Stacey Montgomery v. State

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS STACEY MONTGOMERY, Appellant, v. THE STATE OF TEXAS, Appellee. § § § § § § No. 08-02-00372-CR Appeal from the 383rd Judicial District Court of El Paso County, Texas (TC# 20020D00047) M E M O R A N D U M O P I N I O N Appellant appeals her conviction for criminally negligent homicide. Appellant was charged with intoxicated manslaughter and manslaughter but found guilty by a jury of the lesser-included offense of criminally negligent homicide. The judge sentenced her to eight (8) years in the Texas Department of Criminal Justice. We affirm the judgment of the trial court. I. FACTUAL SUMMARY On August 27, 2000, MiChele Danette Williams was at Allen's Lounge with Rita Suzanne Young ("Susie") near the intersection of McCombs and Sun Valley in El Paso. Donna Gale and Charlotte Clark were also at Allen's that evening. MiChele knew Appellant and saw her at Allen's between 10 p.m. to 10:30 p.m. that evening. MiChele saw Appellant drink one and a half beers and had about the same herself. MiChele heard Appellant state that she had been bar hopping and had come from the Iron Horse Lounge. However, Donna testified that Appellant told her she had just come from the Greek food festival. MiChele stated that Allen's was the only bar she had been to that night and that she was not intoxicated. To the contrary, Susie testified that she and MiChele had been at Allen's all day long and that MiChele had been drinking a bottle of Bacardi Gold, not 151, and Michelob since 11:30 a.m and that the rum was gone at the end of the night. MiChele testified that she had worked as a medical specialist in the Army for about five years and that she was familiar with the characteristics of persons under the influence of drugs or alcohol. MiChele described Appellant as talking loudly that evening and going from customer to customer in rapid succession and gesturing. MiChele felt that Appellant was acting consistent with cocaine intoxication. MiChele retired from the Army due to surgery which severed her right perennial nerve causing her to limp and requiring the use of a brace. Susie did not believe that Appellant was intoxicated but that she was hyper and described her as "coked up." Donna did not believe that Appellant was intoxicated or under the influence of drugs. In fact, Donna described Appellant as bubbly and energetic that evening, like her normal self. Charlotte also believed that Appellant was sober and not under the influence of drugs. But, Donna and Charlotte did believe that MiChele was intoxicated. (Further, Donna and Charlotte saw a bottle of 151 on MiChele's table at the bar. Both Donna and Charlotte insisted that MiChele had parked her van in front of the door at the lounge that night. When Appellant approached MiChele's table, MiChele got up and left and went outside to her van, which was parked behind the 7-Eleven next door. Susie also testified that MiChele probably parked behind the 7-Eleven. However, Susie testified that Appellant joined her and MiChele at the table and that MiChele did not get up and leave. Donna did not see MiChele leave; however Charlotte did. In addition, MiChele denied that her van was parked in front of the Lounge's door. MiChele did not see Appellant leave Allen's. MiChele's van was parked close to the street, and she had a clear view of the Sun Valley McCombs intersection. At this time, Marjorie Ramos was sitting in the car in front of the 7-Eleven waiting for her husband. Marjorie saw Appellant enter the store and get in her car and leave. MiChele saw a motorcycle with lights on crossing McCombs and going east on Sun Valley heading MiChele's direction with a green light. There was a substantial dip in the road at the intersection, and MiChele did not believe that the motorcycle driver was speeding since she did not hear a thunderous roar. Further, the motorcycle driver was not driving erratically. Marjorie also saw the motorcycle from a side profile; she also did not believe that the motorcycle was speeding. Appellant's car was coming out of the second 7-Eleven exit. MiChele was not sure if Appellant made a compete stop but noticed that Appellant failed to look the other direction. Appellant pulled out and traveled east on Sun Valley crossing two lanes of westbound traffic and failed to yield the right of way pulling out in front of the motorcycle. Appellant's car was not completely in the lane. Then, the motorcycle slammed into the back of Appellant's car. MiChele saw the motorcycle driver flip over the bike and hit the ground while the bike slid down the street. Marjorie did not see the accident but heard the impact. MiChele ran toward the vehicles, but the car kept going