162 P.3d 1195 (2007)
In re the DETENTION of John L. STRAND, Appellant,
v.
STATE of Washington, Respondent.
No. 34442-4-II.
Court of Appeals of Washington, Division 2.
July 31, 2007.
*1197 Manek R. Mistry, Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for Appellant.
Sarah Sappington, Office of the Atty General, Seattle, WA, for Respondent.
VAN DEREN, A.C.J.
¶ 1 John Leonard Strand appeals his commitment as a sexually violent predator (SVP)[1] arguing that: (1) he had a constitutional right to counsel at a chapter 71.09 RCW psychological evaluation conducted before the State filed a petition to have him adjudicated as a SVP and before the required probable cause hearing, (2) his counsel's failure to object to either the pre-filing or the post-filing psychological evaluations constituted ineffective assistance of counsel, and (3) the court's failure to record the testimony of his expert witness deprived him of an official record of that portion of the proceedings. Finding no error, we affirm.

FACTS
¶ 2 In 1992, a jury convicted John Strand of first degree child molestation and the trial court sentenced him to a 150-month exceptional sentence. In January 2004, Dr. Kathleen Longwell interviewed him and completed an evaluation under chapter 71.09 RCW. Longwell informed Strand that the interview was not confidential and that State could use *1198 the information gathered against him in a SVP case. Strand signed a consent form agreeing to an evaluation interview with Longwell.
¶ 3 During the interview, Strand denied committing any sex crimes, including the child molestation offense for which he was incarcerated. He denied any sexual interest, contact, or fantasies involving children. Based on the interview and a review of his records, Longwell diagnosed Strand with pedophilia, antisocial personality disorder, and alcohol dependence, concluding that these disorders predisposed him to commit violent sex crimes. She determined that he was in the highest risk range for sexual recidivism.
¶ 4 On February 7, 2005, the State filed a SVP commitment petition and a certification for determination of probable cause under Chapter 71.09 RCW. The following day, the trial court appointed an attorney to represent Strand. Thereafter, Strand submitted to a second evaluation on November 8, 2005, and to a deposition on December 6, 2005.
¶ 5 Before trial, Strand moved to exclude testimony from the State's witnesses about prior unadjudicated sex offenses, arguing that the incidents were not relevant because they may not have occurred and he may not have been the perpetrator. But, during his interviews and in his deposition and trial testimony, Strand admitted to having nonsexual contact with the witnesses at the described times and places. The trial court concluded that it was more likely than not that the incidents occurred and allowed the State's witnesses to testify.
¶ 6 At trial, consistent with the court's ruling, the State introduced testimony from six witnesses, including Strand's sister, about actual and attempted acts of abuse against children. One of the incidents led to a conviction for lewdness; the remaining incidents were either unreported or the charges were dismissed.
¶ 7 Longwell testified about her conclusions based on interviews with Strand and review of his records. In her opinion, Strand felt no remorse about his behaviors and their consequences did not trouble him. She believed he would likely sexually re-offend in a violent, predatory manner.
¶ 8 The defense called its own expert, Dr. Theodore Donaldson, who testified that Strand did not meet the SVP criteria. But, due to an error, the trial court did not activate its recording system and Donaldson's testimony was not preserved. As soon as the error was discovered, Strand moved for a mistrial, arguing that a reconstructed record could not substitute for Donaldson's complex testimony. The trial court denied his motion for mistrial, ruling that the parties could reconstruct the testimony from Donaldson's deposition.
¶ 9 The jury determined that Strand was a SVP. After the jury returned its verdict, the trial court directed the parties to reconstruct Donaldson's testimony. Strand objected to several portions of the State's proposed narrative and moved for a new trial. After making several changes to incorporate Strand's objections, the trial court was satisfied that the reconstructed record, with Donaldson's deposition incorporated, was accurate and sufficient.
¶ 10 Strand appeals.

ANALYSIS
I. Evaluation Before Filing SVP Petition
¶ 11 Strand argues that the State violated his rights because Longwell evaluated him before the State filed a SVP petition because RCW 71.09.040[2] provides for evaluation only after the probable cause determination. He claims that under In re Detention of Williams, 147 Wash.2d 476, 491, 55 P.3d 597 *1199 (2002), RCW 71.09.040 is the exclusive means of evaluating whether an individual is a SVP and the State failed to follow the statute.
¶ 12 But Strand consented to the pre-petition interview. And to preserve an error for appeal, counsel must call it to the trial court's attention so the trial court has an opportunity to correct it. State v. Wicke, 91 Wash.2d 638, 642, 591 P.2d 452 (1979). We do not consider errors raised for the first time on appeal except manifest errors affecting a constitutional right.[3]
¶ 13 Strand makes several arguments claiming that the evaluation process deprived him of his constitutional rights. We consider each in turn.
A. Right to Counsel During SVP Evaluations
¶ 14 Strand contends that the evaluation procedure was unconstitutional because it deprived him of the right to counsel during his SVP evaluation.
¶ 15 SVP offenders "have a statutory right to counsel during all stages of a commitment trial." In re Detention of Stout, 128 Wash.App. 21, 27, 114 P.3d 658 (2005). But there is no constitutional right to counsel at psychological evaluations conducted in the course of SVP proceedings. In re Detention of Kistenmacher, 134 Wash.App. 72, 73, 138 P.3d 648 (2006), review granted, 159 Wash.2d 1019, 157 P.3d 404 (2007). We reject Strand's request to reconsider our decision in Kistenmacher or to create a new requirement for counsel before a SVP petition is filed.
B. Self-Incrimination
¶ 16 Strand also asserts that by denying him counsel at the pre-petition evaluation, the State violated his Fifth Amendment privilege[4] not to incriminate himself because he remains vulnerable to criminal prosecution for the un-adjudicated incidents.
¶ 17 To prevail on a claim of a Fifth Amendment violation, there must be a "`realistic threat of self-incrimination'" in a subsequent proceeding. State v. King, 130 Wash.2d 517, 524, 925 P.2d 606 (1996) (quoting Minnesota v. Murphy, 465 U.S. 420, 427, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984)). But Strand did not incriminate himself at any point. Moreover, a defendant must invoke the Fifth Amendment privilege for it to apply, except in a custodial interrogation or a situation where assertion of the privilege would be penalized. State v. Warner, 125 Wash.2d 876, 884, 889 P.2d 479 (1995). Strand was not compelled to answer any of the State's queries; to the contrary, he consented to the interview after Longwell asked him if he wanted to participate and informed him that his statements could be used against him in SVP proceedings. Absent compulsion, the interview does not constitute "interrogation." See Warner, 125 Wash.2d at 884, 889 P.2d 479. Strand fails to establish constitutional error based on violation of his Fifth Amendment privilege.
¶ 18 Strand does not demonstrate that he had a constitutional right to counsel at his psychological evaluation or that the absence of counsel deprived him of his privilege against self-incrimination. Because Strand failed to show that the pre-petition SVP evaluation affected any constitutional right, we decline to consider his objection to the State's evaluation procedure for the first time on appeal. RAP 2.5(a)(3).
II. Ineffective Assistance of Counsel
¶ 19 Next, Strand argues that his attorney provided ineffective assistance by failing to object to the evaluation procedure or dispute the voluntariness of his statements, contending that competent counsel would have preserved these issues for review.
*1200 ¶ 20 To prevail on the claim, he must show that his attorney's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the outcome. State v. McFarland, 127 Wash.2d 322, 334-35, 899 P.2d 1251 (1995). We give great deference to trial counsel's performance and presume that counsel was effective, viewing the representation in light of all the circumstances. McFarland, 127 Wash.2d at 335, 899 P.2d 1251; State v. Weber, 137 Wash.App. 852, 858, 155 P.3d 947 (2007). Matters of trial strategy or tactics do not establish that counsel's performance was deficient. Weber, 137 Wash.App. at 858, 155 P.3d 947. And when counsel fails to object to the admission of evidence, a defendant alleging ineffective assistance must show that the trial court would likely have sustained the objection. Detention of Stout, 159 Wash.2d 357, 377, 150 P.3d 86 (2007) (defendant entitled to effective assistance of counsel in SVP proceeding); State v. Saunders, 91 Wash.App. 575, 578, 958 P.2d 364 (1998).
¶ 21 Trial counsel's decision not to contest the State's pre-petition evaluation and failure to request a voluntariness hearing on the admissibility of his statements to Longwell was not objectively unreasonable. Strand voluntarily participated in the interview after Longwell advised him that his statements could be used against him in SVP proceedings. A reasonable attorney could conclude that because Strand acquiesced in the procedure and signed a consent form, he would probably not prevail on the issue.
¶ 22 Next, Strand argues that competent counsel would have advised him to assert his Fifth Amendment privilege and refuse to testify about the uncharged events. But the decision whether to call a witness to testify is a matter of trial strategy and, therefore, does not show ineffective assistance. State v. King, 24 Wash.App. 495, 499, 601 P.2d 982 (1979). Moreover, the decision about whether to testify ultimately resides with the defendant, not counsel. State v. Robinson, 138 Wash.2d 753, 758, 982 P.2d 590 (1999). Strand's decision to testify and deny committing any sex crimes was a tactical decision and cannot establish ineffective assistance of counsel. Strand fails to show that his attorney's performance was objectively unreasonable; therefore his ineffective assistance of counsel argument fails.
III. Failure to record testimony
¶ 23 Finally, Strand contends that his commitment must be overturned because the trial court did not preserve Donaldson's testimony in a verbatim report of proceedings. Strand requests a new trial, arguing that the trial court's failure to record his only witness's testimony violated the constitutional requirement that trial courts be courts of record and violated his rights to due process and appeal.
¶ 24 Strand has no constitutional right to a verbatim report of proceedings. State v. Tilton, 149 Wash.2d 775, 781, 72 P.3d 735 (2003). To satisfy due process, a criminal defendant[5] is entitled to "a record of sufficient completeness" for purposes of an appeal. A "record of sufficient completeness" does not necessarily mean a complete verbatim report of proceedings and, as long as another method allows effective review, such method is constitutionally permissible. Tilton, 149 Wash.2d at 781, 72 P.3d 735 (citations omitted).
¶ 25 The trial court discovered the inadvertent taping error the day after it occurred. While discussing the error, Strand's counsel agreed that there were no significant objections raised during Donaldson's testimony. Strand's counsel made numerous objections to the State's proposed narrative, which the trial court addressed. The trial court also determined that Donaldson's deposition testimony was substantially the same as his testimony at trial and incorporated it into the reconstructed record.
¶ 26 Strand fails to demonstrate that the combination of Donaldson's deposition and the reconstructed narrative record is insufficient to allow effective appellate review. He *1201 contends that appellate review is hindered because rulings on objections are unavailable, trial counsel had no notes of Donaldson's testimony, trial counsel disagreed with the trial court's conclusions about what happened, the jury may not have heard important testimony, the State may have elicited inadmissible testimony on cross-examination, and trial counsel may have provided ineffective assistance. But, these potential errors are purely speculative because the record indicates that Donaldson's testimony did not raise any significant issues or objections.
¶ 27 In any event, Strand has not taken the necessary steps to complete the record and thereby has waived any objection. A party who contends that the record is deficient must supplement the record through affidavits. State v. Miller, 40 Wash. App. 483, 488, 698 P.2d 1123 (1985). Strand has made no attempt to supplement the record with affidavits from trial counsel or the trial court and, therefore, we do not consider his argument further.
¶ 28 Remand for a new trial is only appropriate where the trial court's report of proceedings is insufficient for appellate review and when appropriate affidavits cannot adequately supplement the record. Tilton, 149 Wash.2d at 783, 72 P.3d 735. Because Strand failed to make a showing that the record, including Donaldson's deposition testimony is insufficient for review, his argument fails.
¶ 29 Affirmed.
We concur: BRIDGEWATER and QUINN-BRINTNALL, JJ.
NOTES
[1]  "Sexually violent predator" means any person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which actually makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility. RCW 71.9.020(16).
[2]  RCW 71.09.040 provides in relevant part:

(1) Upon the filing of a petition under RCW 71.09.030, the judge shall determine whether probable cause exists to believe that the person named in the petition is a sexually violet predator. If such determination is made the judge shall direct that the person be taken into custody.
. . . .
(4) If the probable cause determination is made, the judge shall direct that the person be transferred to an appropriate facility for evaluation as to whether the person is a sexually violent predator. The evaluation shall be conducted by a person deemed to be professionally qualified to conduct such an examination.
[3]  RAP 2.5(a)(3) provides in relevant part: "The appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise the following claimed errors for the first time in the appellate court: . . . (3) manifest error affecting a constitutional right."
[4]  No person . . . shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law. U.S. Const. amend. V.
[5]  Though Strand is not a criminal defendant, because he is facing involuntary commitment, we apply a similar standard.


IN THE SUPREME COURT OF THE STATE OF DELAWARE

CLIFFORD WRIGHT, §
§ No. 107, 2015
Defendant Below, §
Appellant, §
§ Court Below - Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, §
§ ID. No. 0801010328
Plaintiff Below, §
Appellee. §

Submitted: January 20, 2016
Decided: January 22, 2016

Before STRINE, Chief Justice, HOLLAND and VAUGHN, Justices.
QM
This 22"" day of January 2016, the Court having considered this matter on the
briefs ﬁled by the parties has determined that the ﬁnaljudgment of the Superior Court
should be afﬁrmed on the basis of and for the reasons assigned by the Superior Court
in its opinion dated February 12, 2015.
NOW, THEREFORE, IT IS HEREBY ORDERED that the judgment of the

Superior Court be, and the same hereby is, AFFIRMED.

BY THE COURT:


STATE OF MISSOURI,                                   )
                                                     )
        Plaintiff-Respondent,                        )
                                                     )
v.                                                   )        No. SD35327
                                                     )
JERRY RAY GILLUM,                                    )        Filed: April 30, 2019
                                                     )
        Defendant-Appellant.                         )

             APPEAL FROM THE CIRCUIT COURT OF BUTLER COUNTY

                                  Honorable Michael M. Pritchett

AFFIRMED

        Jerry Ray Gillum (“Defendant”) was convicted after a jury trial of the class D

felony of resisting arrest 1 and the class C felony of possession of a controlled substance.

See sections 575.150, RSMo 2016, and 195.202. 2 In a single point on appeal, Defendant

claims the trial court erred in denying his motion for judgment of acquittal because the

evidence adduced at trial was insufficient to prove beyond a reasonable doubt that

1
  Defendant does not appeal his conviction for resisting arrest. The trial court sentenced Defendant as a
persistent offender to serve a total of twelve years in prison.
2
  Unless otherwise indicated, all statutory citations are to RSMo. Cum. Supp. 2011. Section 195.202 was
transferred to section 579.015, effective January 1, 2017.

                                                     1
Defendant knowingly and consciously possessed methamphetamine. Finding no merit in

that claim, we affirm.

                                   Standard of Review

               “When considering the sufficiency of the evidence on appeal, this
       Court must determine whether sufficient evidence permits a reasonable
       juror to find guilt beyond a reasonable doubt.” State v. Wright, 382
       S.W.3d 902, 903 (Mo. banc 2012) (internal quotation omitted). “The
       evidence and all reasonable inferences therefrom are viewed in the light
       most favorable to the verdict, disregarding any evidence and inferences
       contrary to the verdict.” Id. “This is not an assessment of whether the
       Court believes that the evidence at trial established guilt beyond a
       reasonable doubt but rather a question of whether, in light of the evidence
       most favorable to the State, any rational fact-finder could have found the
       essential elements of the crime beyond a reasonable doubt.” Id.

State v. Stewart, 560 S.W.3d 531, 533 (Mo. banc 2018).

                                           Facts

       Viewed in the light most favorable to the judgment, id., the evidence presented at

trial was as follows. At approximately 10:00 a.m. on August 23, 2016, Deputy Benjamin

Chamblin with the Butler County Sheriff’s Office (“Deputy Chamblin”) observed an

older model Chevy truck with expired tags. Deputy Chamblin activated his emergency

lights to conduct a traffic stop, but the truck did not pull over. Deputy Chamblin then

activated his siren, but the truck continued on, running both a red light and a stop sign

before hitting a guard rail and sliding down a hill. When the truck came to a stop, the

driver and passenger exited and began running in different directions. Deputy Chamblin

pursued the driver. After a hundred-yard chase, Deputy Chamblin caught up to the

driver, Defendant, and took him into custody.

       At the request of Deputy Chamblin, another deputy, Aaron Pratt (“Deputy Pratt”),

transported Defendant to the sheriff’s office for booking into the jail. When Deputy Pratt

searched Defendant during the booking process, he found a syringe in Defendant’s right

                                             2
front pocket. Deputy Pratt described the syringe as clear, very small in diameter, with an

orange cap. The syringe contained a small amount of liquid. Deputy Pratt seized the

syringe and placed it into evidence. The syringe was later submitted to the Missouri State

Highway Patrol Crime Laboratory, where it tested positive for methamphetamine.

                                        Analysis

       Defendant’s point claims:

                The trial court erred in overruling [Defendant]’s motions for
       judgment of acquittal and in imposing sentence and judgment upon him . .
       . in that sufficient evidence was not presented from which a reasonable
       juror could have found beyond a reasonable doubt that he knowingly and
       consciously was in possession of methamphetamine based on the used
       syringe with residue found in his pocket when he was arrested.

We disagree.

       Section 195.202 makes it “unlawful for any person to possess or have under his

control a controlled substance.” A person “possess[es] a controlled substance” when,

“with the knowledge of the presence and nature of a substance, [he] has actual or

constructive possession of the substance. A person has actual possession if he has the

substance on his person or within easy reach and convenient control.” Section

195.010(34). “In order to sustain a conviction for possession of a controlled substance,

the State must show (1) that the defendant consciously and intentionally possessed the

substance; and (2) the defendant was aware of the presence and nature of the substance.”

State v. Kopp, 325 S.W.3d 466, 468 (Mo. App. S.D. 2010) (quoting State v. Breese, 250

S.W.3d 413, 420 (Mo. App. S.D. 2008)).

       Defendant argues that because the liquid in the syringe was not measurable, it

might support a knowing possession of paraphernalia used to inject drugs in the past, but

                                            3
an inference that Defendant was knowingly in possession of methamphetamine at the

time of his arrest would be unreasonable.

         “Missouri’s drug statutes do not establish a minimum amount necessary to sustain

a conviction for illegal possession.” State v. Moore, 352 S.W.3d 392, 400 (Mo. App.

E.D. 2011). See also section 195.017.4(3)(c) (defining a Schedule II controlled substance

to include “[a]ny material, compound, mixture, or preparation which contains any

quantity of the following substances. . . : [m]ethamphetamine”). “Rather, the defendant’s

guilt depends on his acts and knowledge–whether his knowing possession may be fairly

inferred given the de minimus amount combined with all the surrounding circumstances.”

Moore, 352 S.W.3d at 400. Even though the drug is unweighable, “1) the drug must be

present, 2) the defendant must know of its presence and nature, and 3) the defendant must

possess it[.]” Id.

         Here, the drug was present. Both Deputy Pratt and Sarah Brown, a criminalist

with the Drug Chemistry Section of the Missouri State Highway Patrol Crime Lab

(“criminalist Brown”), testified that a small amount of liquid substance or residue was

visible in the syringe. When criminalist Brown tested the rinse 3 from the syringe, it

contained methamphetamine.

         The drug was found on Defendant’s person, a fact that establishes actual

possession under section 195.010(34). Regarding Defendant’s knowledge of its presence

and nature, “[a] defendant’s knowledge of a controlled substance may be reasonably

inferred from the defendant’s actual possession of that substance.” State v. Anderson,

386 S.W.3d 186, 190 (Mo. App. E.D. 2012). The fact that Defendant fled from

3
 Criminalist Brown testified that, in order to test residue from a syringe, the plunger is removed from the
syringe, a pipette is used to inject water into the syringe in order to rinse it, and the resulting rinse is then
put into an instrument that separates out and identifies any compounds found within the rinse.

                                                         4
authorities constitutes an “[a]dditional incriminating circumstance[] that will support an

inference of knowledge and control[.]” 4 Id. at 191; see also State v. McKelvey, 129

S.W.3d 456, 459 (Mo. App. S.D. 2004). Further, the fact that the drug was visible inside

the syringe to criminalist Brown and Deputy Pratt supports a reasonable inference that

Defendant knew of its presence and nature; if it was visible to them, “it would also have

been visible to [D]efendant.” Kopp, 325 S.W.3d at 469 (quoting State v. Breese, 250

S.W.3d 413, 422 (Mo. App. S.D. 2008)).

