
NO. 07-02-0073-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

FEBRUARY 6, 2003

______________________________


JOHNNIE WHINERY, ET UX. PAM WHINERY, APPELLANTS

V.

MISSION PETROLEUM CARRIERS, INC. AND MYRL DEAN MANN, APPELLEES

_________________________________

FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;

NO. 30,500; HONORABLE LEE WATERS, JUDGE

_______________________________

Before JOHNSON, C.J. and REAVIS, J. and BOYD, S.J. (1)

MEMORANDUM OPINION (2)
	Johnnie Whinery and Pam Whinery appeal from a  judgment based on a jury verdict 
that they take and recover nothing against Mission Petroleum Company, Inc. and Myrl
Dean Mann by their suit for personal injuries suffered by Whinery when the pickup he was
driving was struck in the rear by a tractor trailer truck driven by Mann.  Presenting three
issues, they contend that (1) there was no evidence to support the jury verdict, (2) there
was insufficient evidence to support the jury verdict, and (3) the jury verdict was so against
the weight and preponderance of the evidence as to be manifestly wrong and unjust. 
Based on the rationale expressed herein, we affirm the judgment of the trial court.
	Whinery was an employee of Leonard Hudson Drilling Company located on the west
side of FM Road 282 (Price Road) in Pampa.   While driving a company pickup to work on
April 10, 1995, at about 7:10 a.m., Whinery was stopped to allow oncoming traffic to pass
before he made a left turn into Hudson's driveway.  About the same time, Mann, an
employee of Mission Petroleum Company, was also driving a company truck north on Price
Road; however, as discussed in detail below, the Mission truck rear-ended the Hudson
pickup.  At that time, Mann had 25 years experience as a full time truck driver who had
driven three million miles without an accident.  Whinery filed suit on April 4, 1997, and by
his amended pleadings filed October 12, 2001, claimed the accident was caused because
Mann:

	failed to control his speed so as to avoid colliding with the truck driven
by Whinery, and such failure was negligence per se;
	followed more closely than a person using ordinary care would have
done under the same or similar circumstances; failed to maintain an
assured clear distance between the two vehicles and such conduct
was negligence per se;
	failed to make timely application of his brakes;
	failed to keep a proper lookout; and 
	failed to sound the truck's horn.

Notwithstanding the two claims of negligence per se, by question 1, the trial court
submitted the question of negligence and proximate cause in one broad form as suggested
by COMM. ON PATTERN JURY CHARGES, STATE BAR OF TEX., TEXAS PATTERN
JURY CHARGES-NEGLIGENCE PJC 4.1 (2000) without an instruction or request, for an
instruction of negligence per se per PJC 5.1. Based upon the jury finding that the accident
was not proximately caused by the negligence of either driver, the trial court rendered
judgment that Whinery take nothing.
Burden of Proof and Standard of Review
	Before we consider Whinery's three issues, we first address the appropriate burden
of proof and standard of review.  Because the mere occurrence of a rear-end collision does
not present evidence of negligence as a matter of law, Whinery had the burden to prove
specific acts of negligence on the part of Mann and prove proximate cause.  Gomez v. 
Adame, 940 S.W.2d 249, 251 (Tex.App.--San Antonio 1997, no writ); Weaver v. U.S.
Testing Co., Inc., 886 S.W.2d 488, 490 (Tex.App.--Houston [1st Dist.] 1994, writ denied).
   	In Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241-42, (Tex. 2001), the Court
discussed the appropriate standards of review where, as here, the party attacking an
adverse finding on an issue had the burden of proof.  In summary the Court held:

	When a legal sufficiency issue is presented the complaining party
must demonstrate on appeal that the evidence establishes, as a
matter of law, all vital facts in support of the issue.  If there is no
evidence to support the finding, then we will examine the entire record
to determine if the contrary proposition is established as a matter of
law and sustain the point only if the contrary proposition is
conclusively established.
 	When a factual sufficiency challenge is presented, the complaining
party must demonstrate that the adverse finding is against the great
weight and preponderance of the evidence.  Under this review, after
considering and weighing all the evidence, we can set aside the
verdict only if the evidence is so weak or if the finding is so against the
great weight and preponderance of the evidence that it is clearly
wrong and unjust. 

