Tafel v. State (524 S.W.3d 687, 2016)

OPINION

AL SCOGGINS, Justice

In two cause numbers, the trial court convicted Mark Ken Tafel of the offense of unlawful carrying of a handgun by a license holder and assessed his punishment at thirty days confinement and a $500 fine. The trial court suspended imposition of the sentence and placed Tafel on community supervision for six months. We affirm.

Background Facts

Mark Ken Tafel was a County Commissioner for Hamilton County. Sheriff Gregg Bewley received complaints that Tafel was carrying a concealed handgun to meetings of the Commissioners Court. Sheriff Bew-ley met with Tafel and discussed those concerns. On February 23, 2011, Tafel gave Sheriff Bewley a written statement in which he stated that he understood he could not carry a handgun to the meetings of the Commissioners Court.

On April 14, 2011, County Judge Randy Mills issued a letter to Tafel purportedly authorizing Tafel to carry concealed handguns to the meetings. Judge Mills gave a copy of the letter to Tafel; however, Judge Mills did not file the letter in any court in Hamilton County.

Sheriff Bewley attended the November 14, 2011 meeting of the Hamilton County Commissioners Court and observed a bulge that he believed was a weapon under Tafel’s jacket. Sheriff Bewley recovered a .45 caliber handgun and a .22 caliber revolver from Tafel, and he placed Tafel under arrest.

Sufficiency of the Evidence

In the first issue, Tafel argues that the evidence is insufficient to support the trial court’s rejection of the defensive issue of lack of effective notice. We first will determine whether Section 46.035 (i) of the Texas Penal Code is an exception or a defense. The Texas Penal Code provides that:

A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, at any meeting of a governmental entity.

Tex. Penal Code Ann. § 46.035 (c) (West Supp. 2014). The Texas Penal Code further provides that subsection (c) does “not apply if the actor was not given effective notice under Section 30.06.” Tex. Penal Code Ann. § 46.035 (i) (West Supp. 2014).

Section 2.02 (a) of the Penal Code provides, “An exception to an offense in this code is so labeled by the phrase: ‘It is an exception to the application of Tex. Penal Code Ann. § 2.02 (a) (West 2011). Section 2.03 (e) of the Penal Code states, “A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.” Tex. Penal Code Ann. § 2.03 (3) (West 2011). We agree with Tafel that Section 46.035 (i) is a defense.

When a defendant challenges the legal sufficiency of the evidence to support rejection of a defense, we examine all of the evidence in the light most favorable to the verdict to determiné whether a rational factfinder could have found the defendant guilty of all essential elements of the offense beyond a reasonable doubt and also could have found against the defendant on the defensive issue beyond a reasonable doubt. See Dudzik v. State, 276 S.W.3d 554, 557 (Tex.App.-Waco 2008, pet. ref'd).

Section 46.035 (i) states that subsection (c) does “not apply if the actor was not given effective notice under Section 30.06.” Tex. Penal Code Ann. § 46.035 (i) (West Supp. 2014). Section 30.06 provides that:

(b) For purposes of this section, a person receives notice if the owner of the property or someone with apparent authority to act for the owner provides notice to the person by oral or written communication.

(c) In this section:

(1) “Entry” has the meaning assigned by Section 30.05(b).

(2) “License holder” has the meaning assigned by Section 46.035(f).

(3) “Written communication” means:

(A) a card or other document on which is written language identical to the following: “Pursuant to Section 30.06, Penal Code (trespass by holder of license to carry a concealed handgun), a person licensed under Subchapter H, Chapter 411, Government Code (concealed handgun law), may not enter this property with a concealed handgun”; or

(B) a sign posted on the property that:

(i) includes the language described by Paragraph (A) in both English and Spanish;

(ii) appears in contrasting colors with block letters at least one inch in height; and

(iii) is displayed in a conspicuous manner clearly visible to the public.

Tex. Penal Code Ann. § 30.06 (b) (c) (West 2011).

Tafel focuses on whether a rational factfinder could have found against him beyond a reasonable doubt on the issue of lack of effective notice. Section 30.06 provides that effective notice can be provided by oral or written communication. Judge Mills posted a sign in an attempt to comply with the provisions of Section 30.06. The record is unclear whether the sign was displayed in a conspicuous manner clearly visible to the public and whether it contained contrasting colors with block letters. The sign was printed only in English.

The record indicates that Tafel was aware of the sign after it was posted. Sheriff Bewley met with Tafel to discuss Tafel carrying weapons to the county commissioner’s meetings. Tafel’s statement to Sheriff Bewley is as follows:

My name is Mark Tafel and I am the Commissioner of Hamilton County Precinct Two. Sheriff Bewley asked me to come to his office today regarding concealed carry of a firearm. It has been brought to my attention questions have been raised from the past where I did not willingly or knowingly break any laws. On or prior to a Commissioner’s Court meeting discussions from a gentleman, Dave Gustafson, asked questions of concealed carry. At that point in time no 30.06 sign was posted at the courtroom nor did I know that any laws were being broken. As questions arose weeks later I confirmed that I cannot carry a concealed weapon during court hours with proper signage displayed. Sheriff Bewley investigated Texas Penal Codes and determined that section 46.03 and 46.035 are applicable when Commissioner’s Court is in session. From knowing this now I have not and will not carry a weapon until new laws are written from our. state courts. In fact from that day forward, in talking to Sheriff Bewley, I have been pursuing our state representative and his aid where the state house is challenging and changing the validity of 46.03 and 46.035 to allow any elected officials in Commissioner’s Court or any Justice Court to carry a concealed weapon as long as they are a CCL holder. The Sheriff has asked me about a conversation that occurred prior to a Commissioner’s Court meeting between myself and Mr. Gustafson. A discussion I vaguely remember was about whether we, Dave and I, were legal to carry concealed weapons in the courthouse. Judge Mills hacj previously told me it didn’t bother him that I carried in the courthouse. There was no positive outcome of Dave and mine’s conversation till weeks .later when Sheriff Bewley confirmed that according to Texas Penal Code section 46.03 and 46.035 that I would be breaking the law if I carried in the courtroom when in session. Back to the discussion with Dave Gustafson, in a conversation I vaguely remember, the Sheriff has referred to my patting my clothing and ankle with which I completely disagree that could have happened. Because, I have never carried a boot gun. I do however carry an underarm shouldered weapon or small of the back carry. Again though I must reiterate that no determination was made of what is legal and wasn’t legal. Today however, we do know, and that is why I do not carry during court. I don’t want to lie I believe I was carrying a concealed weapon on my first and second court date. Again after this conversation with Mr. Gustafson I brought the concern to our County Judge and he didn’t care that I was carrying during court. This issue seems to be very confusing to me and to others. We know state law says that a 30.06 sign must be posted to stop concealed carry, with that building. At no time were signs ever present until recently, and now I know that . I cannot carry a weapon past that sign. At no time did I intentionally or knowingly break any laws. In fact I pride myself in being an upstanding law abiding citizen. Being taught what is proper in concealed carry by my instructor, Carl Chandler, told me that it was my right to carry in the state capítol while it is in session. This has been confirmed by the state reps assistant that concealed carry is allowed at the state capítol but not in a county courtroom. This is why they are vigilantly trying to change the law. This is the end of my statement.