        Defendant unpersuasively claims that his case is more like State v. Polk, 529

S.W.2d 490 (Mo. App. St.L.D. 1975), and State v. Baker, 912 S.W.2d 541 (Mo. App.

W.D. 1995), cases in which the court found insufficient evidence that the defendants

knowingly and consciously possessed the controlled substances at issue. Unlike the

instant case, there was no evidence in Polk that the defendant had actual possession of the

drugs. 529 S.W.2d at 492-93. In Baker, unlike here, the State conceded that “there was

no visible or measurable unused or unburnt cocaine in . . . the pipe” -- only “burnt residue

left from past use of the pipe to smoke cocaine[.]” 912 S.W.2d at 544-45 (emphasis

added). While Baker “also included language that appeared to indicate that, in certain

situations, if only a miniscule amount of the controlled substance is present, a finding of

possession is precluded[,] [as Defendant acknowledges,] other courts, including this one,

have held that a defendant can knowingly possess trace amounts of a controlled substance

that could be classified as mere residue.” Breese, 250 S.W.3d at 421 (citing McKelvey,

4
  We are unpersuaded by Defendant’s argument that his flight from law enforcement evidences only his
consciousness of guilt for possession of drug paraphernalia and driving with an expired registration.
“[O]ne may flee to avoid arrest for more than one offense[,]” State v. Scott, 687 S.W.2d 592, 593 (Mo.
App. E.D. 1985) (quoting State v. Nienaber, 148 S.W.2d 1024, 1027 (Mo. 1941)), and the inference most
favorable to the verdict is that Defendant was fleeing because he knew he was in possession of
methamphetamine.

                                                   5
129 S.W.3d at 459; State v. Mayabb, 43 S.W.3d 429, 433 (Mo. App. S.D. 2001); and

State v. Smith, 808 S.W.2d 24, 26 (Mo. App. E.D. 1991)).

       Here, the syringe was in Defendant’s actual possession, and it contained visible

liquid or residue that tested positive for methamphetamine. Defendant’s flight from

Deputy Chamblin was further evidence of Defendant’s knowing possession of the

methamphetamine. The evidence was sufficient to allow a reasonable juror to find

Defendant guilty beyond a reasonable doubt. Defendant’s point is denied, and his

convictions are affirmed.

DON E. BURRELL, P.J. – OPINION AUTHOR

NANCY STEFFEN RAHMEYER, J. – CONCURS

GARY W. LYNCH, J. – CONCURS

                                            6


961 F.2d 1569
U.S.v.Bettor (John A.)
NO. 91-3701
United States Court of Appeals,Third Circuit.
Apr 16, 1992

Appeal From:  W.D.Pa.,
Cohill, J.

1
AFFIRMED.


774 P.2d 877 (1989)
The PEOPLE of the State of Colorado, Plaintiff-Appellant,
v.
Terry Allen GORE, Defendant-Appellee.
No. 88SA66.
Supreme Court of Colorado, En Banc.
May 30, 1989.
Robert R. Gallagher, Jr., Dist. Atty., James C. Sell, Chief Deputy Dist. Atty., Englewood, for plaintiff-appellant.
David F. Vela, Colorado State Public Defender, Barbara S. Blackman, Chief Appellate Deputy Public Defender, Denver, for defendant-appellee.
VOLLACK, Justice.
The state appeals the district court's dismissal of the complaint filed against Terry Allen Gore (Gore or the defendant). The judge ruled that he did not have power, under either the probation statute or the restitution statute, to order an extension of Gore's probation for an alleged probation violation. The narrow issue presented for our review is whether the trial court correctly ruled that it lacked the statutory power to revoke the defendant's probation because the revocation proceeding had not been instituted until after Gore's probation term had expired. We affirm.

*878 I.
In 1984 Terry Gore was charged with two counts of fraud by check and one count of theft. Pursuant to a plea bargain, Gore pled guilty to one count of criminal attempt to commit fraud by check, a class 4 felony, in exchange for dismissal of the other charges. Because the offenses occurred in 1983, the maximum possible sentence in the absence of extraordinary aggravating circumstances was four years imprisonment. § 18-1-105(1)(a)(I), 8B C.R.S. (1986). The district court imposed a four-year sentence. The court then suspended Gore's sentence on the condition that he spend thirty days in the county jail, satisfactorily complete a three-year probation term, and pay restitution. The three-year probation term began on May 11, 1984.
On May 8, 1987, three days before the expiration of Gore's probation term, he paid the restitution amount of $1,474.00 by signing over a check written to him, drawn on the account of Chase Gebearty. On May 11, the defendant's probation officer filed a report with the district court recommending that Gore's supervision be terminated. On May 12, the judge signed an order terminating Gore's probation.
On May 19, the Registry of the Arapahoe County District Court notified Gore's probation officer that Gebearty's account, on which the check had been drawn, had been closed due to insufficient funds. The check was returned unpaid to the registry.[1] On May 26, Gore's probation officer filed a complaint in the district court asserting that Gore had violated the conditions of his probation by not paying restitution. The complaint requested that the district court set a hearing in the matter "although the defendant's probation was terminated on May 12, 1987." An arrest warrant was issued and a revocation hearing was held.
Gore's attorney asked the district court to dismiss the complaint for lack of jurisdiction. Defense counsel's argument was that "the Court lost jurisdiction on May 12," therefore "probation was no longer in effect when the complaint was filed fourteen days later on May 26." The prosecution contended that the Court had not lost jurisdiction because "the Court in reliance on a check tendered on the Defendant's behalf terminated supervision and then the check [came] back short." A second hearing was held in February 1988 at which the parties agreed that the narrow question of jurisdiction raised here is one of first impression in Colorado. The trial court concluded that it did not have jurisdiction and entered this ruling:
The Court does note under XX-XX-XXX.5 sub. (3) that when as a result of a plea bargain agreement a Defendant is ordered to make restitution pursuant to Subsection (1) of this section, the department or agency supervising the collection of such restitution may assert a charge of $15 to the Defendant for collection of each bad check or each bad check received as restitution payment....
And it seems to the Court that this is the specific remedy given in this case where a bad check is tendered.
The Legislature doesn't say that if probation is terminated and a bad check shows up that probation can be extended or somehow modified.
And in these cases it seems to the Court that the Court must follow the command of the Legislature and not try to create new law.
. . . .
It seems to the Court that if the Legislature intended that somehow probation could be extended beyond the time of a termination, the Legislature would give the Court the direction to do it.
Instead, ... the Legislature has provided the Court with one remedy for a bad check and that's a $15 surcharge.

*879 The Court is going to, at this time, grant the motion to dismiss on the basis that the Court finds that it has no statutory power to impose probation beyond the period of time.
.... The Court is making a very narrow ruling here ... and indicating that the powers granted to the Court do not, as indicated in the restitution statute, XX-XX-XXX.5, and the probation statute, XX-XX-XXX, grant the Court the power to extend probation where probation has been terminated with the consent of the people and by an order of the Court.

(Emphasis added).

II.
These facts present a question of first impression in Colorado. Section 16-11-201, 8A C.R.S. (1986), provides that a sentencing court can place certain offenders on a term of probation. After the sentencing court considers a number of factors it may "grant the defendant probation for such period and upon such terms and conditions as it deems best." §§ 16-11-202 & -203. As a condition of probation, the court is required to order "that the defendant make restitution to the victim ... for the actual damages which were sustained." § 16-11-204.5. The restitution statute provides:
Restitution as a condition of probation.
(1) As a condition of every sentence to probation, the court shall provide that the defendant make restitution to the victim of his conduct or to a member of the victim's immediate family for the actual damages which were sustained. Such restitution shall be ordered by the court as a condition of probation.... The court shall fix the manner and time of performance....
(2) If the defendant fails to pay the restitution, he shall be returned to the sentencing court which, upon proof of failure to pay, may:

(a) Modify the amount of the restitution;
(b) Extend the period of probation;

(c) Order the defendant committed to jail with work release privileges; or
(d) Revoke probation and impose the sentence otherwise required by law.

(3) When, as a result of a plea bargain agreement, a defendant is ordered to make restitution pursuant to subsection (1) of this section, the department or agency supervising the collection of such restitution may assess a charge of fifteen dollars to the defendant for collection of each bad check[[2]] or each bad check received as a restitution payment.
8A C.R.S. (1986 & 1988 Supp.) (emphasis added); see also § 16-7-304, 8A C.R.S. (1988 Supp.) When a probationer is accused of not making restitution as ordered, revocation of probation is not automatic. "[B]efore revocation of probation for failure to make ordered restitution payments can be effected, the trial court must find that the defendant had the ability to pay at the time the payments should have been made." Strickland v. People, 197 Colo. 488, 490, 594 P.2d 578, 579 (1979); People v. Romero, 192 Colo. 106, 108, 559 P.2d 1101, 1102 (1976).
"Probation is a creature of statute" and the terms of probation must be derived from statute. People v. Ray, 192 Colo. 391, 393, 560 P.2d 74, 75 (1977); People v. Ledford, 173 Colo. 194, 196, 477 P.2d 374, 375 (1970). Any conditions imposed as terms of probation must be authorized by the General Assembly, which has addressed the restitution statute, section 16-11-204.5, in general terms. People v. Deadmond, 683 P.2d 763, 772 (Colo.1984). *880 Other than the fifteen dollar charge, the restitution statute does not provide a remedy for collection of a bad check. The question presented to the judge in this case was whether, after probation had been terminated by court order, the court has statutory authority to conduct a revocation hearing and determine whether the defendant had violated a condition of his probation by writing a bad check.
Other jurisdictions have come to different conclusions in addressing the dilemma posed by the "last-minute" probation offender, and the cases fall into three general categories. See generally New Jersey v. Gibson, 156 N.J.Super. 516, 530-531, 384 A.2d 178, 185 (1978); Annotation, Power of Court, After Expiration of Probation Term, to Revoke or Modify Probation for Violations Committed During the Probation Term, 13 A.L.R.4th 1240 (1982). Some jurisdictions hold that a trial court retains jurisdiction to revoke a defendant's probation for a reasonable time after expiration of the probationary term. See, e.g., Phoenix v. Nebraska, 162 Neb. 669, 77 N.W.2d 237 (1956). Some jurisdictions require that revocation proceedings be not only instituted but also completed prior to expiration of the probation term. See. e.g., Cook v. Virginia, 211 Va. 290, 176 S.E.2d 815 (1970). The majority of jurisdictions hold that the trial court retains jurisdiction as long as proceedings are instituted prior to expiration of the probation term. See, e.g., New Jersey v. Gibson, 156 N.J. Super. at 530-531, 384 A.2d at 185. The determination of which rule is applied depends in part on construction of the state's probation statute.