 
See also Raw Hide Oil & Gas v. Maxus Exploration, 766 S.W.2d 264, 266 (Tex.App.--Amarillo 1988, writ denied), and Hall, Standards of Review in Texas, 34 St. Mary's L.J.
173-74.  Because the issues presented require that we review the entire record, we will
consider Whinery's three issues simultaneously.
	Restated, Whinery contends there was no evidence to support the jury verdict,
insufficient evidence to support the verdict, and the verdict is against the weight and
preponderance of the evidence so as to be manifestly wrong and unjust.  We disagree.
	Witnesses described the two-way road, weather and road conditions at dawn on
April 10, 1995, as being cold, misty/rainy and the black top pavement was wet.  Lesher, a
witness who was in the area at the time but did not see the accident, described the traffic
as "all kinds of traffic going south and, I guess, going north, too, but-," then said that he
was uncertain about north bound traffic.  According to Lesher and other witnesses at the
time of the accident, cars were using their headlights and the Department of Public Safety
Officer described the light conditions as "dawn."  According to the evidence, several other
businesses,  in addition to Leonard Hudson Drilling, were located adjacent to Price Road
with exits and entries and the posted speed limit was 40 m.p.h.   
	Whinery testified that as he was traveling north on Price Road, he intended to turn
left across the south bound traffic lane into Hudson's driveway.  According to Whinery, his
headlights and left turn signal were on and he was stopped to allow the south bound traffic
to pass when he was rear-ended by the truck driven by Mann.  Mann, however, testified
that he did not see any tail lights illuminated on the back of Whinery's pickup.  Whinery
testified that after receiving a citation, the tail lights were repaired a few weeks prior to the
accident, and that before leaving for work every morning he looked to the rear to make
sure the lights were operational.  Another witness also claimed that the pickup was stopped
waiting to make a left turn, but did not testify that Whinery's "stop lamps" were illuminated 
at the time of the accident.  Although another witness who viewed the accident from the
north testified that the head lights and left turn signal were working at the time of the
accident, the witness was unable to see the rear of the pickup.        
	 Mann estimated that his speed at the time of the accident was approximately 30
m.p.h.  Although he saw oncoming traffic from the north, he did not see the truck until
about 3 or 4 seconds before the accident and attempted to turn right to avoid hitting the
truck; however, the left part of his truck struck the right rear portion of Whinery's pickup. 
Photographs of the road depicted skid marks showing that Mann applied his brakes, but
were not measured by the DPS officer.  
	DPS Trooper Jim Bishop arrived at the scene of the accident at 7:23 a.m.  After
interviewing Mann and investigating the scene and the pickup, he prepared a written report
describing the weather as clear/cloudy and raining and the surface of the road as "wet."
The report introduced by Whinery listed factors/conditions that "may" have contributed to
the accident as (a)(22) Mann failed to control speed, and (b)(19) a distraction in vehicle;
however, the written report did not designate (44) followed too closely, (60) speeding-unsafe (under limit), or (61) speeding over limit.  According to Trooper Bishop, his
reference to "distraction in vehicle" was based on Mann's recollection that he was adjusting
the windshield wipers.  As restated here, his narrative opinion of what happened was
	The pickup was traveling northbound in front of the truck.  The pickup
apparently attempted a left turn into the drive of a private business.  The
driver of the truck swerved right to avoid the pickup.  The truck's left front 
drive wheel struck the right rear corner of the pickup.  Driver of the truck did
not see any lights on the pickup.  The pickup continued north in the west
ditch of FM 282 for approximately 0.1 mile and struck a telephone junction
box and then struck a tree in front of another business office.
 
	Although Whinery claimed that his pickip was stopped, according to the Trooper's
report Whinery was "traveling in front of the truck" and "apparently attempted a left turn into
the drive of a private business."  The driver of the truck "swerved right to avoid" the pickup. 
On cross-examination of Trooper Bishop defense counsel asked:
	Q:  Is it true what you told me was that when you arrived at the scene what
your remembered was that there were no lights on Mr.  Whinery's pickup and
then you went down and checked them?

	A:  Yes, sir. 


