Nathan G. Mims v. State

Opinion issued April 24, 2014

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-13-00170-CR

NO. 01-13-00171-CR

———————————

NATHAN G. MIMS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 434th District Court

Fort Bend County, Texas

Trial Court Case Nos. 12-DCR-060656A & 12-DCR-060657A

OPINION

Appellant Nathan Mims was charged by indictment with evading arrest, two

counts of burglary of a habitation, aggravated assault against a public servant, and

possession of marijuana. The State dismissed the aggravated assault against a

public servant and possession of marijuana charges on the day of the trial—

proceeding to trial only on the charges of burglary of a habitation and evading

arrest in a motor vehicle. Mims pleaded guilty to evading arrest, and a jury found

Mims guilty of one count of burglary of a habitation. Mims was sentenced to ten

years in prison for evading arrest and 16 years for burglary of a habitation, and he

appealed both judgments. Finding no error, we affirm. 1

Background

On May 29, 2012, Irving Guenther was sleeping upstairs in his parents’

home when he heard someone breaking down the front door. He screamed,

“what’s going on” from upstairs. Irving testified that as soon as the intruder heard

him scream, he ran, got in his car, and drove away. Irving ran outside to look at

the license plate of the car, made eye contact with the burglar, and called the

police. After Irving called 911, Mims led multiple vehicles from the Fort Bend

County Sheriff’s office, Fort Bend County Constable Precinct 4, Sugar Land

Police, and Texas Department of Public Safety on a car chase, at one point driving

through someone’s front and backyard, before he was apprehended.

1

Appellate cause number 01-13-00170 is the appeal from the conviction for

burglary of a habitation (trial court number 12-DCR-60656A), and appellate cause

number 01-13-00171 is the appeal from the conviction for evading arrest (trial

court number 12-DCR-60657A). We address all of Mims’s points of error from

both cases in this opinion.

2

Irving testified that he had not invited anyone over to the house that

morning. He identified Mims as the intruder in a photo lineup and at trial.

Irving’s mother, Araceli, testified that she locked the front door before she

left for work that morning. She also testified that she never gave Mims permission

to be in the home, but acknowledged that Mims knew her son Kirk, who no longer

lived in the home, and that Kirk may have given Mims permission.

Section 38.04 of the Texas Penal Code

In his sole point of error in appellate cause number 01-13-00171-CR, Mims

contends that section 38.04 of the Texas Penal Code, the evading arrest statute, is

unconstitutional because it “legislates two different levels of crime and punishment

for the same conduct.” 2

A. Standard of Review

An “analysis of a statute’s constitutionality must begin with the presumption

that the statute is valid and that the Legislature did not act arbitrarily or

unreasonably in enacting it.” State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim.

App. 2013) (citing Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002)).

The individual challenging the statute has the burden to establish its

unconstitutionality. Id. (citing Lykos, 330 S.W.3d at 908). To prevail on a facial

challenge, a party must establish that the statute always operates unconstitutionally

2

Mims made an oral motion to dismiss the evading arrest charge before trial began,

arguing that the statute was unconstitutional, and the trial court denied the motion.

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in all possible circumstances. Rosseau, 396 S.W.3d at 557. “A facial attack upon

a penal statute is solely and entirely a legal question and is always subject to de

novo review.” Karenev v. State, 281 S.W.3d 428, 435 (Tex. Crim. App. 2009).

B. Applicable Law

Under Texas Penal Code section 38.04(a), a person commits the offense of

evading arrest or detention if he “intentionally flees from a person he knows is a

peace officer or federal special investigator attempting lawfully to arrest or detain

him.” TEX. PENAL CODE ANN. § 38.04(a). Before May 23, 2011, section 38.04(b)

governed whether the offense was punishable as a state jail felony or a felony of

the third degree, as follows:

(1) a state jail felony if:

(A) the actor has been previously convicted under this section;

or

(B) the actor uses a vehicle while the actor is in flight and the

actor has not been previously convicted under this section;

(2) a felony of the third degree if:

(A) the actor uses a vehicle while the actor is in flight and the

actor has been previously convicted under this section; or

(B) another suffers serious bodily injury as a direct result of an

attempt by the officer from whom the actor is fleeing to

apprehend the actor while the actor is in flight . . . .

