text:
    Archie MORENO, Appellant, v. M.V., M.D. and A.M., M.D., Appellees.
    No. 08-03-00476-CV.
    Court of Appeals of Texas, El Paso.
    July 14, 2005.

      Patrick Bramblett, Bramblett & Associates, El Paso, for Appellant.
    H. Keith Myers, Mounce, Green, Myers, Safi & Galatzan, Cynthia C. Llamas, Hicks & Lucky, P.C, William V. Ballew III, Scott, Hulse, Marshall, Feuille, Finger & Thurmond, El Paso, for Appellees.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the granting of a directed verdict against Appellant, Archie Moreno, in favor of all defendants below. Suit was originally filed by Appellant against Appellees seeking damages related to the medical treatment received by Appellant at Columbia Medical Center-East, as provided by Appellee physicians. Appellant presented himself to the emergency room at Columbia Medical Center-East suffering from abdominal pain. The Ap-pellee physicians provided an initial evaluation and subsequent care. Appellant ultimately underwent abdominal surgery and was diagnosed with a ruptured appendix. Appellant claims that he suffered complications related to the delay in the diagnosis of appendicitis and delay in surgery, for which he sued. After Appellant completed the presentation of his evidence, all Appel-lees moved for a directed verdict in favor of each Appellee. The trial court granted each Appellee’s motion. Appellant appealed the granting of the directed verdicts against the Appellee doctors only. For the reasons stated, we affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

In his Fourth Amended Petition filed March 5, 1998, Appellant herein filed suit against Columbia Medical Center-East, Murray Vann, M.D. and Ascención Mena, M.D., complaining about the medical care he had received at the defendant hospital and provided by the defendant physicians. On August 25, 2003, the parties proceeded to trial before a jury. After the plaintiffs case-in-chief, each defendant moved for a directed verdict on the claims asserted by the plaintiff. The trial court granted the directed verdicts and entered a judgment in favor of each defendant below.

Appellant appeals only from the judgments entered in favor of the physician defendants and has presented us with a limited record on appeal. Appellant raises two issues complaining that the “trial court erred in granting Appellees’ Motion [sic] for Directed Verdict because the evidence raised fact issues as to a breach of the standard of care” and contending that “the trial court erred in granting Appellees’ Motion [sic] for Directed Verdict as a material fact issue exists as to causation” as to both Appellees. We note that Appellant has come forward with a reporter’s record that presents only the testimony of Appellant’s physician expert witness, Dr. Terry Simpson, and the post-trial motions. The only exhibit included in the reporter’s record is Dr. Simpson’s curriculum vitae. Similarly, Appellant only requested that a partial clerk’s record be included on appeal.

The substantive facts are not disputed by the parties. Appellant arrived at the emergency room at Columbia Medical Center-East on the evening of April 16, 1995 complaining of abdominal pain, nausea, and vomiting. Appellee, Ascención Mena, M.D. (Dr. Mena) was the first physician in the emergency room to have contact with Appellant. Appellant had a history of kidney stones and presented symptoms consistent with a kidney stone. Dr. Mena ordered an extensive workup of Appellant’s complaints that included tests that evaluated other potential problems as well. Appellant’s expert witness testified that the tests ordered by Dr. Mena were appropriate and the examination performed by Dr. Mena was thorough. After completion of the examination, Dr. Mena recommended that Appellant be admitted to the hospital and referred him to the care of Dr. Murray Vann (Dr. Vann), a urologist who specializes in the treatment of kidney stones. Appellant’s expert testified that this decision was appropriate. Appellant’s expert’s criticism of the treatment provided by Dr. Mena “simply is that he didn’t consult the general surgeon when he had a patient that came in with a constellation set of symptoms which could not rule out appendicitis.”

Appellee Dr. Vann, a urologist, admitted Appellant to the hospital after midnight on April 17, 1995. Dr. Vann examined Appellant and did not find any symptoms that were inconsistent with a kidney stone or which alerted him to the existence of appendicitis. As confirmed by Appellant’s expert, Appellant lacked the classic symptoms of appendicitis. While in the hospital on the afternoon of April 18, 1995, Appellant had a significant change in his symptoms. Dr. Vann requested that Dr. Antonio Davalos, a general surgeon, be consulted regarding the Appellant’s condition. Dr. Davalos examined Appellant in the early evening of April 18, 1995. He found that Appellant had peritonitis, or an infection and inflammation of the abdomen which required immediate surgery. Surgery was performed within an hour of Dr. Davalos’s consultation. Prior to the surgery, Dr. Davalos had diagnosed the patient with acute abdomen but did not specifically diagnose appendicitis. Appellant’s expert had no criticism of the care provided by Dr. Davalos. Appellant developed postoperative complications that included sepsis and wound infection. He remained in the hospital for a total of nine days.

II. DISCUSSION

A. Standard of Review

In two issues, Appellant asserts that the trial court erred in granting a directed verdict in favor of all defendants because there was sufficient evidence presented to raise a fact issue as to a breach of the standard of care and as to causation.

In reviewing a directed verdict, we examine the evidence in the light most favorable to the party suffering the adverse judgment and disregard all contrary evidence and inferences. S.V. v. R.V., 933 S.W.2d 1, 8 (Tex.1996); Qantel Bus. Sys. v. Custom Controls Co., 761 S.W.2d 302, 303-04 (Tex.1988); McIntyre v. Smith, 24 S.W.3d 911, 914 (Tex.App.-Texarkana 2000, pet. denied). If there is any conflicting evidence of probative value which raises a material fact issue, then the judgment must be reversed and the case remanded for the jury’s determination of that issue. Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex.1994); Qantel, 761 S.W.2d at 304; McIntyre, 24 S.W.3d at 914; see also Campos v. Ysleta General Hosp., Inc., 836 S.W.2d 791, 793 (Tex.App.-El Paso 1992, writ denied). When reasonable minds may differ as to the truth of controlling facts, the issue must go to the jury. McIntyre, 24 S.W.3d at 914; Phippen v. Deere and Co., 965 S.W.2d 713, 719 (Tex.App.-Texarkana 1998, no pet.). On the other hand, where no evidence of probative force on an ultimate fact element exists, or where the probative force of slight testimony is so weak that only a mere surmise or suspicion is raised as to the existence of essential facts, the trial court has the duty to instruct the verdict. McIntyre, 24 S.W.3d at 914; Facciolla v. Linbeck Constr. Corp., 968 S.W.2d 435, 440 (Tex.App.-Texarkana 1998, no pet.); Campos, 836 S.W.2d at 793-94.

Such a determination requires us to consider only the evidence that favorably supports Appellant’s position. All contrary evidence and inferences are to be disregarded. Campos, 836 S.W.2d at 793; Valdez v. Lyman-Roberts Hosp. Inc., 638 S.W.2d 111, 114 (Tex.App.-Corpus Christi 1982, writ ref'd n.r.e.).

