author: Opinion by SARAH B. DUNCAN, Justice.

text:
    The STATE of Texas, Appellant, v. Victor FRANCO, Appellee.
    Nos. 04-04-00071-CR, 04-04-00072-CR.
    Court of Appeals of Texas, San Antonio.
    Sept. 14, 2005.
    Rehearing Overruled Oct. 18, 2005.

      Kevin P. Yeary, Asst. Crim. Dist. Atty., San Antonio, for appellant.
    Jaime E. Cavazos, The Law Office of Jaime Cavazos, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice.
   OPINION

Opinion by SARAH B. DUNCAN, Justice.

The State of Texas appeals the trial court’s orders suppressing Victor Franco’s blood alcohol test results and related testimony. We affirm.

Factual and PROcedural Background

On Friday, January 3, 2003, at approximately 7:58 p.m., Officer Pete Knutson of the San Antonio Police Department arrived at the scene of an accident. The accident occurred at approximately 7:50 p.m., when Franco ran a stop sign, causing his pickup to collide with another vehicle. Both the driver of the other vehicle, Jovita Reyes, and her passenger and son, Joseph, were killed. When Knutson confronted Franco, he smelled an odor of an alcoholic beverage and asked Franco if he had been drinking. Franco responded that he left work, consumed one Bud Light beer, and was on his way to his girlfriend’s house. Franco explained that he did not see the stop sign. After Franco’s performance on standardized field sobriety tests showed signs that he was impaired, and a portable breath test, conducted about an hour after the accident, indicated his blood alcohol level was .09, he was arrested for driving while intoxicated and read his rights. Franco refused a request for a blood sample and was then taken to a hospital for treatment of his injuries and a mandatory blood withdrawal. The first blood sample, withdrawn at 10:05 p.m., yielded a blood alcohol level of .07. A second blood sample, withdrawn at 11:55 p.m., yielded a blood alcohol level of .02. Franco’s medical records at the hospital establish that he sustained only minor injuries in the accident. At the time of the accident, Franco was twenty years old, 5'6" tall, with a weight of 130 pounds and no known drug allergies; at the hospital, he appeared “alert and oriented,” with “warm and dry” skin.

Alleging both the per se intoxication and impairment theories of intoxication, the State charged Franco with the manslaughter and intoxication manslaughter of Jovita and Joseph Reyes. Before trial in each case, Franco moved to suppress the blood test results and related testimony. At the ensuing suppression hearing, the State called the chief toxicologist for the Bexar County Medical Examiner’s Office, Dr. Gary Kunsman.

Kunsman holds a bachelor of science degree from Virginia Tech in chemistry and a doctorate from Louisiana State University Medical Center in pharmacology and forensic toxicology. While obtaining his doctorate, and thereafter as a postdoctoral fellow at LSU, Kunsman researched how alcohol alone or in combination with a commonly-used sleeping pill affect human performance and specifically driving. Kunsman’s postdoctoral work also involved developing a device to measure “upper body sway” — which he explained as “the lower part of your body basically staying in one place but the upper part of your body is sort of moving around” — and correlating upper body sway to the amount of alcohol a subject consumed. He found that “most people swayed more as their blood-alcohol level would rise.” Kunsman also performed a study in which he determined there is a very close correlation between the results of blood alcohol tests and portable breath tests.

After concluding his fellowship, Kuns-man went to work for the State of Oklahoma at its Chief Medical Examiner’s Office as the assistant to the chief forensic toxicologist. He then went to the Armed Forces Institute of Pathology, where he worked approximately five years in the forensic toxicology division as part of the Office of the Armed Forces Medical Examiner, a laboratory of which he ultimately became the co-director. Among the responsibilities of that office is to act as the scientific advisor of the breath testing programs of the United States Park Police and the United States Capitol Police and to act as a consultant to the Washington, D.C. Metropolitan Police.

Kunsman left his position in D.C. to become the Bexar County Medical Examiner’s chief toxicologist. In this role, Kunsman is responsible for the day-to-day operations of, and supervision of all of the analytical procedures performed by, a full service forensic toxicology laboratory serving law enforcement in Bexar, Kerr, Kendall, and occasionally Webb Counties. When testing for blood alcohol concentration, Kunsman’s office performs two tests. The first procedure is a gas chromatographic technique, which is considered the “gold standard.” The second is a “confirmation test,” which uses an enzymatic method in which a blood sample is subjected to an ultraviolet light to measure the blood alcohol concentration. During his career, Kunsman has authored around twenty-five peer-reviewed articles, as well as three book chapters; but none of these deal with retrograde extrapolation. He has also been an instructor for police officers in drug recognizance expert training and is currently a clinical instructor in the master’s toxicology program at the University of Texas Health Science Center.

The greatest percentage of cases in which Kunsman has been called to testify have involved alcohol and retrograde extrapolations. Kunsman thus explained in great detail the process by which alcohol is absorbed by and later eliminated from the human body, the generally accepted elimination rate for social drinkers (between .015 and .02 grams per deciliter per hour), and specifically how retrograde extrapolation could determine from a single measurement of blood alcohol what the blood alcohol level was at an earlier time with scientific reliability if certain assumptions were made and variables known. The most important variables are whether the person is in generally good health, was in a social drinking situation before being stopped, drinks no more alcohol between the time of the stop and the time the blood sample is taken, and is in the post-absorptive phase by the time of the stop or accident. Kunsman testified that multiple tests with decreasing alcohol concentrations provide a stronger foundation to con-elude that a subject is in the post-absorptive phase and to perform a retrograde extrapolation.

Kunsman was asked whether he could estimate the blood alcohol concentration of a person at the time of an accident that occurred at approximately 7:50 p.m. if he assumed the person was a twenty-year-old male weighing 130 pounds and in good health, so that all his bodily functions were performing well; who was drinking before the accident in a social situation, consumed no alcohol after the accident and before his blood samples were withdrawn; showed some clues of impairment, including upper body sway, during standardized field sobriety testing shortly after the accident; and results of a portable breath test approximately one hour after the accident and results from blood samples drawn approximately two and four hours after an accident were .09, .07, and .02, respectively. Kunsman testified that he could, using a conservative approach, and assuming the person was in the post-absorptive phase when the accident occurred, determine that the hypothetical person’s blood alcohol concentration at 7:50 p.m., when the accident occurred, was at least above .08 and “probably somewhere around a little over a .1,” even “possibly a .15 or a little higher.”

On cross-examination, Kunsman admitted that his calculations involved assumptions derived from population statistics. However, when asked if he needed to know factors such as when Franco last consumed alcohol, how rapidly he was drinking, what kind of alcohol he was drinking, his mental state, how much and what kind of food he had eaten, Kunsman testified this information “would be helpful” but “are actually factors that are important in absorption of alcohol” and determining when absorption began “has no bearing on the question of elimination.” Kunsman admitted, however, that “[djeter-mining the absorption phase is one of the critical elements in ... being able to apply the retrograde methodology and extrapolation to be able to come up with a B.A.C. at a time past.” As Kunsman explained, these factors would not affect his assumption that the person was in the post-absorptive phase at the time of the accident except in two situations: if the person had consumed alcohol after the accident and if “the person had consumed ... a fairly substantial number of drinks immediately before getting into the car and having this incident....” Kunsman also admitted that he had no information regarding Franco’s food or alcohol intake before the accident or whether in fact his bodily functions were in fact working well — all of which would affect when Franco achieved his peak blood alcohol level. Kunsman admitted that if a hypothetical individual consumed a meal and alcohol with that meal, the presence of food in his stomach would affect the absorptive phase to the point that peak blood-alcohol level could be reached some time much later than when the incident occurred. It is for this reason that one of the assumptions necessary to a retrograde extrapolation is that the individual be in the post-absorptive phase at the time of the stop or accident. Kunsman had not been provided with any facts that would justify assuming that Franco was in the post-absorptive phase at the time of the accident. Finally, the following exchange occurred between Franco’s trial counsel, Jaime Cavazos, and Kunsman:

Q: So [the authors of an article in the British Journal of Clinical Pharmacology] are in agreement with you that in order to be able to accurately point to a B.A.C. level of a particular individual you would have to have more information than you have in the Franco case, would you agree with me, sir?
A: Yes, you need specific information about that individual.

On redirect, Kunsman testified that the fact that three tests were performed, “although it doesn’t — it doesn’t necessarily prove that we are in that post-absorptive phase,” “it adds weight and support to that conclusion and makes it a more reasonable conclusion.” On re-cross examination, however, Kunsman admitted he could not testify to the reliability of the particular portable breath test machine that was used to test Franco’s alcohol level the night of the accident. During the attorneys’ arguments, the trial judge stated that he would not consider the result of the portable breath test because he did not know the type of instrument that was used or its reliability; he would consider only the blood tests. Later, however, the judge stated as follows:

If you used the breath test, the hand-held breath test and assume its reliability at .09 an hour after the accident, there is still zero evidence to support the assumption that he was in the post-absorption phase. Because 90 to 95 percent of the people involved in an accident are in the post-absorption phase does not warrant the conclusion that this individual on this occasion was.
B, he clearly does not fit the pattern of the average person. If you use the earlier reading he was dissipating or eliminating alcohol at .02 for the first two hours or first hour and at .025 for the next two hours, which takes him completely out of the realm of the average human being.
The expert said it better than I can. He doesn’t have enough information to talk about this individual. He can talk about people, generally, and that ain’t good enough.