Act of May 27, 2009, 81st Leg., R.S., ch. 1400, § 4, sec. 38.04, 2009 Tex. Gen.

Laws 4385, 4385–86.

4

On May 23, 2011, Senate Bill 496 amended subsections (b)(1) and (b)(2) to

provide that a violation of 34.08(a) was:

(1) a state jail felony if:

(A) the actor has been previously convicted under this section;

or

(B) the actor uses a vehicle or watercraft while the actor is in

flight and the actor has not been previously convicted under this

section;

(2) a felony of the third degree if:

(A) the actor uses a vehicle or watercraft while the actor is in

flight and the actor has been previously convicted under this

section; or

(B) another suffers serious bodily injury as a direct result of an

attempt by the officer from whom the actor is fleeing to

apprehend the actor while the actor is in flight . . . .

Act of May 23, 2011, 82d Leg., R.S., ch. 391, § 1, sec. 38.04, 2011 Tex. Gen.

Laws 1046, 1046–47

However, four days later, on May 27, 2011, Senate Bill 1416 amended

subsections (b)(1) and (b)(2) again, to remove (b)(1)(B) entirely, and to amend

(b)(2)(A) and add (b)(2)(C). Senate Bill 1416 provided that a violation of 34.08(a)

was:

(1) a state jail felony if:[

[(A)] the actor has been previously convicted under this section;

[or

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[(B) the actor uses a vehicle or watercraft while the actor is in

flight and the actor has not been previously convicted under this

section;]

(2) a felony of the third degree if:

(A) the actor uses a vehicle or watercraft while the actor is in

flight [and the actor has been previously convicted under this

section]; [or]

(B) another suffers serious bodily injury as a direct result of an

attempt by the officer from whom the actor is fleeing to

apprehend the actor while the actor is in flight; or

(C) the actor uses a tire deflation device against the officer

while the actor is in flight . . . .

Act of May 27, 2011, 82d Leg., R.S., ch. 920, § 3, sec. 38.04, 2011 Tex. Gen.

Laws 2321, 2322.

As a result of the May 27 amendment, evading arrest while using a vehicle

in flight became punishable as a third degree felony, and not a state jail felony.

C. Analysis

Mims bases his constitutional challenge to section 38.04 on the version of

the statute that was enacted on May 23, 2011, when Senate Bill 496 passed.

Specifically, Mims contends that iteration of section 38.04(b) is unconstitutional

because it provides for two different punishments for the same conduct insofar as

the offense of evading arrest using a vehicle while in flight was punishable as a

state jail felony under (b)(1)(B) and a third degree felony under (b)(2)(A). Mims

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makes no mention of the fact that 38.04(b) was amended again on May 27, to

remove (b)(1)(B).

Senate Bill 496 and Senate Bill 1416 both stated that the amendments would

take effect September 1, 2011. Act of May 23, 2011, 82d Leg., R.S., ch. 391, § 3,

2011 Tex. Gen. Laws 1046, 1046–47; Act of May 27, 2011, 82d Leg., R.S., ch.

920, § 5, 2011 Tex. Gen. Laws 2321, 2322. Because Senate Bill 1416 passed on

May 27, four days after Senate Bill 496 passed, and effectively repealed the

portion of Senate Bill 496 that Mims challenges, we conclude that Senate Bill 1416

superseded Senate Bill 496. See TEX. GOV’T CODE ANN. § 311.025(b) (stating that

“if amendments to the same statute are enacted at the same session of the

legislature, one amendment without reference to another [and] the amendments are

irreconcilable, the latest in date of enactment prevails); State v. Preslar, 751

S.W.2d 477, 481 (Tex. 1988) (orig. proceeding) (indicating that in determining

whether bills are reconcilable, courts may consider the object to be attained, the

circumstances under which the statute was enacted, and the legislative history);

Price v. State, 35 S.W.3d 136, 142 (Tex. App.—Waco 2000, pet. ref’d) (stating that

a court’s role in interpreting the effects of amendments is to “look for and give

effect to the [legislature’s] intent”). Because Senate Bill 496, which includes the

provisions about which Mims complains, was not the law at the time Mims was

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arrested, his constitutional challenge to section 38.04 fails. We overrule Mims’s

sole point of error in cause number 01-13-00171-CR. 3

Limitation of Voir Dire

In his third point of error, Mims contends that the trial court erred in limiting

his voir dire on the issue of mitigating or aggravating factors. He contends that he

needed information about the factors the venire thought were relevant to

punishment in order to make his challenges for cause.