down the road. It was when the driver looked over her shoulder that MiChele realized it was Appellant. MiChele was calling for Appellant to stop, which she finally did. Marjorie did not notice if MiChele was yelling for Appellant to stop or chasing her car. Marjorie went over to the body where she took the driver's pulse; MiChele met her there shortly after. MiChele also felt for a pulse and got blood on her hands. The motorcycle driver was later identified as David Molina. Neither MiChele nor Marjorie smelled alcohol on the motorcycle driver. Marjorie did not believe that MiChele was intoxicated. Appellant got out of her car and walked back to the scene and asked what happened. Appellant stated that the motorcycle rear-ended her. Then, Appellant sat on curb and waited for the police. Marjorie described Appellant as nervous and panicky. MiChele's friend called 911, and the fire department, ambulance, and police arrived. MiChele spoke with the police but did not give a written statement. Further, MiChele insisted that she saw the accident and did not walk out of the bar only after hearing the accident. Susie testified that she heard the crash approximately thirty to forty-five minutes after Appellant left the bar and that MiChele was sitting with her at a table, not outside witnessing the accident. Further, Susie stated that it was her who took the decedent's pulse, not MiChele. Susie went back inside the lounge after EMS arrived. Donna went outside because someone came into the bar and said that there was an accident outside. Charlotte testified that MiChele had already left Allen's when someone came in about the accident. Donna testified that MiChele stated that she did not know what happened and that she came over when she heard the crash and realized that Appellant had hit someone and killed him. MiChele never told Donna that she saw the accident and Donna stated that MiChele was confused about what was going on. Officer Wesley Hauk and his partner Officer Rose Smith arrived at the scene shortly after 11 p.m. Hauk saw the motorcycle driver on the asphalt and Appellant sitting on the curb. Officer Smith secured the scene. Hauk first spoke to the Appellant to get her side of the story. Appellant was hysterical, depressed, and moody. One minute she was calm and normal, then the next she was speaking rapidly and crying. Appellant told Hauk that she had been at Allen's where she had a couple of beers slowly and then went to the 7-Eleven. When leaving the 7-Eleven, she looked both ways, turned left onto Sun Valley going east, and the bike struck her. Next, Hauk spoke with the bartender at Allen's and two witnesses--one Hispanic and one black-- who saw the accident. Hauk believed the two witnesses were competent and did not feel that either was intoxicated. While Hauk spoke with others, he did not feel that they were credible witnesses. Appellant was placed in the squad car for her protection. Hauk stated that a driver leaving private property has to yield right of way to vehicles on a public access road. Hauk believed that Appellant was on something, but no sobriety tests were given. The police report stated that the decedent's intoxication was a factor contributing to the accident. Further, the report cited Appellant's failure to yield the right of way and her being under the influence of alcohol as contributing to the accident. Hauk stayed at the scene until the motorcycle driver was taken away, then Appellant was arrested for intoxication manslaughter and taken to the Mission Valley substation to give a breath sample. Appellant blew a .077 and a .073. Hauk was then instructed to take Appellant to Thomason Hospital to give a blood sample. The testing of Appellant's blood resulted in a .64 milligrams per liter concentration of benzoylecgonine, a cocaine metabolite. Further, there were slight indications of cocaine. However, the Texas Departement of Public Safety ("TDPS") crime lab was unable to determine what amount of cocaine was in Appellant's system at the time of the accident. After the sample was taken, Appellant was transported to jail. Officer Ricky Hoss was called out to the scene around 11 p.m. and arrived at 11:30 p.m.. Upon his arrival with his partner Officer Jesse Eckerd, the drivers had been removed and only the vehicles remained. The officers then diagramed the scene. No skid marks were found, only gouge marks. Further, the speed of the vehicles could not be determined. However, Hoss stated that due to the dip in the road, the motorcycle driver could not have been excessively speeding or he would have probably lost control or bottomed out. Upon examining Appellant's car, Hoss found damage to the back right and to the left side and top. The motorcycle contacted