author: WILLIAM BRIGHAM, Justice.

text:
    Elysee MARC, Appellant, v. The STATE of Texas, State.
    No. 2-03-205-CR.
    Court of Appeals of Texas, Fort Worth.
    June 2, 2005.

      Donald Davidson, Bedford, for Appellant.
    Tim Curry, Criminal District Atty., Charles M. Mallín, Sharón A. Johnson, Mitchell Poe, and Edward Lasater, Asst. Criminal District Attys., Fort Worth, for The State.
    Panel A: WALKER, J; WILLIAM BRIGHAM, J. (Senior Justice, Retired Sitting by Assignment); and SAM J. DAY, J. (Retired Sitting by Assignment).
   OPINION

WILLIAM BRIGHAM, Justice.

INTRODUCTION

Elysee Marc appeals from his conviction for aggravated sexual assault and sentence of ninety-nine years’ confinement. In seven issues, appellant complains that the evidence is factually insufficient to support his conviction and that the trial court erred by admitting certain exhibits and hearsay into evidence at the guilt-innocence and punishment phases of .trial. We affirm.

FACTS

While driving in his car, appellant picked up Y.D., a convicted prostitute, and asked her to perform sexual favors for him at his apartment in exchange for fifty dollars. As appellant was driving Y.D. to his apartment, she became nervous and asked appellant to take her back to where he had picked her up. Appellant refused, took out a box cutter, and held it to Y.D.’s throat.

When they reached appellant’s apartment, he told Y.D. that if she screamed, he would kill her. Once inside the apartment, appellant told her to take off her clothes. She did, and appellant proceeded to have intercourse with her. The intercourse was very rough, and Y.D. complained that appellant was hurting her. He ignored her and continued. During intercourse, she told him that he had not paid her. Appellant paused to give her eight or ten dollars out of his pocket, which he later took back. He started intercourse with her again. Y.D. pushed appellant off of her because he was being too rough, and appellant pulled out the box cutter and told her he was going to finish what he was doing. After appellant was done, Y.D. got dressed and appellant agreed to drive her home. But after they drove a few blocks, he stopped and told her to get out.

Y.D. went to a nearby pay phone, called the police, and reported that she had been raped. When the officer arrived, she took him to appellant’s apartment and identified his car. Y.D. also submitted to a hospital rape exam. At trial, the parties stipulated that DNA analysis of the semen found in Y.D. came from appellant.

The jury found appellant guilty of aggravated sexual assault. At sentencing, the State introduced evidence that appellant had committed six other rapes and an attempted rape with a deadly weapon. All victims except one were prostitutes.

FACTUAL SUFFICIENCY

In his first issue, appellant complains that the evidence is factually insufficient to support his conviction.

Standard of Review

In reviewing the factual sufficiency of the evidence to support a conviction, the appellate court is to view all the evidence in a neutral light, favoring neither party. Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App.2004). The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Id. at 484. There are two ways evidence may be factually insufficient: (1) the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) when there is evidence both supporting and contradicting the verdict or judgment, weighing all of the evidence, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. at 484-85. “This standard acknowledges that evidence of guilt can ‘preponderate’ in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt.” Id. at 485. In other words, evidence supporting a guilty finding can outweigh the contrary proof but still be insufficient to prove the elements of an offense beyond a reasonable doubt. Id.

In performing a factual sufficiency review, we are to give deference to the fact finder’s determinations, including determinations involving the credibility and demeanor of witnesses. Id. at 481; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). We may not substitute our judgment for that of the fact finder. Zuniga, 144 S.W.3d at 482.

A proper factual sufficiency review requires an examination of all the evidence. Id. at 484, 486-87. An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant’s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).

Discussion

Appellant focuses the entirety of his discussion of factual insufficiency on Y.D.’s veracity and inconsistent statements and conflicting testimony on the issue of consent.

Veracity

Appellant points out that Y.D.’s veracity was “highly suspect” because she was a prostitute, a drug addict, and had been convicted in federal and state court for a variety of theft and felony offenses. Appellant contends that Y.D.’s credibility was further undermined by the fact that she lived at a crack house and prostituted herself to get money for illegal drugs.

Y.D. admitted on cross-examination that she had stolen from her customers in the past and that it was not beneath her to “lie and cheat and steal.” Appellant notes that Y.D. admitted to lying to police during the initial investigation by telling them that she had merely asked appellant for a ride to a friend’s house in order to avoid getting in trouble for prostitution.

The State responds, stating that Y.D.’s criminal history, drug use, and occupation as a prostitute were known to the jury from the beginning of the State’s case. Immediately upon taking the witness stand, Y.D. admitted that she was unemployed, addicted to crack cocaine, smoked several “rocks” a day, earned money as a prostitute, and had numerous criminal convictions. According to Officer Timothy Trull, who took the initial police report on the sexual assault, one of the first things Y.D. told him was that she was a prostitute. The detective assigned to Y.D.’s case testified that he knew Y.D. was a prostitute and that, after interviewing her, he dropped her off at a known crack house.

In addition to hearing Y.D.’s testimony, the jury also heard the testimony of two police officers describing Y.D.’s emotional state after the assault. Officer Trull testified that when he met Y.D. at the convenience store where she had called 911, Y.D. was crying and appeared “really upset.” Detective Spivey, who had known Y.D. for a long time, met Y.D. at the hospital where she received her rape exam. Detective Spivey noted that Y.D. was crying and more upset than he had ever seen her before. Y.D. testified that although she had been raped in the past, this incident was different because no one had ever threatened to kill her before. This incident was the only time Y.D. made a sexual assault report to the police.

As the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony, a jury may believe or disbelieve all or any part of a witness’s testimony. Page v. State, 125 S.W.3d 640, 646 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). Based upon Y.D.’s candid testimony and the corroborating testimony of the two police officers, the jury could have chosen to believe Y.D. despite her background and personal history.

Inconsistent Statements

Next, appellant complains that the evidence is factually insufficient because Y.D. made inconsistent statements at trial. First, he points to the inconsistent references to the weapon as a “knife,” a “box cutter,” and a “razor.” Officer Trull testified that Y.D. referred to the weapon as a “knife” when first reporting the assault but later referred to it as a “razor.” Ultimately, Y.D. explained during her testimony that a “razor” is the street term for a “box cutter.” Accordingly, despite the different terms used, the jury could have concluded that appellant used a box cutter during the offense.

Appellant also points out that Y.D. gave conflicting testimony regarding a man she saw coming out of an apartment neighboring appellant’s apartment. Officer Trull testified that Y.D. told him she saw the neighbor when she and appellant first arrived at his apartment. At trial, Y.D. testified that she saw the neighbor as she and appellant were leaving his apartment. In light of the fact that Officer Trull testified that Y.D. was upset and crying when she initially told him what had happened to her, the jury could have believed that Y.D. was telling the truth about the assault despite this inconsistency.

Lack of Consent

Lastly, appellant complains that the evidence was factually insufficient to show lack of consent to sex on the part of Y.D. First, he argues that Y.D. gave inconsistent testimony as to whether she told appellant to stop having intercourse with her. On both direct and cross-examination, Y.D. testified that she told appellant to stop. First, she stated, “He had gave me some money because I had told him to stop, and I don’t know how long [the intercourse] happened but I eventually got him up off me.” Appellant contends that the above statement contradicts the following testimony:

[PROSECUTOR] Is that what you were saying, he was pulling your hair?
[Y.D.] No, the braids — he pulled the braids out.
Q. He pulled the braids out?
A. Yeah, he pulled them aloose.
Q. We are talking this was your real hair?
A. Yeah, he pulled them aloose. It wasn’t no braids. They was all loose in all of them.
Q. Did that hurt?
A. Yeah.
Q. Did you ever tell him stop?
A. Yeah, I did. Yes, sir.
Q. How did you tell him that?
A. Actually, I didn’t tell him to stop. I just told him that he was hurting me, that he needed to slow down. I said, don’t pull my hair so hard because you are hurting me. He wasn’t listening. He just kept on doing it.

While appellant contends the above question of whether Y.D. asked him to stop relates to intercourse, the jury was free to conclude that the question related only to whether she asked appellant to stop pulling her hair. Thus, even though the above statements are somewhat ambiguous and open to interpretation, they are not dispos-itive on the issue of consent.

Next, appellant contends that Y.D. participated in sexual intercourse with him in exchange for payment, not because she feared for her safety. Appellant points to Y.D.’s interview with Detective Spivey in which she stated that she was not scared of appellant. However, appellant takes Y.D.’s statement out of context because she actually stated that she was not scared of appellant, “but he had a razor.” Y.D. explained on redirect examination that she was not afraid of appellant but was afraid of the razor he carried.