A. Standard of Review and Applicable Law

We review the trial court’s restriction of voir dire for an abuse of discretion.

Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). Questions attempting

to commit venire members to give mitigating or aggravating effect to particular

facts are improper. See Sells v. State, 121 S.W.3d 748, 756–57 (Tex. Crim. App.

2003) (en banc). If such questions are allowed and a member of the venire states

that he would not consider a particular type of evidence as mitigating, that member

of the venire cannot be challenged for cause on that basis. See Morrow v. State,

910 S.W.2d 471, 473 (Tex. Crim. App. 1995).

B. Analysis

During voir dire, Mims asked, “If you decided that somebody was guilty,

then what factors would you consider in determining such a person’s punishment?”

3

The remaining points of error relate to Mims’s appeal in the burglary of a

habitation case, which is appellate cause number 01-13-00170-CR.

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The trial court instructed Mims’s counsel to instead ask whether they would

consider specific factors to be mitigating or aggravating, rather than asking what

factors they consider important in an open-ended way. Because Mims sought to

have venire members commit to give mitigating or aggravating effect to particular

facts, his question was improper, and a venire person’s answer to that question

could not have been the basis for a valid challenge for cause. See Standefer v.

State, 59 S.W.3d 177, 181 (Tex. Crim. App. 2001) (stating that “a prospective

juror is not challengeable for cause simply because he does not consider a

particular type of evidence to be mitigating”); Raby v. State, 970 S.W.2d 1, 3-4

(Tex. Crim. App. 1998) (holding that “trial court does not abuse its discretion by

refusing to allow a defendant to ask venire members questions . . . about particular

mitigating evidence”). Therefore, we hold that the trial court did not abuse its

discretion in limiting Mims’s voir dire, and we overrule Mims’s third point of

error.

Cross-Examination

In his fourth point of error, Mims contends that the trial court erred in

refusing to allow him to present evidence to support his defenses—that he did not

intend to commit theft and that he had effective consent to enter the home—

through cross-examination of Irving and Araceli.

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C. Standard of review

We review a trial court’s decision to limit cross-examination under an abuse

of discretion standard. Ho v. State, 171 S.W.3d 295, 304 (Tex. App.—Houston

[14th Dist.] 2005, pet. ref’d) (citing Love v. State, 861 S.W.2d 899, 903 (Tex.

Crim. App. 1993) (en banc)). When a trial court denies a defendant the

opportunity “to elicit specific responses from [a] State’s witness,” error is

preserved by (1) calling the witness to the stand outside the presence of the jury

and asking specific questions or (2) making an offer of proof that demonstrates

what questions would have been asked and the expected answers to those

questions. See Koehler v. State, 679 S.W.2d 6, 9 (Tex. Crim. App. 1984) (en

banc); Stults v. State, 23 S.W.3d 198, 203 (Tex. App.—Houston [14th Dist.] 2000,

pet. ref’d).

D. Analysis

Mims complains that the trial court erred by preventing him from eliciting

answers to three questions on cross-examination. First, Mims asked Irving,

“[W]hen [Mims] broke into your house, he was looking for your brother, Kirk; is

that correct?” The State objected, “Objection, that calls for speculation,” and the

trial court sustained the objection.

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Second, Mims asked Araceli, “And the burglar could have just grabbed the

box and run; isn’t that correct?” The State objected, “Judge, I’m going to object,

that calls for speculation,” and the trial court sustained the objection.

Third, Mims asked Araceli, “[C]ould [Mims] have ever spent the night in

your guest bedroom without your knowledge?” The State objected, “I’m going to

object, that calls for speculation, it’s a vague question,” and the trial court

sustained the objection.