The judge then granted the motion to suppress the blood test results and related testimony, finding that Kunsman’s retrograde extrapolation testimony is unreliable and that the probative value of the evidence is outweighed by its prejudicial effect. The State has appealed.

Retrograde Extrapolation

Standard of Review

We review the trial court’s ruling on a motion to suppress scientific evidence for an abuse of discretion. See Mata v. State, 46 S.W.3d 902, 908 (Tex.Crim.App.2001).

Discussion

The Texas Court of Criminal Appeals has instructed us to review the admissibility of retrograde extrapolation testimony using the following analytical framework:

We believe that the science of retrograde extrapolation can be reliable in a given case. The expert’s ability to apply the science and explain it with clarity to the court is a paramount consideration. In addition, the expert must demonstrate some understanding of the difficulties associated with a retrograde extrapolation. He must demonstrate an awareness of the subtleties of the science and the risks inherent in any extrapolation. Finally, he must be able to clearly and consistently apply the science.
The court evaluating the reliability of a retrograde extrapolation should also consider (a) the length of time between the offense and the test(s) administered; (b) the number of tests given and the length of time between each test; . and (c) whether, and if so, to what extent, any individual characteristics of the defendant were known to the expert in providing his extrapolation. These characteristics and behaviors might in-elude, but are not limited to, the person’s weight and gender, the person’s typical drinking pattern and tolerance for alcohol, how much the person had to drink on the day or night in question, what the person drank, the duration of the drinking spree, the time of the last drink, and how much and what the person had to eat either before, during, or after the drinking.
Obviously, not every single personal fact about the defendant must be known to the expert in order to produce an extrapolation with the appropriate level of reliability. As the Kentucky Supreme Court has recognized, if this were the case, no valid extrapolation could ever occur without the defendant’s cooperation, since a number of facts known'only to the defendant are essential to the process. If the State had more than one test, each test a reasonable length of time apart, and the first test were conducted within a reasonable time from the time of the offense, then an expert could potentially create a reliable estimate of the defendant’s BAC with limited knowledge of personal characteristics and behaviors. In contrast, a single test conducted some time after the offense could result in a reliable extrapolation only if the expert had knowledge of many personal characteristics and behaviors of the defendant. Somewhere in the middle might fall a case in which there was a single test a reasonable length of time from the driving, and two or three personal characteristics of the defendant were known to the expert. We cannot and should not determine today the exact blueprint for reliability in every case. Suffice it to say that the factors must be balanced.

Mata v. State, 46 S.W.3d 902, 916-17 (Tex.Crim.App.2001).

Kunsman demonstrated that he possessed the “ability to apply the science” of retrograde extrapolation; he “explain[ed] it with clarity,” “demonstrating] some understanding of the difficulties associated with a retrograde extrapolation” and “an awareness of the subtleties of the science and the risks inherent in any extrapolation”; and “he ... clearly and consistently applied] the science.” Id. Indeed, it is Kunsman’s demonstrated knowledge and understanding of the science underlying retrograde extrapolations that convince us the trial court did not abuse its discretion in excluding his testimony. As Kunsman admitted, to accurately testify regarding Franco’s blood alcohol concentration at the time of the accident, he would need more “specific information about” Franco. We therefore hold the trial court did not abuse its discretion in suppressing Kunsman’s retrograde extrapolation testimony as unreliable.

Blood Test Results

In its second point of error, the State argues the trial court erred in suppressing the results of the blood tests pursuant to Rule 408 of the Texas Rules of Evidence.

Standard of Review

We review the trial court’s eviden-tiary ruling under Rule 403 for abuse of discretion. State v. Mechler, 153 S.W.3d 435, 439 (Tex.Crim.App.2005). We “should not reverse a trial judge whose ruling was within the zone of reasonable disagreement.” Id. at 440.

Discussion

Review of the trial court’s Rule 403 determination requires us to balance four nonexclusive factors: “(1) the probative value of the evidence; (2) the potential to impress the jury in some irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent’s need for the evidence.” Id. The first factor requires us to look at “how compellingly the evidence serves to make a fact of consequence more or less probable.” Id. This is arguably “[t]he single most important factor.” Id. at 449 (Cochran, J., concurring, joined by Meyers, Price, and Johnson, J.J.). Franco’s blood test results are evidence that he had consumed alcohol, and the Texas Court of Criminal Appeals has held that test results showing consumption of alcohol “tend to make it more probable that [the defendant] was intoxicated at the time of driving under both the per se and impairment definitions of intoxication.” Mechler, 153 S.W.3d at 440, However, “the relative probative value of the [results] depends primarily upon ... the degree to which the test result exceeds the legal limit ... and ... the amount of time elapsed between driving and the taking of the test.” Id. at 449 (Cochran, J., concurring, joined by Meyers, Price, and Johnson, J.J.). The probative value of the results of Franco’s blood tests is significantly diminished by the two and four hour delay in obtaining the samples and by the fact that both results are below the legal limit. ‘When a test is obtained long after the arrest and the result is at or below the legal limit, the logical inference that the person had a 0.08% BAC at the time of driving may be so tenuous that a trial judge appropriately exercises his discretion by excluding that specific test result under Rule 403 absent expert testimony that extrapolates the test result back to the time of driving.” Id. This factor thus weighs heavily in Franco’s favor.

The second factor asks whether the evidence has the potential to impress the jury in an irrational way. The focus is on whether the evidence is “unfairly prejudicial”; that is, whether it has a “tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged.” Mechler, 153 S.W.3d at 440. Although we can fathom no reason for the State to introduce test results showing blood alcohol concentration below the legal limit other than to invite the jury “to conduct its own crude retrograde extrapolation,” the Texas Court of Criminal Appeals has rejected this argument. See Stewart v. State, 129 S.W.3d 93, 97 (Tex.Crim.App.2004). The results showing Franco consumed alcohol “relate[ ] directly to the charged offense,” Mechler, 153 S.W.3d at 440-41, and will not necessarily encourage a jury to engage in its own retrograde extrapolation because the jury will not need to establish Franco’s exact blood alcohol concentration at the time he drove. See Stewart, 129 S.W.3d at 97. The evidence is thus not unfairly prejudicial; and this factor weighs in favor of admissibility.

The third factor “looks to the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense.” Mechler, 153 S.W.3d at 441. Because the time needed to introduce the blood test results is relatively short and because the results “relate directly to the charged offense,” this factor too weights in favor of admissibility. Id.

The fourth and final factor in the Rule 403 analysis looks at the proponent’s need for the evidence and “encompasses the issues of whether the proponent has other evidence establishing this fact.” Id. The stipulated evidence at the hearing reflects that the State has other probative evidence to establish Franco’s intoxication: Officer Knutson’s testimony that he smelled a strong odor of alcohol on Franco’s breath, Franco was swaying, and Franco told him he drank a beer; the results of the field sobriety tests, on which Franco showed signs of impairment; a videotape of Franco at the scene, on which he states he had been drinking beer before the accident; and possibly the results of the portable breath test taken at the scene an hour after the accident. In light of this other evidence probative of intoxication, the State does not have a great need for the blood test results. This factor thus weighs in favor of exclusion. See id.

Because the sum of the Rule 403 factors slightly favors exclusion of the blood test results, we hold the trial court’s decision to exclude the evidence was within the zone of reasonable disagreement. We therefore hold the trial court did not abuse its discretion in granting Franco’s motion to suppress and affirm its orders.

      . For purposes of the suppression hearing only, the parties stipulated that the factual basis for the State’s expert's opinion are those reflected in Officer Knutson’s DWI and accident reports, portions of Franco’s hospital records, the blood test results, and several statements made by Franco on videotape. This evidence was admitted for the limited purpose of the hearing and is also the basis of our recitation of the facts.

      .Horizontal Gaze Nystagmus (HGN), Walk and Turn, and One Leg Stand tests, as well as the Rhomeberg Test.

      . See also Urquhart v. State, 128 S.W.3d 701, 706-07 (Tex.App.-El Paso 2003, pet. ref’d); Bhakta v. State, 124 S.W.3d 738, 742 (Tex.App.-Houston [1st Dist.] 2003, pet. ref’d); Reale v. State, No. 14-02-00621-CR, 2003 WL 22208385, at *5 (Tex.App.-Houston [14th Dist.] Sep. 25, 2003, pet. ref’d) (mem. op., not designated for publication); Young v. State, No. 10-02-00186-CR, 2003 WL 22023670, at *2 (Tex.App.-Waco Aug. 27, 2003, no pet.) (mem. op., not designated for publication); Washburn v. State, No. 04-99-00927-CR, 2002 WL 31015255, at *3 (Tex.App.-San Antonio Sep.11, 2002, no pet.) (not designated for publication) (all holding trial court did not abuse its discretion in denying motion to suppress breath alcohol test because expert's extrapolation testimony is sufficiently reliable under analytical framework set forth in Mata).


source: Caselaw Access Project

author: Opinion by REBECCA SIMMONS, Justice.

license: Public Domain

text:
    In re Jerry HAMEL.
    No. 04-05-00359-CV.
    Court of Appeals of Texas, San Antonio.
    Sept. 14, 2005.
    See also, 2004 WL 1968277

      Cyrus F. Rea II, Hargrove & Rea, P.C., San Antonio, for appellant.
    John C. Chunn, John C. Chunn, P.C., New Braunfels, for appellee.
    Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, REBECCA SIMMONS, Justice.
   OPINION

Opinion by REBECCA SIMMONS, Justice.