A.

Revocation Proceedings Instituted Within A Reasonable Time
Some states hold that jurisdiction can be exercised over a probationer for a reasonable time after expiration of the probation term. For example, the Nebraska Supreme Court has held that because the Nebraska probation statute did not contain language giving the court power to revoke, modify, or extend probation "during the probationary term," the trial court could exercise jurisdiction over the probationer within a reasonable time after expiration of the term, so that probation violations occurring on the last day of probation could properly result in probation revocation after the probationary term. Phoenix v. Nebraska, 162 Neb. 669, 77 N.W.2d 237 (1956).
Pennsylvania has upheld as reasonable a revocation made thirteen days after expiration of both the defendant's original probation term and the maximum statutory probation term. Pennsylvania v. Ferguson, 201 Pa.Super. 649, 193 A.2d 657 (1963). The court reasoned that to hold otherwise would reward the probationer who successfully concealed his violations until after the probation term expired.
The Alaska probation statute provides for a maximum probation term of five years. In Galaktionoff v. Alaska, 733 P.2d 628 (Alaska App.1987), the court held that a defendant's probation could be revoked if (1) the offense was committed during the probation period, and (2) the authorities neither became aware of the offense nor filed a revocation petition until eight days after probation term had expired, as long as (3) the petition was filed within the five-year maximum statutory probation period. Both Pennsylvania and Alaska have statutes limiting the maximum probation term to five years.[3] Colorado no longer has such a statute.
In contrast, Rhode Island has expressly rejected this "reasonable time" approach.
We ... [reject] the state's contention that it has an absolute right to violate [sic] a defendant on probation within a reasonable time after probation has ended. Were this true, a period of probation, *881 insofar as it connotes the time during which a defendant is at risk for a given charge, would be virtually meaningless. A probation placement of one year means exactly that and cannot be read expansively to mean "one year plus a reasonable time period thereafter."
Rhode Island v. Santos, 498 A.2d 1024, 1026 (R.I.1985) (emphasis added).

B.

Proceedings Must Be Completed During Probationary Period
At the other extreme, some jurisdictions have held that probation revocation proceedings must be completed before expiration of the probation term. The Arizona probation statute provides that a court may revoke and terminate probation at "any time during" the probationary term or period of probation. This language was construed to mean that "the trial court does not have jurisdiction over a probationer where probation revocation procedures and the imposition of a sentence have not been accomplished prior to the expiration of his term of probation." Keller v. Superior Court, 22 Ariz.App. 122, 124, 524 P.2d 956, 958 (1974) (citing Ariz.Rev.Stat.Ann. § 13-1657 (1974)); see also Haney v. Eyman, 97 Ariz. 289, 291-293, 399 P.2d 905, 906-07 (1965) ("[E]ven though the maximum sentence might be for a longer period of time, if the suspension of the imposition of sentence is for a shorter period ... both the sentence and the judgment must be made within that probationary period.").
The Virginia Supreme Court has held that because a trial court did not enter an order revoking the defendant's probation within the probation term, the court had no power to invoke jurisdiction after the probation term had expired. Cook v. Virginia, 211 Va. 290, 176 S.E.2d 815 (1970); see also California v. White, 133 Cal.App.3d 677, 682, 184 Cal.Rptr. 134, 137 (1982) ("An order revoking probation must be made within the period of time circumscribed in the order of probation.... If no order of modification or revocation is made before the end of the period of probation..., the court has no authority or jurisdiction over the defendant".); Reed v. Georgia, 101 Ga.App. 714, 115 S.E.2d 270 (1960) (The court holds that revocation order entered on the last day of the defendant's probation term was valid. If the probation period had expired, however, the trial court would not have had jurisdiction to revoke probation); Curtsinger v. Kentucky, 549 S.W.2d 515, 516 (Ky.1977); Missouri ex rel. Carlton v. Haynes, 552 S.W.2d 710, 714 (Mo.1977).

C.

Proceedings Initiated, But Not Completed, During the Probationary Period
The majority of states has taken an intermediate approach, adopting the rule that a trial court has jurisdiction over the probationer if proceedings have been initiated in some way before the probation term expires.
New Jersey has addressed the precise issue: "can a probationer be charged with and found guilty of violating probation once his probationary term has expired?" New Jersey v. Gibson, 156 N.J.Super. 516, 526-528, 384 A.2d 178, 183 (1978). After reviewing the three approaches taken by other jurisdictions, the court held "that in order for the court to have jurisdiction to revoke probation and punish a probationer for violation of a probationary condition under N.J.S.A. 2A:168-4,[[4]] the warrant must issue during the probationary period." Id. at 530-531, 384 A.2d at 185. The court concluded that if revocation proceedings are not initiated during the probation term "the courts are without jurisdiction to revoke probation" unless the probationer had absconded or was hiding. Id.; see also Tiller v. Delaware, 257 A.2d 385, 387 (Del. 1969) (warrant that was issued ten days before the probation term expired served to *882 validate the probation violation proceedings, even though the hearing and sentencing took place after expiration); Iowa v. Jensen, 378 N.W.2d 710, 712-13 (Iowa 1985) ("[T]he district court does not lose jurisdiction of a revocation proceeding that has been commenced but not completed before the period expires." The court also held that the filing in district court of an application for revocation constituted commencement of a revocation proceeding.); Michigan v. Wakefield, 46 Mich.App. 97, 98-100, 207 N.W.2d 461, 462-63 (1973) ("Absent a showing that revocation proceedings were pending at the end of the 2-year period of probation, we are constrained to rule that the trial court lost jurisdiction of the defendant and could not thereafter sentence him to prison."); Ohio v. Simpson, 2 Ohio App.3d 40, 42, 440 N.E.2d 617, 619 (1981) ("Since no action was taken to institute a probation violation hearing during the period of probation the court thereafter had no jurisdiction to impose sentence."); Jett v. Leverette, 162 W.Va. 140, 143-144, 247 S.E.2d 469, 471 (W.Va.1978) ("[A] judge can set probation for a shorter term but when either the statutory maximum or the shorter term has been served, the court no longer has jurisdiction to revoke probation. This is true even though the violation may have occurred during the probation term.").
Oregon v. O'Neal, 24 Or.App. 423, 545 P.2d 910 (1976), addressed a court's authority "to initiate probation revocation proceedings after the period of probation has expired based upon a crime committed before expiration of the probationary period." Id. at 423, 545 P.2d at 910. Three weeks before the probationer's term expired he was charged with robbery. Revocation proceedings were initiated by a show cause order issued on June 12, eighteen days after his probation term expired. The court agreed with the defendant's argument that the court lacked jurisdiction to revoke his probation because no show cause order or arrest warrant had been issued within the original five-year probation period.
We hold, then, that a court is without authority to revoke probation for a crime committed during the probationary period when revocation proceedings have not been initiated before the probationary period has expired. If revocation proceedings are properly initiated within the probationary period, a court may retain jurisdiction to revoke probation after the period has expired.
Id. at 425-26, 545 P.2d at 912 (emphasis added); see also Oregon v. Lopez, 30 Or. App. 687, 690-691, 567 P.2d 1059, 1061 (1977) ("[I]t is well established in Oregon that where the `show cause' order initiating the revocation process is itself issued prior to the expiration of the probationary period, the court retains jurisdiction to enter a revocation order after the period has expired.").
In Washington v. Mortrud, 89 Wash.2d 720, 575 P.2d 227 (1978), the defendant's one-year probation and one-year suspended sentence had expired. No revocation petition was filed before the expiration date and no hearing was held to determine his probation status. Id. at 723, 575 P.2d at 229. The Washington Supreme Court held:
When the sentence has been imposed but under the terms of [Wash.Rev.Code 9.95.210 [[5]]] its execution is deferred, we hold [that Wash.Rev.Code 9.95.230 [[6]]] operates to terminate the jurisdiction of the court over the defendant upon the expiration of the probationary period, and the *883 court shall have no authority to revoke, modify, or change its order of deferral of execution of the sentence.
89 Wash.2d at 723, 575 P.2d at 229; see Washington v. Nelson, 92 Wash.2d 862, 864-866, 601 P.2d 1276, 1277-78 (1979) ("The course of probation having expired before the motion to revoke defendant's probation was made, the trial court was without authority to act."); see also Dent v. District of Columbia, 465 A.2d 841, 842 (D.C.1983) ("[W]here a formal revocation proceeding is initiated within the probation term, the trial court retains jurisdiction to revoke probation even though the proceedings incident thereto are not completed until after the original term of probation has expired." The court also held that issuance of a rule to show cause was sufficient to toll the probation expiration date. Id. at 843); Bass v. Florida, 473 So.2d 1367, 1369 (Fla.App.1985) ("Proceedings to revoke probation must be commenced prior to the expiration of probation."); Sherman v. Warden, 94 Nev. 412, 414, 581 P.2d 1278, 1279 (1978) ("As we read [the statute], it is the initial act of pre-termination arrest which vests jurisdiction in the district court to revoke probation, not the fortuitous fact that the proceeedings are subsequently concluded before the expiration of the original term."); New York v. Montgomery, 115 A.D.2d 102, 103, 494 N.Y.S.2d 913, 914 (1985) ("A court may not revoke a defendant's probation unless a declaration of delinquency is filed against him prior to the expiration of his probation term."); Lovell v. South Carolina, 223 S.C. 112, 114-115, 74 S.E.2d 570, 572 (1953) ("There is nothing in our statute expressly requiring that the order of revocation be made within the probationary period. It is only provided that during this period the warrant shall be issued, which is the pertinent jurisdictional fact."); State ex rel. Cox v. Wisconsin, 105 Wis.2d 378, 379-381, 314 N.W.2d 148, 149 (1981) ("[T]he issuance of a warrant during the probationary term tolls the running of the term. This conclusion is consistent with federal cases that hold that warrants issued during probation periods preserve revocation jurisdiction even if they are not actually executed until after the expiration of such periods.").