In each instance, Mims continued with cross-examination and he never made

offers of proof or bills of exception. Accordingly, we hold that his claim that the

trial court improperly denied him the opportunity to elicit responses to these

questions was not preserved for our review. See Mays v. State, 285 S.W.3d 884,

889 (Tex. Crim. App. 2009) (to preserve error regarding trial court’s exclusion of

evidence, complaining party must comply with Rule of Evidence 103(a) by making

an offer of proof which sets forth the substance of the proffered evidence); Watts v.

State, 371 S.W.3d 448, 464 (Tex. App.—Houston [14th Dist.] 2012, no pet.)

(concluding appellant failed to preserve error and stating that “[w]ithout an offer of

proof, [the appellate court] decline[s] to speculate about the nature of the

[witness’s] excluded testimony.”). Accordingly, we overrule Mims’s fourth point

of error.

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Admissibility of Pre-trial Photo Lineup

In his fifth point of error, Mims contends that the trial court erred in

admitting evidence that Irving identified Mims in a pre-trial photo lineup. Mims

contends the photo array was impermissibly suggestive because not all of the

subjects had beards and most of them were of a heavier build than Mims.

A. Standard of Review and Applicable Law

We review de novo a trial court’s ruling on the suggestiveness of a pre-trial

photo array. Gamboa v. State, 296 S.W.3d 574, 581 (Tex. Crim. App. 2009). The

defendant bears the burden of establishing by clear and convincing evidence that

the procedure was impermissibly suggestive. Page v. State, 125 S.W.3d 640, 647

(Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). We consider the totality of the

circumstances in order to determine whether “‘the photographic identification

procedure was so impermissibly suggestive as to give rise to a very substantial

likelihood of irreparable misidentification.’” Gamboa, 296 S.W.3d at 581–82

(quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971 (1968)).

The court does not consider whether the procedures created a substantial likelihood

for irreparable misidentification unless the court has first determined that the

procedures were impermissibly suggestive. Barley v. State, 906 S.W.2d 27, 33

(Tex. Crim. App. 1995) (en banc); Cantu v. State, 738 S.W.2d 249, 251-52 (Tex.

Crim. App. 1987) (en banc).

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B. Analysis

The content of a photo array may be suggestive if the suspect is the only

individual who closely resembles the witnesses’ description. Barley, 906 S.W.2d

at 33. But “lineup participants need not be identical to satisfy due process

requirements.” Luna v. State, 268 S.W.3d 594, 607–08 (Tex. Crim. App. 2008).

Here, Detective Bell of the Fort Bend Sheriff’s office compiled a photo

lineup containing six photographs—one of Mims and five of men matching the

general description given of Mims—from which Irving identified Mims as the

burglar. The six photographs were admitted as State’s Exhibit 21. We conclude

that the trial court did not err in admitting evidence of the pre-trial identification

because all six men in the photo array fit the rough description of Mims—all were

black males of similar age, build, hair style, and with similar facial hair. See

Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985) (pre-trial lineup was

not unduly suggestive, even though height, weight, and skin tone of individuals in

lineup varied); Burks v. State, No. 01-10-00633-CR, 2012 WL 151463, at *3–4

(Tex. App.—Houston [1st Dist.] Jan. 19, 2012, no pet.) (mem. op., not designated

for publication) (holding photo lineup was not impermissibly suggestive because

all men fit general description of appellant—wore braids and were of similar age,

race, and size). Accordingly, we overrule Mims’s fifth point of error.

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Pre-trial Motion to Dismiss and Directed Verdict

In his second point of error, Mims contends that the trial court erred in

denying his oral pre-trial “motion to dismiss [for] insufficiency of the evidence,”

which the trial court construed as a pre-trial motion for directed verdict, and his

motion for directed verdict made at the close of evidence. According to Mims,

there was insufficient evidence to convict him of burglary of a habitation because

he had apparent authorization to enter the home and, therefore, the State could not

establish that Mims entered without consent.

A. Standard of Review

“We treat a complaint of a denial of a motion for directed verdict as a

challenge to the sufficiency of the evidence to support a conviction.” Lewis v.

State, 193 S.W.3d 137, 139–40 (Tex. App.—Houston [1st Dist.] 2006, no pet.)