Although the record shows that Y.D. at times appeared motivated by payment, it supports the jury’s finding that she was forced to participate in sexual intercourse with appellant because he threatened her. For example, appellant points to the fact that Y.D. pushed appellant off of her during sex because he was hurting her as evidence that Y.D. was not afraid of appellant. But appellant’s argument ignores the fact that Y.D. was forced by appellant to continue having sex with him because he pulled the box cutter out of his pants, showed it to her, and told her that he was going to finish what he was doing. Y.D. testified that she only let him continue because she was afraid appellant would cut her with the “razor.”

Appellant also argues that Y.D.’s statement to him in his apartment that she wanted to “get it over with” indicated that the sex was consensual. However,. the jury could have interpreted the statement to mean that Y.D. knew what was going to happen to her and did not want to prolong it. Appellant also points to the fact that he did not “beat up” Y.D. as evidence that the sex was consensual. However, the record reveals that appellant held a box cutter to her throat while driving her to his apartment; when at the apartment, threatened to kill her if she screamed; threatened her with the box cutter during intercourse, telling her he was going to finish what he was doing; treated her roughly by pulling her hair and causing her pain; and, ultimately, refused to stop although Y.D. repeatedly told him that he was hurting her.

The penal code provides that a person commits the offense of aggravated sexual assault “if the person ... intentionally or knowingly ... (i) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent; [or] (ii) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent.” Tex. Penal Code Ann. § 22.021(a)(1) (Vernon Supp.2004-05). Our review of the record reveals evidence showing that after initially agreeing to go to appellant’s apartment, Y.D. changed her mind and asked appellant to take her back to where he had picked her up; appellant refused, pulled out a box cutter, and held it to her throat. When they arrived at the apartment, it was undisputed that appellant had intercourse vaginally and orally with Y.D. While having intercourse, appellant threatened her with a weapon in order to force her to continue having sex with him and refused to stop after she repeatedly told him that he was hurting her.

The evidence we have detailed is not too weak to support the jury’s finding of guilt, nor is the evidence contrary to the finding so strong that guilt cannot be proven beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 485. Accordingly, we hold that the evidence was factually sufficient to support the jury’s verdict. Appellant’s first issue is overruled.

ADMISSION OF EVIDENCE

In his remaining issues, appellant complains that the trial court erred by admitting various exhibits and certain testimony.

Standard of Review

The admission of evidence is a matter within the discretion of the trial court. Montgomery v. State, 810 S.W.2d 372, 378 (Tex.Crim.App.1990). As long as the trial court’s ruling admitting the evidence was within the “zone of reasonable disagreement,” there is no abuse of discretion and the trial court’s ruling will be upheld. Rachal v. State, 917 S.W.2d 799, 807 (Tex.Crim.App.1996).

Witness Statement

In appellant’s second and third issues, he complains that the trial court erred by admitting exhibits containing his written statement to police because they are inadmissible under Texas Rules of Evidence 404(b) and 403. The exhibits at issue are copies of a written statement made by appellant while in police custody. Appellant’s statement is as follows:

My partents are going through a divorce pressure builds up causes me to durink. Makes me mad and drepressed. So I start looking for something to get my mind off of things thats when I get in trouble and start durinking and pick up prostates. When I pick them up I’m arerend mad I told one of them if she try anything to hurt me I wood hurt her with a boxcuter. And a nother one I lift with her purse still in my car.

Appellant’s trial counsel objected under rule 404(b), arguing that the statement is not a confession and it is unclear whether the reference to the box cutter refers to the incident with Y.D. or whether it refers to an incident with a different prostitute. Counsel also stated that the exhibit was “only being admitted for the purpose of inflaming the jury and making them speculate that the box cutter that is being spoken of in here ... [is] the same box cutter that was used in a specific — in this specific case[;] that is not what this indicates.” The State responded by arguing that the statement is relevant to appellant’s motive and intent and it corroborates Y.D.’s testimony.

During the discussion regarding the admissibility of the statement, the trial court indicated that it was concerned about the other extraneous offenses mentioned in the statement, i.e., getting drunk and picking up prostitutes, not just Y.D. In clarifying his objection, defense counsel stated that his objection is

that they [the State] intend to prove that that box cutter statement goes directly to that young lady [Y.D.]. And I say that is making the jury leapt,] speculate[,] and is prejudicial to my client for them to take that position that that statement that he made there, which is exculpatory, is trying to imply that that box cutter that he was talking about is the same box cutter being used here in this court.

The State also informed the trial court that appellant made the statement after he was arrested and questioned about Y.D.’s case; thus, appellant’s references to the box cutter went directly to the incident with Y.D.

Rule 404(b) prohibits the admission of evidence of “other crimes, wrongs or acts” in a criminal case to prove that the defendant acted in conformity with his character to commit crimes. Tex.R. Evid. 404(b). Once the opponent objects to such evidence, it is incumbent upon the proponent of the evidence to show that the evidence has relevance apart from its tendency to prove the defendant acted in conformity with his character. Montgomery, 810 S.W.2d at 388 (op. on reh’g). If the trial court determines the evidence has no relevance apart from character conformity, then the evidence is inadmissible. Id. “However, the proponent of the evidence may convince the court the evidence is relevant to establish some elemental fact, such as identity or intent; that it tends to establish some evidentiary fact, such as motive, opportunity or preparation, leading inferentially to an elemental fact; or that it rebuts a defensive theory.” Massey v. State, 933 S.W.2d 582, 586 (Tex.App.-Houston [1st Dist.] 1996, no pet.).

“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex.R. Evid. 401. Here, the State argues that the written statement was relevant to corroborate Y.D.’s testimony that appellant threatened her with a box cutter and went to the issue of consent. The trial court admitted the statement because

it basically states that [appellant engaged] in drinking and picking up prostitutes, and also it states in here about the box cutter, since the box cutter has been related to this particular case, and since he was arrested to — pertaining to this particular case, it is [the trial court’s] opinion that he is talking about this particular case. [Emphasis added.]

Thus, it appears the trial court believed that the portion of the statement in which appellant admitted to threatening a prostitute with a box cutter referred to Y.D. and corroborated her testimony. No evidence was admitted at guilt-innocence about the other extraneous acts revealed in the statement, i.e., drinking, getting mad, and picking up other prostitutes. Accordingly, we hold that the trial court did not abuse its discretion in admitting the statement under rule 404(b) both to corroborate Y.D.’s testimony and because it was relevant to the issue of consent.

Next, we must determine whether the trial court abused its discretion in admitting the evidence under rule 403. See Montgomery, 810 S.W.2d at 388. Rule 403 allows the admission of relevant evidence unless its probative value is substantially outweighed by the danger of unfair prejudice, confusion, undue delay, or the unnecessary presentation of cumulative evidence. Tex.R. Evid 403. Rule 403 favors admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial. Montgomery, 810 S.W.2d at 389. In Santellan v. State, 939 S.W.2d 155 (Tex.Crim.App.1997), the court of criminal appeals restated the factors discussed in Montgomery that should go into the balancing test:

(1)how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable — a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense;
(2) the potential the other offense evidence has to impress the jury “in some irrational but nevertheless indelible way”;
(3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; [and]
(4) the force of the proponent’s need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.

Id. at 169 (footnote omitted).

Here, appellant’s statement about the box cutter corroborates Y.D.’s testimony about her lack of consent and thus makes it more probable that she did not consent to sex with appellant. As appellant notes in his earlier points, Y.D.’s criminal history and drug use did not make her the ideal witness. For that same reason, the State had a strong need for the evidence. Although the police found a box cutter at appellant’s apartment, the jury could have concluded that appellant’s owning a box cutter was not unusual and that Y.D. could have seen it when she was at appellant’s apartment. Thus, appellant’s statement strengthened the State’s case on the consent issue.

In addition, while the acts described in appellant’s statement were probably distasteful to at least some, if not all, of the jury members, they are not any more inflammatory than the charged offense. In fact, appellant’s statement about the box cutter purports to be exculpatory by implying that he was responding to a threat. Moreover, the amount of time the State spent developing testimony about the statement was very small compared to the rest of the record. And the prosecutors did not unduly emphasize the statement in their closing arguments; the bulk of their arguments focused on Y.D. and her testimony. Thus, we conclude that the trial court did not abuse its discretion in admitting evidence of appellant’s statement under rule 403.

We overrule appellant’s second and third issues.

Hearsay Statements, Admission of Exhibits 53 and 55, and the Confrontation Clause

In his fourth through seventh issues, appellant complains that the trial court erred during the punishment phase of trial by admitting the hearsay statements of L.J. and K.G. and DNA evidence reports linking appellant to the alleged sexual assaults of both of these women. Specifically, appellant complains that the trial court erred by allowing two police officers to testify about statements the women made when they reported being sexually assaulted and by admitting the DNA evidence through the police officers. Appellant asserts that in allowing the statements and exhibits into evidence, the trial court violated his constitutional right to confront and cross-examine witnesses under the Sixth and Fourteenth Amendments. The State responds that the statements were properly admitted as nontestimonial excited utterances under evidence rule 803(2). Tex.R. Evid. 803(2). Appellant stipulated to the admissibility of the exhibits but conditioned his stipulation on his prior Confrontation Clause objection.