In this mandamus action, relator seeks to vacate a turnover order based upon a void judgment. In that this court previously determined the underlying default judgment was in fact void, we are of the opinion the turnover order should be vacated.

Background

Hamel and Providence entered into a contract for Providence to purchase property from Hamel. Following the purchase, a dispute ensued over $4,000.00, which Providence claimed was an undisclosed tax liability and which Hamel claimed was owed as part of the purchase price. Both parties brought suit in 2001. Unbeknownst to Hamel, in March 2003, Providence requested a trial setting and on June 2, 2003, Providence obtained a post-answer default judgment in favor of Providence for over $3,000,000.00.

Moreover, in March of 2003, as Providence was filing motions and seeking the default judgment against Hamel without his knowledge, Providence simultaneously began negotiations with Hamel for two additional tracts of land owned by his daughter. The property in question was transferred into Hamel’s name on July 29, 2003. On August 20, 2003, Providence sought a turnover order based on the default judgment Providence obtained from the trial court.

At the August 25, 2003 closing, instead of paying Hamel for the additional tracts of land, Providence presented Hamel with the Abstract of Judgment and Turnover Order. Five days later, on August 30, 2003, Hamel filed a motion for a new trial which was ultimately denied by the trial court on October 1, 2003. This court subsequently reversed the post-answer default judgment and remanded the case for trial, in Hamel v. Providence Construction, Inc., 2004 WL 1968277 (Tex.App.-San Antonio 2004, pet. denied). Hamel now seeks to vacate the turnover order issued by the trial court.

Standard of Review

Writs of mandamus will issue only to compel performance of a non-discretionary, ministerial duty or to correct a “clear abuse of discretion.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). The mandamus will issue “only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies” or when an aggrieved party has an adequate remedy by appeal. Id. at 840. In the context of factual matters, an abuse of discretion is shown only if, on the evidence before it, the trial court could reasonably have reached only one decision. Id. at 839-40. However, “[a] trial court has no ‘discretion’ in determining what the law is or applying the law to the facts.” Id. at 840. Accordingly, “a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ.” Id. Jurisdiction by this avenue is available in limited circumstances and the burden of showing both an abuse of discretion and that the abuse cannot be remedied by appeal is a heavy one. In re Crow-Billingsley Air Park, Ltd., 98 S.W.3d 178, 179 (Tex.2003). The requirement of an inadequate remedy is met only when the parties are in danger of permanently losing substantial rights. Walker, 827 S.W.2d at 842; Texas Commerce Bank, N.A. v. Prohl, 824 S.W.2d 228, 229 (Tex.App.-San Antonio 1992, orig. proceeding) (Mandamus will not issue if the relator has another adequate remedy, even if the relator was entitled to the action sought as a matter of law.)

Analysis

The Texas turnover statute is a procedural device to assist judgment creditors in post-judgment collection. The statute empowers courts to order a judgment debtor to turn over nonexempt property that is in the debtor’s possession or subject to the debtor’s control, including present or future rights to property. See Tex. Civ. Prag. & Rem.Code Ann. § 31.002 (Vernon Supp.2004-05); Commerce Sav. Ass’n v. Welch, 783 S.W.2d 668, 671 (Tex.App.-San Antonio 1989, no writ). Subsection (d) of Section 31.002 provides the judgment creditor with the option of moving for a turnover order in the same proceeding in which judgment was rendered or in an independent proceeding. Tex. Civ. PRAC. & RemlCode Ann. § 31.002(d). The judgment debtor must own the property and it must be property that a creditor cannot readily attach or levy on by ordinary legal means.

As a general rule, turnover orders are final, appealable orders. See Burns v. Miller, Hiersche, Martens & Hayward, P.C., 909 S.W.2d 505, 506 (Tex.1995). Therefore, mandamus relief is usu ally not available if the order complained of is appealable because an appeal is almost always an adequate remedy at law. Republican Party of Texas v. Dietz, 940 S.W.2d 86, 88 (Tex.1997) (orig. proceeding). “But on rare occasions an appellate remedy, generally adequate, may become inadequate because the circumstances are exceptional.” In re Masonite Corp., 997 S.W.2d 194, 197 (Tex.1999) (orig. proceeding)(holding that mandamus is appropriate when trial court’s actions showed total disregard for guiding principles of law resulting in irreparable harm). This is such a case. The turnover order in the present case is based on a void judgment.

Out of Time Appeal

Providence argues Hamel has waived his right to challenge the turnover order, resulting in nothing more than an out of time appeal. We disagree. This case is analogous to Enis v. Smith, 883 S.W.2d 662 (Tex.1994), wherein the Supreme Court held that mandamus would lie to set aside a turnover order after the underlying out-of-state judgment was set aside by the issuing court for lack of personal jurisdiction over the defendant. In Enis, the plaintiff obtained a default judgment against Enis for an unpaid gambling debt of $200,000.00 in Clark County, Nevada. The plaintiff then filed a petition to enforce the judgment in Harris County, Texas. The plaintiff sold the default judgment to a third party who filed for and obtained a turnover order in Harris County directing Enis’ debtors to pay all amounts due him into the court’s registry for satisfaction of the Nevada judgment. Enis applied for a stay of the turnover order and moved to vacate the foreign judgment based on lack of personal jurisdiction. The Nevada court subsequently voided the Nevada default judgment. Enis then returned to Harris County wherein the trial court denied his Motion for New Trial. The appellate court held a void judgment will not support a turnover order and therefore the trial court abused its discretion in continuing to enforce the turnover order. Id. at 663 (citing Kelly v. Gibbs, 84 Tex. 143, 19 S.W. 563 (1892) (Void judgment will not support garnishment)) , see also Matthiessen v. Schaefer, 915 S.W.2d 479, 480 (Tex.1995) (If the underlying judgment is reversed on appeal, then the turnover order also must be reversed).

Only last year, in In re Alsenz, 152 S.W.3d 617 (Tex.App.-Houston [1st Dist.] 2004, no pet.), the court addressed a similar situation. After a divorce decree was entered awarding the appellee attorney’s fees, the court ordered that a cash deposit of $97,351.00, made in lieu of supersedeas bond, be released from the registry of the court. The appellee then filed a Motion to Release Supersedeas Bond asking the trial court to condition the release of the super-sedeas bond upon the turnover of $45,784.17 to her attorney to satisfy her attorney’s fees. Appellee convinced the trial court to sign an “Order on Motion to Release Supersedeas Bond” which was in effect a turnover order. Appellant filed a petition for writ of mandamus and motion for emergency temporary relief. Like ap-pellee’s argument in this case, the appellee argued that the appellate court should not issue a writ of mandamus if an alternative adequate remedy exists. She urged that mandamus is an extraordinary remedy and should only be available in limited circumstances. Id. at 620. The court disagreed and held “without a final judgment, a turnover order is void, and mandamus relief lies to vacate the void order.” Id.; see also Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex.1973) (providing mandamus relief for a void nunc pro tunc judgment entered after original judgment had become final).

Hamel’s sole complaint is that the turnover order is based upon a void judgment. The judgment was not declared void until this court so ruled in Hamel v. Providence Construction, Inc., 2004 WL 1968277 (Tex.App.-San Antonio 2004, pet. denied). Once the judgment was reversed, all dependent causes of action were simultaneously defeated. Busby v. Jones, 134 Tex. 241, 133 S.W.2d 566, 571 (1939).

DOCTRINE OF LACHES

Alternatively, Providence argues that Hamel is barred from seeking mandamus by the doctrine of laches. Ordinarily, a petition for writ of mandamus should be brought promptly. In Rivercenter Associates v. Rivera, 858 S.W.2d 366 (Tex.1993) (orig. proceeding), the Texas Supreme Court noted that:

Mandamus is an extraordinary remedy, not issued as a matter of right, but at the discretion of the court. Although mandamus is not an equitable remedy, its issuance is largely controlled by equitable principles. One such principle is that “[ejquity aids the diligent and not those who slumber on their rights.”

Id. at 367 (citations omitted). This is not a case where relator “slept on his rights.” The record shows relator successfully brought an action to reverse the default judgment. The mandate issued on March 4, 2005 and on March 8, 2005, relator requested the trial court reverse its turnover order based on a void judgment.

Moreover, a party asserting the defense of laches must show both an unreasonable delay by the other party in asserting its rights and harm resulting to it because of the delay. In re Bahn, 13 S.W.3d 865, 871 (Tex.App.-Fort Worth 2000, orig. proceeding); Sanchez v. Hester, 911 S.W.2d 173, 177 (Tex.App.-Corpus Christi 1995, orig. proceeding) (citing Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 80 (Tex.1989)). In this case, there is nothing in the record to indicate any harm to Providence. Although allegations are raised with regard to improvements made to the land, Providence did not make these improvements and has no standing to raise the issue. Relator’s request for mandamus relief is, therefore, not barred by laches.

TRESPASS TO TRY TlTLE

Providence next asserts that trespass to try title is the exclusive remedy by which to resolve competing claims to the property. Tex. Prop.Code Ann. § 22.001 (Vernon 2000); Ely v. Briley, 959 S.W.2d 723, 727 (Tex.App.-Austin 1998, no pet.). This argument neglects the fact that the judgment upon which the turnover order is predicated has been reversed. The default judgment was improperly taken and relator’s property is thus in the wrong party’s hands. See Hamel v. Providence Construction, Inc., 2004 WL 1968277 (Tex.App.-San Antonio 2004, pet. denied).

