NO. 12-07-00001-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ROBERT LEE MENEFEE III, ' APPEAL FROM THE 7TH

APPELLANT

V. ' JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,

APPELLEE ' SMITH COUNTY, TEXAS

 

MEMORANDUM OPINION

Appellant Robert Lee Menefee III pleaded guilty in an open plea proceeding to the offense 

of possession with intent to deliver a controlled substance, namely cocaine. The trial court 

sentenced him to fifty-six years of imprisonment and a $10,000.00 fine. After concluding that the 

evidence was sufficient to support Appellant’s conviction and that Appellant failed to prove his 

counsel rendered ineffective assistance, this court affirmed the conviction. See Menefee v. State, 

No. 12-07-00001-CR, 2008 WL 4335170, at *5 (Tex. App.–Tyler Sept. 24, 2008). The court of 

criminal appeals vacated this court’s judgment and remanded the case with instructions for this 

court to determine whether Appellant waived his article 1.15 sufficiency claim, whether evidence 

adduced at the sentencing hearing provided evidentiary support for the guilty plea, and, if 

necessary to our disposition, whether it would be appropriate to conduct a harm analysis. See

Menefee v. State, 287 S.W.3d 9, 18-19 (Tex. Crim. App. 2009). After due consideration, we 

conclude that Appellant did not waive his article 1.15 sufficiency claim and that the evidence is 

sufficient to support his guilty plea and the trial court’s judgment. Accordingly, we affirm.
BACKGROUND

Appellant was charged by indictment for possession with intent to deliver a controlled 

substance, namely cocaine, in an amount of one gram or more but less than four grams, including 

adulterants and dilutants.1 The indictment alleged, in the portion relevant to this appeal, that Aon or 

about the 26th day of January, 2006, . . . ROBERT MENEFEE did then and there possess with 

intent to deliver, a controlled substance, namely, cocaine, in an amount of one (1) gram or more 

but less than four (4) grams, including any adulterants and dilutants.@ The indictment also alleged

that the offense occurred within 1,000 feet of a premises owned, rented, or leased by an institution 

of higher learning, or within a drug free zone,2and that prior to the commission of the offense, 

Appellant was convicted of the felony offense of possession of a controlled substance.3

On October 2, 2006, Appellant entered an “open” plea of guilty. Appellant and his 

counsel signed a stipulation of evidence in which Appellant swore that the stipulation constituted 

the evidence in the case. According to that document, Appellant stipulated, in part, that he “did 

then and there with intent to deliver, a controlled substance, namely, cocaine, in an amount of one 

(1) gram or more but less than four grams, including any adulterants and dilutants.@

4 The word 

Apossess@ was omitted from the stipulation of evidence. After Appellant was sworn in at the plea 

hearing, he waived the reading of the indictment. The trial court stated, AMr. Menefee, in your 

case the grand jury returned an enhanced first degree felony charge of possession of a controlled 

substance with intent to deliver,@ and then recited the applicable range of punishment. The trial 

court asked Appellant if he understood the range of punishment. Appellant replied, “Yes, sir.” 

 

1

See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) (Vernon Supp. 2009). An offense under subsection 

(a) is a second degree felony if the amount of the controlled substance to which the offense applies is, by aggregate 

weight, including adulterants or dilutants, one gram or more but less than four grams. See TEX. HEALTH & SAFETY 

CODE ANN. § 481.112(c) (Vernon Supp. 2009).

2 An offense otherwise punishable as a second degree felony under section 481.112 is punishable as a first 

degree felony if it is shown that the offense was committed in, on, or within 1,000 feet of premises owned, rented, or 

leased by an institution of higher learning. See TEX. HEALTH & SAFETY CODE ANN. § 481.134(b)(1) (Vernon Supp. 

2009).

3

If it is shown on the trial of a first degree felony that the defendant has been once before convicted of a 

felony, on conviction he shall be punished by imprisonment for life, or for any term of not more than ninety-nine years 

or less than fifteen years and, in addition, a fine not to exceed $10,000.00. See TEX. PENAL CODE ANN. § 12.42(c)(1) 

(Vernon Supp. 2009).