Tafel further consulted with County Attorney Mark Henke on carrying-a concealed handgun in the courtroom and to the meetings of the Commissioners Court. Henke never advised Tafel that-he was permitted to carry a concealed handgun to the meetings of the Commissioner’s Court. Henke testified that his advice was consistently “■...-. don’t do it. You risk going to jail.” Henke and Tafel also discussed the sign posted in an attempt to comply with Section 80.06. Tafel was aware of the written sign prohibiting him from carrying a handgun to the meetings, and Tafel received oral notice that he was prohibited from carrying a handgun to the meetings. Viewing the evidence in the light most favorable to the verdict, we find that a rational factfinder could have found against Tafel on the issue of lack of effective notice. We overrule the first issue.

Mistake of Law

In the second issue, Tafel argues that the evidence established as a matter of law the affirmative defense of mistake of law. To establish the affirmative defense of mistake of law, a defendant bears the burden of proving by a preponderance of the evidence that he reasonably believed the conduct, charged did not constitute a crime and that he acted in reasonable reliance upon:

(1) an -official statement of the law contained in a written order or grant of permission by an administrative agency charged by law with responsibility for interpreting the law in question; or

(2) a written interpretation of the law contained in an opinion of a court of record or made by ' a public official charged by law with responsibility for interpreting the law in question.

Tex, Penal Code Ann. §§ 2.04, 8.08(b) (West 2011).

The proper standard in criminal cases for review of legal sufficiency challenges to a factfinder’s refusal to find on an issue that the defendant had the burden of proof is the same standard applied in civil cases. Reynolds v. State, 385 S.W.3d 93, 100-101(Tex.App.-Waco 2012), aff'd 423 S.W.3d 377 (Tex.Crim.App.2014). That standard requires a two-step analysis. Id. We first examine the record for' any evidence that supports the factfinder’s refusal to find‘while ignoring all evidence to the contrary. Id. If no evidence supports the refusal to find, we then examine the entire record to determine whether the evidence establishes the affirmative defense as a mátter of law. Id.

Judge Mills wrote a letter addressed to “To Whom It May Concern” and states:

Commissioner Mark Tafel is authorized by this office to exercise his authority under Texas Concealed Handgun laws to carry concealed handgun in Hamilton County Commissioners Court, This is to remain in effect until further notification.

Tafel contends that he relied on Judge Mill’s .authorization to bring concealed handguns to the commissioners meeting pursuant to Tex, Penal Code Ann. § 8.03(b) (2) (West 2011).

Section 8.03 requires reliance on a narrow class of official statements or interpretations of the law. Hawkins v. State, 656 S.W.2d 70, 73 (Tex.Crim.App.1983). The letter is not a written interpretation of the law contained in an opinion as set out in Section 8.03 (b) (2). An interpretation is defined as an explanation. (Merriam Webster’s Collegiate Dictionary (10th Edition 1993)). The letter written by Judge Mills does not explain the applicable law, and it is not an opinion. Judge Mills testified thathis letter did not constitute an opinion. We find that Tafel’s reliance on the letter was not reasonable. Tafel did not establish the affirmative defense of mistake of law as a matter of law. We overrule the second issue.

Conclusion

We affirm the trial court’s judgments.

(Chief Justice Gray dissenting)

TOM GRAY, Chief Justice,

dissenting.

The issues we decide today relate to how a concealed handgun license holder can be confident in the determination of where it is lawful to carry. The underlying right at issue was confirmed by the adoption of the second amendment to the United States Constitution. The scope of that right was discussed at length in the United States Supreme Court’s opinion in Heller. District of Columbia v. Heller, 554 U.S. 570, 635, 128 S. Ct. 2783, 171 L.Ed. 2d 637 (2008). And the right was confirmed as applicable to the States in the United States Supreme Court’s opinion in McDonald. McDonald v. City of Chicago, 561 U.S. 742, 791, 130 S. Ct. 3020, 177 L.Ed. 2d 894 (2010).

As presented to this Court, the issue is narrower than the issue in Heller and McDonald-, but due to the need to interpret various statutes and case law holdings, the issue is somewhat more complex. This is where the theory of the right to “keep and bear arms” runs into a maze of statutes and definitions that limit that right.

As a very simple factual overview, Ken Tafel was convicted of two counts of illegally carrying a handgun at a meeting of the commissioners court of Hamilton County, Texas. Tafel was, at the time of the events, a commissioner in Hamilton County and also a concealed handgun license holder. He was charged and convicted of “Unlawful Carrying of Handgun by License Holder” (Texas Penal Code § 46.035(c), (i)). After his conviction and without a hearing, his handguns were ordered forfeited to the State.

Because of the complexity of the issues, a thorough understanding of the statutes is essential. In addition to this, and because of the complexity of the interrelationship of several statutes, the language of the indictment will also be critical. Beyond the statutes and the indictment, it is necessary to have a firm grasp on various aspects of criminal law, including the concepts of the burden of proof and the placement thereof as applicable to the elements of an offense, as well as the exceptions, defenses, and affirmative defenses to the offense. And the overlay to all of this will be the appellate standards and common law for the standard of review on appeal and how we are to construe the relevant statutory provisions.

