         10-4188-ag
         Wu v. Holder
                                                                                BIA
                                                                                A095 864 126
                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
     AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 7th day of February, two thousand twelve.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                REENA RAGGI,
 9                SUSAN L. CARNEY,
10                   Circuit Judges.
11       _________________________________________
12
13       XIAO CONG WU,
14                Petitioner,
15
16                      v.                                         10-4188-ag
17                                                                 NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:                Gary J. Yerman, New York, New York.
24
25       FOR RESPONDENT:                Tony West, Assistant Attorney
26                                      General; Michelle Gorden Latour,
27                                      Assistant Director; Brendan P.
28                                      Hogan, Office of Immigration
29                                      Litigation, United States Department
30                                      of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby

 3   ORDERED, ADJUDGED, AND DECREED, that the petition for review

 4   is DENIED.

 5       Petitioner Xiao Cong Wu, a native and citizen of the

 6   People’s Republic of China, seeks review of the September

 7   23, 2010, decision of the BIA denying his motion to reopen.

 8   In re Xiao Cong Wu, No. A095 864 126 (B.I.A. Sept. 23,

 9   2010).   We assume the parties’ familiarity with the

10   underlying facts and procedural history of the case.

11       The BIA’s denial of Wu’s motion to reopen as untimely

12   was not an abuse of discretion.   See Kaur v. BIA, 413 F.3d

13   232, 233 (2d Cir. 2005) (per curiam).    A motion to reopen

14   generally must be filed no later than 90 days after the date

15   on which the final administrative decision was rendered in

16   the proceedings sought to be reopened.    8 U.S.C.

17   § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).    There is no

18   dispute that Wu’s 2010 motion was untimely, as the final

19   administrative decision was issued in March 2009.

20   See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).

21   The time limitation does not apply to a motion to reopen if

22   it is “based on changed circumstances arising in the country

23   of nationality or in the country to which deportation has

                                   2
 1   been ordered, if such evidence is material and was not

 2   available and could not have been discovered or presented at

 3   the previous hearing.”    8 C.F.R. § 1003.2(c)(3)(ii); see

 4   also 8 U.S.C. § 1229a(c)(7)(C)(ii).   However, the BIA did

 5   not abuse its discretion in finding that Wu failed to

 6   establish changed circumstances in China.

 7       The only evidence Wu proffered of changed circumstances

 8   arising in China was a letter from his wife - in which she

 9   stated that after Wu mailed her materials pertaining to

10   Chinese democracy, she was detained by the Chinese

11   government for ten days, and government officials told her

12   they would arrest Wu if he returned to China - and a

13   “Certificate of Detention” stating that Wu’s wife had been

14   detained in March 2009.   The BIA’s determination that this

15   evidence was of little probative value is entitled to

16   deference, particularly in light of the agency’s prior

17   adverse credibility determination, and the fact that the

18   “Certificate of Detention” was unauthenticated.    See Qin Wen

19   Zheng v. Gonzales, 500 F.3d 143, 149 (2d Cir. 2007) (holding

20   that the BIA did not abuse its discretion in discrediting a

21   purported village notice where the document was not

22   authenticated and the alien had been found not credible by

23   the IJ); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471

                                    3
 1   F.3d 315, 342 (2d Cir. 2006).       Moreover, the letter from

 2   Wu’s wife was unsworn and from an interested witness.       See

 3   Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA

 4   2010) (giving diminished weight to letters from friends and

 5   relatives where they were written by interested witnesses

 6   not subject to cross-examination).       Because the evidence Wu

 7   submitted was insufficient to establish a change in

 8   circumstances or country conditions, the BIA did not abuse

 9   its discretion in concluding that he failed to meet an

10   exception to the filing deadline, and, accordingly, in

11   denying his motion to reopen.       See 8 U.S.C.

12   § 1229a(c)(7)(C)(i), (ii); 8 C.F.R. § 1003.2(c)(2), (3).

13       For the foregoing reasons, the petition for review is

14   DENIED.   As we have completed our review, any stay of

15   removal that the Court previously granted in this petition

16   is VACATED, and any pending motion for a stay of removal in

17   this petition is DISMISSED as moot. Any pending request for

18   oral argument in this petition is DENIED in accordance with

19   Federal Rule of Appellate Procedure 34(a)(2), and Second

20   Circuit Local Rule 34.1(b).

21                                 FOR THE COURT:
22                                 Catherine O’Hagan Wolfe, Clerk
23
24

                                     4


Filed 6/26/13 In re K.J. CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO

In re K. J., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
         Plaintiff and Respondent,
v.                                                                   A135231
K. J.,                                                               (Sonoma County
         Defendant and Appellant.                                    Super. Ct. No. 36990J)

                                              I. INTRODUCTION
         In January 2012, appellant, already declared to be a ward of the court for admitted
charges of battery on a peace officer and resisting and obstructing another such officer, as
well as another charge of burglary, was adjudged a ward of the court and the court also
issued an order denying him visitation rights with his parents. He appeals, but (1) on a
basis not asserted in the juvenile court and (2) provides a very incomplete record. In any
event, we affirm the juvenile court’s judgment, including its dispositional order.
                     II. FACTUAL AND PROCEDURAL BACKGROUND
         On the morning of March 3, 2011, a Sonoma County sheriff’s deputy was
dispatched to a Sebastopol residence after the mother of appellant, then almost 17,
reported that he and his younger brother had run away from the Valley of the Moon
children’s home and were inside her residence. When the deputy went inside the house

                                                             1
to try to get the two youths, they became belligerent, requiring the deputy to handcuff
appellant, who even then tried to leave the house, and had to be restrained by both the
deputy and the mother. Appellant declared that he “hated his mother” and would not
return to the Valley of the Moon home. In the course of his altercation with appellant,
the deputy fell to the ground and suffered a concussion, lacerations to his fingers, and
sprained fingers. However, he was eventually able to restrain appellant, and other
deputies arrived to place appellant under arrest. These events resulted in a petition being
filed under Welfare and Institutions Code section 602, subdivision (a),1 on July 13, 2011.
       A few weeks later on July 26, 2011, a similar petition was filed regarding events
of April 18, 2011. On that date, Sonoma sheriffs deputies were dispatched to a
delicatessen in Sebastopol because of a report of a suspected robbery. A clerk told the
deputies that he had first heard bottle noises coming from near the cash register, and then
went closer to that area, where he saw a person wearing a black ski mask over his face.
That person took four bottles of vodka off the shelf and ran out without paying for them.
Via information supplied by multiple callers, the deputies traced the burglar to
appellant’s home, where they found his younger brother and the mother. The brother said
that appellant had taken the vodka. The mother told them that this did not surprise her,
because the family had been “going through recent turmoil” in view of her disability, the
father’s removal from the home by Child Protective Services, and her two sons’ behavior.
       On November 3, 2011, appellant admitted the allegations of both petitions. On
November 23, 2011, appellant was declared a ward of the court, and the juvenile court
determined that the county’s Human Services Department should be the lead agency
regarding him under section 300 et seq.
       On January 9, 2012,2 yet more events involving appellant occurred, events
resulting in a section 602, subdivision (a), petition being filed on January 11, 2012, by the
Napa County District Attorney. It alleged four counts, namely, resisting an executive

       1
           All further sections cited are to the Welfare and Institutions Code.
       2
           All further dates noted are in 2012.

                                                  2
officer by force or violence, battery on a peace officer and emergency personnel (two
counts), and vandalism.
       On January 19, the Sonoma County probation officer filed a notice of violation of
probation based on section 777 and the allegations of the January 11 petition.
       On February 7, the juvenile court sustained the section 602, subdivision (a),
petition and ordered the case transferred to Sonoma County. The alleged probation
violation was also dismissed.
       A disposition report filed on February 23 regarding the section 602 petition read,
in part, as follows: “On January 9, 2012, Napa County Police officers responded to a
report of an intoxicated individual, later identified as the minor, who was throwing rocks
at vehicles in the Lucky Supermarket parking lot. The minor was also witnessed ripping
down a fire lane sign, and throwing a rock through the back window of a vehicle. That
vehicle was identified as belonging to an employee at Lucky’s, Martin Naranjo. One
witness said the minor challenged him to a fight and pounded on his vehicle’s windows
before running toward him and yelling. The witness admitted he punched the minor to
keep him away, just as the police arrived. [¶] Upon arrival, the officers made contact
with the minor, however, he ignored numerous directives to stop and sit down. As he
attempted to walk by one of the officers, the officer grabbed his right upper arm and
pulled him back, causing him to sit down. As soon as he sat down, the minor continued
to try and stand back up. Officers detected the odor of alcohol and the minor’s words
were slurred as he mumbled unintelligibly. The minor continued to resist the officers
attempts at placing him in handcuffs, pulling away from the officers and trying to turn
around. At one point, the minor’s action resulted in placement of the officer on top of the
minor and the minor bit the officer’s left forearm. Additional officers arrived and the
minor was taken into custody. Officers could tell the minor was under the influence of
alcohol and subsequently transported him to the hospital for medical clearance. While en
route, the minor banged his head against the plastic screen in the police car. [¶] Once at
the hospital, he was placed on a gurney, where he continued to curse and resist officers.
He attempted to scoot off the gurney and attempted to bite a nurse as she attempted to

                                             3
administer care. He was given a sedative, however, before it was effective, the minor spit
in one of the officer’s faces. The minor’s blood alcohol level was determined to be .31%
[¶] The minor was eventually medically cleared and was transported to the Napa County
Juvenile Hall where he was booked for violations of 69 PC, 594(B)(1) PC, 243(b) PC,
664/243(b) PC, and 647(f) PC.”
       On the same day this report was filed, appellant was declared to be a ward of the
court, with the Human Services Department to be the lead agency under the section 300
dependency system.
       On March 23, appellant’s probation officer filed a section 777 notice alleging that,
on March 5, appellant was found to be in possession of both alcohol and marijuana and,
on March 19, in possession of an empty bottle of rum and giving the appearance of being
under the influence of such. That notice also alleged that appellant had left the facility in
which he was ordered confined at least five times without permission.
       On April 2, appellant admitted these charged violations and was continued as a
ward of the court, but with the specific advice of the juvenile court that this would be his
last opportunity to have the section 300 agency as his lead agency.
       Nonetheless, four days later, on April 6, the probation officer filed yet another
section 777 notice. On April 17, appellant, represented by counsel and by that date 18
years old, admitted the violation. The court thus ordered that there be no more visits by
appellant with either of his parents, that a section 241.1 report be prepared, and that the
section 300 et seq. system would no longer be the lead agency.
       On April 19, appellant filed a notice of appeal from this order.
                                      III. DISCUSSION
       Appellant’s entire argument in his single brief to us,3 is composed of four
paragraphs under the heading: “The Court Erred When It Denied Appellant Visitation
With His Mother.” That brief also concedes that the standard of review of such an order
is abuse of discretion.