(citing Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996)). When

reviewing the sufficiency of the evidence, we view all of the evidence in the light

most favorable to the verdict to determine whether any rational fact finder could

have found the essential elements of the offense beyond a reasonable doubt.

McGregor v. State, 394 S.W.3d 90, 109 (Tex. App.—Houston [1st Dist.] 2012, pet.

ref’d) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)).

14

B. Applicable Law

A person commits the offense of burglary of a habitation if, without consent

of the owner, he enters a habitation with the intent to commit theft. TEX. PENAL

CODE ANN. § 30.02(a) (West 2011). Effective consent is defined as assent in fact,

whether express or apparent, and includes assent by a person legally authorized to

act for the owner. See TEX. PENAL CODE ANN. §§ 1.07(a)(11),(19), 31.01(3) (West

2011).

C. Analysis

To prove that Mims committed burglary of a habitation, the State had to

prove beyond a reasonable doubt that Mims entered a habitation without the

owner’s consent and with the intent to commit theft. See TEX. PENAL CODE ANN.

§ 30.02(a).

We conclude that the evidence supports a rational inference that Mims

entered the Guenther home without consent and with intent to commit theft. First,

Mims entered by kicking in the front door, and Araceli testified that she did not

give Mims permission to enter the home. Second, Mims exhibited a consciousness

of guilt—he ran after hearing Irving scream and then he led police on a car chase.

Viewing this evidence in the light most favorable to the verdict, we conclude

that a rational juror could have found that Mims entered the home without consent

of the owner and with intent to commit theft. See Bigby v. State, 892 S.W.2d 864,

15

883 (Tex. Crim. App. 1994) (“Evidence of flight or escape is admissible as a

circumstance from which an inference of guilt may be drawn.”); Ellet v. State, 607

S.W.2d 545, 550 (Tex. Crim. App. [Panel Op.] 1980) (testimony that no consent

given sufficient to establish absence of effective consent); Rangel v. State, 179

S.W.3d 64, 69 (Tex. App.—San Antonio 2005, pet. ref’d) (finding sufficient

evidence of lack of consent where appellant had previously had access to the

residence, but owner testified that accused was not given permission to enter on the

day in question). Accordingly, we conclude that the trial court did not err in

denying Mims’s motion for directed verdict, and we overrule Mims’s second point

of error.4

Extraneous Offense Instruction

In his first point of error, Mims contends that the trial court erred in denying

his request for an extraneous offense instruction in the jury charge.

A. Standard of Review

In analyzing a jury-charge issue, our first duty is to decide if error exists.

Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003) (en banc). Only

if we find error do we then consider whether an objection to the charge was made

4

We hold that the trial court did not err in denying Mims’s pre-trial motion because

a motion to dismiss for insufficient evidence is not a proper pre-trial motion. See

Lawrence v. State, 240 S.W.3d 912, 916 (Tex. Crim. App. 2007) (quoting Woods

v. State, 153 S.W.3d 413, 415 (Tex. Crim. App. 2005)) (stating that pre-trial

motions “cannot be used to ‘argue that the prosecution could not prove one of the

elements of the crime,” and a pre-trial proceeding should not be a ‘mini-trial’ on

the sufficiency of the evidence to support an element of the offense”).

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and analyze for harm. Id. “When the defendant fails to object or states that he has

no objection to the charge, we will not reverse for jury-charge error unless the

record shows ‘egregious harm’ to the defendant.” Ngo v. State, 175 S.W.3d 738,

734–44 (Tex. Crim. App. 2005) (en banc).

B. Analysis

Before voir dire, Mims requested a two-paragraph limiting instruction

regarding the extraneous offense of aggravated assault on a public servant. The

trial court ruled that it would include the first paragraph, but denied Mims’s

request to include the second.

Although Mims anticipated that the State would introduce evidence of the

aggravated assault on a public servant, the State actually presented no evidence

regarding the offense, nor did the State mention the offense in opening or closing

argument. Because the State presented no evidence of the extraneous offense, we

hold that trial court did not err in refusing to charge the jury with a portion of

Mims’s requested limiting-instruction. See Bluitt v. State, 137 S.W.3d 51, 54 (Tex.