In addition to the legal complexities, there are some factual and procedural events that occurred in this case that further heighten the complexity of the statute and the difficulty for the prosecution and defense.

I.

Factual and Procedural Background

Mark Tafel was a duly elected and serving Hamilton County Commissioner on November 14, 2011; Tafel was also a concealed handgun license holder pursuant to Subchapter H, Chapter 411, of the Texas Government Code. Prior to November 14, 2011 Tafel had discussed the propriety of carrying a concealed handgun while attending the meetings of' the Hamilton County commissioners court. One discussion Tafel had was with the sheriff. This conversation was due to a citizen’s complaint. The complaint caused an investigation during which the sheriff requested Tafel’s side of the story which was reduced to a written statement. This complaint and investigation resulted in the presentment of an indictment to the Hamilton County grand jury. The grand jury did not indict Tafel, and “no billed” the complaint.

In addition to the conversation with the sheriff, and it is not clear whether this conversation was held before or after the above described events, a conversation occurred between Tafel and the county attorney. The county attorney made sure Tafel knew he was not representing Tafel. The county attorney was primarily concerned with whether Tafel’s actions would be a felony. This is because the Hamilton County courthouse was being renovated at the time and the room being used at times for the Hamilton County commissioners court was also being used when necessary as the courtroom for the district court and the county court. The county attorney discussed his concern that carrying a handgun into the room during a commissioners court meeting would be a felony because the room was also, used at times as a regular courtroom.

Tafel also talked to the county judge. The county judge had posted a sign related to prohibiting the carrying of guns in the room. After the county judge had researched the issue, he gave Tafel a letter that expressly authorized Tafel to carry a concealed handgun at meetings of the Hamilton County commissioners court.

While exercising his Second Amendment right as limited and further defined by the applicable statute or the letter from the county judge, Tafel entered the county commissioners courtroom on November 14, 2011. He was carrying two handguns, a full size .45 caliber and his backup handgun, a small .22 caliber. The commissioners court meeting was called to order and proceeded with the business on the agenda. During the first break in the commissioners court meeting, the sheriff approached Tafel and confronted him about whether he was armed, patted' him down, felt what he believed to be a handgun, arrested Tafel, and confiscated Tafel’s handguns, holsters, and ammunition. Tafel immediately asked the sheriff if the sheriff wanted to see the authorization letter from the county judge. The sheriff expressed that he was not interested in the'letter.

At the very next meeting of the commissioners court, the commissioners court ratified the county judge’s letter which authorized Tafel to carry a concealed handgun at meetings of the county commissioners court. At the next meeting of the commissioners court after the ratification, the commissioners court voted to rescind their prior ratification of the county judge’s authorization to Tafel.

Before Tafel vas charged with an offense, the elected district attorney moved to recuse himself. The motion was granted and an attorney pro tem was appointed. The attorney pro tem secured two felony indictments of Tafel, one for each handgun, as well as two misdemeanor .indictments, one for each handgun. The elected district court judge recused himself and notified the regional presiding judge. The regional presiding judge appointed a retired district judge to' sit for the elected district judge.

The attorney pro tem tried Tafel on the felony charges of carrying a handgun in a district courtroom, Texas Penal Code section 46.03, and the misdemeanor offenses of carrying a handgun into a meeting .of a governmental entity, Texas Penal Code section 46.035(c). Tafel waived a jury trial. The issues of guilt and punishment were decided by the appointed district judge. Tafel was acquitted of the felony charges by the judge appointed to sit for the district judge and convicted of the misdemeanor charges. On appeal, this Court held that the judge sitting for the district court judge did not have jurisdiction of the. misdemeanor charges, reversed the misdemeanor convictions, and remanded the proceedings. Tafel v. State, Nos. 10-12-00216-CR, 10-12-00217-CR, 2013 Tex. App. LEXIS 1763 (Tex. App.-Waco 2013, no pet.) (not designated for publication).

On remand, the proceedings were “transferred” to. the county court. A new judge was appointed to sit in place of the county judge because the elected county judge would bé a witness at trial, A new attorney pro tem was not appointed to prosecute the misdemeanor offenses in place of the county attorney who would also be a witness at trial. Tafel again waived his right to a jury trial. Tafel was again convicted of the misdemeanor offenses. '

The attorney pro tem filed a motion to forfeit Tafel’s two handguns pursuant to Texas Code of Criminal Procedure article 18.19(e). The motion was granted and an order of ’ forfeiture signed. The attorney pro tem moved to withdraw from his representation of the State of Texas and was allowed to withdraw. No attorney was appointed to represent the State.

Tafel filed his briefs in the two appeals. The elected district attornéy filed a brief on behalf of the State of Texas. This Court decided that the appeals of the forfeiture of the handguns, the holsters, and ‘ the ammunition were civil in nature, severed those appeals, and docketed them as civil appeals. All four appeals were scheduled for a single oral argument. The elected district attorney provided notice that another attorney would appear at oral argument for the State of Texas. The attorney selected by the- elected district, attorney filed a notice of appearance and appeared at the date and time scheduled and argued the case for the State of Texas, as did Tafel’s attorney.

At oral argument, the Court made an extensive inquiry into some issues that were not briefed, including, but not limited to, the authority of the attorney representing the State of Texas to appear in that capacity, double jeopardy, whether the second amendment issue impacted our standard of review on appeal,.and whether the forfeiture appeals were properly severed from the criminal appeals. The Court asked for briefing on these issues as well as briefing on some of the nuances of the other issues already briefed.

The parties 'provided extensive supplemental briefing. The supplemental briefing can be generally grouped into two types: (1) briefing that expanded on the existing issues, and (2) briefing in response to specific issues- raised by the Court upon which the Court requested briefing during oral argument. To facilitate further review and to help the parties understand which issues are being addressed in which sections of this dissenting opinion, this dissenting opinion will identify the brief and use the numbering system used in that brief to identify where the related .discussion is included within the briefing of the parties.

II.

Who Have We Here?

I do not' believe the State of Texas is properly before us.

