author: MEYERS, J., KELLER, P.J.,

text:
    Earl Owen BITTERMAN, Appellant, v. The STATE of Texas.
    No. PD-633-04.
    Court of Criminal Appeals of Texas.
    Dec. 7, 2005.

      Walter M. Reaves, Jr., West, for appellant.
    Christy Barber, Asst. Criminal District Atty., Waco, Matthew Paul, State’s Atty., Austin, for State.
   MEYERS, J.,

delivered the opinion of the Court,

in which PRICE, JOHNSON, KEASLER, HERYEY, HOLCOMB, and COCHRAN, JJ., joined.

Appellant Earl Owen Bitterman pled guilty to the offense of aggravated sexual assault pursuant to a plea agreement with the State and was sentenced by the court to five years in the Texas Department of Criminal Justice, Institutional Division. Appellant then filed a motion for a new trial, in which he alleged that the State breached the terms of the plea agreement. The trial court denied this motion, and Appellant subsequently filed a timely notice of appeal. The Court of Appeals held that Appellant’s claims were without merit because he had not preserved them for review. We will reverse.

I. Facts

Appellant pled guilty to the aggravated sexual assault of his twelve-year-old niece. As part of the plea agreement, the State agreed to the following sentencing recommendation:

5 YEARS IN THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, AND A FINE OF $0.00; THE STATE NEITHER OPPOSES NOR RECOMMENDS THAT THE COURT GRANT DEFERRED ADJUDICATION PROBATION IN THIS MATTER.

The record reflects that the State agreed to allow Appellant to “make a pitch” for probation, but that it would remain silent as to probation at Appellant’s sentencing. At the sentencing hearing, Appellant had several witnesses testify in support of his request for deferred adjudication, and the State cross-examined these witnesses. During cross-examination, the State questioned whether Appellant deserved deferred adjudication, and additionally, called the complainant’s counselor as a rebuttal witness who testified that granting Appellant deferred adjudication would send the wrong message to the complainant. The State also argued to the court that Appellant was “not the kind of person that would be deserving of a second chance and an opportunity for probation” and that “it would be very dangerous for the victim to give him probation and send a message to her that in fact it was her fault.” The State then recommended that the trial court sentence Appellant to five years in the institutional division of TDCJ. The trial court followed the State’s recommendation, sentencing Appellant to five years in the TDCJ-Institutional Division.

II. Court of Appeals Decision and Grounds for Review

The court of appeals held that, regardless of whether the State had breached the plea agreement, Appellant did not preserve this issue for review because he did not object to the State’s breach during the sentencing hearing. The court stated that although Appellant argued that the State breached the agreement by the introduction of improper testimony and by improper argument, Appellant did not preserve these issues for the court’s review because he did not object at the time of the testimony or argument. The court of appeals then affirmed the judgment of the trial court which denied Appellant’s motion for a new trial.

The grounds for review present before this Court are as follows: 1) whether the court of appeals erred in holding Appellant’s motion for a new trial did not preserve error on his motion for a new trial based on the State’s violation of its plea agreement, where such a breach is not something that can be cured by the court, and where a motion for new trial was the first opportunity Appellant had to raise that claim; and 2) whether the court of appeals erred in failing to address whether the breach of a plea agreement is a “category one” right that cannot be waived.

Appellant argues that he timely raised the issue of whether the plea agreement was breached in his motion for a new trial. He further argues that the court of appeals based its holding on a misapplication of several cases which involved the introduction of improper evidence and improper arguments. Additionally, Appellant argues that the right to have the terms of a plea agreement with the State fulfilled by the State is a right that must be implemented unless expressly waived, and thus the failure of Appellant to object at the sentencing hearing does not preclude the court of appeals from addressing this issue.

The State argues that because Appellant failed to object at the sentencing hearing at the time the improper evidence and argument were offered, he failed to preserve the issue for review by the court of appeals. The State further asserts that complaining about this issue for the first time in a motion for a new trial was untimely because he failed to object at trial when the trial judge would have had the opportunity to remedy the error.

III. Plea Bargains

It is well established that it is a defendant’s right to have the State honor a plea bargain entered into by the defendant in exchange for a guilty plea, after the judge has accepted the plea bargain in open court. Plea bargains play an extremely important role in the criminal judicial process, and numerous cases in federal and Texas state law emphasize the importance of implementing safeguards to protect the due process rights of defendants who enter into such plea bargains. When a defendant enters into a plea bargain, he waives a number of fundamental constitutional rights, including a trial by jury, the right to confront one’s accusers, the right to present witnesses in one’s defense, the right to remain silent, and the right to be convicted only by proof beyond a reasonable doubt. There are strict federal and state guidelines and requirements regarding the defendant’s ability to enter into such an agreement in order to protect the constitutional rights of the defendant, and among these is the requirement that if a defendant’s plea is made based on a promise given by the State, the State must keep up its part of the agreement or the plea will be rendered involuntary. When the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand. In Santobello v. New York, the United States Supreme Court emphasized this point stating that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Additionally, this Court has previously held that a plea agreement is binding upon all parties once the trial judge has accepted it, and that if the prosecution does not perform its responsibilities under the agreement, the plea bargain is considered involuntary.

IV. Analysis

The court of appeals held that, in this case, Appellant did not preserve the issue of whether the State breached the plea agreement because he did not object at the moment that the State allegedly breached the plea agreement by introducing improper evidence and argument. In reaching this conclusion, the court relied on Aguilar v. State and Gone v. State, which hold that a defendant must object at trial to the offering of improper evidence at the moment when the evidence is offered to preserve a claim for appellate review. The court also relied on Zimmerman v. State and Haliburton v. State, which hold that a defendant must object to improper arguments at the time of the objectionable argument to preserve error. These cases are not relevant to the issues in this case. All four of these cases are concerned with a defendant involved in a jury trial, not with a defendant who has waived all of his fundamental constitutional rights to a jury trial and entered into a plea agreement with the State in exchange for a promise. And in none of these four cases does the testimony in dispute breach a plea agreement entered into by the defendant and the State.

The State also relies on these cases in its brief,, citing them for the proposition that Appellant should have objected at a time when the trial court had an opportunity to correct the error. In addition, the State points to Mendez v. State to support its argument that a defendant must make a timely objection or he fails to preserve error. However, reliance on this case is misplaced for two reasons. First, the facts in Mendez involved a defendant, after a trial by jury and sentencing, who claimed that the trial court should have sua sponte withdrawn the guilty plea he entered due to new testimony which raised an issue as to his guilt. This is distinguishable from the case at hand, which involves not the withdrawal of a plea made by the defendant at trial, but the withdrawal of a plea agreement . after this agreement was breached by the State.

Secondly, even if this Court were to find Mendez persuasive in this case, the defendant in Mendez did not raise the issue until his appeal to the court of appeals. In this case, it is clear from the record that Appellant raised the issue for the first time at the trial level, at the hearing on the motion for a new trial. This was the first time that the issue could have been cured, and thus the first time that it made sense to raise the issue. Even if the Appellant had objected at the time of the breach of the plea agreement, the error could not have been cured by the trial judge at that time because the prosecutor’s recommendation was already before the judge to consider. Objecting at that point would be similar to asking the judge to forget everything the prosecutor had just told him and make the sentencing decision based only on the testimony of the defense. There was no attempt at an “end-run” around the trial judge straight to the court of appeals. Raising the objection for the first time at a motion for a new trial gave the trial judge notice of the breach, and gave him an opportunity to correct the error by granting Appellant’s motion for a new trial. Neither the court of appeals nor the State cite any caselaw requiring a defendant who has pled guilty as part of an agreement with the State to object at the moment of the breach rather than at a motion for a new trial. Rather, this Court has simply held, as have a number of courts of appeals, that in this same fact scenario, the defendant is entitled either to specific performance or to withdraw his plea if the State has breached a plea agreement. The Appellant in this case chose to request a new trial in order to compel specific performance of the agreement into which he and the State entered.

In Bass v. State, the defendant agreed to plead guilty in return for the State’s promise to remain silent on recommending a sentence. The Court in Bass looked to the record of the defendant’s motion for a new trial to determine what arguments defendant made in regard to the breach of the plea agreement, and what the trial judge reasoned in his decision to deny defendant’s motion. The Court concluded:

This is a dispute over whether the State breached its plea bargain with appellant, and must be examined in light of Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971), where the United States Supreme Court stated that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” If the prosecution does not live up to its part of the bargain, doubt is raised as to whether or not the guilty plea induced by the broken bargain can be regarded as truly voluntary.

In Miller v. State, this Court again reached the same conclusion. In Miller, the defendant entered a plea of nolo con-tendere in exchange for an agreement that the State would make no recommendation or argument as to punishment. The State violated the terms of this agreement by making improper arguments to the trial judge right before the judge sentenced the defendant. This Court held, after quoting extensively from Santobello and Bass that “the record in this case reveals a violation of those principles set out in Bass v. State. Appellant is entitled to withdraw his plea.”

While Appellant could have withdrawn his plea at the sentencing hearing, he chose instead to request a new trial in order to compel specific performance of the plea agreement which the State had violated. Due to the flagrant violation of his plea agreement by the State, which rendered his plea involuntary, the court of appeals should have reviewed this issue for abuse of discretion by the trial judge in denying Appellant’s motion for a new trial.

Conclusion

The court of appeals erred in concluding that because Appellant did not object at the sentencing hearing, it could not consider Appellant’s claim. Based upon the underlying constitutional due process principles involved when a defendant agrees to plead guilty in return for a promise by the State, as well as upon a long history of Texas cases supporting a defendant’s right to withdraw a plea once the State has violated the plea bargain, we hold that Appellant properly preserved the issue of the plea bargain breach by bringing it to the trial court’s attention as soon as the error could be cured, in a motion for a new trial. Because Appellant preserved his claim for appeal, there is no need to address the second ground for review. Therefore we vacate the judgment of the court of appeals and remand the cause to the court for further proceedings consistent with this opinion.

WOMACK, J., concurred.

KELLER, P.J., filed a dissenting opinion.

KELLER, P.J.,

filed a dissenting opinion.

Despite appellant’s failure to object at trial, the Court holds that he preserved his complaint because, “Even if the Appellant had objected at the time of the breach of the plea agreement, the error could not have been cured by the trial judge at that time because the prosecutor’s recommendation was already before the judge to consider.”

