James Ellis Chandler v. State

Chandler v. State WITHDRAWN IN THE TENTH COURT OF APPEALS No. 10-91-120-CR No. 10-91-121-CR      JAMES ELLIS CHANDLER,                                                                                               Appellant      v.      THE STATE OF TEXAS,                                                                                               Appellee From the 40th District Court Ellis County, Texas Trial Court Nos. 18,251 & 18,252                                                                                                     O P I N I O N                                                                                                           Juries convicted James Chandler in separate trials of aggravated robbery and robbery and assessed him a life sentence for each offense. His appeals are consolidated for disposition as they each assert essentially the same complaints. Chandler complains about a "tainted" in-court identification, the admission of testimony relating to a prior conviction, the admission of an extraneous offense during the guilt phase and evidence of unadjudicated offenses at the punishment stage, the denial of a continuance, and the charge on the burden of proof. We will remand for a new punishment hearing in one cause and reverse and remand for a new trial in the other.       The grand jury indicted Chandler for the armed robbery of a One Stop Grocery store clerk that occurred on September 21, 1990, and for the September 25 armed robbery of the clerk of the Corner Store. Both crimes occurred in Waxahachie. Each indictment also alleged two prior felony convictions for enhancement: possession of a controlled substance and murder. Chandler was convicted of robbery for the September 25 offense and aggravated robbery for the September 21 crime. The juries that convicted him assessed a life sentence in each trial.                                                     IDENTIFICATION       Kathy DeFore and Betty Wade, the victims of the two robberies, both identified Chandler in a photo array and in a "live" lineup. Following a suppression hearing, the court later ruled that the lineup identification was inadmissible. However, DeFore and Wade made an in-court identification of Chandler as the person who robbed them. Each testified that their in-court identification was based solely on having observed him during the robbery and was not affected by either the pretrial photo array or lineup.       In his first common points, Chandler asserts that the court erred in allowing the robbery victims to make an in-court identification of him over his objection. He argues that DeFore's and Wade's identifications were tainted by the inadmissible lineup because, after identifying him in such a lineup, they would base their in-court identifications on the lineup rather than on an independent identification of him at the time of the offense. Their descriptions of the robber were flawed, he says, because they were in a state of excitement during the robberies and because the robbery episodes only lasted for 30 seconds. He points out that the victims never mentioned the tear-drop tattoo near his eye and described him as being shorter and thinner than he really is.       The State counters these arguments, however, by pointing out that DeFore and Wade accurately describe Chandler by hair length, glasses, baseball cap, and unshaven appearance, that they never identified any person other than him as the robber, that they each had adequate time under good lighting conditions to observe him up close during the offense, and that they identified him in a photo array only two or three days after the robberies took place.       A court should consider several factors when determining the admissibility of in-court identifications when an inadmissible out-of-court identification has occurred: (1) the witness's prior opportunity to observe the alleged criminal act; (2) whether there is a discrepancy between any pre-lineup description of the criminal and the defendant's actual description; (3) any identification of the defendant prior to the lineup by another person; (4) the identification by picture of the defendant prior to the lineup; (5) failure to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the lineup identification. United States v. Wade, 388 U.S. 218, 241, 87 S.Ct. 1926, 1940 (1967). The Court in Wade noted the probability that, once the accused is identified from an inadmissible out-of-court identification, the identifying witness is unlikely to go back on his word in making an in-court identification. Id., 388 U.S. at 229, 87 S.Ct. at 1940. However, even if the pretrial identification is inadmissible, that does not make the in-court identification inadmissible per se. Id. 388 U.S. at 240 n. 32, 87 S.Ct. at 1939 n.32.       "A defendant who contends on appeal that a trial court erred in allowing an in-court identification of him by a complaining witness has a difficult and heavy burden to sustain, for unless it shows by clear and convincing evidence that a complaining witness' in-court identification of a defendant as the assailant was tainted by improper pre-trial identification procedures and confrontations, the in-court identification is always admissible." Jackson v. State, 628 S.W.2d 446, 448 (Tex. Crim. App. 1982).       Considering all the evidence, Chandler has failed to meet his burden of showing by clear and convincing evidence that the in-court identifications were tainted by improper pre-trial identification procedures. Point one is overruled in each cause.       Chandler asserts in each of his second points that the court erred in overruling his objection to evidence of a pretrial photographic identification and in admitting the in-court identifications. He argues that the in-court identification was tainted by the photographic identification.       On the day of the robberies, the victims were shown a photo array of five or six males, but they could not make an identification of the robber. A few days later, however, the victims picked Chandler's photo out of a second array of five to six males. Chandler contends the second array was impermissibly suggestive because his photo stood out as having a different background and because it obviously appeared to be a jail "mugshot." The State argues, however, that any differences in the photographs were minimal and that all photographs were of white males of Chandler's approximate age.       