To prevail in any medical negligence cause of action, the trier of fact must be guided by the opinion testimony of experts. Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex.1966); McIntyre, 24 S.W.3d at 914-15. Through this expert testimony, the plaintiff must prove:

(1) a duty by the physician to act according to a certain standard of care;
(2) a breach of that standard of care;
(3) an injury; and
(4) a causal connection between the breach of care and the injury.

McIntyre, 24 S.W.3d at 914; McCombs v. Children’s Med. Ctr. of Dallas, 1 S.W.3d 256, 259 (Tex.App.-Texarkana 1999, pet. denied).

It is well established that the threshold question in a medical malpractice case is the standard of care. McIntyre, 24 S.W.3d at 914; Hammonds v. Thomas, 770 S.W.2d 1, 1 (Tex.App.-Texarkana 1989, no writ). That standard must first be established so that the fact finder can determine if the doctor’s conduct devi ated from the standard to the degree that it constituted malpractice. McIntyre, 24 S.W.3d at 914; Hammonds, 770 S.W.2d at 1-2. It is not sufficient for a medical expert to simply state that he knows the standard of care and to then draw a conclusion as to whether that standard was met. Rather, the expert must explicitly state the standard of care and explain how the defendant’s acts met or failed to meet that standard. McIntyre, 24 S.W.3d at 915; Whittley v. Heston, 954 S.W.2d 119, 122 (Tex.App.-San Antonio 1997, no writ); Chopra v. Hawryluk, 892 S.W.2d 229, 238 (Tex.App.-El Paso 1995, writ denied).

B. Discussion of the Evidence

An analysis of both issues in light of the above standard of review reveals two dispositive issues on appeal. Appellant has asserted that he has raised a fact issue as to the negligence of the physician Appellees for medical malpractice with regard to their failure to timely consult a general surgeon to rule out a diagnosis of appendicitis. The second issue asserts that Appellant has produced evidence to show that his injuries were proximately caused by the Appellees’ failure to diagnose appendicitis and remove the appendix before it ruptured.

Because this case involves allegations of medical malpractice, we must evaluate the evidence in light of the burden of proof required to prove medical malpractice. In a medical malpractice case, the plaintiff must prove, by competent testimony, that the defendant’s negligence proximately caused the plaintiffs injury. Hart, 399 S.W.2d at 792; Bowles v. Bourdon, 148 Tex. 1, 5, 219 S.W.2d 779, 782 (1949). Additionally, and of great importance in this case, the plaintiff must establish a causal connection beyond the point of conjecture; proof of mere possibilities will not support the submission of an issue to the jury. Duff v. Yelin, 751 S.W.2d 175, 176 (Tex.1988); Lenger v. Physician’s Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex.1970).

The record on appeal consists only of the testimony of Appellant’s physician expert witness, Dr. Terry Simpson. Dr. Simpson repeatedly asserted that his only criticism of the physician defendants was that they did not immediately consult a general surgeon to rule out appendicitis. Specifically, with regard to Dr. Mena, Dr. Simpson testified that “the criticism simply is that he didn’t consult the general surgeon when he had a patient that came in with a constellation set of symptoms which could not rule out appendicitis.”

There is no dispute that Appellant presented to the emergency room of the defendant hospital on the evening of April 16, 1995 with general, non-specific symptoms of temperature, tenderness, and general abdominal pain and a history of kidney stones. Dr. Simpson confirmed that Dr. Mena did an extensive workup in the emergency room and a thorough evaluation of Appellant’s complaints. He also acknowledged that Dr. Mena did a workup that included tests that were not related to the patient’s history of kidney stones and specifically included the evaluation of other potential problems. He had no criticism of the tests requested and Appellant did in fact have a kidney stone. Dr. Simpson also confirmed that the symptoms of a kidney stone can be identical to the symptoms of appendicitis. He also confirmed that it was appropriate for Dr. Mena to admit the patient into the hospital under the care of Dr. Vann for treatment of the kidney stone. Dr. Mena had no further responsibility for the care or treatment of Appellant after he was admitted to the hospital. Dr. Simpson also testified that Appellant had a significant change in his symptoms and his clinical presentation on the afternoon of April 18,1995.

Dr. Simpson’s criticism of Dr. Vann is also limited to his failure to consult a general surgeon earlier in the patient’s treatment. Dr. Simpson repeatedly testified that he considered Dr. Vann’s assessment of Appellant’s condition as “elegant” and thorough. He acknowledged that Dr. Vann evaluated Appellant’s condition and considered other potential problems, not just the confirmed kidney stone. Dr. Simpson confirmed that a diagnosis of a kidney stone does not necessarily require the consultation of a general surgeon and that the patient did not present with the classic symptoms of appendicitis.

Dr. Simpson confirmed that the defendant physicians did not cause the appendicitis, did not cause it to rupture, and did not cause the Appellant to undergo surgery. He also confirmed that the appropriate type of surgery was an exploratory laparotomy rather than laparoscopic surgery because of the type of symptoms presented. Significantly, on cross-examination, Dr. Simpson testified that medicine is not an exact science and that reasonable medical minds can come to different conclusions about a diagnosis and a course of treatment for a patient. He acknowledged that reaching a different conclusion is not negligence nor below the appropriate standard of care. Further, he acknowledged that in the past, he had been wrong in his initial assessment of a patient, had in fact seen patients with abdominal pain and not immediately operated, and had waited a day or two and operated to find a ruptured appendix. This process was, in his opinion, not negligence nor below the standard of care. Dr. Simpson also testified that in about 40 percent of the cases, the appendix is not located in the normal location and a patient may present with atypical symptoms. He confirmed that in this case, the patient’s symptoms were consistent with a variety of intra-abdominal problems.

Once the patient’s condition changed, a general surgeon was consulted. The general surgeon diagnosed the patient with “acute abdomen” for which the appropriate treatment was exploratory surgery to address the problem. Notably, the general surgeon did not diagnose the appendicitis until after the surgery had occurred. Reviewing this testimony as a whole does not establish that the diagnostic process followed by the Appellee physicians was in fact deficient in any way or failed to meet the appropriate standard of care. We overrule Appellant’s Issue One.

Appellant also asserts that he has presented evidence of causation of his injuries. As stated previously, there is no question that the physicians did not cause the appendicitis, the rupture, or the need for surgery. Appellant’s contention is only that the complications he suffered were caused by the physicians’ negligence. Dr. Simpson testified that he had no criticism of the way that the general surgeon had performed the surgery and that open surgery was appropriate. Further, he acknowledged that an operation on a non-ruptured appendix or a normal appendix may result in a wound infection and have complications though the rate is higher for a ruptured appendix. Significantly, he presented no evidence to support Appellant’s contention that the medical complications would not have occurred but for the actions of the Appellee physicians. To the contrary, the only evidence presented was that the type of complications that Appellant suffered may occur after removal of a non-ruptured appendix and that with an earlier consultation and surgery, Appellant “most likely would not have had a wound infection.”