Long before Tafel was indicted, the district attorney of Hamilton County, B.J. Shepherd, sought to recuse himself and, pursuant to his administrative role as District Attorney, moved for the appointment of an attorney pro tem “to serve until all proceedings in this investigation and any related matter has been concluded.” The phrase “this investigation” related to the allegations of criminal conduct against Taf-el which was noted in the motion for the appointment of an attorney pro tem. The trial court found that Shepherd should be allowed to be recused and appointed a retired district attorney, John Terrill, as the attorney pro tem “to represent the State in all subsequent matters or proceedings in the above referenced matter,” meaning the allegations of- criminal conduct against Tafel. Terrill represented the State in the first trial of Tafel, the appeal, and the second trial of . Tafel.

The district attorney of Hamilton County has authority to prosecute felony charges. In the first trial, Terrill,'as attorney pro tem, prosecuted Tafel on both felony and misdemeanor charges in the district court. Tafel was acquitted of the felony charges and convicted of the misdemeanor'charges. On appeal, it was determined the trial court did not have jurisdiction of the misdemeanor charges. Tafel v. State, Nos. 10-12-00216-CR, 10-12-00217-CR, 2018 Tex. App. LEXIS 1768 (Tex. App.-Waco 2013, no pet.) (not designated for publication).

On remand, a new trial court judge was appointed to try the case because the county judge that would have otherwise presided over the misdemeanor trial was a pivotal witness in the trial. What no one apparently thought to address is whether Terrill, who had been appointed attorney pro tem for the recused district attorney, could prosecute the misdemeanor cases in place of the county attorney. Thé county attorney was also a witness in the trial. The parties have not addressed this anomaly in their briefing. .

- In this dissenting opinion, I have not tried -to analyze the propriety of this additional wrinkle; but on the surface, it appears the attorney pro tem appointed to act for the district attorney had not been properly appointed to act as attorney pro tem for the county attorney. Nevertheless, it is just -one more issue that causes my concern about the validity of Tafel’s convictions; but because no issue or argument about this wrinkle is presented, I will not discuss it further.

After Tafel’s convictions in the county court and the forfeitures of Tafel’s guns, Terrill was allowed to withdraw from the case. Shepherd then purported to step back into the case by filing an appellate brief on behalf,of the State in the appeal from the second trial. He never revoked, withdrew, or endeavored to have a judge set aside his prior recusal/disqualification. When the case was set for oral argument, Shepherd hired a local highly .qualified criminal trial and appellate attorney, John ■Kuchera, to argue the case before this Court on behalf of the State. Kuchera presented new and additional authorities as well as arguing the responses in the brief which had been filed by Shepherd. During oral argument, the Court questioned Kuch-era about his and Shepherd’s authority to represent the State. Thereafter, Shepherd, in conjunction with additional .briefing of the issues at the Court’s request, and properly continuing to fulfill his administrative duties as district attorney, acknowledged that he had previously been recused and sought the appointment of Kuchera as an attorney pro tem. The trial court obliged and appointed Kuchera.

Whether anyone is properly before us as a representative of the State depends upon the interpretation and application of the terms “attorney pro tem” and “special prosecutor” and the offices, duties, responsibilities, and independence thereof.

An attorney pro tem assumes all the duties of the district attorney, acts independently of, and, effectively, replaces the district attorney. Coleman v. State, 246 S.W.3d 76, 82 n.19 (Tex. Crim. App. 2008); State v. Rosenbaum, 852 S.W.2d 525, 529 (Tex. Crim. App. 1993) (Clinton, J., concurring). The attorney pro tem acts “during the absence or disqualification of the attorney for the state.” Tex. Code Crim. Proc. Ann. art. 2.07(a) (West 2005); Coleman, 246 S.W.3d at 82.

There are different ways a district attorney can be disqualified. A district attorney can be legally disqualified, see e.g. Tex. Code Crim. Proc. Ann. art. 2.08 (West 2005), or can be “deemed” disqualified. See id. art. 2.07(b-1); Coleman, 246 S.W.3d at 81. A district attorney is deemed disqualified when he voluntarily recuses himself in a particular case and the trial court approves the voluntary recusal. Id. Once the recusal is approved, the trial court is able to appoint a competent attorney to perform the duties of the district attorney. See Tex. Code Crim. Proc. Ann. art. 2.07(a) (West 2005); Coleman, 246 S.W.3d at 81. The duration of the appointment normally depends upon the terms of the appointment order. Coleman, 246 S.W.3d at 83. When the order gives the attorney pro tem the ability to prosecute the case, it also gives the attorney the ability to represent the State on an appeal. See id.; State v. Rosenbaum, 852 S.W.2d 525, 528 (Tex. Crim. App. 1993). Further, the duration of the appointment is not limited by the duration of the district attorney’s disqualification. Coleman, 246 S.W.3d at 83.

In this case, when Shepherd sought to be recused from the matter against Tafel and the trial court approved the recusal and appointed Terrill as the attorney pro tem, Shepherd was “deemed disqualified” and was thereby and thereafter disqualified to act in this case. See id. at 84. The trial court appointed Terrill “to represent the State in all subsequent matters or proceedings” against Tafel. Terrill continued to represent the State through the first trial, appeal, and second trial. But when the court later allowed Terrill to withdraw, no other attorney pro tem was appointed, and there is nothing in the record to indicate that Shepherd was no longer deemed disqualified or, assuming that it could be done, that he sought to have his disqualification removed. Shepherd even acknowledged in a motion filed after oral argument in his second motion to appoint an attorney pro tem, that he had previously been recused from the matter against Tafel. Thus, Shepherd was still deemed disqualified from acting as counsel for the State, including representing the State on appeal, in the case against Tafel.

In Kuchera’s post-submission briefing, he argues he appeared at oral argument as a “special prosecutor” and was subsequently appointed attorney pro tem. A special prosecutor participates in a case only to the extent allowed by the district attorney and operates under his supervision. Coleman v. State, 246 S.W.3d 76, 82 n.19 (Tex. Crim. App. 2008); State v. Rosenbaum, 852 S.W.2d 525, 529 (Tex. Crim. App. 1993) (Clinton, J., concurring). The district attorney is still responsible for the prosecution, control, and management of the case. Stephens v. State, 978 S.W.2d 728, 731 (Tex. App.-Austin 1998, pet. ref'd); see Rosenbaum, 852 S.W.2d at 529 (Clinton, J., concurring). Court approval for a special prosecutor is not required because, the ultimate responsibility for the special prosecutor’s actions remains with the elected district attorney. Coleman, 246 S.W.3d at 82 n.19; Rosenbaum, 852 S.W.2d at 529 (Clinton, J., concurring).