4 Appellant also stipulated that the offense was committed within 1,000 feet of property “owned and rented 

and leased” by Texas College and that he had previously been convicted of felony possession of a controlled 

substance.
The trial court then said, AKnowing that that=s the range of punishment, the paperwork that=s been 

provided to me that indicates that you=ve decided to enter an open plea of guilty in relation to that 

particular charge and leave it to the court to decide what type of punishment should be assessed. 

Is that correct?@ Appellant agreed that it was. The trial court then asked, AAs to that charge in the 

indictment as we=ve just covered, how do you plead, guilty or not guilty?@ Appellant pleaded

guilty. The only evidence offered by the State was the “plea packet,” which was admitted into 

evidence and included Appellant’s signed and written stipulation of evidence. Appellant pleaded 

“true” to the prior felony conviction enhancement paragraph. The trial court adjudged Appellant 

guilty as charged in the indictment.

At the sentencing hearing, the trial court took judicial notice of the court=s file and 

reviewed the presentence investigation report (“PSI”). The trial court assessed Appellant’s 

punishment at fifty-six years of imprisonment and a $10,000.00 fine. 

WAIVER

On initial submission in this court and also in the court of criminal appeals, Appellant 

contended that the judgment is not supported by “sufficient evidence” as required by article 1.15 of 

the Texas Code of Criminal Procedure. In its brief in response to Appellant’s petition for 

discretionary review, the State argued for the first time that Appellant failed to properly preserve 

his article 1.15 sufficiency claim because he did not raise that complaint at trial. Before we can 

proceed further in this appeal, we must determine whether the State’s waiver argument has merit. 

We begin by reviewing the holding in Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993).

Categories of Rights Under Marin

“The system of adjudication at work in Texas, and generally throughout the United States, 

is chiefly characterized by an array of rules which are optional with the litigants.” Id. at 278. 

Most of the evidentiary and procedural rules comprising our system fall within this category, and 

the rights available to litigants under these rules are usually forfeited if they fail to exercise them. 

Id. In other words, the Texas law of procedural default applies to this category of rights. Id. at 

279. The terms “forfeit” and “procedural default” both refer to “the loss of a claim or right for 

failure to insist upon it by objection, request, motion, or some other behavior calculated to exercise 

the right in a manner comprehensible to the system’s impartial representative, usually the trial 
judge.” Id. But not all issues and complaints are forfeited by a failure to object at trial. See id. 

at 278.

“Some rights are widely considered so fundamental to the proper functioning of our 

adjudicatory process as to enjoy special protection in the system.” Id. The first category of these 

rights includes absolute requirements and prohibitions that are essentially independent of the 

litigants’ wishes. Id. The implementation of these requirements and prohibitions is not optional 

and therefore cannot be waived or forfeited by the parties. Id. The clearest cases of these 

“nonwaivable, nonforfeitable systemic requirements” are laws affecting the jurisdiction of the 

courts. Id. The second category includes rights, such as the rights to a jury trial and to assistance 

of counsel, that are waivable only. Id. at 278-79. A principle characteristic of these rights is that 

they cannot be extinguished by inaction alone, but must be expressly waived. Id. at 278. The 

rights in these two categories are not subject to the Texas law of procedural default. Id. at 279; 

see also Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003). Thus, any party entitled 

to appeal is authorized to complain that an absolute right or prohibition was violated, or that a 

waivable-only right was not implemented, without first urging the complaint in the trial court. 

Marin, 851 S.W.2d. at 280. 

“All but the most fundamental rights are thought to be forfeited if not insisted upon by the 

party to whom they belong.” Id. Determining which category a right occupies will usually settle 

the question of procedural default in the context of a particular case. Id. 

Article 1.15 Sufficiency Requirement

The due process guarantee of the Fourteenth Amendment requires that a conviction be 

supported by legally sufficient evidence, which is proof beyond a reasonable doubt of every fact 

necessary to constitute the crime charged. Jackson v. Virginia, 443 U.S. 307, 314-16, 99 S. Ct 

2781, 2786-87, 61 L. Ed. 2d 560 (1979). But this rule does not apply when a defendant 

knowingly, intelligently, and voluntarily enters a plea of guilty. See Boykin v. Alabama, 395 