Dr. Simpson’s testimony amounted to, at most, speculation that if the surgery had been performed earlier, Appellant might not have suffered from the complications of sepsis and wound infection. Speculation on the part of an expert does not create evidence of negligence or the violation of a standard of care. Dr. Simpson’s testimony is precisely the type of 20/20 hindsight analysis which does not provide a factual basis for evidence of negligence in the standard of care for the treatment of Appellant or any evidence of causation of Appellant’s injuries. Opinion testimony based upon conjecture or speculation lacks probative value and does not support a finding of medical malpractice. See Williams v. Gaines, 943 S.W.2d 185, 193 (Tex.App.-Amarillo 1997, writ denied). We overrule Issue Two.

Applying these settled principles of law to the facts of this case, it is clear that the trial court correctly granted the instructed verdict in favor of both physician defendants. We overrule both Appellant’s issues.

Having overruled Appellant’s issues on review, we affirm the judgment of the trial court.


source: Caselaw Access Project

author: RICHARD BARAJAS, Chief Justice.

license: Public Domain

text:
    Juan JIMENEZ, Luz Jimenez, Eduardo Jimenez, and Claudia Jimenez, Appellants, v. CITIFINANCIAL MORTGAGE COMPANY, INC., Appellee.
    No. 08-03-00511-CV.
    Court of Appeals of Texas, El Paso.
    July 14, 2005.

      John Whitaker, El Paso, for Appellants.
    Paul D. Pruitt, Irving, for Appellee.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the trial court’s granting of a no-evidence motion for summary judgment against Appellants. For the reasons stated herein, we affirm.

I.FACTUAL AND PROCEDURAL BACKGROUND

The substantive facts in this case are not disputed. The Appellants filed a lawsuit against certain defendants on August 9, 2000 related to disputes over certain real estate transactions related to property owned by Appellants. On April 4, 2002, Appellants filed an amended petition and joined other defendants and Appellee. The allegations in both petitions related to complaints of fraud and a lien filed on the property related to conduct of the various defendants. Appellee filed a general denial and, almost a year later, on September 30, 2003, filed a no-evidence motion for summary judgment as to all causes of action asserted against it. It also requested severance of the claims against it.

On October 27, 2003, the trial court entered an order granting the summary judgment in favor of Appellee and severed the claims against Appellee from the other claims pending against other defendants. Appellants timely filed a notice of appeal.

The record does not contain a copy of Appellants’ response to the motion for summary judgment, if any was filed. The trial court entered an order granting Ap-pellee’s motion for summary judgment not stating the grounds upon which the motion was granted. Appellants appeal asserting two issues on appeal.

II.ISSUES ON APPEAL

In two issues, Appellants challenge the court’s granting of the Appellee’s motion for summary judgment. The issues question whether the granting of the motion for summary judgment in favor of Appellee was proper and whether the severance should have been granted. Issue Nos. One and Two challenge the trial court’s order granting Appellee’s motion for summary judgment. We construe Appellants’ argument as addressing the question of whether a lien should exist on the property in question. We further note that Appellants have wholly failed to cite any legal authority or make any references to the record before us. While the argument is presented in narrative fashion, no assertions are made as to specific error of the trial court. Nonetheless, we construe Appellants’ arguments on review as a complaint that there is more than a scintilla of evidence to support a cause of action against the Appellee for the alleged claims of Appellants related to their property dispute, as a matter of law.

III.STANDARD OF REVIEW

Under the “no-evidence summary judgment” rule, the movant may move for summary judgment if, after adequate time for discovery, there is no evidence of one or more essential elements of a claim or defense on which the nonmovant would have the burden of proof at trial. See Tex.R. Civ. P. 166a(i). The motion must state the elements as to which there is no evidence and the reviewing court must grant the motion unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact. See id. Under the no-evidence summary judgment standard, the party with the burden of proof at trial will have the same burden of proof in a summary judgment proceeding. See, e.g., Esco Oil & Gas, Inc. v. Sooner Pipe & Supply Corp., 962 S.W.2d 193, 197 n. 3 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) (commenting that under Rule 166a(i) “the plaintiff as the nonmovant [has] the burden to raise a triable issue on each element essential to the plaintiffs case against each defendant”).

A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Marsaglia v. University of Texas, El Paso, 22 S.W.3d 1, 3-4 (Tex.App.-El Paso 1999, pet. denied); see also Hon. David Hittner & Lynne Liberato, Summary Judgments in Texas, 34 Hous. L.Rev. 1303, 1356 (1998). A no-evidence summary judgment is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant’s claim on which the nonmovant would have the burden of proof at trial. See Tex.R. Civ. P. 166a(i); Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998). If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Havner, 953 S.W.2d at 711. Less than a scintilla of evidence exists when the evidence is “so weak as to do no more than create a mere surmise or suspicion” of a fact, and the legal effect is that there is no evidence. Kindred v. Con/ Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

In the ease before us, Appellants filed a petition complaining of the conduct of various defendants related to a real estate transaction involving property owned by Appellants. After almost a year, Appellee filed a no-evidence motion for summary judgment negating all the essential elements of Appellants’ claims and refuting the allegations raised in Appellants’ second amended petition. Appellants did not file a response to the motion nor was there any summary judgment evidence filed to controvert the “no-evidence” motion for summary judgment filed by Appellee. In light of the pleadings on file and the record before us, we hold that under Texas Rule of Civil Procedure 166a(i), Appellants have faded to meet their burden to defeat Appellee’s “no-evidence” motion for summary judgment. In this case, Appellants, the nonmovants below, presented no evidence of any cause of action which could be asserted against Ap-pellee in response to the motion filed.

We also observe that both issues are minimally briefed and do not properly preserve error for review by this Court. When a trial court’s summary judgment rests upon more than one independent ground, as the judgment does here, the aggrieved party must assign error to each ground or the judgment will be affirmed on any ground not complained of. Nabors Corporate Services, Inc. v. Northfield Ins. Co., 132 S.W.3d 90, 95 (Tex.App.-Houston [14th Dist.] 2004, no pet.); Williamson v. State Farm Lloyds, 76 S.W.3d 64, 67 (Tex.App.-Houston [14th Dist.] 2002, no pet.). Appellants’ issues do not direct this Court’s attention to any specific error on which they base their complaint. See Tex. R.App. P. 38.1(e). A complaint on appeal must address specific errors and not merely attack the trial court’s order in general terms. McGuire v. McGuire, 4 S.W.3d 382, 385 (Tex.App.-Houston [1st Dist.] 1999, no pet.); Hollifield v. Hollifield, 925 S.W.2d 153, 155 (Tex.App.-Austin 1996, no writ).