Before oral argument at this Court, Shepherd submitted a notice that Kuchera would “appear for Appellee, State of Texas at oral argument....” Kuchera submitted his own notice later, announcing “his appearance as . attorney of record....” At argument, Kuchera asserted he was a special prosecutor. The documents we have been provided supports this assertion. But Shepherd was deemed disqualified. And if Shepherd was deemed disqualified, anyone working for him was also deemed disqualified. See Scarborough v. State, 54 S.W.3d 419, 424 (Tex. App.-Waco 2001, pet ref'd) (disqualification of district attorney is imputed to assistants); State v. May, 270 S.W.2d 682 (Tex. Civ. App.-San Antonio 1954, no writ) (same).

Without citation to authority, Kuchera argues that Shepherd’s deemed disqualification was not permanent. The disqualification may not be permanent; but having been judicially determined, there is no reason to believe it can be unilaterally terminated by the disqualified district attorney. Further, Kuchera’s argument has to fail because Shepherd, after argument at this Court, requested the appointment of Kuch-era as an attorney pro tem for the State and acknowledged that he had “previously removed himself’ from the matter against Tafel.

This leads to the question of whether Kuchera could qualify as an attorney pro tem when he had been, up until that point, working as a special prosecutor for Shepherd who had been disqualified. As we have said, when a district attorney is disqualified, his assistants are as well. As a special prosecutor, Kuchera was an assistant, working under the direction of Shepherd.

What we as a court should do is ask for briefing on whether a special prosecutor is considered an assistant district attorney and thus cannot be appointed as an attorney pro tem. The logic seems inescapable that, after acting as a special prosecutor in the case for Shepherd, Kuchera could not thereafter properly be appointed as attorney pro tem to independently represent the State. The parties, however, should have the opportunity to brief the issue. And if that briefing results in a determination that Kuchera' cannot qualify as an attorney pro tem in this case, we should strike the briefs filed by the deemed disqualified district attorney, Shepherd, and any other brief, supplemental brief, or reply brief filed by the disqualified special prosecutor/attorney pro tem, Kuchera, and abate this appeal to the trial court for the appointment of a qualified attorney pro tem, that is, one who has not been under the direction or employment of the deemed disqualified district attorney.

In his post-submission briefing, Kuchera argues that Tafel waived any complaint about Shepherd’s or Kuchera’s authority to act in this appeal because he did not object. All of the cases relied upon by Kuchera were cases where the error or problem with the attorney pro" tem occurred at the trial court level. That is not the situation here. Further, I do not believe it is the defendant’s duty to file a motion to appoint an attorney pro tem to prosecute a case against the defendant or to file a brief in response to a defendant’s appeal. Nevertheless, it' is this Court’s duty to inquire whether or not "a party has a proper brief on file. See Tex. R. App. P. 38.9 (relating to formal and substantive defects of briefs). Under the unusual facts of this case, we raised the issue at oral argument, and based on the foregoing, it appears the State does not- have a proper brief on file in this proceeding.

Tafel argues that we should simply ignore all of the briefing filed by the State and proceed to decide the case. If the State is not properly before the Court in the briefs on file from the attorneys purporting to represent the State, I believe we are obligated to allow the State the opportunity to appear either by a properly appointed and qualified attorney pro tem, or the State Prosecuting Attorney, to represent the interest of the State in this appeal.

Nevertheless, the Court has moved forward on the briefing before it, and due to the timing and nature of the issues that have been addressed in the Court’s opinion, I have no alternative other than to proceed to a discussion of the other issues.

III.

What Issues Do We Address?

Because the Court proceeds to address the issues without first resolving the question of whether the State is properly before us, I too am drawn to address the other issues in this appeal. And that is the next- issue that must be decided: What are the other issues in the appeal which must be addressed?

As described in the procedural history of the case, at oral argument in .these appeals we requested supplemental briefing on a number of issues not previously, briefed. We were favored with a number of supplemental briefs, responses, and replies. .

Notwithstanding that we requested the supplemental briefing on a number' of issues, the Court has declined to address any of the issues. Indeed, the Court declines to even mention them or explain why they are not being addressed in the Court’s opinion. As will be more fully addressed later when discussing the merits of those issues in this dissenting opinion, the supplemental briefs raise weighty issues that need to be resolved for a full and proper development of this appeal. For example the issue previously discussed, whether the State is properly before us in these appeals, is just one of the supplemental issues that was raised at oral argument, upon which the Court requested supplemental briefing, which the .parties briefed, but which the Court disregards.

The filing, scope, and use of supplemental briefing is addressed in Rule 38.7 and Local Rule 12(f). Texas Rule of Appellate Procedure 38.7 states:

A brief may be amended or supplemented whenever justice requires, on whatever reasonable terms the court may prescribe.

Tex. R. App. P. 38.7.

This Court’s Local Rule 12(f) -states: '

(f) Before submission, supplemental briefs may be filed without leave of the Court if no new issues are raised. If new issues are raised, leave of the Court must be obtained beforé such a brief will be filed: After submission, supplemental briefs may be filed only with leave of the Court.

10th Tex. App. (Waco) Loe. R. 12(f).

At least one court has commented that the “Texas Rules of Appellate Procedure do not contemplate the use of a supplemental brief for the purposes of raising new issues.” Ledbetter v. State, 208 S.W.3d 723, 736 (Tex. App.-Texarkana 2006, no pet.). On the other hand, a number of courts have acknowledged that we may permit a party to amend or supplement a brief whenever justice requires. See Standard Fruit & Vegetable Co., Inc. v. Johnson, 985 S.W.2d 62, 65 (Tex. 1998) (appellate court has discretion whether to allow filing of amended or supplemental brief in interest of justice); Black v. Shor, 443 S.W.3d 154, 161 n. 2 (Tex. App.-Corpus Christi 2013, pet. denied). Courts have found the interest- of justice authorized supplemental briefs for various reasons. In Villareal v. Stater supplemental briefs were approved in the interest of justice to afford the “appellant an opportunity to raise additional argument she may derive from” a newly issued opinion of the Fifth Circuit on an issue relevant to her appeal. Villarreal v. State, 267 S.W.3d 204, 207 (Tex. App.-Corpus Christi 2008, no pet.). Moreover, courts have considered issues in supplemental briefs raised for the first time on- appeal at a time when the State had an opportunity to respond. Champion v. State, 126 S.W.3d 686, 691 (Tex. App.Amarillo 2004, pet. ref'd).