Providence would have relator unnecessarily file a new cause of action and reliti-gate the issues already addressed by this court. Currie v. Drake, 550 S.W.2d 736, 740 (Tex.Civ.App.-Dallas 1977, writ ref'd n.r.e.)(“The right of restitution of what one has lost by the enforcement of a judgment subsequently reversed has long been recognized.”). Moreover, it has been previously held that the successful appellant is entitled to seek restitution in the same proceeding without resorting to a new suit. Outdoor Systems, Inc. v. BBE, L.L.C., 105 S.W.3d 66, 75 (Tex.App.-Eastland 2003, pet. denied). We hold mandamus is the appropriate remedy in this matter.

Conclusion

The judgment upon which the turnover order was based is void. Therefore, relator is entitled to a writ of mandamus directing the trial court to vacate the turnover order. We conditionally grant Hamel’s petition and order the trial court to vacate the turnover order. The writ will issue only if the trial court fails to vacate the turnover order before September 28, 2005.

      . This case is also similar to the garnishment cases wherein the courts have continually held that a judgment entered against a garnishee cannot stand when the underlying judgment has been set aside. Tom Benson Chevrolet Co., Inc. v. Beall, 567 S.W.2d 857, 859 (Tex.Civ.App.-San Antonio 1978, writ ref'd n.r.e.); Owen Electric Supply, Inc. v. Brite Day Construction, Inc., 821 S.W.2d 283 (Tex.App.-Houston [1st Dist.] 1991, writ denied).


author: Opinion by PHYLIS J. SPEEDLIN, Justice.

text:
    EMPLOYEES RETIREMENT SYSTEM OF TEXAS, Appellant, v. Leonard RIZZO, Appellee.
    No. 04-05-00257-CV.
    Court of Appeals of Texas, San Antonio.
    Sept. 14, 2005.

      Maureen Powers, Asst. Atty. Gen., Austin, for appellant.
    Edward L. Pina, Edward L. Pina & Associates, San Antonio, for appellee.
    Sitting: SARAH B. DUNCAN, Justice, PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice.
   OPINION

Opinion by PHYLIS J. SPEEDLIN, Justice.

The Employees Retirement System of Texas (“ERS”) challenges the trial court’s denial of its plea to the jurisdiction in this accelerated appeal. We conclude that the trial court lacked subject matter jurisdiction over the cause due to Leonard Rizzo’s failure to exhaust available administrative remedies prior to filing suit to recover the state employee benefits earned by his wife. Accordingly, we reverse the trial court’s denial of the plea to the jurisdiction, and dismiss the suit for lack of subject matter jurisdiction.

Background

Monika Rizzo was a state employee pri- or to her disappearance in 1997. She was judicially declared dead in 1999. Leonard Rizzo applied to receive his wife’s state employee benefits in October 2002. In May 2003, ERS’s general counsel notified Rizzo that ERS would “delay payment” of any benefits payable as the result of Moni-ka Rizzo’s death until the conclusion of all pending criminal investigations and legal proceedings relating to the cause of her death. ERS based its decision to delay payment on section 814.007 of the Texas Government Code which provides in relevant part, “the retirement system may delay payment of a benefit payable on the death of a member ... pending the results of a criminal investigation and of legal proceedings relating to the cause of death.” Tex. Gov’t Code Ann. § 814.007(d) (Vernon 2004). Through his attorney, Riz-zo requested that ERS make a determination as to whether ERS would pay the benefits to Rizzo. ERS subsequently requested and received a written statement from a San Antonio Police Department detective confirming that Rizzo continues to be a suspect in the investigation of Monika Rizzo’s death. ERS again advised Rizzo’s attorney in March 2004 that it was required by statute to delay payment of any benefits claimed by Rizzo as a result of his wife’s death. Rizzo then sued ERS to recover the benefits and for damages allegedly incurred by Rizzo as a result of ERS’s delay in processing his claim. ERS filed a general denial, motion to transfer venue, plea to the jurisdiction, and plea in abatement. After conducting a hearing, the trial court denied ERS’s plea to the jurisdiction and this accelerated appeal followed. See Tex. Civ. Prao & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2004-05).

Analysis

A plea to the jurisdiction challenges the district court’s authority to determine the subject matter of the cause of action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). A trial court’s ruling on a plea to the jurisdiction is reviewed de novo. See State ex rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002); Herring v. Welborn, 27 S.W.3d 132, 136 (Tex.App.-San Antonio 2000, pet. denied). In a plea to the jurisdiction, the burden is on the non-movant to plead facts sufficient to show that the district court has subject matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). In its plea to the jurisdiction, ERS claimed that the trial court lacked jurisdiction because Rizzo failed to plead facts establishing that he had exhausted his administrative remedies to the claimed benefits, and because Rizzo’s claims are barred by sovereign immunity.

It is well established that in a case such as this exhaustion of administrative remedies is a prerequisite to the trial court’s jurisdiction over a claim. See Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293, 294 (Tex.2001)(per curiam); Tex. Educ. Agency v. Cypress-Fairbanks I.S.D., 830 S.W.2d 88, 90 (Tex.1992); Gutierrez v. Laredo Indep. Sch. Dist., 139 S.W.3d 363, 366 (Tex.App.-San Antonio 2004, no pet.)(citing exceptions to general requirement of exhaustion of administrative remedies). The Government Code provides, “[a] person aggrieved by a decision of the retirement system ... denying or limiting ... eligibility for or the amount of benefits payable under the program or system may appeal the decision to the board of trustees.” Tex. Gov’t Code Ann. § 815.511(a) (Vernon 2004). Following determination of the contested case by the board of trustees, if a person is still aggrieved by the final decision, judicial review by a Travis County district court is available under Chapter 2001 of the Government Code. Tex. Gov’t Code Ann. § 815.511(f) (Vernon 2004); see also Tex. Gov’t Code Ann. § 2001.171 (Vernon 2000)(one who has exhausted all administrative remedies within a State agency and is still aggrieved by a final decision is entitled to judicial review under this chapter).

In this case, Rizzo filed a claim with ERS to receive the benefits earned by his wife. In response, ERS issued a number of written statements acknowledging Riz-zo’s claim, but indicated that the claim would not be processed until all pending criminal investigations and legal proceedings regarding his wife’s death were completed. Rizzo treats this refusal to decide the merits of his claim as an effective denial, but instead of pursuing an administrative appeal of this decision to the board of trustees as provided by statute, Rizzo filed suit in a Bexar County district court. See Tex. Gov’t Code Ann. § 815.511 (Vernon 2004). Because Rizzo failed to even attempt to seek a remedy through the administrative appeals process prior to filing suit, we conclude that he has not exhausted the administrative avenues available to him as required, and, therefore, the trial court lacked jurisdiction. See Wilmer-Hutchins Indep. Sch. Dist., 51 S.W.3d at 295; see also Bexar County v. Gant, 70 S.W.3d 289, 291-92 (Tex.App.-San Antonio 2002, pet. denied)(plaintifFs failure to exhaust administrative remedies is a jurisdictional defect that deprives both the trial court and appellate court of jurisdiction). Because subject matter jurisdiction is essential to the authority of a court to decide a case, a court without it can not render a valid judgment. Blue, 34 S.W.3d at 553-54; Tex. Ass’n of Bus., 852 S.W.2d at 443.

Conclusion

Because Rizzo failed to plead sufficient facts to establish the district court’s subject matter jurisdiction, we reverse the trial court’s denial of ERS’s plea to the jurisdiction and dismiss Rizzo’s claims for lack of jurisdiction.

      . Because we conclude that the trial court lacked jurisdiction due to Rizzo's failure to exhaust administrative remedies, we do not address the issue of sovereign immunity.


author: Opinion by CATHERINE STONE, Justice.

text:
    DUTTON-LAINSON COMPANY, Appellant, v. DO IT BEST CORPORATION, Appellee.
    No. 04-04-00679-CV.
    Court of Appeals of Texas, San Antonio.
    Sept. 28, 2005.

      Andrea N. Moore, Law Office of Samuel E. Dunn, Houston, for appellant.
    Adraon D. Greene, Prichard Hawkins McFarland & Young, L.L.P., Houston, Elizabeth J. Lindell, Brendan K McBride, Ryan A. Byrd, Prichard Hawkins McFarland & Young, L.L.P., San Antonio, appel-lee.
    Mike Huddleston, Sarah Huddleston, Karnes City, pro se.
    Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by CATHERINE STONE, Justice.

In this appeal, we must determine whether a manufacturer has a statutory duty to indemnify a seller for losses incurred in a products liability action in the absence of proof that the allegedly defective product was produced by that manufacturer. Because we hold that section 82.002 of the Texas Products Liability Act imposes a duty on such a manufacturer to indemnify the seller, we affirm the trial court’s judgment.

Factual and Procedural Background

Mike Huddleston and his wife filed a products liability lawsuit against Alamo Lumber Company, Inc., Dutton-Lainson, and Do It Best Corporation (“DIB”). Huddleston alleged he was injured when a brake winch handle malfunctioned and injured him. The winch, which was in Hud-dleston’s constructive possession, was disposed of prior to the lawsuit being filed. Huddleston alleged the winch had been manufactured by Dutton-Lainson. Hud-dleston further alleged DIB, a distributor of winches, sold the defective winch to his employer, Alamo Lumber.

