author: HERVEY, J., KELLER, P.J.,

text:
    Shannon Eugene HAYES, Appellant, v. The STATE of Texas.
    No. PD-0191-04.
    Court of Criminal Appeals of Texas.
    April 27, 2005.
    Stanley G. Schneider, Houston, for Appellant.
    David C. Newell, Assist. DA, Richmond, Matthew Paul, State’s Attorney, Austin, for State.
   OPINION

HERVEY, J.,

delivered the opinion of the Court

in which MEYERS, PRICE, WOMACK, KEASLER, HOLCOMB and COCHRAN, JJ., joined.

In Tate v. State, we decided that Tex.R. Evid. 404(b) allowed a defendant claiming self-defense in a murder prosecution to present evidence of the deceased’s prior threat against him. We found this evidence had noncharacter conformity relevance supporting the defendant’s self-defense claim that the deceased was the first aggressor at the time of the offense. See Tate v. State, 981 S.W.2d 189, 193 (Tex.Cr. App.1998). In this case, we are asked to decide if our decision in Tate applies even when the deceased’s prior conduct does not “implicate” the defendant.

The record reflects that three indictments were filed. The third indictment charged appellant with murder and with manslaughter. See Section 19.02, Tex. Pen.Code (murder); Section 19.04, Tex. Pen.Code (manslaughter). The evidence shows that appellant shot and killed an innocent third party (Swain) while appellant was firing a gun in the general direction of Swain and another person (Delaney). Appellant claimed self-defense because Delaney was threatening him with deadly force, and the jury was instructed on self-defense as it applied to the murder charge. See Hayes v. State, 124 S.W.3d 781, 784-85 (Tex.App.-Houston [1st Dist.] 2003). The jury was also instructed that self-defense did not apply to the manslaughter charge. See id. The jury acquitted appellant of murder and convicted him of manslaughter. See id.

At trial, the trial court excluded appellant’s proffered testimony of two witnesses (Bell and Paisley) who would have testified that Delaney had threatened them with a gun about two years before the incident in this case. See id.

[DEFENSE]: There’s [Bell and Paisley]. The proffer, I believe they’re admissible, Your Honor, under Rule 404(b) to show the proof of a motive, opportunity, intent, preparation, plan, and lack of accident on the part of [Delaney] in attacking [Bell and Paisley] in a car, running up to a car after getting in a fight with one. They’re signature episodes of [Delaney], and I would request the opportunity to present both of them, or at least one of them, to describe the events that they saw and observed, and how he attacked them with a gun and tried to kill both of them. I believe they’re admissible under 404(b).
[STATE]: The State’s response is that they’re not admissible under 404(b), and that they’re being offered to show that the witness acted in conformity therewith. They have no probative value as to show what the witness’ intent was, what [Delaney’s] intent was involving [appellant] who’s on trial today. Also, the State contends that under a prejudicial analysis under 402 and 403, that the prejudicial value substantially outweighs the probative effects.
[TRIAL COURT]: Is that an objection?
[STATE]: It is, Your Honor. We object.
[DEFENSE]: The State’s not entitled to due process under course of law. Any balancing has to be in favor of [appellant], not the State, because it shows the way [Delaney] thinks and operates when there’s alcohol involved and that he gets angry. So, I believe that under 404(b), it shows his modus oper-andi of not being afraid to attack two people when he’s angry.
[TRIAL COURT]: Objection sustained. Anything else?

Appellant claimed on direct appeal that the excluded evidence of Delaney’s prior aggression against Bell and Paisley was admissible under Rule 404(b) to show that Delaney was the first aggressor during the incident in which appellant shot and killed Swain. See Hayes, 124 S.W.3d at 786. The Court of Appeals rejected this claim and decided:

In Tate, a threat made by the victim toward the defendant could be introduced as evidence of the victim’s state of mind and possibly his motive for the confrontation with the defendant. (Citation omitted). The testimony was probative of whether the victim was the initial aggressor, but it could be brought in for other purposes. (Citation omitted). In the instant case, the incident about which appellant wished to introduce testimony did not implicate appellant in any way. Delaney did not make any threat toward appellant, and Delaney did not indicate that he had any animosity toward appellant. The incident is not probative of Delaney’s motivation or state of mind related to the confrontation with appellant.

See Hayes, 124 S.W.3d at 786.

We exercised our discretionary authority to review this decision. The ground upon which we granted discretionary review states:

Whether this Court’s decision in [Tate ] requires the Defendant to have been “implicated” by the victim’s prior bad act before such evidence is admissible under Rule 404(b)?

This Court’s decision in Tate does not require a defendant to have been “implicated” by the victim’s prior bad act before such evidence can be admissible under Rule 404(b). In Torres v. State, we applied Tate to decide that, in a murder prosecution where a defendant claims self-defense, the deceased’s prior threats may be admitted, even though those threats were not directed at the defendant, “as long as the proffered [threats] explain the outward aggressive conduct of the deceased at the time of the killing, and in a manner other than demonstrating character conformity only.” See Toms v. State, 71 S.W.3d 758, 761-62 (Tex.Cr.App.2002).

In this case, however, it is unnecessary to decide whether the evidence of Delaney’s two-year-old specific acts of violence against Bell and Paisley was admissible under Torres and Tate because the only relevance of this evidence was to the murder charge of which the jury acquitted appellant.

The judgment of the Court of Appeals is affirmed.

KELLER, P.J., filed a concurring opinion in which JOHNSON and COCHRAN, JJ., joined.

KELLER, P.J.,

concurring in which JOHNSON and COCHRAN, JJ., joined.

The touchstone for the admissibility of extraneous “bad act” evidence is Texas Rule of Evidence 404(b). Pre-rules cases that conflict with the rule have been superseded. The rule simply provides that extraneous bad acts are not admissible to prove character conformity but may be admissible for other purposes. Post-rules cases such as Tate v. State will often expound a particular nonconformity purpose that allows admission of bad-acts evidence. But the fact that evidence is admissible because of a particular set of circumstances does not mean that the evidence is automatically inadmissible if that particular set of circumstances is not present.

Before the court of appeals, appellant’s only proffered bases for admitting the evidence were his knowledge of the victim’s prior conduct and the generic tendency of this conduct to show that the victim was the first aggressor. Concluding that no evidence in the record showed that appellant was aware of the prior conduct at issue, the court of appeals rejected the first basis, and that holding is not before us.

In support of the second basis, appellant advanced two lines of authority: (1) Tate and (2) a line of cases beginning with Dempsey v. State. Although the Dempsey line of cases held that evidence of prior bad acts was admissible to show that the alleged victim was the first aggressor based solely upon a character conformity inference, those holdings have been superseded by Rule 404(b).

As for appellant’s argument under Tate, the Court of Appeals explained that Tate involved “a threat made by the victim toward the defendant,” which was relevant to show “the victim’s state of mind and possibly his motive for the confrontation with the defendant.” By contrast, the court of appeals explained, the prior conduct in the present case had nothing to do with appellant:

In the instant case, the incident about which appellant wished to introduce testimony did not implicate appellant in any way. Delaney did not make any threat toward appellant, and Delaney did not indicate that he had any animosity toward appellant. The incident is not probative of Delaney’s motivation or state of mind related to the confrontation with appellant. Therefore, while appellant could introduce character evidence to suggest that [Delaney] was the aggressor, he could not introduce evidence of these specific acts and events because such evidence was not admissible for other purposes.

I do not read the court of appeals’s opinion to hold that Tate limited the admissibility of evidence to those instances in which the victim’s prior bad acts implicated the defendant. Rather, I read the court of appeals as simply holding that Tate did not supply a basis for admitting appellant’s evidence because his evidence was not like the evidence in that case, and no other basis for admitting the evidence was apparent.

Appellant failed to explain to the court of appeals, or to this Court, what admissible purpose his proffered evidence was relevant to, other than to cite to “first aggressor,” and no other purpose is apparent. The only post-rules authority cited by appellant in the court below was Tate, and the court of appeals did a good job explaining why Tate was distinguishable from appellant’s case.

I concur in the Court’s judgment.

      . The first three paragraphs of this indictment charged murder and the fourth paragraph charged manslaughter.

      . The jury essentially was instructed to acquit appellant of murdering Swain if appellant had the right to use self-defense against Delaney.

      . Section 9.05, Tex. Pen.Code, makes self-defense unavailable to a defendant who recklessly injures or kills an innocent third person. See Section 19.04(a) (defining manslaughter as recklessly causing the death of an individual). In considering whether appellant was guilty of manslaughter, the jury was instructed as follows:
      Even though a defendant is justified in threatening or using force or deadly force against another, if in doing so he recklessly injures or kills an innocent third person, the justification afforded is unavailable in a prosecution for the reckless injury or killing of the innocent third person.

      . We express no opinion on whether appellant preserved this claim in the trial court. See Tex.R.App. Proc., 33.1(a)(1)(A), (to preserve claim for appellate review, record must show that complaint was timely made to trial court with sufficient specificity to make trial court aware of the complaint).

      . Tate v. State, 981 S.W.2d 189, 192 (Tex. Crim.App.1998).

      . Rule 404(b) provides in relevant part:
      Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....

      . See Tate, supra.

      . 159 Tex.Crim. 602, 266 S.W.2d 875 (1954).

      . Tate, 981 S.W.2d at 192.

      . Hayes v. State, 124 S.W.3d 781, 786 (Tex. App.-Houston [1st Dist.] 2003).

      . Id.


source: Caselaw Access Project

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

license: Public Domain

text:
    Carol B. PHILLIPS, Appellant, v. The STATE of Texas.
    No. PD-1400-03.
    Court of Criminal Appeals of Texas.
    April 27, 2005.
    W. Troy McKinney, Houston, for Appellant.
    David C. Newell, Assist. DA, Richmond, Matthew Paul, State’s Attorney, Austin, for State.
   OPINION

MEYERS, J.,

delivered the opinion of the Court,

in which PRICE, WOMACK, JOHNSON, HERVEY, HOLCOMB, and COCHRAN, J.J., joined.

After appellant pled nolo contendere to the offense of the sale of an alcoholic beverage to a minor, she timely filed an appeal with the Thirteenth Court of Appeals in Corpus Christi pursuant to Texas Rule of Appellate Procedure Article 25.2(b)(3), claiming that the trial court improperly denied her motion to suppress evidence. The court of appeals held that the trial court erred in denying Appellant’s motion to suppress, and remanded the case for further proceedings consistent with its opinion. We will reverse.