Because Appellants did not file a response to Appellee’s no-evidence motion for summary judgment, Appellants did not raise any challenges to the motion for summary judgment and therefore may not raise any on appeal. Tex.R. Civ. P. 166a. Issue No. One is thus waived for inadequate briefing. See Tex.R.App. P. 38.1(h); Stephens v. Dolcefino, 126 S.W.3d 120, 125-26 (Tex.App.-Houston [1st Dist.] 2003, pet. filed); Franz v. Katy Indep. Sch. Dist., 35 S.W.3d 749, 755 (Tex.App.-Houston [1st Dist.] 2000, no pet.).

The brief “must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief.” Tex.R.App. P. 38.1(g). Rule 38 requires Appellants to provide us with such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue. See Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex.App.-Houston [1st Dist.] 2002, pet. denied); Franklin v. Enserch, Inc., 961 S.W.2d 704, 711 (Tex.App.-Amarillo 1998, no pet.). This is not done by merely uttering brief conclusory statements, unsupported by legal citations. Tesoro Petroleum Corp., 106 S.W.3d at 128. By presenting such attenuated, unsupported argument, Appellants waive their complaints. We overrule Appellants’ Issue No. One.

Similarly, Issue No. Two appears to complain of the trial court’s granting of severance of the claims against Appellee. Like Issue No. One, Issue No. Two is inadequately briefed and the purported challenge was not raised in any response to Appellee’s motion below. Appellants did not establish any basis for reversal of the trial court’s decision in their brief and in fact do not address the issue of severance other than mere mention of the word in one indecipherable sentence. In sum, the argument presented by Appellants is nonsensical. We overrule Issue No. Two.

Having overruled each of Appellants’ issues on review, we affirm the judgment of the trial court.


text:
    Angelique GAXIOLA, Appellant, v. Cesar GARCIA, Appellee.
    No. 08-04-00052-CV.
    Court of Appeals of Texas, El Paso.
    July 14, 2005.

      Karen A. Pelletier, Attorney At Law, El Paso, for Appellant.
    Cesar Garcia, El Paso, for Appellee.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the trial court’s order reducing child support payments of the Appellee. For the reasons stated herein, we affirm the trial court’s order.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellee is the father of the minor child triggering the obligation and was required to pay $475 per month in child support to Appellant on behalf of the child, pursuant to a temporary order filed on July 25, 2003. On August 27, 2003, Appellee filed a motion to modify the temporary orders on the basis that he had moved back to El Paso, Texas from Phoenix, Arizona and was earning less money. On October 29, 2003, a hearing was held and thereafter, on February 9, 2004, the trial court entered an order establishing a reduced child support obligation of $343.50. The order reflects that the trial court pronounced judgment in this proceeding on November 1, 2003, the order was signed on February 9, 2004 and was filed on February 12, 2004. Appellant, the mother of the child, filed a Notice of Appeal complaining of the trial court’s order. Appellant filed a request that the trial court issue findings of fact and conclusions of law. Significantly, no notice of past due findings of fact or conclusions of law was filed.

Appellant appeals raising two issues.

II. ISSUES ON APPEAL

In two issues, Appellant challenges the court’s entry of the order reducing the monthly child support obligation of Appel-lee. In Issue One, Appellant complains that the trial court abused its discretion by reducing the monthly child support obligation because the obligor has evaded his support obligation because of voluntary underemployment. Issue Two complains that the trial court does not have discretion to reduce the child support by the amount reflected in the order and that the order must be supported by evidence in the record. We read these issues collectively as a challenge to the trial court’s implied findings of fact and conclusions of law that there is sufficient evidence to find that Appellee is not willfully underemployed for the purpose of evading his support obligations and that the trial court’s order of the amount of $343.50 is supported by the evidence, as a matter of law. Stated in the alternative, we read Appellant’s complaints as a challenge that there is no or insufficient evidence to support the trial court’s decision reducing the child support obligation and the decision was an abuse of discretion.

III. STANDARD OF REVIEW

We agree with Appellant that the appropriate standard of review in assessing the action of the trial court when awarding child support is an abuse of discretion. In Interest of Striegler, 915 S.W.2d 629, 637 (Tex.App.-Amarillo 1996, writ denied); Stocker v. Magera, 807 S.W.2d 753, 754 (Tex.App.-Texarkana 1990, writ denied), citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982). In deciding whether a trial court has abused its discretion, we must determine whether the court acted without reference to any guiding rules and principles, i.e., arbitrarily or unreasonably. In making that determination, we must bear in mind that the mere fact that a trial judge may decide a matter within his discretion in a manner different than an appellate judge does not demonstrate that the trial judge abused his discretion. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986); In Interest of Striegler, 915 S.W.2d at 637.

The Appellant first complains that the trial court abused its discretion by lowering the amount of monthly child support payments on the grounds that Appellee is intentionally underemployed and the amount of payment ordered is not supported by the evidence in compliance with the statutory requirements. We note that Appellant filed a request for findings of fact and conclusions of law under Rule 296 of the Texas Rules of Civil Procedure, and Appellant did not provide a notice of past due findings as required by the Rules of Civil Procedure.

The losing party is required to bring the trial court’s failure to the attention of the trial court. Texas Rule of Civil Procedure 297 provides, in part, the following:

If the court fails to file timely findings of fact and conclusions of law, the party making the request shall, within thirty days after filing the original request, file with the clerk and serve on all other parties in accordance with Rule 21a a “Notice of Past Due Findings of Fact and Conclusions of Law” which shall be immediately called to the attention of the court by the clerk. Such notice shall state the date the original request was filed and the date the findings and conclusions were due.

Tex.R. Civ. P. 297.

The failure to file a notice of past due findings of fact waives the right to complain about the trial court’s failure to file findings of fact and conclusions of law. See Curtis v. Commission for Lawyer Discipline, 20 S.W.3d 227, 232 (Tex.App.-Houston [14th Dist.] 2000, no pet.); Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 255 (Tex.1984). No such notice appears in the record of this case. Because they did not file the notice required by Rule 297 of the Texas Rules of Civil Procedure, we hold that Appellant has waived her right to complain about the trial court’s failure to file the findings of fact and conclusions of law. Curtis, 20 S.W.3d at 232; see also Tex.R. Civ. P. 297.

It would have been helpful for the court to have articulated its findings of fact and conclusions of law but because no findings of fact or conclusions of law were filed in this case, we will presume that the trial court found all necessary facts to support the judgment. See Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 252 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). We may review any implied findings for sufficiency of the evidence. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002).