During his examination, the Trooper said that he did not recall if Whinery did anything
which contributed to the accident and did not recall if the tail lights on the pickup were
defective; however, he did testify that had any defects been found, it should have been
noted on his report. (3)
	Citing Clark v. Waggoner, 452 S.W.2d 437 (Tex. 1970), Whinery argues that unless
excused by some extenuating circumstances or condition, a driver whose vehicle strikes
another vehicle which is lawfully stopped is guilty of negligence.  However, because Clark
and the other cases cited therein were all decided before adoption of the broad form
submission practice as provided by Rule 277 of the Texas Rules of Civil Procedure, they
are of little assistance.  Moreover, in Clark the court did not hold as Whinery suggests, but
only decided whether the foreseeability element of proximate cause was conclusively
shown.  
	In Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 675 (Tex. 1998) a multi-car
rear-end collision accident based on a jury verdict that none of the drivers was negligent, 
the trial court rendered a take nothing judgment for the defendants.  On discretionary
review, the Court held that the rule which requires that a driver proceed safely imposes a
duty of reasonable care; therefore, a negligence per se instruction was not necessary.
Further, in accord with Gomez, 940 S.W.2d at 251 and Weaver, Inc., 886 S.W.2d at 490,
in Klein v. Brown-Griffin Texaco Distributors, 562 S.W.2d 910, 912 (Tex.Civ.App.-- Amarillo
1978, writ ref'd n.r.e.), we held that the fact that a rear-end collision occurred did not
establish negligence on the part of the driver of the following vehicle. Considering the
weather, time of day, and road and traffic conditions, and because there was no evidence
that Whinery's brake lights were working, and Mann's testimony that he did not see any
lights on the back of the truck was uncontradicted, we conclude that Whinery did not
demonstrate the vital facts necessary for recovery as a matter of law. 
	Although Whinery plead negligence per se, the trial court did not give such an
instruction.  The trial court did instruct the jury as follows:
		A fact may be established by direct evidence or by circumstantial
evidence or both.  A fact is established by direct evidence when proved by
documentary evidence or by witnesses who saw the act done or hear the
words spoken.  A fact is established by circumstantial evidence when it may
be fairly and reasonably inferred from other facts.

Notwithstanding this instruction, however,  a vital fact necessary to support a legal element
may not be established by "piling inference upon inference."  Further, when circumstances
are consistent with either of two facts and nothing shows that one is more probable than
the other, neither fact can be inferred.  Roth v. FFP Operating Partners, 994 S.W.2d 190, 
197 (Tex.App.--Amarlllo 1999, pet. denied).  
	Accordingly, we do not agree with Whinery's contentions that the evidence was
insufficient to support the verdict and that the jury verdict was so against the weight and
preponderance of the evidence as to be manifestly wrong and unjust.  It was within the
province of the jury to determine whether Whinery succeeded in proving negligence by a
preponderance of the evidence.  Klein, 562 S.W.2d at 911; see also Farley v. M M Cattle
Company, 529 S.W.2d 751, 756 (Tex. 1975) (holding that "cause in fact of an injury has
been said to be a particularly apt question for jury determination").  Considering the
evidence that (a) traffic was heavy, (b) the weather was rainy and the road was wet, (c) the
absence of any evidence that the tail lights or brake lights were operating on the pickup
immediately before the accident, and (d) that Mann was operating the truck below the
posted speed limit and other evidence and permissible inferences, we conclude the
evidence is not so weak as to make the jury verdict so against the great weight and
preponderance of the evidence as to be clearly wrong and unjust and decline to substitute
our judgment for that of the jury.  Gomez, 940 S.W.2d at 252.  Accordingly, issues one,
two, and three are overruled.
	Following submission of this appeal, counsel for appellants presented the Court with
compact discs of a power point presentation.  Appellees filed an objection challenging the
presentation on the ground that it was not part of the appellate record.  Appellants
responded contending that the presentation was supplementation permitted by Rule 38.7
of the Texas Rules of Appellate Procedure.  However, Rule 38.7 permits amendment or
supplementation of a brief, not the record, whenever justice requires.  We agree with
appellees and decline to permit the power point presentation to be filed as part of the
appellate record. 
	Accordingly, the judgment of the trial court is affirmed.
						Don H.  Reavis
						    Justice
1. John T.  Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
2. Tex. R. App. P. 47.4.
3. We do not consider the inability of the Trooper and other witnesses to recall some
matters to be unusual, but instead normal in view of the six-year lapse of time between the
accident and trial.


