author: MEYERS, J.,

text:
    Gerry Don McKINNEY, Appellant, v. The STATE of Texas.
    No. PD-1508-04.
    Court of Criminal Appeals of Texas.
    Nov. 16, 2005.

      Ebb B. Mobley, Longview, for Appellant.
    Ray Bowman, Asst. District Atty., Long-view, Matthew Paul, State’s Atty., Austin, for State.
   MEYERS, J.,

delivered the opinion for a unanimous Court.

Appellant Gerry Don McKinney was convicted of murder and the jury assessed a sentence of 40 years’ confinement in the Texas Department. of Criminal Justice— Institutional Division and a $10,000 fíne. On appeal, Appellant argued that the trial court erred in failing to include an instruction regarding sudden passion in the jury charge. The Twelfth Court of Appeals held that the trial court did not err in refusing to submit a charge on sudden passion to the jury during the punishment phase of the trial and affirmed the trial court’s judgment. McKinney v. State, No. 12-03-00155-CR, 2004 WL 1852975, 2004 Tex.App. LEXIS 7472 (Tex.App.-Tyler August 18, 2004) (not designated for publication). We will affirm.

I. Facts

On August 13, 2002, Appellant and the victim, Appellant’s 19-year-old son, Jeremy, spent the evening doing yard work and drinking beer. Later that night, Jeremy left home to go to his friend’s house. His best friend, Jessie Elliott, testified that Jeremy had dropped by his house several times throughout that evening. At approximately two o’clock in the morning on August 14, 2002, Jeremy called his girlfriend, Samantha Garner, and told her that he was too drunk to drive home, so Garner and Appellant went to look for Jeremy to bring him home. When they did not find him at Elliott’s house, Garner and Appellant continued looking for Jeremy and found both Jeremy and Elliot in the parking lot of a convenience store.

While at the convenience store, Appellant and Jeremy began to argue. Appellant testified that the argument stemmed from issues commonly dealt with when raising teenage boys, and that he was concerned because Jeremy was intoxicated and had a hot temper. He stated that during the argument, he was upset but not “out of control mad.” Appellant demanded that Jeremy return home with him. Appellant and Jeremy left in one car, and Garner and Elliott followed in another. Two blocks away from their home, Jeremy demanded to be let out of the car, and Appellant allowed him to walk the rest of the distance home.

Appellant testified that while he was at the house waiting for Jeremy, he sat at his desk for a short period of time and then, because he was worried about his son going back to the convenience store and putting himself in danger, he put his gun in his pocket and headed for the door. At that same time, Jeremy was entering the house. Both Jeremy and Appellant were intpxicated.

When Jeremy entered the house, he immediately went toward Appellant, jumped on him and started pushing and shoving him, telling him to mind his own business. Elliott and Garner tried to pull Appellant and Jeremy apart, but the scuffle continued for several minutes. When Appellant got away from Jeremy, he headed toward his room while Garner tried to hold Jeremy back. Appellant stated that he was taking the gun to his room “to just get it out — get it away from the situation.” When asked why he would pull the gun out of his pocket at that particular moment, while he was fighting with his son, he testified that the gun was so heavy that it was causing his shorts to fall down during the scuffle, so when he got away from Jeremy, he took the gun out of his pocket and was going to his room to put it away.

Appellant details two versions of what took place immediately before the shooting. In the first version, Appellant testified that he thought that “the sight of the gun would scare him enough to leave me alone.” When he took the gun out of his pocket, he aimed up and then shot. However, Jeremy stepped in front of him as soon as he pulled the trigger.

In another version, Appellant states that while he and his son were fighting, Jeremy pushed him and he fell back, tripping over a desk, breaking the desk drawer and cutting his arm. As he hit the floor, the gun went off, striking Jeremy. Garner testified to a similar version of events. However, she claims that as Appellant fell to the ground, Jeremy said, ‘What are you going to do? Are you going to fucking shoot me?” Garner testified that “no sooner did the words come out of Jeremy’s mouth did the shot fire.” Appellant agreed that he heard Jeremy ask something “about shooting or something to that effect.”

Elliott testified that he heard Jeremy curse his father, daring his father to shoot him. He stated that he heard Appellant say something to the effect of, “What if I shot you?” and Jeremy responded with something similar to, “Go ahead and shoot me.” Elliott states that he then saw Jeremy shove Appellant and heard a gun shot.

When Elliott went to see what happened, he saw Appellant and Garner leaning over Jeremy’s body and Appellant crying and screaming. Officers who arrived at the scene witnessed Appellant holding Jeremy in his arms and sobbing. Appellant claimed that it was an accident and that he never meant to shoot his son. Based upon the autopsy, the medical examiner determined that Jeremy died from a single gunshot wound. She additionally testified that the bullet went through the door before it entered Jeremy’s head just above his right eye. Appellant was arrested and indicted for murder.

II. Court of Appeals

The court of appeals affirmed Appellant’s conviction. McKinney v. State, No. 12-08-00155-CR, 2004 WL 1852975, 2004 Tex.App. LEXIS 7472 (Tex.App.-Tyler August 18, 2004). The court stated that the evidence raised issues of accident, self-defense, anger, and fear but such evidence alone was not sufficient to warrant an instruction regarding sudden passion. For anger or fear to rise to the level of sudden passion, the appellant’s mind must have been rendered incapable of cool reflection. The court of appeals stated that the “evidence does not reflect fear or anger that was so strong and overpowering that it rendered Appellant incapable of rational thought and collected action.” Id. 2004 WL 1852975, at *5, 2004 Tex.App. LEXIS at *12. In addition, “The mere fact that Appellant acted in response to [Jeremy] McKinney’s provocation is not sufficient to warrant a charge on sudden passion.” Id. 2004 WL 1852975, at *5, 2004 Tex.App. LEXIS at *13 The court held that “because there is no evidence that Appellant acted under the immediate influence of sudden passion arising from an adequate cause, the trial court did not err in refusing to submit a charge on sudden passion to the jury on punishment.” Id.

III. Grounds for Review and Arguments of the Parties

This Court granted review on two grounds: First, did the court of appeals misapply Trevino v. State, 100 S.W.3d 232 (Tex.Crim.App.2003), by focusing on the evidence that refuted a sudden passion charge rather than the evidence supporting such a charge at the punishment phase of trial? And second, does evidence of provocation by the decedent preclude a sudden passion charge at the punishment phase of a murder trial? Appellant argues that both the trial court and the court of appeals ignored evidence that raised sudden passion as an issue on which the jury should have been instructed. Appellant additionally states that under Trevino, 100 S.W.3d at 238, the fact that he claimed that the shooting was an accident does not preclude a sudden passion charge. Finally, Appellant discusses the use of a “provoking the difficulty” instruction when the issue of self-defense is raised by the defendant.

The State argues that there is no evidence to suggest a sudden or uncontrollable passion or that would render an ordinary person incapable of cool reflection. The actions of the victim, including arguing and fighting with the Appellant, were not sufficient provocation to mitigate punishment.

IV. Law

During the punishment phase of the trial, a defendant may argue that he caused the death while under the immediate influence of sudden passion arising from an adequate cause. “Sudden passion” is “passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.” Texas Penal Code § 19.02(a)(2). “Adequate cause” is a “cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.” Texas Penal Code § 19.02(a)(1).