A two-step analysis is used to determine the admissibility of an in-court identification based on a photographic identification. First, the trial court must determine whether the pretrial procedure is impermissibly suggestive. Herrera v. Collins, 904 F.2d 944, 946 (5th Cir. 1990). Second, it must determine from the totality of the circumstances whether the suggestiveness, if any, leads to a substantial likelihood of irreparable misidentification. Id. Thus, a conviction based on an in-court identification following a suggestive pretrial photographic identification will be set aside only if the nature of the photographic identification procedure gives rise to a very substantial likelihood of irreparable misidentification. Id. at 384. Once an out-of-court procedure is determined to be impermissibly suggestive, the court is to consider the Wade factors to determine if this suggestiveness leads to a substantial probability of irreparable misidentification. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 381-82, 34 L.Ed.2d 401 (1972).       The photographic array that Chandler attacks as impermissibly suggestive contains pictures of virtually the same size, with the subjects in similar poses, and none with striking differences in personal appearance, dress or age. The officer presenting the photo array and the victims all testified that the officer did not attempt to influence the identification of Chandler from the array. Based on the evidence, the court could have reasonably found that Chandler's photo and the array were not so impermissibly suggestive as to lead to a very substantial likelihood of an in-court misidentification. Accordingly, we cannot say that the court abused its discretion when it admitted the in-court identifications. Both second points are overruled. UNADJUDICATED ACTS       The indictment charging Chandler with the September 25 robbery went to trial first. Betty Wade, the victim in the September 25 offense, identified Chandler as the robber during the guilt-innocence stage. Kathy DeFore, the victim of the September 21 robbery, testified over defense objections during the punishment phase that Chandler also robbed her on September 21, describing the details of the prior robbery. Of course, Chandler's guilt for the September 21 robbery had not yet been adjudicated. Over Chandler's objection, the court also allowed Wanda Thompson, whom Chandler had robbed in Anderson County on September 24, 1990, to identify him as the robber and to relate the details of that offense. Thompson said she was afraid that Chandler was going to kill her in the September 24 robbery. The Anderson County offense had not yet been tried and thus also was unadjudicated.       In the separate trial for the September 21 robbery, Kathy DeFore testified on guilt that Chandler robbed her on that date. Over an extraneous-offense objection, the court also allowed Betty Wade to testify during the guilt phase that Chandler had robbed her on September 25. Wade described the details of that offense. Chandler's conviction for the September 25 robbery was being appealed when the second case was tried, and thus his guilt for the September 25 offense was not yet finally adjudicated.       In common third points, Chandler contends the court erred in admitting evidence of unadjudicated offenses during punishment. Unadjudicated acts of misconduct are not admissible during the punishment phase of non-capital offenses. Grunsfeld v. State, No. 1037-91, slip op. at 2 (Tex. Crim. App. October 28, 1992); Blackwell v. State, 818 S.W.2d 134 (Tex. App.—Waco 1992). Therefore, the court erred when it allowed DeFore and Thompson to testify in the trial of the September 25 robbery about two prior robberies, both of which were then unadjudicated acts of misconduct on Chandler's part.       Wade, the victim in the September 25 robbery, testified during the second trial for the September 21 robbery, but her testimony was admitted during the guilt-innocence phase. Chandler correctly cites to the statement of facts of the guilt stage where his objection is located and Wade's testimony is reflected, but he frames his point of error as a complaint that Wade's testimony was improperly admitted on punishment. We will treat his point substantively as alleging error in admitting Wade's testimony on guilt, which is consistent with references to the record and the substance of the argument under the point. See Tex. R. App. P. 74(d), (p).       Extraneous offenses, whether or not finally adjudicated, are inadmissible on guilt unless they have a relevancy apart from purportedly showing the propensity of the defendant to act in conformity with a particular character trait. Tex. R. Crim. Evid. 404(a), (b); Mayes v. State, 816 S.W.2d 79, 86 (Tex. Crim. App. 1991). Evidence that Chandler had committed the September 25 robbery had no relevancy apart from showing his propensity to commit armed robberies. Thus, the court erred when it allowed Wade to testify about Chandler's having robbed her four days after robbing DeFore. See id.       Applying the criteria for determining whether the errors were harmless, we cannot conclude beyond a reasonable doubt that the error during the punishment phase of the trial of the September 25 robbery did not contribute to Chandler's punishment. See Tex. R. App. P. 81(b)(2); Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989). Although the jury had before it evidence that Chandler had committed two prior felonies—possession of a controlled substance and murder—one simply cannot conclude beyond a reasonable doubt that the jury in determining punishment would have ignored and been unaffected by evidence he had been recently involved in a robbery spree.       The second error occurred during the guilt phase of the trial of the September 21 offense. Again, using the guidelines in Harris for determining harmless error, we cannot conclude beyond a reasonable doubt that evidence of the September 25 robbery did not contribute to either Chandler's guilt or punishment. See id.       We sustain the third point in both causes. Chandler also complains in his fourth points that the court improperly admitted State's exhibit number four, a pen packet, during the punishment stage over his objection that it contained references to non-final extraneous offenses. These complaints are not reached because of our disposition of the third points. REFUSAL OF CONTINUANCES       In a fifth point in each cause, Chandler complains that the court erred when it denied his motion for a continuance and required him to proceed to trial without a material witness who was unavailable. "The granting or denial of a motion for continuance is vested in the sound discretion of the trial court, and reversal of a judgment is justified only when it is shown [that] the trial court has abused its discretion." Hernandez v. State, 643 S.W.2d 397, 399 (Tex. Crim. App. 1983). Apparently, the unavailable witness would have testified that another individual matched Chandler's physical description. The court did not abuse its discretion when it refused to grant a continuance to find and produce such a witness. Point five is overruled in both causes.       