But the error could have been cured: the trial court could have granted deferred adjudication. It doesn’t matter that the trial court might not have cured the error, because that is true in every case in which a party objects. Curing the error here would have required giving appellant more than he was entitled to — granting deferred adjudication rather than just considering it. But otherwise, this case is no different from any other case in which the trial court could have, but not necessarily would have, fixed a problem upon a timely objection.

Moreover, appellant complains of several comments by the prosecutor. It is not clear to me which of these the Court believes violated the plea agreement. The prosecutor’s first reference to deferred adjudication seems to have been during cross-examination of appellant’s witnesses. The prosecutor questioned these witnesses about whether appellant deserved deferred adjudication, and then called appellant’s counselor to testify against granting deferred adjudication. After that, the prosecutor recommended that the trial court sentence appellant to five years of incarceration. An objection the first time the prosecutor questioned appellant’s suitability for deferred adjudication could have kept out all of the damaging evidence and argument. The “incurable” argument might never have occurred had counsel lodged a prompt objection.

For these reasons, I respectfully dissent.

      . Bitterman v. State, 131 S.W.3d 519 (Tex.App.-Waco 2004).

      . Santobello v. New York, 404 U.S. 257, 264, 92 S.Ct 495, 30 L.Ed.2d 427 (1971)(Douglas, J. concurring); Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)(stating "several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First is privilege against compelling self-incrimination guaranteed by the Fifth Amendment and applicable to the states via the Fourteenth Amendment. Second is the right to a trial by jury. Third is the right to confront one’s accusers.”).

      . Santobello, 404 U.S. at 262, 92 S.Ct. 495.

      . The United States Fifth Circuit Court of Appeals has also applied this standard. See United States v. Kerdachi, 756 F.2d 349 (1985).

      . Ortiz v. State, 933 S.W.2d 102 (1996).

      . Bryant v. State, 974 S.W.2d 395 (1998).

      . Aguilar v. State, 26 S.W.3d 901 (Tex.Crim.App.2000); Gone v. State, 54 S.W.3d 27 (Tex.App.-Texarkana 2001, pet. ref'd).

      . Zimmerman v. State, 860 S.W.2d 89 (Tex.Crim.App.1993); Haliburton v. State, 80 S.W.3d 309 (Tex.App.-Fort Worth 2002, no pet.).

      . Mendez v. State, 138 S.W.3d 334 (Tex.Crim.App.2004).

      . Besch v. State, 87 S.W.3d 588, 590 n. 3 (Tex.App.-San Antonio 2002, pet. dism’d, untimely filed).

      . Bass v. State, 576 S.W.2d 400 (Tex.Crim.App.1979).

      . Miller v. State, 608 S.W.2d 931 (Tex.Crim.App.1980).

      . Miller at 932.

      . Bitterman v. State, 180 S.W.3d 139, 143, 2005 WL 3310407 (Tex.Crim.App. delivered December 7, 2005)(slip opinion at p. 7).


source: Caselaw Access Project

author: JOHNSON, J.,

license: Public Domain

text:
    Joseph Lino BARELA, Appellant v. The STATE of Texas.
    No. PD-1946-04.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 7, 2005.

      James D. Lucas, El Paso, for Appellant.
    Tom A. Darnold, Asst. District Atty., El Paso, for State.
    Before the court en banc.
   OPINION

JOHNSON, J.,

delivered the opinion for a unanimous Court.

Appellant was indicted in Arizona for armed robbery, two counts of aggravated assault, and two counts of attempted first-degree murder, all stemming from a 1999 hotel robbery during which appellant robbed two victims and then shot each in the neck. The victims sustained serious injuries, but survived. Appellant signed a “stipulated guilty plea” by which he agreed, in exchange for the dismissal of the remaining charges, to plead guilty to two counts of the lesser-included offense of attempted second-degree murder and waive his right to appeal the sentence or judgment. The Arizona trial court accepted and entered appellant’s guilty pleas after finding that the pleas were knowingly and voluntarily made. The court then reset the matter for sentencing, but before the date of the sentencing hearing, appellant escaped from jail and fled, eventually coming to Texas. Arizona subsequently issued a bench warrant for appellant’s arrest.

In 2000, a Texas grand jury indicted appellant on two counts of aggravated robbery in violation of Tex. Penal Code § 29.03. Appellant plead not guilty to the charges. During a pretrial hearing, appellant’s counsel filed an application for probation that stated that appellant had no felony convictions in any state and informed the trial court that he was filing a motion in Arizona to withdraw appellant’s plea in those cases.

During the guilt phase, the state presented evidence that appellant and a companion had approached two individuals on a secluded scenic overlook in El Paso and demanded money and car keys. Appellant then shot both individuals, despite their compliance with appellant’s demands. Again, both victims sustained serious injuries, but survived.

During the punishment phase of the trial, a third participant in the robbery, the getaway driver, testified that appellant participated in at least five other robberies that same night, both before and after the charged offenses, shot one of the other victims in the stomach, and fired on another group of victims as they fled in their ear. The state also presented evidence of the Arizona offenses. The jury convicted appellant and sentenced him to forty years in the Texas Department of Criminal Justice-Correctional Institutions Division (TDCJ-CID). At sentencing, the state asked the court to cumulate appellant’s sentence in this case with the Arizona case, pursuant to Tex.Code CRiM. PROC. art. 42.08(a). The trial court granted the state’s motion and ordered that the sentence in this case not begin until appellant completed his sentence in Arizona.

Appellant appealed, asserting that the trial court abused its discretion by cumu-lating his Texas and Arizona sentences because he had not been sentenced in Arizona before he was sentenced in Texas. Relying on Pettigrew v. State, Phillips v. State, and Arizona case law, the court of appeals concluded that the cumulation order in appellant’s case was proper; Tex. Code Ceim. Proc. art. 42.08(a) focuses on the order of conviction, not the order of sentencing and, under Arizona law, appellant was convicted in Arizona at the time the trial court entered his plea. Thus, appellant was convicted in Arizona before he was convicted in Texas. Barela v. State, 2004 WL 2192604, 2004 Tex.App. LEXIS 8802, No. 08-02-00492-CR (Tex. App.El Paso, delivered Sept. 30, 2004, not designated for publication). Appellant petitioned this Court for discretionary review. We granted review on two grounds. We affirm.

Appellant reasserts his contention that the cumulation order was improper because he was not sentenced in Arizona before he was sentenced in Texas and, therefore, no preceding conviction with which to cumulate the Texas sentence existed. Appellant also contends that the court of appeals misconstrued the meaning of the term “conviction” in Tex.Code CRiM. PROC. art. 42.08(a) because his sentence in the Arizona case was neither “imposed” nor “suspended” by the trial court as required in Pettigrew v. State and that the court of appeals erroneously applied the statutory definition of “conviction” as used in Arizona enhancement laws to justify the cumulation order in Texas.

A trial court’s ability to cumulate sentences is governed by Tex.Code CRiM. PROC. art. 42.08(a):

When the same defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction ... in the discretion of the court, the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin when the judgment and the sentence imposed or suspended in the preceding conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with the other case or cases, and the sentence and execution shall be accordingly.

At the time of sentencing, there must be before the court both evidence of the former conviction and evidence that the defendant was the same person previously convicted. Turner v. State, 733 S.W.2d 218, 221 (Tex.Crim.App.1987).

The relevant version of the statute contains no language that limits cumulation of multiple sentences to only defendants who are confined by the Texas Department of Corrections in all the cases identified in the cumulation order. The deletion in 1987 of such limiting language effectively authorized cumulation with sentences from other jurisdictions. Johnson v. State, 930 S.W.2d 589, 591 (Tex.Crim.App.1996); Cook v. State, 824 S.W.2d 634, 641-43 (Tex.App.-Dallas 1991, pet. ref'd).

Appellant places significant weight on this Court’s decision in Pettigrew v. State, but his reliance is misplaced. We noted in Pettigrew that the issue presented was whether a conviction occurs, for the purpose of cumulation, when a sentence is imposed or suspended. Pettigrew, 48 S.W.3d at 771. We found that, for cumulation purposes, a conviction occurs when a sentence is either imposed or suspended. Id. Appellant’s case is distinguishable from Pettigrew in that the sentence from appellant’s previous conviction in Arizona was neither imposed nor suspended because appellant escaped from jail. Glearly, Pet-tigrew did not contemplate the unique situation which was presented to the trial court. Thus, as the court of appeals correctly noted, Pettigrew is not directly on point and is relevant only to the extent that it allows a trial court flexibility in cumulating sentences.

Intertwined with this analysis is appellant’s second ground for review, in which he argues that the court of appeals erred in assuming that a “conviction,” as defined under Arizona law for purposes of its enhancement laws, should define the meaning of “conviction” as used in the Texas cumulation statute.

This court has noted previously that the word “conviction” means different things in different statutes. Ex parte Evans, 964 S.W.2d 643, 647 (Tex.Crim.App.1998). Presumably, therefore, the word “conviction” may have differing definitions in other jurisdictions as well. As the court of appeals correctly pointed out, in Texas “the word ‘conviction’ always involves an adjudication of guilt.” Barela 2004 WL 2192604, at *4, 2004 Tex.App. LEXIS 8802, at *10 (citing McNew v. State, 608 S.W.2d 166, 172 (Tex.Crim.App.1978)). Under Arizona law, a person “is ‘convicted’ when there has been a determination of guilt by verdict, finding, or acceptance of a guilty plea.” State v. Thompson, 200 Ariz. 439, 441, 27 P.3d 796 (2001)(emphasis added). Appellant was adjudicated guilty of both of the attempted second-degree-murder charges in Arizona and the aggravated robbery charges in Texas. No conflict-of-law issue is present in appellant’s case because both Texas and Arizona define the term “conviction” to involve an adjudication of guilt.

Appellant also urges this Court to follow the canons of statutory construction and the plain meaning of Tex.Code CRIM. PRoc. art. 42.08. Generally, courts should interpret a statute in light of its plain language. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). The plain language of Tex.Code CRIM. Proc. art. 42.08(a) emphasizes that only a second or subsequent conviction can be cumulated with a prior conviction. It is the order of conviction, rather than the order of sentencing, that is important when contemplating the propriety of a cu-mulation order. There is no requirement that a sentence must be imposed in the first conviction before a stacked sentence can be imposed in any subsequent sentence. Nicholas v. State, 56 S.W.3d 760, 766 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). A defendant cannot begin to serve the sentence in the subsequent conviction until the sentence in the preceding conviction is completed if the sentences are to run consecutively, but there is no language in Article 42.08(a) that indicates when the sentence in the preceding conviction must occur. Jason v. State, 1991 Tex.App. LEXIS 1000 (Tex.App.-Houston [1st Dist.] 1991, pet. ref'd). Therefore, the fact that appellant was not formally sentenced before his escape is not relevant to the propriety of the cumulation order.