       3
           No reply brief was filed by appellant.

                                               4
       We find no such abuse here, particularly in view of the fact that there is nothing in
the record indicating that appellant (then, as noted above, represented by counsel)
objected to that aspect of the April 17 order. Indeed, that order states that the charged
section 777 violation was the subject of an “Admission with consent of Counsel.”
       Further, the record provided us by appellant establishes that there was no abuse of
discretion by the juvenile court. The mother conceded to the juvenile probation officer
that she had “past issues related to substance abuse” and to her consumption of alcohol,
and that “marijuana was extremely prevalent at their former residence.” As a result of
these admissions, the probation officer’s report noted that the “mother has mental health
issues including Major Depression and Post Traumatic Stress Disorder” and that she had
reported that both her and appellant’s father “have alcohol problem [sic].” Per
appellant’s social worker, the mother “has submitted a positive chemical test for
marijuana, failed to show up for testing, and is not participating fully in the family
reunification services.” The same worker “expressed concern about the mother’s
decision to move into the same apartment complex as the father” who, per the probation
report, apparently had even greater alcohol and drug-related problems.
       “A juvenile court has broad discretion in formulating conditions of probation for
the purpose of rehabilitation” and an appellate court reviews its “judgment for a manifest
abuse of discretion.” (In re G.V. (2008) 167 Cal.App.4th 1244, 1250; see also Alex O. v.
Superior Court (2009) 174 Cal.App.4th 1176, 1180.) In view of the specifics provided
by the record regarding appellant’s mother’s personal alcohol and drug-related
problems—facts not challenged in the slightest by appellant in his sole and very short
brief to this court—there clearly was no such abuse here.

                                              5
                                 IV. DISPOSITION
     The judgment, including the court’s dispositional order, is affirmed.

                                               _________________________
                                               Haerle, Acting P.J.

We concur:

_________________________
Lambden, J.

_________________________
Richman, J.

                                           6


901 S.W.2d 691 (1995)
Sonia CACY, Appellant,
v.
The STATE of Texas, Appellee.
No. 08-93-00085-CR.
Court of Appeals of Texas, El Paso.
May 11, 1995.
Discretionary Review Refused September 13, 1995.
*694 Robert V. Garcia, Jr., Odessa, for appellant.
Albert G. Valadez, Dist. Atty., Fort Stockton, for State/appellee.
Before BARAJAS, C.J., and KOEHLER and LARSON, JJ.

OPINION
BARAJAS, Chief Justice.
We withdraw our opinion and judgment of March 9, 1995, and substitute the following therefor.
Sonia Cacy appeals her conviction for the offense of murder. On April 16, 1992, a Pecos County grand jury indicted Appellant for the murder of William R. Richardson. On February 26, 1993, a jury found Appellant guilty and assessed punishment at 55 years' confinement in the Institutional Division of the Texas Department of Criminal Justice and a fine of $10,000, whereupon the trial court entered judgment in accordance with the jury's findings. We affirm the judgment of the trial court in part, reverse in part, and remand the cause for new sentencing proceedings.

I. SUMMARY OF THE EVIDENCE

On October 1, 1991, Appellant moved into the Fort Stockton, Texas residence of Richardson, her uncle and stepfather. Sometime in October, a fire broke out on the back porch to the residence. Although both Appellant and Richardson knew of the fire, neither immediately reported it to the fire department. The record contains no evidence about the extent of the damage caused by this initial fire.
*695 On November 2, 1991, at 3:18 a.m. the police and fire authorities responded to a second fire at the Richardson's home. The fire occurred in the room used by Richardson as his office and was extinguished by Fort Stockton Police Officer Armando Villesca with the use of a garden hose. Officer Villesca doused the fire through an open window that opened with a crank mechanism which could only be operated from inside the office. After the fire was extinguished, Fire Chief Jimmy Jackson investigated its cause and identified a box containing electrical equipment as the cause of the blaze. Jackson theorized that the box ignited adjacent curtains which fell from their brackets, thereby largely eliminating the blaze. Jackson initially suspected an intruder had set the fire but eliminated that hypothesis after finding the back door undisturbed and after seeing cash and firearms in plain view inside the office.
At 6:20 a.m. on the same date, authorities responded to a third fire at the Richardson home. Although more severe than the second fire, the third fire occurred in a detached garage building used as a storage room. Present that morning during the investigation of the third fire was Fire Marshall Frank Salvato, who took the opportunity to question Richardson about the second fire. Richardson told Salvato that he had attempted to extinguish it with a fire extinguisher that hung in the office. Salvato then confirmed that the office was coated with a white powder residue from materials commonly used in fire extinguishers.
The fourth and fatal fire occurred eight days later on November 10, 1991, at 6:15 a.m. Ms. Dois Clawson, Richardson's next door neighbor, was awakened by Appellant knocking at her door. She came to the door to see Appellant in the yard waving her hands, "walking in circles, and just not hollering, but makingnot knowing what to do." Appellant informed Clawson that the house was on fire and that Richardson was inside. As the two approached the dwelling, Clawson could see flames through the living room window. Clawson then asked Appellant if fire fighters had been summoned and Appellant responded in the negative. Clawson returned to her house to call the fire department, then returned to the blaze to see that Appellant had broken two window panes, from which escaped little smoke, in an apparent effort to enter the house. Because she was concerned the broken windows would better ventilate the fire and thereby intensify the blaze, Clawson pulled Appellant away from the windows.
Clawson next attempted to open the front door but found it locked. Upon inquiry, Appellant related that she had not escaped through the front door, but from her bedroom window. The two women walked to the open, crank-operated window to Appellant's room whereupon Appellant began to enter the room through the window. Before she was entirely beyond the plane of the window, however, Appellant abandoned her effort, citing difficulty breathing because of smoke. Clawson saw neither flames in the bedroom nor smoke coming through the window. Appellant told Clawson that Richardson woke her, informed her of the fire, instructed her to escape through the window, and indicated he would exit after fetching his dogs. Richardson's badly burned body was later discovered in the living room.
Clawson accompanied an emotionally upset Appellant to Clawson's house when Fort Stockton Police Officer Robert Curtis arrived. Appellant thereafter went back outside over Clawson's objections and attempts to restrain her. Officer Curtis, meanwhile, had kicked down the locked front door, allowing thick black smoke to escape through the opening and causing the flames to grow in size. As Officer Curtis tried to crawl through the door and under the smoke, Appellant attempted to crawl over him in an apparent effort to enter the house. Officer Curtis first pulled her away from the structure, then briefly struggled with Appellant to prevent her return to the building. Shortly thereafter, Officer Curtis repeated his actions, again pulling Appellant away from the house.
Soon thereafter, Officer Villesca and Fort Stockton Police Corporal Rick Carreon arrived on the scene. Officer Villesca immediately asked Appellant if anyone was in the house and she responded that someone was *696 in the living room. Officers Villesca and Carreon then made their way through thick smoke and intense heat to the living room, where they discovered a motionless body lying on the floor. They did not see the body at a distance and only discovered it by crawling along the floor and using a flashlight. Before they could rescue the body, however, the men were forced from the house by the smoke.
At some point, Appellant was placed in the backseat of a police vehicle in an effort to prevent her from endangering herself and others by entering the burning house. Although she was not suspected of wrongdoing at the time, she appeared angry to be confined to the car. After emerging from the burning house, Officer Villesca walked toward Appellant, whom Officer Curtis was restraining, in time to hear her shout, "let me go, you son of a bitch." Officer Villesca and Betsy Spencer, a Victim Assistance Coordinator, returned Appellant to Clawson's home. Appellant continued to try to leave the house, claiming that she wanted to see Richardson. As Officer Villesca took Appellant to Clawson's home, Appellant told him to let her loose, calling him a "mother fucker". Spencer later had to summon Officer Villesca back to Clawson's house to restrain Appellant, who again became belligerent, telling him, "you can kiss my ass," and repeating the above expletive. On this occasion, Officer Villesca noticed the strong odor of alcohol about Appellant. Spencer and Officer Carreon also smelled alcohol about Appellant. Further, Spencer noticed that some of Appellant's hair was singed, as though it had come into direct contact with flame. Spencer also noted that Appellant had black marks under her nose and about her lips.
As the fire was brought under control, Appellant was taken to the local hospital by Spencer and Clawson in Spencer's personal vehicle. While en route, Appellant repeated her story that Richardson had awakened her and instructed her to exit through her window. Some thirty minutes after arriving at the hospital, however, Appellant claimed she did not know if Richardson had actually done this or if Appellant only imagined the drama. Spencer, who had been instructed to have Appellant sedated, was contacted by Officer Carreon, via radio, and instructed not to have her sedated because investigators wished to obtain a statement from Appellant. Appellant overheard this conversation, which occurred on the way to the hospital and before Appellant mused that she may have imagined the events she earlier claimed to recall.
Medical personnel at the hospital confirmed others' observations that Appellant's hair was singed, that she had soot-like marks about her nose and lips, further, that she smelled of alcohol. When Officer Carreon arrived at the hospital in search of a statement from Appellant, he asked Spencer to be present while he spoke to Appellant. Appellant was quite clear that she was not "giving them a fucking thing" until she spoke to her attorney. While at the hospital, Officer Carreon for the first time observed scratches on Appellant's legs and blood around her toe, which observation he reported to his superiors. Sometime after 1:00 p.m., the District Attorney's office contacted Officer Carreon at the hospital and instructed him to seek a blood sample from Appellant. Appellant refused this request. At approximately 2:00 p.m. Appellant provided Spencer and Officer Carreon with a written statement. Between 7:00 p.m. and 9:00 p.m., an evidentiary search warrant was issued to obtain 10 ccs of blood and fingernail scrapings from Appellant. By the time Officer Carreon delivered the warrant to Appellant in her unguarded hospital room her fingernails had been bitten off down to the quick. Investigators nevertheless obtained the samples they sought without any resistance.
On the following day, fire investigators searched the burned house for evidence. They found in Appellant's bedroom a holographic will signed by B.R. Richardson, which named Appellant as sole heir.