Fort Worth Police Officer Thomas Shelton testified that on August 17, 2000, he found L.J. walking down the street. Her pants were tom and she was “crying” and “upset.” Officer Shelton asked her what had happened and she responded, still crying and “very emotional,” that approximately three hours earlier she had been walking home from the store when a car pulled up beside her and asked her how she was doing. According to Officer Shelton, she then described how the car pulled over when she walked away from it and the driver got out, grabbed her, held a gun to her side, and told her to get into the car. They drove to an old concrete factory, pulled into the parking lot, and the driver made L.J. perform oral sex on him. Afterwards, L.J. and the driver went into the building and the driver had sexual intercourse with L.J. without her consent.

The State admitted exhibit 53 during punishment. The exhibit was a DNA lab report regarding a piece of paper with semen on it found at the concrete factory where L.J. alleged she was raped. DNA analysis confirmed that the semen on the paper came from appellant.

The other contested testimony came from Fort Worth Police Officer Daryl Horn. Officer Horn testified that on September 27, 2001, he was flagged down by K.G. in a park near Benbrook Lake. Officer Horn described K.G. as being “very upset, very emotionally distraught, almost hysterical.” Officer Horn testified that KG. told him that she had been raped and robbed in the park approximately twenty to thirty minutes earlier. While KG. and Officer Horn spoke, KG. continued to cry and be upset. KG. told Officer Horn that she had been trying to find a ride home when a man in a car pulled over and she offered him two dollars to drive her home. The driver took her to an apartment complex near Hulen Street and went inside. When the driver came out, he screamed at K.G. and told her that she was going to obey him. The driver took KG. to the park near Benbrook Lake and sexually assaulted her for two to two-and-a-half hours. After the driver ejaculated, he robbed KG. of forty dollars. Officer Horn took K.G. to the hospital for a rape exam. DNA analysis of the semen found in KG. showed that it belonged to appellant.

Admissibility Under Confrontation Clause

We review de novo the trial court’s ruling that the admission of Officers Shelton’s and Horn’s testimony would not violate appellant’s Confrontation Clause rights. See Lilly v. Virginia, 527 U.S. 116, 137, 119 S.Ct. 1887, 1900, 144 L.Ed.2d 117 (1999) (holding that “when deciding whether the admission of a declarant’s out-of-court statements violates the Confrontation Clause, courts should independently review whether the government’s proffered guarantees of trustworthiness satisfy the demands of the Clause”). The Sixth Amendment provides that, “[ijn all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him.” U.S. Const. amend. VI. The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversarial proceeding before the trier of fact. Lilly, 527 U.S. at 123-24, 119 S.Ct. at 1894.

At the time of appellant’s trial, a Confrontation Clause challenge to the admissibility of an out-of-court statement offered against the accused was governed by Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Under Roberts, before an out-of-court statement could be admitted, the hearsay declarant had to be unavailable if she was not present for cross-examination at trial. Even then, her statement was admissible only if it bore adequate “indicia of reliability.” Reliability could be shown by the presence , of a firmly rooted hearsay exception or by particularized guarantees of trustworthiness. Id. at 66, 100 S.Ct. at 2539.

While appellant’s appeal was pending before this court, the Supreme Court replaced the Roberts test with a new test, set out in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Crawford, the Court declared that the Roberts test was at once too broad because it applied the same analysis whether the out-of-court statement was testimonial or not, and too narrow because it admitted ex parte testimonial statements “upon a mere finding of reliability.” Id. at 60, 124 S.Ct. at 1369.

Crawford distinguishes the standards used in determining the admissibility of nontestimonial statements from those applicable to testimonial statements. Under Crawford, without exception, testimonial statements of witnesses absent from trial are admissible over a Sixth Amendment Confrontation Clause objection only where the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant. Id. at 68, 124 S.Ct. at 1374. Testimonial statements from absent, unavailable witnesses are not admissible if the defendant has not had the opportunity to cross-examine the declarant. In contrast, nontestimonial statements of an unavailable declarant who has not been cross-examined may still be admitted as evidence in a criminal case if the statements qualify under an exception to the rule against hearsay. Id.

Therefore, the threshold question under Crawford is whether the statement offered is “testimonial” in nature. Unfortunately, the Supreme Court failed to define what constitutes a testimonial statement. Instead, the Court stated,

We leave for another day any effort to spell out a comprehensive definition of “testimonial.” Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.

Id. at 68, 124 S.Ct. at 1374.

Appellant argues in his reply brief that KG.’s and L.J.’s statements are testimonial because they are analogous to statements made under police interrogation. The State argues that the statements are nontestimonial because they were not made during a police interrogation. The State characterizes each statement as a “call for help,” not initiated by the police, that was part of “the criminal incident itself, not part of the prosecution that followed.” Appellant concedes that a 911 call may constitute a nontestimonial “spontaneous declaration”; however, he contends that the statements in this case were not spontaneous, but rational, thinking responses to questions posed by the police.

Since Crawford was decided, several Texas and other courts have had the opportunity to examine whether certain out-of-court statements are testimonial. See Key v. State, — S.W.3d -, -, No. 12-04-00030-CR, 2005 WL 467167, at *3 (Tex.App.-Tyler Feb.28, 2005, pet. filed). “Most ... have held that initial police-victim interaction at the scene of an incident is not an interrogation and that admission of testimony about that interaction does not offend the Confrontation Clause.” Id.; see also Spencer v. State, 162 S.W.3d 877, 881 (Tex.App.-Houston [14th Dist.] 2005, no pet. h.) (agreeing with Key’s conclusion that “statements made to officers responding to a call during the initial assessment and securing of a crime scene are not testimonial”); Wilson v. State, 151 S.W.3d 694, 698 (Tex.App.-Fort Worth 2004, pet. ref'd) (holding that statements made by appellant’s girlfriend to police at scene of accident were nontestimonial).

Here, the testifying officers did not seek out the victims for the purpose of investigating the offenses the victims eventually described. Indeed, the officers did not know if any offense had been committed when they first encountered the victims. The victims were not considered suspects, accomplices, or co-conspirators. The officers’ testimony indicates that each one asked questions of a lone, visibly upset female in a deserted place in the middle of the night in an attempt to determine the reason for her emotional state. We conclude that the victims’ statements to the officers were not the product of custodial interrogation, nor were they responses to tactically “structured police questioning.” See Crawford, 541 U.S. at 53 n. 4, 124 S.Ct. at 1365 n. 4.

Moreover, even if the trial court had abused its discretion in admitting L.J.’s and KG.’s statements to the police, any error would be harmless. See Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986); Tex.R.App. P. 44.2(a). DNA tests corroborated the testimony that appellant had engaged in sexual intercourse with the de-clarants. The officers’ observations of the disheveled appearance and disturbed and emotional demeanor of the declarants also corroborated the testimony that they had been assaulted. In addition to Y.D.’s testimony at guilt-innocence, five other prostitutes testified at punishment that appellant assaulted them. Appellant was able to cross-examine all of them. In light of the evidence corroborating L.J.’s and KG.’s statements; the strength of the State’s case against appellant, the cumulative nature of the evidence, and the relative unimportance of the hearsay testimony — as evidenced by the testimony of the five other women who testified to similar assaults by appellant; and the fact that appellant was able to cross-examine all of those women, we can determine beyond a reasonable doubt that the admission of L.J.’s and K.G.’s hearsay statements and the DNA evidence did not contribute to appellant’s punishment.

Admissibility as Excited Utterances

In addition to disputing whether L.J.’s and K.G.’s statements are admissible under Crawford, appellant also contends that the statements are not admissible as excited utterances under rule 803(2). Tex.R. Evid. 803(2). We disagree.

Although appellant asserts several reasons why L.J.’s and KG.’s comments to the police are not excited utterances, the only reason he asserted at trial was that “it is not near the time period.” Thus, we will address only appellant’s contention that L.J.’s and KG.’s comments, and the offenses described by them, were too remote in time from the occurrence of the offenses. See Tex.R.App. P. 33.1(a)(1)(A); Guevara v. State, 97 S.W.3d 579, 583 (Tex.Crim.App.2003).

It is not dispositive that [a] statement is an answer to a question or that it was separated by a period of time from the startling event; these are simply factors to consider in determining whether the statement is admissible under the excited utterance hearsay exception.” Brown v. State, 96 S.W.3d 508, 514 (Tex.App.-Austin 2002, no pet.). The critical determination is “whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event” or condition at the time of the statement. Id. (quoting Salazar v. State, 38 S.W.3d 141, 154 (Tex.Crim.App.), cert. denied, 534 U.S. 855, 122 S.Ct. 127, 151 L.Ed.2d 82 (2001)). Here, Officer Shelton testified that L.J. was upset and very emdtional when he saw her and that she was still crying while she answered his questions. Officer Horn described K.G. as being “very upset, very emotionally distraught, almost hysterical.” Considering the apparent emotional state of the women when the officers encountered them, we do not believe the trial court abused its discretion in determining that their statements were admissible as excited utterances. See Tex.R. Evid. 803(2); Brown, 96 S.W.3d at 514. Accordingly, we overrule appellant’s fourth through seventh issues.