5"/>
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
 







NO. 07-09-0077-CR
NO.
07-09-0078-CR
NO.
07-09-0079-CR
NO.
07-09-0080-CR
 
                                                   IN
THE COURT OF APPEALS
 
                                       FOR THE
SEVENTH DISTRICT OF TEXAS
 
                                                                 AT
AMARILLO
 
                                                                      PANEL
B
 
                                                                 JULY
20, 2010
                                            ______________________________
 
                                                        SIDNEY LYNN WEEKS, 
 
                                                                                                            Appellant
 
                                                                             v.
 
                                                        THE STATE OF TEXAS, 
 
                                                                                                            Appellee
                                         _________________________________
 
                     FROM THE 46TH
DISTRICT COURT OF HARDEMAN COUNTY;
 
                  NOS. 4088, 4089, 4090, 4091;
HON. DAN MIKE BIRD, PRESIDING
                                           _______________________________
 
Memorandum Opinion
_______________________________
Before
QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
            Sidney Lynn Weeks (appellant)
appeals his four convictions for aggravated sexual assault.  Via twelve issues, he contends that the trial
court erred in 1) denying his motion for severance, 2) denying his motion to
suppress, 3) admitting extraneous evidence, and 4) refusing to charge the jury
per art. 38.22 of the Texas Code of Criminal Procedure.  He also asserts that the evidence was
insufficient to support the four convictions. 
We affirm.
                                                                  Background
       
The circumstances before us involve appellants repeated sexual assaults
upon his stepdaughter while she was between the ages of thirteen and sixteen.  When finally contacted, the police began an
investigation into the crimes.  Pursuant
thereto, law enforcement officials called appellant and advised him that he was
being investigated.  Eventually, a
meeting was arranged between appellant and a DPS ranger (Foster); but when same
was scheduled via phone, appellant was not advised of his Miranda rights.   Nevertheless, the two did meet in person,
and at the meeting, appellant was mirandized
before providing the ranger with a statement. 
Moreover, during the exchange, the ranger advised appellant that he was
subject to punishment anywhere from probation to ninety-nine years in prison
and that the district attorney would be told of appellants cooperation in the
investigation if a statement was given.    
  
   At trial, the victim testified,
as did Foster.  Furthermore, the trial
court admitted appellants written statement, though his oral comments were
excluded.  Ultimately, the jury found him
guilty of all four charges.
Issues One and Six
    
