COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-10-00319-CR
STEVEN BISHOP APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
MEMORANDUM OPINION1 ----------
I. INTRODUCTION
A jury found Appellant Steven Bishop guilty as charged in the indictment of
felony assault on a family or household member, having been previously
convicted of assault against a family member. See Tex. Penal Code Ann.
§ 22.01(b) (West 2011). In four points, Bishop argues that the trial court erred by
failing to instruct the jury on the proper use of his stipulation to his prior assault-
1 See Tex. R. App. P. 47.4. family violence conviction and by giving an incorrect parole law instruction and
that he suffered egregious harm from those charge errors. Because the record
does not demonstrate egregious harm related to either of his jury-charge
complaints, we will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Bishop and Tammy Vaughn were in a relationship. One day while the two
were at a laundromat, Tammy received a cell phone call from a male friend,
Gabe. Bishop became angry, started yelling, and grabbed Tammy‘s arms and
neck. Gabe called Tammy‘s brother Billy and told him about the incident; Gabe
said he had overheard Tammy screaming for help, gasping for air, and begging
Bishop to stop. Gabe told Billy that Bishop had choked Tammy until she had
passed out.
Billy, along with his friend and his friend‘s girlfriend, went to the apartment
complex where Tammy and Bishop lived. Billy saw Tammy and Bishop in
Bishop‘s truck; Tammy was crying and looked terrified, and Bishop was holding
on to her shirt. Bishop got out of the car, and he and Billy began fighting. Billy
told Tammy to get in his vehicle, Tammy complied, and Billy got in his vehicle
and drove off. Tammy was shaking and crying, and she told Billy that Bishop
had choked her until she had passed out. Billy saw red marks on Tammy‘s neck.
Denton Police were dispatched to the scene, and Bishop told police that he
and Tammy had been in an argument and that Tammy had left with some other
people. Denton Police Officer Lori Luce pulled over Billy‘s car, and spoke to
2 Tammy, Billy, and the other two passengers individually. Tammy was very upset
and told Officer Luce that Bishop had put his hand around her neck, had choked
her, and had pushed her against a wall and that she had lost her breath as a
result. Officer Luce saw red marks on Tammy‘s neck consistent with finger
marks. Tammy demonstrated to Officer Luce how Bishop had choked her.
Tammy‘s mother and sister arrived at some point, and Tammy told her
sister that Bishop had choked her. Tammy‘s sister also saw red marks on
Tammy‘s neck and collarbone. Tammy agreed to go to the police station to
provide a statement and to have photographs taken of her neck. She rode with
her mother and sister. When they arrived at the station, Tammy‘s level of
cooperation had changed. She agreed to have photographs taken, but she
refused to make a written statement because she feared what Bishop would do.
Several days after the incident, the Denton County District Attorney‘s
Office received a letter, purportedly written by Tammy but actually written by
Bishop, stating that he had not touched her and that he was a ―good man.‖ The
letter stated that Tammy‘s red spots were from ―stressing over the yelling‖ and
that Tammy had ―over-reacted.‖
About a month after the incident, Tammy signed an affidavit of
nonprosecution, stating that the verbal statement she had given police was false
and that Bishop had never touched her. Tammy also sent an email to the district
attorney‘s office requesting that the charges against Bishop be dismissed.
3 Prior to trial, someone using Bishop‘s name and pin number made a call
from jail to Tammy. Investigator Christie Perry with the Denton County District
Attorney‘s office listened to a recording of the call and heard the caller tell
Tammy that ―they ain‘t got shit‖ and could not convict him without her testimony.
Tammy later told Investigator Perry that nothing had happened between her and
Bishop on the date in question.