In his sixth points, Chandler complains that the court erred in denying his motion for a continuance and requiring him to proceed to trial the day after the court ruled on his pretrial discovery motion. We overrule these points for the reasons given in connection with point five. BURDEN OF PROOF        Chandler's final complaint is that the court failed to instruct the jury on the burden of proof. However, the record reflects that the court included the standard instruction on the burden of proof and properly applied that burden to the facts in each charge on guilt-innocence. We overrule point seven in each cause. DISPOSITION       Reversible error having occurred during the guilt stage of Cause No. 91-120-CR, we reverse the judgment in its entirety and remand that cause for a new trial. Finding no error during the guilt stage of Cause No. 91-121-CR, but concluding that reversible error occurred during the punishment portion of the proceeding, we affirm the conviction in that cause but remand for a new punishment hearing. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 1993).                                                                                       BOB L. THOMAS                                                                                      Chief Justice Before Chief Justice Thomas,       Justice Cummings, and       Justice Vance Cause No. 91-120-CR reversed and remanded Cause No. 91-121-CR remanded for new punishment       hearing Opinion delivered and filed February 3, 1993 Do not publish [OPINION WITHDRAWN 2-10-93] eference>[5] Any other result would defeat the policy’s language, Ed’s intent, and the AID’s purpose. Furthermore, but not critical to our holding, it appears from the record that the $124,882.03 Lincoln National policy, which was listed in the AID along with the two State Farm policies as security for the alimony, satisfied the AID’s requirement that Ed maintain those policies in an amount sufficient to pay the outstanding alimony amount. When Ed made Toni the State Farm beneficiary in August 2002, the alimony payable to Linda was $120,000. Cf. Korzekwa v. Prudential Ins. Co., 669 S.W.2d 775, 778 (Tex. App.—San Antonio 1984, writ dism’d w.o.j.) (holding that husband’s beneficiary change from former wife to daughter, in violation of temporary order, was not voided where estate had sufficient assets to reimburse former wife). Because the Lincoln National policy satisfied the amount of outstanding alimony payable to Linda, Ed was free, under the AID, to change the State Farm $500,000 policy beneficiary to Toni.          The trial court did not err in finding Toni to be the rightful beneficiary. We overrule Lisa’s three issues. State Farm’s Article 21.55 Liability          State Farm complains of the trial court’s award of attorney’s fees, statutory penalties and their calculation, and prejudgment interest.          In its first issue, State Farm argues that the trial court erred by assessing penalties and attorney’s fees, asserting that, as a matter of law, Toni was not a claimant under Article 21.55 and that its filing of the interpleader action invoked a common-law exception to Article 21.55 liability.          Article 21.55 of the Texas Insurance Code, the Prompt Payment of Claims Act, requires an insurer to follow certain procedures and meet certain deadlines when it receives, accepts, rejects, or pays an insurance claim. See Tex. Ins. Code Ann. art. 21.55 (Vernon Supp. 2004-05). The stated purpose of the Act is to require insurers to promptly pay claims. Id. § 8; see also Creighton v. Barnes, 257 S.W.2d 101, 104 (Tex. 1953) (“Prompt payment of life insurance to those who are beneficiaries is of inestimable importance to those who are left behind at the death of an insured. Delay and confusion resulting in unnecessary hardships should be avoided.”).          The elements of an Article 21.55, section 6 claim are: (1) a claim under an insurance policy; (2) the insurer is liable for the claim; and (3) the insurer has failed to follow one or more sections of Article 21.55 with respect to the claim. Tex. Ins. Code Ann. art. 21.55 § 6; Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291 (Tex. 2001). If an insurer delays payment of a claim following its receipt of properly requested items for more than sixty days, the insurer shall pay damages of, in addition to the amount of the claim, 18% per annum on the claim amount and reasonable attorney fees. Tex. Ins. Code Ann. art. 21.55 §§ 3(f), 6.          Toni’s claim against State Farm is based on State Farm’s failure to pay her the policy proceeds within sixty days of receipt of her September 11, 2002, claim. State Farm did not pay Toni within sixty days; instead, on November 22, 2002, seventy-two days later, it filed its interpleader action and deposited the policy proceeds into the registry of the court.          State Farm first argues that Toni is not a “claimant” under Article 21.55.  A “claimant” is defined as “a person making a claim.” Id. § 1(2). The statute defines “claim” as “a first party claim made by an insured or a policyholder under an insurance policy or contract or by a beneficiary named in the policy or contract that must be paid by the insurer directly to the insured or beneficiary.” Id. § 1(3). State Farm’s argument is thus premised on its assertion that Toni was not a named beneficiary because Ed’s request to name Toni had not been “recorded” by State Farm. We have already rejected this assertion in rejecting Lisa’s arguments, and we reject it on the same grounds with respect to Toni’s Article 21.55 claim against State Farm. Ed’s designation of Toni as the beneficiary was effective on the date that Ed signed the request, and Toni is a claimant for purposes of Article 21.55. State Farm next asserts that its filing of the interpleader action invoked a common-law exception to Article 21.55 liability. Initially, we note that there is no “good-faith” defense to Article 21.55 liability. Cater v. United Servs. Auto. Ass’n, 27 S.W.3d 81, 84 (Tex. App.