DIB filed a cross-claim against Dutton-Lainson requesting statutory indemnification pursuant to section 82.002 of the Texas Products Liability Act. On September 2, 2003, DIB filed a motion for summary judgment on its indemnity claim. DIB supported its motion with several exhibits, including the affidavit of Richard Linker verifying that DIB had been a wholesaler and distributor of Dutton-Lainson products, including brake winches, since 1988. DIB also attached the affidavit of attorney Dwayne Day, who stated that DIB incurred reasonable attorney’s fees, costs, and expenses of $21,805.35 in defending the products liability action through August 28, 2003.

In its reply to DIB’s motion for summary judgment, Dutton-Lainson argued that the identity of the winch and its manufacturer were disputed and unknown, and could never be verified because Huddle-ston had disposed of the winch before filing suit. Dutton-Lainson complained that it had not been proven to be in the chain of distribution and that “a seller is not entitled to indemnification from just any manufacturer.” Dutton-Lainson attached the affidavits of Bruce Dillin and Reinhold Haase in order to show genuine issues of material fact remained on DIB’s indemnity claim. The alleged defective winch had been described as “silver” in Huddleston’s deposition, and Dillin testified Dutton-Lainson never sold silver-colored winches to DIB. Haase testified in his affidavit that although Dutton-Lainson is a manufacturer of the model number winch identified by Huddleston’s counsel, Dutton-Lainson could not have been in the chain of distribution. The trial court held a hearing on DIB’s motion for summary judgment on September 30, 2003, but took the motion under advisement.

On April 22, 2004, the trial court granted the no evidence motions for summary judgment filed by DIB and Dutton-Lain-son as to Huddleston’s products liability claims, thereby dismissing the underlying claims against them. Thereafter, DIB submitted an additional affidavit of Dwayne Day wherein Day testified that DIB had incurred $29,000.64 in attorneys fees, costs, and expenses in defending the products liability action and in pursuing DIB’s indemnity claims against Dutton-Lainson through June 24, 2004. On June 30, 2004, the trial court entered an order granting DIB’s motion for summary judgment on its indemnity claim and awarded DIB $29,000.64. The order stated that Dutton-Lainson was required to continue paying DIB’s additional attorney’s fees, costs, and expenses incurred in its defense of its indemnity claim until final resolution of the cause.

Dutton-Lainson subsequently filed a motion for new trial from the trial court’s interlocutory order, and DIB filed a response. The trial court denied Dutton-Lainsoris motion for new trial on August 17, 2004, and Dutton-Lainson filed a notice of appeal on September 16, 2004. On October 15, 2004, DIB filed a motion for final summary judgment and attached an affidavit showing it had incurred additional expenses of $7,062.61 in defending its indemnity claim since June 24, 2004. The trial court entered an order granting DIB’s motion for final summary judgment and awarded it an additional $7,062.61 for costs expended to defend its indemnity claim, and $10,000 for conditional appellate attorney’s fees.

Summary Judgment

In its first issue, Dutton-Lainson contends the trial court erred in granting DIB’s motion for summary judgment because the trial court misconstrued the requirements of the Texas Products Liability Act. Dutton-Lainson asserts that under the statute, a manufacturer cannot be liable for indemnity when there is no evidence that the manufacturer produced the specific product at issue. Dutton-Lainson also contends DIB did not establish it qualified as a seller under the statute. In its second issue, Dutton-Lainson asserts genuine issues of material fact existed because Dutton-Lainson offered proof it did not manufacture the winch in question or sell it to DIB.

The standards for reviewing a motion for summary judgment are well established: 1) the movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; 2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and 3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). We review a summary judgment de novo to determine whether a party’s right to prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, pet. denied).

DIB’s indemnity claim is asserted under section 82.002 of the Texas Civil Practices and Remedies Code, which provides:

A manufacturer shall indemnify and hold harmless a seller against loss arising out of a products liability action, except for any loss caused by the seller’s negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is independently liable.

Tex. Civ. Prac. & Rem.Code Ann. § 82.002(a) (Vernon 2005). Other subsections illuminate the duty created by section 82.002(a). “Manufacturer” is defined as “a person who is a designer, formulator, constructor, rebuilder, fabricator, producer, compound-er, processor, or assembler of any product or any component part thereof and who places the product or any component part thereof in the stream of commerce.” Id. at § 82.001(4). The statute requires manufacturers to indemnify sellers unless the seller directly caused the injury. Id. at § 82.002(a). Indemnification includes the seller’s fees and costs in enforcing its statutory right. Id. at § 82.002(b). Additionally, the manufacturer is hable to a seller no matter how the products liability action is resolved, and the statute supplements the seller’s rights under common law or contract. Id. at § '82.002(e)(2). Thus, the statute deliberately places the duty to indemnify on the manufacturers regardless of how the action is concluded unless a seller is found independently hable.

Dutton-Lainson first contends DIB did not establish its right to indemnity as a matter of law because it did not provide competent summary judgment proof that Dutton-Lainson manufactured the winch at issue. Dutton-Lainson further contends that the evidence raised genuine issues of material fact as to whether it was the manufacturer of the winch and whether it was in the chain of distribution. However, applying the language of the statute, the seller is only required to prove that it is a seller who suffered a loss in a products liability action as defined by the statute, and that the defendant qualifies as a statutory manufacturer. The statute does not place an additional burden on the seller to prove the manufacturer was the manufacturer of the product in question or was in the chain of distribution. See Burden v. Johnson & Johnson Medical, Inc., 332 F.Supp.2d 1023, 1029 (S.D.Tex.2004) (holding that requiring sellers to prove that several manufacturers listed in the pleadings were in the chain of distribution in order to recover indemnity “would force the parties to litigate issues that are unnecessary”). In Meritor Automotive, Inc. v. Ruan Leasing Co., the Texas Supreme Court held that “a manufacturer’s duty to indemnify the seller is invoked by the plaintiffs pleadings and joinder of the seller as defendant.” 44 S.W.3d 86, 91 (Tex.2001). Here, DIB supported its request for summary judgment with Linker’s affidavit and the plaintiffs pleadings, which alleged a brake winch manufactured by Dutton-Lainson caused Huddleston’s injuries. Under the statute, DIB was entitled to indemnity as a matter of law.

Dutton-Lainson also contends DIB did not prove it qualifies as a “seller” under the statute. “Seller” is defined as any person “engaged in the business of distributing or otherwise placing, for any commercial purpose, in the stream of commerce for use or consumption a product or any component part thereof.” Tex. Civ. PRAC. & Rem.Cobe ANN. § 82.001(3). That definition includes DIB, which sells brake winches for use by its customers. Although Dutton-Lainson complains DIB did not offer proof it sold the defective brake winch to Alamo Lumber, the Texas Supreme Court has already determined that manufacturers are liable to innocent sellers even if the plaintiff has not shown that he bought the product from the seller in question. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 867 (Tex.1999) (holding that section 82.002(a) of the Products Liability Act does “not explicitly require that the seller be proven to have been in the chain of distribution”).

PLENARY Power

In its third issue, Dutton-Lain-son contends, without citing any authority, that the trial court lacked plenary power when it signed the order granting final summary judgment on DIB’s indemnity claim. We reject this argument because the record indicates the June 30, 2004 order did not constitute a final judgment. A judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record. Lehmann v. HarCon Corp., 39 S.W.3d 191, 195 (Tex.2001). When determining whether a judicial decree constitutes a final judgment, we look not to form, but to the language of the decree and the record in the case. Id. In its order, the trial court stated:

Because there is no genuine issue of fact, the Court, in all things, GRANTS Do it Best Corp.’s Motion for Interlocutory Summary Judgment and ORDERS that Do it Best Corp. have and recover the sum of $29,000.64 from Dutton-Lainson Company for product liability losses accrued through June 24, 2004. The Court further ORDERS that Dut-ton-Lainson Company continue to pay any and all additional attorney’s fees, costs and expenses incurred in the defense of Do it Best Corp. from June 24, 2004 forward until final resolution of this cause.

Under the Texas Products Liability Act, the seller is entitled to indemnification for “court costs and other reasonable expenses, reasonable attorney fees, and any reasonable damages incurred by the seller to enforce the seller’s right to indemnification under this section.” Tex. Crv. PRAC. & Rem.Code ANN. § 82.002(g) (Vernon 2005) (emphasis added). In its order, the trial court determined DIB was entitled to indemnity as a matter of law, but left unresolved the amount of indemnity. The trial court clearly did not intend its order to dispose of the case because the effect of the order was to permit DIB to recover additional expenditures made in defending its indemnity claim. See Lehmann, 39 S.W.3d at 205 (requiring a clear indication that the trial court intends an order to completely dispose of the entire case for it to be considered final and appealable). Because the trial court’s June 30 order did not constitute final judgment, we overrule Dutton-Lainson’s third issue.

Attorney’s Fees and Costs

In its fourth issue, Dutton-Lainson contends there is insufficient evidence to support DIB’s indemnity award of $29,000.64 in the trial court’s interlocutory order. At the time of the September 30, 2003 hearing on DIB’s motion for interlocutory summary judgment, DIB submitted the affidavit of Dwayne Day requesting indemnity for $21,805.35. Several months after the court took DIB’s motion under consideration, DIB filed Day’s second affidavit proving $29,000.64 in costs through June 24, 2004. Dutton-Lainson complains that Day’s second affidavit was untimely filed after the summary judgment hearing and that we must presume the trial court did not consider that evidence.