the car at the back right then the body came up to the top of the hood and rolled off to the side. Upon examining the motorcycle, Hoss found it had low ground clearance, so the driver would have had to be more careful than drivers of other bikes. Further, there were gouge marks on the frame going sideways and white paint on the front tire. Officer Miguel Chavez inventoried and impounded Appellant's car. An unopened twelve-pack of beer was found on the backseat. Further, Chavez found a bottle vial behind the front passenger seat in front of the rear floor mat containing a substance which tested positive as cocaine. Dr. Juan Contin, El Paso County Medical Examiner, performed the autopsy on the decedent. Dr. Contin noted abrasions and scratches on decedent's forehead, nose, and upper lip. Further, he suffered a hemorrhage in the right occipital area of his brain, a diffused subarachnoid hemorrhage, laceration of his right cerebellum lobe, contusions on his cerebellum lobe and the cortex of the brain, a fracture of the right occipital bone, and a thick collection of blood on the surface of the brain. Contin testified that decedent was intoxicated at the time of the accident with a blood alcohol level of .238, which would make it difficult to operate an automobile. Further, a patron of the Iron Horse Saloon testified that he saw the decedent there that evening around 6 p.m. and that he was served at least two beers and left between 8 p.m. and 9 p.m.. The examiner noted that the decedent may not have sustained such injuries had been wearing a helmet. Last, Contin noted that at a blood alcohol concentration of .30, it was possible for people to pass out. The cause of decedent's death was head injury sustained in a motor vehicle/motorcycle accident. Harry E. Kirk, a private investigator hired by the defense, testified that it took an average of seven seconds to cross the two westbound lanes and enter the eastbound lane of traffic. Using a four second interval, he determined that if a person was going 30 mph, the vehicle's brakes were working, and the driver was attentive to his driving, then he should have stopped short of the collision point. Kirk concluded that the accident occurred because the motorcycle driver did not react to danger due to his intoxication, which was backed up by the lack of skid marks. II. DISCUSSION A. FACTUAL INSUFFICIENCY In Point of Error No. One, Appellant argued that the evidence was factually insufficient since the decedent caused his own death. Appellant asserted that the decedent's death was the sole result of the decedent's own acts and omissions. 1. Standard of Review When conducting a factual sufficiency review, we consider all of the evidence, both admissible and inadmissible, but we do not view it in the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Levario v. State, 964 S.W.2d 290, 295 (Tex. App.--El Paso 1997, no pet.). We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997). A defendant challenging the factual sufficiency of the evidence may allege that the evidence is so weak as to be clearly wrong and manifestly unjust, or in a case where the defendant has offered contrary evidence, he may argue that the finding of guilt is against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11. Although we are authorized to set aside the fact finder's determination under either of these two circumstances, our review must employ appropriate deference and should not intrude upon the fact finder's role as the sole judge of the weight and credibility given to any evidence presented at trial. Id. at 7. We are not free to reweigh the evidence and set aside a verdict merely because we feel that a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997); Clewis, 922 S.W.2d at 135. 2. Criminally Negligent Homicide & Concurrent Causation Criminally negligent homicide involves causing the death of another by criminal negligence. Tex. Pen. Code Ann. § 19.05(a) (Vernon 2003). Criminal negligence requires a lesser culpable mental state than recklessness. Tex. Pen. Code Ann. § 6.03(c), (d) (Vernon 2003); see Conroy v. State, 843 S.W.2d 67, 71 (Tex. App.-- Houston [1st Dist.] 1992, pet. ref'd). Criminal negligence involves inattentive risk creation; the actor ought to be aware of the risk surrounding his conduct or the results thereof. Lugo v. State, 667 S.W.2d 144, 147-48 (Tex. Crim. App. 1984); Lewis v. State, 529 S.W.2d 550, 553 (Tex. Crim. App. 1975); Todd v. State, 911 S.W.2d 807, 814 (Tex. App.