Additionally, it seems fairly common that courts ask that supplemental briefs be filed on various issues. The court in Whit-worth asked the parties to address the issue of standing, and both did. Whitworth v. Whitworth, 222 S.W.3d 616, 639 n. 13 (Tex. App.-Houston [1st Dist.] 2007, no pet.). Likewise, the court in Amell “ordered the parties to provide supplemental briefing on the jurisdictional issues ... The parties complied....” Arnell v. Arnell, 416 S.W.3d 188, 192 n. 3 (Tex. App.-Dallas 2013, no pet.). Arid the other Houston court in SupaJc noted concerns during oral argument and considered the issue and arguments contained in supplemental briefs filed by the parties after oral argument. Supak v. Zboril, 56 S.W.3d 785, 792 (Tex. App.-Houston [14th Dist.] 2001, no pet.).

At oral argument, the Court raised many issues and requested supplemental briefing on some of them. In response we received a number of suppleiriental briefs, responses, and replies. While leave was not sought to file any of these briefs, it seems obvious that leave to file the briefs had been impliedly granted by the Court having requested briefing on the. issues. While it may.be within our discretion to discuss issues raised in supplemental briefs when filed without leave of court, see Boyle v. State, 820 S.W.2d 122, 141 (Tex. Crim. App. 1999); State v. Krizan-Wilson, 321 S.W.3d 619, 623 n.1 (Tex. App.-Houston [14th Dist.] 2010), aff'd, 354 S.W.3d 808 (Tex. Crim. App. 2011), when briefing on the issue is requested, or leave to file a supplemental brief raising new issues is expressly granted, I believe we must address the issue if the issue is necessary to -the disposition of the appeal. See Tex. R. App. P. 47.1 (written opinion to adequately address “every issue raised and necessary to final disposition....”).

To not address the issues at this juncture effectively deprives Tafel of due process. Even without our request for briefing on an issue, he may have identified the issue before the disposition of the appeal, sought and been granted leave to file a new issue, and the Court would thus be required to address the issue. To not review and decide issues just because we requested briefing on it before counsel first raised the issue seems to be against the interest of justice and an abuse of our discretion. I would address each of the issues raised in the supplemental briefing requested by the Court that is necessary to a disposition of the appeal.

IV.

The Offense

Initially, the statute under which Tafel was prosecuted may seem to be difficult or awkward but not too complex. So let us begin with the statute which defines the offense. The focus of this entire section is whether section 46.035(i) (whether Tafel received effective notice) is an exception or a defense to the conduct described in section 46.035(c) (carrying a handgun to a government meeting). If it is an exception, the State has to plead the exception and negate it. On -the other hand, if it is a defense, the State need not plead it, although in this case it did, but it still must overcome it beyond a reasonable doubt. Thus, it matters how it is classified.

IV-A.

The Statutes

Section 46.035 of the Penal Code is entitled “Unlawful Carrying of Handgun by License Holder.” The first five subsections, (a)-(e), describe or define prohibited conduct. Subsection (f) defines certain terms used in the statute and subsection (g) provides the grade of the offenses. There are then four subsections that provide for a “defense to prosecution” and two subsections that describe circumstances under which the earlier provisions “do not apply.” One of our first questions will be to determine if there is a difference between a “defense to prosecution” versus a provision to which the statutes “do not apply.” And within some of the five described offenses, there is an “unless” clause. The statute has been amended in various ways since the offense date. All references and quotes will be to the statute as it existed on November 14, 2011, the date of the alleged offense.

The full text of section 46.035 is as follows:

(a) A license holder commits an offense if the license holder carries a handgun on or about the license holder’s person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally fails to conceal the handgun.

(b) A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, on or about the license holder’s person:

(1) on the premises of a business that has a permit or license issued under Chapter 25, 28, 32, 69, or 74, Alcoholic Beverage Code, if the business derives 51 percent or more of its income from the sale or service of alcoholic beverages for on-premises consumption, as determined by the Texas Alcoholic Beverage Commission under Section 104.06, Alcoholic Beverage Code;

(2) on the premises where a high school, collegiate, or professional sporting event or interscholastic event is taking place, unless the license holder is a participant in the event and a handgun is used in the event;

(3) on the premises of a correctional facility;

(4) on the premises of a hospital licensed under Chapter 241, Health and Safety Code, or on the premises of a nursing home licensed under Chapter 242, Health and Safety Code, unless the license holder has written authorization of the hospital or nursing home administration, as appropriate;

(5) in an amusement park; or

(6) on the premises of a church, synagogue, or other established place of religious worship.

(c) A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, at any meeting of a governmental entity.

(d) A license holder commits an offense if, while intoxicated, the license holder carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed.

(e) A license holder who is licensed as a security officer under Chapter 1702, Occupations Code, and employed as a security officer commits an offense if, while in the course and scope of the security officer’s employment, the security officer violates a provision of Subchapter H, Chapter 411, Government Code.

(f) In this section:

(1) “Amusement park” means a permanent indoor or outdoor facility or park where amusement rides are available for use by the public that is located in a county with a population of more than one million, encompasses at least 75 acres in surface area, is enclosed with access only through controlled entries, is open for operation more than 120 days in each calendar year, and has security guards on the premises at all times. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.

(2) “License holder” means a person licensed to carry a handgun under Subchapter H, Chapter 411, Government Code.

(3) “Premises” means a building or a portion of a building. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.

(g) An offense under Subsection (a), (b), (c), (d), or (e) is a Class A misdemeanor, unless the offense is committed under Subsection (b)(1) or (b)(3); in which ■event the offense is a felony of the third degree.

(h) It is a defense to prosecution under Subsection (a) that the actor, at the time of the commission of the offense, displayed the handgun under circumstances in which the actor would have been justified in the use of deadly force under Chapter 9.