At the time of sentencing, the state introduced certified copies of the following documents to show that appellant was the same person previously convicted: (1) the Arizona indictment; (2) the change of plea order; (3) appellant’s stipulated guilty plea; (4) the order setting time for judgment; and (5) appellant’s bench warrant after he failed to appear for sentencing. Appellant’s stipulated guilty plea listed the number and correct name of the trial court in which the prior conviction was had, the possible term of years of the prior conviction, and the nature of the prior conviction. The state also presented testimony, outside of the jury’s presence, by Derek Car-lisle, the deputy county attorney who had prosecuted appellant in Arizona, to connect appellant to the previous conviction. The trial court thus had sufficient evidence of appellant’s prior Arizona conviction before it exercised its judicial discretion to cumu-late the sentences.

The cumulation order issued by the court of appeals in appellant’s case is proper under the plain language of Tex.Code Crim. PROC. art. 42.08(a). We affirm the judgment of the court of appeals.

      . The Arizona court denied this request shortly after the Texas pretrial hearing, subject to the motion being renewed when appellant returned to Arizona. Just before trial in this case began, and two years after appellant entered his pleas of guilty in Arizona, he filed notice of appeal in those cases.

      . 48 S.W.3d 769 (Tex.Crim.App.2001).

      . 704 S.W.2d 557 (Tex.App.-Beaumont 1986, pet. ref'd).

      . Stale v. Thompson, 200 Ariz. 439, 27 P.3d 796 (2001).

      . "(1) Whether the court of appeals erred in allowing the trial court to stack petitioner’s 40-year prison sentence onto any punishment petitioner might later receive concerning earlier convictions for which he had not been adjudged guilty and sentenced;”
      "(2) Whether the court of appeals erred in assuming that a ‘conviction’ — as defined under Arizona law for purposes of its enhancement laws — should define the meaning of ‘conviction’ as used in the Texas cumulation statute codified as C.C.P. Article 42.08.”

      . In Banks v. State, 708 S.W.2d 460, 461 (Tex.Crim.App.1986), this Court has recommended five requirements for a proper cumu-lation order: (1) the trial court number of the prior conviction; (2) the correct name of the court where the prior conviction was had; (3) the date of the prior conviction; (4) the term of years of the prior conviction; and (5) the nature of the prior conviction. However, we also note that orders containing fewer than the recommended number of elements have been upheld. Williams v. State, 675 S.W.2d 754, 764 (Tex.Crim.App.1984).

      . See Ex parte Young, 684 S.W.2d 704, 707 (Tex.Crim.App.1985); Sturgis v. State, 657 S.W.2d 813, 815 (Tex.App.-Eastland 1982, pet. aff’d)(illustrating the limitations of Tex. Code Crim. Proc. art. 42.08 before the 1987 amendment).

      . Barela 2004 WL 2192604, at *4, 2004 Tex.App. LEXIS 8802, at *10.

      . The Texas trial-court record also indicates that appellant’s counsel conceded during a motion in limine hearing that appellant had been convicted in Arizona.

      . Even if one assumes that a conflict of law exists, under most circumstances the forum court uses the substantive law, including definitions of terms used in its statutes, of the foreign jurisdiction and its own procedural rules. Restatement (second) of conflicts of law § 122, Cmt. b.


author: HERVEY, J., COCHRAN, J.,

text:
    John Guzman TELLO, Appellant, v. The STATE of Texas.
    No. PD-987-04.
    Court of Criminal Appeals of Texas.
    Dec. 7, 2005.
    Bruno A. Shimek, Bryan, for Appellant.
    Douglas Howell, III, Asst. District Atty., Bryan, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

HERVEY, J.,

delivered the opinion for a unanimous Court.

Appellant was towing some dirt in a homemade trailer when the trailer unhitched from appellant’s truck, and struck and killed a pedestrian. As a result of this incident, a jury convicted appellant of criminally negligent homicide as charged in an indictment alleging that appellant caused the victim’s death by “failing to properly secure a trailer to his truck.” See Tex. Pen.Code, § 19.05(a).

The Court of Appeals affirmed the conviction. See Tello v. State, 138 S.W.3d 487, 497 (Tex.App.-Houston [14th Dist.] 2004). Appellant claims that the evidence is legally and factually insufficient to support a finding that he was criminally negligent under Tex. Pen.Code, § 6.03(d), which defines criminal negligence:

A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint^]

The evidence shows that appellant towed the trailer with his truck on many occasions in his construction business. When appellant’s trailer unhitched from his truck and struck and killed the victim, there were no safety chains securing the trailer to the truck as required by state law. An accident investigator (Long) with the Bryan Police Department testified that safety chains would have prevented an unhitched trailer from detaching from the truck.

Q. [PROSECUTION]: In case the coupler gives way, then the chains hold the trailer to the truck?
A. [LONG]: They keep it connected as — Well, for lack of a better word, one unit. They are two pieces, but still connected together.

The evidence also shows that the ball (to which the trailer hitch attached) on the bumper of appellant’s truck did not work properly. An accident reconstructionist (Sylvester) with the Bryan Police Department testified that this ball was loose and not tight against the bumper.

Q. [PROSECUTION]: Okay. After you marked them, then what did you do?
A. [SYLVESTER]: I marked them. I checked the trailer, the ball hitch on the bumper of the pickup truck. I looked at it, and it was loose. The bumper itself seemed to be in good shape. The ball was loose. It wasn’t tight against the bumper. After that I began taking measurements — taking measurements to complete a detailed diagram of the scene.

Long testified that the loose ball on the bumper of appellant’s truck wobbled and that this was not “a proper attachment of a ball to a bumper.”

Q. [PROSECUTION]: What was its condition as far as being tight on the bumper or loose on the bumper?
A. [LONG]: The ball itself was loose, but the nut was as tight as it could have been.
Q. When you say the ball was loose, what do you mean “the ball was loose”?
A. The shank of the ball as it comes through the bumper you could wobble it in the hole. It wasn’t tight down to the bumper.
Q. So when you grabbed the ball, you could actually wobble it in the hole?
A. Yes, I could.
Q. Is that a proper attachment of a ball to a bumper?
A. No, sir.

Another State’s expert (Stubblefield) testified that a loose and wobbly ball presents a dangerous situation.

Q. [PROSECUTION]: Back on the witness stand. And, Mr. Stubblefield, assume with me for a minute that the ball that this bumper — that was in the bumper that this hitch was attached to, assume with me for a minute you could take your hands and wobble it in the hole, could you tell the jury in your opinion whether that is a safe situation or if it is a dangerous situation to have a ball that wobbles like that?
A. [STUBBLEFLELD]: That, sir, would be a dangerous situation.

The State presented other evidence that the trailer hitch (which was supposed to lock in place to the ball on the bumper) also did not work properly. Long testified that the hitch was bent from having been hammered or hit a number of times. Long also testified that the hitch would not lock in place to the ball on the bumper. Long testified that this could cause the trailer to come loose.

Q. [PROSECUTION]: Why is that?
A. [LONG]: This portion of the hitch here, the front is bent.
Q. How do you bend a front portion like that?
A. ■ Lots of ways, hammering on it, banging and bending. This end here is also bent.
Q. Let’s take a look now. What areas are bent?
A. The front portion here at the front — which is straight on this one — it’s a little bit different. This one has a little bit larger piece up here. This one is a little bit smaller.
Q. Hold that sideways if you can hold it—
A. (Witness complies) You can see up here at the front where it’s bent forward.
Q. What other area is bent?
A. The finger portion where you grab to unlatch it back here are bent.
Q. Bent all the way down?
A. Yes, sir.
Q. So in the new hitch we have, []it sticks straight out?
A. Yes, sir.
Q. How is it on that one?
A. It’s bent down around the back end here. Also the two tabs that are supposed to go in these slots, they’re also bent up flat. They don’t line up with the holes. They’re up here on top of the round portion of the coupling.
Q. So is there anyway [sic] for the trailer hitch that [appellant] was operating, is there anyway [sic] for that hitch to lock in place?
A. None that I could see.
Q. And so if it can’t lock in place, can it come loose?
A. Yes, it can.

Sylvester also testified that the hitch was bent from having been “hammered or hit on over time.”

Q. [PROSECUTION]: What was the condition of that trailer hitch at that time?
A. [SYLVESTER]: You could tell — ■ you could tell it was old. The top handle part of it, you could tell it had been bent over. It had been hammered or hit on over time. It was bent down. You could see what is remaining of the wire, the light wires wrapped around the front of the hitch here. I looked under the underside of the hitch. I didn’t see any obvious damage at that time.

Stubblefield concluded that the hitch had been hammered a number of times in an attempt to get it to latch properly. He found that the hitch could not lock down on the ball. He testified that these concerns were “obvious.”

Q. [PROSECUTION]: We may have to do this two or three times so everybody on the jury can see what it is. Would you start — when you looked at this thing, what were your concerns? What is your, first concern?
A. [STUBBLEFIELD]: My first concern is — -Well, there’s obvious ones to me. The safety latches, the little pieces here are bent down that when you set this over the ball, this goes down, these safety catches go in here. Those are bent and are not in their safety spot.
Q. Can it lock down?
A. No, sir.
Q. Can you tell from looking at that hitch whether or not that’s a brand-new problem or has that been there awhile?
[DEFENSE]: Objection. Calls for speculation.
[PROSECUTION]: This is opinion by an expert who has worked on used hitches.
[DEFENSE]: He hasn’t been qualified as an expert yet.
[PROSECUTION]: I believe he has, your Honor.
[THE COURT]: I believe he has, too. The objection is overruled.
A. (Witness continuing) It appears that this has been tapped down to get the hitch to latch properly before — for whatever reason because — I mean, you shouldn’t have to — normally you do not have to hit a coupler like this to get it to latch.

Stubblefield opined that the hitch was faulty.