II. DISCUSSION

Appellant attacks her conviction in fifteen points of error. In Points of Error Nos. One and Two, Appellant challenges the sufficiency of the evidence to support the conclusion that the fire was of incendiary origin and that it was caused by Appellant. In Point of Error No. Three, Appellant challenges the sufficiency *697 of the evidence to support the conclusion that the deceased was Richardson. In Points of Error Nos. Four through Nine, Appellant complains of the admission into evidence of the invocation of her right to counsel, her right to refuse to consent to a search, the State's comment thereon, and of her trial lawyer's failure to object to such alleged comment. In Points of Error Nos. Ten and Eleven, Appellant complains of the alleged admission into evidence of the search warrant and of evidence of probable cause therefor. In her twelfth point of error, Appellant complains of the State's alleged comment on her failure to testify at trial.[1]
In her third point of error, Appellant complains that the evidence was insufficient to allow a rational juror to conclude the deceased was William R. Richardson, whom the indictment accuses Appellant of murdering. In reviewing the sufficiency of the evidence, we are constrained to view the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could find the essential elements of the offense, as alleged in the application paragraph of the charge to the jury, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App.1991); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App. 1989); Humason v. State, 728 S.W.2d 363, 366 (Tex.Crim.App.1987). Our role is not to ascertain whether the evidence establishes guilt beyond a reasonable doubt. Stoker v. State, 788 S.W.2d 1, 6 (Tex.Crim.App.1989), cert. denied, 498 U.S. 951, 111 S.Ct. 371, 112 L.Ed.2d 333 (1990); Dwyer v. State, 836 S.W.2d 700, 702 (Tex.App.El Paso 1992, pet. ref'd). We do not resolve any conflict in fact, weigh any evidence, or evaluate the credibility of any witnesses, and thus, the fact-finding results of a criminal jury trial are given great deference. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App.1991); Leyva v. State, 840 S.W.2d 757, 759 (Tex.App.El Paso 1992, pet. ref'd); Bennett v. State, 831 S.W.2d 20, 22 (Tex.App.El Paso 1992, no pet.). Instead, our only duty is to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d at 421-22. In so doing, we resolve any inconsistencies in the evidence in favor of the verdict. Matson v. State, 819 S.W.2d at 843, quoting Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988).
The trial court's charge to the jury queried whether Appellant intentionally and knowingly caused the death of William R. Richardson. Appellant's complaint is that her uncle's name was Bill Roscoe Richardson and that he was never known as William R. Richardson. Appellant complains that the proof at trial established only that someone named "Mr. Bill Richardson" or "Bill R. Richardson" was killed. Appellant ignores the autopsy report produced after an examination of the deceased's body. The autopsy report identifies a tattoo on the left arm consisting of crossed cannons and a floral design surrounding the inscription "YMS-176." The record contains the testimony of Robert Charles Bux, the Deputy Chief Medical Examiner for Bexar County, who testified that he had seen Richardson's naval discharge papers and that they indicate he served on a vessel known as YMS-176. Further, Appellant never indicated anyone other than Richardson was in the house at the time of the fire, and only one body was recovered from the house after the fire. This evidence suffices to allow the jury to identify the deceased as Richardson.
The record also contains two reports from a person employed to assess the genuineness of the holographic will discovered after Richardson's death. These reports identified the deceased as "William (Bill) Roscoe RICHARDSON" *698 and as "William "Bill" Roscoe RICHARDSON." Appellant made no objection to the admission of these documents or the fashion in which they identified the deceased. The reports reflect the social reality that "Bill" is often used as a short or informal form of "William," which reality Appellant does not challenge. She argues, rather, the mere technical variance between the name of the deceased as alleged in the indictment and his name as proved at trial. Appellant carefully frames her complaint, however, not in terms of technical variance but in terms of the sufficiency of the evidence, which greatly constrains the scope of our review. Given the interchangeable use of several forms of Richardson's name, and given Appellant's failure to object to such use, we find the evidence sufficient to allow a rational juror to conclude that the deceased was William R. Richardson or, alternatively, that Appellant waived this issue by failing to object at trial. Accordingly, we overrule Point of Error No. Three.
In Points of Error Nos. Four through Nine, Appellant complains of the alleged admission into evidence of the invocation of her right to counsel, her right to refuse to consent to a search, the State's alleged comment thereon, and of her trial lawyer's failure to object to such alleged comment. Carreon testified at trial that he knew the fire was under investigation when he and Spencer sought, at the behest of an assistant fire chief, to elicit a written statement from Appellant. Carreon noticed blood on Appellant's hands and scratches on her legs when he entered her hospital room. The jury learned that Appellant told Carreon that "she wasn't giving [police] a fucking thing until she spoke [to] her attorney." Carreon testified that Appellant offered the same response when Spencer asked if they could photograph Appellant. Spencer echoed this testimony but recalled slightly less colorful language, testifying that she asked if Appellant would consent to giving a blood sample, to which Appellant responded, "Hell no, not without my attorney." Significantly, this request for a blood sample occurred after Carreon reported to the District Attorney's office that he observed blood on appellant and received instructions to attempt to obtain a blood sample. After reporting Appellant's refusal to the District Attorney's office, Carreon was instructed to wait for a search warrant, which eventually issued for both a blood sample and fingernail scrapings.
The State seized on this drama during argument at the guilt/innocence stage of the trial, stating:
So, the Defendant, now, is in the hospital and she refused to cooperate, no cooperation from her at all until a warrant to draw blood and to scrape the fingernails is brought back 12 hours later. The testimony from the experts was in 12 hours that alcohol can dissipate, be gone from the blood. So now it's okay for her to give a blood test. And of course the fingernail clippings test came out negative. There wasn't any fingernails left. What's she trying to hide at that point. No one's suspected, nobody's pointing the finger, nobody's accused her of anything. She knows the accusation is coming and she's just covering her bets.
Appellant's failure to object to the admission of the foregoing evidence waived any error it may have caused. In order for an issue to be preserved on appeal, there must be a timely objection that specifically states the legal basis for the objection. Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim. App.1990); Little v. State, 758 S.W.2d 551, 564 (Tex.Crim.App.1988), cert. denied, 488 U.S. 934, 109 S.Ct. 328, 102 L.Ed.2d 346 (1988); Ortiz v. State, 825 S.W.2d 537, 542 (Tex.App.El Paso 1992, no pet.). Specific objections are required so that the trial judge has an opportunity to rule and opposing counsel has an opportunity to remove the objection or supply other testimony. Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim. App.1977). An objection stating one legal basis may not be used to support a different legal theory on appeal. Rezac v. State, 782 S.W.2d at 870; Little v. State, 758 S.W.2d at 564. With the exception of the right of trial by jury, a defendant can waive any trial error, including constitutional error, by failing to properly object or request the proper relief. Little v. State, 758 S.W.2d at 563-64; Thompson v. State, 802 S.W.2d 840, 842 (Tex. *699 App.Houston [14th Dist.] 1990, pet. ref'd); Tex.Code Crim.Proc.Ann. art. 1.14 (Vernon Supp.1995). Because Appellant failed to object to the admission into evidence of the invocation of her right to counsel, her refusal to consent to a search, and to the State's use of these matters at final argument, she has waived any error they may have caused.
Appellant largely acknowledges her waiver, but claims that the admission of the disputed evidence and the State's argument concerning it constituted fundamental error and are therefore reviewable. An exception to general waiver principles exists for fundamental error. See Tex.R.App.P. 52(a); Tex. R.Crim.Evid. 103(d); Williams v. State, 773 S.W.2d 525, 531 (Tex.Crim.App.1988) (jury argument), cert. denied, 493 U.S. 900, 110 S.Ct. 257, 107 L.Ed.2d 207 (1989); Peoples v. State, 874 S.W.2d 804, 807 (Tex.App.Fort Worth 1994) (admission of testimonial evidence); Francis v. State, 801 S.W.2d 548, 551 (Tex.App.Houston [14th Dist.] 1990) (admission of physical evidence). Examples of fundamental error include improper jury argument that, in light of the record as a whole, is extreme, manifestly improper, violative of a mandatory statute, or injects into the trial proceedings new facts harmful to the accused, see Cooks v. State, 844 S.W.2d 697, 727-28 (Tex.Crim.App.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 3048, 125 L.Ed.2d 732 (1993), and the admission of evidence that operates to render the defendant's trial fundamentally unfair, see Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App. 1990).
Appellant relies on Powell v. State, 660 S.W.2d 842, 845 (Tex.App.El Paso 1983, no pet.), which holds that the State may not use the invocation of a defendant's right to counsel as evidence of her guilt. "To permit the use of such evidence," Powell reasons, "would erode the protections guaranteed by both state and federal constitutions." Id. Powell does not, however, purport to address whether use of the invocation of a constitutional protection as evidence of guilt constitutes fundamental error, and thus does not aid Appellant in her effort to circumvent her waiver. We conclude that the errors of which Appellant complains are not fundamental and that she has not otherwise established that her trial was so plagued by error that it was fundamentally unfair.[2] Accordingly, Points of Error Nos. Four through Seven are overruled. It remains only to examine whether Appellant's lawyer's failure to challenge the foregoing evidence denied Appellant the effective assistance of counsel as guaranteed by Article I, Section 10 of the Texas Constitution.
Appellant places her reliance solely on the Texas Constitution. Insofar as Appellant's *700 state constitutional right to effective assistance of counsel provides no greater protection than her right to effective assistance under the Sixth Amendment to the United States Constitution, we examine both state and federal law. Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App.1988).
To successfully demonstrate the denial of effective assistance of counsel, Appellant must establish that her counsel's performance was deficient and that the deficiency was so serious that the defendant was deprived of a fair trial, meaning a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.Crim.App.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987). The second prong of the above test requires that the errors have been so serious that Appellant was deprived of a fair trial, which we find if there exists a reasonable probability that the results would have been different but for counsel's unprofessional errors. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068; Wilkerson v. State, 726 S.W.2d at 548 n. 3.
Significantly, the constitutional right to counsel does not mean errorless representation. To meet the constitutional standard, counsel must provide only reasonably effective assistance. Wilkerson v. State, 726 S.W.2d at 548. In reviewing assertions of ineffective assistance, we examine the totality of the representation, neither focusing on isolated acts or omissions nor engaging in hindsighted comparisons of how other counsel might have tried the case. Wilkerson v. State, 726 S.W.2d at 548. A fair assessment of trial counsel's performance requires that we make every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances at trial, and to evaluate the conduct from counsel's perspective at the time of trial. Stafford v. State, 813 S.W.2d 503, 506 (Tex.Crim.App.1991). Indeed, we indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance, and Appellant must overcome the presumption that the challenged action could be considered sound trial strategy under the circumstances at the time of trial. Strickland v. Washington, 466 U.S. at 688-89, 104 S.Ct. at 2064-65; Stafford v. State, 813 S.W.2d at 506. Finally, allegations of ineffective assistance must be firmly founded in the record. Hawkins v. State, 660 S.W.2d 65, 75 (Tex.Crim.App. 1983); Mercado v. State, 615 S.W.2d 225, 228 (Tex.Crim.App.1981).
Appellant in her brief cites no authority to support her contention that her trial counsel's failure to object to evidence and argument at trial constituted ineffective assistance. Instead, she engages in a discussion that alleges error in conclusory terms, employing adjectives rather than reason. We nonetheless note that the record consists in part of an 11-volume statement of facts that chronicles trial proceedings which occurred over a five-day period. The record includes some 80 exhibits and the testimony of 26 witnesses. These facts reflect a lengthy, complex trial. Given the length of the trial and Appellant's failure to articulate a reasoned argument to support her ineffective assistance claim, we cannot say that her trial counsel's failure to object to the evidence and argument we earlier set out was unprofessional or not a plausible strategic decision. Neither can we say that the propositions that a defendant's invocation of her right to counsel and her refusal to consent to a search may not be used as evidence of her guilt are so well established in state or federal law or otherwise "so basic and fundamental... as to compel the conclusion that any counsel who fails to perceive [them] is not functioning effectively as the counsel constitutionally guaranteed to a criminal defendant." Ex parte Owens, 860 S.W.2d 727 (Tex.App.Austin 1993, pet. ref'd) (citations and internal quotations omitted), cert. denied, ___ U.S. ___, 114 S.Ct. 2162, 128 L.Ed.2d 885 (1994). We conclude that the assistance provided by Appellant's lawyer neither undermined the outcome of the trial nor was it less than reasonably effective. Accordingly, we overrule Appellant's Points of Error Nos. Eight and Nine.
*701 In Points of Error Nos. Ten and Eleven, Appellant complains that the trial court erred in admitting into evidence the search warrant and supporting affidavit to obtain blood and nail scrapings from Appellant and in permitting Officer Carreon to testify about those portions of the affidavit that constituted probable cause. The record does not establish that the warrant and affidavit were admitted into evidence, which admission is a logical predicate to Appellant's complaint. Although these documents appear in the record as exhibit 15, the trial judge expressly took the matter under advisement when it was offered at trial and never returned to the subject. Further, the court reporter's index of exhibits identifies exhibit 15 and its location in the record, but the index does not indicate that the exhibit was admitted into evidence. Absent some record evidence that the exhibit was admitted into evidence, we find that Appellant has failed to meet her burden to show that the exhibit's admission was error. Accordingly, Appellant's Point of Error No. Ten is overruled.