I. Facts

On October 30, 1998, 17-year-old Shannon Berger entered the Mustang Lounge at the direction of her Aunt, Berenice Berger, a Texas Alcoholic Beverage Commission (“TABC”) agent. Shannon Berger was to attempt to purchase an alcoholic beverage inside the bar as part of an undercover operation by the TABC. She was accompanied by another TABC agent, Daryl Darnell, who witnessed the events that occurred inside the bar. Appellant sold a beer to Shannon Berger, a minor, without asking for identification in violation of § 106.03 of the Texas Alcoholic Beverage Code. TABC agents subsequently detained Appellant and issued her a citation.

Appellant filed a motion to suppress “any evidence acquired as a result of the actions” of the TABC officers. Appellant based this motion on the fact that there was a sign posted in the Mustang Lounge which prohibited any persons younger than 18 years of age from being on the premises. Appellant argued that because Shannon Berger was 17 years old, she committed criminal trespass at the direction of the TABC agents by remaining on the property despite the existence of the sign. Thus, Appellant asserted that the actions of the TABC agents were illegal, and any evidence acquired by them as a result of their investigation should be suppressed according to Texas Code of Criminal Procedure Article 38.23 and Article 1 § 9 of the Texas Constitution. A hearing on the motion was granted, and an associate judge granted the motion to suppress. The State appealed the judge’s order and requested a hearing de novo before the trial court, which subsequently denied the motion to suppress. The Thirteenth Court of Appeals reversed the trial court’s judgment on April 24, 2003. The State’s motion for rehearing was overruled, and the State subsequently filed a timely petition for discretionary review with this Court.

II. Appellate Decision and Grounds for Review

The court of appeals held that Shannon Berger was a trespasser under Texas Penal Code § 30.05, and that she was not an “authorized representative” of the TABC under § 101.04 of the Texas Alcoholic Beverage Code, which would permit her entry onto the premises without a warrant. Texas Alcoholic Beverage Code § 101.04 provides:

By accepting a license or permit, the holder consents that the commission, an authorized representative of the commission, or a peace officer may enter the licensed premises at any time to conduct an investigation or inspect the premises for the purpose of performing any duty imposed by this code, (emphasis added)

The court of appeals further held that Shannon Berger was not an authorized representative because, despite the State’s contention that § 106.05 of the Texas Alcoholic Beverage Code allowed Shannon Berger to participate in the undercover operation, the provision “does not expressly authorize TABC agents to recruit minors to enter licensed premises for the purpose of purchasing alcohol.” The court of appeals finally held that the violation of the trespass statute falls under the protections of Texas Code of Criminal Procedure Article 38.23, and that Appellant had standing to invoke the provisions of article 38.23 in a representative capacity. Based on these holdings, the court of appeals reversed the trial court’s judgment.

This Court granted review on two questions: first, does a 17-year-old commit criminal trespass by entering and remaining in a bar under the direction of the TABC despite the existence of a sign inside the bar seeking to exclude minors? Second, does a violation of the criminal trespass statute invoke article 38.23 of the Texas Code of Criminal Procedure?

The State argues that Shannon Berger was an “authorized representative” of the TABC and therefore was statutorily authorized to enter the premises. Further, the State argues that even if the court found she was not an “authorized representative,” the trial court could have found her conduct justified under Texas Penal Code § 9.21, and found that her conduct did not constitute criminal trespass. The State also asserts that the court of appeals erred in holding that a violation of the criminal trespass statute invokes Texas Code of Criminal Procedure Art. 38.23.

Appellant argues that Shannon Berger’s conduct was unarguably criminal trespass under Texas Penal Code § 30.05, due to the fact that the Mustang Lounge had posted a “no trespassing” sign giving notice that minors were not to enter the premises. Thus, Appellant asserts that this violation of the penal code by Shannon Berger acting in conjunction with the TABC agents triggers the application of Texas Code of Criminal Procedure Article 38.23.

III. Analysis

The primary question in this case, as posed in the first ground for review, is whether a minor recruited by the TABC to enforce the provisions of the Texas Alcoholic Beverage Code through conducting a sting operation inside a bar, commits criminal trespass if the target establishment has posted a “no trespassing to those under 21” sign. To answer this question, it is helpful to analyze as a whole the way the code addresses issues related to minors.

Section 101.04 of the Texas Alcoholic Beverage Code provides TABC officers with the authority to enter a licensed establishment at any time for an inspection without first notifying the owner or obtaining any sort of warrant as long as they are performing duties given to them by the Texas Alcoholic Beverage Code. This section of the code also grants this right to the commission itself, or authorized representatives of the commission. The court of appeals is correct when it points out that § 101.04 does not expressly authorize TABC agents to recruit and use minors to enforce the provisions of the code. However, the court of appeals fails to consider the purpose behind the code.

In particular, two sections relating to minors are informative in trying to discern whether minors acting under TABC authority are criminal trespassers in this situation. Section 106.05, entitled “Possession of Alcohol by a Minor,” states that a minor commits an offense if he or she possesses an alcoholic beverage, subject only to several exceptions listed. The exception relevant to our inquiry is the following: the minor may possess an alcoholic beverage “if the minor is under the immediate supervision of a commissioned peace officer engaged in enforcing the provisions of this code.” This same exception can also be found in § 106.02, “Purchase of Alcohol by a Minor.”

This exception was created in a 1997 amendment by the 75th Legislature in H.B. 3441. According to the bill analysis prepared by the House Committee on Licensing and Administrative Procedures, the purpose of this amendment was to “vest the commission with statutory authority to utilize minors in the conduct of sting operations identifying retailers who sell alcoholic beverages to minors.” Additionally, according to the background information provided in the bill analysis, this bill was proposed in response to claims brought against the TABC in courts charging that the TABC had no authority to use minors for this purpose. Though the TABC had not yet lost a case, the bill analysis makes it clear that law-makers wanted to establish that the TABC had the explicit statutory authority to utilize minors to ferret out retailers who sell alcohol to children. The Legislature had a clear objective in mind, and that was to provide a way for the Alcoholic Beverage Code to be enforced; therefore they created a powerful enforcement mechanism by ensuring that minors could be used in undercover sting operations.

The Texas Alcoholic Beverage Code expressly provides that minors are not to be held criminally liable for possession or purchase of alcohol if they are assisting TABC officers in carrying out the provisions of the code. It would be absurd for the Legislature to pass such legislation allowing minors to purchase and possess alcohol to assist the TABC if they did not also intend for these minors to be able to have access to the targets of the sting operations without being criminally liable for trespass. If minors are liable for criminal trespass for assisting the TABC, it could possibly lead to claims by anyone who posted a “no trespassing” sign on their establishment that the evidence should be suppressed pursuant to Article 38.23. This would allow any bar owner to thwart any undercover operation by the TABC merely by posting a “no trespassing by persons under 21” sign outside the establishment. Such an interpretation would render many of the provisions of the Alcoholic Beverage Code regarding the sale of alcohol to minors practically unenforceable.

The statute does not expressly state that minors are not to be held liable for criminal trespass if they are assisting the TABC. However, we assume that because minors in this situation act at the specific request of TABC officers, and on behalf of the TABC itself, to enforce the provisions of the TABC Code through sting operations, they should not be considered trespassers even in the face of a no trespassing sign.

By accepting a license or permit to sell alcohol, the Mustang Lounge consented to inspection by TABC agents. Shannon Berger was a minor recruited by and under the immediate supervision of Agent Berenice Berger to help conduct a sting operations that was expressly contemplated by the legislature. Therefore, as to the first ground for review, we hold that Shannon Burger was not a criminal trespasser under Texas Penal Code § 30.05.

Because no laws were violated by police officers, TABC agents, or Shannon Berger, Texas Code of Criminal Procedure Article 38.23 was not implicated, and the trial judge did not err in denying Appellant’s motion to suppress. Thus, it is unnecessary to address the second ground for review. The decision of the court of appeals is reversed, and we uphold the ruling of the trial court.

KEASLER, J., concurred in the judgment.

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

KELLER, P.J.,

concurring.

I would hold that there was no Article 38.23 violation, regardless of the legality of the minor complainant’s conduct in this case. In my concurring opinion in Chavez v. State, I concluded that “in order for an illegal act to render evidence inadmissible under Texas Code of Criminal Procedure, Article 38.23, that act must be subsequent to and separate from the illegal act that is the subject of the prosecution.” In reaching this conclusion, I discussed State v. Mayorga and dictionary definitions of the word “obtain.” From these sources, I determined that evidence is “obtained” only if that evidence is in existence before the act of “obtaining.” Because the evidence in this case (videotape of serving alcoholic beverages) was created after the allegedly illegal entry onto the property, it was not “obtained” in violation of the trespass law.

Even if “trespass” were considered to be a continuing offense, occurring so long as the minor complainant occupied the premises, this evidence would still fall short of being “obtained” because its creation would be contemporaneous with the allegedly illegal conduct. And any continued trespass occurring after the sale of alcohol would fail to invoke Article 38.23 because that conduct would have nothing to do with the acquisition of the evidence.

With these comments, I concur in the Court’s judgment.

      . Tex. Alco. Bev.Code § 106.03(a) (Vernon 2004).

      . Texas Rule of Appellate Procedure 25.2(b)(3) states that if an appeal is from a judgment rendered on the defendant’s plea of guilty or nolo contendere, a defendant may appeal only "those matters that were raised by written motion and filed and ruled on before trial, or after getting the trial court’s permission to appeal.”

      . Phillips v. State, 109 S.W.3d 562 (Tex.App.Corpus Christi 2003, pet. granted).

      . Tex Alco. Bev.Code § 106.03(a) (Vernon 2004).

      . The record is unclear as to whether this sign was posted outside or inside the lounge in a visible area.

      . Texas Code of Criminal Procedure Article 38.23 states in relevant part: "No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of Amer-ica, shall be admitted in evidence against the accused on the trial of any criminal case.”

      . Phillips, 109 S.W.3d at 566.

      . Id. at 567.

      . Id. at 572-73.

      . Texas Penal Code § 9.21 provides a public duty justification defense to crimes committed. It provides in relevant part that “the justification afforded by this section is available if the actor reasonably believes ... his conduct is required or authorized to assist a public servant in the performance of his official duty, even though the servant exceeds his lawful authority.”

      . Tex. Alco. Bev.Code § 101.04 (Vernon 2004).