Sudden passion is a mitigating circumstance that, if found by the jury to have been proven by a preponderance of the evidence, reduces the offense from a first degree felony to a second degree felony. Texas Penal Code § 19.02(c) and (d). Thus, before a defendant is allowed a jury instruction on sudden passion, he must prove that there was an adequate provocation, that a passion or an emotion such as fear, terror, anger, rage, or resentment existed, that the homicide occurred while the passion still existed and before there was reasonable opportunity for the passion to cool; and that there was a causal connection between the provocation, the passion, and the homicide.

A jury should receive a sudden passion charge if it is raised by the evidence, even if that evidence is weak, impeached, contradicted, or unbelievable. Trevino, 100 S.W.3d at 238. However, the evidence cannot be so weak, contested, or incredible that it could not support such a finding by a rational jury. Id.

V. Analysis

The first ground for review asks whether the court of appeals misapplied Trevino, by focusing on the evidence that refuted a sudden passion charge rather than the evidence supporting such a charge at the punishment stage of trial. In Trevino the appellant was found guilty of shooting and killing his wife. At punishment, Trevino requested a jury charge on sudden passion, which was refused. The court of appeals held that the trial court erred in denying the charge. We agreed, stating that “the problem with the State’s argument is that it addresses solely the evidence against sudden passion ... an appellate court’s duty is to look at the evidence supporting that charge, not on [sic] the evidence refuting it.” Id. at 238-39.

The evidence supporting a sudden passion charge in Trevino included the following: Trevino’s wife was angry at him for having other women’s phone numbers in his pocket so she confronted him with a .38 caliber revolver; she fired a shot at him, but missed; Trevino shot back at his wife with a 9 millimeter pistol; Trevino shot his ■wife three times, resulting in her death and thereafter he was “freaking out,” scared, panicked, and in a distressed state when officers arrived; Trevino begged the officers to-help his wife; and his sister also testified that Trevino “looked shocked” and was just staring out into space.

In the instant case, Appellant was never approached by Jeremy with a gun. In fact, the only thing Jeremy did to Appellant was yell at him and push him. These actions do not rise to the level of adequate cause. There is no evidence that the verbal taunting and physical pushing by Jeremy produced a degree of anger, rage, resentment, or terror in Appellant, sufficient to render his mind incapable of cool reflection.

Appellant’s testimony indicates that he had time to deliberate over his actions. He testified that upon returning home, he sat down at his desk for a while and then decided to retrieve his pistol. In Gonzales v. State, 717 S.W.2d 355, 357 (Tex.Crim.App.1986), we stated that the appellant did not act under the immediate influence of sudden passion since the appellant “anticipated the event and prepared himself to-respond to the occasion ... demonstrating a. person possessed of cool reflection throughout the entire incident.” Similarly, it appears that Appellant had time to consider how to deal with his son, and by retrieving his gun, he was preparing himself to respond to the altercation he was anticipating.

An instruction on sudden passion is proper only when the sudden passion was directly caused by and arose out of provocation by the deceased at the time of the offense. Texas Penal Code § 19.02(a)(2) specifically states that passion that is solely the result of former provocation does not qualify. In Hobson v. State, 644 S.W.2d 473 (Tex.Crim.App.1983), the appellant stated that he had an “emotional crisis” due to the relationship between his daughter and the victim, who had recently been released from jail. The appellant followed the victim all day before finally confronting him, demanding that he get out of his daughter’s life, and threatening him if he did not. Appellant and the victim fought, and Appellant stabbed the victim and cut him in the throat. We held in Hobson that the passion that came over the appellant did not arise at the time of the offense. Id. at 478. Rather, it began the morning before the crisis, when the victim was released from jail and appellant became concerned about his daughter. As a result, the altercation between the appellant and the victim just prior to the stabbing was not an adequate cause to give rise to an immediate influence of sudden passion. Id.

Similarly, in the instant, case, the argument between Appellant and Jeremy began hours before the fatal shooting. The issues between Appellant and his son arose earlier in the evening, when Appellant and Garner went to search for Jeremy. Appellant testified that he was concerned about his son’s drinking and his temper,-and that their argument related to issues commonly dealt with when raising teenage boys. Appellant began fighting with his son when the "two confronted each other at the convenience store. The argument then escalated into the physical altercation at home, where the shooting took place.

Evidence was presented' that Appellant may have only sought to scare Jeremy and that the shooting may have been an aeci-dent. Appellant testified that he pulled out his gun because it was pulling his pants down and he wanted to get it out of the way. He also testified that he thought the sight of the gun would scare Jeremy and that he did not intend to pull the trigger. Both of these explanations involve an accidental shooting and neither is indicative of a response to a high level of terror or fear. The actions taken by Appellant in both explanations are deliberate and done with forethought; they are not emotional responses to provocation. Although an accident defense during the guilt phase of the trial does not preclude a sudden-passion instruction at punishment, there must be some evidence to indicate that the appellant acted under the influence of sudden passion, even if that evidence is contrary to other evidence in the case. Appellant argues only that “evidence supporting a sudden passion instruction in this case can be found independent of, and in addition to, Petitioner’s own testimony.” However, Appellant fails to indicate what this evidence is, and we, like the court of appeals, are unable to find such evidence in the record. As a result, the court of appeals was correct in affirming the trial court’s decision to deny a sudden-passion instruction.

Appellant’s second ground for review asks whether evidence of provocation by the decedent precludes a sudden-passion charge at the punishment phase of the murder trial. Appellant appears to be confused. Part of the definition of “sudden passion” is that the passion is caused by and arising out of provocation by the individual killed. Therefore, evidence of provocation by the decedent not only does not preclude a sudden-passion charge— evidence of provocation by the decedent is required for a sudden-passion charge. It is necessary, but not alone sufficient because, as we stated above, there are additional factors that are required to show that the defendant was under the immediate influence of sudden passion.

Finally, while there may be some evidence in this case that Appellant acted in self-defense, the issue of provocation by the Appellant was not raised, so a “provoking the difficulty” instruction was not given and was not warranted in this case. Appellant’s discussion of the “provoking the difficult/’ does not apply to provocation in the context of sudden passion. As a result, the issue is not applicable to our determination in this case. Therefore, Appellant’s second ground for review is overruled.

VI. Conclusion

The court of appeals did not improperly focus on evidence that refuted a sudden-passion instruction; it simply did not find any evidence to support such a charge. Therefore, the court of appeals did not err in affirming the judgment of the trial court.

The decision of the court of appeals is affirmed.

      . At trial, Appellant testified that he pulled the trigger accidently and never intended to fire the gun.

        . See Tex. Pen.Code Ann. § 19.02(b) (Vernon Supp.2004), which states that a person commits an offense if he:
      (1) intentionally or knowingly causes the death of an individual;
      (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or
      (3)commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

      . See Texas Penal Code Section 9.31(b)(4).

      . Appellant testified that he retrieved the gun because he was worried that his son may return to the convenience store and put himself in danger. While this does not indicate that appellant anticipated an altercation with his son, it does indicate that Appellant had time to think about the situation, anticipated some sort of confrontation, and was preparing himself to respond.


source: Caselaw Access Project

author: PRICE, J., COCHRAN, J.,

license: Public Domain

text:
    Robert Charles McDONALD, Appellant v. The STATE of Texas.
    No. PD-1943-04.
    Court of Criminal Appeals of Texas.
    Nov. 23, 2005.