Q. [PROSECUTION]: You’re familiar with trailers and how they work, how they’re supposed to be loaded and things of that nature?
A. [STUBBLEFIELD]: Yes, sir.
Q. That’s part of your business that you do every day of the week?
A. Yes, sir.
Q. Did you have a chance to look, Mr. Stubblefield, at State’s Exhibit 29?
A. Yes, sir.
Q. Did you do that last week, take a look at it? See what was wrong with it, what was right with it?
A. Yes, sir.
Q. Mr. Stubblefield, based on your experience and all your work, do you have an opinion about that hitch?
A. Yes, sir, I do.
Q. Would you tell the jury how you feel about that hitch?
A. Sure. I think that hitch is worn. It has been — appeared to be faulty and I personally wouldn’t have pulled a trailer with that hitch on it. It’s got some worn pieces. Some hammered pieces. Maybe because it wouldn’t latch, maybe wouldn’t fit the ball properly, so somebody had to tap it down or hit it with a hammer to get that to latch.

He also testified he would not want his family on the road with such a hitch.

Q. Would you want your family on the road with a hitch pulling a trailer like that one?
A. I would not.
Q. Why is that?
A. Because that would be a faulty hitch. There could be a problem with that.

Stubblefield also testified that there were “a variety of things with the different safety catches and mechanisms that could have went wrong” with the hitch and that the hitch should have been replaced before the incident that caused the victim’s death.

The evidence also shows that appellant improperly loaded the dirt over the right rear axle of the trailer. Stubblefield explained that the proper way to load a trailer is to put the load up front because a load toward the rear of the trailer could cause the tongue of the trailer to come up.

Q. [PROSECUTION]: How are you supposed to load a trailer when you add weight to a trailer?
A. [STUBBLEFIELD]:You need 25 to 30 percent at least of your weight going to the front of the trailer to keep the trailer weight proportionate so you don’t have more weight towards the back of your trailer to where the tongue of the trailer will try to come up.
Q. So if you load to the middle or to the back, it will cause the tongue of the—
[DEFENSE]: Objection. Leading.
[THE COURT]: Sustained.
Q. Would it cause the tongue of the trailer to come up?
A. Yes, sir. You need to have the [sic] more weight definitely to the front.
Q. That’s standard?
A. Yes, sir.
Q. And what if it’s loaded right over the axle?
A. Right over the axle that would tend to make your pickup truck, also, light on the back end.
Q. Okay. So the recommendation is to load it to the front?
A. Definitely to the front.

Stubblefield also testified that “just a bump” could have caused the trailer to unhitch “with the safety features being modified.”

Q. [PROSECUTION]: Okay. And now going back to what went wrong with this hitch on October 16th, were there a number of things that could have gone wrong?
A. [STUBBLEFIELD]: Yes, sir, I believe so.
Q. Would you share those with the jury?
A. Sure. I believe—
[DEFENSE]: Because of the nature of the question, I’m going to object to speculation, “could have gone wrong.”
[THE COURT]: Objection overruled.
A. (Witness continuing) Well, I think admittedly I am not the full weight of the trailer, but a bump could have hit with the — and it pulled this thing and with the safety catches gone, that would keep this piece from coming backing and up, it could have jumped off.
Q. So in your opinion just a bump could have knocked this back and loosened up the whole catching mechanism? A. Yes, sir. It could have actually been sitting on top of the ball. It could have hit — I don’t know anything about the trailer — it could have hit a jolt, say, the road, maybe a bump in the road and come unlatched and then popped off the ball. But with the — the safety features being modified, I guess you would call it, that’s what could have happened.

Portions of appellant’s testimony from a civil deposition were introduced into evidence. See Tello, 138 S.W.3d at 491. Appellant admitted that he was the only person to use the trailer. He testified that he had “never had a problem” with the hitch or the trailer before, and that he did not know that the law required him to have safety chains. It did not occur to appellant that loading the dirt over the right rear axle of the trailer was unsafe. He had never had the trailer inspected. The day after the accident appellant had the ball and the trailer hitch replaced and he added safety chains.

During closing jury arguments, appellant argued that the trailer had “never popped off before.” Appellant conceded that he was negligent but claimed that his negligence did not rise to the level of criminal negligence. The prosecution essentially argued that an “ordinary person” with knowledge of an unsafe trailer hitch would have replaced the hitch.

When we started this case, we talked about what criminal negligence is. When is it that society steps in? We looked at what would an ordinary person do under all those circumstances? Do you recall? And the question is: Is this a gross deviation from the standard of care that an ordinary person would exercise under all those circumstances?
And that’s all this trial has been about is: What were the circumstances facing [appellant]? And the question you have to ask yourself is: What would an ordinary person do under those circumstances? And I’ve listed those for you.
These are circumstances that we submit are important in this case. Number one, there is a loose ball. The ball doesn’t properly fit on the trailer. We know that causes more tension, more likely to be a dangerous connection.
Number two, the hitch has been altered. Now this is important. This is not a hitch that is worn out. This is a hitch that because it’s been turned too abruptly has caused it to crink causing the mechanism to tighten up and then, rather than fixing it, rather than spending the $28 for the hitch and 40-or $50 to get it fixed, rather than fix it, you get out a hammer and start beating on it. And you beat on it enough that you beat this forward so you no longer have a locking mechanism.
You have problems underneath. So you pinch that together so you have an unsafe hitch. These are the circumstances he’s aware of: That he’s got a mechanism that doesn’t lock and it’s dangerous — as well as a ball. You’ve got an unsafe hitch. And it’s going to cost you as much as $150 to get all this fixed. So what does an ordinary person do? What would you do in that situation? What would you do in that situation if your job meant that every day you drive through the neighborhoods of our community where there are schools, where there are parks, where there are people walking up and down the streets? What would an ordinary person do?
That’s really pretty self-explanatory, isn’t it? So we have a loose ball. We have an altered hitch. What about a backup, then? The $15 for the chain, the 20-or $80 to back it up so if something happens, you tear up the back of your bumper. You don’t rip apart a family.

Appellant claimed on direct appeal that the evidence is legally and factually insufficient to support his criminally negligent homicide conviction. In rejecting this claim, the Court of Appeals relied in part on civil cases applying ordinary civil negligence principles after noting that it was unable “to find another opinion of a Texas court addressing the sufficiency of evidence to support a conviction of criminally negligent homicide arising out of a trailer coming unhitched from a truck while being towed.” See Tello, 138 S.W.3d at 493. The Court of Appeals decided:

In summary, there is evidence in the record that appellant caused [the victim’s death], that he ought to have been aware that there was a substantial and unjustifiable risk of death from his failure to properly secure the trailer, and that his failure to perceive that risk constituted a gross deviation from the standard of care an ordinary person would have exercised under like circumstances. We conclude the jury could have found the essential elements of the offense of criminally negligent homicide beyond a reasonable doubt.

See Tello, 138 S.W.3d at 494.

This Court has found no Texas case law on point. The parties cite no cases like this, and our independent research of other jurisdictions has not revealed any similar cases. It is, however, unnecessary for us to find a similar case to decide that the evidence in this case is sufficient to support appellant’s criminally negligent homicide conviction.

Under our case law, the State was required to prove that appellant’s failure to perceive a substantial risk of death from his conduct grossly deviated from an ordinary standard of care. In this case, a jury could rationally find that appellant knew that the hitch on his trailer was faulty. For example, the evidence that the trailer hitch had been hammered a number of times in an attempt to get it to latch properly and Stubblefield’s testimony that the hitch’s defects were “obvious” support such a finding.

A jury could also rationally find that appellant should have, but failed, to perceive a substantial and unjustifiable risk of death from his conduct of knowingly using a faulty trailer hitch without safety chains on a public road. A jury could also rationally find that appellant’s failure to perceive this substantial and unjustifiable risk of death was clearly a gross deviation from the standard of care that an ordinary person would exercise under the circumstances. These findings are sufficient to meet the definition of “criminal negligence” in Section 6.03(d).

We understand appellant to claim that the evidence is insufficient to support a finding of criminal negligence because the evidence shows that he had “never had a problem with the trailer becoming unhooked.” Appellant argues in his brief:

In all the preceding cases there was evidence that the defendant should have known of the fatal risk involved because there had been an occurrence prior to the fatal incident that put the defendant on notice of problems he should have been able to perceive. In the case at bar, the evidence was to the contrary. The appellant had never had a problem with the trailer becoming unhooked. The Fourteenth court affirmed the conviction not based on the perception of the Appellant or what the Appellant should have perceived as required to convict based on the criminally negligent standard, but rather based it on the perception of the state witnesses who failed to establish that appellant’s actions were a gross deviation from the standard of care that an ordinary person would exercise under all circumstances as viewed from the actors [sic] standpoint. [Case citations omitted] did apply the standard correctly in light of the evidence of the perception or what should have been perceived by each defendant due to the facts of each particular case. In the case at bar the State did not prove that the Appellant should have perceived the hitch would unhook and incorrectly viewed the evidence from the standpoint of the states [sic] witnesses and not that of Appellant^]

The State was not required to prove that appellant “had a problem with the trailer becoming unhooked” or that the trailer had “popped off before.” The State’s evidence supports a finding that appellant knew that the trailer hitch was faulty, putting him “on notice of problems he should have been able to perceive.” Imposing criminal liability on appellant on this basis and on the other circumstances presented in this case does not conflict with the cases cited in appellant’s brief. The evidence supports a finding that appellant had notice of a condition creating a substantial risk of death which appellant should have perceived.

Finally, we cite the New York Court of Appeals’ decision in People v. Boutin, 75 N.Y.2d 692, 556 N.Y.S.2d 1, 555 N.E.2d 258 (1990), to illustrate when there is insufficient evidence to support a finding of criminal negligence. Boutin, 556 N.Y.S.2d 1, 555 N.E.2d at 254, described its criminal negligence standard as follows:

Our decisions construing these provisions have emphasized that criminal liability cannot be predicated on every act of carelessness resulting in death, that the carelessness required for criminal negligence is appreciably more serious than that for ordinary civil negligence, and that the carelessness must be such that its seriousness would be apparent to anyone who shares the community’s general sense of right and wrong [citations omitted]. What, we believe, is abundantly clear from our decisions and from the governing statutory language is that criminally negligent homicide requires not only a failure to perceive a risk of death, but also some serious blameworthiness in the conduct that caused it. The risk involved must have been “substantial and unjustifiable”, and the failure to perceive that risk must have been a “gross deviation” from reasonable care.