On the day of Bishop‘s trial, Tammy was shaking and crying. She told
Investigator Perry that she did not want to testify because ―she‘s scared to death
as to what could happen if [Bishop] doesn‘t get convicted.‖
At trial, the State offered into evidence Bishop‘s stipulation to his prior
assault-family violence conviction. Bishop did not object to the evidence or
request a limiting instruction, and the trial court admitted the stipulation into
evidence. The trial court‘s charge on guilt/innocence instructed the jury to find
Bishop guilty of felony assault if it found that he
intentionally, knowingly, or recklessly cause[d] bodily injury to Tammy Bryant, a member of the defendant‘s family or household by grabbing, choking and strangling Tammy Bryant with defendant‘s hand, as alleged in the indictment, and if [it] further [found] from the evidence beyond a reasonable doubt that the defendant, previously thereto, had been convicted of the offense of assault against a member of the defendant‘s family or household under Section 22.01, Penal Code, in that on the 20th day of May, 2005, in cause number CR-2004-02307-A, styled ―The State of Texas vs. Steven Bishop‖ on the docket of the County Criminal Court No. 1 of Denton County, Texas.
4 The court‘s charge on guilt/innocence did not reference Bishop‘s stipulation to his
prior assault-family violence. Bishop made no objections to the charge. The jury
found him guilty.
Bishop pleaded true to the two prior felony sentence enhancements, which
increased his punishment range to twenty-five to ninety-nine years‘ or life
imprisonment.2 The jury assessed Bishop‘s punishment at eighty years‘
imprisonment. The trial court sentenced him accordingly.
III. STANDARD OF REVIEW
In our review of a jury charge, we first determine whether error occurred; if
error did not occur, our analysis ends. See Abdnor v. State, 871 S.W.2d 726,
731–32 (Tex. Crim. App. 1994); see also Sakil v. State, 287 S.W.3d 23, 25–26
(Tex. Crim. App. 2009). If error occurred, we then evaluate whether sufficient
harm resulted from the error to require reversal. Abdnor, 871 S.W.2d at 731–32.
If there is error in the court=s charge but the appellant did not preserve it at
trial, we must decide whether the error was so egregious and created such harm
that the appellant did not have a fair and impartial trial—in short, that Aegregious
harm@ has occurred. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1985) (op. on reh=g); see Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006);
Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).
2 See Tex. Penal Code Ann. § 12.42(d) (West Supp. 2011) (providing for such increased punishment upon showing two prior felony convictions).
5 Egregious harm ―‗is a difficult standard to prove and such a determination
must be done on a case-by-case basis.‘‖ Taylor v. State, 332 S.W.3d 483, 489
(Tex. Crim. App. 2011) (quoting Hutch, 922 S.W.2d at 171). In making an
egregious harm determination, Athe actual degree of harm must be assayed in
light of the entire jury charge, the state of the evidence, including the contested
issues and weight of probative evidence, the argument of counsel and any other
relevant information revealed by the record of the trial as a whole.@ Almanza,
686 S.W.2d at 171; see generally Hutch, 922 S.W.2d at 172B74. Errors that
result in egregious harm are those ―that affect the very basis of the case, deprive
the defendant of a valuable right, vitally affect the defensive theory, or make a
case for conviction clearly and significantly more persuasive.‖ Taylor, 332
S.W.3d at 490 (citing Almanza, 686 S.W.2d at 172). The purpose of this review
is to illuminate the actual, not just theoretical, harm to the accused. Almanza,
686 S.W.2d at 174.
IV. ANY ERROR IN NOT INSTRUCTING JURY ON STIPULATION DID NOT CAUSE EGREGIOUS HARM
In his first two points, Bishop argues that the trial court erred by failing to
sua sponte instruct the jury that his stipulation to his prior assault conviction
could only be used to invoke the jurisdiction of the court, not as evidence of his
guilt of the instant offense. Bishop did not object to the alleged charge error, but
he argues on appeal that he suffered egregious harm from the error.
6 Bishop was charged with the third-degree felony of assault-family violence.
An assault on a family member is a class A misdemeanor, but that same offense
is enhanced to a third-degree felony when ―it is shown on the trial of the offense
that the defendant has been previously convicted of an offense under this
chapter, Chapter 19, or Section 20.03, 20.04, 21.11, or 25.11 against a [family
member].‖ Tex. Penal Code Ann. § 22.01(b)(2)(A) (West 2011). The family
assault provisions mirror the enhancement provisions provided for repeat DWI
offenders. See id. § 49.09(b) (West Supp. 2011).