      Kurt B. Wentz, Houston, for Appellant.
    Kelly Ann Smith, District Atty., Houston, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

PRICE, J.,

delivered the opinion of the Court,

in which KELLER, P.J., and MEYERS, WOMACK, JOHNSON, KEASLER, HOLCOMB, and COCHRAN, JJ., joined.

At the appellant’s trial for indecency with a child, evidence of uncharged misconduct was admitted over the appellant’s objection that he did not receive notice as required by Texas Rule of Evidence 404(b). On appeal, the Fourteenth Court of Appeals held that notice was not required to admit the evidence because it arose from the same transaction as the conduct with which the appellant was charged. We granted review of the appellant’s claim that notice was required because the uncharged conduct did not arise from the same transaction. We hold that the court of appeals erred because the State was required to provide notice to the appellant because the uncharged conduct introduced at trial was not part of the same transaction. However, the trial court’s abuse of discretion did not result in harmful error, and we affirm the appellant’s conviction.

I. Facts and Procedural History

The appellant was charged with indecency with a child. The allegation stems from contact the appellant had with the complainant, a ten-year-old girl, while she was staying at her grandmother’s house in Houston, Texas. The evidence at trial showed that the appellant had been introduced to the complainant and her grandmother on a previous occasion by the complainant’s uncle. At that time, the appellant held himself out to be a priest and was introduced as “Father McDonald,” although there is no record of his being ordained within the state of Texas.

On the day of the offense, the appellant presented himself during the morning at the grandmother’s apartment unannounced and adorned in clerical attire. He was admitted by the complainant’s grandmother, who sat in the living room with the appellant and discussed transacting from a mail-order catalog. During the visit, the appellant repeatedly asked the complainant to sit on his lap, and, once she did, he made her straddle his legs while he moved his leg under her “private area,” held her by the waist when she tried to leave his lap, and kissed her breast. The complainant also testified that the appellant asked to see under her dress and tried to look under her dress. For this conduct, the appellant was charged with indecency with a child.

Later the same day, the complainant’s younger female cousin arrived at the apartment after attending summer school. The complainant’s sister and cousin played a game called “dog,” which involved the children crawling around on the floor, barking, and acting like dogs. The complainant was not playing the game with her sister and cousin, but she was in the room and she saw the appellant pull her younger cousin’s underwear and pants down to reveal her “bottom.” The appellant also had complainant’s cousin straddle his leg while he rocked her, touched her breast, and asked the cousin to touch his “private area.”

During the trial against the appellant for indecency with the complainant, the State sought to introduce evidence of the appellant’s conduct with the complainant’s younger cousin. At the appellant’s request, the State provided notice of its intent to introduce certain acts of uncharged misconduct involving the cousin, namely the similar act of touching the cousin’s breast. Despite the appellant’s timely request, the State did not notify the appellant that it would introduce evidence of the appellant pulling the cousin’s pants down. Over the appellant’s objection that there was no notice of the State’s intent to use this evidence, the trial court admitted the testimony. The appellant was convicted of indecency with a child, pled true to enhancements concerning prior convictions, and was sentenced to life imprisonment.

The appellant appealed his conviction for indecency with a child, claiming that the trial court erred in admitting the evidence because the State had failed to provide notice as required by Texas Rule of Evidence 404(b). The Fourteenth Court of Appeals held that there was no error by the trial court in admitting the evidence without notice because the evidence arose from the same transaction, making it exempt from the notice requirement of 404(b). The court of appeals also held, in the alternative, that 404(b) requires only reasonable notice of the State’s intent to introduce non-character conformity uncharged misconduct and that, since the appellant introduced no authority to define the State’s notice as unreasonable, he had no point of eri'or that afforded a basis for relief.

The appellant petitioned this Court for discretionary review, claiming that the court of appeals erred in finding that the evidence introduced did not require notice because it arose from the same transaction and also that the court of appeals improvidently dismissed his point of error even though he provided authority and a factual rationale for his conclusion.

We granted the appellant’s petition for discretionary review.

II. Parties’ Arguments

The appellant argues that the uncharged sexual misconduct involving the complainant’s cousin at a later time should not have been admitted without notice as required by Rule 404(b) and that the court of appeals erred in finding that this conduct did not require notice because it arose from the same transaction. The appellant asserts that, although he asked for notice of uncharged misconduct, the State provided notice of only some of the acts toward the cousin, such as the appellant touching her breast, but did not provide notice of its intent to introduce evidence of the appellant pulling down the cousin’s pants.

Further, the appellant claims that the act admitted without notice was not part of the same transaction because it was committed later in the day and was of a far more serious nature than those for which the appellant was on trial. To support his position, the appellant cites the concurring opinion from the court of appeals, which said that the majority misapplied the applicable law and erroneously relied on the close proximity in time, location, and subject matter to determine that the appellant’s actions toward complainant’s cousin were part of the same transaction as his actions toward the complainant.

Finally; the appellant asserts that the court of appeals erred when it dismissed his complaint under the premise that he had failed to cite authority defining the standard for reasonable notice or a rationale for showing how the State’s notice of the other offenses involving the cousin was not reasonable notice of the unspecified offenses. The appellant points out that he cited case law for the proposition that, upon timely objection, uncharged.misconduct of which the appellant had no notice should not have been admitted at trial. Further, he discussed why the admission of the uncharged misconduct was damaging and why the trial court’s decision was not within the zone of reasonable disagreement.

The State argues that the evidence of the appellant pulling the complainant’s cousin’s pants down and asking her to touch him is exempt from the notice requirement of Rule 404(b) because it arose in the same transaction as the events involving the complainant. To support this position, the State points to the fact that the complainant and her cousin were molested on the same day, during the appellant’s same visit to their grandmother’s apartment, and within a short time period. The State contends that the plain language of Rule 404(b) categorizes these facts as arising in the same transaction, thereby requiring no notice for admission. The State also notes that the appellant never objected to the admissibility of the evidence, only that he had not received reasonable notice as required by 404(b). Finally, the State argues that providing the appellant with notice of its intent to introduce evidence regarding contact with the cousin in addition to a video tape detailing the uncharged misconduct at issue, there was sufficient notice to prevent surprise and to apprise the appellant of the offenses the State intended to introduce at trial involving the complainant’s cousin.

III. Law and Analysis

A. Properly Presented Point of Error

The court of appeals held that the appellant provided no authority or reasoning to show how the notice he received failed to constitute reasonable notice of the State’s intent to offer uncharged misconduct. We disagree. The appellant properly objected at trial to the lack of reasonable notice of the State’s intent to introduce uncharged offenses as required by Rule 404(b), namely that he pulled down the cousin’s pants and asked her to touch him. The appellant also properly asserted this error on appeal by providing a record that identified his objection to the lack of notice and by identifying case law, namely Buchanan v. State, to assert that, upon a defendant’s request for notice of uncharged misconduct under Rule 404(b), the State is obligated to provide reasonable notice of that conduct. Accordingly, we hold that the appellant has presented a point of error that affords a basis for relief, and we will consider whether he had reasonable notice as required by 404(b).