(h-1) [[1]: As added by Acts 2007, 80th Leg., ch. 1214] It is a defense to prosecution under Subsections (b) and (c) that the actor, at the time of the commission of the offense, was:

(1) an active judicial officer, as defined by Section 411.201, Government Code; or

(2) a bailiff designated.by the active judicial officer and engaged in escorting the officer.

(h-1) [[2]: As added by Acts 2007, 80th . Leg., ch. 1222] It is a defense to prosecution under Subsections (b)(1), (2), and (4)-(6), and (c) that at the time of the commission of the offense, the actor was:

(1) a judge or justice of a federal court;

(2) an active judicial officer, as defined by Section 411.201, Government Code; or

(3) a district attorney, assistant district attorney, criminal district attorney, assistant criminal district attorney, county attorney, or assistant county attorney.

(i) Subsections (b)(4), (b)(5), (b)(6), and (c) do not apply if the actor was not given effective notice under Section 30.06.

(j) Subsections (a) and (b)(1) do not apply to a historical reenactment performed in compliance with the rules of the Texas Alcoholic Beverage Commission.

(k) It is a defense to prosecution under Subsection (b)(1) that the actor was not given effective notice under Section 411.204, Government Code.

Enacted by Acts 1995, 74th Leg., ch. 229 (S.B. 60), § 4, effective September 1, 1995; ami Acts 1997, 75th Leg., ch. 165 (S.B. 898), § 10.04, effective September 1, 1997; am. Acts 1997, 75th Leg., ch. 1261 (H.B. 2909), §§ 26, 27, effective September 1, 1997; am. Acts 2001, 77th Leg., ch. 1420 (H.B. 2812), § 14.833, effective September 1, 2001; am. Acts 2005, 79th Leg., ch. 976 (H.B. 1813), § 3⅛ effective September 1, 2005; am. Acts 2007, 80th Leg., ch. 1214 (H.B. 1889), § 2, effective June 15, 2007; am. Acts 2007, 80th Leg., ch. 1222 (H.B. 2300),- § 5, effective June 15, 2007; am. Acts 2009, 81st Leg., ch. 687 (H.B. 2664), § 1,.effective September. 1, 2009. (Current version at Tex. Penal Code Ann. § 46.035 (West 2011)).

A careful reader may note what otherwise might appear to be a typographical error in that there is a subsection (h) as well as two subsections (h-1). These are not typographical errors. They are numbering conventions used by the legislature when two provisions are passed in the same session that address the same statutory provision. Thus, this is the way the statute appears in the penal code and is a graphic example of the complexity even as the legislature works to make the statute understandable by the general public.

There are several important word choices of the legislature that initially may not be noticed. For example: .

1. Subsections (b)(2) and (b)(4) both contain an “unless” clause. Thus, the described conduct is a crime “unless” the conditional provision applies;

2. Subsections (h), (h-1) [1], (h-1) [2] and ■ (k) provide that “it is a defense to prosecution” if the facts-described in those subsections are present; and

3. Subsections (i) and (j) provide that a number of specified subsections that otherwise define criminal conduct simply “do not apply” under certain ■circumstances.

These word choices can be further distinguished from other choices used in Chapter 46, For example, section 46.05 subsections (b), (c), and (f) use the phrase “defense to prosecution” to describe certain conduct. Whereas subsection'(d) of the same section and subsection (c) of section 46.06 use the phrase that certain conduct is an “affirmative defense to prosecution.”

And finally, the legislature’s selection of words in section 46.15 is , noteworthy. The section is entitled “Nonapplicability” and proceeds to describe eight circumstances to which section 46.02 or 46.03 “do not” or “does not” apply.

This brings us to an important question. Does the selection of these different words and phrases by the legislature mean anything?

I believe that it does. To the average citizen, a reasonable person, to say that certain conduct is a crime seems clear. To say that-it is a crime “unless” a certain fact exist seems clear as well. And to say that a criminal statute “does not apply” if certain facts exist seems equally clear. It may, however, become less clear to the average citizen to understand the difference between what it means when a penal statute “does not apply” to certain conduct versus when there is an exception to the application of a penal statute for certain conduct or what it means to be “a defense” versus “an affirmative defense” to criminal conduct.

The Court’s Opinion herein directs the reader to the legislature’s guide to statutory interpretation. Maj. Op. at *3; Tex. Penal Code Ann. § 2.03(e) (West 2011). While it might be helpful in some circumstances to use the statute, it is, in the final analysis, our duty to determine what the legislature’s chosen language in any given statute means. See Reynolds v. State, 423 S.W.3d 377, 382 (Tex. Crim. App. 2014) (reviewing court attempts to discern the fair, objective meaning of a statute at the time of its enactment). A mechanical application of a code construction statute that tells us how to interpret a penal statute can lead to the very result the code construction statute is designed to avoid: an ambiguity or an absurd result.

As for me, I cannot possibly conclude that a statute that uses dramatically different terms within the same section of the statute actually means the exact same thing. As applied to section 46.036, how can “it is a defense to prosecution” mean the same thing as it “does not apply?”

But first, let us address why it matters.

We are an appellate court. In this case, we are called upon to review the sufficiency of the evidence to support the defendant’s convictions. To do this, we must know the elements of the cfime the State must prove to the requisite level of proof to obtain a conviction. But it does not stop there. We must also know whether there are circumstances that prevent the conduct from being criminal. Such circumstances can be broadly characterized as either exceptions or defenses. Moreover, exceptions and defenses can be further divided, For example, defenses can be ordinary defenses or they can be affirmative defenses, Analyzing what they are with precision is critical to understanding who, the State or the defendant, has to prove what, and to what level of certainty, for the State to obtain a valid criminal conviction.

iy-b.

Elements vs. Exceptions vs. Defenses vs. Affirmative Defenses

In general, an indictment must plead every element which must be proven" by the State. Dinkins v. State, 894 S.W.2d 330, 338 (Tex. Crim. App. 1996). The Penal Code provides that an element of an offense includes: (A) the forbidden conduct; (B) the required culpability; (C) any required result; and (D). the negation of any exception to the offense. Tex. Penal Code Ann. § 1.07(22) (West 2011). The State must prove each element beyond a reasonable doubt. See id. § 2.01.