III.
Although we have not addressed this issue under the probation statute, the court of appeals has resolved it in the context of a deferred judgment and sentence in People v. Peretsky, 44 Colo.App. 270, 616 P.2d 170 (1980), cert. denied, (Colo. Sept. 15, 1980). In Peretsky, the defendant was granted a two-year deferred sentence on March 29, 1976. On April 21, 1978, the trial court revoked the deferred sentence because the defendant had been convicted of another offense. Id. at 271-72, 616 P.2d at 171-72. The court of appeals noted that "the procedural considerations governing the deferred sentencing statute are analogous to those governing probation." Id. at 272, 616 P.2d at 172. The deferred sentencing statute in effect at the time gave a sentencing court power to continue a case for a maximum period of two years. The court of appeals held that this two-year limitation was tolled "where a complaint and arrest warrant are issued within the statutory period, and the defendant is voluntarily absent from the jurisdiction, or is imprisoned on another offense." Id. at 273, 616 P.2d at 172. The court held that the "crucial factor" was that "the State ha[d] initiated revocation proceedings by issuance of a complaint and warrant" before the two-year term expired. Id.; see Oklahoma v. Rodriquez, 547 P.2d 974, 975 (Okla.Crim.App.1976) (same analysis applied in the context of a deferred sentence); Parkerson v. Arkansas, 230 Ark. 118, 120, 321 S.W.2d 207 (1959) (same analysis applied to suspended sentence).
The Colorado probation statute no longer delineates a maximum probation term. Before 1972, section 39-16-6(1) limited a felony probation term to five years. After 1972, this five-year limitation was removed. We found it "apparent from the history of the statute that the legislature deliberately chose not to impose an express limitation on the permissible length of probation." People v. Flenniken, 749 P.2d 395, 399 n. 2 (Colo.1988).
*884 In the absence of a statutory maximum probation term, we therefore must decide whether a trial court's power to revoke an individual's probation for failure to pay restitution extends beyond the expiration of the probation term imposed.[7] The probation statute does not specify when a trial court's authority over a probationer terminates; the statute states that "[f]or good cause shown and after notice to the defendant, the district attorney, and the probation officer, and after a hearing if the defendant requests it, the judge may reduce or increase the term of probation or alter the conditions or impose new conditions." § 16-11-204(4). The restitution statute provides that the department or agency supervising the collection of a probationer's restitution "may assess a charge of fifteen dollars" for a bad check.
We recognize the dilemma posed by the "last-minute" probation violator. The defendant correctly points out, however, that the statutes "provide remedies for the last minute violator." He argues that under sections 16-11-204(4) and -204.5(2), when a restitution check is received near the expiration of the probation term, "the court clearly has the power to extend the term, upon the district attorney's request, in order for that check to be processed. If the check is returned for insufficient funds, then revocation or other proceedings could commence." We note that in this case the probation department received the check from Gore as payment of his restitution obligation on May 8. On May 11, the probation officer filed the report with the district court recommending that Gore's supervision be terminated. Our resolution of this case, therefore, does not address the problem that arises when a probationer has actively concealed a probation violation until after his term expires, or a situation where the probation department could not possibly learn of a violation until after probation has expired. In the limited context presented here, we find the defendant's argument persuasive. The legislature provided in the restitution statute for assessment of a fifteen dollar charge, and procedures for extension of probation are available under the probation statute. The prosecutor conceded at the hearing that a probation officer could "ask that probation be continued for a short period" to ensure that a check has cleared the bank.
If the legislature had intended that a probation term be automatically extended for collection of restitution checks, it could have included such a provision in the restitution statute. We therefore decline to infer from the restitution statute the power for a trial court to revoke probation where, as here, probation supervision has already been terminated by court order and revocation proceedings have not been initiated before such termination. The district court's ruling is affirmed.
NOTES
[1]  Defense counsel told the judge "that Mr. Gore tells me that Mr. Gebearty, the same person who wrote the check in this case, had written a previous check for the amount of $700 in another case which had cleared the bank. Mr. Gore had no idea at all or had no reasonable belief that this check also would not clear." The court's response was that the state did not have "any actionable claim against Mr. Gebearty. The order of probation was directed toward Mr. Gore."
[2]  For purposes of this section, "bad check" means a check or similar sight order for the payment of money which is dishonored by the bank or other drawee because the issuer does not have sufficient funds upon deposit with the bank or other drawee to pay the check or order upon presentation within thirty days after issue.

§ 16-11-204.5(3). The statute does not specify whether a third-party check endorsed over by the probationer, which is then dishonored by the bank, also constitutes a bad check under this statute.
[3]  Federal law contained a similar sentencing limitation. 18 U.S.C. § 3653 (1979) expressly provided that a court has jurisdiction over a probationer "within the probation period, or within the maximum probation period permitted by section 3651 of this title." 18 U.S.C. § 3651 (1979) provided that the probation period "shall not exceed five years." These sentencing provisions were repealed in 1984.
[4]  The statute provided that "[a]t any time during the probation period" the court could issue a warrant for arrest of the probationer for a probation violation. 156 N.J.Super. at 528-530, 384 A.2d at 184.
[5]  At the time Mortrud was decided, the statute read:

The court in granting probation may suspend the imposing or the execution of the sentence and may direct that such suspension may continue for such period of time, not exceeding the maximum term of sentence, except as hereinafter set forth and upon such terms and conditions as it shall determine.
Wash.Rev.Code § 9.95.210; Mortrud, 89 Wash.2d at 721-22, 575 P.2d at 228.
[6]  court shall have authority at any time during the course of probation to (1) revoke, modify, or change its order of suspension of imposition or execution of sentence; ....
Wash.Rev.Code § 9.95.230; 89 Wash.2d at 721-22, 575 P.2d at 228. This statute has been amended and now states that the court has such authority "at any time prior to the entry of the order terminating probation." Wash.Rev.Code § 9.95.230 (1987).
[7]  As part of its order, the court also held:

The Court is not, ... at this time, ... agreeing with the argument that the Court lacks jurisdiction because the issue of the four year sentence with a year suspended is frankly a persuasive argument. The Court is making a very narrow ruling ... that the powers granted to the Court do not grant the Court the power to extend probation.
We also restrict our holding to the issue of the court's powers under the applicable statutes.


132 F.3d 41
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Calvin WALKER, Petitioner-Appellant,v.Jim THOMAS, Respondent-Appellee,Grant WOODS, Attorney General, of the State of Arizona,Respondent-Appellee.
No. 96-56165, 97-55032.
United States Court of Appeals, Ninth Circuit.
Submitted Dec. 8, 1997.**Decided Dec. 18, 1997.

Appeal from the United States District Court for the District of Arizona Robert C. Broomfield, District Judge, Presiding
Before SKOPIL, D.W. NELSON, and TASHIMA, Circuit Judges.

1
MEMORANDUM*

2
Calvin Walker, an Arizona state prisoner convicted of selling narcotics, appeals the district court's denial of his petition for writ of habeas corpus under 28 U.S C. § 2254.  We have jurisdiction over this timely appeal pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.

3
We review de novo a district court's decision to grant or deny a petition for habeas corpus.  Bonin v. Calderon, 59 F.3d 815, 823 (9th Cir.1995).

4
Walker makes two arguments on appeal.  Walker first contends that the district court erred in. finding that he procedurally defaulted on his constitutional claims involving the right to self-representation and prosecutorial misconduct.  We conclude that the district court's rejection of Walker's claims was not in error.  The state appellate court found, and the record verifies, that although Walker made an unsuccessful pre-trial motion to remove counsel, Walker "waived his right to represent himself by not reasserting [the motion] and by acquiescing in new representation" after his original counsel was removed.  The state appellate court also held that Walker's claim that the prosecutor improperly vouched for a witness during closing argument was waived by Walker's failure to object at trial.

5
It is a well-established principle of federalism that "when a procedural default bars state litigation of a constitutional claim, a state prisoner may not obtain federal habeas relief absent a showing of cause and actual prejudice."  Engle v. Isaac, 456 U.S. 107, 129 (1981);  see also Coleman v. Thompson, 501 U.S. 722, 729-30 (1990);  Wainwright v. Sykes, 433 U.S. 72, 87 (1977).  Walker has never shown either cause for his procedural default or prejudice resulting therefrom.

6
Walker maintains, however, that he should have either been granted leave to amend his habeas petition or been provided the opportunity to be heard on the question of cause and prejudice.  Again, we conclude that the district court properly rejected Walkers claims.  Although a pro se habeas petition must be construed liberally, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), and although "a petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted," Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir.1971), the record supports the district court's decision because, as a matter of law, Walker could riot demonstrate cause that would excuse his procedural default.  The factual bases for these claims are events at the trial that were known to him from the outset and the legal bases are well-established principles.  Accordingly, the district court did not err in not holding an evidentiary hearing.  See Campbell v. Blodgett, 997 F.2d 512, 524 (9th Cir.1993) (no evidentiary hearing necessary if petitioner cannot satisfy standard as a matter of law).

7
Walker's second argument is that the trial court abused its discretion in precluding Walker from reopening his case to testify a second time.  We of course recognize that a defendant's right to testify is a constitutional right of fundamental dimension.  Rock v. Arkansas, 483 U.S. 44, 51-513 (1987);  United States v. Martinez, 883 F.2d 150, 756 (9th Cir.1989), vacated on other grounds, 928 F.2d 1470 (9th Cir.1991).  In this case, Walker took the stand and denied any involvement in the sale of narcotics on the dates charged.  But after the defense had rested its case, and against his attorney's advice, Walker requested that the court reopen his case and allow him to present additional testimony.  The court offered Walker the choice either. to follow his attorney's advice and withdraw the request or proceed without counsel.  Because Walker ultimately maintained counsel and acted on his attorney's advice, his right to testify was not violated.  See Martinez, 883 F.2d at 761.  ("Fundamental unfairness would characterize a process that let defendants have one trial based on their lawyer's strategy and another based on their own.");   see also United States v. Gallagher, 99 F.3d 329, 332 (9th Cir.1996), cert. denied, 117 S.Ct. 1274 (1997) (holding that trial court did not deprive defendant of his Sixth Amendment right to testify on his own behalf when it prevented him from continuing to testify after his counsel had finished questioning him and when no questions were pending).