CONCLUSION

Having overruled all of appellant’s issues, we affirm the trial court’s judgment.

      . Y.D.’s convictions included one misdemean- or theft conviction, five prostitution convictions, a state jail felony conviction for possession of a controlled substance, and federal convictions for embezzlement and felony theft.

      . All errors are in original.

      . Crawford was pending, certiorari granted, in the United States Supreme Court at the time of submission, and both sides acknowledged that the Supreme Court's holding in that case would be dispositive of the present case.

      . The Supreme Court derived this term from the Confrontation Clause’s language, noting that the Clause is concerned with ''witnesses,” whom the Court identifies as those who "bear testimony.” Id. at 51, 124 S.Ct. at 1364.

      . Because Brown is a pre-Crawford case, it is unclear whether the victim’s statements to police are testimonial or nontestimonial because that issue is not analyzed.


source: Caselaw Access Project

author: DIXON W. HOLMAN, Justice.

license: Public Domain

text:
    TRANSPORT INTERNATIONAL POOL, INC. d/b/a GE Capital Modular Space, Appellant, v. The CONTINENTAL INSURANCE COMPANY and Continental Casualty Company, Appellees.
    No. 2-04-176-CV.
    Court of Appeals of Texas, Fort Worth.
    June 2, 2005.

      Cotten Schmidt, L.L.P., Larry E. Cot-ten, Paul E. Hanson and Steven K. Hayes, Fort Worth, for Appellant.
    Goins, Underkofler, Crawford & Lang-don, LLP, John C. Tollefson and Stephen A. Melendi, Dallas, for Appellees.
    PANEL B: DAUPHINOT, HOLMAN, and GARDNER, JJ.
   OPINION

DIXON W. HOLMAN, Justice.

Introduction

In this insurance coverage dispute case, Appellant Transport International Pool, Inc. d/b/a GE Capital Modular Space (GE) appeals from the trial court's summary judgment in favor of Appellees Continental Insurance Company and Continental Casualty Company (Continental). In granting Continental’s motion, the trial court held that Continental has no duty to defend or indemnify GE in the underlying lawsuit. GE also appeals from the trial court’s denial of its cross-motion for summary judgment. We affirm.

Factual and Procedural Background

On or about March 10, 2000, Tommy Doolin (Doolin) was employed by Vratsinas Construction Company (Vratsinas). Doo-lin was allegedly injured when a modular space unit (also referred to as a construction trailer) that he was occupying blew over in high winds. The unit was owned by GE and was being leased to Vratsinas under a lease agreement. When GE leased the unit to Vratsinas, the lease agreement provided that

Customer, at Customer’s sole cost, will procure and keep in full force and effect from the initial delivery date until the return of all Equipment the following policies of insurance satisfactory to GECMS as to the insurer and as to the form and amount of coverage, with premiums prepaid;
i) Commercial General Liability Insurance with a minimum combined single limit of $1,000,000 per occurrence, written on an occurrence form, including coverage for premises, operations, contractual liability, broad form property damage, independent contractors and personal injury liability, naming GECMS as an additional insured.
ii) Commercial Property Insurance protecting against all loss and damages, at full replacement cost, sustained or suffered due to the loss of or damage to the Equipment as a result of collision, fire, lightning, theft, flood, windstorm, explosion or any other casualty, naming GECMS as a loss payee.

Vrastinas’ insurance policy was with Continental. Doolin subsequently filed suit naming only GE as a defendant alleging that GE “negligently and carelessly failed to properly anchor and tie the trailer down so that it was safe for its intended use as a construction office.”

GE then filed a third-party petition against Vratsinas and Continental alleging their obligation under the lease and the insurance policy to defend and indemnify GE against Doolin’s claims. In its petition, GE sought a declaratory judgment that Continental and Vratsinas are liable for all of Doolin’s claims against GE. On June 20, 2003, Continental moved for summary judgment seeking a declaration that it had no duty to defend or indemnify GE against the claims of Doolin. On February 19, 2004, GE filed a cross-motion for partial summary judgment seeking a declaratory judgment in its favor on the issue of Continental’s duty to defend and indemnify GE against Doolin’s claims. The trial court granted Continental’s motion for summary judgment and denied GE’s cross-motion. The trial court’s judgment declared that Continental had no duty to defend or indemnify GE in Doolin’s suit against it, and GE’s third party petition filed against Continental was dismissed with prejudice. GE appeals from the summary judgment in favor of Continental and from the denial of its cross-motion for summary judgment.

Issues on Appeal

In four issues, GE (1) argues generally that the trial court erred by granting summary judgment for Continental; (2) argues generally that the trial court erred by denying GE’s cross-motion for partial summary judgment; (3) contends that the trial court improperly construed the factual allegations in Doolin’s petition against GE, rather than in favor of GE; and (4) contends that the trial court ignored other allegations in Doolin’s petition that would allow proof at trial that Doolin’s injuries were not caused by GE’s sole negligence.

Continental presented multiple grounds in its motion for summary judgment urging that it owed no obligation of defense or indemnity under Vratsinas’ general liability policy. Continental also argued that the bad faith claim under article 21.21 of the insurance code should be dismissed because there was no claim that was covered under the insurance policy and therefore there can be no bad faith on the part of Continental. The judgment in favor of Continental does not specify the grounds upon which it was granted. Therefore, if the summary judgment can be upheld on any ground presented in the motion, we must affirm. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995).

STANDARD OF REVIEW

To be entitled to summary judgment, Continental was required to show, as a matter of law, that there is no genuine issues of material fact as to one or more of the essential elements of the plaintiffs cause of action. Tex.R. Civ. P. 166(a)(i); Union Pump Co. v. Allbritton, 898 S.W.2d 773, 774 (Tex.1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). In reviewing the summary judgment record, we must consider the evidence in the light most favorable to the non-movant and resolve any doubt in the non-movant’s favor. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 476-77 (Tex.1995). Because the question of an insurance carrier’s contractual duty to defend is , one of law, we must conduct a de novo review. State Farm Gen. Ins. Co. v. White, 955 S.W.2d 474, 475 (Tex.App.-Austin 1997, no writ).

Duty To Defend

Applicable Law

An insurer’s duty to defend its insured is determined according to the “eight corners” rule, which requires that we compare the allegations in the petition filed against the insured and the insurance policy. King v. Dallas Fire Ins. Co., 85 S.W.3d 185, 187 (Tex.2002). .The plaintiffs petition must allege facts within the scope of coverage; otherwise, the insurer will not be legally bound to provide a defense for the insured. Id. When the allegations are reviewed to determine whether a liability insurer has a duty to defend its insured, a liberal interpretation in favor of the insured should be given. Nat’l Union Fire Ins. Co. v. Merchs. Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.1997). The insurer owes a duty to defend if the plaintiff’s pleadings “potentially” state a claim within coverage. Utica Nat’l Ins. Co. of Texas v. Am. Indem. Co., 141 S.W.3d 198, 201 (Tex.2004); Nat’l Union Fire Ins. Co., 939 S.W.2d at 141 (citing Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 26 (Tex.1965)). Nevertheless, it is not every doubt that requires resolution of the duty to defend in favor of the insured; the plaintiffs pleadings must create “that degree of doubt which compels resolution of the issue for the insured.” Nat’l Union Fire Ins. Co., at 142.

In reviewing the plaintiffs pleadings in light of the policy provisions, we must focus on the facts alleged, not on the legal theories. Id. at 141; Saint Paul Surplus Lines Ins. Co. v. Geo Pipe Co., 25 S.W.3d 900, 903 (Tex.App.-Houston [1st Dist.] 2000, no pet.) (op. on reh’g); State Farm Gen. Ins. Co., 955 S.W.2d at 475-76. “It is not the cause of action alleged that determines coverage, but the facts giving rise to the alleged actionable conduct.” Nat’l Union Fire Ins. Co., 939 S.W.2d at 141. If the plaintiff’s petition does not allege facts within the scope of the policy’s coverage, an insurer is not legally required to provide a defense. Trinity Univ. Ins. Co. v. Cowan, 945 S.W.2d 819, 821 (Tex.1997); Nat’l Union Fire Ins. Co., 939 S.W.2d at 141; Fid. & Guar. Ins. Underwriters, Inc. v. McManus, 633 S.W.2d 787, 788 (Tex.1982).