--El Paso, 1995 no pet.). A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient. Tex. Pen. Code § 6.04(a) (Vernon 2003). Thus, under this section, two combinations may exist to satisfy the requisite causal connection between the Appellant's conduct and the harm that followed: (1) the Appellant's conduct may be sufficient by itself to have caused the harm, regardless of the existence of a concurrent cause; or (2) the Appellant's conduct and the other cause together may be sufficient to have caused the harm. Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986); Umoja v. State, 965 S.W.2d 3, 9 (Tex. App.--Fort Worth 1997, no pet.). Section 6.04(a) also defines and limits the "but for" causality for concurrent causes with its last phrase, "unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient." Robbins, 717 S.W.2d at 351; Umoja, 965 S.W.2d at 9. If the additional cause, other than the defendant's conduct, is clearly sufficient by itself, to produce the result and the defendant's conduct, by itself, clearly insufficient, then the defendant cannot be convicted. Id. 3. Appellant's Arguments Appellant argued that her conduct that evening was clearly insufficient to have caused the decedent's death but that the decedent's acts and omissions were clearly sufficient to have caused his death. In fact, Appellant contended that the decedent would have lived had he not been intoxicated near the point of unconsciousness and had worn a helmet. Further, Appellant argued that Williams's testimony that she witnessed the accident was untenable and she failed to make a written statement and had no document from which to refresh her memory of the accident. Next, Appellant argued that Donna and Charlotte both testified that Williams was intoxicated that night and that she had parked her van in front of the bar, not behind the 7-Eleven next door. In addition, the Appellant argued that the jury clearly rejected the State's evidence trying to show she was intoxicated at the time of the accident and that she fully cooperated with police. Last, Appellant relied on Kirk's testimony that the primary cause of the accident was the decedent's inability to react due to his intoxication. Thus, Appellant asserted that the evidence was factually insufficient to support the jury's rejection of her concurrent causation defense. Viewing the evidence in a neutral light, we examine Appellant's argument regarding insufficient evidence of causation. One of two scenarios must be present for Appellant to have been criminally responsible: (1) the Appellant's conduct may be sufficient by itself to have caused the harm, regardless of the existence of a concurrent cause; or (2) the Appellant's conduct and the other cause together may be sufficient to have caused the harm. Id. Evidence tending to support Appellant's conduct being sufficient by itself is as follows: (1) MiChele testified that she witnessed the accident and that Appellant failed to yield the right of way; (2) Marjorie testified that while she did not see the collision that she heard the impact and had seen Appellant leaving the 7-Eleven and the motorcycle driving by on Sun Valley; (3) several witnesses testified that Appellant had been drinking that evening; (4) MiChele believed that Appellant was intoxicated; (5) two witnesses described Appellant as being under the influence of drugs; and (6) Officer Hauk believed that MiChele and Marjorie were credible witnesses and did not believe that MiChele was intoxicated that evening. Evidence tending to support Appellant's conduct being insufficient by itself is as follows: (1) the motorcycle driver smelled of alcohol and had a blood alcohol level of .238; (2) Susie testified that MiChele could not have seen the accident since she was inside the lounge at the time of the collision; (3) Donna testified that MiChele told her she did not know what happened and that MiChele never told her she witnessed the accident; (4) Appellant told the officer that she was leaving the 7-Eleven and looked both ways before entering Sun Valley; (5) several witnesses testified that MiChele was intoxicated that evening; and (6) several witnesses testified that Appellant was not intoxicated or under the influence of drugs. Evidence tending to support concurrent causation is as follows: (1) the police report noted the motorcycle driver's intoxication as a contributing factor to the accident; (2) the report also noted Appellant's failure to yield the right of way and her being under the influence of alcohol as contributing factors to the accident; (3) Appellant blew .077 and .073 in a breath test; (4) Appellant had a .64 milligram per liter concentration of a cocaine metabolite in her blood and slight indications of cocaine; and (5) the medical examiner testified that the cause of the motorcycle driver's death was head injury sustained in a motor vehicle/motorcycle accident. Evidence tending to disprove concurrent causation is as follows: (1) there were no skid marks