B. Uncharged Misconduct

The court of appeals held that the trial court did not abuse its discretion in admitting the uncharged misconduct. It concluded that the State was not required to provide notice of its intent to introduce evidence that the appellant pulled the cousin’s pants down because this act was part of the same transaction as the appellant kissing the complainant’s breast and having her straddle his leg.

In determining whether a trial court erred in admitting evidence, the standard for review is abuse of discretion. A trial court abuses its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree.

In Buchanan v. State, we noted that “the mere presence of an offense report indicating the State’s awareness of the existence of such evidence does not indicate an ‘intent to introduce’ such evidence in its case in chief.” In Hayden v. State, we modified this rule somewhat and said that, under some circumstances, when delivered shortly after a defendant’s request, witness statements that describe uncharged misconduct can constitute reasonable notice under Rule 404(b).

In Hayden, sometime after the defendant requested notice of uncharged misconduct, the State provided a witness list and witness statements. When the State offered evidence of the uncharged misconduct during the trial, the defendant did not dispute the State’s claim that he had actual notice of the uncharged misconduct through the witness statements. We held that, in light of those circumstances, we could not conclude that the trial court abused its discretion.

The record in this case reflects that the State informed the appellant of several acts of uncharged misconduct in four separate responses to the appellant’s request for notice. Most notably, the State said that it intended to introduce evidence that the appellant touched the cousin’s breast. In none of these documents did the State inform the appellant of its intent to offer evidence that he had pulled the cousin’s pants down.

During the trial, the State claimed that the appellant had actual notice of the pants incident because the State had allowed the appellant’s counsel to view a videotape on which it alleged that the cousin told about the incident. The appellant’s counsel said that he had viewed the videotape, but that there was no mention of the pants incident.

This case is distinguishable from Hayden on two separate bases. First, the State submitted documents that purported to consist of its notice of intent to offer acts of uncharged misconduct. This appellant was entitled to rely upon the State’s notices and to assume that these acts were the only ones that the State intended to offer. Second, the appellant disputed the State’s claim that he had received actual notice of the pants incident. Because of these two circumstances we cannot conclude that the exception we outlined in Hayden applies to the facts of this case.

The court of appeals held that evidence of the appellant’s conduct toward the complainant’s younger cousin arose from the same transaction and was therefore admissible under Rule 404(b) without reasonable notice by the State. In its decision affirming the appellant’s life sentence, the court of appeals held that because the evidence was “closely related in time, location, and subject matter with the charged offense, it was within the trial court’s discretion to conclude that it was evidence ‘arising in the same transaction’ for which notice was not required under [R]ule 404(b).”

Rule 404(b) requires the State to provide notice, upon the defendant’s timely request, of its intent to introduce evidence of other crimes, wrongs, or acts. An exception to the notice requirement is when the evidence arises from the same transaction. Under Rule 404(b), however, same transaction contextual evidence is admissible “only to the extent that it is necessary to the' jury’s understanding of the offense.” It is admissible “only when the offense would make little or no sense without also bringing in the same transaction evidence.” That is, it is admissible when several offenses are “so intermixed or connected as to form a single, indivisible criminal transaction, such that in narrating the one, it is impracticable to avoid describing the other.”

The court of appeals held that, because the challenged uncharged offense evidence occurred “on the same day, during the appellant’s same visit to the grandmother’s apartment, and within a short time after the charged offense,” it was part of the same transaction and, therefore, was admissible without notice. As the concurring justice points out, however, the evidence about the second little girl was not necessary for the jury to understand the appellant’s conduct toward the complainant. The evidence concerning the complainant makes perfect sense without bringing in evidence of the appellant’s conduct with the cousin and is clearly divisible in that it involves a different victim, at a different time, after the charged conduct was completed. "When the facts of the primary offense can be understood on their own, notice is needed for evidence of uncharged misconduct. In this case, the primary offense was understandable on its own facts. We therefore conclude that the trial court abused its discretion in admitting the uncharged offense without notice because the appellant was entitled to notice upon request under Rule 404(b).

C. Harm Analysis

Because no constitutional error is involved when evidence of uncharged misconduct is admitted without notice, we look to Texas Rule of Appellate Procedure 44.2(b). Under Rule 44.2(b), reviewing courts should disregard any error that did not affect the appellant’s substantial rights. We have interpreted this to mean that the conviction should not be reversed when, after examining the record as a whole, the reviewing court has a fair assur-anee that the error did not influence the jury or had but a slight effect. In this instance, the appellant objected only to the lack of notice as to the uncharged misconduct. He did not object to the admissibility of the uncharged misconduct itself. Accordingly, we look only at the harm that may have been caused by the lack of notice and the effect the lack of notice had on the appellant’s ability to mount an adequate defense.

At trial, the appellant had an opportunity to cross-examine the complainant, the source of the testimony concerning the uncharged misconduct. The record reveals the appellant’s strategy was to discredit the complainant and her ability to remember specific details about her encounter with the appellant. The appellant did not deny his presence at the house at the time or on the day in question. The appellant received notice that the State would offer evidence concerning the appellant’s conduct with the cousin, just not all of the conduct that the State introduced. He had received notice of the State’s intent to introduce evidence of the appellant touching the girl’s breast and did not object to its admissibility. If the appellant was surprised by the testimony concerning the cousin, it was only as to the additional allegation that the appellant pulled down the cousin’s pants. It is hard to imagine that his defense would have been altered in any meaningful way. Furthermore, had there been legitimate surprise that required a re-evaluation of trial strategy, the appellant could have requested a continuance. Because notice as to the extraneous misconduct at issue would not have affected the appellant’s trial strategy, we conclude that the error did not influence the jury or had but slight effect.

IV. Conclusion

The court of appeals erred in holding that the trial court did not abuse its discretion by admitting the uncharged offense without notice. However, the trial court’s abuse of discretion did not result in harmful error, and we affirm the appellant’s conviction.

HERVEY, J., concurred in the result.

COCHRAN, J., filed a concurring opinion.

COCHRAN, J.,

filed a concurring opinion.

I join the majority opinion. I add these comments only to elaborate on why the majority appropriately conducts a harm analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure, rather than remanding this case to the court of appeals to make that determination.

Normally, when this Court concludes that a court of appeals has erred in rejecting a criminal defendant’s point of error on appeal, we remand the case to the intermediate court to decide if the error was harmful. We defer to the intermediate court and provide it with the initial opportunity to assess the degree of harm in light of the entire record, and, perhaps more importantly, to provide the parties an opportunity to fully brief the issue of harm.

However, like the United States Supreme Court, we do have the inherent authority to review the trial record to evaluate whether error is harmless. In Unit ed States v. Hasting, the Supreme Court noted that because “this Court has before it the same record the Court of Appeals reviewed, we are in precisely the position of that court in addressing the issue of harmless error.”

The primary arguments in favor of having the appellate court which found error in the case also decide if that error is harmful are to avoid “keep[ing] this cause in the heavenly appellate orbit, delaying] the finality of the judgment, further exhausting] judicial resources [and] the State’s money, and insuring], in all likelihood that we will once again be able to open up the same appellate record and find ourselves right where we are today.” While these are powerful arguments against bouncing a criminal case back and forth between appellate courts, we, like the Supreme Court, rarely exercise our authority to make an initial harmless error review.