Whether an insurer of a liability policy is obligated to defend the insured is a question of law to be decided by the court. State Farm Lloyds v. Kessler, 932 S.W.2d 732, 736 (Tex.App.-Fort Worth 1996, writ denied). Thus, the duty to defend is not affected by facts ascertained before suit or developed during the process of litigation, or by the ultimate outcome of the suit. Argonaut S.W. Ins. Co. v. Maupin, 500 S.W.2d 633, 636 (Tex.1973); Heyden Newport Chem. Corp., 387 S.W.2d at 24; Fielder Rd. Baptist Church v. Guideone Elite Ins. Co., 139 S.W.3d 384, 388 (Tex.App.-Fort Worth 2004, pet. filed).

Vratsinas’ Policy

Continental issued general liability policy LI 63623610 to GE’s lessee, Vratsinas. The insurance policy also included an endorsement that stated the following:

A. Who Is An Insured (Section II) is amended to include as an insured any person or organization from whom you lease equipment when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy. Such person or organization is an insured only with respect to their liability arising out of the maintenance, operation or use by you of equipment leased to you by such person or organization. A person’s or organizations’s status as an insured under this endorsement ends when their contract or agreement with you for such leased equipment ends.
B. With respect to the insurance afforded these additional insureds, the following additional exclusions apply;
This insurance does not apply:
1. To any “occurrence” which takes place after the equipment lease expires;
2. To “bodily injury” or “property damage” arising out of the sole negligence of such person or organization.

Doolin’s Petition

In his petition, Doolin alleges as follows about GE’s conduct:

5. The Plaintiff is an employee of Vrat-sinas Construction Company (“Vrat-sinas”) and at all times relevant to this case was a construction superintendent on a project known as Las Collinas Village at Highway 114 and MacArthur in Irving, Texas. Under the terms and conditions of a lease agreement with Vratsinas, the Defendant [GE] furnished and set up a 12 X 54' construction trailer for the employees of Vratsinas to use as office space during the construction process.. The Plaintiffs office was in the trailer leased from the Defendant [GE]. A copy of the Lease Agreement is attached hereto as Exhibit 1.
6. On or about March 10, 2000, the Plaintiff was working in the office trailer when straight line winds blew the trailer over, causing it to roll several times, resulting in serious injuries to the Plaintiff. The Plaintiff suffered a broken shoulder, collar bone, ribs, spine, and various cuts and abrasions. The Plaintiffs injuries required hospitalization, surgery, and a lengthy rehabilitation.
7. The Defendant [GE] negligently and carelessly failed to properly anchor and tie the trailer down so that it was safe for its intended use as a construction office. The Plaintiffs injuries and monetary losses were directly and proximately caused by the negligence of the Defendant [GE],

Application of Law to Facts

In its motion for summary judgment, Continental contends that GE is not an additional insured under Vratsinas’ insurance policy and alternatively that the exclusionary provision in the insurance policy negates Continental’s duty to defend and indemnify GE. However, in Continental’s brief, it states that “[t]he only real issue on appeal is the applicability of the ‘Sole Negligence’ exclusion.”

In Texas, the term “additional insured” carries a clear technical meaning. W. Indem. Ins. Co. v. Am. Physicians Ins. Exch., 950 S.W.2d 185, 188 (Tex.App.-Austin 1997, no writ). An additional insured is a party protected under a policy without being named in the policy. Id. at 188-89. A party typically becomes an additional insured pursuant to an agreement obligating the named insured to add the additional insured to the named insured’s preexisting insurance policy. Id. at 189. Furthermore, an insurance policy is a contract between the insurer and insured. Doss v. Roberts, 487 S.W.2d 839, 841 (Tex.Civ.App.-Texarkana 1972, writ ref'd n.r.e.). The named insured, as a party to the contract, may sue on it; however, a stranger to the contract may not sue. Id. Often, questions arise over who else may, and may not, sue on the contract. Id. Texas courts have consistently allowed an additional insured to seek coverage under such insurance policies. See Highland Park Shopping Vill. v. Trinity Universal Ins. Co., 86 S.W.3d 916, 918 (Tex.App.Dallas 2001, no pet.); McCarthy Bros. v. Cont'l Lloyds Ins. Co., 7 S.W.3d 725, 731 (Tex.App.-Austin 1999, no pet.); Admiral Ins. Co. v. Trident NGL, Inc., 988 S.W.2d 451, 452 (Tex.App.-Houston [1st Dist.] 1999, pet. denied).

Here, the lease agreement between Vratsinas and GE was in writing and provided that Vratsinas would “procure and keep in full force and effect. . .the following policies of insurance ... naming GECMS as an additional insured.” The insurance policy provided, by way of the endorsement, that in addition to insuring Vratsinas, it also insured “any... organization from whom you lease equipment when you and such... organization have agreed in writing ... that such.. .organization be added as an additional insured on your policy.” GE leased the construction trailer involved in this lawsuit to Vratsinas. Therefore, we must conclude that Continental intended to give additional insured status to any person or organization, such as GE, that Vratsinas leased equipment from in a contractual agreement. Accordingly, we hold that GE was an additional insured under the Vrat-sinas/Continental policy.

Consequently, we must resolve whether the exclusionary provision of the endorsement applies as to the duty to defend. Continental’s position is that the policy excluded coverage for GE’s sole negligence. Accordingly, we look within the “eight corners” of Doolin’s petition and the insurance policy issued to Vratsinas by Continental. The plain language of the exclusion provides that the additional insured endorsement “does not apply to ‘bodily injury’ ... arising out of the sole negligence of such ... organization.” Doolin’s petition provides that GE “furnished and set up” the trailer and “negligently and carelessly failed to properly anchor and tie the trailer down.... ” Given their most liberal interpretation, as we believe the trial court did, these allegations do not suggest anything other than the conclusion that Doolin’s injuries resulted from GE’s failure to properly secure the trailer. Doolin’s petition did not allege any acts of negligence or omissions from any other persons or organization.

GE argues that coverage was not negated by the exclusion in the policy because 1) Vratsinas had sole responsibility for preparing the site on which the equipment would be used, 2) it was Vratsinas’ responsibility to provide firm and level ground for a safe and unobstructed installation, 3) the site selection for the trailer was the responsibility of Vratsinas, and 4) Vratsi-nas assumed all maintenance duties. GE asserts in its brief that based on Doolin’s petition, the proof at trial would explore the role played in Doolin’s injuries by 1) the act of God, 2) unavoidable accident, 3) Vratsinas’ breach of its duties under the lease agreement, as well as its negligence in causing those injuries, 4) the acts of a third party not under GE’s control, and 5) Doolin himself, in his role as construction site supervisor.

In general, a determination of whether an insurer has a duty to defend does not consider matters outside the policy and pleadings. Capital Bank v. Commonwealth Land Title Ins. Co., 861 S.W.2d 84, 88 (Tex.App.-Houston [1st. Dist.] 1993, no writ). We will not read facts into the pleadings, nor will we “imagine factual scenarios which might trigger coverage.” See Houston Petroleum Co. v. Highlands Ins. Co., 830 S.W.2d 153, 155 (Tex.App.-Houston [1st. Dist.] 1990, writ denied); Nat’l Union Fire Ins. Co., 939 S.W.2d at 142. Because Doolin’s pleadings only allege that GE’s conduct led to his injuries, and because we only look to the pleadings and the insurance policy, we conclude that coverage under the endorsement did not apply because the policy excluded coverage for GE’s sole negligence. Accordingly, we hold the trial court did not err in granting summary judgment in favor of Continental on the issue of Continental’s alleged duty to defend.

Bad Faith Claim

Applicable Law

To establish a breach of the duty of good faith and fair dealing, a two-prong test must be met: Republic Ins., Co. v. Stoker, 903 S.W.2d 338, 340 (Tex.1995). First, there must be an absence of a reasonable basis for denying benefits under the policy. Id. Second, the carrier must have known or should have known that there was not a reasonable basis for denying the claim. Id. The first prong of this test requires an objective determination of whether a reasonable insurer would have denied the claimant’s benefits. Id.

Application of Law to Facts

GE alleges a claim of “bad faith” against Continental. The Texas Supreme Court held that as a general rule there can be no claim, for bad faith when an insurer has promptly denied a claim that is in fact not covered. Republic Ins., Co., 903 S.W.2d at 341. However, the court also stated, “[w]e do not exclude the possibility that in denying the claim, the insurer may commit some act, so extreme, that would cause injury independent of the policy claim.” Id. Here, Continental is not guilty of bad faith because there was no duty to defend GE. Furthermore, a review of the record reveals no act “so extreme, that would cause injury independent of the policy claim.”

Accordingly, we hold the trial court did not err in granting summary judgment in favor of Continental on the issue of bad faith.