8
For the foregoing reasons, we affirm the district court's decision to deny Walker's petition for habeas corpus.

9
AFFIRMED.

**
 The panel unanimously find this case suitable for decision without oral argument.  Fed. R.App. P. 34(a) and Ninth Circuit Rule 34-4

*
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3


456 F.Supp.2d 387 (2006)
Kimberly BORGES
v.
SEABULK INTERNATIONAL, INC. f/k/a HVIDE Marine Inc., Interocean Management Corporation, and The SS HMI Diamonds Shoals, In Rem.
No. 3:04CV324(DJS)(TPS).
United States District Court, D. Connecticut.
October 17, 2006.
*388 Brian T. Foley, McGovern & Associates, New York City, Robert K. Lansden, Ponchatoula, LA, for Kimberly Borges.
Gregory W. O'Neill, James M. Hazen, Hill, Betts & Nash LLP, New York City, Robert K. Marzik, Stratford, CT, for Seabulk International, Inc. f/k/a HVIDE Marine Inc., Interocean Management Corporation, *389 and The SS HMI Diamonds Shoals, In Rem.

RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
SMITH, United States Magistrate Judge.
This case concerns personal injuries suffered by the plaintiff, Kimberly Borges, while working as a merchant seaman on the S.S. HMI Diamond Shoals, a large "product tanker." The vessel is owned by Defendant Seabulk International Inc. ("Seabulk"), as the agent for Lightship Tankers V, LLC, and operated and managed by Defendant Interocean Management Corporation ("Interocean"). The defendants have filed a motion for summary judgment as to plaintiff's claims based on (1) unseaworthiness and (2) negligence. The motion is before the court pursuant to 28 U.S.C. § 636(c). (See Dkt. # 39.)

I. SUMMARY OF FACTS
The court must view all the evidence presented by the moving party in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Viewing the facts in the light most favorable to the plaintiff, the record alleges the following events. The plaintiff began working as the Chief Mate on the S.S. HMI Diamond Shoals in July of 1998, while the vessel was at the shipyard in Newport News, Virginia. As Chief Mate, the plaintiff was second in command on the vessel. On March 4, 2001, while in service as the Chief Mate, the plaintiff was injured while conducting an annual inspection inside the forepeak ballast tank. During the interior inspection of the tank, the plaintiff walked from the starboard side of the tank to the port side in order to retrieve a piece of plastic. After the plaintiff turned around to begin her walk back across the tank, she fell into one of many "lightening holes" in the horizontal framing of the tank. The plaintiff has described a lightening hole as approximately the size of a manhole, with "nothing around them to prevent stepping into one of them." (Pl.'s Dep. at 44). According to the plaintiff, the holes are scattered all over the deck in order to "allow water to come up from the lower level of the forepeak . . . into the next level." Id. Although there were two other crew members inside the tank and one crew member directly outside the tank at the time of the accident, none of them were able to witness the plaintiff fall into the lightening hole.
The plaintiff was removed from the tank after the accident and brought ashore for medical treatment upon complaining of pain in her rib cage area. The physician's initial report stated that the plaintiff suffered no fractures, and was authorized to return to work in a "light duty" condition. The plaintiff returned to work in a light duty role but continued to suffer pain in her right chest and neck area. The plaintiff has continued to seek medical and chiropractic treatment since the accident, and has since been diagnosed with four unevenly healed ribs which were broken in the original fall. The uneven healing of the ribs has caused reoccurring pain in her back and other parts of her body.
The plaintiff filed the complaint in this action on February 26, 2004, seeking damages for (1) negligence under the Jones Act, 46 App. U.S.C. § 688; (2) unseaworthiness of the vessel; (3) maintenance and cure; and (4) punitive damages. The defendants denied all of the plaintiffs claims and filed a. Motion for Summary Judgment as to the negligence and unseaworthiness claims.

*390 II. STANDANDARD OF REVIEW
The standards governing summary judgment are well-settled. Rule 56(c) of the Federal Rules of Civil Procedure states that summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the burden of demonstrating a lack of genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "An issue of fact is `genuine' where the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Giordano v. City of New York, 274 F.3d 740, 746 (2d Cir. 2001) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed2d 202 (1986)). "A fact is `material' if it `might affect the outcome of the suit under the governing law.'" Id. at 746-47. If evidence exists from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir.1996). All factual inferences are to be drawn in favor of the party against whom summary judgment is sought. Ramseur v. Chase Manhattan Bank, 865 F2d 460, 465 (2d Cir.1989).

III. DISCUSSION
A. Negligence Claim under the Jones Act, 46 App. U.S.C. § 688
In her complaint, the plaintiff seeks to recover under the Jones Act, 46 App. U.S.C. § 688, for damages for personal injuries she sustained as a result of the defendants' alleged negligence while the plaintiff was working as a merchant seaman on the defendants' vessel. The Jones Act was enacted in 1920 to create a negligence cause of action for ship personnel against their employers. California Home Brands, Inc. v. Ferreira, 871 F.2d 830, 833 (9th Cir.1989). The Act extends to seamen and women the same rights accorded railway workers under the Federal Employers Liability Act ("FELA"). American Dredging Co. v. Miller, 510 U.S. 443, 455-56, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994); Johannessen v. Gulf Trading & Transp. Co., 633 F.2d 653, 656 (2d Cir.1980). The Act therefore "places . . . a duty on the [shipowner] to provide a reasonably safe workplace." Oxley v. City of New York, 923 F.2d 22, 25 (2d Cir.1991) (citing Mahnich v. Southern S.S. Co., 321 U.S. 96, 102-03, 64 S.Ct. 455, 88 L.Ed. 561 (1944)).
The standards of proof for negligence and causation under the Jones Act are the same as that of the FELA. American Dredging, 510 U.S. at 455-56, 114 S.Ct. 981; Johannessen, 633 F.2d at 656. As the Second Circuit recently stated, "the plaintiff's burden in making a showing of causation and negligence is lighter under FELA than it would be at common law." Tufariello v. Long Island R.R. Co., 458 F.3d 80, 87 (2d Cir.2006). Under FELA, and by extension, the Jones Act, an employer has "a duty to provide its employees with a safe workplace," which it has breached "if it knew or should have known of a potential hazard in the workplace, and yet failed to exercise reasonable care to inform and protect its employees." Id. (quoting Ulfik v. Metro-North Commuter R.R., 77 F.3d 54, 58 (2d Cir.1996)).
As compared to a common law negligence action, however, "the standard of proof for causation when asserting negligence under the Jones Act is relaxed, sometimes termed `featherweight: " Evans v. United Arab Shipping Co, SAG., 4 F.3d 207, 210 (3d Cir.1993). In order to *391 sustain their burden on summary judgment, the defendants' must show an absence of evidence that could "`justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury.'" Wills v. Amerada Hess Corp., 379 F.3d 32, 50 (2d. Cir.2004)(emphasis in original)(quoting Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957)). As such, an employer may be held liable under FELA and the Jones Act "for risks that would otherwise be too remote to support liability at common law." Ulfik, 77 F.3d at 58. Furthermore, in Jones Act cases "[t]he right of the jury to pass upon the question of fault and causation must be most liberally viewed." Oxley, 923 F.2d at 25 (quoting Johannessen, 633 F.2d at 656).
With these principles in mind, the court finds that there are material fact issues in this case that cannot be resolved at the summary judgment stage and must therefore be submitted to the trier of fact. First, there is an issue of material fact as to whether the defendants' duty to provide a reasonably safe workplace was breached by not providing intrinsically safe droplights inside the ballast tank. The plaintiff contends that intrinsically safe droplights were provided to sister vessels owned and operated by the defendants, that these lights would have dramatically changed the visibility of the space, that no other drop lights can be used aboard product tankers due to the combustible nature of the cargo, and that she complained to the Captain on multiple occasions regarding the lack of lights. There is a material fact issue as to whether the defendants' duty to provide a reasonably safe workplace required installation of lights inside the ballast tank.
Second, under the relaxed standard on causation applicable to the Jones Act, there is a genuine .issue of material fact as to whether the failure to provide the lights played a part in causing the plaintiff's injuries. Although the plaintiff, as the defendants' point out, saw some of the lightening holes while inside the tank, she stated in her deposition that she "probably [would] not" have fallen in a lightening hole if the droplights had been available. (Pl.'s Dep. at 115). Thus, there is a material fact issue as to whether the lack of lighting inside the tank played "a part, even the slightest," Amerada Hess, 379 F.3d at 50, in causing the plaintiffs injuries.
In addition, the court notes that the plaintiff's failure to provide expert testimony on causation is not fatal. Expert testimony "`usually is necessary to establish a causal connection between an injury and its source unless the connection is a kind that would be obvious to laymen, such as a broken leg from being struck by an automobile.'" Tufariello, 458 F.3d at 89 (quoting Simpson v. Northeast Ill. Reg'l Commuter R.R. Corp., 957 F.Supp. 136, 138 (N.D.Ill.1997)). Here, the court finds that a layman could easily establish the causal connection between the alleged insufficient lighting in the ballast tank and the injuries suffered by the plaintiff while attempting to navigate around the lightening holes in the tank's framing, and thus expert testimony is unnecessary. Accordingly, the defendants' Motion for Summary Judgment as to the claim of negligence under the Jones Act is DENIED.
B. Unseaworthiness Claim
The plaintiffs complaint also contains a cause of action for failure to furnish a seaworthy vessel. The Supreme Court has made clear that a ship owner is strictly liable for personal injuries caused by his or her vessel's "unseaworthiness." Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960). A vessel is unseaworthy if the *392 vessel, crew and appurtenances are not "reasonably fit for their intended use." Id. at 550, 80 S.Ct. 926. "The standard is not perfection, but reasonable fitness; not a ship that will weather every conceivable storm or withstand every imaginable peril of the sea, but a vessel reasonably suitable for her intended service." Id. The condition of unseaworthiness is a question of fact that generally should not be resolved by the court as a matter of law. Cook v. American S.S. Co., 53 F.3d 733, 742 (6th Cir.1995)
In the instant case, the plaintiff asserts that the proper safety equipment, in the form of intrinsically safe droplights, was not provided, and that the failure to provide these lights was the proximate cause of her injuries. She also alleges that intrinsically safe droplights were provided to sister vessels owned and operated by the defendants, and that no other lights could have been used on board the tanker due to the combustible nature of the cargo. Neither of these two assertions have been contested by the defendants, and all factual inferences are to be drawn in favor of the party against whom summary judgment is sought. Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989). As the Second Circuit has noted, "[a] ship is considered to be unseaworthy when it is 'insufficiently or defectively equipped.'" Oxley v. City of New York, 923 F.2d 22, 25 (2d Cir.1991) (quoting Waldron v. Moore-McCormack Lines, Inc., 386 U.S. 724, 726, 87 S.Ct. 1410, 18 L.Ed.2d 482 (1967)); see Poignant v. United States, 225 F.2d 595, 598 (2d Cir.1955). On the record before the court, a reasonable jury could conclude that the vessel was rendered unseaworthy by the lack of droplights in the ballast tank.
There are also material fact issues as to whether the alleged unseaworthiness of the vessel was the proximate cause of the plaintiffs injuries. To prevail on an unseaworthiness claim, a plaintiff must establish that a vessel's unseaworthy condition was the proximate cause of his or her injuries. Miller v. Am. President Lines, Ltd., 989 F.2d 1450, 1463-64 (6th Cir.1993). A vessel's unseaworthiness is the proximate cause of a plaintiff's injuries if it was a substantial factor in causing such injuries. Id. at 1464. In other words, unseaworthiness proximately causes an injury if it "`played a substantial part in bringing about or actually causing the injury and the injury was either a direct result or a reasonably probable consequence of unseaworthiness." Id. (quoting Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1354 (5th Cir.1988)). Whether the alleged failure to properly equip the vessel was the result of negligence on the defendants' part is irrelevant. Barlas v. United States, 279 F.Supp.2d 201, 206 (S.D.N.Y. 2003). On the record before the court, there is a genuine issue of material fact as to whether the alleged unseaworthiness was the proximate cause of the plaintiffs injuries. Although the plaintiff was able to see some of the lightening holes while walking across the horizontal framing of the tank, she stated in her deposition that she "probably [would] not" have fallen in a lightening hole if the droplights had been available. (Pl.'s Dep. at 115). Therefore, the defendants' Motion for Summary Judgment as to the claim of unseaworthiness is DENIED.
C. Primary Duty Rule as a Bar to Recovery
With regard to the defendants' contention that the primary duty doctrine precludes recovery on both the negligence and unseaworthiness claims, the court does not agree. The Primary Duty Rule, or Walker doctrine, arises from Judge Learned Hand's opinion in Walker v. *393 Lykes Brothers S.S. Co., 193 F.2d 772 (2d Cir.1952). Under this rule, a supervising seaman cannot recover for his injuries when he breaches "a duty which the injured person has consciously assumed as a term of his employment." Id. at 774. When applicable, the Primary Duty Rule therefore acts as an absolute bar to a seaman's recovery under the Jones Act. Id. At the outset, the court notes the questionable continued validity of the Walker doctrine in this Circuit. See Lombas v. Moran Towing & Transp. Co., 899 F.Supp. 1089 (S.D.N.Y.1995); McSpirit v. Great Lakes Int'l, 882 F.Supp. 1430, 1432 (S.D.N.Y.1995) (noting that "Walker's continuing viability is doubtful"). In Dunbar v. Henry Du Bois' Sons Co., Inc., 275 F.2d 304, 306 (2d Cir.), cert. denied, 364 U.S. 815, 81 S.Ct. 45, 5 L.Ed.2d 46,(1960), two of the three judges on a panel of the Court of Appeals expressly rejected the Walker doctrine as "incompatible with the congressional mandate that contributory negligence and assumption of risk shall not bar recovery in a Jones Act case." Id. at 306.
Even if the Primary Duty Rule remains viable in this Circuit, the court finds little merit in its application to this case at the summary judgment stage. As the defendants' themselves point out in their motion, the Primary Duty Rule acts as an absolute bar to recovery by a ship's officer "when there is no other cause of the officer's injuries other than the officer's breach of his consciously assumed duty to maintain safe conditions aboard the vessel." Wilson v. Maritime Overseas Corp., 150 F.3d 1, 11 (1st Cir.1998). "As Judge Hand noted in Walker, the bar is not based on the contributory negligence of the officer, but on a finding of no negligence of the employer." Kelley v. Sun Transp. Co., 900 F.2d 1027, 1031 (7th Cir. 1990). According to the plaintiff, it is the responsibility of the Master to the Port Captain to get a piece of equipment "that is not in place that is essential for the operation of that vessel," (Pl.'s Dep. at 116), and she recommended to the Captain that they should get a number of items that previous vessels to leave the shipyard possessed, including intrinsically safe droplights. There is a genuine issue of material fact as to whether the plaintiff's consciously assumed duty, as the seaman primarily responsible for safety on the ship, extended to furnishing the vessel with specific equipment that the owner had not supplied despite repeated requests. Moreover, there is sufficient evidence for a reasonable jury to conclude that the plaintiff s injuries were in fact a result of the defendants' breach of their own duty to provide their employees with a safe workplace and/or a seaworthy vessel. Under either scenario, the Primary Duty Rule would be inapplicable. Therefore, the Primary Duty Rule cannot act as a bar to the plaintiffs claims at the summary judgment stage, and its applicability must be submitted to the trier of fact.