U.S. 238, 242, 89 S. Ct. 1709, 1711-12, 23 L. Ed. 2d 274 (1969). Consequently, there is no 

federal constitutional requirement, either in federal courts or in state courts, that guilt must be 

established beyond a reasonable doubt in guilty plea cases. Id. (federal courts); Ex parte 

Williams, 703 S.W.2d 674, 682 (Tex. Crim. App. 1986) (state courts). Nor is there any federal 

constitutional requirement that evidence of guilt be offered to corroborate a guilty plea. See
Kercheval v. United States, 274 U.S. 220, 223, 47 S. Ct. 582, 583, 71 L. Ed 1009 (1927) (“Like a 

verdict of a jury, [a guilty plea] is conclusive. More is not required; the court has nothing to do 

but give judgment and sentence.”). Accordingly, the court of criminal appeals has held that there 

is no federal constitutional requirement that evidence of guilt must be offered to corroborate a 

guilty plea in a state criminal prosecution. Ex parte Williams, 703 S.W.2d at 682. The 

legislature, however, has imposed a different rule in certain guilty plea cases.

As pertinent to the case at hand, when a defendant in Texas pleads guilty before the court in 

a noncapital felony case, the state must introduce “sufficient evidence” to support the trial court’s 

judgment. See TEX. CODE CRIM. PROC. ANN. art. 1.15 (Vernon 2005) (“[I]n no event shall a 

person charged be convicted upon his plea without sufficient evidence to support the same.”) 

The evidence introduced is “sufficient” if it embraces every essential element of the offense 

charged. See Menefee v. State, 287 S.W.3d at 13. A conviction rendered without sufficient 

evidence to support a guilty plea constitutes trial error, which does not result in an acquittal. 

Bender v. State, 758 S.W.2d 278, 280-81 (Tex. Crim. App. 1988).

Application of Marin

The Texas Constitution ensures that the right to trial by jury “shall remain inviolate.” 

TEX. CONST. art. I, § 15. Moreover, the legislature is empowered to pass “such laws as may be 

needed to regulate [the right of trial by jury], and to maintain its purity and efficiency.” Id. 

In tracing the history of article 1.15, the court of criminal appeals has observed that, 

“impelled by experienced abuse and oppression inflicted on them as citizens in earlier 

governments,” the framers of the Constitution of 1836 insisted upon trial “by an impartial jury.” 

See Thornton v. State, 601 S.W.2d 340, 345 (Tex. Crim. App. 1979) (op. on reh’g), overruled on 

other grounds, Ex parte Martin, 747 S.W.2d 789 (Tex. Crim. App. 1988). Guilty pleas were 

permitted, but amounted to nothing more than the acknowledgment of the facts charged; whether 

the facts charged constituted an offense at law was decided by the court. Crow v. State, 6 Tex. 

334, 334 (1851). If the court decided an offense had been committed, the law mandated that a 

jury assess punishment. Thornton, 601 S.W.2d at 346 (addressing article 26.14 and its 

predecessors); see also TEX. CODE CRIM. PROC. ANN. art. 26.14 (Vernon 2009) (“Where a 

defendant in a case of felony persists in pleading guilty . . . , if the punishment is not absolutely 

fixed by law, a jury shall be impaneled to assess the punishment . . . , unless the defendant in 
accordance with Articles 1.13 or 37.07 shall have waived his right to trial by jury.”). This 

requirement was mandatory and meant “that evidence must be introduced before the jury, so that 

the state and the defendant [might] be protected in their respective rights.” Woodall v. State, 58 

Tex. Crim. 513, 516, 126 S.W. 591, 593 (1910).

It was not until 1931 that the legislature authorized the waiver of a jury trial in a noncapital 

felony case upon the entry of a guilty plea by the accused. See Thornton, 601 S.W.2d at 346. 

That legislation provided that the trial court was to accept the evidence as the basis for its “verdict” 

and “in no event shall a person charged be convicted upon his plea of guilty without sufficient 

evidence to support the same.” See Bolton v. State, 123 Tex. Crim. 543, 545, 59 S.W.2d 833, 834 

(1933) (op. on reh’g) (emphasis added) (discussing the predecessor to article 1.15). This afforded

a defendant “an additional procedural safeguard required by the State of Texas but not by federal 

constitutional law.” Ex parte Williams, 703 S.W.2d at 678. “Since there would no longer be a 

verdict of one’s peers before a defendant was sent to prison, the statute required sufficient 

evidence to support the judgment where he entered a guilty plea before the court to a non-capital 

felony.” Id. The current version, article 1.15, contains almost identical language, differing only 

in that it requires the trial court to accept the evidence to support its “judgment,” not its “verdict.” 