But there are times in which we should exercise that authority: when the record clearly demonstrates that the error is obviously either harmful or harmless. In those instances, the time, money, and effort expended on a remand are not worth the candle of comity and continued litigation.

This is one such case. Here the error is clearly harmless. Therefore, I join the majority in declining to expend scarce judicial resources by remanding this particular case to the court of appeals to re-review the record before reaching a foregone conclusion.

      . McDonald v. State, 148 S.W.3d 598, 601-02 (Tex.App.-Houston [14th Dist.] 2004).

      . Id. at 602.

      . McDonald, 148 S.W.3d at 605 (Frost, J., concurring).

      . 911 S.W.2d 11 (Tex.Crim.App.1991).

      . Mozon v. State, 991 S.W.2d 841, 846-47 (Tex.Crim.App.1999).

      . Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991) (op. on reh'g)).

      . 911 S.W.2d at 15.

      . 66 S.W.3d 269, 272 (Tex.Crim.App.2001).

      . Id. at 270.

      . Id. at 272.

      . The video does not appear in the index of exhibits offered at trial and is not in the record. There is no indication in the record whether the appellant’s counsel viewed the video before or after filing the request for notice.

      . McDonald, 148 S.W.3d at 602.

      . Tex.R. Evid. 404(b).

      . Wyatt v. State, 23 S.W.3d 18, 25 (Tex.Crim.App.2000); Pondexter v. State, 942 S.W.2d 577, 584 (Tex.Crim.App.1996) (quoting England v. State, 887 S.W.2d 902, 915 (Tex.Crim.App.1994)).

      . Wyatt, 23 S.W.3d at 25; Pondexter, 942 S.W.2d at 584 (quoting England, 887 S.W.2d at 915).

      . Rogers v. State, 853 S.W.2d 29, 33-34 (Tex.Crim.App.1993).

      . McDonald 148 S.W.3d at 605.

      . See, e.g. Buchanan, 911 S.W.2d at 15; Rogers, 853 S.W.2d at 33.

      . See Buchanan, 911 S.W.2d at 15.

      . Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998).

      . Hernandez v. State, 176 S.W.3d 821 (Tex.Crim.App., 2002).

      . See, e.g., Saenz v. State, 843 S.W.2d 24, 29 (Tex.Crim.App.1992) (Clinton, J., concurring) (arguing that "[b]ecause we are a discretionary review court, and not, in this context, 'the appellate court,' [set out in former Tex.R.App. P. 81(b)(2)], we should not resolve the issue of harmfulness as a matter of first impression”); but see id. at 30-32 (Baird, J., concurring and dissenting) (arguing that "remanding cases for a harm analysis is an illusory display of respect and a meaningless squandering of judicial resources that our overburdened appellate court system can ill afford”).

      . See e.g., Gipson v. State, 844 S.W.2d 738, 743-44 (Tex.Crim.App.1992) (Benavides, J., concurring) (arguing that "a due regard for the authority of our intermediate appellate courts at least militates strongly in favor” of this Court exercising restraint in assessing the harmfulness of error before the intermediate court has had an opportunity to do so because "[i]t is just not possible to review a matter which has not yet been viewed in the first place”).

      . Although the explicit language in Rule 44.2(a) (“If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment”) might, at first blush, suggest that only a court of appeals has the authority to reverse a case for harmful constitutional error, that is obviously not true. This Court may always reverse a death penalty conviction for harmful constitutional (or non-constitutional) error, and this court may also always review a court of appeals’s determination of the harmfulness of either constitutional or non-constitutional error. What would appear to be the proper explanation for use of this specific language in Rule 44.2 is the fact that the appellate rule concerning reversible error comes immediately after the rule dealing with judgments of the courts of appeal (Rule 43), and immediately before several other rules dealing with opinions and orders issued by the courts of appeals (Rules 44-50).
      Under Rule 78.1, this Court has the authority to "affirm the lower court’s judgment in whole or in part" (implying that this Court has authority to affirm the judgment of a court of appeals even if we disagree with its analysis of error, but conclude that the error was harmless); "reverse the court’s judgment in whole or in part and render the judgment that the lower court should have rendered” (implying that this court has authority to find error in the decision of the court of appeals and reverse the judgment because that error was harmful); or "reverse the lower court’s judgment and remand the case for further proceedings” (implying that this Court has authority to find error in the decision by the court of appeals, reverse its judgment and remand the case to that court for a harm analysis).

      . 461 U.S. 499, 510, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983) (stating, "Although we are not required to review records to evaluate a harmless-error claim, and do so sparingly, we plainly have the authority to do so”).

      . Id. at 510 n. 8, 103 S.Ct. 1974; see also United States v. Lane, 474 U.S. 438, 450, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986) (when error is clearly harmless because of "overwhelming evidence,” Supreme Court would review record to evaluate harmless-error claim without remanding case to court of appeals).

      . Woodfox v. State, 742 S.W.2d 408, 412-13 (Tex.Crim.App.1987) (Onion, P.J., dissenting).

      . See, e.g., Gipson v. State, 844 S.W.2d 738, 741 (Tex.Crim.App.1992) (finding error harmful without remand because trial court specifically relied upon erroneously admitted confession), id. at 743-44 (Benavides, J., concurring) (arguing that "[d]eciding the question of harm in most cases where the Court of Appeals has not yet done so produces a result which is at least potentially different from the result which would have been produced had the Court of Appeal instead resolved the question itself,” but agreeing that in the present case "it seems to me that the harm is conclusively established on the record by the trial judge’s admission that objectionable evidence was used to convict .... there is no potential that the result reached in the Court of Appeals, were it to review the matter, could possibly be different than the result reached by the majority here.”).


author: PER CURIAM. TERRY JENNINGS, Justice,

text:
    In re Spiro NIKOLOUZOS by his Wife Jannette NIKOLOUZOS, Relator.
    No. 01-05-00207-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 15, 2005.
    Mario Caballero, Houston, for relator.
    Earnest W. Wotring, Connelly, Baker, Maston, Wotring & Jackson, L.L.P., Houston, for respondent.
    Panel consists of Justices NUCHIA, JENNINGS, and ALCALA.
   OPINION

PER CURIAM.

On Saturday, March 12, 2005, relator, Spiro Nikolouzos by his wife Jannette Ni-kolouzos, filed with this Court both a notice of appeal (appellate cause number 01-05-00206-CV) and a petition for writ of injunction (appellate cause number 01-05-00207-CV) to prevent respondent, St. Luke’s Episcopal Hospital, from taking Spiro Nikolouzos off life support.

Notices of appeals directed to the First and Fourteenth Courts of Appeals are filed with the trial-court clerk, who then makes a random assignment to either Court. See Tex. Gov’t Code Ann. § 22.202(h) (Vernon 2004). Original proceedings directed to the First and Fourteenth Courts of Appeals are filed in the appellate Courts according to a procedure described in Time Warner Entertainment Co., L.P. v. Hebert, 916 S.W.2d 47, 49 (Tex.App.-Houston [1st Dist.] 1996, no writ). See also Tex. Gov’t Code Ann. §§ 22.202(h), .215(e) (Vernon 2004) (authorizing transfer of cases between the First and Fourteenth Courts of Appeals).