We address issues one and six since they are logically connected.  Via issue one, appellant contends that the
trial court erred by refusing to sever each count into separate trials.  This allegedly was wrong because the
admission of extraneous offenses somehow prejudiced him.  Via his sixth issue, he posits that it was
error to admit the extraneous offenses. 
We overrule the issues. 
      Regarding the admission of the extraneous
offenses, the latter consisted of instances wherein appellant engaged in anal
and oral sex with the victim.  This
should have been excluded, according to appellant.  Yet, evidence of extraneous acts involving
the accused and the victim may be admissible under art. 38.37 of the Code of Criminal Procedure.[1]  Appellant does not explain why that statute
is inapplicable.  Moreover, the State contends
that the instances in question had a bearing on relevant matters such as the
state of mind of both appellant and victim and the nature of their prior
relationship.   The trial courts
agreement with the State did not fall outside the zone of reasonable
disagreement.  See Hernandez v. State, 205 S.W.3d 555,
558 (Tex. App.Amarillo 2006, pet. ref'd) (stating that the standard of review
for issues encompassing the admission of evidence is that of abused discretion
and discretion is abused when the decision falls outside the zone of reasonable
disagreement).  
            The inappropriate relationship
between appellant and his stepdaughter covers several of the youths teenage
years and evinced frequent assaults.  As
such, it could be viewed as relevant to the relationship between the two and
their respective states of mind.  The
statements could also be viewed as tending to rebuff appellants attack upon
the victims credibility.  He did ask the
jury to ponder upon why she waited so long to  disclose the supposed misconduct and
why it was disclosed during an argument with the assailants wife (i.e. the victims mother).  Implicit therein is the suggestion that maybe
the events were fabricated.  Admitting appellants
own comments about the nature and extent of the sexual activities in which the
two engaged would serve to illustrate that the victim did not simply fabricate
the incidents.  See Smith v. State, No. 07-05-0277-CR, 2007 Tex. App. Lexis 6004 *3-6 (Tex. App.Amarillo
July 30, 2007, pet. dismd) (not designated for
publication) (wherein the court held that it was not error to admit instances
of prior sexual activity between the accused and appellant, despite an
objection founded on Rule 403, because, among other things, the evidence tended
to bolster the victims credibility).  
            We further note that it was within
the realm of reason to deduce that while reference to anal and oral sex may
carry with it prejudicial effect, that effect would be no greater than the
impact arising from the evidence of appellant engaging in vaginal intercourse
with his thirteen-year-old stepdaughter. 
And, no one can deny that the latter evidence was admissible given the
allegations contained in the indictment. 
So, we cannot say that the trial court abused its discretion in finding
the evidence both relevant and admissible despite appellants Rule 401, 403,
and 404(b) objections.[2]  See Hitt v. State, 53 S.W.3d 697, 704-05 (Tex. App.Austin
2001, pet. ref'd) (recognizing that, in cases
involving the sexual abuse of children, article 38.37, section 2 supersedes the
application of Texas Rules of Evidence 402 and 404).  
            As for the matter of severance,
appellant concedes that the causes were properly joined.  However, he posits that they should have been
severed because their joinder caused him to suffer
prejudice.  The prejudice, in his view,
arose from the States use of the aforementioned evidence of extraneous
offenses.  How severance would have
precluded the State from invoking art. 38.37 went unexplained, however.  Indeed, having concluded above that the trial
court did not abuse its discretion in admitting the evidence when the causes
were joined, we have difficulty understanding why the same evidence would be
inadmissible if the causes were tried separately.  Nor does appellant address that.  So, under the circumstances before us, the
trial court cannot be said to have abused its discretion in trying the causes
together.  Salazar v. State, 127 S.W.3d 355, 365 (Tex. App.Houston
[14th Dist.] 2004, pet. refd) (noting
that the pertinent standard of review is one of abused discretion).
Issues
Two through Five - Admission of Appellants Confession and the
 Evidence of the Extraneous Offenses Therein
 
            Appellant next contends that the
trial court erred in admitting his written statement into evidence.  This was so, according to him, because the
statement 1) was involuntary, and 2) was obtained in a manner that violated due
process and article 38 of the Texas Code of Criminal Procedure.  We disagree and overrule the issues.
Regarding
the issue of voluntariness, appellant suggests his statement was involuntary
because it was given in response to the rangers promise to speak with the
district attorney if appellant cooperated and his representation that the crime
for which appellant was being investigated could carry a sentence ranging from
probation to ninety-nine years in prison. 
Neither of these grounds was urged at trial as basis for finding his
confession less than knowing and voluntary, however.  That is, he did not argue that the confession
was involuntary because it arose from a promise or representation of the type
which would induce someone to speak untruthfully.  Therefore, this particular argument was not
preserved for review.  Heidelberg v. State, 144 S.W.3d 535, 537
(Tex. Crim. App. 2004) (stating that the
legal basis of a complaint raised on appeal cannot vary from that raised at
trial).
            As for due process and article 38 of
the Code of Criminal Procedure, both were purportedly violated because
appellant was not mirandized
prior to undergoing the custodial interview.  
This is allegedly true even though the ranger actually mirandized appellant before he
signed his confession.  We find no error.  
            It is clear that a suspect
undergoing custodial interrogation must be warned of his right to remain
silent, his right to have legal counsel, his right to have counsel appointed if
he is impoverished, and of the potential consequences arising from his refusal
to remain silent.  Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Such warnings are
not necessary, though, if the interview occurs outside the realm of custodial
interrogation.  Herrera v. State, 241 S.W.3d 520, 526
(Tex. Crim. App. 2007).    The
trial court found, after conducting an evidentiary hearing, that the statement
at bar was not the product of such an interrogation.  And, we find no fault with that
determination.  
According
to the record, the police chief contacted appellant about meeting to review the
allegations raised by his stepdaughter. 
Appellant agreed and appeared at the offices of the Department of Public
Safety.  There he met with Ranger Foster
for one hour and forty-nine minutes. 
Foster testified that appellant was free to go at any time and that if
he left, the ranger would have simply continued his investigation without
appellant.  So too did the ranger testify
that appellant was not denied any basic necessity such as food, or water, or
cigarettes or anything like that.  And,
once the interviewed ended, appellant left.  
It may well be that appellant was a suspect in an ongoing investigation.  But being a suspect alone does not cause any
ensuing interview to rise to the level of custodial interrogation.  Meek v. State, 790 S.W.2d 618, 621
(Tex. Crim. App. 1990) (citing Beckwith v. State, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976)); accord, Samuel v. State, No. 02-08-341-CR, 2010 Tex. App. Lexis 1372, *17 (Tex. App.Fort
Worth February 25, 2010, no pet.) (not designated for
publication) (stating the same).   Moreover,
we cannot forget that appellant was actually mirandized before executing his written
confession.  And, upon receiving those
warnings, he not only indicated to the ranger that he understood them but also
that he wished to proceed without counsel. 