Appellant's complaint about Officer Carreon's testimony centers around the following exchange, which occurred after the State's attorney handed Officer Carreon exhibit 15:
Q. Okay. And does that search warrant also advise as to whether or not blood was found at the residence on that day? Read it if you need to.
. . . . .
A. Yes, sir, there was.
Q. Okay, so, was your information coupled from what you saw on this Defendant [sic] hands coupled with the information from any other officer at that residence?
A. Yes, sir, the Sergeant.
Appellant claims the exhibit and testimony relating to such exhibit were hearsay. Generally, hearsay evidence is not admissible before a jury if the issue of probable cause is not first raised. Perez v. State, 678 S.W.2d 85 (Tex.Crim.App.1984). If, however, the defense raises the issue, the door is opened for the State to introduce evidence to show probable cause, including hearsay evidence. Gaston v. State, 574 S.W.2d 120 (Tex.Crim.App. 1978).
Although Appellant never challenged probable cause at a suppression hearing, we find that she opened the door during cross-examination of Officer Carreon. Appellant's lawyer asked Officer Carreon why he sought a blood sample from Appellant. When Officer Carreon indicated his purpose was to determine the concentration of alcohol in her blood, Appellant's lawyer wryly asked if Officer Carreon intended to arrest her for driving while intoxicated. Appellant's lawyer then attempted to impeach Officer Carreon about the details of his alleged basis for securing a search warrant with the following:
Q. And did she resist when asked to give the blood samples or the nail scrapings?
A. No, she didn't.
Q. And this was the first time that she was asked or told about nail scrapings, right?
A. Yes, sir, it was.
Q. And that's when you noticed that her fingernails had either been bitten off or cut off down to the quick?
A. Yes, sir.
Q. You hadn't noticed that at 12:00 [sic] o'clock, had you?
A. No, sir, I didn't.
Q. So, that wasn't the basis for getting these warrants, was it?
A. No, sir, it wasn't.
Q. But you testified earlier that it was, were you just confused?
A. No, sir, I didn't testify to that.
The foregoing both challenged the sufficiency of the reasons that Officer Carreon said caused him to seek a warrant and questioned his veracity in citing those reasons. We find it sufficient to have opened the door for the State to introduce testimony about the facts that constituted probable cause to support the warrant. Accordingly, Appellant's Point of Error No. Eleven is overruled.
In Points of Error Nos. One and Two, Appellant claims the evidence was insufficient to allow a rational juror to conclude that the fire was of incendiary origin and that Appellant caused it. In analyzing these *702 points of error, we employ the same criminal sufficiency standards set out earlier. Appellant correctly states there is much evidence that Appellant was emotionally upset during and immediately after the fire, even attempting to reenter the house and resisting authorities' attempts to restrain her. Appellant, however, made no request for Clawson to contact authorities after Appellant knocked on the door to Clawson's house. Appellant merely wandered without direction in the yard. The jury could rationally conclude from this that Appellant was attempting to forestall the arrival of fire fighters to allow the blaze to spread, which would increase the likelihood of Richardson's death. Further, Clawson testified that she saw very little smoke come through Appellant's bedroom window when Appellant abandoned her attempt to enter the house thereby. The jury could rationally conclude from this evidence that Appellant's was a half-hearted attempt designed primarily to deflect suspicion that she was responsible for the fire. The jury could have similarly interpreted her later efforts to enter the house, all of which occurred when police and fire authorities were in positions to restrain her, and the testimony that Appellant was attired in dainty pajamas unsuitable for public display. Indeed, such an interpretation would be supported by Appellant's general belligerence toward authorities throughout the day. Further, the jury could have rationally concluded that Appellant's refusal to give a statement, a blood sample, and to consent to being photographed were a product of Appellant's concern that she was rapidly becoming the prime suspect. The jury could also have relied on Appellant's musing after arriving at the hospital that she may have only imagined Richardson awakened her and instructed her to escape through her bedroom window to conclude that she was attempting to change her explanation of events because of increased suspicion.
Appellant makes much of what one witness identified as a Class II accelerant that was found on the remnants of clothing that were recovered from Richardson's body. The clothing was tested by two different laboratories, only one of which reported the presence of accelerant. That this evidence conflicted does not mean that the jury could not choose to believe and attribute significance to one of the findings. Appellant then attempts to explain the accelerant with testimony that Richardson frequently wore grease-stained overalls that wreaked of oil even when freshly washed. Appellant further cites testimony that Richardson used a commercial solvent to remove the oil stains. Indeed, Richardson was known to be rather careless with fire, sometimes using a propane torch to light his furnace and even to roast marshmallows. Fire Marshall Salvato supported this evidence, testifying to actually watching Richardson light his furnace with a propane torch while Salvato was on the premises investigating the third fire. There was even evidence that Richardson displayed an odd fascination with the third fire, staring at its flames as if in a trance.
Appellant correctly notes that no accelerant was found on her person or her possessions. She repeatedly calls attention to the State's failure to produce or even posit the existence of the container in which the accelerant was stored or transported. She argues that Richardson's known carelessness with fire is good reason to think the fire ignited accidentally. We think Appellant's arguments on this point persuasive and well advanced. This does not, however, require that the fact finders in the instant case were in agreement with her arguments. The jury was at liberty to discount any explanatory testimony. Notwithstanding the absence of a suitable container, the jury could have rationally found that an accelerant was used to ignite the blaze and that Appellant was its source.
The jury could also have seized on Appellant's singed hair to conclude that Appellant was the ultimate source of the accelerant. The State argues that Appellant had to have been in direct contact with a flame to singe her hair. Both Clawson, who observed Appellant attempt to enter through her bedroom window, and Officer Curtis, over whom Appellant attempted to crawl while in the threshold of the house's front entrance, testified there were no flames at their positions when they occupied them, and neither witness suffered singed hair. The State argues *703 that Appellant must have contacted the flame when she first doused Richardson with accelerant and set the blaze, further theorizing that the ensuing fireball bounced off the ceiling to singe the hair on top of Appellant's head. Remarkably, the expert testimony differed over whether hair could singe without coming into direct contact with flame, the State's expert claiming that temperatures that would singe hair without flame would cause great collateral damage, including literal melting of human skin, which Appellant did not experience. Although this testimony strikes us as incredible, it is not so transparent that the jury could not rely on it. The jury could have rationally found that Appellant was the source of the accelerant because of her singed hair.
The jury could also have considered that if Appellant's proffered explanation that Richardson woke her and instructed her to escape were true, he would have returned to the living room and bypassed the fire extinguisher located in his office, which he had used the previous week in an attempt to extinguish the second fire. The jury could have further concluded that Appellant had set the second and third fires to gauge the response time of fire fighters, especially because there were no signs of forcible entry and because cash and weapons were undisturbed after each fire. The jury could have similarly interpreted the series of fires as an effort to frighten Appellant into drafting a will, which he apparently did shortly before his death. The jury might also have permissibly questioned how Appellant knew Richardson's location in the house, which knowledge she revealed when she told Officer Villesca that Richardson was in the living room.
The foregoing does not exhaustively chronicle the evidence adduced at Appellant's fiveday trial. We have attempted to analyze in a systematic fashion both the evidence that would have allowed the jury to convict Appellant and the most relevant evidence that Appellant claims vindicates her. Nearly every element of the State's concededly circumstantial evidence may be rationally and innocently explained. The jury, however, need not have believed the innocent explanations. We find the evidence was sufficient to allow the jury, in the exercise of the discretion inherent to the fact finding function entrusted to it, to conclude the fire was of incendiary origin and that Appellant was its cause. Accordingly, Appellant's Points of Error Nos. One and Two are overruled.
In Point of Error No. Twelve, Appellant claims the State impermissibly commented on her failure to testify at trial. The record affirmatively demonstrates that Appellant did not testify at her trial. During argument at the punishment stage of trial, the State's attorney stated, "I've always heard that the first step to rehabilitation is for the person who needs it ... to come forward and ask for it." (Emphasis added). Appellant objected to this argument, which objection was overruled. Appellant claims the foregoing was a comment on her failure to testify and violated rights guaranteed her by Article I, Section 10, of the Texas Constitution and Article 38.08 of the Texas Code of Criminal Procedure. We agree.
It is axiomatic that the State's attorney may not allude to or comment upon a defendant's failure to testify. Tex.Code CRIM.PROC.ANN. art. 38.08 (Vernon 1979). For such a comment to be considered a violation, the complained of language must be manifestly intended or of such a character that the jury would naturally and necessarily take it to be a comment on the defendant's failure to testify. Lopez v. State, 793 S.W.2d 738 (Tex.App.Austin 1990), pet. dism'd, 810 S.W.2d 401 (Tex.Crim.App.1991).
The State attempts to trivialize the comment by pointing out that it did not identify Appellant by name. The State then advances its explanation that the comment could have referred to other witnesses, who themselves may have noted Appellant's need for rehabilitation. But these ostensible witnesses had not been convicted of murder. Moreover, other witnesses' failures to opine that Appellant needed rehabilitation are irrelevant to an assessment of the punishment appropriate for Appellant's crime, which was the issue at the punishment stage of the trial. Appellant is the only plausible person who might be expected to ask for rehabilitation. We find that the comment quite clearly identified Appellant as its object and that the *704 trial court erred when it overruled Appellant's objection to it.
We must next determine if the error was harmful pursuant to Texas Rule of Appellate Procedure 81(b)(2), which provides that a cause will not be reversed if we determine beyond a reasonable doubt that the error made no contribution to the punishment. In making this assessment, we do not focus on the weight of the other evidence of guilt, but on whether the error might have prejudiced the jurors' decision-making and whether the error was of a magnitude that it disrupted the jurors' orderly evaluation of the evidence. Harris v. State, 790 S.W.2d 568, 587-88 (Tex.Crim.App.1989). Further, we examine the source of the error, the extent to which it was emphasized by the State, and the probable collateral implications. Id. at 587. We must also determine whether declaring the error harmless would encourage the State to commit the error again with impunity. Id.
The argument violated a mandatory statute and was of constitutional dimension. The State argues that harm was minimized by the abandonment of the argument immediately after Appellant's objection was overruled. The harm, by then, was complete. The State had then already encouraged the jury to consider the exercise of Appellant's right not to testify as evidence of the need for greater punishment, precisely the species of argument that Section 38.08 of the Texas Code of Criminal Procedure was intended to prevent. We note that even if Appellant's objection had been sustained and the jury instructed to disregard the comment, the adverse effect of prosecutorial comment on an accused's failure to testify is not generally cured by an instruction to disregard. Lopez v. State, 793 S.W.2d at 741. Absent even the inadequate measure of an instruction to disregard, we cannot conclude beyond a reasonable doubt that the error made no contribution to the punishment. Accordingly, we sustain Appellant's Point of Error No. Twelve.
Having overruled Points of Error Nos. One through Eleven, and further having sustained Point of Error No. Twelve, we reverse the portion of the trial court's judgment that assesses punishment, affirm the remainder of the judgment, and remand the cause to the trial court for new sentencing proceedings.
KOEHLER, J., not participating.
NOTES
[1]  In her Points of Error Nos. Thirteenth through Fifteen, Appellant complains of the trial court's affirmative finding that Appellant used a deadly weapon. The State concedes that these points are sound, flatly stating there is no record evidence to support such a finding and that it did not allege use of a deadly weapon. These claims are now moot, however, because a modified judgment that corrected the errors was entered after trial. Accordingly, we need not address them.
[2]  In its time, Powell was a relatively novel development, at least outside the context of the Fifth Amendment right not to testify against oneself, and various Courts of Appeals thereafter received Powell with considerable, if not altogether uniform, enthusiasm, see Winn v. State, 871 S.W.2d 756 (Tex.App.Corpus Christi 1993, no pet.) (following Powell with respect to right to be free from unreasonable search); Ex parte Owens, 860 S.W.2d 727 (Tex.App.Austin 1993, pet. ref'd) (agreeing with Powell rule with respect to right to be free from unreasonable search but refusing to find that prevailing professional norms require awareness of it), cert. denied, ___ U.S. ____, 114 S.Ct. 2162, 128 L.Ed.2d 885 (1994); Hardie v. State, 787 S.W.2d 89 (Tex.App.Dallas 1990) (following Powell with respect to right to counsel), aff'd, 807 S.W.2d 319 (Tex.Crim.App.1991); Quesada v. State, 751 S.W.2d 309 (Tex.App.San Antonio 1988, no pet.) (noting Powell as "some authority" for principle that exercise of constitutional rights may not be used as evidence of guilt).