See TEX. CODE CRIM. PROC. ANN. art. 1.15. 

In applying Marin against this backdrop, we again note article 1.15’s unequivocal 

declaration that a person shall “in no event” be convicted upon his plea of guilty without sufficient 

evidence. See TEX. CODE CRIM. PROC. ANN. art. 1.15. This language does not indicate that the 

requirement is optional and or that it is available only if demanded by the defendant. Compare 

Patterson v. State, 204 S.W.3d 852, 858 (Tex. App.–Corpus Christi 2006, pet. ref’d) (sufficient

corroboration evidence absolute requirement where statutes provide “defendant may not be 

convicted” and “conviction cannot be had” upon uncorroborated testimony of accomplice),

5

and 

Pickens v. State, 921 S.W.2d 774, 777 (Tex. App.–El Paso 1996, no pet.) (agreement of parties 

invalid attempt to confer upon trial court authority to decide deadly weapon issue in a jury trial 

when legislature had reserved exclusively for jury’s determination), with Ex parte McJunkins, 

 

5 The court in Patterson also stated that the corroboration requirement might be waivable–only because of a 

third statute requiring that the court sua sponte “instruct the jury to render a verdict of acquittal, and they are bound by 

the instruction.” See Patterson, 204 S.W.3d at 857 (citing TEX. CODE CRIM. PROC. ANN. art. 38.17). However, the 

court did not discuss this further because the defendant had not expressly waived the corroboration requirement. See 

id. at 858. No statute exists in this case that raises a similar question. 
954 S.W.2d 39, 40-41 (Tex. Crim. App. 1997) (requirement of concurrent sentences applies only if 

state chooses to join or consolidate charges and accused does not request severance; properly 

characterized as right of litigant rather than absolute requirement or prohibition that cannot be 

waived or forfeited). 

Further, the history of the statute suggests that the “sufficient evidence” requirement is 

related to the right to trial by jury and reflects the legislature’s intent to provide protection 

unavailable under the federal rule authorizing convictions on guilty pleas without corroborating 

evidence. See Ex parte Williams, 703 S.W.2d at 678 (“sufficient evidence” required since no 

verdict of one’s peers before defendant sent to prison). And, finally, it seems likely that a 

defendant would seldom, or perhaps never, have compelling reasons to forego the requirement.

See Proctor v. State, 967 S.W.2d 840, 844 (Tex. Crim. App. 1998) (characterizing statute of 

limitations as forfeitable, reasoning in part that defendant “may have compelling reasons in his 

own best interest to forego the statute of limitations defense”); see also 43A George E. Dix & 

Robert O. Dawson, TEXAS PRACTICE: CRIMINAL PRACTICE & PROCEDURE § 42.14 (2d ed. 2001) 

(“It is also more likely to be [an absolute] requirement if it is one that defendants will seldom or 

never have compelling reasons to forego.”);

In our view, the history and the language of article 1.15 are inconsistent with a conclusion 

that the legislature intended the “sufficient evidence” requirement to be dependent upon the 

choices of the litigants and therefore forfeitable. Accordingly, we hold that the “sufficient 

evidence” requirement of article 1.15 is an absolute requirement and can be raised for the first time 

on appeal. Therefore, Appellant did not waive his article 1.15 sufficiency challenge by failing to 

raise it in the trial court. We now turn to the merits of his contention.

SUFFICIENCY OF THE EVIDENCE

In his sole issue on remand, Appellant contends the evidence is insufficient to support his 

conviction. More specifically, he argues there was no evidence to support his guilty plea and the 

trial court’s judgment.

Evidence Required to Support Guilty Plea

The state must offer “sufficient evidence” to support any judgment based on a guilty or 
nolo contendere plea in a felony case tried to the court. See TEX. CODE CRIM. PROC. ANN. art. 

