after the day the cause of action accrues." Tex. Civ. Prac. & Rem. Code Ann. § 16.051 (Vernon 1997). In Dickson Construction, Inc., this Court noted that the Texas Supreme Court may have erred in First National Bank of Eagle Pass v. Levine. Dickson Constr., Inc., 960 S.W.2d at 849; see First Nat'l Bank of Eagle Pass v. Levine, 721 S.W.2d 287, 289 (Tex. 1986) (holding that tortious interference with business relations was within the meaning of trespass in Section 16.003). In our opinion, we criticized the Texas Supreme Court's interpretation of the statute to require a tortious interference cause of action to be brought within two years. Dickson Constr., Inc., 960 S.W.2d at 849. As we held in Dickson Construction, we adhere to the application of Section 16.003 to tortious interference claims until the Texas Supreme Court changes its interpretation. Even assuming the discovery rule applies, there is sufficient evidence to support the jury's answer concerning the discovery date of the injury. The jury found that PWW knew or should have known of the tortious interference on January 1, 1998. We believe this finding is supported by the evidence. As previously discussed, Pritchett was concerned about the seismic testing and informed the crew about the water well. When PWW drilled the well in December 1997, it produced potable water without sand. However, when the pump was installed around the beginning of January 1998, the well water contained excessive amounts of sand. Pritchett filed an affidavit earlier in the case in which he stated that Russell Burke accused the seismograph survey of tearing up the well when the pump was installed. At this point, a rational juror could have concluded PWW knew or should have known that a third party had committed tortious acts. Further, the great weight and preponderance of the evidence is not so contrary to the jury's conclusion that it indicates the result is clearly wrong. PWW originally countersued UPRC on August 28, 2000, which was more than two years from January 1, 1998. Therefore, the statute of limitations bars PWW's claim even if the discovery rule applies. Because the statute of limitations is dispositive, we will not address UPRC's remaining points of error. PWW's Attorney's Fees PWW also contends it can recover attorney's fees because it prevailed against the Burkes on the breach of contract claim. PWW did not request recovery at the trial court level for attorney's fees based on breach of contract. No question solely concerning attorney's fees was submitted to the jury. The question that was submitted to the jury was clearly intended to be for the tortious interference claim and combined both attorney's fees and the cost of the attempted repairs to the well. We deny PWW's claim for attorney's fees. Conclusion Both the Burkes' negligence claim and PWW's tortious interference with business relations claim are barred by the statute of limitations. We render a take-nothing judgment concerning PWW's tortious interference claim. The evidence is factually insufficient to support the Burkes' recovery of $1.5 million for contract damages. Further, the trial court abused its discretion in not awarding a settlement credit to UPRC in the amount of $111,500.00. If the Burkes, within fifteen days from the date of our opinion, file a remittitur of $653,700.00 from the damages awarded by the trial court, we will modify the trial court's judgment to award the Burkes a recovery of $842,300.00 in damages, plus prejudgment interest of $358,552.84, and postjudgment interest at the rate of ten percent per annum. If the Burkes fail to remit $653,700.00, the judgment will be reversed, and the cause remanded for a new trial. Jack Carter Justice Date Submitted: March 31, 2004 Date Decided: April 16, 2004 OPINION ON MOTION FOR REHEARING Both UPRC and PWW have filed motions for rehearing. PWW argues this Court erred in holding that its suit was barred by the statute of limitations. UPRC argues this Court erred in not considering whether there was sufficient evidence that the repair costs to the well were reasonable and necessary and in awarding interest at a rate of ten percent. In its supplement to its motion for rehearing, UPRC argues that this Court erred in allocating the costs among the parties and argues for the first time on appeal that Russell and Lori Burke lack standing. We overrule the motions for rehearing. PWW's Motion for Rehearing PWW contends we erred in holding that its suit was barred by the statute of limitations. PWW argues that it was not until it was sued for breach of contract that it became aware of the tortious interference with business relations. This argument fails because, even if the discovery rule applies, the test is when PWW became aware of interference with its business relationship rather than when the extent of the damages became known. The discovery rule exception defers accrual of a cause of action until the plaintiff knew or should have known of the facts giving rise to the cause of action. Trinity River Auth. v. URS Consultants, Inc., 889 S.W.2d 259, 262 (Tex. 1994); Dickson Constr., Inc. v. Fid. & Deposit Co., 960 S.W.2d 845, 850 (Tex. App.