We also note that Appellant did not file a request for findings in compliance with Section 154.130 of the Texas Family Code. An appellant seeking to challenge the child support order entered by a trial court judge should request findings allowed under the Family Code. Section 154.130 provides:

§ 154.130. Findings in Child Support Order

(a) Without regard to Rules 296 through 299, Texas Rules of Civil Procedure, in rendering an order of child support, the court shall make the findings required by Subsection (b) if:
(1) a party files a written request with the court not later than 10 days after the date of the hearing;
(2) a party makes an oral request in open court during the hearing; or
(3) the amount of child support ordered by the court varies from the amount computed by applying the percentage guidelines.
(b) If findings are required by this section, the court shall state whether the application of the guidelines would be unjust or inappropriate and shall state the following in the child support order:
“(1) the monthly net resources of the obligor per month are $;
“(2) the monthly net resources of the obligee per month are $;
“(3) the percentage applied to the ob-ligor’s net resources for child support by the actual order rendered by the court is %;
“(4) the amount of child support if the percentage guidelines are applied to the first $6,000 of the obligor’s net resources is $;
“(5) if applicable, the specific reasons that the amount of child support per month ordered by the court varies from the amount stated in Subdivision
(4)are: ; and
“(6) if applicable, the obligor is obligated to support children in more than one household, and:
“(A) the number of children before the court is;
“(B) the number of children not before the court residing in the same household with the obligor is; and “(C) the number of children not before the court for whom the obligor is obligated by a court order to pay support, without regard to whether the obligor is delinquent in child support payments, and who are not counted under Paragraph (A) or (B) is.”
(c)The application of the guidelines under Section 154.129 does not constitute a variance from the child support guidelines requiring specific findings by the court under this section.

Tex. Fam.Code Ann. § 154.130 (Vernon 2002).

By its terms, the statute requires the trial court provide findings upon request in contested hearings in which “the amount of the support is set or modified by the court.” In this case, Appellant did not file a written request or make an oral request during the proceeding. See In Interest of Striegler, 915 S.W.2d at 634-36.

Further, the record affirmatively shows that the trial court’s failure to make findings of fact and conclusions of law does not prevent Appellant from making a proper presentation of her case to the appellate court. Even assuming that the request had been properly made for findings of fact and conclusions of law, any error under this record is harmless. Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117 (1944); Stubbs v. Stubbs, 715 S.W.2d 373, 374-75 (Tex.App.-Houston [1st Dist.] 1986, no writ). Further, after review of the appellate record, we determine that there is ample evidence to support the trial court’s implied findings and its implied findings are not against the great weight and preponderance of the evidence.

Appellant complains about the specific amount of the order because the trial court entered an order that reduced Appellee’s child support obligation by only a small fraction. Her argument implies that the trial court is limited to finding only that Appellee was deliberately underemployed and, therefore, the child support obligation must not be reduced, or, that the trial court must reduce the obligation to the statutory 20 percent of the obligor’s net resources. See Tex. Fam.Code Ann. § 154.125 (Vernon 2002). We disagree. Appellant does not consider the discretion provided to the trial court in determining the appropriate amount of child support obligation in evaluating the net resources of the obligor and the other factors which may be considered by the court. See Tex. Fam.Code Ann. § 154.062 and § 154.123 (Vernon 2002). Here, considering that we must presume that the trial court made findings of fact and conclusions of law in support of its order, we find there is ample evidence to support the implied findings.

The record provides no evidence of intentional underemployment on the part of Appellee. The only evidence presented is the factually specific evidence that Appellee moved back to El Paso from Phoenix, is now employed and is currently earning $7 per hour. Nothing in the record suggests that the reason that Appellee is employed in a position earning less money is for the purpose of evading his child support obligation. That is a critical factor which the trial court impliedly did not find to exist. Appellant argues that the finding must be related to the simplistic mathematical determination of 20 percent of the obligor’s net monthly resources or is not supported by the evidence in the record. Paradoxically, Appellant appears to be arguing that the trial court may only order payment of Appellee’s child support obligation based upon the statutory 20 percent of the $14 per hour wage rate or the $7 per hour wage rate. Clearly, the evidence is undisputed that Appellee no longer is earning $14 per hour. In light of our determination that the record establishes no evidence of deliberate underemployment by Appellee, we do not see how Appellant has been harmed by the trial court’s order of a child support payment which, by Appellant’s calculations, is warranted by an hourly wage of approximately $12 per hom*. It is counterintuitive to believe that Appellant is arguing that the trial court may only order a payment based upon either the $14 or $7 figure with no option to order any amount in between.

When establishing an obligation, the trial court may consider factors such as the fact that Appellee has been furnished an automobile, housing, and other benefits by other people. See Tex. Fam.Code Ann. § 154.123(b)(10) (Vernon 2002). Again, because no findings are included in the record, we presume that the trial court considered such evidence in determining the appropriate obligation to be assessed against Appellee. The only evidence presented reflects that Appellee has returned to El Paso, is employed working a 40-hour work week, resides with his girlfriend at her brother’s home, drives his girlfriend’s car, and is attempting to save money to buy a home. Nothing in the record suggests that Appellee has deliberately or intentionally sought out employment earning less money for the reason of evading his child support obligations. We note that if Appellee’s station in life improves in the future, Appellant may apply for an adjustment of the support obligation.

In order for a court to find that a parent is intentionally underemployed or unemployed under Section 154.066, there must be evidence the parent reduced his income for the purpose of decreasing his child support payments. In re P.J.H., 25 S.W.3d 402, 405-06 (Tex.App.-Fort Worth 2000, no pet.); see DuBois v. DuBois, 956 S.W.2d 607, 610 (Tex.App.-Tyler 1997, no pet.). There is no presumption that simply because a parent is no longer as lucratively employed as he was during his marriage, he is intentionally underemployed or unemployed. In re P.J.H., 25 S.W.3d at 406; see DuBois, 956 S.W.2d at 610. The requisite intent or lack thereof, however, may be inferred from such circumstances as the parent’s business reversals, business background, and earning potential. In re P.J.H., 25 S.W.3d at 406; see DuBois, 956 S.W.2d at 610, citing Kish v. Kole, 874 S.W.2d 835, 839 (Tex.App.-Beaumont 1994, no writ). At the same time, we must keep in mind a parent’s right to pursue his or her own happiness. In re P.J.H., 25 S.W.3d at 406; see DuBois, 956 S.W.2d at 610.