IV. CONCLUSION
For the foregoing reasons, the Defendants' Motion for Summary Judgment is DENIED on both counts.


658 S.W.2d 281 (1983)
Alonzo CARBAJAL, Appellant,
v.
FORD MOTOR CREDIT COMPANY, Appellee.
No. 13-82-356-CV.
Court of Appeals of Texas, Corpus Christi.
September 8, 1983.
Rehearing Denied October 6, 1983.
*282 Thomas M. Schumacher, Hector Gonzalez Law Office, Sinton, for appellant.
Rick Rogers, Porter, Gonzalez & Rogers, Corpus Christi, Lee Rosenthal, Randall A. Hopkins, Baker & Botts, Houston, for appellee.
Before BISSETT, UTTER and GONZALEZ, JJ.

OPINION
BISSETT, Justice.
This is an appeal from a judgment granted against appellant Alonzo Carbajal, in favor of appellee Ford Motor Credit Company (FMCC). Carbajal sued FMCC for alleged violations of the Texas Consumer Credit Code, Article 5069-7.01, et seq., Tex. Civ.Stat.Ann. (Vernon Supp.1982-83), in a retail installment contract that he had signed in connection with the purchase of a motor vehicle. The trial court found no violations of the Code.
Carbajal contracted with Duval Motor Company on April 3, 1976 for the purchase of a new 1976 Ford. Carbajal executed a document entitled Texas Automobile Retail Instalment (sic) Contract, which is a form FMCC contract. The retail contract was subsequently assigned to FMCC. In connection with the purchase of the same motor vehicle, Carbajal executed a document entitled Agreement to Provide Insurance. Suit was initiated on the above mentioned contract on April 3, 1980.
The parties stipulated: 1) as to reasonable attorney's fees; 2) that Carbajal did, in fact, sign a document entitled "AGREEMENT TO PROVIDE INSURANCE," at the time of execution of the retail installment contract; and, 3) that Marcel Greenia was Carbajal's attorney of record until October 8, 1981.
The first issue that must be resolved is whether the suit was filed timely under Art. 5069-8.04(a), wherein it is provided that "actions may be brought within four years from the date of the loan or retail installment transaction...." As the suit was initiated four years to the date after the contract in question was executed, the question becomes, is the suit timely or did the cause of action expire at midnight April 2, 1980? We hold that the action was timely.
Rule 4, Tex.R.Civ.P., provides: "In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included." "By `applicable statute' is meant a statute prescribing the time within which an act is to be done in connection *283 with a civil action wherein the procedure is regulated by statute." Nunn v. New, 148 Tex. 443, 226 S.W.2d 116 (1950). Since the day the contract was executed is not counted in determining the expired time, appellant's cause of action was timely filed.
While appellant specifically assigns as error, his contention that "the trial court erred in holding that appellant filed suit against appellee more than four years from the date of the retail installment transaction," we can find nothing in the record which would indicate that the trial judge made such a determination. Accordingly, appellant's fifth point of error is overruled. However, we do address appellant's remaining points of error, recognizing that the cause of action was timely filed.
Appellant's first point of error attacks the constitutionality of Art. 5069-8.01(c), Tex.Rev.Civ.Stat.Ann. (Vernon Supp.1982-83) in that it constitutes an impairment of the obligation of contracts. We have carefully considered this contention and find it to be without merit. Appellant's first point of error is overruled.
Appellant's second and third points of error relate to the inclusion in the retail installment contract of an offensive phrase, and appellee's efforts to cure this defect under Art. 5069-8.01(c). Specifically, appellant complains "the trial court erred in holding that appellee actually discovered, on May 6, 1981, that the language contained in paragraph 19 of the Retail Installment Contract signed by appellant violated TEX. REV.CIV.STAT.ANN. art. 5069-7.07(4)," and that "the trial court erred in holding that appellee sent a correction notice to appellant's attorney within sixty days after appellee actually discovered its violation of TEX.REV.CIV.STAT.ANN. art. 5069-7.07(4), since the evidence showed that appellee actually discovered said violation more than sixty days before it sent the notice."
The asserted offensive clause, in the contract before us, provides:
"Any personalty in or attached to the Property when repossessed may be held by Seller without liability and Buyer shall be deemed to have waived any claim thereto unless written demand by certified mail is made upon Seller within 24 hours after repossession."
On May 6, 1981, the Texas Supreme Court handed down an opinion in which it found the waiver portion of the above clause to be both violative of public policy and the Texas Consumer Credit Code. Zapata v. Ford Motor Credit Co., 615 S.W.2d 198 (Tex.1981). Prior to this time, a conflict existed among the Courts of Appeals as to the validity of this clause. See Ford Motor Credit Co. v. Zapata, 605 S.W.2d 362 (Tex.Civ.App. Beaumont 1980); Tradewinds Ford Sales, Inc. v. Caskey, 600 S.W.2d 865 (Tex.Civ. App.Eastland 1980) (finding no violation in the clause); Ford Motor Credit Co. v. McDaniel, 613 S.W.2d 513 (Tex.Civ.App. Corpus Christi 1981, writ ref'd n.r.e.); and, Ford Motor Credit Co. v. Brown, 613 S.W.2d 521 (Tex.Civ.App.Corpus Christi 1981, writ ref'd n.r.e.) (finding a violation).
The record reflects that on May 6, 1981, appellee mailed to appellant's attorney of record, Marcel Greenia, a document entitled "CORRECTION NOTICE," which served as notice of the defect in the retail installment contract. Article 5069-8.01, supra, provides in pertinent part:
"(c)(1) A person has no liability to an obligor for a violation of this Subtitle or of Chapter 14 of this Title if within 60 days after having actually discovered such violation such person corrects such violation as to such obligor by performing the required duty or act or by refunding any amount in excess of that authorized by law; provided, notice to such obligor of such violation prior to such obligor having given written notice of or having filed an action alleging such violation of this Subtitle or of Chapter 14 of this Title.
As used herein, the term `actually discovered' shall not be construed, interpreted, or applied in such manner as to refer to the time or date when, through reasonable diligence, an ordinarily prudent person could or should have discovered or known as a matter of law or fact of the violation in question, but such term shall *284 be construed, interpreted, and applied to refer to the time of the discovery of the violation in fact, provided, however, that the actual discovery of such violation in one transaction may constitute actual discovery of the same violation in other transactions if the violation actually discovered is of such nature that it would necessarily be repeated and would be clearly apparent in such other transactions without the necessity of examining all such other transactions."
Both appellant's second and third points of error concern whether or not the notice sent by appellee, was given within 60 days after appellee actually discovered the violation. We hold that it was.
It is apparent that prior to the Texas Supreme Court's decision in Zapata, a conflict existed in Texas as to the legality of the disputed clause. We cannot now say that an adverse decision by one Court of Appeals served as notice of a violation, when another Court of Appeals had ruled that no violation existed. There exists testimony in the record that FMCC "continuously defended its position that that (sic), the twenty-four hour clause does not violate the provision of the Credit Code." Under the facts presented, we hold that appellee did not have actual notice of the defect, prior to the Supreme Court's ruling in Zapata. Appellant's second and third points of error are overruled.
Appellant's fourth point of error contends that the contract contained a provision which violated Art. 5069-7.04 by allowing appellee to contract to receive charges in excess of those permitted by the Consumer Credit Code. At issue is a clause in the contract which provides:
"Seller shall have the right to retain all payments made prior to repossession and Buyer shall remain liable for any deficiency."
We feel that this clause must be read in conjunction with clause (14) of the same contract, which provides:
"(14) Prepayment Rebate: Buyer may prepay his obligations under this contract in full at any time prior to maturity of the final instalment (sic) hereunder, and, if he does so, shall receive a rebate of the unearned portion of the Finance Charge computed under the sum of the digits method after first deducting an acquisition fee of $25.00. No rebate will be made if the amount thereof is less than $1.00."