A jury charge must distinctly set forth the law applicable to the case and
set out all of the essential elements of the offense. Martin v. State, 200 S.W.3d
635, 639 (Tex. Crim. App. 2006). This requirement includes jurisdictional
elements. Id. In Martin, the court of criminal appeals addressed whether a jury
charge must instruct the jury to find the jurisdictional element of two prior DWI
convictions was satisfied by a defendant‘s formal written stipulation to the two
prior DWI convictions. Id. at 637. The court explained that, although a
defendant‘s stipulation to DWI enhancements obviates the need for evidentiary
proof of the element, the jury still must be instructed on all the law concerning a
felony DWI offense. Id. Specifically, the jury charge should include (1) some
reference to the jurisdictional element of two prior DWI convictions, and (2) some
reference to the defendant‘s stipulation and its legal effect of establishing the
jurisdictional element. Id. at 640–41. The court noted that there is no one
7 correct manner to instruct the jury and that the court ―may give whatever other
limiting instructions are appropriate under the circumstances.‖ Id. at 639.
Several courts have applied Martin‘s charge analysis concerning the use of
stipulations of prior DWI convictions in the felony DWI content to charges
concerning the use of stipulations of prior convictions in the repeat assault-family
violence context. See Davila v. State, 346 S.W.3d 587, 591 (Tex. App.—El Paso
2009, no pet.); Sheppard v. State, 5 S.W.3d 338, 340 (Tex. App.—Texarkana
1999, no pet.) (treating prior conviction for family violence offense as an essential
element of the felony assault offense). But see State v. Cagle, 77 S.W.3d 344,
346 n.2 (Tex. App.—Houston [14th Dist.] 2002, pet. ref‘d) (treating prior family
violence conviction requirement as an enhancement provision rather than an
essential element of the felony charge); see also Zavala v. State, No. 03-05-
00051-CR, 2007 WL 135979, at *1 n.2 (Tex. App.—Austin Jan. 22, 2007, no pet.)
(mem. op., not designated for publication) (recognizing the split between
Sheppard and Cagle).
The State does not dispute that Bishop‘s prior assault-family violence
conviction was a jurisdictional element, not a sentencing enhancement, and that,
consequently, Martin applies to require a jury charge regarding Bishop‘s
stipulation to his prior assault-family violence conviction. See 200 S.W.3d at 639.
However, the State argues that Martin does not require the trial court to sua
sponte include a limiting instruction in the jury charge.
8 Martin states that at least one approved method of charging the jury on a
stipulation ―would include‖ a limiting instruction. See id. Martin does not,
however, expressly require a limiting instruction regarding a stipulation in all
cases. See id.; see also Grisby v. State, No. 05-08-01351-CR, 2009 WL
2274101, at *1 (Tex. App.—Dallas July 30, 2009, no pet.) (not designated for
publication) (so stating). Generally, limiting instructions need not be included in
the charge when a defendant fails to request an instruction when the offensive
evidence is admitted. See Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim.
App. 2001).
Here, however, we need not decide whether the trial court erred by not sua
sponte giving a limiting instruction because the record reflects that, even
assuming error, Bishop was not egregiously harmed. Because Bishop did not
object to the charge error, we reverse only for egregious harm. See Almanza,
686 S.W.2d at 171; see also Tex. Code Crim. Proc. Ann. art. 36.19; Hutch, 922
S.W.2d at 171.
In determining whether egregious harm exists, we note that without a
limiting instruction in the charge on Bishop‘s stipulation, a danger exists the jury
might consider Bishop‘s prior conviction as evidence of his guilt of the charged
assault in this case. However, as the Dallas court of appeals pointed out in
Grisby,
[A]ppellant arguably also could have benefitted from the defect in the charge. Specifically, the trial court‘s failure to instruct on the stipulation both reduced the number of references to [his] prior
9 convictions, but also permitted the jury to acquit [him] if the jury was not convinced beyond a reasonable doubt about the prior convictions.