We note that Appellee does not complain of the trial court’s order in this case. As Appellant argued, the amount awarded by the trial court correlates to an award based upon a pay scale of approximately $12 per hour, well above the $7 currently being earned by Appellee. Because Appellant presented no evidence that Appel-lee’s decision to return to El Paso and accept alternative employment was a sham for his intention to avoid his child support obligations, we overrule both Appellant’s issues and find the trial court did not abuse its discretion.

Having overruled Appellant’s issues, we affirm the order of the trial court.


text:
    Israel VELASQUEZ, Appellant, v. WASTE CONNECTIONS, INC., a/k/a Waste Connections of Texas L.L.C., El Paso Disposal, a/k/a El Paso Disposal, L.P., and Camino Real Environmental, a/k/a Camino Real Environmental Research Center, Inc., and Ray Lesh, Appellees.
    No. 08-04-00075-CV.
    Court of Appeals of Texas, El Paso.
    July 14, 2005.

      Israel Velasquez, El Paso, pro se.
    R. Glenn Davis, Scott & Hulse, El Paso, for Appellees.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from a summary judgment granted in favor of Appellees in a lawsuit filed by Appellant alleging wrongful termination on the basis of national origin as a result of his termination from employment with one Appellee, El Paso Disposal, L.P. The trial court originally granted summary judgment in favor of Appellees Waste Connections, Inc., El Paso Disposal, L.P., and Ray Lesh based on traditional motions for summary judgment filed by those Appellees. The trial court also granted summary judgment in favor of Appellee Camino Real Environmental Center, Inc. based upon its “no-evidence” motion for summary judgment. Appellant appeals in five issues challenging the court’s granting of the summary judgments. For the reasons stated, we affirm.

I. SUMMARY OF THE EVIDENCE

Appellee El Paso Disposal, L.P. is a company engaged in the trash collection and disposal business. Incidental to its business operations, El Paso Disposal maintains its own fleet of vehicles. The company was purchased by Waste Connections, Inc. in September of 1999 and has been a subsidiary of that company since that time.

Appellant was first employed by El Paso Disposal, L.P. in approximately 1973 as a truck driver. He held various positions within the company eventually becoming a supervisor. During the year 2000, Appellant was in a supervisory position that was responsible for keeping trash compactors clean.

Following the acquisition of the business by Waste Connections, Inc., management personnel changed at El Paso Disposal. Specifically, El Paso Disposal hired Appel-lee Ray Lesh as the fleet maintenance manager responsible for overseeing the maintenance departments in El Paso, Texas, and Las Cruces, and Alamogordo, New Mexico. As a part of his reorganization of the department, Lesh implemented some changes in the job responsibilities of various individuals including Velasquez. Although Velasquez’s job responsibilities were changed, he was named the El Paso night supervisor. After a short time in the new position, Lesh began to have some concerns about Velasquez’s job performance. Initially, Lesh implemented informal counseling sessions to address his concerns and then progressed to written counseling sessions and warnings. In March of 2001, as a result of some further problems, Velasquez was transferred to a different position as a truck driver. The employees who replaced Velasquez were of the same national origin as Velasquez. As a result of his transfer to a truck driver position, Velasquez received a reduction in pay. Because of the pay differential, Velasquez requested a transfer to the maintenance department and the transfer was approved. Velasquez was to be paid a salary commensurate with that of other maintenance mechanics.

Velasquez began to have problems with his work as a maintenance mechanic. He made several errors which created problems with the vehicles he was responsible for repairing. Ultimately, he was responsible for an incident that involved leaving a sample tube in a vehicle which resulted in some significant damage to a vehicle. As a result of this incident, Velasquez was terminated.

Velasquez filed his original petition suing the various Appellees and contending that he had been wrongfully discharged and discriminated against by the creation of a hostile work environment in violation of the Texas Labor Code Section 21.051 on the basis of national origin or race because Velasquez is a Mexican-Ameriean. He also contends that all the defendants have committed the tort of intentional infliction of emotional distress. In his original petition, he admits to suing the three entity defendants because he was not familiar with the correct name of the entity by which he was employed. His complaints of discrimination and hostile work environment relate to the fact that he was demoted and ultimately terminated by Ray Lesh, one of his supervisors and that Ray Lesh regularly used ethnically based derogatory comments directed towards him and in his presence.

Waste Connections and El Paso Disposal filed a motion for summary judgment alleging both traditional and “no-evidence” grounds, specifically contending that Velasquez was not subject to harassment based upon his national origin, there were legitimate, non-discriminatory reasons for his termination, the conduct complained of does not rise to the level of extreme or outrageous conduct to support a cause of action of intentional infliction of emotional distress and, as a matter of law, there is no evidence that Velasquez suffered from emotional distress. Camino Real Environmental Center, Inc. filed a “no-evidence” motion for summary judgment on the grounds that there is no evidence that it was an employer of Velasquez.

Ray Lesh filed a traditional motion for summary judgment on the grounds that under the TCHRA, there is no basis for a cause of action against him individually, and further, the conduct about which Velasquez complains is not so outrageous as to support a cause of action for the intentional infliction of emotional distress, as a matter of law.

The trial court granted the motions for summary judgment as to all Appellees without specifying the grounds. After the motions were granted, Appellant’s most recent attorney filed a motion for new trial on December 30, 2003. Appellant appeared to be unhappy with the representation provided by his most recent attorney, so he filed an additional motion for new trial on January 6, 2004.

The trial court held a hearing on Appellant’s motion for new trial and Appellant appeared pro se. The trial court denied the motion and Appellant filed his notice of appeal. Appellant challenges the granting of the summary judgments in five issues.

II. DISCUSSION

A. Issues on Appeal

Preliminarily, we note that Appellant has filed his brief asserting five general points of error which do not differentiate between the various Appellees. Specifically, Issue Nos. One and Five complain of the granting of the summary judgments for the reason that there is “more than a scintilla of evidence to prove the case in plaintiffs favor,” and “[t]he court erred in granting summary judgment because court [sic] did not take into account the various discrepancies presented by the defense.” We read these as a legal and factual sufficiency of the evidence challenge, though Appellant’s issues on appeal only contain general language and do not complain of the specific error to be addressed on appeal.

Issue Nos. Two, Three, and Four complain of certain evidence that was included as attachments to the motions for summary judgment and that “Defendant’s [sic] failed to concretely prove the Plaintiff performed PM task [sic] that he was terminated for.”

B. Camino Real Environmental Center, Inc.

Preliminarily, we note that while Appellant appears to be complaining of the granting of the “no-evidence” motion for summary judgment in favor of Camino Real Environmental Center, Inc., his compliant is limited to the wording of the judgment which reflects that no response was filed to the Camino Real motion. He contends that no response was filed “due to a previous made agreement about this entity.” He does not appear to complain about the granting of the motion nor does he suggest that there is any evidence in the record to establish that the motion was improperly granted, his complaint appears to be related solely to the wording of the judgment in its failure to reflect that the non-response was due to an agreement among the parties. He does not complain about the granting of the summary judgment and presents no argument that Cam-ino Real should remain as a party to this lawsuit. We affirm the granting of the no-evidence motion for summary judgment in favor of Camino Real Environmental Research Center, Inc.