Applying this standard, the Court in Boutin decided that a driver’s unexplained failure to see a parked car until he collided with it and killed two people did not by itself support a conviction for criminally negligent homicide. See Boutin, 556 N.Y.S.2d 1, 555 N.E.2d at 253, 256 (evidence established only that “defendant inexplicably failed to see the vehicle until he was so close that he could not prevent the collision. Though it resulted in two tragic deaths, that unexplained failure, without more, does not constitute criminally negligent homicide”). This case involves much more than an unexplained failure of a trailer hitch that caused a death. This case also involves “some serious blameworthiness in the conduct that caused it.” See Boutin, 556 N.Y.S.2d 1, 555 N.E.2d at 254.

The judgment of the Court of Appeals is affirmed.

COCHRAN, J., filed a concurring opinion.

COCHRAN, J.,

concurring.

I join the majority opinion. I write separately only to emphasize the fine, but marked, legal fine between civil negligence and criminal negligence.

Civil or “simple” negligence “means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.” And “ordinary care” means “that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances.”

Criminal negligence, however, requires a significantly greater degree of deviation from this standard of ordinary care before a person may be held criminally liable. It must be a “gross” or extreme deviation from that standard. And it is measured solely by the degree of negligence, not any element of actual awareness. Conduct that constitutes criminal negligence involves a greater risk of harm to others, •without any compensating social utility, than does simple negligence. A person may be found criminally negligent when he inadvertently creates a substantial and unjustifiable risk of which he ought to be (but is not) aware. And a jury must evaluate the defendant’s failure of perception and determine whether, under all the circumstances, it was serious enough to be condemned under the criminal law.

Of course, as the risk of harm increases, so does the likelihood that the person will actually be aware of the risk created by his or her conduct. Despite this increased likelihood of awareness, criminal negligence does not require proof of the accused’s subjective awareness of the risk of harm. A person’s prior “problems” with a car, truck, or trailer hitch may be considered by the jury in determining whether a defendant’s conduct is a gross deviation from the standard of care that an ordinary person would exercise, but evidence of such prior “problems” are neither necessary or sufficient by themselves to establish criminal negligence. It is a defendant’s awareness of the attendant circumstances, not his subjective awareness of the risk of harm, that matters in criminal negligence. Thus, if an ordinary person in appellant’s position would check to ensure that a trailer was properly secured to his truck with safety chains; that the ball on the bumper to which the trailer hitch was attached was secure and properly attached; that the 'trailer hitch itself locked properly onto the ball; and that a load of dirt was properly loaded toward the front of the trailer rather than over the rear axle, then appellant’s failure to check these items for the ordinary safe hauling of dirt may suffice to establish a gross deviation from the ordinary standard of care. This is true even though appellant himself was subjectively unaware of the great risk of harm or death caused by his failure to perform such safety measures. Criminal liability is imposed because he should have been aware of the substantial risk of death that his failure to both note and repair these numerous deficiencies entailed. Had there been only a single deviation from the ordinary standard of care, e.g., had appellant exercised ordinary care but for the failure to attach a safety chain between the trailer and truck, then his conduct in “failing to properly secure a trailer to his truck” might constitute mere simple civil negligence, not criminal negligence.

With these comments, I join the majority-

      1. The ground upon which we granted discretionary review asks "[w]hether the evidence was legally and factually sufficient to support the verdict.” This Court does not review the factual sufficiency of the evidence to support a verdict, and appellant does not claim that the Court of Appeals incorrectly applied the factual sufficiency standard. See Johnson v. State, 23 S.W.3d 1, 3 (Tex.Cr.App.2000). We, therefore, dismiss this portion of appellant's ground for review and address only the legal sufficiency claim. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (legal sufficiency review requires appellate court to view the evidence in light most favorable to verdict and determine whether any rational factfinder could find elements of offense beyond a reasonable doubt).

      . See Tex. Transp. Code, § 545.410.

      . The record reflects that Long was using a demonstrative hitch to show how a properly functioning hitch operated.

      . We do not read the Court of Appeals' opinion to decide that a finding of ordinary civil negligence will support a criminally negligent homicide conviction. We do note that the lawyer who filed a civil lawsuit on behalf of the victim’s family testified at appellant’s criminal trial that the civil negligence case against appellant was “rock solid” and did not "take much thought or activity.” This lawyer explained the definition of "civil negligence.”
      Q. [DEFENSE]: Okay. Can you tell us what civil negligence is?
      A. Civil negligence is defined in the Texas pattern jury charge and in case law as failing to do that which a reasonable and ordinary person would do under the same or similar circumstances or doing that which a reasonable and prudent person would not do under the same or similar circumstances. That’s generally what is quoted in the pattern jury charge.

      . See Graham v. State, 657 S.W.2d 99, 101 (Tex.Cr.App.1983) (in short, criminal negligence is “failure to perceive” risk of death from actor’s conduct which must rise to level of "gross deviation” from an ordinary standard of care).

      . A jury could also rationally find that appellant's conduct of knowingly using a faulty trailer hitch without safety chains on a public road grossly deviated from the standard of care that an ordinary person in the construction business would exercise because this conduct created a substantial and unjustifiable risk of death. The prosecution twice emphasized during closing jury arguments that appellant was in the business of pulling trailers.

      . See Graham, 657 S.W.2d at 101 (defendant driver's failure to perceive risk of death from his conduct of speeding, racing and ignoring red light was clearly a gross deviation from ordinary standard of care).

      . We agree with the State’s claim that it proved "[ajppellant ought to have been aware of a substantial and unjustifiable risk of death where he pulled [an] improperly loaded trailer using a faulty hitch, attached to a ball that was not tight down to the bumper, and with no safety chains.”

      . Appellant cites several cases which he claims support this claim. See Still v. State, 709 S.W.2d 658, 660-61 (Tex.Cr.App.1986) (defendant, charged with murdering his wife, not entitled to criminally negligent homicide instruction because evidence showed that defendant was aware of risk of gun discharging while he tried to uncock it based in part on this having happened before); Hookie v. State, 136 S.W.3d 671, 676 (Tex.App.-Texarkana 2004, no pet.) (defendant was aware of maladjusted brakes on his truck); Stadt v. State, 120 S.W.3d 428, 433-34 (Tex.App.-Houston [14th Dist] 2003, pet. granted) (defendant was aware of dangers of overpass where accident occurred).

      . The State claims in its brief that this amounts to a claim that it was required to prove "recklessness” instead of "criminal negligence.” The State argues:
      However, requiring the State to prove that Appellant was already "on notice” of the risk of the trailer becoming detached prior to the date of the offense is the same as proving that [appellant] was aware of the risk but consciously disregarded it. Basically, Appellant would require proof of "reckless” [Footnote setting out statutory definition of "reckless” omitted] conduct, as opposed to "criminal negligence.” "However, the fact that he had not experienced difficulty with the trailer on prior occasions is not probative of whether he ought to have been aware of the substantial risk of death cause [sic] by his failure to properly secure his trailer on the date of the accident in question.” Tello v. State, 138 S.W.3d at 494.

      . The evidence arguably supports a finding that the trailer had "popped off before.”

      . Keetch v. Kroger Co., 845 S.W.2d 262, 271 (Tex.1992) (Mauzy, J., dissenting) (quoting Texas Pattern Jury Charge 65.01).

      . Id.

      . For example, if a grocery store sells un-bagged grapes, one of them falls to the floor, and a shopper then slips on that grape and falls to the floor, the grocery store might be held civilly negligent for failing to be aware of the risk that its fallen grapes could cause a shopper to slip and break a leg. It might be criminally negligent for that same grocery store to permit shoppers to enter into the meat-cutting department knowing that the floor is covered with blood and meat detritus and that the butchers are using unprotected automated meat saws, if a shopper slips and falls into a band saw and is killed by its teeth. In both instances the manager may be subjectively unaware of the risk of harm that "fallen grapes and unprotected meat saws may create, but he is aware of the circumstances (e.g., the grapes on the floor and the slippery blood underneath an automated band saw), and he should have been aware of the moderate risk of harm in the first case and the substantial and unjustifiable risk of death or serious bodily injury in the second.

      . See Model Penal Code § 2.02 commentary at 240 (1985).

      . Id. at 241.

      . See id. at 243:
      When people have knowledge that conviction and sentence, not to speak of punishment, may follow conduct that inadvertently creates improper risk, they are supplied with an additional motive to take care before acting, to use their faculties and draw on their experience in gauging the potentialities of contemplated conduct. To some extent, at least, this motive may promote awareness and thus be effective as a measure of control.

      .In this case, the prosecutor fully and accurately set out appellant’s numerous deficient acts in his closing statement, and he discussed the appropriate standard of care. See Court’s op. atpp. 154-55.


author: KELLER, P.J.,

text:
    Ex parte Alex PENA, Applicant.
    No. WR-36089-04.
    Court of Criminal Appeals of Texas.
    Dec. 7, 2005.
    Alex Pena, pro se.
    E. Bruce Curry, District Atty., Kerr-ville, Matthew Paul, State’s Atty., Austin, for State.
   KELLER, P.J.,

filed an opinion dissenting to the remand order.

Applicant complains that he was improperly denied counsel at his parole revocation hearing and that he has never received notice of the outcome of the hearing. Despite these rather modest claims, the Court remands this case to the trial court to answer whether or not applicant received: (a) written notice of the claimed violations of parole; (b) disclosure of evidence against him; (c) the opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (e) a neutral and detached hearing body; and (f) a written statement by the fact finder as to the evidence relied on and reasons for revoking parole. Applicant is entitled to all of these things, but he has not claimed that he was denied them. We should not burden the trial court with obtaining affidavits regarding matters that were not pled. Presumably, the trial court determined before forwarding us the application that the claims had no merit. It doesn’t seem right to expect the trial court to address on remand matters that were apparently not at issue.

As to the first claim that applicant did make — that he was entitled to counsel under the Fair Defense Act at his parole revocation hearing — he has not pled sufficient facts to establish that he was entitled to counsel under the relevant statutes.

This is his second claim:

Parole revocation hearing held on March 28, 2005 with parole officer stating, “will get a response in 3 to 4 weeks.[”] It has now been well over 3 months and no answer as to parole violation hearing.

As to this claim, the record shows that a letter was sent to applicant on August 12, 2005, at the state jail where he is incarcerated, telling him that his parole was revoked due to a new conviction. Applicant has not complained that he was denied a written statement of the evidence relied on and reasons for revocation. It having been established that the claim that applicant made is unfounded, we should simply deny relief.