      . Tex. Alco. Bev.Code § 106.05 (Vernon 2004).

      . House Comm. On Licensing and Administrative Procedures, Bill Analysis, Tex. H.B. 3441, 75th Leg., R.S. (1997).

      . Id.

      . See Tex. Alco. Bev.Code §§ 106.02, 106.05 (Vernon 2004).

      . 9 S.W.3d 817, 820 (Tex.Crim.App.2000).

      . 901 S.W.2d 943 (Tex.Crim.App.l995)(plurality opinion).

      . Chavez, 9 S.W.3d at 820-821.

      . Id.


author: PER CURIAM.'

text:
    Juan REYNOSO, Appellant.
    No. AP-74952.
    Court of Criminal Appeals of Texas.
    May 4, 2005.
    R.E. Wheelan, Houston, for Appellant.
    Lynn Hardaway, Assist. DA, Houston, Matthew Paul, State’s Attorney, Austin, for State.
   ORDER

PER CURIAM.'

This is a request for approval of the appointment of counsel, pursuant to Article 11.071, section 2(d), to represent applicant in filing an application for writ of habeas corpus.

On May 19, 2004, the trial court timely appointed Stephen R. Rosen to represent applicant on his application for writ of habeas corpus under Article 11.071. The appointment was withdrawn after applicant advised the trial court that applicant wished to waive his right to seek relief by writ of habeas corpus. For the purposes of Article 11.071, applicant was considered to have chosen to proceed pro se, at least until the filing deadlines had passed. See Article 11.071, § 4(e). If applicant desired to file an application, he retained that right until the 45th day after the State filed its response on direct appeal. Before the 45th day, applicant asked the trial court to appoint counsel to assist him in preparing an application for writ of habeas corpus. The trial court reappointed Rosen as counsel, and he timely filed a 90 day extension of time to file the application. Clearly the reappointment was beyond the 30 days the statute allows the trial court to appoint counsel. Art. 11.071, § 2(c).

Article 11.071 normally allows only 30 days after the finding of indigency to appoint counsel under Section 2(a-c). An appointment made 10 months later and after the State’s response brief has been filed on direct appeal is an untimely appointment not allowed by the statute. However under these circumstances, where the original habeas counsel is reappointed within the time allowed to file an application, we will treat this order as both a rescission of the order withdrawing the appointment of counsel and a reappointment of counsel.

Because applicant had not exhausted his time to file a writ of habeas corpus when he asked the trial court to again appoint counsel, despite having waived his right to have the assistance of counsel and to file a habeas application under Article 11.071, we affirm the actions of the trial court in reinstating Stephen R. Rosen as counsel. We also find that the trial court properly interpreted Article 11.071, section 4(a), that despite the date on which counsel was reinstated, applicant had until the 45th day after the State filed its response brief to file or seek an extension of time to file the application. Compare Art. 11.071, § 4(a) and § 4(e).

The order appointing Steven R. Rosen counsel pursuant to Texas Code of Criminal Procedure, Article 11.071, in the above numbered and styled case has been received and approved by this Court.


author: PER CURIAM.

text:
    In re TEXAS ASSOCIATION OF SCHOOL BOARDS, INC. and Texas Association of School Boards Risk Management Fund.
    No. 04-03-00738-CV.
    Court of Appeals of Texas, San Antonio.
    Oct. 15, 2003.
    Dale Jefferson, Levon G. Hovnatanian, Bruce E. Ramage, Martin, Disiere, Jefferson & Wisdom, L.L.P., Houston, Frank J. Enriquez, Law Office of Frank Enriquez, McAllen, Robin I. Krumme, Martin, Disi-ere, Jefferson & Wisdom, L.L.P., Austin, for appellant.
    Mark C. Brodeur, Brodeur & Evans, P.L.L.C., Dallas, Charles L. Barrera, Barrera & Barrera Law Firm, San Diego, Roland L. Leon, Barker, Leon, Fancher & Matthys, L.L.P., Corpus Christi, for appel-lee.
    Sitting: SARAH B. DUNCAN, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J.
   MEMORANDUM OPINION

PER CURIAM.

The court has considered relators’ petition for writ of mandamus and is of the opinion that relief should be denied. See Tex.R.App. P. 52.8(a). Accordingly, rela-tors’ petition for writ of mandamus is denied.

Relator shall pay all costs incurred in this proceeding.

The clerk of this court is directed to transmit a copy of this opinion to the attorneys of record, the trial court judge, and the trial court clerk.


author: TERRY McCALL, Justice.

text:
    Lourdes ROSENCRANS, Appellant, v. Stanley ALTSCHULER, Appellee.
    No. 11-03-00059-CV.
    Court of Appeals of Texas, Eastland.
    Feb. 26, 2004.

      Eric Sines, Attorney At Law, Patrick Wright, Law Office of Patrick Wright, P.C., Dallas, for appellant.
    Bruce Flowers, Guida, Slavich <⅞ Flores, Lynn Rossi Scott, Bracewell & Patterson, Dallas for appellee.
    Panel consists of: ARNOT, C.J., and WRIGHT, J., and MeCALL, J.
   Opinion

TERRY McCALL, Justice.

Lourdes. Rosencrans filed suit against Stanley Altschuler, and Altschuler’s employer, Texans Can! Altschuler filed a special exception asserting that he was immune from liability on Rosencrans’s claims. The trial court entered an order granting Altschuler’s special exception and dismissing him as a defendant in the case. Later, the trial court severed Rosencrans’s claims against Altschuler from the remainder of the case. Rosencrans appeals from the trial court’s order granting Altschu-ler’s special exception. We affirm.

Background Facts

In 1995, the Texas Legislature created a new type of public school: the open-enrollment charter school. TEX. EDUC. CODE ANN. §§ 12.101 & 12.105 (Vernon Supp.2004). Section 12.101 of the Education Code provided that the State Board of Education could grant a charter for the operation of an open-enrollment charter school on the application of an “eligible entity.” The term “eligible entity” included organizations exempt from taxation under 26 U.S.C. § 501(c)(3) (2003). Texans Can!, a Section 501(c)(3) entity, applied for and received charters to operate charter schools in Dallas, Fort Worth, Houston, Austin, and San Antonio. Texans Can! operates charter schools in those cities, including the Dallas Can! Academy in the City of Dallas.

Rosencrans and Altschuler were both employees of Texans Can!, and both had offices at the Dallas Can! Academy. Ro-sencrans was the director of human resources, and Altschuler was her supervisor. In her petition, Rosencrans alleged that Altschuler was the second-ranking executive of Texans Can! Rosencrans alleged claims of assault and intentional infliction of emotional distress against Altschuler. Rosencrans claimed that Altschuler assaulted her in May or June 2001 at a high level meeting between executives of Texans Can! and representatives of outside health insurers who were seeking the contract for Texans Can! employees’ health care needs. Rosencrans alleged that, when she started to speak at the meeting, Altschuler swung his hand at her in a violent slapping motion but pulled back the slap before striking her in the face. Ro-sencrans further alleged that Altschuler covered her mouth with his hand and told her that he did not want her to talk but wanted someone else to talk. Rosencrans also alleged that Texans Can! was liable for Altschuler’s acts under respondeat superior and agency theories.

Altschuler specially excepted to Rosen-crans’s petition, asserting that, as an employee of an open-enrollment charter school, he was immune from liability for Rosencrans’s claims under TEX. EDUC. CODE ANN. § 12.1056 (Vernon Supp. 2004). Rosencrans did not amend her claims in response to the special exception. After a hearing, the trial court granted Altschuler’s special exception, struck Ro-sencrans’s claims against Altschuler, and entered an order dismissing Altschuler as a defendant. Rosencrans did not move the trial court for time to amend her petition nor does she complain on appeal that the trial court erred in failing to give her time to amend her petition.

Issue Presented

In her sole point of error, Rosencrans argues that the trial court erred in granting Altschuler’s special exception based on immunity for professional employees" of school districts and charter schools. Specifically, Rosencrans asserts that Altschu-ler is not immune from liability for the following reasons: (1) that Altschuler’s employer, Texans Can!, is not a school district or a charter school and, therefore, Section 12.1056 does not apply and (2) that Altschuler’s acts were not incident to or within the scope of his duties and did not involve the exercise of judgment or discretion.

Standard of Review

When special exceptions are sustained, the pleader may either amend the petition or refuse to amend and challenge the ruling on appeal. The Butler Weldments Corporation v. Liberty Mutual Insurance Company, 3 S.W.3d 654, 658 (Tex.App.-Austin 1999, no pet’n); Detenbeck v. Koester, 886 S.W.2d 477, 479 (Tex.App.-Houston [1st Dist.] 1994, no writ). When a trial court grants special exceptions for failure to state a cause of action, we review that issue of law using a de novo standard of review. Pack v. Crossroads, Inc., 53 S.W.3d 492, 497 (Tex.App.-Fort Worth 2001, pet’n den’d); The Butler Weldments Corporation v. Liberty Mutual Insurance Company, supra. We also must accept as true all material factual allegations and all factual statements reasonably inferred from the allegations set forth in the respondent’s pleadings. See Sorokolit v. Rhodes, 889 S.W.2d 239, 240 (Tex.1994). If a pleading does not state a cause of action, the trial court does not err in dismissing the case. The Butler Weldments Corporation v. Liberty Mutual Insurance Company, supra.

Immunity

In his special exception, Altschuler asserted that he was immune from liability under Section 12.1056. Section 12.1056 provides as follows:

In matters related to operation of an open-enrollment charter school, an open-enrollment charter school is immune from liability to the same extent as a school district, and its employees and volunteers are immune from liability to the same extent as school district employees and volunteers. A member of the governing body of an open-enrollment charter school or of a charter holder is immune from liability to the same extent as a school district trustee.

Rosencrans argues that Section 12.1056 provides immunity for employees of “charter schools” but not for employees of “charter holders.” Therefore, Rosencrans asserts that Altschuler is not immune from liability for her claims because he was an employee of the “charter holder,” Texans Can!, and not an employee of the “charter school,” the Dallas Can! Academy. In her petition, Rosencrans alleged that Altschu-ler was an employee of Texans Can! and that his place of employment was the Dallas Can! Academy.