2009 WL 2274101, at *2.
Regarding the harm in light of the state of the evidence, Bishop argues that
the issue of whether he assaulted Tammy was contested at trial because, prior to
Bishop‘s trial, Tammy indicated her desire not to press charges, filled out an
affidavit of nonprosecution, and told Bishop‘s attorney that Bishop had not
touched her. However, evidence at trial showed that Tammy was scared to
testify against Bishop for fear of what he would do if he was not convicted. On
the day of trial, Tammy told an assault-family violence intervention specialist with
the Denton County District Attorney‘s office that she did not want to ―be the one
that puts [Bishop] away,‖ that she was scared for her life, and that the actions for
which Bishop was on trial were ―nothing compared to what usually happens.‖
Tammy testified that she and Bishop had gotten into an argument, that he had
grabbed her arms, that he had put his hands on her neck, but that she could not
remember if he had choked her because ―it was so fast.‖ Tammy‘s brother Billy,
her sister, and Officer Luce all testified that Tammy had told them on the day of
the incident that Bishop had choked her, and they all testified that they had seen
red marks on her neck.
Considering the harm in light of the argument of counsel, the record
reveals that the State explained the proper use of Bishop‘s prior criminal history
during voir dire:
10 The only issue . . . that is in front of the jury at the guilt phase of the trial is did [the State] prove these things beyond a reasonable doubt, yes or no? That‘s why in the guilt phase of the trial, it is very, very rare for a jury to get to know anything about a Defendant‘s prior criminal history. Usually you wouldn‘t know anything about the Defendant‘s prior criminal history.
Assault[-]family violence is one exception. DWI is another one, okay? We have certain crimes that are what‘s called enhanceable [sic], meaning they might start off as misdemeanors, but then if you get convicted and do it again, at some point you graduate from a misdemeanor to a felony. Everybody with me?
DWI is a great example of that. Your first DWI is a misdemeanor, your second DWI is a misdemeanor, No. 3 is a third- degree felony. . . . You have to be convicted on the first two before you pick up a felony. You graduate up. Everybody with me?
Assault[-]family violence is the same way, the only thing is you only need one prior. If you have one prior conviction for assault[-] family violence and you commit another assault[-]family[] violence, the next one is a third-degree felony.
....
. . .[T]here are some very important rules that go along with y‘all getting to know that the person in front of you has a conviction for a prior offense. During the guilt phase of the trial, the jury absolutely cannot consider the prior as evidence of guilt on this one, okay? Period, the end. You cannot, as a juror, make the leap of, well, he did it before, he must have done it. Can‘t do that.
. . . At punishment, you can consider that prior for all purposes, you can do anything you want with it.
At the punishment phase is usually when you would find out everything with somebody‘s criminal history, whether they have a bunch or have none or whatever. But you can‘t consider that prior for any purposes other than jurisdictional purposes until that punishment phase. Does that make sense?
11 The State asked the potential jurors whether they could not consider the prior
conviction as evidence of guilt, identified several potential jurors who would not
be able to set aside the prior conviction in determining guilt, and obtained the
remaining potential jurors‘ agreement that they would be able to set that
conviction aside.
During closing arguments, the State explained the stipulation to the jury:
Number one, for this to be a felony, there has to be a prior conviction for family violence. State‘s Exhibit No. 11, right here, so that‘s what this is. Y‘all -- I don‘t know if it‘s been introduced into evidence, it‘s the stipulation showing he is the same Steven Bishop that was convicted in that prior that he pled true to, when we read the indictment to y‘all at the beginning of the trial this morning.
So that part is done. It‘s true, it‘s been pled to, it‘s been stipulated to.
And defense counsel in his closing argument reminded the jurors about their
agreement not to consider Bishop‘s prior assault conviction:
Now, you all, under oath during jury selection, stated that you would set that [prior conviction] aside, that you would look at the evidence . . . that‘s actually before you. So I will take you at your word that you will follow the law and take a look at this case.
We‘re here because of a prior assault that [Bishop] pled true to, that he was convicted. But that was the DA‘s discretion of how to file this suit. They could have alleged a choking, that‘s enough to get us here in felony court. They didn‘t do that. They took the long way around to prove up the other one, that way you would see it.
But you‘re here, and you said you would follow the law. That‘s what you need to do.