A movant’s summary judgment affidavit should be filed at least twenty-one days before the hearing. Tex.R. Civ. P. 166a(c). For an untimely affidavit to be considered summary judgment evidence, the record must indicate affirmatively that the trial court permitted late filing of the affidavit. Vasquez v. Carmel Shopping Ctr. Co., 777 S.W.2d 532, 535 (Tex.App.-Corpus Christi 1989, writ denied). Here, the record indicates the trial court accepted the late filing of Day’s updated affidavit. The trial court’s interlocutory order awards more than was requested m DIB s motion and specifically states that DIB shall recover $29,000.64 for “product liability losses accrued through June 24, 2004.” We overrule Dutton-Lainson’s argument that there was insufficient evidence to support the award of $29,000.64.

Dutton-Lainson also contends DIB was not entitled to any additional attorney’s fees or appellate attorney’s fees because Day’s third affidavit was filed after the court’s plenary power expired. We disagree. As discussed previously, the trial court’s June 30, 2004 was interlocutory. The record reflects that DIB submitted Day’s affidavit supporting DIB’s requested appellate attorney’s fees and the additional award of $7,062.61 with its motion for final summary judgment on October 16, 2004. Dutton-Lainson received proper notice and an opportunity to file responsive evidence and objections in compliance with Rule 166a. We overrule Dutton-Lainson’s fourth issue.

Conclusion

Having overruled all of Dutton-Lain-son’s appellate issues, we affirm the judgment of the trial court.

      . Although the statute may appear to be facially unfair to innocent manufacturers named in a lawsuit, it was within the Legislature’s province to weigh the conflicting policy implications of the statutory indemnity in determining whether losses arising out of a products liability action should be borne by the innocent seller or the innocent manufacturer. The Legislature chose to give "preference to sellers with no independent liability.” Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 867 (Tex.1999); see also Meritor Automotive, Inc., 44 S.W.3d at 91 (citing legislative history explaining that Act was intended to expand the indemnity rights of sellers as long as the sellers are not negligent or otherwise at fault); Burden, 332 F.Supp.2d at 1026-1028 (discussing purposes and policies served by Act). Furthermore, it appears that the manufacturer can avoid liability for indemnity by offering a defense to the seller upon receiving the requisite statutory notification. See Burden, 332 F.Supp.2d at 1028-1029.

      . We have reviewed and considered Dutton-Lainson's accompanying motion to vacate the trial court’s final order of November 16, 2004. Because we have determined that Dutton-Lainson’s third issue lacks merit, we deny the motion to vacate.


author: TERRIE LIVINGSTON, Justice.

text:
    Eric Eugene GANSKY, Appellant, v. The STATE of Texas, State.
    No. 2-04-159-CR.
    Court of Appeals of Texas, Fort Worth.
    Oct. 13, 2005.

      David L. Richards, Fort Worth, for appellant.
    Red M. Barker, Asst. County Atty., Weatherford, for state.
    PANEL B: LIVINGSTON, GARDNER, and WALKER, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

Appellant Eric Eugene Gansky appeals from his DWI conviction claiming the trial court erroneously denied his motion to suppress. We affirm.

Factual Background

In the early morning hours of November 10, 2002, Parker County Sheriffs Deputy Stella Perkins was on patrol, stopped in the 1-20 median facing west. She was monitoring traffic with radar and her CB radio when she heard truck drivers asking for police assistance, saying there was a white car traveling on the wrong side of the interstate. She had previously noticed a white car driving west in the westbound lane because it was driving relatively slow and because there had been little other traffic at that time. The truck drivers said the white car was driving east in the westbound lane at the 404 mile-marker and were asking for a police officer. While Deputy Perkins was trying to communicate with the truck drivers about the white car, a semi-truck pulled over onto the shoulder and the driver got out and started waving at her, pointing back towards the east. Deputy Perkins believed the truck driver was signaling to her regarding the white car. Without stopping, she proceeded eastbound trying to follow the car as truck drivers continued giving her the car’s location by mile-marker. One of the truck drivers told her the white car almost hit a semi-truck at the 405 mile-marker as it continued eastbound in the westbound lane, and the truck driver who was almost hit stated so over the CB radio.

Truck drivers continued to monitor the vehicle as it passed the 406 mile-marker and then told Deputy Perkins that it crossed the median near the 407 mile-marker back into the eastbound lane of traffic and then exited at the 407 exit. Once Deputy Perkins heard this she also exited at the 407 exit and continued on the eastbound access road where the truck drivers said the white car was. Then, the truck drivers said the car had pulled into the Burger King-Texaco station at the corner of South Main and the access road. As she pulled into the parking lot, one of the truck drivers told her that the white car was driving through the gas pumps and going across the parking lot. At this point, Deputy Perkins saw the only white car in the parking lot, driving through the pumps, and initiated a traffic stop. Deputy Perkins arrested appellant for DWI. After the trial court denied appellant’s motion to suppress, he entered a negotiated plea of guilty and the trial court assessed punishment at 180 days’ confinement, probated for twenty-four months, with a $600 fine.

Issue Presented

In one issue appellant challenges the trial court’s ruling denying his motion to suppress based upon the illegality of the officer’s stop. Appellant contends that the officer had insufficient corroboration of the anonymous tip to justify the Terry stop of his vehicle.

Standard of Review

The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const, amend. IV. For an arrest to be justified under the Fourth Amendment, it must be accompanied by probable cause to believe that a person has engaged in or is engaging in criminal activity. Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959). A detention, however, may be justified on less than probable cause if a person is reasonably suspected of criminal activity based on specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App.2000).

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Carmouche, 10 S.W.3d at 327; Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). In reviewing the trial court’s deci sion, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Best v. State, 118 S.W.3d 857, 861 (Tex.App.-Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000); State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App.1999). Therefore, we give almost total deference to the trial court’s rulings on (1) questions of historical fact and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demean- or. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002); State v. Ballman, 157 S.W.3d 65, 67 (Tex.App.-Fort Worth 2004, pet. ref'd); Harrison v. State, 144 S.W.3d 82, 85 (Tex.App.-Fort Worth 2004, pet. granted); Best, 118 S.W.3d at 861-62. However, when the trial court’s rulings do not turn on the credibility and demeanor of the witnesses, we review de novo a trial court’s rulings on mixed questions of law and fact. Johnson, 68 S.W.3d at 652-53.

When the trial court does not file findings of fact, we are to view the evidence in the “light most favorable to the trial court’s ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.” Ross, 32 S.W.3d at 855; Guzman, 955 S.W.2d at 89; State v. Maldonado, 176 S.W.3d 419, 421 (Tex.App.-Houston [1st Dist.] 2004, no pet.).

While the trial court filed no written findings of fact or conclusions of law in connection with the suppression hearing, the trial judge concluded that there were “several corroborations” of the tips. Because it is clear from the trial court’s statements on the record, and because the record supports the trial court’s conclusions, we must give the trial court almost total deference in reviewing those historical facts but review de novo the application of the law to those facts. See Ross, 32 S.W.3d at 856-57.

Discussion

In this case, the arresting officer, Deputy Perkins, was the only person to testify at the suppression hearing. The only fact that might have been in issue was whether the vehicle appellant was driving had actually been in an accident. Appellant contends that because the white car Deputy Perkins stopped had no damage, it could not have been the vehicle the truck drivers were describing as driving the wrong way or striking a semi-truck; thus, Deputy Perkins would not have had a reasonable suspicion to stop appellant’s white car. However, a closer look at Deputy Perkins’s testimony shows some equivocation as to whether the truck drivers reported that the suspect vehicle had actually struck a “semi.”

Deputy Perkins testified that she heard a report that the vehicle had “almost hit or they thought he had actually hit a semi at the 406 mile-marker.” Appellant cross-examined Deputy Perkins extensively regarding this issue in an effort to cast doubt on whether she had, in fact, stopped the correct vehicle since appellant’s car had no damage. But, as the testimony shows, there was no definitive testimony that the white car actually struck a semi, only that it almost had. Because this is the only potential fact issue that might have been determined by the trial court, we apply the bifurcated standard to the trial court’s findings and rulings. See id. at 856.

We must conclude that the trial court implicitly found that the white car described by all the truck drivers was not actually in a collision and that it had only narrowly missed a semi because appellant’s white car had no damage. Further, in reviewing Deputy Perkins’s testimony on direct examination, it is apparent that one of the truck drivers specifically identified the white car while it actually drove around in the Burger King-Texaco parking lot at the same time Deputy Perkins arrived at the parking lot. This particular testimony gives further credence to the trial court’s apparent conclusion that the white car only “almost” struck another semi. Applying great deference to the trial court’s implicit findings, we turn to a review of the trial court’s application of law to these facts. Id. at 857-58.

Applicable Law Regarding Investigative Detentions

Appellant cites two cases, Alabama v. White and State v. Simmang, to support his contention that Deputy Perkins had insufficient corroboration to justify her investigative stop and detention because Deputy Perkins was relying solely on anonymous tips. Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 2415, 110 L.Ed.2d 301 (1990); State v. Simmang, 945 S.W.2d 219, 223 (Tex.App.-San Antonio 1997, no pet.). Conversely, we believe this case is distinguishable from Simmang, but agree it is controlled by the principles announced in White, as well as other more recent Texas cases discussing anonymous tips and reasonable suspicion. See White, 496 U.S. at 329, 110 S.Ct. at 2415; Brother v. State, 166 S.W.3d 255 (Tex.Crim.App.2005); Ross, 32 S.W.3d at 853; Pipkin v. State, 114 S.W.3d 649 (Tex.App.-Fort Worth 2003, no pet.); State v. Stolte, 991 S.W.2d 336 (Tex.App.-Fort Worth, 1999, no pet.); Glover v. State, 870 S.W.2d 198 (Tex.App.-Fort Worth 1994, pet. ref'd).