The clear intent of Section 12.1056 is to provide immunity “[i]n matters related to the operation of an open-enrollment charter school” to the same extent that immunity is afforded to school district employees and volunteers under TEX. EDUC. CODE ANN. § 22.0511 (Vernon Supp. 2004). Thus, a charter school employee who performs duties that are the same or similar to the duties performed by a traditional public school employee should be immune from liability to the extent that the traditional public school employee is immune from liability. Employees working “[i]n matters related to operation of [the] charter school” should receive this immunity, whether they receive their paycheck from the charter school or the charter holder operating the school. Otherwise, employees of charter holders performing the same duties as employees of charter schools and employees of school districts would not be immune from liability for their acts under circumstances in which the employees of charter schools and the employees of school districts would be immune from liability for the same acts. Given the intent of Section 12.1056, we find that it covers employees of charter holders operating open-enrollment charter schools where those employees are engaged in “matters related to the operation of an open-enrollment charter school.”

The first issue under Section 12.1056 is whether Altschuler’s alleged acts occurred “[i]n matters related to operation of an open-enrollment charter school.” The alleged assault occurred at a meeting between executives of Texans Can! and representatives of outside health insurers who were seeking the contract for Texans Can! employees’ health care needs. The subject matter of the meeting — health insurance for Texans Can! employees — was a matter related to the operation of open-enrollment charter schools, including the Dallas Can! Academy. Rosencrans does not assert that the matter was not related to the operation of a charter school.

Therefore, under Section 12.1056, Alt-schuler is entitled to immunity “to the same extent as school district employees.” Section 22.0511(a) provides that:

A professional employee of a school district is not personally liable for any act that is incident to or within the scope of the duties of the employee’s position of employment and that involves the exercise of judgment or discretion on the part of the employee, except in circumstances in which a professional employee uses excessive force in the discipline of students or negligence resulting in bodily injury to students.

Thus, an employee is immune from liability for acts under Section 22.0511(a) if: (1) the employee is a professional employee of a school district; (2) the act was incident to or within the scope of the employee’s duties; (3) the act involved the exercise of judgment or discretion on the part of the employee; and (4) the act was not the use of excessive force in the discipline of students nor of negligence resulting in bodily injury to students. See Foster v. Estrada, 974 S.W.2d 751, 753 (Tex.App.-San Antonio 1998, pet’n derid).. The fourth element is not in issue in this case. Section 22.0511 immunity applies to intentional tort claims, such as those alleged by Rosencrans against Altschuler. Davis v. Education Service Center, 62 S.W.3d 890, 897 (Tex. App.-Texarkana 2001, no pet’n) (intentional infliction of emotional distress claim); Williams v. Conroe Independent School District, 809 S.W.2d 954, 957 (Tex.App.Beaumont 1991, no pet’n)(wrongful termination, defamation, and intentional infliction of emotional distress claims).

The term “professional employee of a school district” includes “a superintendent, principal, teacher, including a substitute teacher, supervisor, social worker, counsel- or, nurse, and teacher’s aide employed by a school district.” TEX. EDUC. CODE ANN. § 22.051 (Vernon Supp.2004). In her petition, Rosencrans alleged that Altschuler was her supervisor. As a supervisor, Rosencrans falls within the definition of a “professional employee” under Section 22.051. See Davis v. Education Service Center, supra at 896 (A “supervisor” at an Education Service Center falls within the definition of “professional employee” under Section 22.051).

Altschuler is immune from Rosencrans’s claims if the acts complained of by Rosen-crans were “incident to or within the scope of duties of [Altschuler’s] position” and “involve[d] the exercise of judgment or discretion on the part of [Altschuler].” Section 22.0511. The meeting about insurance was within the scope of Altschuler’s duties; the issue is whether the alleged assault was incident to or within the scope of his duties. Rosencrans alleges that Texans Can! is liable for Altschuler’s acts “by agency and respondeat superior principles.” Texans Can! could be liable to Rosencrans under a respondeat superior theory only if Altschuler committed an intentional tort in the course and scope of his employment. See Gonzalez v. Ison-Newsome, 68 S.W.3d 2 (Tex.App.-Dallas 1999), pet’n dism’d, 73 S.W.3d 178 (Tex.2001)(citing Houston Transit Co. v. Felder, 146 Tex. 428, 208 S.W.2d 880, 881 (1948)). An employee acts within the scope of employment if he acts within his general authority, in furtherance of the employer’s business, and to accomplish an objective for which the employee was employed. Gonzalez v. Ison-Neivsom,e, supra (citing Mackey v. U.P. Enterprises, Inc., 935 S.W.2d 446, 453 (Tex.App.-Tyler 1996, no writ)). Thus, by alleging agency and respondeat superior theories, Rosen-crans acknowledged that Altschuler’s alleged acts were within the scope of his duties.

In Downing v. Brown, 935 S.W.2d 112, 114 (Tex.1996), the court decided whether the acts of a school teacher were ministerial or “required the exercise of judgment or discretion.” The court held that maintaining discipline in the classroom required the “exercise of judgment or discretion,” and that, therefore, the teacher was immune from liability. Downing v. Brown, supra. The court explained that an act is ministerial “[w]here the law prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.” Downing v. Brown, supra at 114 (quoting City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex.1994)). Ministerial actions require obedience to orders or the performance of a duty to which the actor has no choice. Downing v. Brown, supra. On the other hand, if an action involves personal deliberation, decision, and judgment, it is discretionary. Downing v. Brown, supra. In her petition, Rosencrans complained of acts that took place at the meeting with insurance company representatives. Rosencrans alleged that Altschuler assaulted her by covering her mouth with his hand and that Altschuler “told her he did not want her to talk, but wanted someone else to talk.” Altschuler’s alleged acts involved “personal deliberation, decision, and judgment.” Therefore, the acts involved the exercise of discretion or judgment.

Altschuler is immune from Rosencrans’s claims under Section 12.1056. The trial court did not err in granting Altschuler’s special exception and dismissing Rosen-crans’s claims against him. Rosencrans’s point of error is overruled.

This Court’s Ruling

The judgment of the trial court is affirmed.

      . Section 22.0511 was renumbered from Section 22.051 and amended in 2003.

      . The Texas Supreme Court has not addressed the issue whether Section 22.0511 immunity applies to intentional tort claims. The Supreme Court in Collins v. Ison-Newsome, 73 S.W.3d 178 (Tex.2001), determined that it did not have conflicting jurisdiction over an interlocutory appeal involving the issue of scope of immunity under Section 22.051 (now Section 22.0511).


author: W.G. ARNOT, III, Chief Justice.

text:
    B.W. CARR, Individually and Under Power of Attorney for his Father and Mother, J.C. Carr and Dorothy M. Carr, Appellant, v. CITY OF CISCO, et al, Appellees.
    No. 11-02-00324-CV.
    Court of Appeals of Texas, Eastland.
    June 30, 2004.
    C.R. Kit Bramblett, Attorney At Law, John P. Mobbs, Attorney At Law, El Paso, for appellant.
    Anne Pilgrim, Stephen H. Suttle, McMahon, Surovik, Suttle, Buhrmann, Hicks, Gill & Cannon, Tom L. Gill, John Pilgrim, Abilene, C. Bray, Deborah Rusher, Ernest Ward, Ivan Webb, Michael Rusher, Dollie Ward, Lillian Delaplane, Cisco, Tommy Warford, Turner, Seaberry & Warford, Eastland, Billy E. Caddell, Clyde, Clinton W. Cook, Lubbock, H.K. Neely, Jr., Bolivar, Joel Shaddox, Irving, for appellees.
    Panel consists of ARNOT, C.J., and WRIGHT, J., and McCALL, J.
   Opinion

W.G. ARNOT, III, Chief Justice.

B.W. Carr, individually and acting under power of attorney for his father and mother, J.C. Carr and Dorothy M. Carr, brought this suit against the City of Cisco to quiet title to land that the City possessed. The land in controversy is a strip of land 160 feet wide along the north shoreline of Lake Cisco just above the high-water mark. Out of that strip, a strip 100 feet wide had been subdivided by the City into 215 lots and leased to various tenants, and a strip 60 feet wide was used as a public roadway. After sustaining the City’s objections to Carr’s expert’s affidavit, the trial court granted the City’s motion for summary judgment and entered judgment that Carr take nothing from the defendants. We affirm.

Carr presents two issues on appeal. In the first issue, he contends that the trial court erred in sustaining the City’s objections to the affidavit of Carr’s expert, Basil R. Smith. In the second issue, Carr argues that the trial court erred in granting the City’s motion for summary judgment and thereby declaring that the City owned the land in question.

In order to determine if the trial court erred in granting the motion for summary judgment, we must consider the summary judgment evidence in the light most favorable to the non-movant, indulging all reasonable inferences in his favor, in order to determine whether the movants proved that there was no genuine issue of material fact and that they were entitled to judgment as a matter of law. See Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546 (Tex.1985); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). In order to be entitled to summary judgment, a defendant must either disprove an element of each cause of action or establish an affirmative defense as a matter of law. American Tobacco Company, Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). A defendant moving for summary judgment on the basis of the running of a statute of limitations must prove conclusively the elements of that defense. Shah v. Moss, 67 S.W.3d 836, 842 (Tex.2001); Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 80-81 (Tex. 1989). In this case, the City moved for summary judgment on grounds that Carr did not have superior title to the property and that the City established its title to the property by deed and/or by limitations. Because the trial court did not specify which ground it relied upon in granting the summary judgment, we will affirm the summary judgment “if any of the theories advanced are meritorious.” State Farm Fire & Casualty Company v. S.S. & G.W., 858 S.W.2d 374, 380 (Tex.1993); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

The summary judgment evidence shows that, in 1920, R.F. Weddington entered into a contract to sell an unspecified portion of his ranch to the City so that the City could erect a dam and build a municipal reservoir. That contract provided:

[O]nly such portion of said land and premises shall be taken or appropriated ... as shall be covered by the water in such reservoir, when filled, as estimated by competent engineers ... and a strip adjoining the high-water line, not exceeding 100 feet in width, and a strip not exceeding 60 feet in width for said road purposes.

Later that year, R.F. and Beatrice Wed-dington sold some of their land to the City for a sum of $34,380. The deed, which was recorded in 1921, gave a metes and bounds description that surveyors have since struggled to decipher.

R.F. and Beatrice’s two children, Theresa Weddington Downie and Bob Wedding-ton, inherited their parents’ estate. Theresa, in turn, inherited the property when her brother died. Upon Theresa’s death, the property was deeded by Theresa’s surviving husband to Carr’s parents. The deed to Carr’s parents and the deeds from Carr’s parents to Carr convey the tract of land with the following exception: “Save and except the land which was conveyed out of said sections by R.F. Wed-dington and wife, Beatrice Weddington to the City of Cisco as shown by the deed records.”