—San Antonio 2000, pet. denied). If an insurer is found liable under the policy, the 18% statutory penalty can be awarded even if the insurer had a reasonable ground for denying coverage. St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1254 n.21 (5th Cir. 1998) (citing Higginbotham v. State Farm Mut. Auto. Ins. Co., 103 F.3d 456, 461 (5th Cir. 1997)); see also Oram v. State Farm Lloyds, 977 S.W.2d 163, 167 (Tex. App.—Austin 1998, no pet.) (even though insurer’s interpretation of policy was reasonable, rejection of claim was wrong because supreme court later found claim was not excluded by policy). If an insurer rejects a claim, and the rejection is later determined to be wrongful, the insurer will be liable for having delayed payment for more than sixty days. Higginbotham, 103 F.3d at 461. State Farm acknowledges that “good-faith” is not a defense to Article 21.55 liability but distinguishes these cases because they involve the denial of claims and are not interpleader actions. State Farm relies on a common-law interpleader exception to Article 21.55 liability: If a reasonable doubt in fact or law exists as to which rival claimant is entitled to insurance policy proceeds, and for that reason the insurer in good faith declines to pay the named beneficiary but admits liability on the policy and deposits the funds, it is liable only for the policy’s face amount. Great Am. Reserve Ins. Co. v. Sanders, 525 S.W.2d 956, 958 (Tex. 1975). In Sanders, where the predecessor to Article 21.55 (former Article 3.62) required payment by the life insurer within thirty days to avoid statutory penalties and attorney’s fees, the insurer filed the interpleader thirty-seven days after receiving demands for the policy proceeds. The supreme court held that the insurer was not liable for the penalty and attorney’s fees based on the facts of the case but noted: “We are not deciding whether in another case a period of delay before interpleading the competing claimants might be so unreasonable as to justify imposition of the statutory penalty.” Id. at 959. Such a case was found where the life insurer did not admit liability on the policy thirty-seven days after the claim was made (under former Article 3.62’s thirty-day requirement) and did not deposit the proceeds until almost seven months after suit was filed against the insurer. See Cross v. John Hancock Mut. Life Ins. Co., 722 S.W.2d 759, 760-61 (Tex. App.—Houston [14th Dist.] 1986, no writ).[6] In another case, the insured was an agent of the insurer and over time had embezzled from the insurer, using some of the embezzled funds to pay premiums on a $300,000 life insurance policy. Marineau v. General Am. Life Ins. Co., 898 S.W.2d 397, 400 (Tex. App.—Fort Worth 1995, writ denied). After the insured killed himself and his beneficiary spouse sought the policy’s face amount, the insurer filed a declaratory judgment action for a determination of the rights of the parties to the proceeds. The insurer did not interplead the proceeds, initially taking the position that it was entitled to all the proceeds. The court of appeals affirmed the trial court’s finding that the insurer was entitled (through a constructive trust) to a share (68.1%) of the proceeds proportionate to the amount of embezzled funds in the insured’s account from which he had paid the premiums, but it further held that the controversy over the proceeds and the declaratory judgment action did not preclude the penalty and attorney’s fees under former Article 3.62, finding their award to be mandatory when the insurer is held liable for any amount on the policy. Id. at 405. “Where an insurer has doubt that the claimant is entitled to the proceeds of the policy, it may decline to pay the claim, but it then takes the chance of being wrong and incurring statutory penalties and attorney’s fees, should it be held liable for the proceeds.”  Id. at 404. An unreasonable delay in interpleading funds can thus result in the imposition of Article 21.55’s penalty. Risner v. Amex Life Ins. Co., 1993 WL 55957 at *2 (N.D. Tex. 1993). “How much time must pass before a delay in interpleading becomes unreasonable depends largely on the circumstances of the particular case.” Id. (numerous life insurers, who spent from 8 to 15 months investigating claims and delayed interpleading from 7 to 23 months after claims were filed, were not liable for statutory penalty where insured was murdered while vacationing in Columbia and spouse beneficiary’s involvement in murder was suspected); accord Franklin Life Ins. Co. v. Greer, 219 S.W.2d 137, 143 (Tex. Civ. App.—Texarkana) (court excused insurer’s 11-month delay in interpleading funds where beneficiary was suspected of murdering insured), rev’d on other grounds, 221 S.W.2d 857 (Tex. 1949). Other cases have held that an insurer can avoid Article 21.55 liability by filing an interpleader outside the statutory window, or after a claimant has first filed suit, but any delay still must be reasonable. See Clements v. Minnesota Life Ins. Co., --- S.W.3d ---, ---, 2004 WL 1516450 at *4 (Tex. App.—Houston [1st Dist.] July 8, 2004, no pet.) (insurer may not “unreasonably delay”); Gabler v. Minnesota Mut. Life Ins. Co., 498 S.W.2d 413, 418 (Tex. Civ. App.—Texarkana 1973, no writ) (court declined to award penalty where insurer delayed four months after death of insured to interplead funds). The cases addressing the common-law interpleader exception to Article 21.55 liability require the insurer to interplead without unreasonable delay, which is determined by the facts of each case. To adequately address State Farm’s first issue, we thus must review the evidence and the trial court’s findings of fact to consider whether State Farm’s delay in filing the interpleader was unreasonable. Legal and Factual Sufficiency of the Evidence The trial court made numerous findings of fact and conclusions of law that Toni requested.[7] State Farm also requested findings of fact and conclusions of law, but it does not raise as an issue on appeal the trial court’s refusal of its requests. In its brief, State Farm complains that the trial court erred because State Farm conclusively proved as a matter of law “that Article 21.55 does not apply to this case” and that the trial court’s award of statutory penalties and attorney’s fees is against the great weight and preponderance of the evidence. It also asserts that the evidence is legally and factually insufficient to support the trial court’s award of statutory penalties and attorney’s fees under Article 21.55. [8] Toni had the burden of proof on the elements of her Article 21.55 claim. Except for Toni’s claimant status, which we have already addressed as a matter of law, State Farm does not argue that Toni failed to meet her burden on any element; in fact, no dispute exists on whether State Farm failed to pay Toni’s claim within Article 21.55’s sixty-day requirement. Rather, the issue that State Farm apparently intends to address is the legal and factual sufficiency of the evidence on its common-law defensive exception that it did not unreasonably delay in filing the interpleader action.