In Alabama v. White, the United State Supreme Court was asked to review the Alabama Court of Criminal Appeals’s reversal of a trial court’s ruling denying a defendant’s motion to suppress evidence seized during a stop of the defendant’s vehicle. 496 U.S. at 328, 110 S.Ct. at 2415. The Supreme Court reversed the Alabama court’s determination holding that the officer who received a detailed anonymous tip on the location of a particular vehicle and occupant had reasonable suspicion to stop, detain, and investigate. Police had received a tip that the respondent, White, would be leaving a particular apartment at a particular time in a certain vehicle, that she would be going to a particular destination, and that she was in possession of cocaine. Based on this information, officers went to the apartment complex and waited while White emerged from the designated apartment and got into the described vehicle. They then followed her to the identified motel, at which point they stopped her right before she arrived. Apparently, White gave the officers consent to search her vehicle where they found marijuana. After they arrested her, they found cocaine in her purse. Id. at 327-28, 110 S.Ct. at 2414-15.

The Supreme Court found sufficient corroboration of the anonymous tip to support the stop. Id. at 331, 110 S.Ct. at 2416. Specifically, the Supreme Court reviewed the totality of the circumstances to conclude that the level of the reliability of the tip was increased because the officers had been able to corroborate much of the content of the tip. Id. at 329, 110 S.Ct. at 2415. The Supreme Court pointed to certain details of the tip that the officers had been able to corroborate such as the apartment from which the respondent left, the description of the vehicle she entered, the time she left, and her likely destination. Id. at 331, 110 S.Ct. at 2416-17. The Supreme Court focused not only on the content of the information but its degree of reliability, noting that both quantity and quality of information contribute to the totality of the circumstances surrounding an analysis of the reasonableness of the officer’s suspicion. The amount of reliability obviously increases with corroboration of future events described by the caller. Id. at 330-31, 110 S.Ct. at 2416.

Similarly, the Texas Court of Criminal Appeals upheld this court’s affirmance of a trial court’s denial of a motion to suppress in a DWI case. Brother v. State, 85 S.W.3d 377 (Tex.App.-Fort Worth 2002), aff'd 166 S.W.3d 255 (Tex.Crim.App.2005). In Brother, the appellant challenged the officer’s stop claiming that because the officer himself had not personally observed Brother’s erratic driving and instead relied on a citizen-informant’s 911 call to police dispatch, the officer lacked reasonable suspicion to stop him. Id. at 381-82. In Brother, the citizen-informant continued to follow the vehicle while remaining on her cell phone with the 911 dispatcher until the officer stopped the suspect. Additionally, the citizen gave Brother’s license plate number to the dispatcher and turned on her hazard lights while following Brother as instructed by the dispatcher. The officer said he was able to correctly identify the vehicle because he had the license plate number and a visual of the citizen’s car with her hazard lights on. Both the arresting officer and the citizen testified to these facts at the suppression hearing. Id. at 379-80.

The trial court denied Brother’s motion to suppress, this court affirmed the trial court, and the court of criminal appeals upheld our decision. Id. at 385; see also 166 S.W.3d at 261. The court of criminal appeals noted that the “factual basis for stopping a vehicle need not arise from the officer’s personal observation, but may be supplied by information acquired from another person.” Brother, 166 S.W.3d at 257 (citing Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1923-24, 32 L.Ed.2d 612 (1972)). The court of criminal appeals emphasized the wide acceptance of citizen-informant reliability that is generally shown by the very circumstances giving rise to the incriminating information the citizen is reporting. Id. at 258.

Further, citing to this court’s opinion in Pipkin v. State, the court of criminal appeals noted that we upheld the trial court’s denial of Pipkin’s challenge to the officer’s investigatory stop because the citizen-informant relayed sufficient facts to 911 to justify the stop. Id. (citing Pipkin, 114 S.W.3d at 652-53). In Pipkin, the citizen-informant detailed the vehicle’s extremely slow speed, observed that the driver was driving in the fast lane of traffic while steering with his knees and smoking what appeared to be a crack pipe, gave a description of the vehicle and its location, and additionally provided his identification and contact information to the dispatcher. Pipkin, 114 S.W.3d at 652-53. In Pipkin we noted that the citizen-informant’s “veracity, reliability, and basis for knowledge are highly relevant in determining the value of the caller’s report.” Id. at 654. We also noted that trial courts should look to not only the content of the information but the quality of the information in reviewing an officer’s decision to stop and detain. Id.

Corroboration by the law enforcement officer of any information related by the informant may increase the reliability of the information. “[CJorrobo-ration” in this sense does not mean that the officer must personally observe the conduct that causes him to reasonably suspect that a crime is being, has been, or is about to be committed. Rather corroboration refers to whether the police officer, in light of the circumstances, confirms enough facts to reasonably conclude that the information given to him is rehable and a temporary detention is justified.

Id. at 654 (citations omitted).

As we observed in Pipkin, and the court of criminal appeals emphasized in Brother, the reliability of the citizen-informant is greater than that of a paid informant. Further, the fact that the information being supported by the officer’s conclusion that an investigative stop was justified and his ability to identify the correct vehicle increased the reliability of the information. Brother, 166 S.W.3d at 258.

Similarly, in State v. Stolte, we reversed the trial court’s order suppressing evidence from an officer’s investigatory stop based upon a citizen-informant’s anonymous cell phone call regarding a possible DWI. 991 S.W.2d at 339. In Stolte, the dispatcher was able to give the officer a description of the suspect vehicle, including color, make, and style as well as its license plate number. Id. Further, as in Brother, the caller continued to follow the truck, gave the dispatcher updates as they drove, provided the location and description of the vehicle, including the exit location of the vehicle, pulled in behind the officer’s patrol car once the officer stopped the driver, and then identified himself to the officer. Both the officer and the citizen-informant testified at the suppression hearing. We held that although the citizen-informant’s identification was initially unknown to the officer who stopped the vehicle, the officer knew that the citizen-informant was continuing to monitor the suspect vehicle, which increased the reliability of the information the citizen-informant was providing. Id. at 340. Moreover, the information the citizen-informant provided regarding the identity of the vehicle, including the license plate number, increased the likelihood that the officer had stopped the correct vehicle.

Even if we compare the facts of this case with those of the Simmang case cited by appellant, we still reach the same result. In State v. Simmang, the San Antonio Court of Appeals upheld a trial court’s suppression order. 945 S.W.2d at 225. There, an officer received one call from an anonymous person who claimed that a lone white male was committing a sexual offense in a “gold-colored four door sedan” in a parking lot at a particular intersection. Id. at 220. As in our case, no license plate, make, or model was provided. When the officer approached and looked in the vehicle, he claimed he smelled a strong odor of marijuana coming from the vehicle. Id. at 221. The officer ordered the occupant from the vehicle, searched him, and turned back toward the vehicle where he saw a weapon in plain view on the floor of the vehicle. Id. In searching the vehicle, the officer found less than two ounces of marijuana. Id. The trial court granted the occupant’s motion to suppress and the appellate court upheld that ruling. Id. at 225. The arresting officer was the only one to testify at the hearing. Id. at 220-21.

The appellate court noted that there was a discrepancy in the officer’s testimony from his written offense report that said he did not smell the odor until he had occupant outside and was searching him as opposed to upon approaching the vehicle. Id. at 221. Pointing to this discrepancy and giving great deference to the trial court’s findings, the appellate court concluded that the trial court must not have believed the officer’s testimony. Id. Also, the appellate court noted the anonymous nature of the tip, the lack of detail regarding the identification of the vehicle or the suspect, and the lack of corroboration. Id. at 224. In other words, the low quantity of the tips coupled with the lack of corroboration either by other witnesses or officers substantially diminished the quality of this anonymous tip.

In Stolte, we also addressed another factor to consider in evaluating the totality of the circumstances surrounding the reasonableness of an officer’s stop: the urgency of the particular situation. 991 S.W.2d at 342. In Stolte, an anonymous citizen-informant had witnessed the suspected driver driving so slowly in the middle lane of a high traffic highway that drivers in all lanes were slowing down. Id. at 340. The citizen-informant had also observed the driver veering in and out of lanes such that he appeared to be a danger to himself as well as to others. Id. We held that, under the facts of that case, it would have been unreasonable, in light of the “important public and private interests involved,” to have delayed the stop since the officer had located the described vehicle where the citizen-informant said it was in order to further corroborate the information that had been relayed to him. Id. at 843. In other words, the totality of the circumstances also includes an evaluation and weighing of both the “important public and private interests involved.” Id. Here, the important public interest is extremely compelling; a driver driving on the wrong side of an interstate highway creates an extremely dangerous situation not only for the driver, but for the public as well. Thus, we conclude that the urgency of the situation also contributed to the reasonableness of the officer’s stop.