Duty To Indemnify

Applicable Law

An insurer’s duty to indemnify is separate and distinct from the insurer’s duty to defend. Farmers Tex. County Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 82 (Tex.1997); Collier v. Allstate County Mut. Ins. Co., 64 S.W.3d 54, 62 (Tex.App.Fort Worth 2001, no pet.). While a party may have a duty to defend and then an ultimate determination that there is no duty to indemnify, without a predicate triggering of the duty to defend, indemnification does not arise. Farmers Tex. County Mut. Ins. Co., 955 S.W.2d at 82-84; Travelers Indem. Co. v. Citgo Petroluem Corp., 166 F.3d 761, 768 (5th Cir.1999). Texas cases have consistently held that where there is no duty to defend under the terms of the policy, there can be no duty to indemnify. State Farm Lloyds v. Borum, 53 S.W.3d 877, 889 (Tex.App.-Dallas 2001, pet. denied); Utica Lloyd’s of Texas v. Sitech Eng’g Corp., 38 S.W.3d 260, 264 (Tex.App.-Texarkana 2001, no pet.); Lay v. Aetna Ins. Co., 599 S.W.2d 684, 687 (Tex.Civ.App.-Austin 1980, writ ref'd n.r.e.); Great Am. Ins. Co. v. Calli Homes Inc., 236 F.Supp.2d 693, 698 (S.D.Tex.2002).

Application of Law to Facts

Therefore, because we hold that there is no duty for Continental to defend GE, likewise there can be no duty to indemnify. Accordingly, we hold that the trial court did not err in granting Continental’s motion for summary judgment on the issue of its duty to indemnify GE.

Appellant’s Remaining Issues on Appeal

Liberal Interpretation

GE contends that the trial court improperly construed the factual allegations in Doolin’s petition against GE, rather than in favor of GE, and ignored other allegations in Doolin’s petition that would allow proof at trial that Doolin’s injuries were not caused by GE’s sole negligence.

Because the facts alleged in Doo-lin’s pleadings do not suggest even a remote causal relationship between any other persons’ or organizations’ actions and his injuries, they do not create that degree of doubt which compels resolution of the issue for the insured. See Heyden Newport Chem. Corp., 387 S.W.2d at 26; Nat’l Union Fire Ins. Co., 939 S.W.2d at 142. Furthermore, the duty to defend is not affected by the facts of the case ascertained before, during, or after the suit. Cullen v. Commonwealth Lloyd’s Ins. Co., 852 S.W.2d 252, 255 (Tex.App.-Dallas 1993, writ denied). Therefore, we hold that the trial court did not err in its review and interpretation of Doolin’s pleadings.

Conclusion

Having overruled Appellant’s four issues on appeal, we affirm the trial court’s judgment.

      . See Tex. Civ. Prac. & Rem.Code Ann. ch. 37 (Vernon. 1997).

        . On February 27, 2004, the trial court issued an order severing all claims of GE against Continental from the claims brought by Doo-lin against GE.

      . During oral arguments Continental appeared to concede that GE qualified as an additional insured but focused on the fact that it owed GE no duty to defend because GE fell within the "sole negligence” exclusion of the insurance policy. Both sides seem to agree that the main issue in this case is whether, when examining Doolin's petition, the exclusionary provision applies.


author: Justice FITZGERALD.

text:
    Jerry and Kelly REYNOLDS, Appellants, v. Carmen Carl GUIDO, Builder & Designer, Inc., Post-Tension Engineering, Inc., and State Farm Mutual Automobile Insurance Company, Appellees.
    No. 05-03-01681-CV.
    Court of Appeals of Texas, Dallas.
    June 3, 2005.
    Rehearing Overruled July 19, 2005.

      James D. Blume, Shelly L. Skeen, Jennifer S. Stoddard, Joshua H. Northam, Kevin Wayne Vance, Blume & Stoddard, Dallas, for Appellant.
    R. Lynn Fielder, Fisk & Fielder, P.C., Dallas, Maria Uldene Moffatt, Richard E.
    Schellhammer, Robert H. Dawson, Goins Underkofler Crawford & Langdon, Stephen B. Smith, Smith & Knott, James Bradley Frahm, Law Offices of Armando De Diego, P.C., Dallas, for Appellee.
    Before Justices FITZGERALD, RICHTER, and LANG-MIERS.
   OPINION

Opinion by

Justice FITZGERALD.

Jerry and Kelly Reynolds appeal a final judgment that includes a series of take-nothing summary judgments in favor of appellees Carmen Carl Guido, Builder & Designer, Inc. (“Guido”), Post-Tension Engineering, Inc. (“Post-Tension”), and State Farm Mutual Automobile Insurance Company (“State Farm Mutual”). For the reasons that follow, we affirm the trial court’s judgment.

BACKGROUND

Appellants purchased and moved into a previously owned home in Garland, Texas in May 1996. They purchased the home from State Farm Mutual, although they mistakenly believed for some time that the seller was a different entity, State Farm Fire & Casualty Company. Appellants received no disclosure from the previous owner or from any other party regarding damage to the home’s foundation.

Appellant Kelly Reynolds testified in her deposition that she first noticed evidence of damage to her home the first week she moved in, although she did not know what she was seeing. She stated that “[i]t took another, at least two or three months, to realize it was structural damage.” Mrs. Reynolds testified that during the first six months of living in the home she and her husband saw tiles crack along a line in the kitchen, cracks zigzag the length of the wall over the staircase, and the sheetrock crack in several places. Within the first year and one half or two years of living in the house, carpet was replaced because of water damage and Mrs. Reynolds saw a two-finger-wide crack in the slab all the way across the living room floor. Likewise within that two-year period, an upstairs balcony separated from the brick of the house. Mrs. Reynolds testified appellants performed cosmetic repairs during this time, but she knew those repairs “were not fixing the structural damage.”

In a letter dated February 26, 1997, Jerry Reynolds described “some fairly severe problems with my home” to its builder, Guido. The letter stressed Mr. Reynolds did not hold Guido responsible for the problems; instead, Mr. Reynolds stated that he or his attorney planned to “go straight to the Contractor’s [sic] involved and deal with this.” The first problem identified in the letter was:

the kitchen floor is completely ruined with cracks, some as wide as 1/8". It appears it began to crack in the grout and has since spread across the entire kitchen floor from one side to the other and as you might imagine, is extremely unsightly.

The letter next addressed problems with the roof, which involved “a major leak” involving the master bath that had been traced to “a problem around the fireplace.” Other issues involved drains pulling off the upper balcony, rain “pouring water down inside [Mr. Reynolds’s] living room,” and wood “swelled away from the wall.” Mr. Reynolds and Guido subsequently spoke by telephone and Guido inspected the home personally.

By letter dated April 3, 1997, Guido responded to Mr. Reynolds’s concerns. In that letter Guido opined that “the problems are not severe and can all be reasonably resolved by any parties.” The letter identified more than a half dozen contractors Guido recommended for repair work and/or who performed the original work on the home. One entity identified in the letter was Post-Tension, a representative of which was going to contact Mr. Reynolds to discuss foundation maintenance and repairs. Indeed, a significant portion of the letter dealt with perceived concerns with the foundation, and Guido encouraged investigation of a number of construction and drainage issues. Guido specifically opined that the kitchen tile problem was evidence of:

differential foundation movement caused by improper foundation maintenance provided by the original owner and subsequent owners (unless documented otherwise) and or improper drainage installed by others.

Guido encouraged Mr. Reynolds to seek out any inspections performed at the time of his purchase of the home to determine whether they documented any concerns with structural or drainage issues.

Sometime during or before July 1997, appellants engaged engineering expert John A. Morris to begin an investigation into the condition of appellants’ home. Morris wrote a report that stated:

The investigation began in July, 1997, with a visual examination, a level survey, plumbing tests, and a review of the original construction documentation. Over the next several months [Moms] met with the original slab designers, and with a hydraulic engineer to propose a repair method. We performed various tests on the slab and recommended a repair method in February, 1998.

Morris’s report stated that in July 1997, when Morris first visually examined the house, he identified a number of “symptoms” causing him to conclude that “post construction foundation movement was responsible for the damage.” Those “symptoms” included the slab’s being two inches out of level, a “serious crack” that ran through the kitchen and breakfast room, sticking doors, “distress” in the sheet rock and brick veneer, and water damage from leaking rain water in the living room. Morris’s report was not reduced to writing until much later.

Mrs. Reynolds testified that while water-damaged carpets were being replaced, she witnessed the above-described crack in the living room slab. Sometime after this discovery, she testified, appellants made a claim with their insurance company, State Farm Lloyds. Beginning on or about January 15, 1999, an inspector retained by State Farm Lloyds conducted tests on sewer and water lines, and on March 15, 1999, the Perdue & Associates report stated the house’s problem is its foundation, not its plumbing. State Farm Lloyds denied appellants’ claim.