Because the notice of appeal was filed directly with this Court on a Saturday and an emergency existed, this Court was unable to wait for the trial-court clerk to make an assignment of the appeal without the appeal possibly becoming moot. The Court accepted the notice of appeal pursuant to Texas Rule of Appellate Procedure 25.1(a) and issued a writ of injunction to prevent the appeal from becoming moot. See Tex. Gov’t Code Ann. § 22.221(a) (Vernon 2004) (court of appeals may issue all writs necessary to enforce jurisdiction of court); Tex.R.App. P. 25.1(a) (“If a notice of appeal is mistakenly filed with the appellate court, the notice is deemed to have been filed the same day with the trial court clerk, and the appellate clerk must immediately send the trial court clerk a copy of the notice.”), (b) (“The filing of a notice of appeal by any party invokes the appellate court’s jurisdiction over all parties to the trial court’s judgment or order appealed from. Any party’s failure to take any other step required by these rules ... does not deprive the appellate court of jurisdiction but is ground only for the appellate court to act appropriately, including dismissing the appeal.”); see also In re Washington, 7 S.W.3d 181, 182 (Tex.App.Houston [1st Dist.] 1999, orig. proceeding) (appellate court has jurisdiction to determine whether it has jurisdiction).

On Monday, March 14, 2005, the Clerk of this Court sent a copy of the notice of appeal to the trial-court clerk pursuant to Texas Rule of Appellate Procedure 25.1(a). The trial-court clerk randomly assigned the appeal to the Fourteenth Court of Appeals, and the trial-court clerk notified both appellate Courts.

Because the appeal has not been assigned to this Court, we no longer have jurisdiction to issue a writ of injunction to protect our appellate jurisdiction of the appeal. Accordingly, we dissolve the injunction and dismiss the original proceeding.

It is so ordered.

Justice JENNINGS concurring.

TERRY JENNINGS, Justice,

concurring.

I dissented from this Court’s May 12, 2005 order commanding that St. Luke’s Episcopal Hospital (St. Luke’s) “desist and refrain from proceeding with taking Spiro Nikolouzos off life support” because this Court never had jurisdiction to enter such an order on the appeal of the denial of a temporary restraining order.

Spiro Nikolouzos by his wife Jannette Nikolouzos, challenge the district court’s orders, dated March 9, 2005 and March 11, 2005, denying “Plaintiffs First and Second Applications for a Temporary Restraining Order” against St. Luke’s. In both applications, the Nikolouzoses requested that the district court “enjoin [appellee] from disconnecting Mr. Nikolouzos from life support.” They contend that they were “entitled to a restraining order” because they “had proven a reasonable expectation of a transfer to another health care facility that would honor a patient’s directive if the extension is granted.” See Tex. Health & Safety Code Ann. § 166.046(g) (Vernon Supp. 2004-2005).

It is well-settled law that appellate courts have jurisdiction to consider immediate appeals of interlocutory orders “only if a statute explicitly provides appellate jurisdiction.” Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex.1998); see Tex. Civ. Prac. & Rem.Code Ann. § 51.014 (Vernon Supp. 2004-2005) (allowing appeal of interlocutory order in 10 instances, not including the granting or denial of a temporary restraining order). No statutory provision exists permitting appeal from a temporary restraining order. Accordingly, the granting or denial of a temporary restraining order is generally not appealable. In re Tex. Natural Res. Conservation Comm’n, 85 S.W.3d 201, 205 (Tex.2002). When a party attempts to appeal a non-appealable interlocutory order, appellate courts have no jurisdiction except to declare the interlocutory nature of the order and to dismiss the appeal. Tex.R.App. P. 42.3(a); Yancey v. Jacob Stern & Sons, Inc., 564 S.W.2d 487, 488 (Tex.Civ.App.-Houston [1st Dist.] 1978, no writ); Lipshy Motorcars, Inc. v. Sovereign Assoc.'s, Inc., 944 S.W.2d 68, 70 (Tex.App.-Dallas 1997, no writ).

On the other hand, a temporary injunction is an appealable interlocutory order. Tex. Civ. Prac. & Rem.Code Ann. § 51.014(4). Our sister court has recognized that “where the force and effect of a temporary restraining order is indistinguishable from that of a temporary injunction, the order is appealable.” Plant Process Equip., Inc. v. Harris, 579 S.W.2d 53, 54 (Tex.Civ.App.-Houston [14th Dist.] 1979, no writ). The “controlling factor” is “whether the relief granted does more than preserve the status quo” during the limited time span of a temporary restraining order. Id. (emphasis added). However, because the requests for a temporary restraining order in this case were denied rather than granted, this analysis is not applicable. Boone v. City of Houston, No. 14-97-01042-CV, 1998 WL 470364, at *1 n. 2 (Tex.App.-Houston [14th Dist.] Aug. 13, 1998, no pet.) (not designated for publication).

Accordingly, because this Court never had jurisdiction to review the interlocutory denial of the applications for a temporary restraining order in this matter, I concur in the order dissolving the injunction and dismissing the original proceeding.


author: JAMES T. CAMPBELL, Justice.

text:
    Patricia Lazard COVINGTON and Elizabeth Roberts, on behalf of Vincent Lazard, Deceased, Appellants, v. SISTERS OF CHARITY OF the INCARNATE WORD, Houston Texas d/b/a St. Elizabeth Hospital of Beaumont, Christus Health Southeast Texas d/b/a Christus St. Elizabeth Hospital and Paul D. Wesolow, M.D., Appellees.
    No. 07-03-0351-CV.
    Court of Appeals of Texas, Amarillo.
    June 28, 2005.
    Rehearing Overruled Aug. 2, 2005.

      Clay Dugas, Mike Jacobellis, Clay Du-gas & Associates, Beaumont, and Harold V. Dutton, Jr., Houston, for Appellants.
    James Peacock and Patricia D. Cham-blin, Mehaffyweber, Beaumont, Dion C. Ramos and Roger A. Sullivan, The Ramos Law Firm, Houston, for Appellees.
    Before REAVIS and CAMPBELL, JJ.

      . Former Chief Justice Phil Johnson was on the panel that heard oral argument. He did not participate in the decision. Tex.R.App. P. 41.1(b).

   OPINION

JAMES T. CAMPBELL, Justice.

Appellants Elizabeth Roberts and Patricia Lazard Covington, independent administrator of the estate of Vincent Lazard, appeal a summary judgment dismissing their survival claims asserted on behalf of the estate. We will affirm the judgment.

Factual and Procedural Background

Vincent Lazard died intestate on December 27, 1999, while a patient at Chris-tas St. Elizabeth Hospital in Beaumont. He did not leave a surviving wife but was survived by three children. On August 31, 2000, his daughter Patricia Lazard Coving-ton was appointed independent administrator of his estate by the probate court of Jefferson County.