The Court of Criminal Appeals has since affirmed the correctness of Powell. See Hardie v. State, 807 S.W.2d 319 (Tex.Crim.App.1991). In Hardie, the Court held that a defendant's invocation of her right to counsel may not be used as evidence of her guilt. Id. The Court went on to broaden Powell to constitutional rights generally, holding that the rule applies even to erroneously granted rights because it would be anomalous to tell a defendant that she has a right and then use her exercise of that right against her. Id. at 322.
Significantly, Hardie, like Powell before it, does not purport to address whether the admission or use of evidence of a defendant's exercise of a constitutional right constitutes fundamental error. Thus, our disposition of the issue raised by Appellant's fourth through seventh points of error attempts to neither broaden nor restrict those decisions, and we hold only that the particular errors of which Appellant complains are not fundamental. We note, however, that the Court of Criminal Appeals has held that a similar error, albeit one not claimed to be fundamental, could not be raised for the first time on appeal. See Rezac v. State, 782 S.W.2d at 871.


798 F.2d 1419
*/**U.S.v.Baker
86-8145
United States Court of Appeals,Eleventh Circuit.
8/4/86

1
S.D.Ga.

AFFIRMED

*
 Fed.R.App.P. 34(a);  11th Cir.R. 23

**
 Local Rule:  25 case


136 Cal.App.2d 490 (1955)
LYGIA S. JONES et al., Appellants,
v.
NORA E. STUBBS, as Trustee, etc., Respondent.
Civ. No. 8568.
California Court of Appeals. Third Dist.
Oct. 24, 1955.
 H. G. Crawford and Phil N. Crawford for Appellants.
 Aaron Turner, John Felton Turner, Lovett K. Fraser and Bruce B. Bruchler for Respondent.
 SCHOTTKY, J.
 Plaintiffs and appellants, the three surviving daughters of John L. Stubbs--a fourth daughter was deceased--commenced an equitable action against defendant and respondent, Nora E. Stubbs, who was his widow and the trustee of the trust created by him. In said action plaintiffs sought an accounting of the trust, removal of the trustee, an accounting of the affairs of the corporation owned by the trust, and an adjudication of the amount of the personal liability of the trustee. The four daughters and the widow were beneficiaries of the income under the trust and the daughters were the remaindermen. Following a trial the court found that the trustee had fully accounted to the beneficiaries and that there was no cause for her removal as trustee, and *491 judgment was entered in favor of defendant that plaintiffs take nothing and defendant recover costs, and that defendant pay a $2,500 attorney's fee from the trust estate.
 Plaintiffs have appealed from the judgment and their principal contention is that the "trustee violated her trust duties in five major instances during the five years of her stewardship, indicating by all violations that she is disrespectfully and wholly ignorant of the duty of strict compliance with legal procedures her trust and the law impose on her and therefore should be removed as trustee."
 Before discussing the contentions of appellants we shall summarize the evidence as shown by the record.
 In 1938, by written agreement with his wife, defendant here, John L. Stubbs created a revocable trust with his wife as trustee to whom he conveyed 500 shares of stock of Stubbs Company, Ltd. These shares of stock constituted most of the estate of Mr. Stubbs and were his separate property. He left a will by which defendant was appointed executrix, but no property was disposed of.
 By way of recitals in the trust instrument, the following was set forth: Stubbs was the sole owner of all issued and outstanding stock of the corporation, having bought out the interest of a brother. The corporation had been formed and wholly owned by this brother and trustor to acquire certain lands belonging to the two of them, and to sell and liquidate same by subdividing and selling and thus reducing the assets of the corporation to cash. The sole and continuous aim of the corporation always had been such that, when complete, the assets originally in land would be reduced to cash and distributed to the stockholders, both as to principal and profit; there was never a purpose to continue in business with the proceeds of the sale of the land. Shortly before execution of the trust instrument the corporation had contracted to employ trustor as manager for life and, after his death, trustee surviving, to employ trustee at a salary of $150 per month as manager, for life. The employment contract would provide the trustor's widow with an income of $150 per month for life, and the trust would further insure and protect this purpose.
 The terms of the trust were as follows: For his lifetime the trustor was to receive the net income from the trust. Upon his death trustee was authorized to pay to herself for life up to $150 per month, less any compensation received from the corporation, and the excess of income to the trust over *492 and above monthly payments to trustee was to be distributed in equal shares to the trustor's widow and his four daughters (by a previous marriage), with the right of representation to children of a deceased daughter. Upon death of both trustor and trustee, the trust estate was to be divided among the four daughters in equal shares or their issue by representation. Trustee was "vested with sole discretion and power to determine, for any and all purposes of this trust, what shall constitute principal of the trust estate, gross income therefrom, and net income available for distribution under the terms of this trust," and trustee was given the power to have, hold, manage and control the trust estate as in her judgment and discretion seemed best. Provision was made to pay his expenses of last illness and funeral from the trust if his estate was insufficient.
 On April 26, 1946, trustor John L. Stubbs died, and during his lifetime the trust had never been revoked or modified. In March of 1951 one of the beneficiaries, Colleen Born, died, but the court specifically said it made no finding as to the succession to her interest because it was immaterial to the action as presented. Trustee-widow Nora E. Stubbs was appointed executrix of his estate and her letters are still in force. She was immediately appointed manager of the corporation, and also she was apparently already a director of the corporation, in both of which capacities she continued until dissolution of the corporation in 1950. On December 28, 1946, the corporation, on the initiative of Mrs. Stubbs, ordered $21,000 income held by the corporation transferred to the estate of Mr. Stubbs as accrued net income at the time of his death and payable to him under the trust. But it was shown that of this $21,000, $5,000 was first transferred on July 29, 1946, and $16,000 was transferred on December 31, 1946. This was done on the advice of Mrs. Stubbs' attorney, Mr. Fraser, who was attorney for the corporation and for the estate. It was also done because of the written opinion of an inheritance tax attorney with the State Controller's office that this $21,000 constituted part of the estate of the decedent. This opinion was given in November, 1946, but on March 12, 1947, this same attorney gave a different view, to wit: the $21,000 was an asset of the corporation and not part of the probate estate. Thereupon, but not until July 3, 1947, Mrs. Stubbs transferred the $21,000 back to the corporation, and on July 9, 1947, the corporation declared it a dividend, it was paid to the trust, and Mrs. Stubbs distributed it to the beneficiaries. *493
 In December, 1950, in order to save future corporation taxes, a saving estimated to be some $50,000 to $75,000, trustee as sole stockholder consented to the dissolution of the corporation, and in exchange for transfer to her of all corporate assets surrendered the capital stock. In December, 1950, the corporation dissolution was accomplished and trustee held all the assets. This resulted in litigation filed February 28, 1951, Stubbs v. Jones (3 Civ. 8293; 1953), 121 Cal.App.2d 218 [263 P.2d 100], an action for declaratory relief in which trustee sought permission to sell land, in which this court held that dissolution of the corporation was effected by full compliance with the statutory requirements therefor, and that after all assets of the corporation had been transferred to her the trustee had the power and duty to carry out the purposes of the trust by selling the lands and placing the proceeds in the trust estate, in the same fashion as the corporation before had sold the lands held by it and distributed the proceeds to the trust as stockholder. The court did not pass on the question of whether the dissolution of the corporation was in violation of the trust since that issue was not before it. This dissolution had been done with the consent of beneficiaries Born and Campbell, but without the consent of the other two daughters.
 On July 23, 1947, the board of directors of the corporation passed a resolution authorizing the transfer of two lots held by the corporation to Mrs. Stubbs. She was then the president, a member of the board of directors and manager of the corporation, but she did not vote on this resolution, although she presided at the meeting. A similar sale to another director, Hazel Pluth, was also authorized at this time. There was evidence to show that this sale to Mrs. Stubbs was pursuant to a contract entered into by her after Mr. Stubbs' death. There was also evidence that the considerations for these sales were fair and adequate and based upon listings and prices prepared by Mr. Stubbs before he died.
 Mrs. Stubbs as trustee received very substantial sums of money in 1946, 1947, 1948 and 1949. She filed no federal fiduciary income tax returns from date of Mr. Stubbs' death through 1951 and filed no state fiduciary returns for 1946, 1947 and 1948. A state return was filed for 1949. No claim for taxes, interest or penalties was made by the federal or state governments, but there was considerable correspondence about the subject, and a demand for a state return was made by letter. The trustee's excuse for failure to file was that it *494 could not be, and had not yet been, determined what was taxable profit, if any, and her attorneys had conferred with state tax officials on the matter without coming to any conclusion.