Reviewing the record as a whole, considering any harm in light of the
entire jury charge, the state of the evidence, the argument of counsel, and any
12 other relevant information, we hold that, even assuming that the trial court erred
by not sua sponte including in the jury charge a limiting instruction regarding
Bishop‘s stipulation, Bishop was not egregiously harmed. See Hutch, 922
S.W.2d at 172B74; Almanza, 686 S.W.2d at 171. We overrule Bishop‘s second
point and, consequently, overrule his first point, alleging only error, as moot.
V. ERROR IN PUNISHMENT CHARGE ON PAROLE LAW DID NOT CAUSE EGREGIOUS HARM
In his third and fourth points, Bishop argues that the trial court erred by
giving the jury an incorrect instruction on parole law and that, although he did not
object to the jury charge error, he suffered egregious harm from this error.
Section 4 of the Texas Code of Criminal Procedure article 37.07 requires
the trial court to provide the jury with one of three instructions, depending on the
type of offense, regarding parole eligibility in noncapital cases. See Tex. Code
Crim. Proc. Ann. art. 37.07, § 4 (West Supp. 2011). Section 4(b) provides in part
that in the penalty phase of a felony punishable as a first-degree felony when a
prior conviction has been alleged as an enhancement as provided by penal code
section 12.42(d), the jury charge on punishment shall include the following
instruction:
Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served plus any good conduct time earned equals one-fourth of the sentence imposed or 15 years, whichever is less. Eligibility for parole does not guarantee that parole will be granted.
13 Id. art. 37.07, § 4(b) (emphasis added). Section 4(c) provides in part that in the
penalty phase of a felony punishable as a second or third-degree felony when a
prior conviction has been alleged as an enhancement as provided by penal code
section 12.42(d), the jury charge on punishment shall include the following
Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served plus any good conduct time earned equals one-fourth of the sentence imposed. Eligibility for parole does not guarantee that parole will be granted. [Emphasis added.]
See id. art. 37.07, § 4(c). The State admits that section 4(b) was applicable here
and that the jury charge erroneously gave the section 4(c) instruction, thus
erroneously omitting the words ―or 15 years, whichever is less‖ from the parole-
eligibility instruction. Although conceding error, the State argues that Bishop was
not egregiously harmed by this error.
The incorrect parole instruction misinformed the jury that the one-fourth-of-
the-sentence-imposed equation applied to determine Bishop‘s parole eligibility
date for any sentence that the jury could give—between the minimum of twenty-
five years and the maximum of ninety-nine years or life. Under the correct parole
law, however, the one-fourth-of-the-sentence-imposed equation applies only
when the sentence is less than fifteen years. See id. art. 37.07, § 4(b). One-
fourth of sixty is fifteen; thus, under section 4(b), any sentence of sixty years or
more would result in the same parole-eligibility date—the date that the actual
14 time served plus any good conduct time earned equaled fifteen years. See id.
art. 37.07, § 4(b). The jury gave Bishop an eighty-year sentence. Thus, under
the erroneous jury charge given, the jury was mistakenly led to believe that
Bishop would not be eligible for parole until his actual time served plus any good
conduct time earned equaled one fourth of the eighty year sentence, or twenty
years; but under the correct parole law, Bishop will become eligible for parole five
years earlier—when his actual time served plus any good conduct time earned
equals fifteen years. See id. art. 37.07, § 4(b)–(c). In fact, under the correct
parole law, Bishop would be eligible for parole in fifteen years if he received any
sentence between sixty and the maximum ninety-nine years or life.
One possible result of the incorrect instruction is that the jury may have
imposed a longer sentence on the mistaken belief that it would extend Bishop‘s
parole-eligibility date. The argument then becomes had the jury received the
correct parole-law instruction, it may have assessed a lesser sentence of sixty to
seventy-nine years, any of which would have resulted in the same parole-
eligibility date. But this is only theoretical, not actual, harm. See Almanza, 686
S.W.2d at 174; Hooper v. State, 255 S.W.3d 262, 272 (Tex. App.—Waco 2008,
pet. ref‘d) (―acknowledg[ing] by speculation that the jury may have calculated that
Hooper would have to serve seven and one-half years before he could be
released‖ but stating that ―such speculation leads only to insufficient theoretical
harm, rather than actual harm‖). On appeal, Bishop points out comments made
during voir dire by potential jurors to show that ―the application of parole law was
15 a concern among the potential jurors.‖ The following discussion occurred during
voir dire:
POTENTIAL JUROR: . . . [B]ut what is life? Life isn‘t life. Life is, like, 30 years.