Regardless of the current boundary dispute and the question of whether the disputed strip of land passed by deed to the City or to Carr’s predecessors, the controlling issue in this case is that of limitations. In its motion for summary judgment, the City specifically asserted that it was entitled to judgment as a matter of law based upon the affirmative defense of limitations under TEX. CIV. PRAC. & REM. CODE ANN. §§ 16.024-16.028 (Vernon 2002). We agree. Specifically, Section 16.026(a) provides as follows: “A person must bring suit not later than 10 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property.”

We hold that the summary judgment evidence established as a matter of law that the strip of land in question was held by the City in peaceable and adverse possession for more than ten years prior to Carr’s suit and that the City used the property by building a road, leasing the subdivision lots, and permitting tenants to build improvements on the lots. See, e.g., King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 756-57 (Tex.2003), cert, den’d, 541 U.S. 1030, 124 S.Ct. 2097, 158 L.Ed.2d 711 (2004)(upholding summary judgment where adverse possession by limitations was established as a matter of law). Carr and his predecessors were aware that the City was leasing lots from the disputed strip of land to tenants and that houses were being built on the lots as early as 1962 or 1963. In fact, Carr’s predecessor, Theresa Weddington Downie, entered into a lease agreement with the City in 1968 to lease two of the disputed lots from the City. In 1973, Carr’s father entered into a contract with the City regarding the right to water his cows at the lake. That contract recognizes that Carr’s land was “bounded on the South by a strip of land belonging to the City of Cisco, immediately adjoining the high water mark” of Lake Cisco. Although Carr and his father thought that the strip of land containing the lots belonged to them, they did not file this suit until 1995 — long after the expiration of the ten-year limitations period provided for in Section 16.026.

Carr contends that the City is not entitled to assert limitations because the result would be an unconstitutional taking of private property without just compensation in violation of the takings clauses of the state and federal constitutions. We disagree. The ten-year statute of limitations has been applied in similar situations involving municipalities. See Trail Enterprises, Inc. v. City of Houston, 957 S.W.2d 625, 631-32 (Tex.App.-Houston [14th Dist.] 1997, pet’n den’d), cert, den’d, 525 U.S. 1070, 119 S.Ct. 802, 142 L.Ed.2d 663 (1999); Waddy v. City of Houston, 834 S.W.2d 97, 102-03 (TexApp.-Houston [1st Dist.] 1992, writ den’d). Even constitutional rights may be waived if not timely asserted. Because we find that summary judgment was appropriate on the affirmative defense of limitations, Carr’s second issue is overruled.

In our determination of the second issue, we considered Smith’s affidavit. Consequently, we need not reach the merits of Carr’s first issue and determine whether the trial court erred by sustaining the City’s objections to that affidavit. See TEX.R.APP.P. 47.1.

The judgment of the trial court is affirmed.

      . These various tenants were joined as defendants in this lawsuit by order of the trial court. Carr subsequently entered into agreements with the tenant defendants and has not pursued any claims against them. The clerk's record contains numerous stipulations filed by Carr in which he states that he "recognizes the validity of such Lease Agreements, does not intend to, and will not, alter, challenge, change^ or in any way affect any rights" of the tenants.


author: CHARLES W. SEYMORE, Justice.

text:
    Rosie RISTON, Appellant, v. John DOE # 1 a/k/a Thyssenkrupp Elevator Corporation d/b/a Thyssenkrupp Elevator d/b/a Dover Elevator d/b/a Dover Elevator Company d/b/a Dover, Appellee.
    No. 14-03-00869-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 27, 2004.

      Scot Gibbons Dollinger, Houston, for appellant.
    Alan Lawrence Rucker, Wade Lowrie Mcelure, Dallas, for appellee.
    Panel consists of Justices FOWLER, EDELMAN and SEYMORE.
   OPINION

CHARLES W. SEYMORE, Justice.

Appellant, Rosie Riston, appeals a summary judgment dismissing her personal injury claims against appellee, John Doe # 1 a/k/a ThyssenKrupp Elevator Corporation d/b/a ThyssenKrupp Elevator d/b/a Dover Elevator d/b/a Dover Elevator Company d/b/a Dovep (“ThyssenKrupp”), based on the statute of limitations. We affirm.

I. Background

Riston claims she was injured on September 23, 2000 when she was struck by an elevator door at Houston Intercontinental Airport. She originally sued the City of Houston only. However, she filed a first amended petition on September 22, 2002 adding “John Doe # 1,” “John Doe # 2,” “John Doe # 3,” “John Doe # 4,” and “John Doe #5” as defendants. Riston alleged that these defendants designed, manufactured, sold, installed, built and/or maintained the elevator. She asserted causes of action for negligence, product liability, breach of warranties, and strict liability. On September 25, 2002, Riston filed a second amended petition naming “John Doe # 1 a/k/a ThyssenKrupp Elevator Corporation d/b/a ThyssenKrupp Elevator d/b/a Dover Elevator d/b/a Dover Elevator Company d/b/a Dover” in place of “John Doe # 1.” ThyssenKrupp was served on October 25, 2002.

ThyssenKrupp moved for summary judgment asserting that (1) Riston did not file suit against ThyssenKrupp within the two-year statute of limitations, and (2) Ri-ston could not assert breach ’ of warranty claims against ThyssenKrupp because it did not design, manufacture, market, sell, or install the elevator. The trial court granted the motion for summary judgment, dismissed all Riston’s claims against ThyssenKrupp, and severed the claims against Thyssenkrupp from the remaining claims.

II. Standard of Review

When a defendant moves for summary judgment on the basis of an affirmative defense such as limitations, it has the burden to conclusively prove all the elements of the affirmative defense as a matter of law. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). If the movant establishes that the statute of limitations bars the action, the nonmovant must then adduce summary judgment proof raising a fact issue to avoid the statute of limitations. Id. In reviewing a summary judgment, we take as true all evidence favorable to the nonmovant and make all reasonable inferences in the nonmovant’s favor. Id. Because the propriety of a summary judgment is a question of law, we review the trial court’s decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994).

III. Statute of Limitations

In her sole issue, Riston contends the trial court erred by granting Thyssen-Krupp’s motion for summary judgment because the statute of limitations was tolled based on the doctrines of misnomer, due diligence, and relation back. Riston does notdispute that she first named Thyssen-Krupp as a defendant in her second amended petition, filed after the statute of limitations expired. See Tex. CIv. Prac. & Rem.Code Ann. § 16.003(a) (Vernon 1986) (prescribing two-year statute of limitations for personal injury claims). However, Ri-ston contends her timely first amended petition naming “John Doe # 1” tolled the statute of limitations because “John Doe # 1” was a misnomer for ThyssenKrupp. Riston further contends that she tolled the statute of limitations because she used due diligence to serve ThyssenKrupp, and, therefore, the date of service related back to the filing of her timely first amended petition.

This case presents an issue of first impression in Texas. The parties do not cite, and we have not found, any Texas law addressing the use of a “John Doe” petition to toll the statute of limitations, except where specifically authorized by statute. However, for the reasons stated below, we refuse to allow Riston’s “John Doe” petition to toll the statute of limitations.

A. The Misnomer Doctrine Does Not Apply To A “John Doe” Petition.

First, the misnomer doctrine is not applicable here. Misnomer arises when the plaintiff merely misnames the correct defendant. Chilkewitz v. Hyson, 22 S.W.3d 825, 828 (Tex.1999); Ensereh Corp. v. Parker, 794 S.W.2d 2, 4 (Tex. 1990). In such a case, limitations is tolled and a subsequent amendment of the petition relates back to the date of the original petition. Ensereh Corp., 794 S.W.2d at 4-5.

However, “John Doe” is not a misnomer for any person or entity. See Grantham v. Blount, Inc., 683 So.2d 538, 541 (Fla.Dist.Ct.App.1996) (stating that “John Doe” is not a misnomer). Instead, “John Doe” is a fictitious name used in legal proceedings to designate a person whose identity is unknown. See Black’s Law Dictionary 845 (7th ed.1999); see also Webster-’s Third New International Dictionaey 1218 (1993). “A plaintiff uses [‘John Doe’] intentionally to identify the fact that the defendant’s real identity is unknown.” Grantham, 683 So.2d at 541. In addition, the misnomer doctrine is applicable when a plaintiff has made a mistake. See Pierson v. SMS Fin. II, L.L.C., 959 S.W.2d 343, 347 (Tex.App.-Texarkana 1998, no pet.); Cortinas v. Wilson, 851 S.W.2d 324, 326-27 (Tex.App.-Dallas 1993, no writ). Riston’s naming “John Doe” instead of ThyssenKrupp was clearly not a mistake. See Jacobsen v. Osborne, 133 F.3d 315, 321 (5th Cir.1998) (recognizing that for a “John Doe” defendant, there is no mistake in identifying the correct defendant; rather, the problem is not being able to identify that defendant). Therefore “John Doe” was not a misnomer for ThyssenKrupp or any other defendant.

B. A “John Doe” Petition Does Not Toll Limitations As To An Unknown Defendant.

Because “John Doe” was not a misnomer for ThyssenKrupp or any other defendant, Riston named an unknown defendant. ThyssenKrupp asserts that a petition which fails to identify the defendant does not toll limitations. We agree for several reasons.

1. No Texas Statute Generally Authorizes A “John Doe” Petition To Toll Limitations As To An Unknown Defendant.

The Texas Legislature has not generally authorized a plaintiff to initiate suit and toll limitations by suing an unknown defendant as “John Doe” or any other fictitious name. See Maury v. Turner, 244 S.W. 809, 812 (Tex.Com.App.1922) (recognizing there is no authority to proceed against unknown persons in the absence of statute); see also Grantham, 683 So.2d at 540-41 (recognizing there is no common law permitting “John Doe” actions to extend limitations). The Texas Legislature has authorized the use of a “John Doe” petition to toll limitations as to unknown defendants only in certain circumstances. For example, section 16.0045 of the Texas Civil Practice and Remedies Code provides that the five-year statute of limitations for personal injury suits based on sexual assault is tolled by the filing of a petition alleging that the identity of the defendant is unknown and designating the unknown defendant as “John or Jane Doe.” Tex. Civ. PRAC. & Rem.Code Ann. § 16.0045 (Vernon 2002). However, there is no similar provision in the two-year statute of limitations for personal injuries suits that are not based on sexual assault. See Tex. Civ. PRAC. & Rem.Code Ann. § 16.003(a). If the Legislature had intended for the two-year statute of limitations to be tolled as to unknown defendants by the filing of a “John Doe” petition, it could have included such a provision in the statute. See Laid-law Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex.1995) (stating that when the Legislature has employed a term or phrase in one section of a statute and excluded it in another, it is presumed the Legislature had a reason for excluding it, and the term should not be implied where it has been excluded); see also Moran v. City of Houston, 58 S.W.3d 159, 162-63 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).