 Mrs. Stubbs, as trustee, had no books of account and she never furnished the beneficiaries with any statement of the receipts and disbursements of the trust. The corporation had an accountant who kept its account books from information furnished him by the secretary of the corporation. To various requests from the beneficiaries for information about the trust, reference was made to the accountant, who was instructed to have the books available and to allow the beneficiaries to examine them. In January, 1952, plaintiffs' auditor examined the corporation books. Apparently the opportunity to examine these corporate books was never refused, and once a year, 1946 through 1950, some form of statement or balance sheet was mailed to each beneficiary. These did not appear, however, to be very complete. Plaintiffs point out that Mrs. Stubbs indicated she was not capable of giving book information, when asked for same, but always made reference to the accountant. Plaintiffs further point out that the payments made by defendant for federal estate and state inheritance taxes, made for the benefit of the trust, were shown on the books as a transfer from the corporate funds to the estate funds and then from the estate to the tax collector. One payment of such taxes was made from the corporation to the tax collector directly. Plaintiff Lygia Jones, one of the daughters, testified she had asked Mrs. Stubbs as to the fee paid to one McFarland, a tax attorney in San Francisco, hired in connection with the dissolution of the corporation, but had never had an answer. She further testified that when she asked why further distributions from the trust were not being made, Mrs. Stubbs referred her to her attorney and he in turn said it was Mrs. Stubbs who ran things.
 When, in April, 1946, defendant became corporation manager, the corporate balance sheet (Def. Ex. F) contained an account receivable for Clearlake Oaks Water Company of $5,393.06, and by December 28, 1950, the corporate balance sheet showed this to be $8,628.75. (Def. Ex. J.) The court in its memorandum of opinion commented on the paucity of evidence in this connection and suggested the trustee petition for instructions in regard to these advancements to the water company. There was no evidence to indicate any business reason for these advancements.
 Trial was in July, 1952, at which time defendant testified there was then about $32,000 in cash in the trust. The last *495 distribution was made in 1949, leaving a balance after such distribution of about $16,000 in the corporation according to the balance sheet. (Def. Ex. J.) Similar evidence showed a trust cash balance of about $30,000 for 1950 for the corporation, and about $36,000 by the end of 1951. Shortly before March, 1951, plaintiff Beryle Milford borrowed $1,000 on a 6 per cent note from defendant as trustee, and shortly thereafter plaintiff Lygia Stubbs borrowed $500 on a 6 per cent note from defendant as trustee. There were also other notes receivable shown on the balance sheets of the corporation. But there is no other evidence in the record, by way of either testimony or exhibits, to show investment of the cash funds in the trust for the several years mentioned since 1949 or their use in trust business.
 On March 27, 1947, the corporation declared a dividend of $35,000, which was immediately transferred to the estate account of Nora E. Stubbs, and from this, $33,000 was, on the same day, paid to the Federal Collector of Internal Revenue for estate taxes on the estate of John L. Stubbs. The $2,000 balance was transferred to the account of defendant as trustee on June 25, 1951. Defendant, when this $35,000 was first transferred, did so on advice of her attorney and thought at the time that $33,000 might pay the tax in full. No interest was drawn by the $2,000 while in the estate account.
 Prior to the year 1949 the corporation, as part of its orchard operations, owned and operated a huller and dryer for walnuts and almonds, and had rented out its facilities to outsiders as well as using same for its own operations. Defendant testified that after 1947 she stopped this renting practice because the corporation needed all facilities for processing and storing its own crop of prunes, previous renting had caused part of the corporation's fruit to be sent outside to be processed, and this resulted in unnecessary expense. Plaintiffs put in contrary testimony by the former manager of the corporation's orchard operations, Jack Milford, husband of plaintiff Beryle Milford, and by the latter herself, that only a lack of storage space caused sending of the prune crop outside, the hulling and drying shed being used as makeshift storage, but that renting the facilities for hulling and drying almonds and walnuts did not interfere with the corporation's own operations because the nut crops were processed before the prune harvest, and that such renting was profitable to the corporation. He said further that except for 1947, from 1944 to 1948 the corporation handled all of its own fruit and nut crops. *496
 Minutes of the corporation of August 22, 1948, show a report by defendant of an altercation with plaintiff Beryle Milford and direction to the corporation attorney to write and notify her to remain away from the corporation office, and also direction to the attorney to write Mrs. Milford's husband concerning this matter and also concerning business matters in a manner critical of his work as manager of the corporation's orchard operations. As a result of this altercation defendant swore to a battery complaint against plaintiff Milford which was filed in a local justice's court.
 Appellants first contend that the "trustee violated her trust by voluntarily assuming a position antagonistic to her trust when she transferred $21,000 from her trust estate to herself as Executrix of the Estate of John L. Stubbs and should be held liable for legal interest on said money during the period of transfer." As hereinbefore set forth, respondent trustee in the transfer of said money relied upon the advice of her counsel and also upon the opinion of a state inheritance tax attorney. The trial court found that she was acting in good faith, stating in its memorandum opinion: "I find myself unable to hold Mrs. Stubbs responsible for transferring this money from the corporation to the Stubbs estate under the circumstances. I must hold, and do hold, that she was entitled to rely upon the advice of her attorney, buttressed as it was by the opinion of other experts, including the comptroller's office itself."
 Appellants contend also that "by failing to file fiduciary income tax returns for all years but one during which respondent acted as trustee, she violated her duty of strict compliance with tax regulations causing loss to the trust estate." The trial court found against appellants' allegations that respondent's failure to file these returns would result in loss to the trust estate, the memorandum opinion stating: "The evidence discloses that she did not file returns for 1946, 1947, or 1948 in time, but it does not appear from any evidence produced that any interest or penalties have been assessed or will be assessed for such failure. It is not without the realms of possibility that negotiations are being had with the State and Federal Governments, which conclusion is readily inferable from the evidence; and it is furthermore not without the pale of reasonable conclusion that a saving will result through the corporation and trust by reason of such negotiations."
 Appellants contend further that the "trustee violated her trust duty to obey declarations of the trust and fulfill the purpose of the trust when she voluntarily dissolved the corporation *497 without consent of all the beneficiaries." As hereinbefore set forth, the object of respondent in moving to dissolve the corporation was to save a large amount of corporation taxes, and the court found that the respondent in good faith believed that she had the consent of appellants to the dissolution of the corporation and that such dissolution would effect a tax saving of from $50,000 to $75,000, and further found that respondent trustee brought the action for declaratory relief solely for the purpose of determining her rights and duties as trustee. In that action the trial court held that the dissolution of the corporation was void and of no effect, but upon appeal this court held (Stubbs v. Jones, 121 Cal.App.2d 218 [263 P.2d 100]), that the dissolution of the corporation had been accomplished. Our decision came after the trial of the instant case and after the findings were filed in which the trial court, in conformity with the decision of the superior court in the declaratory relief action, found that the dissolution of the corporation was of no effect. In view of our decision in the declaratory relief action the dissolution of the corporation and the cancellation of the stock must be considered valid. [1] Appellants argue that the trial court erred in finding that respondent was acting in good faith and for the benefit of the trust in dissolving the corporation, but we believe that that issue was one of fact for the court to determine. As stated by the court in its memorandum opinion: "In addition thereto the evidence stands uncontradicted that in taking said action the beneficiaries would have been saved some fifty thousand or seventy-five thousand dollars in taxes. Such proposition, of course, cannot be overlooked in determining whether she was or was not acting in good faith."
 Appellants' next contention is that the "trustee's failure to keep separate books of account for the trust, and her failure to account to her beneficiaries at reasonable times, caused beneficiaries to file a law suit to get an accounting from trustee causing loss to the trust and the beneficiaries for which trustee should be removed." The court found that the allegations in appellants' complaint that respondent had never accounted to appellants for all receipts and disbursements of the trust were untrue, and found further that as such trustee:
 "... she has received One Hundred Eight Thousand, One Hundred Thirty- one and 16/100 Dollars ($108,131.16) and has disbursed One Hundred Eight Thousand, One Hundred Thirty-one and 16/100 Dollars ($108,131.16) and that she has *498 not profited one penny from any of her transactions as such Trustee."
 "That the defendant, as such Trustee, has at all times kept complete and correct records of said Trust and of said corporation, Stubbs Company, Ltd., and of all her transactions as such Trustee; that the plaintiffs and said Colleen Born, who is mentioned in Paragraph VI of the complaint, have at all times had the right to inspect said books and records and said books and records have, in fact, been fully inspected and audited by an auditor selected by the said plaintiffs and have been and still are open for inspection and audit by said plaintiffs at all reasonable times."
 While it is no doubt true that the manner of keeping the books of the corporation and of the trustee could be improved upon, we cannot say upon the record here that the evidence upon that issue compels a finding that the trustee should be removed. We think it was for the trial court to determine whether or not there had been a sufficient accounting by respondent trustee. The view of the trial court on this phase of the matter is well expressed in its memorandum opinion as follows: "... while an accounting is not being ordered in this case by reason of the fact that the plaintiffs have full access to the books of the corporation and the trust, nevertheless, I doubt not that Mrs. Stubbs, being the sensible woman she appears to be, will not hereafter let herself open to litigation arising out of any claim that she has not fully and properly rendered accounts of her stewardship to the other interested parties."