at the scene; (2) the motorcycle driver had been at the Iron Horse Saloon earlier that evening; (3) the motorcycle driver had a blood alcohol concentration of .238, which the medical examiner testified could impair his ability to operate a motor vehicle; (4) the medical examiner testified that a person could pass out at a blood alcohol concentration level of .30; (5) the medical examiner admitted that had the motorcycle driver been wearing a helmet he might not have sustained the injuries he received; and (6) the defense's investigator testified that the cause of the accident was the motorcycle driver's failure to react to the danger due to his intoxication. In weighing the evidence noted above, we do not find the evidence supporting Appellant's criminal responsibility to be so weak as to be clearly wrong and manifestly unjust nor the jury's finding of guilt against the great weight and preponderance of the evidence. Johnson, 23 S.W.3d at 11. Our review must employ appropriate deference and should not intrude upon the fact finder's role as the sole judge of the weight and credibility given to any evidence presented at trial. Id. at 7. We are not free to reweigh the evidence and set aside a verdict merely because we feel that a different result is more reasonable. Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 135. Accordingly, we find that the evidence is factually sufficient to support Appellant's conviction and overrule Point of Error No. One. B. OPPORTUNITY TO IMPEACH AND CROSS EXAMINE In Point of Error No. Two, Appellant argued that she was denied her right to present a defense since the court did not allow her to effectively impeach and cross examine witness MiChele Williams. Appellant asserted that during the direct examination of Donna Gale, defense counsel tried to impeach MiChele by establishing that MiChele did not actually witness the accident. Further, Appellant complained that during Donna's testimony, defense counsel tried to elicit statements made by MiChele to Donna just after the accident and that the court erroneously excluded the testimony based on hearsay objections by the State. Appellant argued that the statements by MiChele were not hearsay. 1. Trial Testimony During the defense counsel's direct of Donna, the following exchange occurred: Q. What happened after Ms. Montgomery left the bar that evening? A. I was just sitting there. I was finishing my beer, and Charlotte was playing the machine. And then someone came in, a couple of friends of mine, said that, "What's going on outside?" And I said, "Well, I don't know. I didn't hear anything." They said, "There's a fire truck going and there was an accident out there." And that's when Rick said, "And your friend -- your friend is out there." And the only one I knew was Stacey that was there that -- that night -- I mean, you know, that had gone." Q. So what did you do after that? A. That's when I went outside, and I came out -- I had to go around Chele's van, and I came down here, and Chele was standing about right here. Approximately, the motorcycle was somewhere here, and Chele was standing there-- Q. Okay. A. -- okay? I walked up to Chele, and I asked her what happened. And she said, "I don't know. I heard the crash, and I came over to see. Stacy hit somebody and killed him." Q. Did she state to you that she saw the accident? A. No, she never -- she said -- she said, "I don't know what happened. I heard the crash, and I came over." Q. Are you sure of that? A. Yes. Q. She didn't tell you that she saw the accident, and she ran down the block to stop Ms. Montgomery from driving off? A. No. She never -- in fact, she was just standing there, and I asked her if -- she said, " I was" -- State: Your Honor, I'm going to object to any hearsay. Court: Sustained. Defense: Your Honor, for impeachment purposes. She is contradicting the statements that Ms. Williams stated that evening. Court: That's still hearsay. State: Yeah, there's no exception. Q. She never told you she saw the accident? A. No. State: Your Honor, I'm going to object to any hearsay. Court: Sustained. 