Admittedly, there are some factual distinctions in the case at bar from the cases we have discussed, but we conclude that more of the factors militate in favor of the trial court’s ruling. The anonymous tip here was really a multitude of anonymous tips; Deputy Perkins testified that she knew she talked to at least five different truck drivers, plus the truck driver who stopped and flagged her from the side of the road. The tips actually came from a group of anonymous tipsters who would have had a mutual interest in insuring that a driver driving the wrong way on an interstate was stopped and removed. Moreover, Deputy Perkins testified on cross-examination that she heard multiple truck drivers identify the white car as driving in the wrong direction and that both the number of sightings along with the “emotion in their voice[s]” led her to believe they were frantically describing what they were simultaneously observing, all of which support the veracity and reliability of the information Deputy Perkins was receiving. “Unsolicited information concerning a crime in progress provided to police in a face-to-face encounter by a concerned citizen who is not connected with police and is not a paid informant is inherently reliable.” Harrison, 144 S.W.3d at 86; see also State v. Sailo, 910 S.W.2d 184, 188-189 (Tex.App.-Fort Worth 1995, pet. ref'd). Although the information Deputy Perkins heard was not delivered face-to-face, at least one of the truck drivers had stopped, which would have at least made him identifiable had she stopped to get his identification. Thus, both the quantity of callers and their contemporaneous sightings increased the reliability and accuracy of their descriptions.

Although tips came in from several truck drivers, there was at least one truck driver who watched and described the vehicle’s exit from the highway, as well as its movement through a specifically identified parking lot. While Deputy Perkins’s own testimony regarding the vehicle’s near-crash was equivocal, we cannot say that the trial court unreasonably concluded that appellant’s vehicle might have had no damage. Critically, the potential danger and extreme risk to the public further justified Deputy Perkins’s conclusion that an investigative detention was not only reasonable but necessary. Although Deputy Perkins lacked a license plate number, make, or model of the vehicle, she followed and identified the vehicle by virtue of the multiple tipsters. For all the foregoing reasons, we conclude and hold, under the totality of the circumstances, that the trial court properly denied appellant’s motion to suppress. We overrule appellant’s sole issue.

Conclusion

Because we overrule appellant’s sole issue, we affirm the trial court’s suppression ruling and affirm the trial court’s judgment.


author: PER CURIAM. LEE ANN DAUPHINOT, Justice.

text:
    Dewayne Montrell FOSTER, Appellant, v. The STATE of Texas, State.
    No. 2-04-204-CR.
    Court of Appeals of Texas, Fort Worth.
    Oct. 13, 2005.

      Greg King, Wichita Falls, for appellant.
    Barry L. Macha, Criminal Dist. Atty., John W. Brasher and Maureen O’Brien, Asst. Criminal Dist. Attys., Wichita Falls, for appellee.
    PANEL F: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.
   MEMORANDUM OPINION

PER CURIAM.

Appellant Dewayne Montrell Foster appeals from his convictions for assault on a public servant. In two issues, appellant challenges the legal sufficiency of the evidence to support his convictions and complains that the trial court violated his constitutional rights by improperly limiting the defense’s cross-examination of one of the complaining witnesses. We affirm.

In his first issue, appellant contends that there is no evidence to support the State’s allegation in count one of the indictment that he intentionally, knowingly, or recklessly caused bodily injury to Officer Phillip Rice by “striking ... Rice about the body and/or causing ... Rice to strike the wall.” Appellant asserts that there is a fatal variance between this allegation and the proof offered at trial because the only injury for which Rice sought medical treatment was a wrist injury, and Rice acknowledged that he did not know how his wrist became injured during his struggle with appellant.

Rice further testified, however, that during his confrontation with appellant, appellant punched him in the rib cage on his left side and in the left shoulder area. In addition, Rice testified that, while he had appellant in a bear hug, appellant took several steps backward and forced both men over a dresser and into a wall-mounted mirror. Rice testified that he experienced pain both as a result of appellant hitting him and as a result of appellant causing him to strike the wall. Bodily injury includes physical pain. Accordingly, we hold that the evidence is legally sufficient to show that appellant intentionally, knowingly, or recklessly caused Rice bodily injury. We overrule appellant’s first issue.

In his second issue, appellant complains that the trial court violated his Sixth Amendment right to confrontation by limiting his cross-examination of Rice. Appellant contends that one of his defensive theories at trial was that Rice had filed the underlying assault charge to protect himself from an excessive force allegation resulting from his use of a headlock to restrain appellant. Specifically, appellant asserts that the trial court improperly sustained the State’s speculation and relevance objections, respectively, to the following questions:

• If an officer has used excessive force when making an arrest, “can there be a motivation to make the situation worse than it was on the part of the officer to justify with internal affairs what is happening?”
• “[H]ow typically does an officer defend themselves against ... a charge [of use of excessive force]?”

The Sixth Amendment right to confrontation necessarily includes the right to cross-examine. This constitutional right is violated when appropriate cross-examination is limited.

We review the trial court’s exclusion of evidence under an abuse of discretion standard. A trial court does not abuse its discretion unless its ruling is arbitrary and unreasonable and therefore outside the zone of reasonable disagreement. The mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred.

Applying these principles to this case, we hold that the trial court did not abuse its discretion by sustaining the State’s speculation objection to the first question listed above. The question did not ask whether Rice knew of any specific instances of officers embellishing the facts after using excessive force. Therefore, the trial court reasonably could have concluded that Rice was being asked to speculate regarding whether embellishment could occur.

Likewise, the trial court reasonably could have concluded that the defense’s second question was not relevant to the issues in the case. There is no evidence that any complaint or charge of excessive force had been filed against Rice as a result of his use of a headlock when attempting to restrain appellant. Further, the question did not ask Rice how he would go about preventing a charge of excessive force from being filed or whether he knew of specific instances in which other officers had sought to prevent such charges. Thus, the question sought evidence that was not only irrelevant, but also calculated to confuse the issues and mislead the jury by injecting into the case facts regarding a completely different situation — one in which an officer had been charged with use of excessive force.

Accordingly, we hold that the trial court did not abuse its discretion or violate appellant’s right to confrontation by limiting the defense’s cross-examination of Rice. We overrule appellant’s second issue.

Having overruled both of appellant’s issues, we affirm the trial court’s judgments.

DAUPHINOT, J. filed a dissenting opinion.

LEE ANN DAUPHINOT, Justice.

I must respectfully dissent from the majority’s holding that a trial court may limit cross-examination when the trial court believes that the defense being offered might confuse the jury. The defense was that the arresting officer accused Appellant of assault on a public servant in order to head off an accusation that the officer used excessive force. Appellant was clearly laying the foundation for a showing of bias or motive on the part of the officer in an attempt to impeach his testimony. The first question may not have been artfully phrased, but, I submit, when the State asks a police officer about common police practices, the State is not asking the officer to speculate. Just as lawyers can be asked to testify about common practices among lawyers, for example, the charging of customary and reasonable attorneys’ fees, and narcotics officers can testify about common practices of drug dealers, a police officer can be asked about common practices of police officers. The officer can always answer that he does not know or that it is not a common practice in his experience.

Similarly, the claim that the question about how an officer defends against a claim of excessive force is irrelevant, when the entire defense is that the officer was guilty of using excessive force and arrested Appellant in a pre-emptive effort to avoid a charge against the officer, is incomprehensible. The majority contends that because the complaint had not been filed against the officer, the defense could not argue that the officer had used excessive force. This argument is like saying that a civil defendant cannot claim that the car he rear-ended stopped too suddenly and had no brake fights if the driver of that car did not receive a ticket. Would the civil defendant’s attempts to show fault on the part of the plaintiff be considered “not only irrelevant, but also calculated to confuse the issues and mislead the jury by injecting into the case facts regarding a completely different situation — one in which” the other driver had been charged with stopping too suddenly and having no brake fights?

State’s witnesses often testify about what people “typically” or “commonly” do or which evidentiary clues “typically” or “commonly” indicate that drug dealing is afoot. Trial courts routinely allow this testimony, and appellate courts routinely approve its use. Surely the law governing the admissibility of evidence applies equally to both sides of the bar.

A defendant in a criminal case has to be allowed to put on his defense, and the failure to allow adequate cross-examination denies a defendant that right. For these reasons, I must respectfully dissent from the majority’s holding that the trial court did not err by limiting Appellant’s right to establish the foundation for his defense through cross-examination of the arresting officer.

      . See Tex.R.App. P. 47.4.

      . Tex. Penal Code Ann. § 1.07(8) (Vernon Supp.2004-05).

      . See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App.2004) (both setting out legal sufficiency standard of review).

      . The Confrontation Clause provides: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." U.S. Const. amend. VI; see Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 1359, 158 L.Ed.2d 177 (2004).

      . Carroll v. State, 916 S.W.2d 494, 497 (Tex.Crim.App.1996).

      . Id.

      . Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App.1990).

      . Manning v. State, 114 S.W.3d 922, 926 (Tex.Crim.App.2003).

      . Id.

      . Rice testified that he used a headlock, rather than pepper spray or his baton, because there were several small children and a baby present and the room in which the struggle took place was small and crowded with furniture.

      . See Tex.R. Evid. 403 (providing that even relevant evidence may be excluded if its probative value is substantially outweighed by danger of confusion of issues or misleading jury)-

      . See Manning, 114 S.W.3d at 926.

      . See, e.g., State v. $11,014.00, 820 S.W.2d 783, 784 (Tex.1991); Guy v. State, 160 S.W.3d 606, 611 (Tex.App.-Fort Worth 2005, pet. ref'd); State v. Delagarza, 158 S.W.3d 25, 28 (Tex.App.-Austin 2005, no pet.).

        . Fielder v. State, 756 S.W.2d 309, 319-21 (Tex.Crim.App.1988).