2. In Deciding If Limitations Has Tolled, A “John Doe” Petition Should Be TReated The Same As A Petition Involving A Misidentification.

Further, although a “John Doe” petition involves an unknown defendant, for limitations purposes, it should be treated the same as a petition involving misidentification. Misidentification is distinct from misnomer. Enserch Corp., 794 S.W.2d at 4. Misidentification arises when two separate legal entities actually exist and a plaintiff mistakenly sues the entity with a name similar to that of the correct entity. Chilkewitz, 22 S.W.3d at 828; Enserch Corp., 794 S.W.2d at 5. In such a case, the plaintiff has sued the wrong party and limitations is not tolled. Enserch Corp., 794 S.W.2d at 5. It would be difficult to justify a set of rules that extended limitations when a plaintiff intentionally named a fictitious defendant, but barred an action when a plaintiff misidentified the defendant. See Grantham, 683 So.2d at 542. In either case, the true defendant was not notified of the action before limitations expired. See id.; cf. James v. Gru.ma Corp., 129 S.W.3d 755, 761 (Tex.App.-Fort Worth 2004, pet. denied) (recognizing primary reason that limitations is tolled in cases of misnomer is that the party intended to be sued has been served and put on notice that he is the intended defendant); see also Pierson, 959 S.W.2d at 347 (stating main distinction between misnomer and misidentification is whether the correct party received notice of the suit).

3. Policy Reasons Why A “John Doe” Petition Should Not Toll Limitations Unless Authorized By Statute.

Finally, statutes of limitations would have little, if any, import if they could easily be circumvented by filing a “John Doe” petition. See Thomas v. Process Equip. Corp., 154 Mich.App. 78, 397 N.W.2d 224, 226 (Mich.Ct.App.1986). Statutes of limitations are designed to compel the assertion of claims within a reasonable time so the opposing party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds. See Natural Gas Pipeline Co. of America v. Pool, 124 S.W.3d 188,199 (Tex.2003); Willis v. Maverick, 760 S.W.2d 642, 644 (Tex.1988). Statutes of limitations also prevent fraudulent and stale claims from surprising the other party. See Pool, 124 S.W.3d at 199; Hallaway v. Thompson, 148 Tex. 471, 478, 226 S.W.2d 816, 820 (1950). However, allowing a “John Doe” petition to toll limitations would expand the period for filing claims indefinitely, discourage prompt investigation and resolution of claims, and potentially deny defendants otherwise available defenses. See Moore v. Michelin Tire Co., 603 N.W.2d 513, 523 (S.D.1999); see also Grobe v. McBryde, 105 Ariz. 577, 468 P.2d 936, 939-40 (1970) (recognizing potential abuse inherent in permitting the use of fictitious names to toll limitations indefinitely while the plaintiff perfects his case); Lunn v. American Maint. Corp., 96 Nev. 787, 618 P.2d 343, 345 (1980) (recognizing that allowing “John Doe” complaint to toll limitations where defendant had no notice of suit before limitations expired would impair defendant’s ability to timely investigate accident scene, marshal evidence, and locate witnesses); Huggard v. Wake County Hosp. Sys., Inc., 102 N.C.App. 772, 403 S.E.2d 568, 571 (1991), affd, 330 N.C. 610, 411 S.E.2d 610 (1992) (recognizing purpose of limitations would be thwarted by allowing a plaintiff to preserve claims against “John Doe” defendants for some unlimited period of time or until the plaintiff determines their true identities).

In sum, Riston’s “John Doe” petition did not toll the statute of limitations as to ThyssenKrupp. Accordingly, Riston did not file suit against ThyssenKrupp before limitations expired.

C.. The Due Diligence and Relation Back Doctrines Are Inapplicable.

Riston also asserts the statute of limitations was tolled under the doctrines of due diligence and relation back. A plaintiff must file suit and effect service before limitations expires. Brown v. Shores, 77 S.W.3d 884, 887 (Tex.App.Houston [14th Dist.) 2002, no pet.) (citing Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex.1990)). However, if a plaintiff files suit before limitations expires, but effects service after limitations expires, the date of service relates back to the date of filing if the plaintiff exercised diligence in effecting service. Id. (citing Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990)). Riston claims that she exercised due diligence in serving ThyssenKrupp, and, therefore, the date of service related back to the date she filed her timely first amended petition. However, the due diligence and relation back doctrines apply only if a plaintiff files suit against the defendant before limitations expires. See id. (citing Gant, 786 S.W.2d at 260). We have already concluded that Riston did not file suit against ThyssenKrupp before limitations expired. Therefore, we need not address whether Riston exercised due diligence in serving ThyssenKrupp or whether the date of service related back to the date she filed her first amended petition.

IV. Conclusion

Because Riston did not file suit against ThyssenKrupp before the statute of limitations expired, the trial court did not err in granting ThyssenKrupp’s motion for summary judgment and dismissing Riston’s claims against ThyssenKrupp. Riston’s sole issue is overruled.

The judgment of the trial court is affirmed.

      . Riston subsequently amended her petition again to name "John Doe # 2 a/k/a Montgomery Elevator Company a/k/a Montgomery Elevator Operating Company n/k/a Kone, Inc. d/b/a Montgomery Elevator” in place of "John Doe # 2.”

      . Riston asserts that ThyssenKrupp's agent refused to accept service. The record reflects that a company that handles service of process returned two citations to Riston's attorney because the names of the defendants on the citations did not match the names on file with the Secretary of State. Nevertheless, in its brief, ThyssenKrupp acknowledges that it was served on October 25, 2002, and Thyssen-Krupp subsequently answered the suit.

      .ThyssenKrupp originally moved for summary judgment based on the statute of limitations only. Riston responded that the two-year statute of limitations was tolled based on the doctrines of misnomer, relation back, and due diligence. She also responded that her breach of warranty claims were governed by the four-year statute of limitations. Subsequently, ThyssenKrupp filed an amended motion for summary judgment again asserting the statute of limitations but also challenging the merits of Riston’s breach of warranty claims.

      . On appeal, Riston does not challenge the summary judgment on the breach of warranty claims. She addresses only the summary judgment on the claims governed by the two-year statute of limitations. Therefore, we will not address the summary judgment on the breach of warranty claims. See Jacobs v. Satterwhite, 65 S.W.3d 653, 655-56 (Tex. 2001) (recognizing appellate court may not reverse a summary judgment on a basis not raised by the appellant on appeal).

      . Although an issue of first impression in Texas, several states have refused to allow “John Doe” petitions to toll limitations. See, e.g., Grantham v. Blount, Inc., 683 So.2d 538 (Fla. Dist.Ct.App.1996); Nam v. Montgomery County, Md., 127 Md.App. 172, 732 A.2d 356 (1999); Thomas v. Process Equip. Corp., 154 Mich.App. 78, 397 N.W.2d 224 (1986); Leaon v. Washington County, 397 N.W.2d 867 (Minn. 1986); Moore v. Michelin Tire Co., Inc., 603 N.W.2d 513 (S.D.1999); Iwai v. State, 76 Wash.App. 308, 884 P.2d 936 (1994), aff'd, 129 Wash.2d 84, 915 P.2d 1089 (1996). In contrast, some states do allow "John Doe” petitions to toll limitations. See generally Joel E. Smith, Annotation, Relation Back of Amended Pleadings Substituting True Name of Defendant for Fictitious Name Used in Earlier Pleading So as to Avoid Bar of Limitations, 85 A.L.R.3d 130 (1978). Further, the majority of federal courts that have considered this issue have rejected the use of “John Doe” petitions to toll limitations. See Jacobsen v. Osborne, 133 F.3d 315, 321 (5th Cir.1998).

      . "John Doe” is also used to protect a person’s known identity or indicate that a true defendant does not exist. See Black’s Law Dictionary 845. However, neither of these definitions is applicable here.

      . In fact, Riston's timely petition reflects she did not know the identities of the "John Doe” defendants because she stated, "Plaintiff has timely requested the City of Houston to provide the identity of such Defendants so that they may be properly served.”

      . Section 16.0045 further provides that the person filing the petition shall proceed with due diligence to discover the identity of the defendant and amend the petition by substituting the real name of the defendant for "John or Jane Doe” not later than the 30th day after the date that the defendant is identified to the plaintiff. Tex. Civ. Prac. & Rem.Code Ann. § 16.0045. The limitations period begins running again on the date that the petition is amended. Id.

      . However, even in cases of misidentification, limitations may be tolled when a plaintiff sues an incorrect entity if (1) there are two separate but related entities that use a similar trade name, (2) the correct entity had notice of the suit, and (3) the correct entity was not misled or disadvantaged by the mistake. Wright v. Tex. Dept. of Criminal Justice-Institutional Div., 68 S.W.3d 788, 791 (Tex.App.Houston [14th Dist.] 2001, no pet.) (citing Chilkewitz, 22 S.W.3d at 830).

      .Here, there is no evidence that Thyssen-Krupp was served with, or otherwise put on notice of, Riston’s suit before limitations expired.


author: PEMBERTON, Justice.

text:
    In re CERBERUS CAPITAL MANAGEMENT, L.P.; Cerberus Partners, L.P.; Cerberus Associates LLC; Craig Court, Inc.; CRT Satellite Investors LLC; and Stephen A. Feinberg.
    No. 03-04-00056-CV.
    Court of Appeals of Texas, Austin.
    July 29, 2004.
    Harry M. Reasoner, Marie R. Yeates, Kenneth P. Held, Vinson & Elkins L.L.P., Charles W. Schwartz, Skadden, Arps, Slate, Meagher & Flom LLP & Affiliates, Houston, for relator.
    R. James George, Jr., Gary L. Lewis, D. Douglas Brothers, George & Brothers, L.L.P., Broadus A. Spivey, Spivey & Ains-worth, P.C., David E. Dunham, Donald R. Taylor, Miguel S. Rodriguez, Taylor & Dunham, L.L.P., Austin, for real party in interest.
    John J. McKetta, III, Graves, Dougherty, Hearon & Moody P.C., Patton G. Lochridge, Scott P. Baker, McGinnis, Lochridge & Kilgore, Austin, for interested party.
    Before Justices KIDD, B.A. SMITH and PEMBERTON.
   MEMORANDUM OPINION

PEMBERTON, Justice.