Missing
from the record is any evidence of threats. 
Nor do we have before us evidence of appellant being physically
restrained in any manner.   And, that
Foster informed appellant about the potential range of punishment for the
alleged offense and stated he would let the district attorney know that
appellant cooperated falls short of evincing psychological coercion.  Indeed, appellant himself characterized the
representations (in his appellate brief) as seem[ing]
innocuous enough.  Furthermore, they could
have been reasonably interpreted, by the trial court, as an effort to impress
upon appellant the gravity of the situation and as a means of fully informing
him of potential ramifications arising from the allegation.  In other words, the ranger may have simply
been attempting to provide appellant with all the information available to
assist him in making an informed choice. 
And, if placed within that perspective, we cannot say that they alone or
in conjunction with the other circumstances then present somehow obligated the
trial court to conclude that appellant was neither free to leave nor able to
terminate the interview at will.  
            Simply put, the trial court had
basis to legitimately conclude that the interview was not tantamount to a
custodial interrogation.  As stated in Martinez v. State, 131 S.W.3d 22 (Tex.
App.San Antonio 2003, no pet.), when the
circumstances show that the individual acts upon the invitation or request of
the police, and there are no threats, express or implied, that he will
be forcibly taken, then that person is not in custody at that time.  Id. at 32.  Those are
the indicia here.  Thus, the decision to
deny suppression of the statement because appellant was not mirandized at the beginning of the interview was not
error.    
Issue Eleven  Jury Charge
            Via issue eleven, appellant asserts
that the trial court erred by failing to submit a limiting instruction to the
jury regarding the purposes for which it could consider the evidence of the
aforementioned anal and oral sexual acts. 
We disagree and overrule the issue.
            The party opposing effort to admit
evidence admissible for a restricted purpose has the burden of requesting a
limiting instruction when the evidence is introduced.  Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001).  That is, to be effective, such an instruction
must be given when the evidence is admitted. 
See Rankin v. State, 974 S.W.2d 707, 712 (Tex. Crim. App. 1996).  If it is not, then the information simply
becomes part of the general evidence and may be considered by the jury for all
purposes.  See Garcia v. State, 887 S.W.2d 862, 878 (Tex.
Crim. App. 1994).  We say this since appellant
did not request a limiting instruction before, during or immediately after the
written confession was offered, admitted into evidence, and read to the
jury.  Consequently, his statement was
admitted for all purposes.  See Hammock v. State, 46 S.W.3d at 895
(holding that when a party fails to ask for a limiting instruction until later
in the trial, the evidence is admitted for all purposes); Jones v. State, 119 S.W.3d 412, 424 (Tex. App.Fort
Worth 2003, no pet.) (holding that when a party
requests a limiting instruction concerning a witness's testimony after the
witness testifies, the evidence is admitted for all purposes).  
Issues Seven through Ten 
Sufficiency of the Evidence
            In his next four issues, appellant
contends that the evidence is both legally and factually insufficient to
establish that he had engaged in sexual intercourse with the victim when she was
fourteen or younger and seventeen or younger. 
We overrule each issue for several reasons.
            First, the assertion is premised on
the exclusion of his confession.  Since
we overruled the issues attacking the trial courts decision to admit the
confession, the foundation of his argument is missing.  
            Second, within the
confession lay appellants own admission to engaging in sexual intercourse with
the child.  To this we add the
childs own testimony about her age when the two first coupled, i.e. thirteen years old.  Those activities continued, according to the