1.15. A[I]n no event shall a person charged be convicted upon his plea without sufficient evidence 

to support the same.@ Id. A judicial confession, standing alone, is sufficient to sustain a 

conviction upon a guilty plea and to satisfy the requirements of article 1.15. Dinnery v. State, 592 

S.W.2d 343, 353 (Tex. Crim. App. 1970). 

The evidence to support a guilty plea and judgment also may be stipulated if the defendant 

consents in writing, in open court, to waive the appearance, confrontation, and cross examination 

of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to 

the introduction of testimony by affidavits, written statements of witnesses, and any other 

documentary evidence in support of the judgment of the court. TEX. CODE CRIM. PROC. ANN. art. 

1.15. If the defendant elects to stipulate evidence against himself, his stipulation is a kind of 

judicial admission, a Aformal confession [] in the pleadings in the case or stipulations by a party or 

counsel that have the effect of withdrawing a fact from issue and dispensing wholly with the need 

for proof of the fact.@ Bryant v. State, 187 S.W.3d 387, 400 (Tex. Crim. App. 2005) (quoting

John W. Strong, et al., MCCORMICK ON EVIDENCE § 255 (5th ed. 1999)). 

If a stipulation does not support a defendant’s guilty plea, a court must determine if there is 

other evidence to support the guilty plea and judgment. Dinnery, 592 S.W.2d at 352. If a 

defendant testifies that he has read the indictment and that it is “true and correct” or that the 

allegations in the indictment are “true and correct,” this testimony constitutes a judicial admission 

of the offense charged and is sufficient to support a guilty plea and judgment. Id. at 352-54. To 

invest the plea itself with the trappings of an oath does not elevate it to the status of evidence. 

Morris v. State, 749 S.W.2d 772, 777 (Tex. Crim. App. 1986) (Clinton, J., dissenting). If a 

defendant merely swears to the fact that he understands the indictment and is pleading guilty to it, 

this does not amount to confirmation that its allegations are “true and correct” or that the defendant 

committed the offense alleged. Id.

An appellate court will affirm the trial court’s judgment under article 1.15 if the state 

introduces evidence that embraces every essential element of the offense charged and that is 

sufficient to establish the defendant’s guilt. Chindaphone v. Sate, 241 S.W.3d 217, 219 (Tex. 

App.–Fort Worth 2007, pet. ref’d). 

Proof Required to Show Possession
To prove possession, the state must show the accused (1) exercised control, management, 

or care over the contraband and (2) knew the substance possessed was contraband. Poindexter v. 

State, 153 S.W.3d 402, 405-06 (Tex. Crim. App. 2005). An accused may with another or others 

jointly possess a controlled substance; thus possession of a controlled substance need not be 

exclusive. See McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985). But when 

the accused is not in exclusive possession of the place the substance is discovered, the state must 

show additional facts and circumstances linking the accused to the contraband to show the 

accused’s knowledge and control over it. Poindexter, 153 S.W.3d at 405-06. Reviewing courts 

have developed several factors showing a possible link between the accused and contraband. 

See Cuong Quoc Ly v. State, 273 S.W.3d 778, 781-82 (Tex. App.–Houston [14th Dist.] 2008, pet. 

ref’d). As pertinent to the case at hand, these factors include (1) the accused’s presence when the 

search was conducted, (2) whether the contraband was in plain view, (3) the accused’s proximity 

to and the accessibility of the contraband, (4) whether the accused possessed other contraband or 

narcotics when arrested, (5) whether the accused made incriminating statements when arrested, (6) 

whether the accused owned or had the right to possess the place where the contraband was found, 

(7) whether the contraband was found in an enclosed place, (8) and whether the conduct of the 

accused indicated a consciousness of guilt. Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. 

App. 2006). The number of linking factors present is not as important as the “logical force” they 

create to prove the accused knowingly or intentionally possessed the controlled substance. Id.

Sufficiency of the Evidence

In the present case, the stipulation admitted into evidence was insufficient to support the 

conviction because the word “possession,” an essential element of the charged offense, was 

omitted. However, there is no requirement that all the evidence to support a guilty plea be 

contained in the stipulation of evidence. See Dinnery, 592 S.W.2d at 352.

The State argued on appeal, and in response to Appellant’s petition for discretionary 

review, that during sentencing, the trial court took judicial notice of the PSI. The State contended 

that the PSI contains evidence to support Appellant’s conviction, and specifically the element of 

possession. Appellant did not object to the PSI or to the trial court’s taking judicial notice of it. 