[9] In proving either its defensive exception or its interpleader elements, State Farm had the burden of proving that its delay in filing the interpleader was reasonable (or not unreasonable).          When the party that had the burden of proof at trial complains of legal insufficiency of an adverse finding, that party must demonstrate that the evidence establishes conclusively, i.e. as a matter of law, all vital facts in support of the finding sought.[10] Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). We first examine the record for evidence supporting the adverse finding, ignoring all evidence to the contrary. Id. If more than a scintilla of evidence supports the adverse finding, our inquiry ends. Id. "More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995) (citations omitted); Beard v. Beard, 49 S.W.3d 40, 55 (Tex. App.—Waco 2001, pet. denied). When the party complaining of the factual sufficiency of the evidence had the burden of proof at trial, it must demonstrate that the adverse finding is contrary to the great weight and preponderance of the evidence.[11] Francis, 46 S.W.3d at 242; Beard, 49 S.W.3d at 55. We weigh all the evidence, and we can set aside the adverse finding only if it is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Francis, 46 S.W.3d at 242.  In doing so, we must detail the evidence and state in what regard the contrary evidence greatly outweighs the evidence in support of the adverse finding. Id. We will apply these standards to the arguments raised by State Farm.          In addition to the evidence already detailed above, the following correspondence was exchanged among the various parties: ·       A September 5, 2002, letter from Toni’s lawyer to State Farm agent Warren Barker (with a copy of it to be sent to State Farm), pointing out (1) Ed’s August 1, 2000 [sic] change-of-beneficiary designation of Toni, (2) the policy language that his request took effect the date Ed signed the request and that the proceeds were payable to the insured’s beneficiary, and (3) that Toni was thus the properly designated beneficiary and the proceeds were payable to her;  ·       State Farm’s September 10, 2002, letter to Toni’s lawyer, acknowledging receipt of his September 5, 2002, letter and transmitting claim forms for Toni’s completion;  ·       A September 18, 2002, letter from Toni’s lawyer to State Farm, enclosing the AID and (1) explaining his view of the AID’s effect on the State Farm policy and that Ed had the right in the AID to change beneficiaries, (2) that Ed’s designation of Toni was thus proper under the policy and the AID, (3) that Ed’s estate was liable under the AID for Linda’s monthly contractual alimony payment (which at that time was for twenty-four more months, for a total of $120,000), (4) that therefore $380,000 in policy proceeds were immediately payable to Toni, and (5) that the remaining $120,000 be held for Toni in an interest bearing account as security for the alimony should Ed’s estate not make the monthly payments, with $5,000 being released each month to Toni as Ed’s estate pays each monthly alimony payment until the final payment is made;  ·       State Farm’s October 1, 2002, letter to Toni’s lawyer, stating (1) that Toni was not the primary beneficiary of record, (2) that her claim was based on an “unrecorded change of beneficiary request dated August 1, 2002,” (3) that Linda was the “primary beneficiary of record,” (4) that Lisa had filed an adverse and conflicting claim on the $500,000 policy, (5) that Toni was not listed as the primary beneficiary of record on the $175,000 State Farm policy and that Toni’s claim on that policy was adverse and competing with Lisa’s claim, (6) that State Farm “is not in a position to determine who is entitled to the proceeds of these policies,” and (7) that State Farm was retaining an attorney and if the parties cannot reach an agreement, State Farm would file an interpleader;  ·       State Farm’s November 19, 2002, letter to Toni’s lawyer, stating that State Farm had paid the $175,000 State Farm policy proceeds to Lisa because Linda had earlier consented to Ed’s change of beneficiary, and that the State Farm $500,000 policy file had been referred to an attorney for filing an interpleader, which “will be filed in the very near future.”  The trial court did not make a specific finding that State Farm unreasonably delayed in filing its interpleader, nor did Toni request such a finding. It did find, however, the following related facts: ·       Ed’s August 1, 2002 beneficiary change to Toni was effective on that day (No. 5);  ·       Toni’s claim on the policy was received by State Farm on September 11, 2002 (No. 9);  ·       State Farm did not accept or reject Toni’s claim within fifteen business days (Nos. 11, 12);  ·       The policy did not give State Farm the right to approve or reject Ed’s August 1, 2002 beneficiary change to Toni (No. 16);  ·       State Farm did not pay the policy proceeds to Toni within sixty days of receiving Toni’s claim (No. 18);  ·       State Farm did not comply with Article 21.55’s prompt payment requirement and is thus liable to pay, in addition to the claim, an 18% penalty and attorney’s fees (No. 20);  ·       The AID explicitly provided that Ed could name whomever he chose as beneficiary for the remainder of the insurance policy not subject to Linda’s security in the policy benefits for contractual alimony payments (Nos. 26, 27);  ·       In his September 18, 2002 letter, Toni’s attorney explained to State Farm that no adversity existed between her claim to the policy benefits not subject to Linda’s alimony security interest ($380,000) and demanded immediate payment on Toni’s claim in that amount (Nos. 33, 34);  ·       State Farm had no right to refuse to recognize what it referred to as Ed’s “unrecorded change of beneficiary” to Toni, which it asserted Toni’s claim was based on (Nos. 35, 36);  ·       Because State Farm refused to accept Ed’s August 1, 2002 beneficiary change to Toni, its actions were unreasonable (No. 44);  ·       State Farm should not have had any reasonable doubt that Toni was the primary beneficiary under Ed’s August 1, 2002 beneficiary change (No. 46).  