Lazard also was survived by siblings. One of his sisters, Elizabeth Roberts, filed suit on February 15, 2002, against appel-lees Sisters of Charity of the Incarnate Word, Christas Health Southeast Texas d/b/a Christas St. Elizabeth Hospital and Paul D. Wesolow, M.D. The suit asserted medical negligence claims based on La-zard’s treatment at the hospital from December 7 through his death on December 27. Roberts filed her original petition “individually and on behalf of Vincent La-zard, deceased.” The petition described the plaintiff simply as an individual residing in Beaumont, Jefferson County. The petition alleged facts concerning Lazard’s presentation to the emergency room of St. Elizabeth Hospital with complaints of shortness of breath and coughing, his admission to the hospital and his course of treatment in a “cardiac monitored unit” and the hospital’s ICU. It alleged Lazard became suicidal and was restrained, that despite his refusal to eat or drink no fluids were administered, that no lab work was performed for a period of nineteen days, that indications of an excessive potassium level were ignored, that renal failure resulted and that his death was caused by aspiration during tube feeding. The petition alleged the defendants’ care of Lazard fell below the standard of care, that his death was caused by the defendants’ negligence and gross negligence in several listed respects, and that Roberts, individually and on behalf of Lazard, suffered damages particularly described to include mental anguish, and medical and funeral expenses.

On May 2, 2002, Roberts filed a first amended petition alleging claims only “on behalf of the Estate of Vincent Lazard, Deceased.” After receiving responses to discovery, in September 2002 appellees filed amended answers challenging Roberts’ standing and her capacity to act on behalf of her brother’s estate, and filed a traditional motion for summary judgment. Roberts then filed a second amended petition on October 15, 2002, adding Covington as a plaintiff and alleging her to be the administrator of Lazard’s estate. The factual allegations were essentially unchanged from the original petition. Appellees followed with an amended motion for summary judgment, asserting as grounds that Roberts’ survival cause of action should be dismissed because she had no standing or capacity to sue on behalf of the estate, and that Covington’s survival action was barred by limitations. The summary judgment evidence included the order granting Covington letters of independent administration of her father’s estate and Roberts’ interrogatory responses identifying La-zard’s surviving family members. The trial court sent counsel a letter in which the court stated its conclusion that Roberts’ suit “would be considered a nullity” because she had no capacity to bring the cause of action she asserted. The court later signed a final judgment dismissing Roberts’ and Covington’s claims with prejudice, not stating in the judgment the grounds for the dismissal. Both have appealed from that judgment.

Roberts and Covington present two issues on appeal, contending the trial court erred first, “in dismissing the case on the basis that Elizabeth Roberts’ pleading was a nullity, because the pleading, which sought damages on behalf of the estate for the decedent’s injuries was sufficient on its face to invoke the court’s jurisdiction and was sufficient to put defendants on notice of the survival claim that was being made”; and second, “in refusing to allow the amended pleading naming the administrator of the estate to relate back to the prior pleading because the claim in the amended pleading was not based on a wholly new, distinct cause of action.”

Applicable Law

Summary judgment for a defendant is proper if, as a matter of law, the plaintiff cannot prevail on the claims. Butcher v. Scott, 906 S.W.2d 14, 15 (Tex.1995); see Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

Appellants’ health care liability claims based on medical negligence are subject to the two-year limitations period set by former Article 4590i, Section 10.01, which reads, in part: “Notwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years from the occurrence....” See Bala v. Maxwell, 909 S.W.2d 889, 892-98 (Tex.1995).

Any recovery obtained in a survival action flows to those who would have received it had the decedent obtained it immediately prior to death — his heirs, legal representatives and estate. Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 345 (Tex.1992); Tex. Civ. Prac. & Rem.Code Ann. § 71.021(b) (Vernon 1997). A personal representative of a decedent’s estate generally is the only person entitled to bring suit for the recovery of estate property, although under some circumstances an heir may be allowed to do so. Shepherd v. Ledford, 962 S.W.2d 28 (Tex.1998); Frazier v. Wynn, 472 S.W.2d 750 (Tex.1971). That principle applies to the recovery of damages in a survival action. Shepherd, 962 S.W.2d at 31.

The relation-back statute, Civil Practice and Remedies Code Section 16.068, provides: “If a filed pleading relates to a cause of action, cross action, counterclaim, or defense that is not subject to a plea of limitation when the pleading is filed, a subsequent amendment or supplement to the pleading that changes the facts or grounds of liability or defense is not subject to a plea of limitation unless the amendment or supplement is wholly based on a new, distinct, or different transaction or occurrence.” Tex. Civ. Prac. & Rem. Code Ann. § 16.068 (Vernon 1997).

Austin Nursing Center, Inc. v. Lovato and Lorentz v. Dunn

After this case was briefed and argued, the supreme court granted petitions for review in Austin Nursing Center, Inc. v. Lovato, and Lorentz v. Dunn. The court issued opinions in those cases on May 13, 2005. Austin Nursing Center, Inc. v. Lovato, 171 S.W.3d 845, (2005); Lorentz v. Dunn, 171 S.W.3d 854 (2005). The parties have submitted letter briefs to us concerning the effect of the supreme court’s opinions in Lovato and Lorentz on their positions here. We evaluate appellants’ issues in light of those opinions.

The supreme court held in Lovato that the question of a plaintiffs authority to bring an action under the survival statute is to be treated as one of capacity rather than standing. 171 S.W.3d at 847. The court noted that “[t]he parties to a survival action seek adjudication of the decedent’s own claims ...,” id. at 850, and that the decedent’s survival claim becomes part of the estate at death. It held the requirements of the standing doctrine are satisfied by “the estate’s” justiciable interest in the action seeking redress for the injuries suffered by the decedent before his death. Id. Since a challenge to the right of a plaintiff to assert a survival action addresses capacity rather than standing, it does not implicate the court’s subject matter jurisdiction. As in other eases, the issue of a party’s capacity is raised by verified pleading. Id. at 848; Tex.R. Civ. P. 93.

In Lovato, the plaintiffs original petition asserting a health care liability claim on behalf of her mother’s estate, filed within the limitations period, contained allegations that the plaintiff was the personal representative of the estate but alleged also that no estate administrator had been appointed. The plaintiff filed an application for independent administration of her mother’s estate two months after filing the survival action, and was appointed administrator after limitations ran. Similarly, in Lorentz, the plaintiffs original pleadings alleged she was administrator of her sister’s estate, although her application was still pending and she was not appointed administrator until limitations on the survival action expired. Lorentz, at 855. In both cases, the supreme court determined that the plaintiffs’ lack of capacity was cured by their appointment as administrator after limitations ran but before the survival actions were dismissed.

Citing cases demonstrating that courts have long permitted post-limitations amended pleadings alleging a representative capacity for the first time to relate back to pleadings filed during limitations, the court found in Lovato that an original pleading containing the allegation of the correct capacity “should suffice for limitations purposes, provided that capacity, if challenged, is established within a reasonable time.” Lovato, at 853. Under the circumstances presented in Lovato, the court found little significance in the post-limitations pleadings Lovato filed, in which she alleged her appointment as independent administrator of the estate. Because her pleadings had always alleged she was personal representative, the issue, the court said, is not whether her amended pleadings relate back to her original petition but whether her “post-limitations capacity cures her pre-limitations lack thereof.” Id. at 852.

Analysis

There are factual differences between this case and Lovato. It is undisputed that Roberts is neither personal representative of Lazard’s estate nor one of his heirs. Roberts never pled she was the personal representative of Lazard’s estate. As noted, her original petition simply identified her as an individual residing in Jefferson County and stated that she sued individually and on behalf of her deceased brother. No contention is made that she ever has had capacity to bring a survival action, before or after the expiration of limitations. Covington was appointed independent administrator of Lazard’s estate some eighteen months before Roberts filed her survival action. Unlike Lovato, then, this case does not present an issue whether the original plaintiffs post-limitations capacity cured her pre-limitations lack of capacity. Here, the viability of the survival action depends on the efficacy of the post-limitations amended pleading naming Cov-ington as a plaintiff.