Relators filed a petition for writ of mandamus asking this Court to reverse the trial court’s disqualification of relators’ counsel. See Tex.R.App. P. 52. Mandamus is an extraordinary remedy, available only when a trial court clearly abuses its discretion and when there is no adequate remedy on appeal. In re Ford Motor Co., 988 S.W.2d 714, 718 (Tex.1998). Applying this exacting standard to the briefing, argument, and record, we must deny relators’ petition for writ of mandamus. See Tex.R.App. P. 52.8(a).


author: PAUL W. GREEN, Justice.

text:
    PARADIGM OIL, INC., Pacific Operators, Inc. and Pacific Operators of Texas, Inc., Appellant, v. RETAMCO OPERATING, INC., Appellee.
    No. 04-03-00765-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 15, 2004.
    Rehearing Overruled Feb. 28, 2005.

      Nissa M. Sanders, Sharon E. Callaway, Crofts & Callaway, P.C., San Antonio, for appellant.
    James L. Drought, Drought, Drought & Bobbitt, L.L.P., San Antonio, for appellee.
    Sitting: PAUL W. GREEN, Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice.
   OPINION

Opinion by

PAUL W. GREEN, Justice.

Retamco Operators, Inc. (ROI) sued Paradigm Oil, Inc., Pacific Operators, Inc., and Pacific Operators of Texas (collectively “Paradigm”), alleging, breach of contract and fraud arising out of an oil and gas lease. In this appeal, appellant Paradigm seeks relief from “death penalty” sanctions and a post-answer default judgment entered against it by the trial court. Paradigm presents four issues for appeal: (1) whether the trial court abused its discretion in granting the default judgment; (2) whether the trial court’s damage award is supported by evidence in the record; (3) whether the evidence presented in a prior hearing is legally and factually sufficient to support the trial court’s award of actual and exemplary damages; and (4) whether the trial court’s severance order should be reversed if the case is remanded on liability or damages.

We affirm the trial court’s decisions regarding issues one and four. However, with regard to Paradigm’s second issue we reverse and remand the trial court’s decision on whether the damage award is supported by evidence in the record.

BACKGROUND

On August 5, 1999, ROI sued for breach of contract and fraud, claiming Paradigm and PNB Securities Corporation failed to pay overriding royalties under a 1984 Purchase Agreement involving numerous oil and gas leases, many of which were assigned to and operated by Paradigm. Paradigm answered with a general denial to all of ROI’s claims and asserted a number of affirmative defenses. ROI commenced discovery immediately, serving Paradigm with Requests for Disclosure, Interrogatories, and Requests for Production of Documents on September 14 and 17,1999.

Paradigm did not respond to these September discovery requests. ROI contacted Paradigm’s counsel in an effort to resolve the problem, but when this proved ineffective, ROI filed a motion to compel Paradigm’s responses to discovery. The trial court heard the motion to compel on February 4, 2000, and ordered Paradigm to respond to all of the discovery requests by February 11, 2000. On February 9, 2000, Paradigm responded to six of the twelve requests and produced documents in response to only one request.

Several months later, on September 21, 2000, ROI served a Second Request for Production to which Paradigm responded with numerous objections and produced no documents. In November 2000 and February 2002, ROI served Paradigm with two more Requests for Disclosure. When Paradigm failed to respond, ROI filed its second motion to compel. Again, the court ordered Paradigm to respond to discovery, but it did not. Next, ROI issued notices to take Paradigm’s deposition on March 14 and 15, 2002. Paradigm neither appeared for the depositions nor made any response to the notices.

On March 22, 2002, ROI filed a motion for sanctions against Paradigm, asserting a pattern of discovery abuse and requesting, among other things, that Paradigm’s pleadings be stricken and a default judgment be rendered against it. ROI alleged the persons responsible for the discovery abuse were the owners, directors and officers of Paradigm, not Paradigm’s attorneys. One week later, Paradigm produced over 2,500 documents, but according to ROI’s counsel, that production only satisfied one outstanding request.

Hearing on the motion for sanctions was postponed in part by the bankruptcy of another defendant, but was finally scheduled for October 18, 2002. Paradigm was notified of the hearing but failed to appear. In light of the nonappearance, Judge Pee-ples ordered Paradigm’s answer stricken and rendered judgment by default against Paradigm in the amount of $1,600,000. Paradigm moved for a new trial, alleging that its failure to appear at the hearing was due to counsel’s mistake in misreading the notice. The trial court granted Paradigm’s motion, ordered a new trial on ROI’s motion for sanctions, and reset the motion for sanctions for hearing on January 10, 2003.

Following the hearing, the trial court signed an order partially granting ROI’s motion for sanctions and ordered that Paradigm: (1) completely answer all interrogatories, requests for disclosure, and requests for production no later than January 24, 2003; (2) produce a witness or witnesses competent to testify on certain designated matters no later than January 31, 2003; and (3) pay ROI $7,500 to reimburse attorney’s fees and court costs. The order further stated that if Paradigm did not comply with its terms, Paradigm’s answer would be stricken and a default judgment rendered against it. Paradigm paid the $7,500 sanction.

On January 24, 2003, the parties agreed to extend the court-ordered deadlines, requiring Paradigm to answer written discovery on or before January 31, 2003, and produce witnesses for deposition on February 13, 2003. Four days later, Paradigm’s counsel informed ROI’s counsel that Paradigm was preparing a large number of boxes of documents responsive to the document production requests. These documents were not produced by the January 31, 2003 deadline, allegedly because Paradigm filed for bankruptcy on that date. ROI moved to lift the bankruptcy stay, and an order to that effect was entered June 11, 2003. One week later, ROI filed a motion for default judgment asserting that Paradigm did not comply with the trial court’s sanctions order by the appointed date, and a hearing was set for July 3, 2003. Before this date, Paradigm offered to produce whatever discovery was owed ROI, but ROI refused the offer.

Following the hearing, Judge Peden granted a default judgment against Paradigm in the amount of $1,600,000. In response, Paradigm did the following: (1) presented post-judgment motions for new trial and for reconsideration; (2) produced everything it believed ROI sought; and (3) offered to reimburse ROI’s legal fees. The motions were denied and the default judgment severed from the remaining defendants. Paradigm appealed.

Discussion

A. Death Penalty Sanctions

In its first issue, Paradigm asserts four reasons the trial court abused its discretion in assessing death penalty discovery sanctions: (1) ROI failed to establish a direct relationship between the offensive conduct and the sanction imposed because it failed to demonstrate whether Paradigm or its counsel was responsible for the discovery abuse; (2) the sanctions granted were excessive because the trial court not only struck Paradigm’s pleadings, but also precluded it from opposing ROI’s evidence of damages; (3) the sanctions default judgment against Paradigm prejudices innocent parties against whom ROI seeks to impute Paradigm’s conduct; and (4) lesser sanctions would not have resulted in any prejudice to ROI where Paradigm produced all documents and offered to pay ROI’s costs and expenses.

In assessing sanctions for discovery abuse, the trial court may consider everything that has occurred during the litigation. Berry-Parks Rental Equip. Co. v. Sinsheimer, 842 S.W.2d 754, 757 (Tex. App.-Houston [1st Dist.] 1992, no writ). We review the trial court’s ruling on sanctions for discovery abuse under an abuse of discretion standard. State Farm Fire & Casualty Co. v. Rodriguez, 88 S.W.3d 313, 326 (Tex.App.-San Antonio 2002, pet. denied). When reviewing a trial court’s imposition of sanctions, any conflicts must be viewed in the light most favorable to the trial court’s ruling, and all inferences must be made in favor of the court’s judgment. Herring v. Welbom, 27 S.W.3d 132, 143 (Tex.App.-San Antonio 2000, pet. denied).

There are three purposes for discovery sanctions: (1) secure compliance with discovery rules; (2) deter other litigants from similar misconduct; and (3) punish violators. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex.1992). If the court finds a party is abusing the discovery process in seeking, making or resisting discovery, the court may impose an appropriate sanction. Tex.R. Civ. P. 215.3.

A court may impose sanctions for the failure to fully and completely comply with a request for discovery. Tex.R. Civ. P. 215. The Texas Supreme Court has stated that this rule gives “trial courts broad authority to curb [discovery] abuse.” Braden v. Downey, 811 S.W.2d 922, 980 (Tex.1991). Discovery sanctions imposed must be just under the circumstances. Tex.R. Crv. P. 215.2(b); TmnsAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 918, 917 (Tex.1991). When determining whether the sanctions imposed are just, we consider two factors: (1) whether there is a direct relationship between the offensive conduct and the sanctions; and (2) whether the sanctions are excessive. Trans-American, 811 S.W.2d at 917.

1. Direct Relationship

Paradigm argues that ROI failed to establish a direct relationship between the offensive conduct and the sanction imposed because it failed to demonstrate whether Paradigm or its counsel was responsible for the discovery abuse. The trial court must at least attempt to determine whether the offensive conduct is attributable only to counsel, only to the party, or to both. TmnsAmerican, 811 S.W.2d at 917. A lawyer cannot shield his client from sanctions; a party must bear some responsibility for its counsel’s discovery abuses when it is or should be aware of counsel’s conduct and the violation of the discovery rules. Id. On the other hand, a party should not be punished for counsel’s conduct in which the party is not implicated apart from having entrusted to counsel its legal representation. The point is, the sanction the trial court imposes must relate directly to the abuse,found. Id.

In the present case, the offensive conduct for which the sanctions were imposed was Paradigm’s non-compliance with prior trial court orders to respond to discovery. This included the January 10, 2003 order which warned that Paradigm’s pleadings would be stricken and a default judgment rendered if it did not fully respond to all interrogatories, requests for disclosure, and requests for production by January 24, 2003, and produce witnesses for deposition by January 31, 2003. On January 23, 2003, Paradigm served answers to interrogatories that were signed by Paradigm’s secretary and engineer with the company. Paradigm then had its own counsel seek time extensions by representing that the requested documents were on their way, when they were not. There is no suggestion that Paradigm was not fully aware of their non-compliance or the actions of their counsel. Moreover, Paradigm’s counsel had no knowledge that Paradigm was planning to file for bankruptcy.