 Appellants contend that the "trustee violated her trust duty not to sell to herself or her agents any of the trust property without the consent of the beneficiaries when she and her agent purchased lots from the corporation."
 As hereinbefore stated, a sale of two lots owned by the corporation was made to respondent not long after the death of Mr. Stubbs, the trustor. This sale was authorized by the directors but respondent did not vote on the resolution authorizing the sale. There was evidence that the price paid for the lots was fair and adequate and based upon listings and prices prepared by the trustor before his death. In view of the close connection between the corporation and the trust, it is no doubt true that the sale was improper, but we believe that it was a matter to be determined by the trial court whether or not the transaction in question was such as to require the removal of the trustee. *499
 Appellants contend further that "The evidence indicates continued hostility between trustee and her beneficiaries which has influenced decisions of trustee and caused trustee to continually disregard her duties to properly account to her beneficiaries." As to this issue the court stated in its memorandum opinion: "The next allegation is that there exists hostility and ill feeling between Nora E. Stubbs and plaintiffs and she has been and will be controlled by such hostility. The answer denies such hostility or that she will be controlled by such. The evidence discloses no particular evidence of hostility except as to Beryle Stubbs Milford and that was an incident which occurred four years ago. There is no evidence of any present hostility nor that such hostility controlled her action to the detriment of plaintiffs. In any event, her rights and responsibilities are definitely fixed by the trust agreement so far as any benefits to her are concerned." We are satisfied that the record supports the court's finding that appellants' allegations of hostility are untrue.
 Appellants contend also that "All of the breaches of trust by trustee indicate lack of skill and business acumen and have become so numerous that trustee should be removed." The trial court found against appellants' allegation that respondent trustee did not have the necessary business skill and acumen to conduct the business of the trust and of the corporation. The court stated in its memorandum opinion: "In my opinion these allegations of the complaint have not been proved. Mrs. Stubbs appears to be a highly intelligent woman with a remarkable memory for details. True, as a business woman, she probably has made mistakes, and errors of judgment, but who can that not be said of, whether it be business man or business woman? I can see no such serious errors of judgment that would justify removing her as trustee." The record supports both the statement and the finding of the trial court.
 Appellants contend finally that even though each alleged separate breach of trust may not be sufficient ground for removal of the respondent trustee, "the entire history of respondent's activities as trustee, considered as a whole, offers more than sufficient grounds for removal." In support of such contention appellants set forth well-settled rules dealing with the obligations and duties of trustees. They quote from the case of Overell v. Overell, 78 Cal.App. 251, where the court said at page 256 [248 P. 310]:
 "In all matters connected with his trust a trustee is bound *500 to act in the highest good faith toward his beneficiary and may not obtain any advantage therein over the latter by the slightest misrepresentation, concealment, threat, or adverse pressure of any kind. (Civ. Code,  2228.) As long as the confidential relation lasts the trustee or other fiduciary owes an undivided duty to his beneficiary, and cannot place himself in any other position which would subject him to conflicting duties, or expose him to the temptation of acting contrary to the best interests of his original cestui que trust. This prohibition operates irrespective of the good faith or bad faith of such dealing. (3 Pomeroy Equity Jurisprudence,  1077.)"
 Appellants also quote the following from Moore v. Bowes, 8 Cal.2d 162, at page 165 [64 P.2d 423]:
 "... Trustees are subject to removal whenever, as here, it appears that their private interests conflict with their trust duties, and when it also appears, as here, that trust property has been appropriated to their own use, whether or not they purported to act honestly under an assumption that they would become entitled to it and the money was returned when the contrary proved to be the fact. The purpose of removal is not the infliction of a penalty for past behavior, but is the preservation of the trust property. (Overell v. Overell, 78 Cal.App. 251, 257 [248 P. 310]; Barbour v. Weld, 201 Mass. 513 [87 N.E. 909]; 3 Bogert on Trusts and Trustees, (1935 ed.) p. 1672.)"
 There can be no doubt as to the soundness of the legal principles enunciated in the above cited cases. However, it must be borne in mind that in each of those cases the trial court had made an order removing the trustee, and the appeal was from said order, whereas in the instant case the appeal is from an order refusing to remove the trustee. If the court had ordered the removal of respondent trustee we are satisfied that there is sufficient evidence in the record to support such an order. [2] But the court did not find in accordance with appellants' allegations, and the question with which we are confronted upon the appeal is: Can it be held upon the record before us that the court abused its discretion in refusing to remove the respondent trustee?
 As stated in Estate of Brown, 22 Cal.App.2d 480, at page 485 [71 P.2d 345]:
 "The appellants rely particularly on the case of Overell v. Overell, 78 Cal.App. 251 [248 P. 310], and cases therein cited. It is well settled by that case, and many others, that a trustee must act in the highest good faith toward his beneficiary *501 and must not occupy a position where his interests conflict with those of the beneficiary or where he is exposed to the temptation of acting contrary to the best interests of the beneficiary. In that case the removal of a single trustee was approved where he had used certain corporation stock, being the corpus of the trust estate, to control that corporation and where in important respects he had used the control thus secured for his own interest and against the interest of the beneficiary. Not only are the facts of that case considerably different from those with which we are now concerned, but a number of other considerations are here involved. An original appointment is here attacked and not a removal, a number of things require consideration in determining whether conflicting interests appear, the appointment does not carry control of the trust estate, and the appointment was desired by the testator with a full knowledge of all of the essential facts. A court has a large discretion in such matters and the real question is not whether the court would have been justified in refusing to make these appointments, but is whether a disqualification so clearly appears that it must be said that the court abused its discretion."
 "In Cowen's Estate, 148 Misc. 35 [265 N.Y.S. 40], the court says: 'Petitioner contends that by reason of such facts and of the possibilities involved, the personal interest of the respondents is so inherently antagonistic to their duties as trustees as to render them removable under the doctrine of Pyle v. Pyle, 137 App.Div. 568 [122 N.Y.S. 256], and other cases cited by the petitioner under this head. The rule of these cases does not apply. The position in which these respondents are now found is the position in which they were placed by the testator himself.'"
 "In Bailey's Estate, 306 Pa. 344 [159 A. 549], the court said: 'It is a serious matter to dismiss trustees appointed by will; much more should be shown by those who wish them dismissed than would be the case where the trustees are appointed by the court.'"
 "In Restatement of the Law on Trusts, section 107, it is said: 'The court will less readily remove a trustee named by the settlor than a trustee appointed by the court or by a third person who is by the terms of the trust authorized to appoint a trustee.' "
 And as stated in Estate of Keyston, 102 Cal.App.2d 223, at page 227 [227 P.2d 17]:
 "A trustee is bound to act in the highest good faith toward *502 his beneficiary (Churchill v. Peters, 57 Cal.App.2d 521, 531 [134 P.2d 841]), and the question as to whether he does so act is one of fact for the trial court. A trustee may be removed when it appears that his private interests conflict with his trust duties. (Moore v. Bowes, 8 Cal.2d 162, 165 [64 P.2d 423].) Whether a trustee should be removed, however, is a matter within the sound discretion of the trial court and is ' "dependent upon the circumstances of each particular case." ' (Estate of Brown, 22 Cal.App.2d 480, 486 [71 P.2d 345].)"
 The trial of the instant case occupied four days and the reporter's transcript contains 400 pages. In addition, there were numerous exhibits. It is apparent from the able and exhaustive memorandum opinion filed by the trial court that the court gave careful consideration to the matter. The court no doubt attached considerable weight to the fact that Mr. Stubbs, the trustor, appointed respondent trustee, the court stating:
 "In the first place, it is clear that Mr. Stubbs wanted his widow to be manager of the corporation and trustee of the trust and to have her $150.00 a month, plus her 1/5th of the dividends, secured to her. His wishes should be respected and upheld, if reasonably possible."
 We believe that under the facts and circumstances as shown by the record the court was justified in concluding, as it did conclude, that respondent trustee had not acted in a manner detrimental to the trust or to the beneficiaries, that in the language of the court, "she has not received one penny, in all these proceedings, that she was not entitled to"; and that "conceding Mrs. Stubbs may have erred at times, I think on the whole she has done a pretty good job as trustee of this trust." It was for the trial court to weigh the testimony of the witnesses, and to determine as a court of equity whether the acts of respondent trustee were such as to require her removal as trustee. The court concluded that respondent had acted in good faith, that she was endeavoring to carry out the wishes of her deceased husband, the trustor, and that none of her acts was of a nature as to justify, much less require, the court to disregard the express desire of the trustor that she should be the trustee of trust. We believe that the record supports the conclusions of the trial court as expressed in its findings and judgment.
 The judgment is affirmed.
 Van Dyke, P. J., and Peek, J., concurred.