Moreover, Appellant stipulated to “the introduction of testimony by affidavit, written statements 

of witnesses, and all other documentary evidence that may be introduced by the State.” 
Accordingly, we obtained the PSI to determine whether it contained evidence embracing the 

element of possession.6

After reviewing the PSI in light of the law applicable to possession, we conclude that the 

PSI contains information that “embraces” the element of possession. According to the officer’s 

narrative attached to the offense report included in the PSI, a search warrant was executed on 

Appellant’s one bedroom, one bath residence after two “controlled purchases” of cocaine from 

Appellant by a confidential informant for the Tyler Police Department. Appellant was present 

when the search was conducted as were his common law wife and various other individuals. 

During the search, the officers discovered two off-white colored rock-like substances they 

believed to be crack cocaine located in plain view in the bedroom. One of the officers field tested 

the substances, which showed positive for containing cocaine. The drug analysis from the Texas 

Department of Public Safety crime lab confirmed that the rocks contained 2.70 grams of cocaine, 

present as a cocaine base. According to the narrative, the cocaine was accessible to Appellant. 

Also located in the bedroom was a pair of men’s Dickie pants. The right front pants pocket 

contained three clear plastic bags containing a green leafy substance, which the officer recognized 

as marijuana with an approximate field weight of five grams. 

The individuals present at the residence were questioned separately. Appellant gave 

answers that the officer characterized as “reluctant and sometimes deceiving.” For example, 

when he was asked about who lived at the residence, Appellant stated that he thought he lived at 

the residence by himself, but was not sure. He then admitted that the female identified in the 

narrative as Appellant’s common law wife lived at the residence off and on, but said he did not 

know her name. The female informed that officer that Appellant was her son’s father. Appellant 

informed that officer that, as far as he knew, there was no “dope” in the house and none had been 

sold out of the house. Unbeknownst to Appellant, however, the interviewing officer possessed 

information about two “controlled purchases” of crack cocaine from Appellant. Moreover, an 

individual interviewed at the residence informed an officer that he was at the house to buy a $5.00 

 

6 On original submission in another case, we did not obtain the PSI to determine whether it contained 

evidence supporting the enhancement paragraph. See Brewer v. State, No. 12-01-00369-CR, 2003 WL 21468566, at 

*5-6 (Tex. App.–Tyler June 25, 2003), rev’d and remanded, No. 1270-03 (Tex. Crim. App. May 19, 2004) 

(Unpublished). On remand, in accordance with the opinion of the court of criminal appeals, we requested the PSI. 

See Brewer v. State, No. 12-01-00369-CR, 2004 WL 1717595, at *1 (Tex. App.–Tyler 2004, no pet.) (mem. op., not 

designated for publication). As in Brewer, the PSI can be considered part of the record in this case even though it was 

not admitted into evidence. Texas Rule of Appellate Procedure 34.5(c)(1) authorizes us to obtain it. 
rock of crack cocaine from Appellant. He stated that the transaction had not been completed and 

that he was waiting outside until Appellant became available. 

The officers located documents inside the house showing that Appellant had applied for 

service from the City of Tyler Water Department and had the water turned on at the residence. 

This is some indication that Appellant was in control of the premises. 

In sum, the evidence discussed above relates to the “possession” element of the charged 

offense. See Chindaphone, 241 S.W.3d at 219. Further, the evidence is sufficient to establish 

that Appellant possessed the cocaine as charged. See id. There is other evidence to suggest that 

Appellant and his common law wife jointly possessed the cocaine. But possession of a controlled 

substance need not be exclusive. See McGoldrick, 682 S.W.2d at 578. Consequently, we hold 

that the State met its burden under article 1.15 to introduce “sufficient evidence” of Appellant’s 

possession of cocaine as charged in the indictment. Appellant’s sole issue is overruled.

DISPOSITION

Having sustained Appellant’s first issue, we affirm the judgment of the trial court. 

Because it is not necessary to our disposition, we do not reach whether the issue of harm. See 

TEX. R. APP. P. 47.1.

 SAM GRIFFITH 

 Justice

Opinion delivered August 18, 2010.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)