victim, during the time the family lived in both Quanah and Wichita Falls.   So too did appellants stepdaughter testify
that after she left Wichita Falls and returned to Quanah at the age of sixteen,
appellant picked her up from work.  On
the way home, he told her that he would make her get out of the car and walk if
she did not have sex with him.  She
complied with the demand, according to the girl.  
            It is well settled that "[t]he
testimony of a victim [,] standing alone, even when the victim is a child, is
sufficient to support a conviction for sexual assault."  Ruiz v.
State, 891 S.W.2d 302, 304 (Tex. App.San Antonio 1994,
pet. ref'd) (citing Villalon v. State, 791 S.W.2d 130 (Tex.Crim.App.1990)).  Here, the childs own words coupled with
appellants confession constituted some evidence from which the jury could
rationally deduce beyond reasonable doubt that the victim was fourteen and
under when the sexual activity began and continued while she was between the
ages of fifteen and seventeen.  
Moreover, such a conclusion would not be supported by weak evidence, or overwhelmed
by contrary evidence, or manifestly unjust.
Issue Twelve  Jury
Instruction Pursuant to Art. 38.22
            Via his last issue, appellant posits
that he was entitled to a charge per art. 38.22, §7 of the
Texas Code of Criminal Procedure and that the trial court erred in refusing it
to him.   We overrule the
issue.  
             Per the aforementioned statute, when question
regarding the legality by which evidence is obtained is raised by the
evidence, the trial judge shall appropriately instruct the jury, generally, on
the law pertaining to such statement."  
Tex. Code Crim.
Proc. Ann. art. 38.22, §7 (Vernon 2005). 
If no such evidence (irrespective of whether it is strong, weak,
contradicted, impeached or unbelievable) exists, then it is not error to omit
such an instruction.  Muniz v. State, 851 S.W.2d 238, 254
(Tex. Crim. App.1993).  By
evidence, it is meant evidence creating a fact issue encompassing the manner in
which the proof was secured.  See Madden v. State, 242 S.W.3d 504,
509-10 (Tex. Crim. App. 2007).  If no
such fact issue exists, then an instruction need not be given.  Id.  
            According to appellant, there
existed a fact issue as to whether he was in custody or whether he underwent a
custodial interrogation when providing his statement.  Yet, we are cited to nothing of record
illustrating that the factual circumstances from which his statement arose were
in dispute or otherwise contradicted. 
Nor did we find any such evidence. 
Instead, it appears that appellant simply wanted the jury to have the
opportunity to apply the test for what constitutes a custodial interrogation to
the undisputed evidence.  That falls
outside the scope of art. 38.22.   See Madden v. State, 242 S.W.3d at
511-13.    
Having
overruled each issue, we affirm the judgments of the trial court.
 
                                                            
                                                                        Brian Quinn
                                                                        Chief
Justice
 
Do not publish.
 




[1]According to that provision, [n]otwithstanding Rules 404 and 405, Texas Rules of Evidence,
evidence of other crimes, wrongs, or acts committed by the defendant against
the child who is the victim of the alleged offense shall be admitted for its
bearing on relevant matters, including: (1) the state of mind of the defendant
and the child; and (2) the previous and subsequent relationship between the
defendant and the child.  Tex. Code Crim. Proc. Ann. art. 38.37,
§2 (Vernon Supp. 2009).
 


[2]Rule 401 of the Texas Rules of
Evidence states: [r]elevant evidence means
evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.  Tex. R. Evid. 401 (Vernon 2003). 
Rule 403 states: [a]lthough relevant,
evidence may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, or needless presentation of
cumulative evidence.  And, Rule 404(b)
states:  [e]vidence
of other crimes, wrongs or acts is not admissible to prove the character of a
person in order to show action in conformity therewith . . . .