—Texarkana 1997, no pet.). The tortious interference with business relations occurred when the well was damaged, not when the Burkes filed suit. There is sufficient evidence to support the jury's determination that PWW knew or should have known by January 1, 1998, that UPRC had damaged the well and thus interfered with its contract. The fact that the extent of the damages caused by the interference did not become apparent until it was sued by the Burkes does not toll the statute of limitations. PWW also contends the effect of our ruling violates the open courts provision of the Texas Constitution. See Tex. Const. art. I, § 13; Trinity River Auth., 889 S.W.2d at 261; Sax v. Votteler, 648 S.W.2d 661, 665 (Tex. 1983). In Trinity River Authority, the Texas Supreme Court held that the statute of limitations did not violate the open courts provision. Trinity River Auth., 889 S.W.2d at 261. In Sax, the Texas Supreme Court held that a limitations statute limiting a minor's opportunity to file a malpractice suit violated the open courts provision because it effectively abolished the minor's right to assert the cause of action. Sax, 648 S.W.2d at 667. Our situation is distinguishable because PWW could have sued when it became aware that the well was damaged even though PWW did not know the full extent of the damages at that time. PWW suggests that we 1) allow an equitable tolling exception, 2) apply the residual limitations statute, or 3) apply the discovery rule. We analyzed the statute of limitations based on the discovery rule. We also rejected the residual limitations statute based on the most recent Texas Supreme Court analysis. See First Nat'l Bank of Eagle Pass v. Levine, 721 S.W.2d 287, 289 (Tex. 1986). PWW did not assert any equitable tolling exception at the trial court level. We overrule PWW's motion for rehearing. UPRC's Motion for Rehearing In its original motion for rehearing, UPRC argues that our opinion failed to address whether the water well repair cost was reasonable and necessary. UPRC also contends the judgment interest rate should be five percent rather than ten percent. UPRC's first contention is that the Burkes failed to show that the cost of $7,800.00 to repair the well was reasonable and necessary. A party seeking recovery for the costs of repairs must prove they are reasonable. Fort Worth Hotel Ltd. P'ship v. Enserch Corp., 977 S.W.2d 746, 762 (Tex. App.—Fort Worth 1998, no pet.). A party does not have to use the magic words "reasonable and necessary," but need only present sufficient evidence to justify a jury's finding. Id. The Burkes presented evidence that the well was pumping excessive amounts of sand, which made the water unsuitable for the use intended. Evidence at trial indicated this problem was caused by a hole or similar disruption in the screen. Jere Pritchett testified he made several attempts to repair the well, but was unsuccessful. Although he did not charge the Burkes, Pritchett incurred costs of $10,000.00 in attempting to repair the well. Travis Russell was able to patch the well and charged the Burkes $7,800.00 for the patch. The patch cost less than Pritchett's unsuccessful repairs and much less than the original cost of the well. Based on this evidence, a rational juror could have concluded that the repairs were reasonable and necessary, and such a conclusion is not against the great weight and preponderance of the evidence. UPRC's second contention is that the judgment interest rate should be five percent rather than ten percent. UPRC argues that the new version of Tex. Fin. Code Ann. § 304.003(c) applies because this Court's opinion constitutes a judgment and the new provision applies to a judgment which will be "signed or subject to appeal." See Act of June 2, 2003, 78th Leg., R.S., ch. 676, § 2, 2003 Tex. Gen. Laws 2097. During the last regular session, the Texas Legislature amended the postjudgment interest rate. See Act of June 2, 2003, 78th Leg., R.S., ch. 676, § 1, 2003 Tex. Gen. Laws 2096–97 (codified at Tex. Fin. Code Ann. § 304.003(c) (Vernon Supp. 2004)). Section 304.003(c) of the Texas Finance Code now provides: (c)The postjudgment interest rate is: (1) the prime rate as published by the Federal Reserve Bank of New York on the date of computation; (2) five percent a year if the prime rate as published by the Federal Reserve Bank of New York described by Subdivision (1) is less than five percent; or (3) 15 percent a year if the prime rate as published by the Federal Reserve Bank of New York described by Subdivision (1) is more than 15 percent. Tex. Fin. Code Ann. § 304.003(c). The interpretation of a statute is a question of law. In re Canales, 52 S.W.3d 698, 701 (Tex. 2001) (orig. proceeding). The Fort Worth Court of Appeals has held that the amendments apply only "where a judgment is signed on [or] after the effective date of the Act and to cases where a judgment becomes subject to appeal, i.e., capable of being appealed, on or after the effective date of the Act." Columbia Med. Ctr. v. Bush, 122 S.W.3d 835, 865 (Tex. App.