On November 15, 1999, appellants’ expert Morris issued his report, blaming an inappropriate slab foundation for the home’s structural problems. The report identified Post-Tension as the designer of the inappropriate foundation. On December 21, 2000, appellants filed this lawsuit, naming Guido, Post-Tension, and State Farm Fire & Casualty Company as defendants. State Farm Mutual was added as a party defendant in April 2002. Ultimately, all four of these parties filed summary judgment motions that were granted by the trial court. Appellants challenge the judgments in favor of Guido, Post-Tension, and State Farm Mutual.

SxjmmaRY Judgment Standards

In a traditional motion, the party moving for summary judgment has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). A defendant-movant must either (1) disprove at least one element of the plaintiffs theory of recovery, or (2) plead and conclusively establish each essential element of an affirmative defense. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979); Zep Mfg. Co. v. Harthcock, 824 S.W.2d 654, 657 (Tex.App.-Dallas 1992, no writ). When a defendant moves for summary judgment on limitations grounds, it must conclusively prove all the elements of that defense. See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). In this case, the plaintiffs pleaded the discovery rule to avoid the bar of limitations. Thus, for summary judgment purposes, the defendants were also required to negate the discovery rule by proving as a matter of law when the plaintiffs discovered or should have discovered their injury. See Gibson v. Ellis, 126 S.W.3d 324, 331 (Tex.App.-Dallas 2004, no pet.).

By contrast, when a party moves for summary judgment under rule 166a(i), asserting that no evidence exists as to one or more elements of a claim on which the nbnmovant would have the burden of proof at trial, the burden is on the nonmovant to present enough evidence to raise a genuine issue of material fact on each of the challenged elements. Tex.R. Civ. P. 166a(i); Gen. Mills Rest, Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex.App.-Dallas 2000, no pet.). If the nonmovant fails to do so, the trial judge must grant the motion. Id.

The Summary Judgment Motions

We review the parties’ motions according to the standards set forth above.

Guido’s and Post-Tension’s Motions

Guido and Post-Tension each filed a summary judgment motion seeking judgment as a matter of law on limitations grounds. The trial court’s final judgment states:

Plaintiffs’ claims for negligence as to Defendants [Guido and Post-Tension] were dismissed as to these Defendants] pursuant to motions for summary judgment filed by Defendants [Guido and Post-Tension]. The court found that the applicable statute of limitations was two years.

Appellants’ first issue charges that the trial court erred in granting summary judgment for Guido and Post-Tension on appellants’ negligence claims because the suit was brought “within two years of its accrual.” Appellants argue that they could not have discovered what was wrong with their home or who was responsible for its defects until November 1999, when their expert issued his report. Guido and Post-Tension argue appellants had notice of their injury long before that time. Accordingly, as to these parties, the issue before this Court is the accrual date of appellants’ claim for negligence.

There is no disagreement on appeal that the relevant statute of limitations for the negligence claims is two years. See Tex. Civ. PRAC. & Rem.Code Ann. § 16.003 (Vernon 2002). Ordinarily, a cause of action accrues when the wrongful act effects an injury, regardless of when the plaintiff learned of such injury. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990). The discovery rule, on which appellants rely, is a narrow exception to this rule: it operates to toll the running of the period of limitations until the time a plaintiff discovers, or through the exercise of diligence should have discovered, the nature of his injury. Id. Once a claimant discovers the injury — or in the exercise of reasonable diligence should have done so — limitations commences. Childs v. Haussecker, 974 S.W.2d 31, 40 (Tex.1998). Limitations is not tolled until the plaintiff discovers the identity of the wrongdoer. Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 344 n. 3 (Tex.1992). Nor is it tolled until the plaintiff discovers all of the elements of a cause of action. See Moreno, 787 S.W.2d at 357 (quoting Coody v. A.H. Robins Co., 696 S.W.2d 154, 156 (Tex.App.-San Antonio 1985, no writ)).

We review Guido’s and Post-Tension’s motions, therefore, to determine whether those defendants established as a matter of law that appellants sued them more than two years after appellants discovered, or with reasonable diligence should have discovered, foundation problems in their home. Mrs. Reynolds’s testimony admits knowledge of structural problems with the house well before the end of November 1996. By that time, she had witnessed kitchen tiles breaking apart along a crack in the floor, cracks zigzagging the length of a wall over the staircase, and sheetrock cracking in a number of places. By February of 1997, Mr. Reynolds was characterizing the cracking, leaking and related problems as “fairly severe” and had engaged an attorney to address the problems, with contractors. In April of that year, appellants received their builder’s written opinion that the problems they were experiencing with the house were due to movement of the foundation. In July, appellants engaged their own engineering expert. By February 1998, that expert had examined the home, performed tests, and recommended a repair method. Then, sometime before May of 1998, appellants learned of the two-finger-wide crack in the slab all the way across the living room floor and made a claim under their homeowners’ insurance policy. The summary judgment evidence establishes that appellants certainly knew or should have known of their injury by this time, at the very latest. See, e.g., Polk Terrace, Inc. v. Curtis, 422 S.W.2d 603, 604-05 (Tex.Civ.App.-Dallas 1967, writ ref'd n.r.e.) (limitations began to run when homeowners discovered cracking in masonry and sheet-rock that would put reasonable person on notice); see also Winn v. Martin Homebuilders, Inc., 153 S.W.3d 553, 558 (Tex.App.-Amarillo 2004, pet. denied); J.M. Krupar Const. Co., Inc. v. Rosenberg, 95 S.W.3d 322, 330-31 (Tex.App.-Houston [1st Dist.] 2002, no pet.). Accordingly, appellants’ negligence claims accrued well before December 21, 1998. The summary judgment evidence establishes that these claims are time-barred.

We decide appellants’ first issue against them.

State Farm Mutual’s Motions

State Farm Mutual filed two summary judgment motions. The first was a no-evidence motion, which specifically addressed appellants’ breach of contract claim. The no-evidence motion alleged there was no evidence that State Farm Mutual made any representations to appellants. Accordingly, according to the no-evidence motion, there could be no breach of contract claim based on a purported representation that the property was without defects at the time of the sale. The second summary judgment motion filed by State Farm Mutual was a traditional motion that sought judgment on the contract claim based on the agreement’s “as-is” provision and the four-year statute of limitations.

Appellants filed their “Plaintiffs’ Combined Response to Defendant State Farm Mutual Automobile Insurance Company’s Motion for Summary Judgment and No-Evidence Motion for Summary Judgment.” In response to the traditional motion, appellants argued there were fact issues (a) regarding the enforceability of the “as is” provision, and (b) regarding the limitations defense, based on application of (i) the discovery rule, and (ii) the relation-back doctrine. In response to the no-evidence motion, appellants argued the motion was premature and that fact issues existed regarding both the breach of contract and negligence claims.

The trial court specifically granted both summary judgment motions filed by State Farm Mutual. However, appellants’ second issue in this Court charges only that the trial court erroneously granted summary judgment for State Farm Mutual “based on misidentification of Appel-lee and ‘as is’ contract language.” It does not address the no-evidence motion in any fashion. “When the trial court’s judgment rests upon more than one independent ground or defense, the aggrieved party must assign error to each ground, or the judgment will be affirmed on the ground to which no complaint is made.” Morris v. JTM Materials, Inc., 78 S.W.3d 28, 54 (Tex.App.-Fort Worth 2002, no pet.) (citing Scott v. Galusha, 890 S.W.2d 945, 948 (Tex.App.-Fort Worth 1994, writ denied)). The trial court specifically granted both of State Farm Mutual’s summary judgment motions, but appellants assigned no error to the no-evidence motion. Thus, we need not address appellants’ second issue. We affirm the trial court’s judgment in favor of State Farm Mutual on the no-evidence ground. See id.

Conclusion

We have resolved both of appellants’ issues against them. Accordingly, we affirm the judgment of the trial court.

      . Because this appeal involves a number of summary judgments, our recitation of the facts includes undisputed facts and the appellants’ version of any disputed facts.

      . No such inspections or reports are included in the summary judgment record.

      . The petition incorrectly alleged claims against the State Farm entity as seller and as insurer. Eventually, the entity was granted summary judgment in its favor on all claims appellants urged against it. That summary judgment has not been appealed. Over time, appellants redirected the claims against State Farm Mutual (as seller) and State Farm Lloyds (as insurer). State Farm Lloyds was later non-suited.

      . The no-evidence motion also addressed appellants' negligence claim against State Farm Mutual for negligently maintaining the foundation before the house was sold to appellants. Appellants have abandoned that claim on appeal, so we do not address that portion of the motion here.

      . The trial court's "Modified Final Judgment” contains two hand-written corrections by the trial court. Paragraph 5 of the judgment refers to State Farm Mutual. In that paragraph, the typed statement "The court granted this summary judgment based on statute of limitations.” is crossed out, and replaced by the handwritten statement: "Both motions were granted.”


author: WANDA McKEE FOWLER, Justice.

text:
    In re GLOBAL CONSTRUCTION COMPANY, L.L.C., Relator.
    No. 14-04-01082-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 9, 2005.