2. Applicable Law A defendant has the right to present a defensive theory. Washington v. Texas, 388 U.S. 14, 18, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). "The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law." Id. at 19, 87 S.Ct. at 1923, 18 L.Ed.2d at 1019. In Coleman v. State, 545 S.W.2d 831, 832 (Tex. Crim. App. 1977), the defendant was convicted of possession of cocaine. Appellant was alleged to have intentionally possessed an unweighable quantity of cocaine: a trace amount. Id. The record revealed that 1/280,000 of an ounce was weighable. Id. Other than the chemist's testimony and that of the witness from the Automobile Records Department of Bell County who identified the defendant as being the record owner of the vehicle in which he was stopped while driving, the only evidence presented by the State was the testimony of the arresting officer. Id. On appeal, the defendant argued that the unweighable trace amount of cocaine was planted on him by the arresting officer, and the defendant attempted to support this defense by his own testimony and the testimony of two other defense witnesses to the effect that members of the Killeen Police Department severely disliked him and that this dislike began before the time of his arrest and continued until the day of his trial. Id. The Court of Criminal Appeals found that in depriving the defendant of the right to show the relationship and the attitude of the Killeen Police Department toward him, the trial court erred for two reasons: (1) The defendant had the right to impeach the arresting officer's credibility by showing him to be a past member of a class who has been and will continue to be severely prejudiced against appellant, and (2) the defendant had the right to support his defensive theory. Id. Thus, the court held that in excluding the defense's proffered testimony, the trial court not only denied appellant a defensive theory, it denied him the only defense he had. Id. Further, defendants have a right to cross examine witnesses. U.S. Const. amend. VI; Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965). Cross examination serves three general purposes: (1) to identify the witness with his community so that independent testimony may be sought and offered concerning the witness's reputation for veracity in that community; (2) to assess the credibility of the witness; and (3) to allow facts to be brought out tending to discredit the witness by showing that his testimony in chief was untrue or biased. Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996), (citing Alford v. United States, 282 U.S. 687, 691-92, 51 S.Ct. 218, 219, 75 L.Ed. 624 (1931)), (citing Tla-Koo-Yel-Lee v. United States, 167 U.S. 274, 17 S.Ct. 855, 42 L.Ed. 166 (1897)). 3. Application to Facts The State's most significant witness was MiChele, who was also the sole witness of the accident and who stated that Appellant failed to yield the right of way. Appellant's defense was that the motorcycle driver ran into her and failed to react to the danger due to his intoxication. At trial, the defense cross examined MiChele during the State's case in chief. First, the defense questioned MiChele about her ability to have run after the Appellant's car trying to get Appellant to stop since she had suffered a leg injury and had to use a brace. Second, the defense cross examined MiChele as to whether she parked in front of the door of Allen's Lounge rather than behind the 7-Eleven. Third, defense counsel cross examined MiChele regarding whether she really walked out of the lounge after the accident occurred, rather than before as she testified on direct. The defense at no time complained that it was denied the ability to cross examine MiChele. In addition, the defense was able to impeach MiChele's testimony during its case in chief. Both Donna and Charlotte testified that MiChele had actually parked in front of the lounge's door rather than in an adjoining parking lot. Donna testified that MiChele told her she did not know what happened at the accident. Further, Donna testified that MiChele never told her she witnessed the accident. Susie testified that there was no way MiChele saw the accident since she was seated with her at a table when the accident occurred. Last, Donna and Charlotte testified that MiChele seemed intoxicated, and Susie testified that MiChele had been at the lounge since 11a.m. that morning and drinking since 11:30 a.m. Thus, we find that Appellant was not denied her right to cross examine or impeach MiChele. First, defense counsel had the opportunity to adequately cross examine MiChele regarding any contradictory testimony. See Carroll, 916 S.W.2d at 497. Second, the State did not object to the defense's direct of Donna until defense counsel asked Donna to repeat whether MiChele ever told her see witnessed the accident. The fact that MiChele did not tell Donna she was a witness to the accident had already been allowed into evidence. Thus, Appellant was not denied an opportunity to present a defensive theory. See Washington, 388 U.S. at 18, 87 S.Ct. at 1923, 18 L.Ed.2d at 1019. Accordingly, Appellant's Point of Error No. Two is overruled. Having overruled each of Appellant's points of error, we affirm the judgment of the trial court. September 10, 2004 RICHARD BARAJAS, Chief Justice Before Panel No. 2 Barajas, C.J., McClure, and Chew, JJ. (Do Not Publish)