—Fort Worth 2003, pet. denied); see Warrantech Corp. v. Computer Adapters Servs., No. 02-03-002-CV, 2004 Tex. App. LEXIS 3212 (Tex. App.—Fort Worth Apr. 8, 2004, no pet. h.); see also Utts v. Short, No. 03-03-00512-CV, 2004 Tex. App. LEXIS 2874 (Tex. App.—Austin Apr. 1, 2004, no pet. h.) (not designated for publication). We note that all of our sister courts' opinions affirmed the judgments of the trial courts and that we reversed and rendered concerning PWW and suggested a remittitur concerning UPRC's appeal. However, our sister courts' opinions indicate that "judgment" in the act refers to the trial court judgment rather than a judgment by a court of appeals. In Columbia Medical Center, the Fort Worth Court of Appeals held that "[t]he plain meaning of the phrase 'subject to an appeal' when used to describe a judgment traditionally means that the judgment fully and finally disposes of all parties and all issues before the trial court and therefore is capable of being appealed." Columbia Med. Ctr., 122 S.W.3d at 865. We hold that the new version of Section 304.003(c) applies to a case in which a final judgment is signed in the trial court or subject to appeal from the trial court on or after June 20, 2003. Since the judgment was signed by the trial court and appeal was taken well before the effective date of the new version of Section 304.003(c), it does not apply. The trial court signed the final judgment in this case January 10, 2003. This judgment contained a prejudgment and postjudgment interest rate of ten percent. At the time the judgment was signed in the trial court, Section 304.003(c) provided: (c)The postjudgment interest rate is: (1) the auction rate quoted on a discount basis for 52-week treasury bills issued by the United States government as most recently published by the Federal Reserve Board before the date of computation; (2) 10 percent a year if the auction rate described by Subdivision (1) is less than 10 percent; or (3) 20 percent a year if the auction rate described by Subdivision (1) is more than 20 percent. Act of April 23, 1999, 76th Leg., R.S., ch. 62, § 7.18, 1999 Tex. Gen. Laws 222, 232 (amended 2003) (current version at Tex. Fin. Code Ann. § 304.003(c)). Thus, the applicable interest rate was ten percent. We overrule UPRC's motion for rehearing. UPRC's Supplement to Motion for Rehearing In its supplement to its motion for rehearing, UPRC alleges two more errors in this Court's opinion. UPRC contends that we erred in allocating the costs among the parties and that the Burkes lack standing to pursue the appeal. The first alleged error argued by UPRC is that this Court erred in allocating the costs of the appeal among the parties. This Court ordered UPRC to pay one half of the costs, the Burkes to pay one third of the costs; and for PWW to pay one sixth of the costs. UPRC argues that we should have applied Rule 139 of the Texas Rules of Civil Procedure and ordered that the Burkes and PWW pay the costs. UPRC argues that, since Rule 139 is more specific than Rule 43.4 of the Rules of Appellate Procedure, it should govern the award of the costs. See Tex. R. Civ. P. 139; Tex. R. App. P. 43.4. Rule 43.4 provides that a court of appeals should award costs to the prevailing party. Tex. R. App. P. 43.4. We followed the prevailing party rule in allocating costs. However, no party prevailed on all of the principal issues. Given that there were multiple appeals and multiple parties prevailing, we allocated the costs accordingly. The general rule is that the specific rule will control over the general rule. See Tex. Gov't Code Ann. § 311.026 (Vernon 1998). However, we cannot say that Rule 139 is more specific than Rule 43.4. Both rules are comprehensive on their face. See Tex. R. Civ. P. 139; Tex. R. App. P. 43.4 If the rules were irreconcilable, Rule 43.4 would govern as the more recent rule. See Tex. Gov't Code Ann. § 311.025 (Vernon 1998). However, we believe the rules can be harmonized. When presented with a potential conflict among different rules, the rules should be construed, if possible, to give effect to both. The rules can be harmonized because the court may award costs to the prevailing party, otherwise as required by law, or otherwise for good cause. Rule 43.4 provides that the court "may tax costs otherwise as required by law or for good cause." Tex. R. App. P. 43.4. The word "may" indicates that such an action is at the discretion of the court. See Tex. Gov't Code Ann. § 311.016 (Vernon 1998). We conclude Rule 139 falls within the meaning of "otherwise required by law" and could be followed at the court's discretion. However, the court may award costs other than to the prevailing party based on "good cause." See Burns v. Bishop, 48 S.W.3d 459, 468 (Tex. App.