When a party requests findings and the trial court files them, the court of appeals can presume that omitted findings support the judgment only when (1) an element of the ground of recovery or defense was included in the findings of fact, (2) the omitted element was not properly requested, and (3) the omitted finding is supported by the evidence. Tex. R. Civ. P. 299; American Nat’l Ins. Co. v. Paul, 927 S.W.2d 239, 245 (Tex. App.—Austin 1996, writ denied); Warehouse Partners v. Gardner, 910 S.W.2d 19, 23 (Tex. App.—Dallas 1995, writ denied); see Tarrant County Water Control & Improvement Dist. v. Haupt, Inc., 854 S.W.2d 909, 913 (Tex. 1993) (where record contained some evidence of reasonableness, that issue was deemed found in support of trial court’s judgment). In this case, the trial court found that State Farm did not pay Toni’s claim within sixty days and found a violation of Article 21.55. The trial court also found that State Farm’s refusal to accept Ed’s August 1, 2002 beneficiary change to Toni was “unreasonable” and that State Farm “should not have had any reasonable doubt” that Toni was the primary beneficiary. Elements of both the ground of recovery and State Farm’s defense are thus included in the findings. And because the evidence supports a finding that State Farm’s delay in filing the interpleader was unreasonable, we find that Rule 299 is met and presume an omitted finding by the trial court that State Farm’s delay was unreasonable.          As we held above, the evidence and the applicable law show that State Farm incorrectly rejected Ed’s designation of Toni as the beneficiary. Additionally, the record is silent on whether State Farm ever knew the specific terms of the AID (especially that Linda was an “irrevocable” beneficiary of the policy benefits only as security for the amount of outstanding alimony) until the AID was provided and explained to State Farm by Toni’s lawyer. Toni’s lawyer’s September 5, 2002 and September 18, 2002 letters spelled out the relevant policy provisions, the propriety of Ed’s August 1, 2002 beneficiary change and its effectiveness as of that date, and the terms of the AID. Yet State Farm inexplicably waited until November 22, 2002 (seventy-two days after receiving Toni’s claim and two days after Toni filed suit) to file its interpleader action.[12]          This case is more akin to Marineau, where the insurer initially determined the beneficiary was not entitled to any of the proceeds, when she was in fact entitled to a percentage, subject to a constructive trust on the amount that she was not entitled to. Marineau, 898 S.W.2d at 404-05.  The insurer was liable for the penalty and attorney’s fees because of its initial mistake. Likewise, State Farm initially erred in rejecting Ed’s beneficiary designation of Toni, a factor distinguishing this case from other interpleader cases. The purpose of interpleader is to allow an “innocent” stakeholder facing rival claims to let the court decide who is entitled to the funds. Union Gas Corp. v. Gisler, 129 S.W.3d 145, 153 (Tex. App.—Corpus Christi 2003, no pet.). Because interpleader has its roots in equity and provides an equitable remedy for the stakeholder, the stakeholder that seeks equity must “do equity.” Id. Thus, for example, if the stakeholder is responsible for the conflicting claims to the funds, the stakeholder cannot recover attorney’s fees. Id.; Brown v. Getty Reserve Oil, Inc., 626 S.W.2d 810, 815 (Tex. App.—Amarillo 1981, writ dism’d). Or, if the stakeholder creates its own predicament, the trial court, in the exercise of its equity jurisdiction, can deny the interpleader. Gisler, 129 S.W.3d at 153.          State Farm also refused Toni’s lawyer’s request that it pay Toni the balance of the proceeds ($380,000) that was not subject to Linda’s security in the amount of payable alimony ($120,000). State Farm’s initial error in wrongfully rejecting Ed’s beneficiary change created the uncertainty, allowed the competing claims, and led to the interpleader, and there is evidence that supports the trial court’s findings that State Farm’s actions were unreasonable and that it should have had no doubt that Toni was the beneficiary.  Moreover, because State Farm created its own predicament, the trial court, in the exercise of its equity jurisdiction, would not have abused its discretion in finding that State Farm was not an “innocent” stakeholder and was not entitled to the common-law interpleader exception to Article 21.55 liability. See Gisler, 129 S.W.3d at 153.  In sum, there is evidence that State Farm’s actions were unreasonable and that those actions caused the delay, which in this case amount to an unreasonable delay.          We hold that more than a scintilla of evidence exists to support the omitted finding that State Farm unreasonably delayed in filing the interpleader and that State Farm thus did not conclusively establish that its delay was not unreasonable.  Legally sufficient evidence supports this omitted finding. And after weighing all the evidence, we hold that the omitted finding of unreasonable delay is not against the great weight and preponderance of the evidence. State Farm’s challenge to the legal and factual sufficiency of the evidence on its unreasonable delay is thus overruled. Challenges to Specific Findings of Fact and Conclusions of Law State Farm’s fourth issue challenges various findings of fact and conclusions of law made by the trial court. The trial court is required to make findings of fact only on controlling issues, not on matters of evidence. ASAI v. Vanco Insulation Abatement, Inc., 932 S.W.2d 118, 122 (Tex. App.—El Paso 1996, no writ); Rafferty v. Finstad, 903 S.W.2d 374, 376 (Tex. App.—Houston [1st Dist.] 1995, writ denied). An issue is controlling when it will support a basis for judgment for the issue’s proponent. Taylor v. Texas Dept. Pub. Safety, 754 S.W.2d 464, 468 (Tex. App.