Significantly, the supreme court in Lovato expressly affirmed the holdings of Shepherd that an estate’s personal representative generally is the only person authorized to bring a survival action, but heirs may bring the action directly under some circumstances. Lovato, at 850. Covington’s appointment as independent administrator required the probate court to find that there existed a necessity for an administration of her father’s estate. See Tex. Prob.Code Ann. § 88(d) (Vernon 2008). Absent other circumstances, that finding and her appointment established Covington as the only person entitled to bring a survival claim. Lovato, at 849-50; Shepherd, 962 S.W.2d at 31; see Pratho v. Zapata, 157 S.W.3d 832, 839 (Tex.App.Fort Worth 2005, no pet.). The summary judgment record provides no explanation for Roberts’ original pursuit of the survival claim in lieu of Covington, or for Covington’s tardy activity in the suit.

Although we acknowledge that Roberts’ original petition may have served the purpose of timely notifying the defendants that a survival claim was being asserted on behalf of Lazard’s estate, for several reasons we conclude that under these circumstances the amended pleading adding Covington to the suit did not relate back to Roberts’ original pleading. First, as noted, Roberts is a stranger to the survival action. Permitting a suit brought by her to toll limitations until Covington took action as administrator runs counter to the requirement of Shepherd that such suits be brought by the personal representative when administration is necessary. Second, the court’s discussion of relation-back in Lovato does not mandate its application here. The court there discussed cases in which courts found amended pleadings alleging the plaintiffs representative capacity to relate back to the filing of the plaintiffs original pleading. See, e.g., Davis v. Preston, 118 Tex. 303, 16 S.W.2d 117 (1929); Pope v. Kansas City, M. & O. Ry. Co. of Tex., 109 Tex. 311, 207 S.W. 514 (1918). Those cases involve changes in the allegations of the capacity of the original plaintiff, not the addition of a new plaintiff. See also Flores v. Cameron County, 92 F.3d 258, 271-72 (5th Cir.1996); City of Houston v. Glover, 355 S.W.2d 757, 760 (Tex.Civ.App.-Waco 1962, writ ref'd n.r.e.). We note also that section 16.068 does not directly address the filing of a subsequent pleading that adds a new plaintiff. Ordinarily, an amended pleading adding a new party does not relate back to the original pleading. Alexander v. Turtur & Associates, Inc., 146 S.W.3d 113, 121 (Tex.2004).

This case is not like those allowing the relation-back of a pleading that substitutes a real party in interest for one acting in a representative capacity. See, e.g., Madore v. Dairyland County Mut. Ins. Co., 696 S.W.2d 274, 276 (Tex.App.-Fort Worth 1985, no writ). See generally, 2 Roy W. McDonald & Elaine A. Grafton Carlson, Texas Civil Practice § 10.19 (2d ed.2003). Even assuming the existence here of circumstances that would have permitted an heir of Lazard to pursue the survival action while an administrator is serving, there is no evidence Roberts was acting as a representative for any of Lazard’s children who were his heirs. Nor does this case involve anything analogous to a misnomer, a common occasion for relation-back. See Enserch Corp. v. Parker, 794 S.W.2d 2, 4-5 (Tex.1990); Womack Machine Supply Co. v. Fannin Bank, 499 S.W.2d 917, 920 (Tex.Civ.App.-Houston [14th Dist.] 1973), rev’d on other grounds, 504 S.W.2d 827 (Tex.1974). We decline to extend the relation-back statute to the amended pleading naming Covington as a plaintiff.

Our opinion in Goode does not require a contrary result. There, Marion Goode brought a health care liability claim as a survival action and as a wrongful death action following the death of her husband. Later, after limitations ran, amended pleadings added Orlin Goode, the independent executor of his estate, as a plaintiff. Evidence showed the decedent left a will that did not give any property to his wife or name her as executrix. The defendants contended summary judgment in their favor on the survival action should be affirmed because Marion Goode was neither an heir nor personal representative of the estate, and the suit was not properly asserted on behalf of the estate until the independent executor was joined, after limitations expired. This court held that the defendants had waived the right to challenge Marion Goode’s capacity to bring suit on behalf of the estate by failing to comply with Rule of Civil Procedure 93. Citing section 16.068, we further noted, though, “Inasmuch as it was clear from the original petition that a survival claim was being made on behalf of the estate, and because the later amendment merely named the Estate representative without asserting a new and distinct cause of action, the later amendment related back to the original filing and was not subject to a limitation plea.” 863 S.W.2d at 550.

Goode was decided several years before the supreme court held in Shepherd, “The Survival Statute provides that only a personal representative, administrator, or heir may sue on behalf of an estate.” 962 S.W.2d at 31. Our discussion of Marion Goode’s capacity to bring the survival action on behalf of her husband’s estate was predicated on our conclusion, clearly superseded by Shepherd and Lovato, that the survival statute “does not specify by whom a cause of action for recovery of that survival claim must be brought.” Goode, 863 S.W.2d at 550. Further, Marion Goode was the surviving spouse of the decedent, and properly asserted a wrongful death claim on her own behalf in the same suit. Id. at 548. Even if her original petition under those circumstances would suffice for limitations purposes under Lovato, a question we need not decide, we think Roberts’ original petition clearly did not.

Conclusion

The trial court properly dismissed Roberts’ claims because she lacked capacity to pursue an action under the survival statute, and properly dismissed Covington’s claims as barred by limitations. Appellants’ issues are overruled, and the trial court’s judgment is affirmed.

      . Roberts previously had given the defendants written notice pursuant to section 4.01 of former Tex.Rev.Civ. Stat. art. 4590L

      . The court’s letter cited McAdams v. Capitol Products Corp., 810 S.W.2d 290 (Tex.App.Fort Worth 1991, writ denied), and distinguished this court’s opinion in Goode v. Shoukfeh, 863 S.W.2d 547 (Tex.App.-Amarillo 1993, no writ).

      . Tex.Rev.Civ. Stat. art. 4590i, § 10.01, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. The limitation was carried forward in Tex. Civ. Prac. & Rem.Code Ann. § 74.251 (Vernon 2005).

      . The court’s opinion also notes that Lovato’s status as an heir of her mother was a matter of dispute.

        . See Tex. Prob.Code Ann. § 3(aa) (Vernon 2003) (defining "personal representative”); § 3(o) (defining “heirs”); § 38 (providing the estate of an intestate decedent leaving no surviving spouse passes to children and their descendants).

      .A phrase used in Annotation, Change in Party after Statute of Limitations has Run, 8 A.L.R.2d 6 (1949), containing the statement, "According to the little authority there is, it appears to be well settled that an amendment adding a party plaintiff after the statute of limitations has run does not relate back to the filing of the original petition if the original plaintiff himself did not have a cause of action.” The section of the annotation containing that statement cites no Texas cases. Id. at 36.

      . See Tex. Prob.Code Ann. § 233 (Vernon 2003) (stating representative’s duty to use ordinary diligence to collect claims and debts due the estate).

      . See Shepherd, 962 S.W.2d at 33; Pratho, 157 S.W.3d at 847-48.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 71.001, et seq. (Vernon 1997).