Unless the contract involved in this appeal, by its express and positive terms, evidences an intention which requires a construction that unearned interest was to be collected, we will interpret the contract as not requiring the collection of unearned interest. Shropshire v. Commerce Farm Credit Co., 120 Tex. 400, 39 S.W.2d 11 (1931). Ford Motor Credit Co. v. McDaniel, 613 S.W.2d 513 (Tex.Civ.App.Corpus Christi 1981, writ ref'd n.r.e.). The contract before us provides that Seller shall have the right to retain the payments made prior to repossession. It also provides that in the event of a prepayment Buyer is entitled to a rebate of the unearned portion of the finance charge. It follows that should a repossession result in a prepayment or even a demand, seller could, under the contract, refund any unearned charges. "In examining a contract, which by its terms, is susceptible of more than one reasonable construction, this Court will adopt the construction which comports with legality." Ford Motor Credit Co. v. McDaniel, supra, at 518. Appellant's fourth point of error is overruled.
Finally, appellant's sixth point of error contends that the seller failed to provide appellant with a statement which clearly and conspicuously disclosed that physical damage insurance was required. Art. 5069-7.06 provides, in part, that:
"(3) When insurance is required in connection with such a contract or agreement made under this Chapter, the seller or holder shall furnish the borrower a statement which shall clearly and conspicuously state that insurance is required in connection with the contract, and that the buyer shall have the option of furnishing *285 the required insurance either through existing policies of insurance owned or controlled by him or of procuring and furnishing equivalent insurance coverages through any insurance company authorized to transact business in Texas .... Such statement or statements may be made in conjunction with or as part of the retail installment contract required by Article 7.02 or may be made in a separate written statement or statements." (Emphasis Added).
The contract before us contains a paragraph entitled "OPTIONAL INSURANCE" in large, bold, capital letters, which offers the Buyer physical damage insurance arranged for by the Seller. Also contained under this heading are statements which provide "Physical Damage Insurance is required by this contract ... Buyer may choose the person through whom such insurance is to be obtained, and Buyer shall have the option of furnishing the required insurance through existing policies of insurance owned or controlled by him or obtained by him through any insurance company authorized to transact business in Texas." Additionally, on the back of the contract is a provision which recites:
"Buyer shall obtain and maintain at his own expense for so long as any amount remains unpaid hereunder insurance protecting the interests of Buyer and Seller against loss, damage or destruction of or to the Property in such forms and amounts as Seller may require."
In addressing this exact type of language in another contract, this Court held the requirement of insurance was not clearly and conspicuously set out. Portland Tradewinds Ford v. Lugo, 613 S.W.2d 26 (Tex. Civ.App.Corpus Christi 1981, no writ). In that case, we held that the confusion created by the words "OPTIONAL INSURANCE" was not erased by the subsequent provisions of the contract. Id. at 29.
The case before us is distinguishable from Lugo, in that here a second form was provided to and executed by appellant, which states: "I understand that to provide protection from serious financial loss, should an accident occur, my installment contract requires the vehicle to be continuously covered with insurance against the risks of fire, theft and collision." This second document overcomes any confusion which may have been created by the retail installment contract itself. Appellant's sixth point of error is overruled.
We have examined all of appellant's points of error. They are overruled.
The judgment of the trial court is AFFIRMED.


                                                                 11/30/2015
                                                                                FILED IN
                                                                                1st COURT OF APPEALS
                                           NOTICE OF APPEALS                                  HOUSTON, TEXAS
                                     ASSIGNMENT OF COURT OF APPEALS                      11/30/2015 10:43:09 AM
                                                                                CHRISTOPHER A. PRINE
TO: FIRST COURT OF APPEALS                                                                        Clerk

FROM: DEPUTY CLERK: DUANE C. GILMORE
      CHRIS DANIEL, DISTRICT CLERK
      HARRIS COUNTY, TEXAS

CASE NO:     2015-07842         COURT:    190TH          TENTATIVE DUE DATE:           12/31/2015
APPEAL TYPE       REGULAR (NEW TRIAL FILED)                    CASE STATUS:        DISPOSED (FINAL)
APPELLANT:        HENRY RAWSON, JR. AND SUSAN RAWSON
APPELLEE:         OXEA CORPORATION ET AL

EVENT FILE DATE       11/25/2015         NUMBER OF DAYS: 120
EVENT CODES;      BC, C, OA
FILED BY:     ANTHONY G BUZBEE                    TBN:         24001820
DATE ORDER SIGNED         9/2/2015
COURT ASSIGNED TO:        FIRST COURT OF APPEALS
IMAGE NO:     0               VOLUME:                  PAGE:
MOTION FOR NEW TRIAL FILING DATE:          : October 1, 2015
NOTES:

                                                   CHRIS DANIEL
                                                   Harris County, District Clerk

                                                   By: /s/DUANE C. GILMORE
                                                          DUANE C. GILMORE, Deputy

BC       NOTICE OF APPEAL FILED
BG       NOTICE OF APPEAL FILED – GOVERNMENT
C        JUDGMENT BEING APPEALED
D-       ACCELERATED APPEAL
OA       NO CLERK’S RECORD REQUEST FILED W/NOTICE OF APPEAL
O        CLERK’S RECORD REQUEST FILED (W/NOTICE OF APPEAL)
NA       AMENDED NOTICE OF APPEAL
JUFC7 (NSK#)     JUSTICE INFORMATION MANAGEMENT SYSTEM      NOV 30, 2015(C1)
INT6510                     CIVIL CASE INTAKE               OPT: _____ - INT
                          GENERAL PARTY INQUIRY             PAGE:    1 -     1

CASE NUM: 201507842__ PJN> __ TRANS NUM: _________ CURRENT COURT: 190 PUB? _
CASE TYPE: OTHER INJURY OR DAMAGE           CASE STATUS: DISPOSED (FINAL)
STYLE: RAWSON, HENRY JR                   VS OXEA CORPORATION
=============================================================================
                        **** INACTIVE PARTIES ****
  PJN PER/CONN COC BAR          PERSON NAME                 PTY   ASSOC. ATTY
  NUM    NUMBER                                            STAT
2     00006-0001 DEF 16604400 MUNDY MAINTENANCE AND SERVICES D RAY, JEFFRY H
0     00006-0001 PAD 12473500 LOCKHART, TOM
1     00005-0001 DEF 17733298 AEP TEXAS CENTRAL COMPANY       D SCHAUER, G. D
5     00004-0001 DEF 00785223 DASHIELL CORPORATION               WETWISKA, JAM
_     00003-0001 PLT 24001820 RAWSON, SUSAN                      BUZBEE, ANTHO
_     00002-0001 DEF 22279500 OXEA CORPORATION                D ZITO, NICHOLA
_     00001-0001 PLT 24001820 RAWSON, HENRY JR                   BUZBEE, ANTHO

==> (7) CONNECTION(S) FOUND
1=ACTIVE      2=ATY. INQ.   3=ACT.ENTRY   4=ISS. SERV.   5=DOC. INQ.
6=CASE INQ.   7=BACKWARD    8=FORWARD     9=PTY. ADDR.   10=REFRESH    11=HELP


     Case: 11-40818     Document: 00511837759         Page: 1     Date Filed: 04/27/2012

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 27, 2012
                                     No. 11-40818
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GUADALUPE MARTINEZ-SANDOVAL,

                                                  Defendant-Appellant

                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:09-CR-2226-1

Before DENNIS, CLEMENT, and OWEN, Circuit Judges
PER CURIAM:*
        The Federal Public Defender appointed to represent Guadalupe Martinez-
Sandoval (Martinez) has moved for leave to withdraw and has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), and United States v.
Flores, 632 F.3d 229 (5th Cir. 2011). Martinez has filed a response. We have
reviewed counsel’s brief and the relevant portions of the record reflected therein,
as well as Martinez’s response. We concur with counsel’s assessment that the
appeal presents no nonfrivolous issue for appellate review.                    Accordingly,

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-40818   Document: 00511837759   Page: 2   Date Filed: 04/27/2012

                               No. 11-40818

counsel’s motion for leave to withdraw is GRANTED, counsel is excused from
further responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR.
R. 42.2.

                                     2