I dissent to the remand.


author: SARAH B. DUNCAN, Justice.

text:
    RENCARE, LTD., Appellant, v. UNITED MEDICAL RESOURCES, INC., IASIS Healthcare Corporation, and Southwest General Hospital, L.P., Appellees.
    No. 04-03-00816-CV.
    Court of Appeals of Texas, San Antonio.
    May 18, 2005.

      Tyler Scheuerman, Uzick, Oncken, Scheuerman & Berger, P.C., San Antonio, for appellant.
    Robert A. Ewert, Stephen R. Darling, Gonzales Hoblit Ferguson L.L.P., R. Jo Reser, Davidson & Troilo, P.C., San Antonio, for appellee.
    Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
   OPINION

Opinion by

SARAH B. DUNCAN, Justice.

RenCare, Ltd. appeals the judgment dismissing its tort claims against Southwest General Hospital, L.P.; Southwest’s parent and operator, IASIS Healthcare Corporation; and United Medical Resources, Inc. for lack of subject matter jurisdiction. We hold the trial court possessed subject matter jurisdiction over RenCare’s claims because they do not “arise under” the Medicare Act. We therefore reverse the trial court’s judgment and remand the cause for further proceedings consistent with this opinion.

Factual and PROCEDURAL Background

RenCare provides out-patient dialysis treatment to individuals suffering from end-stage renal disease (ESRD), more commonly known as kidney failure. Among the individuals RenCare serves is an employee of Southwest General Hospital, L.P., which is owned and operated by IASIS Healthcare Corporation. To protect the privacy of this patient (who is not a party to this appeal), the parties agreed to refer to the patient as “Patient Doe” in all documents that are filed with a court and thus accessible to the public. We will do likewise in this opinion.

As one of Southwest’s employees, Patient Doe is a beneficiary of Southwest’s self-funded group health care plan (the Plan). In 2002 administration of the Plan was transferred to United Medical Resources (UMR). Henceforth in this opinion, we will refer to Southwest General Hospital, IASIS Healthcare Corporation, and United Medical Resources collectively as “Southwest.” Sometime after the transfer to UMR, RenCare “communicated with [Southwest] to verify insurance coverage before accepting Patient Doe for continued dialysis treatments.” According to RenCare, Southwest “represented that there was full primary coverage for Patient Doe’s dialysis treatments without limitations and gave an unrestricted authorization number.” Accordingly, “RenCare undertook the care and provided dialysis to Patient Doe.” Some months later, however, when RenCare submitted its first group of invoices, Southwest refused to pay. After repeated demands failed to yield payment, in July 2002, RenCare filed this suit against Southwest for fraud and misrepresentation. RenCare seeks to recover the amount of its invoices through the date of trial, exemplary damages, attorney’s fees, and costs.

After RenCare filed suit, Southwest— for the first time — contended that the Plan was secondary to Medicare, which was the primary payer. Thereafter, at Southwest’s request, RenCare submitted its invoices to Medicare through its fiscal agent, Trailblazer Health Enterprises, L.L.C. Trailblazer rejected RenCare’s claim, stating as follows:

The intermediary’s records indicate that this beneficiary has coverage through a large group health plan that is primary over Medicare. Therefore, we are rejecting this claim. Please bill the primary insurer and submit a [Medicare as Second Payer] bill to Medicare upon receipt of the primary payment.

In keeping with this determination, Medicare thereafter determined its responsibility for Patient Doe’s dialysis in 2002 to be zero. In short, RenCare was told by Medicare that the Plan was the primary payer but was told by the Plan that Medicare was primary; thus neither would pay RenCare’s invoices.

According to UMR’s corporate representative, Deana Combs, UMR contacted Medicare several times to obtain an explanation for Medicare’s rejection of Ren-Care’s claim; but “Medicare ... refuse[d] to provide this information to UMR.” Also according to Combs, another of UMR’s employees, Peggy Olson, on June 20, 2002 “had a telephone conversation with ‘Marian’ of Medicare”; during this conversation, “Marian acknowledged that Medicare was the primary insurer of Patient Doe’s ESRD treatment.” However, Combs admitted during her deposition that UMR is unable to produce any written documentation from Medicare indicating that it was the primary payer for Patient Doe’s 2002 dialysis, nor is UMR able to produce written confirmation from Medicare of the telephone conversation between Olson and “Marian of Medicare.”

After discovery, Southwest moved to dismiss RenCare’s suit on the ground that the trial court lacked subject matter jurisdiction over RenCare’s claims, because they are for Medicare benefits or “inextricably intertwined” with Medicare benefits; accordingly, RenCare was required to exhaust its administrative remedies. Because RenCare failed to do so, the trial court lacked subject matter jurisdiction. The trial court agreed, ruling that Ren-Care’s “claim is inextricably intertwined with [its] claim for Medicare benefits” and therefore barred by the Medicare Act. The trial court also ruled “that Medicare was the primary insurer for [Patient Doe’s] dialysis treatments during calendar [year] 2002.” The court thus dismissed Ren-Care’s suit for lack of subject matter jurisdiction. RenCare appealed.

Standard and Scope of Review

“Statutory construction is a question of law that we review de novo.” In re Forlenza, 140 S.W.3d 373, 376 (Tex. 2004). Likewise, “[w]hether a court has subject matter jurisdiction is a question of law.” Texas Dep’t. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). In deciding whether the trial court had jurisdiction, we are “not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000).

“ARISES UNDER”

In its first issue, RenCare argues the trial court erred in ruling that RenCare’s claims are “inextricably intertwined” with a claim for Medicare benefits and thus “arise under” the Medicare Act. This issue is dispositive of RenCare’s appeal because if its claims “arise under” the Medicare Act, RenCare must exhaust its administrative remedies before it may file suit. Conversely, if RenCare’s claims do not “arise under” the Medicare Act, it was not required to exhaust its administrative remedies before filing suit.

Applicable Law

42 U.S.C. § 405(h), made applicable to the Medicare Act by 42 U.S.C. § 1395Ü, provides that § 405(g) is the sole avenue for judicial review of all ‘claims arising under’ the Medicare Act.” RenCare, Ltd. v. Humana Health Plan of Texas, Inc., 395 F.3d 555, 557 (5th Cir.2004). Section 405(g) provides in part as follows:

Any individual, after any final decision of the Secretary [of Health and Human Services] made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow.

42 U.S.C. § 405(g) (emphasis added); 42 U.S.C. § 1395ff(b)(l)(A). “[T]he Secretary has provided that a ‘final decision’ is rendered on a Medicare claim only after the individual claimant has pressed his claim through all designated levels of administrative review.” Heckler v. Ringer, 466 U.S. 602, 606, 104 S.Ct. 2013, 2017, 80 L.Ed.2d 622 (1984). Accordingly, if a claim “arises under” the Medicare Act, the claimant must exhaust its administrative remedies before it may seek judicial review. See id., 466 U.S. at 622, 104 S.Ct. 2013. If the claimant fails to do so, the district court lacks subject matter jurisdiction over the claim. See id.

Claims “arise under” the Medicare Act if “‘both the standing and the substantive basis for the presentation’ of the claims” is the Medicare Act. Id. at 615, 104 S.Ct. 2013 (quoting Weinberger v. Salfi, 422 U.S. 749, 760-61, 95 S.Ct. 2457, 2464-65, 45 L.Ed.2d 522 (1975)). If a claim is “based on state law, the standing and substantive basis for [the] claim[ ] is clearly not the Medicare Act.” RenCare, 395 F.3d at 557. Since state law forms the basis of all of RenCare’s claims in this case, Southwest admits the first test does not apply. Southwest instead relies upon the second test for whether a claim “arises under” the Medicare Act: if the claim is “inextricably intertwined with what ... is in essence a claim for [Medicare] benefits.” Ringer, 466 U.S. at 624, 104 S.Ct. 2013.

“Inextricable” means “incapable of being disentangled or untied,” while “intertwined” means “to unite by twining with one another.” WebsteR’s Ninth New Collegiate DictionaRY 618, 633 (Merriam-Webster, Inc.1990). The Eighth Circuit Court of Appeals- has thus held that a claim is “inextricably intertwined” with a claim for Medicare benefits and therefore “jurisdictionally barred” if resolving the claim “would necessarily mean redeciding” Medicare’s claim decision. Midland Psychiatric Assocs., Inc. v. United States, 145 F.3d 1000, 1004 (8th Cir.1998).

In Midland Psychiatric, Midland Psychiatric Associates entered into contracts with two hospitals to provide nursing-home residents with partial hospitalization services, which are covered under Part B of the Medicare Act. Midland Psychiatric Assocs., 145 F.3d at 1001. “Midland billed the hospitals, and the hospitals in turn submitted Medicare claims for Midland’s services to Mutual, a Medicare [fiscal agent].” Id. at 1002. However, “Mutual denied thousands of the hospitals’ Midland-related claims,” with the result that “the hospitals eventually dropped Midland’s services, and several hospitals thinking of contracting with Midland decided against it.” Id. Ultimately, Midland filed suit “against Mutual and the United States, claiming Mutual had tortiously interfered with Midland’s past and prospective hospital contracts and the Government had supervised Mutual negligently.” Id.

To determine whether Midland’s tor-tious interference claim was “inextricably intertwined” with a claim for Medicare benefits and thus preempted by the Medicare Act, the Eighth Circuit, like the district court, began its analysis with the applicable state law governing tortious interference claims. Id. “Under that law, Midland would have to prove, among other elements, that Mutual interfered with Midland’s hospital contracts without justification.” Id. Since “Mutual cannot be held liable for tortious interference if it had a right to deny the hospitals’ claims,” “[t]he district court ... correctly concluded that hearing Midland’s tortious interference claim against Mutual would mean reviewing the merits of Mutual’s Medicare claims decisions” and that “42 U.S.C. § 405(h) deprived it of the power to conduct such a review.” Id.; see also id. at 1004. Accordingly, the court held, Midland’s claim arose under the Medicare Act and was jurisdictionally barred. Id.; cf. Affiliated Prof'l Home Health Care Agency v. Shalala, 164 F.3d 282, 285 (5th Cir.1999) (noting that “to fully address [the plaintiff health care agency’s] claim that their due process and equal protection rights were violated through the improper enforcement of Medicare regulations, a court would necessarily have to immerse itself in those regulations and make a factual determination as to whether [the plaintiff health care agency] was actually in compliance”).