—Fort Worth 1988, writ denied). State Farm complains that several findings (Nos. 3, 13, 38, and 41) are not supported by the evidence because they allegedly are incomplete renditions of matters in evidence, such as policy or letter excerpts. Because these complaints go to evidentiary matters that are not controlling (and that we have otherwise addressed in State Farm’s first issue), the trial court did not err. See Rafferty, 903 S.W.2d at 376 (trial court not required to make findings that relate merely to evidentiary matters). State Farm also alleges that the trial court erred by not including its requested finding of fact that Linda made a claim on the policy. This complaint is waived because State Farm did not raise as an issue the trial court’s refusal to make additional findings, but regardless, this complaint likewise goes to an evidentiary matter that is not controlling and that we otherwise addressed in State Farm’s first issue.          Next, State Farm complains that numerous findings and conclusions (Nos. 5, 15, 16, 36, 39, and 42) relating to Ed’s August 1, 2002 beneficiary change to Toni, its wrongful refusal by State Farm, and the effect of the AID are not supported by the evidence. In ruling on Lisa’s issues and State Farm’s first issue, we have already considered and rejected State Farm’s complaints on these matters.          The trial court made numerous findings and conclusions (Nos. 23, 24, 48, 49, 50, and 51) that Toni was entitled to a penalty and attorney’s fees under Article 21.55. State Farm re-urges that the trial court’s conclusions are erroneous as a matter of law, but we have already considered and rejected State Farm’s complaints on these matters.          Finally, State Farm complains of the trial court’s findings and conclusions on prejudgment interest and the calculation of the penalty (Nos. 47 and 48). Those complaints are addressed below in our disposition of State Farm’s second and third issues.          For the above reasons, we overrule State Farm’s fourth issue. Prejudgment Interest State Farm’s second issue complains that the trial court erred as a matter of law in awarding prejudgment interest. A successful claimant under Article 21.55 can recover prejudgment interest on the amount of the claim. Dunn v. Southern Farm Bureau Cas. Ins. Co., 991 S.W.2d 467, 478 (Tex. App.—Tyler 1999, pet. denied); see Teate v. Mutual Life Ins. Co., 965 F. Supp. 891, 894 (E.D. Tex. 1997) (citing Marineau, 898 S.W.2d at 405). Because the trial court did not err in awarding prejudgment interest, we overrule State Farm’s second issue. Article 21.55 Penalty Calculation          Next, in its third issue, State Farm asserts error as a matter of law in the trial court’s calculation of the 18% penalty under Article 21.55. The trial court awarded $76,520.19 as of August 1, 2003, and a per diem of $246.57 until the judgment was signed. The judgment was signed on August 11, 2003, so the total statutory penalty awarded was $78,985.89. State Farm argues that the 18% per annum penalty is not applicable at all because its liability to Toni did not arise until the trial court entered a final judgment. Alternatively, it claims that if Article 21.55 applies, the penalty should have been calculated on the $500,000 policy proceeds for only a period of twelve days: from November 10, 2002, the sixtieth day after State Farm received Toni’s claim, until November 22, 2002, the day State Farm deposited the proceeds into the registry of the court, for a total of $2,958.84.          The statutory damages start accruing on the date the insurer violates the statute. Texas Farmers Ins. Co. v. Cameron, 24 S.W.3d 386, 400 (Tex. App.—Dallas 2000, pet. denied); Teate, 956 F. Supp. at 894. In this case, that date is November 10, 2002, the sixtieth and last day that State Farm was allowed to pay Toni the proceeds to avoid Article 21.55’s penalties. The remaining issue is thus whether State Farm’s tender of the proceeds into the registry of the court stopped the accrual of the 18% penalty or whether the penalty continued to accrue until judgment was entered.          State Farm’s argument that the ending date should be the date of the judgment relies on Wellisch v. United Services Automobile Ass’n, a case involving an uninsured/underinsured motorist (UIM) claim. Wellisch v. United Servs. Auto. Ass’n, 75 S.W.3d 53 (Tex. App.—San Antonio 2002, pet. denied). That case held that the insurer’s liability for UIM benefits does not arise until the claimant is legally entitled to those benefits, which generally requires a settlement with the tortfeasor or a judicial determination following trial on the issue of the tortfeasor’s liability. Id. at 58. Thus, rather than the date of the covered event (i.e. the accident) being the date the insurer’s liability arose, the date the trial court entered final judgment was the date liability on the UIM claim arose. Id.          State Farm relies on Cater v. United Services Automobile Ass’n for its argument that the date it deposited the policy proceeds with the court should toll the penalty.  Cater v. United Servs. Auto. Ass’n, 27 S.W.3d 81 (Tex. App.—San Antonio 2000, pet. denied). This case involved a foundation damage claim that, except for the plaintiff’s Article 21.55 claim for penalties and attorney’s fees, was settled after suit was filed for $40,000. The plaintiff was paid the settlement, and the Article 21.55 claims proceeded to trial. The plaintiff contended that she was entitled to the 18% penalty through the date of judgment, but the court held that she was entitled to the penalty only until she was paid the settlement. Id. at 85.          Neither of these cases is dispositive. Cater is distinguishable because its holding was based on the fact that the claimant was actually paid. While State Farm has deposited the proceeds with the court, Toni still has not been paid. Wellisch is distinguishable because a ripe UIM claim requires a settlement or a negligence trial.          The purpose of Article 21.55 is to require prompt payment of insurance claims, and we are to liberally construe the Act to promote this purpose. Tex. Ins. Code Ann. art. 21.55 § 8. We have found that State Farm should have accepted Ed’s beneficiary designation of Toni. By extension, when Ed died and Toni made a claim on the policy, State Farm should have promptly paid it.  Instead, State Farm’s wrongful rejection of Ed’s request set in motion a series of events that led to the interpleader, and Toni still has not been paid. To promote the purpose of Article 21.55, we hold that the 18% penalty should be calculated until the date of the judgment. See Cameron, 24 S.W.3d at 400 (calculating penalty to time of judgment).          