C. Waiver

In Issue Nos. Two, Three, and Four, Appellant argues that the trial court erred in granting the summary judgments because of his belief that the evidence considered was hearsay. Before we reach the merits of his challenge, however, we note that Appellant has only cited two cases in the body of his argument. The first case contains a nonsensical cite in support of his position and we were unable to review the case to determine its relevance. The other case cited does not address the admissibility of evidence during a summary judgment proceeding and is therefore, not relevant either. His argument on appeal consists of several pages of references to exhibits attached to his brief in support of a series of factual allegations that, in essence, is Velasquez’s attempt to present his opinion testimony to this Court. Velasquez submits as argument his own testimony about why the factual documentation attached to the motions was falsified. Further, the record does not reflect any objections to the evidence as submitted. A party objecting to the competency of summary judgment proof must obtain a ruling on its objection or obtain a written order signed by the trial judge and entered of record, or the objection is waived and the proof remains a part of the summary judgment record. Rogers v. Continental Airlines, Inc., 41 S.W.3d 196, 200 (Tex.App.-Houston [14th Dist.] 2001, no pet.); Castillo v. Tropical Texas Center for Mental Health and Mental Retardation, 962 S.W.2d 622, 625 (Tex.App.-Corpus Christi 1997, no writ); Bauer v. Jasso, 946 S.W.2d 552, 556 (Tex.App.-Corpus Christi 1997, no writ); Roberts v. Friendswood Development Co., 886 S.W.2d 363, 365 (Tex.App.-Houston [1st Dist.] 1994, writ denied). Because Velasquez’s argument does not contain a single reference to a relevant case or legal principle, the issues are not adequately briefed and are considered waived. Tex.R.App. P. 38.1(h). Further, Velasquez has waived his complaint regarding the admissibility of any of the summary judgment evidence for his failure to object, therefore, we overrule his contentions in Issue Nos. Two, Three, and Four.

D. Summary Judgment Standard of Review

Issue Nos. One and Five complain that the court erred in granting Appellees’ motions for summary judgment. The standard of review on appeal of a traditional motion for summary judgement is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that a judgment should be granted as a matter of law. See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); Cortez v. Liberty Mut. Fire Ins. Co., 885 S.W.2d 466, 469 (Tex.App.-El Paso 1994, writ denied). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant’s cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant’s cause or claim. See Gibbs v. General Motors, 450 S.W.2d 827, 828 (Tex.1970).

In resolving the issue of whether the movant has carried this burden, all evidence favorable to the nonmovant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the nonmovant’s favor. See Nixon, 690 S.W.2d at 548-49; DeLuna v. Guynes Printing Co., 884 S.W.2d 206, 208 (Tex.App.-El Paso 1994, writ denied). Where the defendants are the movants and they submit summary evidence disproving at least one essential element of each of plaintiffs causes of action, then summary judgment should be granted. See Perez, 819 S.W.2d at 471; Bradley v. Quality Serv. Tank Lines, 659 S.W.2d 33, 34 (Tex.1983); Cortez, 885 S.W.2d at 469. Furthermore, when a trial court’s order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. See State Farm Fire & Gas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); Rogers v. Ricane Enter. Inc., 772 S.W.2d 76, 79 (Tex.1989).

Under the “no-evidence summary judgment” rule, the movant may move for summary judgment if, after adequate time for discovery, there is no evidence of one or more essential elements of a claim or defense on which the nonmovant would have the burden of proof at trial. Tex.R. Civ. P. 166a(i). The motion must state the elements as to which there is no evidence. Id. The reviewing court must grant the motion unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact. Id. Under the no-evidence summary judgment standard, the party with the burden of proof at trial will have the same burden of proof in a summary judgment proceeding. See, e.g., Esco Oil & Gas, Inc. v. Sooner Pipe & Supply Corp., 962 S.W.2d 193, 197 n. 3 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) (commenting that under Rule 166a(i) “the plaintiff as the nonmovant [has] the burden to raise a triable issue on each element essential to the plaintiffs case against each defendant”).

The San Antonio Court of Appeals states the applicable standard of review for no-evidence summary judgments as follows: “ ‘A no-evidence summary judgment is essentially a pretrial directed verdict,’ and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict.” Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied); see also Hon. David Hittner & Lynne Liberato, Summary Judgments in Texas, 34 Hous. L.Rev. 1303, 1356 (1998) (no-evidence summary judgment is essentially pretrial directed verdict).

A no-evidence summary judgment is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant’s claim on which the non-movant would have the burden of proof at trial. See Tex.R. Civ. P. 166a(i); Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998). If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. See Havner, 953 S.W.2d at 711. Less than a scintilla of evidence exists when the evidence is “so weak as to do no more than create a mere surmise or suspicion” of a fact, and the legal effect is that there is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

Appellees filed a motion for summary judgment against all the causes of action asserted by the plaintiff alleging traditional grounds based on the defense that there was a legitimate non-discriminatory and non-retaliatory reason for each employment action about which Velasquez complains as well as “no evidence” of discrimination or harassment based upon Velasquez’s ethnicity, Velasquez was terminated for legitimate non-discriminatory reasons, and there was no evidence of conduct that rises to the level of intentional infliction of emotional distress nor is there any evidence that Velasquez suffered extreme distress. As discussed previously, Camino Real filed a “no-evidence” motion for summary judgment under Texas Rules of Civil Procedure Rule 166a(i). The trial court granted the motions without specifying the grounds.

We note for the record that Appellant filed lengthy responses to the motions for summary judgment filed by Waste Connections, El Paso Disposal, and Ray Lesh. Though lengthy, each response consists of a recitation of the facts as alleged by Velasquez with broad references to attached exhibits and deposition excerpts as proof that there are genuine issues of material fact without further explanation or argument. The response also contains a general description of the case law governing the standards for a motion for summary judgment and general case law regarding the tort of intentional infliction of emotional distress and employment discrimination. Reading the responses, however, does not provide this Court with a clear indication about the evidence upon which Velasquez is intending to rely in support of his contention that more than a scintilla of evidence exists to support a finding of discrimination. Broad concluso-ry statements are not valid summary judgment evidence. See Heiser v. Eckerd Corp., 983 S.W.2d 313, 316 (Tex.App.-Fort Worth 1998, no pet.). Again, his responses are nothing more than mere speculation and do not rise to the level of more than a scintilla of evidence.