Discussion

To prevail on its fraud and intentional misrepresentation claims, RenCare must establish four elements: (1) Southwest made a material representation that was false; (2) Southwest knew the representation was false or made it recklessly as a positive assertion without any knowledge of its truth; (3) Southwest intended to induce RenCare to act upon the representation; and (4) RenCare actually and justifiably relied upon the representation and thereby suffered injury. See Ernst & Young, L.L.P. v. Pacific Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex.2001) (stating elements of fraud claim); see also Smith v. Tilton, 3 S.W.3d 77, 88 (Tex.App.-Dallas 1999, no pet.) (holding appellant’s claim for intentional misrepresentation was the same as her fraud claim). To recover on its negligent misrepresentation claim, Ren-Care must also establish four elements: (1) Southwest supplied RenCare with “false information” for RenCare’s guidance in its business; (2) Southwest supplied this false information in the course of its business, or in a transaction in which it had a pecuniary interest; (3) Southwest did not exercise reasonable care or competence in obtaining or communicating the information; and (4) RenCare suffered pecuniary-loss by justifiably relying on the representation. See Federal Land Bank Ass’n of Tyler v. Sloane, 825 S.W.2d 439, 442 (Tex.1991).

As noted above, RenCare alleges Southwest misrepresented that there was “full primary coverage for Patient Doe’s dialysis treatments without limitations”; RenCare relied upon Southwest’s representation and provided Patient Doe with dialysis treatments; Southwest’s representation was false; and RenCare suffered damages in the amount of its invoices, attorney’s fees, and costs. We do not, of course, address whether RenCare’s allegations can be proved. We reiterate the allegations here for the sole purpose of demonstrating that RenCare’s claims, unlike Midland’s tortious interference claim, would not “necessarily mean redeciding” Medicare’s claim decision. See Midland, 145 F.3d at 1002, 1004.

In support of the trial court’s ruling, Southwest argues that the Supreme Court in Ringer “explicitly held that regardless of how a plaintiff attempts to characterize its claim, it is inextricably intertwined with a claim for Medicare benefits if, ‘at bottom’, it is a claim for expenses reimbursable under the Medicare Act.” But this is incorrect. To understand what the Court did say, it is necessary to understand that the plaintiffs in Ringer were individual Medicare claimants, who filed suit against the Secretary of Health and Human Services to challenge her policy that Medicare would not provide benefits for bilateral carotid body resection. Ringer, 466 U.S. at 604-05, 104 S.Ct. 2013. The claimants’ complaint sought “a declaration that the Secretary’s refusal to find that [the] surgery is ‘reasonable and necessary’ under the Act is unlawful, an injunction compelling the Secretary to instruct her intermediaries to provide payment for [claims for the surgery], and an injunction barring the Secretary from forcing claimants to pursue individual administrative appeals in order to obtain payment.” Id. at 614, 104 S.Ct. 2013. It is in this context that the Court states: “It seems to us that it makes no sense to construe the claims of those three respondents [who had already had the surgery] as anything more than, at bottom, a claim that they should be paid for [the surgery].” Id. at 614, 104 S.Ct. 2013. Read in context, this statement in Ringer states simply that a Medicare enrollee’s claim for reimbursement from Medicare states a claim that “arises under” the Medicare Act. This statement thus does not support the trial court’s ruling here since RenCare, unlike the Ringer claimants, is not an individual Medicare claimant, it has not sued the Secretary, and it does not seek reimbursement from Medicare for a claim that has been determined to be outside the Medicare Act’s coverage.

Southwest cites three additional cases to support the trial court’s ruling: Foley v. Southwest Texas HMO, Inc., 226 F.Supp.2d 886, 890 (E.D.Tex.2002); Lifecare Hosps., Inc. v. Ochsner Health Plan, Inc., 139 F.Supp.2d 768 (W.D.La.2001); and RenCare, Ltd. v. Humana Health Plan of Texas, Inc., No. SA-02-CA-1157-RF (W.D.Tex. Mar. 25, 2003), rev’d, 395 F.3d 555 (5th Cir.2004). None of these, ultimately, persuade us of Southwest’s position.

In RenCare, RenCare sued Humana to recover for kidney dialysis services “Hu-mana approved of, and RenCare provided” to “Humana’s enrollees, including its M + C enrollees.” RenCare, 395 F.3d at 557, 558. M+C stands for “Medicare + Choice” (now called Medicare Advantage), under Medicare Part C, “which provides medical benefits to its enrollees through a range of coverage plans ... and is administered by private, managed health care organizations.” Id. at 556. “M + C organizations receive fixed monthly payments from [the Center for Medicare and Medicaid Services, a division of the United States Department of Health and Human Services]” “regardless of the value of services the patient actually receives.” Id. at 556-57. The district court initially retained jurisdiction over and subsequently dismissed RenCare’s claims relating to the M + C enrollees because “RenCare failed to exhaust its administrative remedies under the Medicare Act.” Id. at 557. Indeed, the district court ruled in Humana’s favor in reliance upon the same misquotation from Ringer and the same cases cited by Southwest in this case:

[Ujnder Foley and Lifecare, the existence of a contractual relationship between [RenCare] and [Humana] is irrelevant if [RenCare’s] claims are, at bottom, claims for benefits under Medicare. Since the contract in this case, to the extent it pertains to Medicare enrollees, ultimately concerns services reimbursable by Medicare, the Court holds that these claims arise under the Medicare Act.

RenCare, Ltd. v. Humana Health Plan of Texas, Inc., No. SA-02-CA-1157-RF, at 2 (W.D.Tex. Mar. 25, 2003) (emphasis added).The Fifth Circuit reversed, agreeing with RenCare “that its claims do not arise under federal law and thus are not subject to federal jurisdiction or federal administrative remedies.” RenCare, 395 F.3d at 557. In support of its decision, the Fifth Circuit contrasted the situation presented to it in RenCare with the situation presented to the Supreme Court in Ringer as follows:

Here, Medicare beneficiaries were not denied services or reimbursement for services. To the contrary, Humana approved of, and RenCare provided, the kidney dialysis services for which Ren-Care seeks payment. Because RenCare has waived its right to payment from enrollees in its contract with Humana, Humana’s M + C enrollees are not at risk of being billed for the services that RenCare provided them. Thus, unlike the situation in Ringer, there are no enrollees seeking Medicare benefits. Furthermore, while the government had an interest in the outcome of the Ringer litigation, the government has no financial interest in the present case because it pays Humana a flat rate each month for Humana’s services to M+C enroll-ees, regardless of the services it renders to M + C beneficiaries. Irrespective of who ultimately prevails, the government will not receive or pay out funds. The dispute is solely between Humana and RenCare and is based on the parties privately-agreed-to payment plan.

Id. at 558. So it is here: Patient Doe has not been denied services or reimbursement for services; rather, Southwest — like Hu-mana — approved of, and RenCare provided, the kidney dialysis treatments that underlie RenCare’s claims; RenCare has not sought payment for its services from Patient Doe; and, since Medicare’s fiscal agent has determined Medicare’s liability for Patient Doe’s 2002 dialysis treatments to be zero, regardless of who prevails in this lawsuit, “the government will not receive or pay out funds.”

Another factor the Fifth Circuit found significant in RenCare was that, under Part C of the Medicare Act, “Humana’s failure to pay RenCare is not an organization determination that RenCare could appeal within the mandatory administrative review mechanism.” Id. at 560. The court thus concluded that RenCare had “no administrative remedies ... to exhaust. ...” Id. So it is here. It does not appear that RenCare is entitled to participate in the administrative review process provided by 42 U.S.C. § 1395ff(b)(l)(A), because it is not an “individual” who even had a basis for being “dissatisfied” with Trailblazer’s initial determination that Medicare was the secondary payer and the Plan the primary payer for Patient Doe’s dialysis treatments. See 42 U.S.C. § 1395ff(b)(l)(A) (providing a mechanism by which “any individual dissatisfied” with an initial determination may obtain a rede-termination by the fiscal agent as the first step in the administrative review process).

Nor does it appear that RenCare could avail itself of the review provided by 42 U.S.C. § 1395oo, since the Provider Reimbursement Review Board provided by that section does not have jurisdiction over “coverage” decisions. See 42 U.S.C. § 1395oo(g)(l) (“The finding of a fiscal intermediary that no payment may be made under this subchapter for any expenses incurred for items or services furnished to an individual because such items or services are listed in section 1395y of this title shall not be reviewed by the Board, or by any court pursuant to an action brought under subsection (f) of this section.”); see also, e.g., Curators, Univ. of Mo. v. Sullivan, 963 F.2d 220, 221-22 (8th Cir.1992) (“It is clear from the analysis in Highland [Dist. Hosp. v. Sec’y of Health & Human Servs., 676 F.2d 230 (6th Cir.1982) ] and our own reading of § 1395oo that the PRRB has no discretion to hear coverage claims.”), cert. denied, 506 U.S. 953, 113 S.Ct. 407, 121 L.Ed.2d 332 (1992).

The Fifth Circuit’s decision in RenCare was recently discussed by the Fourteenth Court of Appeals in Christus Health Gulf Coast v. Aetna, Inc., 167 S.W.3d 879, 888 n. 10 (Tex.App.-Houston [14th Dist.] 2005, no pet. h.). In Christus, the third-party administrator “became insolvent and never responded to approximately 6,000 claims from the [plaintiff] Hospitals totaling over $13 million.” Id. at 882. The Fourteenth Court of Appeals held that “the Hospitals’ claims arise under the Medicare Act”; therefore, “the trial court did not have subject matter jurisdiction over the Hospitals’ claims.” Id. at 884. In doing so, the court agreed with the analysis in the two remaining cases cited by Southwest — Foley and Lifecare — and distinguished the Fifth Circuit’s decision in RenCare as involving a “pure payment dispute,” while the case before the court involved at least “[t]he potential of a coverage dispute” since a coverage determination had never been made. Id. at 888 n. 10. We also note, as RenCare does, that the defendants in Foley and Lifecare were managed care entities that served as Medicare’s fiscal agents and were thus authorized to make the initial decisions on Medicare claims. Southwest, on the other hand, is not a fiscal intermediary.