Crim. App. 2004) (holding that “such an instruction is a useless act if no

unadjudicated offenses have been introduced”); Graves v. State, 176 S.W.3d 422,

436 (Tex. App.—Houston [1st Dist.] 2004, pet. struck) (holding trial court did not

err in failing to instruct jury on extraneous offense where there was no evidence of

an extraneous offense). Accordingly, we overrule Mims’s first point of error.

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Improper Jury Arguments

In his sixth and seventh points of error, Mims contends that the prosecutor

made improper jury arguments during closing argument because the prosecutor

(1) injected new facts harmful to Mims and (2) misstated the law.

A. Standard of Review

“The law provides for, and presumes, a fair trial free from improper

argument by the State.” Thompson v. State, 89 S.W.3d 843, 850 (Tex. App.—

Houston [1st Dist.] 2002, pet. ref’d) (citing Long v. State, 823 S.W.2d 259, 267

(Tex. Crim. App. 1991) (en banc)). The approved areas of jury argument are

(1) summation of the evidence, (2) reasonable deduction from the evidence,

(3) answer to the argument of opposing counsel, and (4) plea for law enforcement.

Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (en banc); Andrade

v. State, 246 S.W.3d 217, 229–30 (Tex. App.—Houston [14th Dist.] 2007, pet.

ref’d). Wide latitude is allowed in drawing inferences from the evidence, so long

as the inferences drawn are reasonable, fair, legitimate, and offered in good faith.

Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). In examining

challenges to a jury argument, a court considers the remark in the context in which

it appears. Id.

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B. Analysis

In the first of the two comments about which Mims complains, the

prosecutor argued:

Kirk, who he’s purporting to help and be his friend, and only at a

distance because he’s tired of him and he doesn’t want to deal with

him anymore. Kirk and the defendant are not friends, not at all.

Mims objected, “Objection, that’s for the jury to decide,” and the trial court

overruled Mims’s objection, noting “[t]hat’s what arguments are for.” On appeal,

Mims argues this argument “injected new facts” harmful to Mims.

In the second complained-of portion of the prosecutor’s argument, the

prosecutor said:

[O]nly the things that you heard from that witness stand, testimony

from those witnesses and the admitted evidence is the only thing

that’s going to be considered. Not of assumptions of, well, what if

this. Well, is it possible this? No, only evidence. So, any theories or

so forth that are supported by the evidence, then you consider it, if

they’re not, it’s not there.

Mims objected, “Objection, Your Honor, that misstates the law. I think the

jury’s already been instructed earlier in the case that reasonable alternative

hypothesis are legitimate.” The prosecutor responded, “Your Honor, that’s what I

just said, anything supported by law or reasonable thereof,” and the trial court

overruled the objection.

Neither of these comments was improper, because the prosecutor properly

encouraged the jury to make reasonable deductions from the evidence. See

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Wesbrook, 29 S.W.3d at 115. In the first comment, the prosecutor was urging the

jury to deduce that Kirk and Mims were not friends. This was a reasonable

deduction from the evidence, because Irving testified that he did not recognize

Mims when he saw Mims fleeing his home, that Kirk had never mentioned Mims

to Irving, and that Mims did not look like someone who may “have hung around”

Kirk. Araceli had also testified that, although she was not certain she had ever

seen Mims before the incident, she knew she had never heard of Mims.

In the second comment, the prosecutor argued—correctly—that the jury

should consider only theories supported by the evidence. Because a prosecutor

may argue, in general terms, that the jury should make logical inferences drawn

only from the evidence, we hold that the trial court did not err by overruling

Mims’s objections to these comments. See Borjan v. State, 787 S.W.2d 53, 57

(Tex. Crim. App. 1990) (holding proper “to draw from the facts in evidence all

inferences which are reasonable, fair and legitimate, but he may not use the jury

argument to get before the jury, either directly or indirectly, evidence which is

outside the record”). Accordingly, we overrule Mims’s sixth and seventh points of

error.

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Conclusion

We affirm the trial court’s judgment.

Rebeca Huddle

Justice

Panel consists of Chief Justice Radack and Justices Massengale and Huddle.

Publish. TEX. R. APP. P. 47.2(b).

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