867 N.E.2d 285 (2007)
IN RE ADOPTION OF T.S.N.
No. 47A05-0701-CV-38.
Court of Appeals of Indiana.
May 21, 2007.
MATHIAS, J.
Unpublished memorandum decision. Affirmed.
DARDEN, J. Concurs.
KIRSCH, J. Concurs.


535 U.S. 1042
LEATHv.UNITED STATES.
No. 01-9348.
Supreme Court of the United States.
April 29, 2002.

1
C. A. 4th Cir. Certiorari denied. Reported below: 18 Fed. Appx. 195.


718 So.2d 73 (1998)
Gerald GOLDEN
v.
ALABAMA STATE TENURE COMMISSION.
2970329.
Court of Civil Appeals of Alabama.
July 10, 1998.
William F. Patty of Beers, Anderson, Jackson, Hughes & Patty, P.C., Montgomery, for appellant.
William J. Samford II, general counsel, Department of Youth Services, for appellee.
BEATTY, Retired Justice.
Gerald Golden, a tenured teacher, was the instructor for the automotive and small engine repair program at the McNeel School in the Alabama Department of Youth Services (DYS) school district.
On September 27, 1996, the Board of Education of the DYS school district met. During its meeting the Board voted to adopt the superintendent of education's recommendation to discontinue the automotive and small engine repair program at the McNeel School and to cancel Golden's contract on the grounds of "other good and just cause." In a letter dated October 7, 1996, the Board notified Golden of its proposal "to cancel [his] employment contract on the statutory grounds of other good and just cause." The letter, which also notified Golden of his right to a hearing, stated:
"The specific reasons supporting the grounds are as follows:
"1. McNeel Recommendation No. 7 from the Comprehensive Study of the Academic and Vocational Programs of the [DYS] School District stated, `The vocational staff at the McNeel School should, with the consultative services from the State Department of Education, develop and adopt a sequenced course of study for exploratory vocational courses such as technology education, home and personal management, keyboarding/computer literacy, and general agri-business.'
"2. McNeel Recommendation No. 8 from the Comprehensive Study of the Academic and Vocational Programs of the [DYS] School District stated, `Students at the McNeel School who are not ready for vocational training (generally, ages 12-14) should be provided additional academic, social, and life skills training as well as prevocational exploratory experiences.'.
"3. The number of age appropriate students for automotive and small engine repair at McNeel School dropped as shown by the February 1996 through September 1996 population reports. Board approval has been given for discontinuing the automotive and small engine repair class at the McNeel School."
Golden gave notice of his intent to contest the cancellation of his employment contract. On November 1, 1996, the Board held a hearing to consider whether to uphold the superintendent's recommendation that Golden's contract be cancelled.
*74 At this hearing the only evidence presented were the minutes of the September 27, 1996 Board meeting; the October 7, 1996, letter notifying Golden of the Board's proposal to cancel his contract; and Golden's October 10, 1996, letter requesting a hearing on proposed cancellation of his contract. The only witness at the hearing was the superintendent, who testified that the automotive position at McNeel School has been discontinued.
The Board voted to uphold the superintendent's recommendation to cancel Golden's contract, and it notified Golden of its decision by letter dated November 4, 1996.
Golden appealed to the Alabama State Tenure Commission. The Commission upheld the Board's decision, finding "that the action taken by the Board was in accordance with the tenure law and was neither arbitrarily unjust nor for personal or political reasons." Golden filed with the circuit court a petition for a writ of mandamus, which was denied. Golden appeals to this court.
In Alabama State Tenure Comm'n v. Mountain Brook Bd. of Educ., 343 So.2d 522, 525 (Ala.1976), our supreme court stated:
"[T]he trial court's right to review the decision of the [Commission] is limited to a determination of whether the Commission's action was made in compliance with the requirements of the law governing teacher tenure, and whether the action was unjust."
Our supreme court also stated that if there was sufficient evidence before the Commission to support its conclusion, then the trial court must affirm the Commission's decision as "not unjust."
In Ex parte Alabama State Tenure Comm'n, 595 So.2d 479, 481-82 (Ala.1991), our supreme court stated:
"We have consistently held that the purpose of the tenure statute is to promote stability in employment and to prevent a board from discharging a tenured teacher instead of a nontenured teacher:
"`It is well established that the Teacher Tenure Act has as its primary purpose the securing of permanency in the teaching force and that it is remedial in nature and is therefore to be liberally construed in favor of the teacher.'
"Jones was qualified to teach courses other than driver's education. The burden was upon the Board to show that it did not place nontenured teachers in the same fields as the discharged teacher was qualified to teach in."
(Citations omitted) (emphasis added).
In the present case the Board demonstrated that it discontinued the automotive and small engine repair program and that it cancelled Golden's contract because he was the instructor in the program. However, the Board failed to meet its burden of showing that it had not placed nontenured teachers in the same fields as those in which Golden was qualified to teach. Ex parte Alabama State Tenure Comm'n, 595 So.2d 479. Consequently, the trial court's judgment is due to be reversed and the cause remanded for proceedings consistent with this opinion.
The foregoing opinion was prepared by Sam A. Beatty, Retired Justice, Supreme Court of Alabama, while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Ala.Code 1975.
REVERSED AND REMANDED.
All the judges concur.