      David D. Peden, Cynthia Ann Holub, Houston, for relator.
    Kathleen C. Pickett, Houston, for respondent.
    Panel consists of Justices FOWLER, FROST and SEYMORE.
   OPINION ON REHEARING

WANDA McKEE FOWLER, Justice.

In ruling on this petition for writ of mandamus filed by Global Construction Company, we must decide, if the underlying dispute, in which the real party in interest claims that arbitration is time-barred, is an issue of procedural arbitrability and thus for the arbitrator, or is an issue of substantive arbitrability for the court. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83-85, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002); see also Tex. Gov’t Code § 22.221; Tex.R.App. P. 52.1. Because the disputed issue — whether Global waived its right, or failed to meet a condition precedent to compel arbitration — is a procedural issue the arbitrator must decide, we conditionally grant the petition.

Background

On February 21, 2002, C. Springs 300, Ltd. (“C. Springs”) entered into a contract with Global for the construction of an apartment complex in Colorado Springs, Colorado. The parties entered into three contracts: a Housing and Urban Development (“HUD”) contract containing the project’s specifications and cost-plus provision; a repurchase agreement, entered into for the purpose of compliance with HUD regulations; and a side agreement, which provided for Global’s profit. The HUD contract provides for submission of disputes to the architect for determination. The contract further provides that “[a]ny claims arising out of or related to the Contract” are subject to arbitration. The architect is required to notify the parties of his decision on the dispute in a letter containing a notice that his decision has been made and that any demand for arbitration must be made within thirty days of the decision or the decision will become final and binding on all parties.

On September 23, 2002, Global submitted a final payment application to C. Springs requesting $225,344.16 as payment for extra work done under the contract. C. Springs refused to pay for the extra work because it claimed Global was not entitled to payment under the contract. Global refused to sign final payment documents until C. Springs paid for the extra work. After negotiation, the parties determined that C. Springs would pay Global $90,000 for the extra work in exchange for Global’s execution of the final payment documents.

C. Springs further requested Global to perform what it classified as warranty work and Global contended was work outside the scope of the contract. This work related to drainage, the swimming pool heater, landscaping, and fire alarm closet heaters. C. Springs submitted those issues to the architect for determination. On January 6, 2004, the architect issued a decision in which he found Global did not have any “valid or outstanding unpaid claims” against C. Springs for additional costs under the contract. He properly notified both parties that his decision was final and that if they did not seek arbitration within thirty days, his decision would be final and binding. On February 26, 2004, C. Springs filed the underlying suit for a declaratory judgment in which it requested a judgment stating that the architect’s decision is binding and requested a refund of the $90,000 paid to Global for the extra work. On May 27, 2004, Global filed a motion to compel arbitration. The trial court denied the motion to compel with regard to the claim for defective work and/or warranty work that had been decided by the architect. The court expressly found that Global waived its right to arbitrate those claims that had been submitted to the architect by failing to demand arbitration within thirty days. Global seeks relief from that order by petition for writ of mandamus.

The ContRact Provisions

The HUD contract contains the following provisions:

4.6.1 Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived as provided for in Subparagraphs 4.3.10, 9.10.4 and 9.10.5, shall, after decision by the Architect or 30 days after submission of the Claim to the Architect, be subject to arbitration. Prior to arbitration, the parties shall endeavor to resolve disputes by mediation in accordance with the provisions of Paragraph 4.5.
4.6.2 Claims not resolved by mediation shall be decided by arbitration which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect. The demand for arbitration shall be filed in writing with the other party to the Contract and with the American Arbitration Association, and a copy shall be filed with the Architect.
4.6.3 A demand for arbitration shall be made within the time limits specified in Subparagraphs 4.4.6 and 4.6.1 as applicable, and in other cases within a reasonable time after the Claim has arisen, and in no event shall it be made after the date when institution of legal or equitable proceedings based on such Claim would be barred by the applicable statute of limitations as determined pursuant to Paragraph 13.7.
4.4.6 When a written decision of the Architect states that (1) the decision is final but subject to mediation and arbitration and (2) a demand for arbitration of a Claim covered by such decision must be made within 30 days after the date on which the party making the demand receives the final written decision, then failure to demand arbitration within said 30 days’ period shall result in the Architect’s decision becoming final and binding upon the Owner and Contractor. If the Architect renders a decision after arbitration proceedings have been initiated, such decision may be entered as evidence, but shall not supersede arbitration proceedings unless the decision is acceptable to all parties concerned.

The Parties’ Burdens

A party seeking to compel arbitration has the initial burden to establish the arbitration agreement’s existence and to show that the claims asserted fall within the scope of the arbitration agreement. Valero Energy Corp. v. Teco Pipeline Co., 2 S.W.3d 576, 581 (Tex.App.-Houston [14th Dist.] 1999, no pet.). If the party seeking arbitration carries its initial burden, the burden then shifts to the party resisting arbitration to present evidence on its defenses to the arbitration agreement. In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex.1999). Here, the parties agree there is an agreement to arbitrate and agree that C. Springs’s claims fall within the scope of the agreement. C. Springs claims, however, that Global waited too long after the architect’s decision to initiate arbitration and by delaying, waived its right to arbitration. Both parties agree that the Federal Arbitration Act (“FAA”) governs the dispute.

Issue foR Arbitrator

This case requires us to choose the appropriate adjudicator of this dispute: the judge or the arbitrator. For a variety of reasons, Global contends the arbitrator is the proper adjudicator. C. Springs claims the trial judge must decide the issue because this case involves a condition precedent, which it claims is a substantive issue.

The issue is resolved by the United States Supreme Court case, How-sam v. Dean Witter Reynolds, Inc. There, the Court noted that compliance with conditions precedent or prerequisites to the obligation to arbitrate, such as notice, time limits, laches, and estoppel, are questions for the arbitrator, not questions for the trial court. Howsam, 537 U.S. at 84, 123 S.Ct. 588 (quoting Revised Unif. Arbitration Act § 6(c) and cmt. 2, 7 U.L.A. 12-13 (Supp.2002)). The Supreme Court has held that questions of arbitrability fall into one of two categories: issues involving procedural impediments to arbitration or those involving substantive impediments to arbitration. Id. at 83-85, 123 S.Ct. 588. Issues of notice, time limits, laches, and estoppel — generally any issue requiring the adjudicator to decide if a party has satisfied the prerequisites to compelling arbitration — involve procedural arbitrability. See id. at 84-85, 123 S.Ct. 588. Procedural arbitrability is the province of the arbitrator. Id. Substantive arbitrability, on the other hand, requires the adjudicator to determine whether parties have agreed to arbitrate a given dispute. See id. at 84, 123 S.Ct. 588 (collecting cases). Substantive arbitrability is the province of the trial judge. Id.

C. Springs argues that Howsam is not controlling, but we disagree. In Howsam, the Court was confronted with a contract requiring that a demand for arbitration must be made within six years of the date of the occurrence. Id at 81, 128 S.Ct. 588. The Court held that this limitation was an issue of procedural arbitrability for the arbitrator, rather than a question of substantive arbitrability for the court. Id. at 85, 123 S.Ct. 588. The Court’s language was broad, indicating that all issues of this sort are procedural in nature. Id. Thus, whether the issue is described as being a failure to meet a condition precedent or is described as waiver or laches, each one presents an issue of procedural arbitrability. For this reason, C. Springs’s claim that the failure to meet a condition precedent presents a substantive issue, while mere waiver presents a procedural issue, is incorrect.

In short, once the trial court determined that (1) the parties agreed to arbitrate, (2) the agreement was valid, and (3) the claims asserted fell within the scope of the agreement, it had no discretion but to compel arbitration of the dispute, leaving the parties to present the matter of the delay in requesting arbitration to the arbitrator. See id.

Conclusion

Mandamus will issue only to correct a clear abuse of discretion when the abuse cannot be remedied by appeal. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). The trial court abused its discretion because it misapplied the FAA to the facts of this case. A party who is erroneously denied the right to arbitration has no adequate remedy at law because the fundamental purpose of arbitration — to provide a rapid, less expensive alternative to traditional litigation — would be defeated. Jack B. Anglin. Co., Inc. v. Tipps, 842 S.W.2d 266, 271 (Tex.1992).

Because any contractual time limit on a request for arbitration is a matter for the arbitrator, we conditionally grant the petition for writ of mandamus. The trial court is directed to order C. Springs’s claims against Global to arbitration. The clerk is instructed to issue writ of mandamus only if the trial court does not follow our direction.

      . C. Springs was required to submit the dispute to the architect within twenty-one days from its occurrence, but presented this issue well beyond the deadline.

      . See also Am. Med. Techs., Inc. v. Miller, 149 S.W.3d 265, 274 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (holding that, when a party denies a valid agreement to arbitrate ever existed, a court should decide the issue).