1) Exceptions

According to the code construction provisions of the Penal Code, an exception to an offense under the Penal Code is labeled by the phrase: “It is an exception to the application of .Id. § 2.02(a). Generally, when an exception is involved, not only must the State negate the existence of the exception in the accusation charging commission of the offense, normally an indictment, but the State must also prove beyond a reasonable doubt that the defendant or defendant’s conduct does not fall within the exception. Id. § 2.02(b) (“The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant’s conduct does not fall within the exception.”). Because the negation of an exception is an element the State must prove beyond a reasonable doubt, the traditional standard of reviewing the sufficiency of the evidence would apply.

2) Defenses

And also according to the code construction provision of the Penal Code, a defense is labeled, “it is a defense to prosecution ...” Id. 2.03(a). Unlike a statutory exception that must be negated by the State whether or not the exception is raised by the defendant, a defense must be raised by the defendant before the State has the burden to overcome it. Further, unlike an exception, the State need not plead a defense in an indictment. Tex. Penal Code Ann § 2.03(b) (West 2011); see Bermudez v. State, 533 S.W.2d 806, 807 (Tex. Crim. App. 1976); Alford v. State, 806 S.W.2d 581, 586 (Tex. App.-Dallas 1991), aff'd, 866 S.W.2d 619 (Tex. Crim. App. 1993). If requested, a defensive issue must be included in the court’s charge to the jury, in both the abstract and the application paragraphs. See generally Vega v. State, 394 S.W.3d 514 (Tex. Crim. App. 2013). See also Tex. Penal Code Ann. § 2.03(c), (d) (West 2011).

A defendant bears the initial burden to produce some evidence that supports the defensive theory. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Arias, 477 S.W.3d at 928. Once the defendant produces such evidence, the State then bears the ultimate burden of persuasion to overcome the defense beyond a reasonable doubt. Zuliani 97 S.W.3d at 594; Arias, 477 S.W.3d at 928.

The burden of persuasion is not one that requires the production of evidence, rather it requires only that the State prove its case beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594. The Court of Criminal Appeals has explained that

.. .we look not to whether the State presented evidence which refuted appellant’s [evidence of the defensive theory], but rather we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of [the crime] beyond a reasonable doubt and also would have found against the appellant on the [defense] beyond a reasonable doubt.

Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). When a jury finds the defendant guilty, there is an implicit finding against the defensive theory. Id. But a defendant is entitled to acquittal if there is reasonable doubt on the defense. Tex. Penal Code Ann. § 2.03(d) (West 2011).

In reviewing the sufficiency of the evidence to support the rejection of a defensive issue, we look not to whether the State presented evidence which refuted appellant’s defense, but rather we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of the offense charged beyond a reasonable doubt and also would have found against the defendant on his defense beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).

3) Affirmative Defenses

An affirmative defense is “labeled by the phrase: It is an affirmative defense to prosecution....” Tex. Penal Code Ann. § 2.04(a) (West 2011). With affirmative defenses, the burden of proof is on the defendant who must prove his affirmative defense, but only by a preponderance of the evidence. See Van Guilder v. State, 709 S.W.2d 178, 180-81 (Tex. Crim. App. 1985), overruled on other grounds by Meraz v. State, 785 S.W.2d 146, 150 (Tex. Crim. App. 1990). The Penal Code provides:

If the issue of the existence of an affirmative defense is submitted to the jury, the Court shall charge that the defendant must prove the affirmative defense by a preponderance of the evidence.

Tex. Penal Code Ann. § 2.04(d) (West 2011). This burden is very different from that required of all other defenses that are not specifically identified as affirmative defenses. Van Guilder, 709 S.W.2d at 181. As stated earlier, in other defenses, the burden of initially producing evidence to raise the defense is on the defendant; but after the defendant has met this burden of production, the State bears the burden of persuasion to overcome the defense beyond a reasonable doubt. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). This level of proof is not required of the State in a case involving an affirmative defense. Van Guilder, 709 S.W.2d at 181. With an affirmative defense, a defendant has both the burden of proof (by production of evidence) and the burden of persuasion (by a preponderance of the evidence). See Tex. Penal Code Ann. § 2.04 (West 2011); Meraz v. State, 785 S.W.2d 146, 150 (Tex. Crim. App. 1990).

The proper standard for review of challenges to the legal sufficiency of the evidence to support an adverse finding on an affirmative defense is as follows:

"When an appellant asserts that there is no evidence to support an adverse finding on which she had the burden of proof, we construe the issue as an assertion that the contrary was established as a matter of law. We first search the record for evidence favorable to the finding, disregarding all contrary evidence unless a reasonable factfinder could not. If we find no evidence supporting the finding, we then determine whether the contrary was established as a matter of law.

Matlock v. State, 392 S.W.3d 662, 669 (Tex. Crim. App. 2013) (emphasis in original). If the record reveals evidence supporting the defendant’s position, but that evidence was subject to a credibility assessment and was evidence that a reasonable jury was entitled to disbelieve, we will not consider that evidence in a matter-of-law assessment. Id. at 670. Only if the appealing party establishes that the evidence conclusively proves the affirmative defense and “that no reasonable jury was free to think otherwise,” may we conclude that the evidence is legally insufficient to support the jury’s rejection of the defendants affirmative defense. Id.

A criminal defendant might also raise a factual-sufficiency challenge to the jury’s adverse finding on his affirmative defense. Id. In the factual-sufficiency review of a rejected affirmative defense, we view the entirety of the evidence in a neutral light, but we may not usurp the function of the jury by substituting our judgment in place of the jury’s assessment of the weight and credibility of the witnesses’ testimony. Id. at 671. Therefore, we may sustain a defendant’s factual-sufficiency claim only if, after setting out the relevant evidence and • explaining precisely how the contrary evidence greatly outweighs the evidence supporting the verdict, we clearly state why the verdict is so much against the great weight of the evidence as to be manifestly unjust, conscience-shocking, or clearly biased. Id. If, in conducting .a factual-sufficiency review, we find that the evidence supporting the affirmative defense so greatly outweighs the contrary evidence that the verdict is manifestly unjust, then we may reverse the trial court’s judgment and remand the case for a new trial. Id. at 672.

4) The Need to Determine What It Is.

’ But what if the statutory provision does not use any of these set phrases? What if the provision uses the phrase “unless” or “does not apply?” As mentioned above, the legislature has provided a code construction provision; and