—Houston [14th Dist.] 2001, no pet.); Keene Corp. v. Gardner, 837 S.W.2d 224, 232 (Tex. App.—Dallas 1992, writ denied); see also Lesikar v. Rappeport, 809 S.W.2d 246, 253 (Tex. App.—Texarkana 1991, no writ) (op. on reh'g). Courts of appeals have considerable discretion in taxing costs on appeal. Save Our Springs Legal Def. Fund v. City of Austin, 874 S.W.2d 109, 110–11 (Tex. App.—Austin 1994, no writ). When both parties prevail on some issues but not others, courts have apportioned the costs of appeal between the parties. See, e.g., City of Austin v. Capitol Livestock Auction Co., 453 S.W.2d 461, 465 (Tex. 1970). Our distribution of the costs was based on which party prevailed on each portion of the appeal and the magnitude of that portion of the appeal. Because this case involved multiple appeals of different magnitudes, we assessed the costs accordingly. The most substantial appeal was brought by UPRC against the Burkes. UPRC did not prevail on the principal issues and thus we assessed one half the costs of the appeal against UPRC. While monetarily significant, the Burkes' appeal against UPRC involved a less substantial substantive portion of the appeal. Since the Burkes did not prevail on their appeal, we assessed one third of the costs against them. Although UPRC prevailed on the portion of their appeal against PWW, this part of the appeal was intertwined with the appeal concerning the Burkes. As the least substantial portion of the appeal, we ordered PWW to pay one sixth of the costs of appeal. The second contention of UPRC is that the Burkes lack standing due to their filing a bankruptcy action. UPRC argues the trial court erred in failing to dismiss the Burkes' suit. Standing is a component of subject matter jurisdiction; it cannot be waived and may be raised at any point. Anderson v. New Prop. Owners' Ass'n, 122 S.W.3d 378, 384 (Tex. App.—Texarkana 2003, pet. denied). Once a bankruptcy petition is filed, the estate takes ownership of all the debtor's property, including his or her causes of action. 11 U.S.C.A. § 541(a) (West 1993); Douglas v. Delp, 987 S.W.2d 879, 883 (Tex. 1999); Texas-Ohio Gas, Inc. v. Mecom, 28 S.W.3d 129, 143 (Tex. App.—Texarkana 2000, no pet.); Carter v. Carter, 21 S.W.3d 441, 443 (Tex. App.—San Antonio 2000, no pet.). However, "where an action is pending prior to the commencement of a bankruptcy proceeding a trustee has three options: (1) to assume prosecution of the pending action; (2) to consent to the debtor's continued prosecution of the action for the trustee's benefit; or (3) to decline to prosecute the pending actions if it appears the prosecution would be fruitless." Carter, 21 S.W.3d at 443. This suit was pending at the time the Burkes declared bankruptcy. On January 12, 2000, the Burkes joined UPRC to the pending suit against PWW. On December 14, 2000, the Burkes filed for bankruptcy. Thereafter, the bankruptcy trustee joined this suit with the Burkes. In taking this action, it appears the bankruptcy trustee chose two of the possible options. He both assumed prosecution and consented to the debtor's continued prosecution for the trustee's benefit. The Fourteenth District Court of Appeals has suggested that, if a bankruptcy trustee has notice of a pending suit and does not intervene, he is deemed to have consented to the prosecution. Sommers v. Concepcion, 20 S.W.3d 27, 38–39 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (suit by a trustee is barred due to res judicata when he had notice of the debtor's prior prosecution). As a party, the trustee clearly had notice that the Burkes were continuing to prosecute the case. Therefore, we find the trustee consented to the prosecution and the Burkes have standing. Any recovery will inure to the trustee's benefit for the bankruptcy estate. We overrule UPRC's supplement to their motion for rehearing. For the reasons stated, we overrule the motions for rehearing by PWW and UPRC. In accordance with the suggestion of a remittitur, the Burkes have filed a remittitur of $653,700.00. We modify the judgment of the trial court and, as modified, we affirm the Burkes' recovery of $842,300.00, plus prejudgment interest of $358,552.84 and postjudgment interest at the rate of ten percent per annum. Jack Carter Justice Date: June 9, 2004