In addition, the July 3, 2003 default judgment specifically adjudged Paradigm, not its counsel, guilty of violating the discovery process. The trial court record supports the trial court’s finding that Paradigm, and not merely Paradigm’s counsel, was responsible for the discovery abuse. There was no failure of the trial court to determine whether the offensive conduct was attributable to counsel only, to the party only, or to both. Thus, there is a direct relationship between the conduct of Paradigm and the resulting sanctions.

2. Excessive Sanctions

Paradigm also argues that the sanctions were excessive because the trial court not only struck Paradigm’s pleadings, but also precluded it from opposing ROI’s evidence of damages. Texas Rule of Civil Procedure 243 makes it mandatory that a court rendering default judgment hear evidence of unliquidated damages, regardless of whether the default results from the defendant’s failure to answer or from discovery sanctions. Tex.R. Civ. P. 243. Nevertheless, Texas Rule of Civil Procedure 215.2(b)(4) gives the trial court discretion to render a default judgment as sanctions and to deny the offending party the right to oppose the damages evidence. Tex.R. Civ. P. 215.2(b)(4); see In re Dynamic Health, Inc., 32 S.W.3d 876, 880 (Tex.App.-Texarkana 2000, orig. proceeding) (striking the offending party’s pleadings and ordering that at the hearing the party would not be permitted to object to evidence or cross examine witnesses).

In this case, the trial court made a specific finding that Paradigm’s “egregious and flagrant pattern of discovery abuse” was “directly related to ROI’s claims of damages.” It is clear that Judge Peeples heard evidence of unliquidated damages pursuant to Texas Rule of Civil Procedure 243. Although it is true that Paradigm did not have an opportunity to contest the damages evidence, the trial court has the discretion to prevent a party from contesting damages as a part of the sanctions imposed. See Tex.R. Civ. P. 215.2(b)(4). In light of the fact that Paradigm did not attend the October 18, 2002 hearing, the trial court did not abuse its discretion in relying on the damages testimony presented by ROI. Thus, the sanctions imposed were not excessive.

3. Prejudice

Paradigm argues the default judgment may potentially prejudice innocent parties because other defendants may be held liable for Paradigm’s wrongdoing but precluded from contesting its liability. Paradigm says the issue of prejudice is relevant to whether death penalty sanctions are just. ROI contends the trial court cannot consider potential prejudice to the remaining defendants because Paradigm has no standing to complain of injuries to other parties.

Standing to sue exists when a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. Menetti v. Chavers, 974 S.W.2d 168, 171 (Tex.App.San Antonio 1998, no pet.). On appeal, a party may only complain of error that injuriously affects that party. Id. at 171; see Pierson v. Houston Indep. Sch. Dish, 698 S.W.2d 377, 381 (Tex.App.-Houston [14th Dist.] 1985, writ ref d n.r.e.); see also Buchele v. Woods, 528 S.W.2d 95, 98 (Tex. Civ.App.-Tyler 1975, no writ). This court has held that a default judgment against a corporation “does not injure or prejudice” parties alleged to be alter egos, and that the corporation (here, Paradigm) has no standing on appeal of the default judgment to raise issues pertaining to other parties’ liability. See Menetti, 974 S.W.2d at 171-72.

Alternatively, when determining whether the sanctions imposed are just, we consider two factors: (1) whether there is a direct relationship between the offensive conduct and the sanctions imposed, which means that a just sanction must be directed against abuse and toward remedying prejudice caused the innocent party; and (2) whether the sanctions are excessive. TransAmerican, 811 S.W.2d at 917. In this case, the innocent party is ROI, not the other defendants in the suit; therefore, potential prejudice to the other defendants is not a proper consideration in our review of the trial court’s exercise of discretion. The sanctions imposed by the trial court do not affect anyone but the offending party Paradigm and therefore are just.

⅛. Lesser Sanctions

Paradigm argues that the imposition of lesser sanctions would not have prejudiced ROI. Before imposing death penalty sanctions, a court must consider the availability of a less stringent discovery sanction and whether the lesser sanetion would folly promote compliance. Id. at 917. Discovery sanctions which are so severe as to preclude presentation of the merits of a case should not be assessed absent a party’s flagrant bad faith or counsel’s disregard for responsibility of discovery under the rules. , Id. Paradigm contends that although its compliance was late, its tardiness did not preclude a decision on the merits.

“Death penalty sanctions” are proper when the record demonstrates bad faith in the litigation process as a whole as well as the prior imposition of lesser sanctions. See Allied Res. v. Mo-Vac Serv. Co., 871 S.W.2d 773, 780-81 (Tex.App.Corpus Christi 1994, writ denied) (death penalty sanction was just when entire process was marked by delay, avoidance, and obstruction, and neither compromise, patience, cajoling, fines, nor threats were successful in achieving compliance). Moreover, the court, in exercising its discretion to choose the appropriate sanction, is not limited to considering only the specific violation committed but is entitled to consider other matters which have occurred during the course of litigation. See Medical Protective Co. v. Glanz, 721 S.W.2d 382, 388 (Tex.App.-Corpus Christi 1986, writ refd). Thus, the court is entitled to consider Paradigm’s repeated noncompliance with the discovery rules and the discovery orders in issuing sanctions.

In the present case, the trial court exhausted lesser sanctions throughout the discovery process without success. Two orders to compel discovery preceded the ultimate sanction and were not enough to produce compliance. In addition, the court ordered Paradigm to comply with ROI’s discovery requests on January 10, 2003, imposed a lesser sanction of $7,500, and further stated that if Paradigm did not comply with these terms, its answer would be stricken and a default judgment rendered against it. An order to compel discovery, standing alone, does not constitute the type of lesser sanction which must be imposed prior to a trial court’s imposition of ultimate sanctions. See Bair v. Hagans, 838 S.W.2d 677, 681 (Tex.App.-Houston [1st Dist.] 1992, writ denied). However, an order to compel discovery joined with a statement by the court that noncompliance with the order would result in dismissal does constitute the type of lesser sanction which must be imposed prior to a trial court’s imposition of an ultimate sanction. See Jaques v. Texas Employers’ Ins. Ass’n., 816 S.W.2d 129, 131 (Tex.App.Houston [1st Dist.] 1991, no writ).

The trial court’s death penalty sanction is proper and not excessive in this instance because the repeated conduct of Paradigm demonstrates bad faith in the litigation process as a whole. Paradigm’s conduct in this case took place over a period of four years. We hold the trial court complied with the requirement to render lesser sanctions and did not abuse its discretion by granting death penalty sanctions when those lesser sanctions failed.

B. Evidence in the Record

In its second issue, Paradigm argues the trial court’s damage award is unsupported by evidence because ROI failed to authenticate and offer into evidence a record of its damages testimony from the first sanctions hearing on October 18, 2002.

A trial court may generally take judicial notice of its own records in a case involving the same subject matter between the same parties. Escamilla v. Estate of Escamilla, 921 S.W.2d 723, 726 (Tex.App.Corpus Christi 1996, writ denied). However, the trial court cannot take judicial notice of testimony from a previous proceeding at a subsequent proceeding unless the testimony is admitted into evidence at the subsequent proceeding. See Escamilla, 921 S.W.2d at 726; Muller v. Leyen-decker, 697 S.W.2d 668, 675 (Tex.App.-San Antonio 1985, writ refd n.r.e.). Accordingly, in order for testimony at a prior hearing or trial to be considered at a subsequent proceeding, the transcript of that testimony must be properly authenticated and entered into evidence. See Escamilla, 921 S.W.2d at 726.

The default judgment recites that “[t]he Court takes notice of the evidence previously introduced and admitted on or about October 18, 2002, in proof of Plaintiffs claims for unliquidated damages.” However, during the final July 3, 2003 sanctions hearing, ROI’s counsel merely represented to Judge Peden that Judge Peeples had previously found damages in the amount of $1,600,000 following the October 18, 2002 hearing. ROI did not offer a record of that previous hearing into evidence.

There was neither a transcript nor any evidence admitted before Judge Peden to support the award of $1,600,000. Judge Peden neither heard any damages testimony nor had any knowledge of the damages evidence previously admitted before Judge Peeples. Under these facts, Judge Peden can not adequately base a judgment for damages on evidence never seen nor heard. We hold that the trial court’s damage award is unsupported by evidence in the record and remand the issue for a new hearing on the amount of damages. We do not consider Paradigm’s third issue challenging the legal and factual sufficiency of the evidence to support the trial court’s award of actual and exemplary damages in the amount of $1,600,000.

C. Reversal and Severance

In its fourth issue, Paradigm contends that if this court reverses the default judgment on liability or damages, the trial court’s order of severance should also be set aside. Paradigm argues severance is inappropriate because ROI seeks to hold all defendants jointly and severally liable.

Texas Rule of Civil Procedure 41 provides that “[a]ny claim against a party may be severed and proceeded with separately.” Tex.R. Civ. P. 41. A claim is severable if: (1) the controversy involves more than one cause of action; (2) the severed claim is one that would be the proper subject of a lawsuit if independently asserted; and (3) the severed claim is not so interwoven with the remaining action that they involve the same facts and issues. Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex.1990). A trial court’s decision to grant a severance is reviewed for abuse of discretion. Id.

Following default, a trial court does not abuse its discretion by severing the causes of action against the defaulted defendants from those against other defendants, even if there is an alleged “indivisible injury,” or joint and several liability. See Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733-34 (Tex.1984); Musey v. Dickinson Social Club, 466 S.W.2d 84, 87 (Tex.Civ.App.-Houston [1st Dist.] 1971, no writ). ROI could have sued Paradigm independently; thus, severance is proper in this instance.

Conclusion

We overrule Paradigm’s first and fourth issues. The trial court did not abuse its discretion in granting the default judgment, death penalty sanctions were justified, and severance was proper. However, we reverse the judgment as to the amount of damages awarded and remand the case for a new hearing on damages.

      . Only Paradigm Oil, Inc. filed for bankruptcy; Pacific Operators, Inc. and Pacific Operators of Texas, Inc. were not parties to the bankruptcy proceeding.

      . Two different judges, Judge Peeples and Judge- Peden, presided over each of Paradigm’s default hearings.