We conclude, as the Fifth Circuit did in RenCare, that “RenCare’s claims are not intertwined, much less ‘inextricably intertwined,’ with a claim for Medicare benefits. At bottom, RenCare’s claims are claims for payment pursuant to a contract between private parties.” Rencare, 395 F.3d at 559. In short, as in RenCare, the dispute is a private one between RenCare and Southwest and based on Southwest’s alleged misrepresentation. Cf. Transitional Hosps. Corp. v. Blue Cross & Blue Shield of Texas, Inc., 164 F.3d 952, 955 (5th Cir. 1999) (holding that plaintiffs claim that defendant negligently misrepresented coverage under ERISA plan not preempted because “not dependent on or derived from [employee’s] right to recover benefits under the ... plan”; but plaintiffs contract claim was preempted). We therefore hold RenCare’s tort claims do not “arise under” the Medicare Act. Consequently, RenCare was not required to exhaust its administrative remedies (if it had any) before filing suit. The trial court therefore erred in dismissing RenCare’s claims.

MEDICARE AS SECONDARY PAYER

In its second issue, RenCare argues the trial court erred in ruling that Medicare is the primary payer for Patient Doe’s ESRD, while Southwest argues that “federal law is abundantly clear that Medicare, rather than the Plan, is the primary insurer for Patient Doe’s ESRD treatment.” Although resolving this dispute is not necessary to our disposition of Ren-Care’s appeal, we have decided nonetheless to address it, if only to lessen the parties’ confusion regarding Trailblazer’s statement that the Plan — not Medicare— is the primary payer for Patient Doe’s dialysis treatment.

Southwest is correct that “the [f]ederal [c]ode and accompanying regulations explicitly set forth a ‘coordination period’ during which time the Plan would be the primary insurer” and, after the expiration of the coordination period, “the issue of primary versus secondary coverage is resolved by referring to the language of the Plan.” See 42 U.S.C. § 1395y(b)(l)(C); 42 CFR § 411.162. Southwest is also correct that by 2002 Patient Doe’s coordination period had expired; consequently, the issue of whether the Plan or Medicare was the primary payer is to be resolved by the Plan’s language. But Southwest is incorrect in asserting that its “Plan language ... makefs] Medicare the primary insurer for Patient Doe’s ESRD Treatment.” In support of its assertion, Southwest cites paragraph 11 of the affidavit of Deana Combs, UMR’s corporate representative and a UMR Account Manager. In this paragraph, Combs states as follows:

After the expiration of the “coordination period,” then the issue of coordinating benefits between Medicare and the Plan is resolved by turning to the language utilized by the plan. The Plan contains a section explicitly addressing coordination of benefits with other insurers, including Medicare. Attached hereto as Exhibit 2 are true and accurate copies of pages 67-69 of the Plan’s Summary Plan Description (“SPD”). Pursuant to the explicit language of the Plan, after the expiration of the “coordination period,” Medicare is the primary insurer of any claims submitted associated with treatment for ESRD. After the “coordination period,” the Plan would provide benefits, where applicable, only on a secondary basis.

We have painstakingly reviewed pages 67-69 of the Plan’s Summary Plan Description and have found only one sentence that addresses the primary versus secondary payer issue. That sentence states: “Medicare will pay primary, secondary or last to the extent stated in federal law.” This sentence is far from “explicit language” that “Medicare is the primary insurer of any claims submitted associated with treatment for ESRD.” To the contrary, this sentence explicitly states that Medicare’s status as primary or secondary payer is determined by federal law. We therefore turn to the pertinent federal law — 42 U.S.C. § 1395y — otherwise known as the Medicare as Secondary Payer Act or MSP. See generally, e.g., Fanning v. United States, 346 F.3d 386, 388-89 (3rd Cir.2003), cert. denied, 542 U.S. 919, 124 S.Ct. 2872, 159 L.Ed.2d 776 (2004); Health Ins. Ass’n of Am., Inc. v. Shalala, 23 F.3d 412, 414-15 (D.C.Cir.1994), cert. denied, 513 U.S. 1147, 115 S.Ct. 1095, 130 L.Ed.2d 1064 (1995); Blue Cross & Blue Shield of Texas, Inc. v. Shalala, 995 F.2d 70, 73-74 (5th Cir.1993); In re Dow Corning Corp., 250 B.R. 298, 335-36 (E.D.Mich.2000) (all setting forth the history of the MSP).

“The MSP statute was designed to curb skyrocketing health costs and preserve the fiscal integrity of the Medicare system” “by requiring Medicare beneficiaries to exhaust all available insurance coverage before looking to Medicare’s coverage.” Fanning, 346 F.3d at 388-89. Thus, “[t]he MSP assigns primary responsibility for medical bills of Medicare recipients to private health plans when a Medicare recipient is also covered by private insurance.” Id. at 389. “These private plans are therefore considered ‘primary’ under the MSP and Medicare acts as the ‘secondary* payer responsible only for paying amounts not covered by the primary plan.” Id. The first way in which this is achieved is by “bar[ring] Medicare payments where ‘payment has already been made or can reasonably be expected to be made promptly (as determined in accordance with regulations),’ by a primary plan.” Id. Section 1395y(b)(2)(A) thus provides as follows:

(A) In general Payment under this sub-chapter may not be made, except as provided in subparagraph (B), with respect to any item or service to the extent that—
(i) payment has been made, or can reasonably be expected to be made, with respect to the item or service as required under paragraph (1),

42 U.S.C. § 1395y(b)(2)(A). “This provision ‘is intended to keep the government from paying a medical bill where it is clear an insurance company will pay instead.’ ” Fanning, 346 F.3d at 389 (quoting Evanston Hosp. v. Hauck, 1 F.3d 540, 544 (7th Cir.1993)); see also National Ass’n of Patients on Hemodialysis & Transplantation, Inc. v. Heckler, 588 F.Supp. 1108, 1114 (D.D.C.1984) (“Another section of the Omnibus Budget Reconciliation Act of 1981 amended portions of the Social Security Act to provide that Medicare benefits based solely on the ESRD program are secondary to benefits payable under employer group health plans. The law provides that the Secretary may not pay benefits on behalf of ESRD beneficiaries who are covered under employer group health plans, if payment under such a plan has been made or ‘the Secretary determines will be made ... as promptly as would otherwise be the case if payment were made by the Secretary under this title.’ ” (citing 42 U.S.C. § 1395y(b)(2)(A))).

So could Medicare reasonably expect the Plan to pay for Patient Doe’s dialysis treatments under paragraph (1) of U.S.C. § 1395y(b)? Certainly Medicare did expect the Plan to pay as the primary payer, as evidenced by TrailBlazer’s rejection of RenCare’s claim because “the fiscal intermediary’s records indicate that [Patient Doe] has coverage through a large group health plan that is primary over Medicare.” And this expectation was reasonable since the Plan fails to make Medicare the primary payer after the expiration of the coordination period. Indeed, as Ren-Care points out, the Plan in fact met its obligation to act as the primary payer for Patient Doe’s dialysis in 2003, when Patient Doe chose a different Plan option— with the same “coordination of benefits” provision — but a different third-party administrator.

In short, although the Plan was permitted by the Medicare Act to make Medicare the primary payer for Patient Doe’s dialysis, the Plan failed to do so and instead made federal law controlling on the issue. Since federal law plainly makes Medicare a secondary payer, the Plan — not Medicare- — was the primary payer of RenCare’s invoices. The trial court therefore erred in ruling to the contrary.

Conclusion

We hold RenCare’s tort claims do not “arise under” the Medicare Act. Consequently, RenCare was not required to exhaust its administrative remedies (if indeed it had any); and the trial court erred in dismissing its suit. Accordingly, we reverse the judgmént and remand the cause to the trial court for further proceedings consistent with this opinion.

      . In 1973, Medicare coverage was extended to individuals suffering from ESRD. National

        Ass’n of Patients on Hemodialysis and Transplantation, Inc. v. Heckler, 588 F.Supp. 1108, 1112 (D.D.C.1984) (citing section 2991 of the Social Security Amendments of 1972, 42 U.S.C. §§ 426(f), (g)). It is undisputed that Patient Doe is a Medicare enrollee.

      . Trailblazer is a “fiscal intermediary,” which "is an entity that has contracted with the Secretary [of Health and Human Services] to determine for the Secretary whether services provided ... are covered under the Medicare Act and the amount due the provider of services” under Medicare Part A. Homewood Prof'l Care Ctr., Ltd. v. Heckler, 764 F.2d 1242, 1244 n. 2 (7th Cir.1985); see 42 U.S.C. § 1395h. A “Medicare carrier” is the Medicare "Part B counterpart of the Part A fiscal intermediary.” Bartlett Mem’l Med. Ctr., Inc. v. Thompson, 347 F.3d 828, 843 (10th Cir.2003); see 42 U.S.C. § 1395u. In this opinion, we will refer both to fiscal intermediaries and to carriers as "fiscal agents."

      . Combs further states in her affidavit that “Olson contemporaneously entered notes summarizing the substance of this conversation in UMR’s computerized database” and cites in support Exhibit 2 to her affidavit. However, Exhibit 2 to Combs’s affidavit is not Olson's notes but pages 67-69 of the Summary Plan Description.

      . RenCare, a supplier, is not an "individual” for purposes of section 1395ff. However, a supplier may represent an individual Medicare beneficiary; but the supplier must waive its right to payment from the Medicare beneficiary. 42 U.S.C. § 1395ff(b)(1 )(B)(ii). Although there is no evidence that RenCare has sought to collect from Patient Doe, there is also no evidence that it has waived its right to do so. The record does establish that Ren-Care does not accept assignments.

      . The defendants in RenCare in the Fifth Circuit and Christus in the Fourteenth Court of Appeals were also Medicare fiscal agents.

      . Consistent with the title of the act — Medicare as Secondary Payer — the exception in subparagraph (B) permits Medicare to make payment "conditioned on reimbursement.” Id. § 1395y(b)(2)(B).

      . In this regard, we note that 42 U.S.C. § 1395y(b)(3)(A) "established] a private cause of action for damages (which shall be in an amount double the amount otherwise provided) in the case of a primary plan which fails to provide for primary payment (or appropriate reimbursement) in accordance with such paragraphs (1) [requirements of group health plans] and 2(A) [Medicare secondary payer].” See Health Ins. Ass'n of Am., Inc., 23 F.3d at 414-15 (noting that section 1395y(b)(3)(A) permits “private party or government” to sue for double damages).