Accordingly, Toni is entitled to a penalty award of 18% per annum on $500,000 from November 10, 2002 to August 11, 2003. The record does not reflect the method used in the trial court’s calculation of the judgment’s total statutory penalty award of $78,985.89. The correct amount is calculated by the formula P x R x T = I, where P is the amount of the claim ($500,000), R is the interest rate (.18), T is the time (274 days divided by 365 days = .75 years), and I ($67,500) is the interest award. Cameron, 24 S.W.3d at 400 & n.5. In this case, $67,500 is the correct penalty calculation. The trial court incorrectly calculated the penalty, so we must reform that part of the judgment. Conclusion           We overrule all of Lisa’s and State Farm’s issues. We reform the trial court’s judgment to reflect the correct statutory penalty amount of $67,500. We affirm the judgment as reformed.     BILL VANCE Justice  Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray dissenting) Reformed and affirmed Opinion delivered and filed August 17, 2005 [CV06]    [1]      Linda was not specifically identified by Ed as an “irrevocable” beneficiary in any of his designations of her on this policy.    [2]      The trial court found that Lisa was the last designated beneficiary on the $175,000 policy and that State Farm paid those policy proceeds to her.    [3]      The record does not show that State Farm ever had knowledge of the specific terms of the AID.    [4]          Toni concedes that Ed’s beneficiary change to her was subject to Linda’s security interest in the policy proceeds. See Burke, 614 S.W.2d at 849 (holding that husband’s beneficiary change to second wife was subject to first wife’s community interest in policy proceeds).    [5]      In this respect, the constructive trust agreed to by Toni and Linda and fashioned by the trial court was an appropriate remedy. See Hudspeth v. Stoker, 644 S.W.2d 92, 94-96 (Tex. App.—San Antonio 1982, writ ref’d).    [6]          In Cross, the court stated that “there is no good faith exception to the statute, except where the insurance company is in doubt as to whom the money should be paid because of conflicting claims. This exception applies only when the insurance company acts in good faith and makes its position known promptly and clearly, promptly admits its liability and makes a bona fide tender of the full amount due.” Id. (citing Boomer v. Massachusetts Bonding & Ins. Co., 148 S.W.2d 945, 949 (Tex. Civ. App.—El Paso 1941, writ dism’d)).    [7]      Findings of fact in a bench trial have the same force and dignity as a jury's verdict upon jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). When challenged on appeal, the findings are not conclusive on the appellate court if there is a complete reporter's record, as there is here. Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 666 (Tex. 1987); In re K.R.P., 80 S.W.3d 669, 673 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). The trial court's findings will not be disturbed if there is evidence of probative force to support them. Barrientos v. Nava, 94 S.W.3d 270, 288 (Tex. App.—Houston [14th Dist.] 2002, no pet.). A trial court's findings are reviewable for legal and factual sufficiency of the evidence by the same standards that are applied in reviewing evidence supporting a jury's answer. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). We review the trial court's conclusions of law de novo. Smith v. Smith, 22 S.W.3d 140, 143-44 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Under de novo review, the reviewing court exercises its own judgment and redetermines each legal issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1999). We will uphold conclusions of law on appeal if the judgment can be sustained on any legal theory that the evidence supports. Waggoner v. Morrow, 932 S.W.2d 627, 631 (Tex. App.—Houston [14th Dist.] 1996, no writ). Incorrect conclusions of law do not require reversal if the controlling findings of fact support the judgment under a correct legal theory. Id.     [8]      State Farm’s fourth issue complains that the evidence is legally and factually insufficient to support various specific findings of fact. Because State Farm’s fourth issue raises the sufficiency of the evidence, and because State Farm’s brief addresses the sufficiency of the evidence throughout the discussion of its first issue, we will address State Farm’s complaint that the evidence establishes as a matter of law that Article 21.55 does not apply or that the trial court’s implied finding is against the great weight and preponderance of the evidence. See Tex. R. App. P. 38.1(e) (“The brief must state conclusively all issues or points presented for review. The statement of an issue or point will be treated as covering every subsidiary question that is fairly included.”); Jakab v. Gran Villa Tounhouses Homeowners Ass’n, Inc., 149 S.W.3d 863, 866 n.1 (Tex. App.—Dallas 2004, no pet.); Stevenson v. LeBoeuf, 16 S.W.3d 829, 833-44 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).     [9]          The elements of an interpleader action are: (1) the party is either subject to, or has reasonable grounds to anticipate, rival claims to the same fund or property; (2) the party has not unreasonably delayed filing an action for interpleader; and (3) the party has unconditionally tendered the fund or property into the court’s registry. Hanzel v. Herring, 80 S.W.3d 167, 173 (Tex. App.—Fort Worth 2002, no pet.) (citing Bryant v. United Shortline Inc., 984 S.W.2d 292, 296 (Tex. App.—Fort Worth), aff'd, 972 S.W.2d 26 (Tex. 1998)).     [10]        A “matter-of-law” or “conclusive-evidence” issue is used when the party with the burden of proof challenges the legal sufficiency of the evidence to support unfavorably answered jury questions or unfavorable express or implied findings of fact. See Gooch v. American Sling Co., 902 S.W.2d 181, 183-84 (Tex. App.—Fort Worth 1995, no writ).    [11]     An “against-the-great-weight-and-preponderance” issue is used when the party with the burden of proof challenges the factual sufficiency of the evidence to support the factfinder’s “failure to find.” See Gooch, 902 S.W.2d at 183-84.     [12]     In its brief State Farm asserts that it waited this long to file the interpleader action because it attempted to facilitate a settlement among the parties, but there is no evidence in the record supporting this assertion. See Quanaim v. Frasco Rest. & Catering, 17 S.W.3d 30, 42 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (factual statements in party’s own motion or response are not evidence); Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp, 994 S.W.2d 830, 838 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (factual statements in party’s own pleading are not evidence). Â