[The State]: Again, there‘s no way to accurately predict how long somebody has to sit, but anything north of 60 is functionally the same. There‘s no 60, 70, 80, 90, life, in terms of parole eligibility all those numbers are the same.
POTENTIAL JUROR: If somebody got life and never got paroled, would they ever get out of prison?
[The State]: No, the only time we have somebody sentenced to prison -- murder without parole, capital murder there‘s only two punishments, death and life without parole, for any other crime than capital murder.
POTENTIAL JUROR: What‘s life?
[The State]: You can consider the existence of the law is quarter time, but you cannot go beyond that, how much time is somebody supposed to sit.
However, this exchange during voir dire does not demonstrate that the jury
based its sentence on parole eligibility. Moreover, the jury charge contained the
standard curative language admonishing the jury not to consider the extent to
which parole law might be applied to Bishop, and there was no indication that the
jury did not follow those instructions.3 See Tex. Code Crim. Proc. Ann. art.
3 The jury charge instructed,
It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.
16 37.07, § 4(b); Igo v. State, 210 S.W.3d 645, 647 (Tex. Crim. App. 2006)
(considering fact that standard curative language was given as mitigating against
finding egregious harm based on erroneous parole law instruction); see also
Waters v. State, 330 S.W.3d 368, 374 (Tex. App.—Fort Worth 2010, pet. ref‘d)
(noting that juries cannot consider when a defendant might be awarded parole
but can properly determine how long a term it wishes a defendant to serve before
that defendant may become eligible for parole).
Considering the state of the evidence relating to punishment, the State
presented evidence of Bishop‘s multiple prior convictions, including two for DWI,
one for felony DWI, one for possession of marijuana, one for driving with a
suspended driver‘s license, one for a stolen check, one for felony possession of
methamphetamine, and five for assaults on either his former girlfriends or wife.
Specifically regarding the prior assaults, the State presented evidence of a 1997
conviction for assault on his then-girlfriend by striking her mouth with a beer
bottle; a 1998 conviction for assault on his then-wife for grabbing, pushing, or
shoving her; and two 2005 convictions for assault on his then-girlfriend Nicole
Day. Day testified that Bishop had physically abused her several times a week
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.
See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(b).
17 during their eighteen-month relationship; that he would wake her up by choking
her or picking her up by her throat if she did not hear the alarm clock, get up, and
make him breakfast; and that ―his form of abuse is by taking your air away.‖
Tammy also testified at punishment and explained that Bishop had assaulted her
on many occasions and that he would typically choke her once or twice a week
during their year-and-a-half relationship. The jury also heard about Bishop‘s drug
and alcohol abuse and his various parole violations.
Bishop makes much of the State‘s closing arguments, impliedly
encouraging the jury to impose a life sentence to stop Bishop before he harmed
another person, but the State never mentioned parole law in its closing
argument. The jury ultimately assessed a punishment less than the maximum
allowed under the law. See Shavers v. State, 985 S.W.2d 284, 292 (Tex. App.—
Beaumont 1999, pet. ref‘d) (considering assessment of less than maximum
punishment as mitigating factor in egregious harm analysis of parole-law-
instruction error).
Considering the record as a whole, the entire jury charge, the state of the
evidence against Bishop, the arguments of counsel, and voir dire, we hold that
Bishop was not egregiously harmed by the omission of the words ―or 15 years,
whichever is less‖ in the parole law jury instruction. We overrule Bishop‘s fourth
point and, consequently, overrule his third point, alleging only error, as moot.
18 VI. CONCLUSION
Having overruled Bishop‘s four points, we affirm the trial court‘s judgment.
SUE WALKER JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: January 19, 2012