In sum, Appellant’s responses are essentially a pronouncement that the accumulated documents establish that there are genuine issues of material fact and, therefore, Appellees’ motions for summary judgment should be denied. In fact, a review of the summary judgment evidence establishes that the evidence provided “is so weak as to do no more than create a mere surmise or suspicion” of a fact, and the legal effect is that there is no evidence. See Kindred, 650 S.W.2d at 63.

Turning to Appellant’s argument on appeal, we agree with Appellees that the issues presented are not adequately briefed or argued. Appellant argues Issue No. One by referring to a series of documents attached as exhibits to his brief, many of which are incomplete and many of which were not attached to his response below, to attempt to argue that a fact issue precluding summary judgment exists. He does not present a coherent argument that explains why the evidence is relevant. In fact, the majority of his response is devoted to his contention that most of the documentary evidence included in this case is falsified or has been created to create false allegations against him. He does not address the legal issue of whether he has presented evidence to create a fact question on whether he was wrongfully terminated on the basis of ethnicity. Similarly, he does not present any case law on the issues of workplace discrimination or the tort of intentional infliction of emotional distress. The issue is minimally briefed and it does not properly preserve error for review by this Court. When a trial court’s summary judgment rests upon more than one independent ground, as the judgment does here, the aggrieved party must assign error to each ground or the judgment will be affirmed on any ground not complained of. Nabors Corporate Services, Inc. v. Northfield Ins. Co., 132 S.W.3d 90, 95 (Tex.App.-Houston [14th Dist.] 2004, no pet.); Williamson v. State Farm Lloyds, 76 S.W.3d 64, 67 (Tex.App.-Houston [14th Dist.] 2002, no pet.). Appellant’s issues do not direct this Court’s attention to any specific error on which he bases his complaint. See Tex.R.App. P. 38.1(e). A complaint on appeal must address specific errors and not merely attack the trial court’s order in general terms. McGuire v. McGuire, 4 S.W.3d 382, 385 (Tex.App.Houston [1st Dist.] 1999, no pet.); Hollifield v. Hollifield, 925 S.W.2d 153, 155 (Tex.App.-Austin 1996, no writ).

Similarly, Appellant’s Issue No. Five is not adequately briefed or argued. His argument consists of a two-page recitation of his opinion about how the evidence presented in the case is contradictory. His argument is unclear and does not present any legal principles in support of his contention that the motions for summary judgment were improperly granted. Included in this issue is the gratuitous comment that he was willing to mediate his case but was not informed of the opportunity by his attorneys. We also note he cites no legal authority in support of this issue. The brief “must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief.” Tex.R.App. P. 38.1(g). Rule 38 requires Appellant to provide us with such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue. See Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex.App.-Houston [1st Dist.] 2002, pet. denied); Franklin v. Enserch, Inc., 961 S.W.2d 704, 711 (Tex.App.-Amarillo 1998, no pet.). This is not done by merely uttering brief conclusory statements, unsupported by legal citations. Tesoro Petroleum Corp., 106 S.W.3d at 128. By presenting such attenuated, unsupported argument, Appellant waives his complaints. We hold Issue No. Five is inadequately briefed and is, therefore, waived. For the reasons stated, we affirm the trial court’s ruling and overrule Appellant’s Issue Nos. One and Five.

Having overruled each of Appellant’s issues on review, we affirm the judgment of the trial court.


author: Opinion by Chief Justice MORRISS.

text:
    Robert Doyle JEFFERY, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00098-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted May 30, 2005.
    Decided July 15, 2005.

      Eddie Northcutt, Sulphur Springs, for appellant.
    Christopher Parker, Asst. Dist. Atty., Sulphur Springs, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Chief Justice MORRISS.

Based on a prior “controlled buy” of crack cocaine by a covert witness from Robert Doyle Jeffrey, the Delta County Sheriffs Office obtained a search warrant to search Jeffrey’s residence for controlled substances. In executing the warrant, the deputies knocked three times on the front door, announced their presence and their intent to execute the warrant, immediately heard someone running inside the residence, and entered the residence after waiting approximately five seconds. Inside Jeffrey’s bedroom, the deputies discovered several rocks of crack cocaine in a pill bottle, a crack pipe, an electronic scale, a balance beam scale, and a ledger listing names and figures. After a jury trial and a conviction on charges of possession of a controlled substance with intent to deliver, Jeffrey was sentenced to thirty years’ imprisonment.

There are two major issues raised on appeal: whether the short delay between deputies’ “knock and announce” at the residence and the deputies’ entrance into the residence was justified in light of the constitutional “knock and announce” requirement, and whether the State introduced insufficient evidence to corroborate the testimony of the covert witness. We affirm because we hold (1) the trial court did not abuse its discretion in denying the motion to suppress based on the alleged failure to “knock and announce” properly, and (2) the State introduced evidence to sufficiently corroborate the covert witness.

(1) The Trial Court Did Not Err in Denying the Motion To Suppress

Jeffrey argues, in his first point of error, that the State failed to establish that, when deputies executed the search warrant, they satisfied the “knock and announce” requirement. Jeffrey contends the approximately five second delay, between when the deputies knocked on the door and announced their presence and when the deputies entered the residence, is insufficient to satisfy the “knock and announce” requirement. Jeffrey also argues the State failed to prove an exception to the “knock and announce” requirement. We disagree.

A trial court’s decision to grant or deny a motion to suppress is reviewed under an abuse of discretion standard. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.2002); Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). The general rule is that an appellate court should afford almost total deference to a trial court’s determination of the historical facts supported by the record, especially when the trial court’s fact findings are based on an evaluation of credibility and demeanor. Villarreal, 935 S.W.2d at 138. At a suppression hearing, the trial court is the exclusive trier of fact and judge of the credibility of the witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We are also to afford such deference to a trial court’s ruling on “application of law to fact questions,” also known as “mixed questions of law and fact,” if the resolution of those questions turns on an evaluation of credibility and demeanor. Villarreal, 935 S.W.2d at 138. We review de novo those questions not turning on credibility and demeanor. Id.

Both the Fourth Amendment to the United States Constitution and Article 1, Section 9 of the Texas Constitution guarantee the right of the people to be secure against unreasonable searches of their persons, houses, papers, and effects. U.S. Const. amend. IV; Tex. Const. art. I, § 9. Under certain circumstances, the failure of police to knock and announce their presence and purpose before executing a search warrant may make the search unreasonable. Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). Police may dispense with the “knock and announce” requirement if they “have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or ... would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997). Even if a warrant does not expressly authorize a “no-knock” entry, police may enter without an announcement if circumstances support a reasonable suspicion of exigency. Id. at 392-94, 117 S.Ct. 1416.

We agree with the Eastland Court of Appeals that a short delay between the announcement and the forced entry does not make the search unreasonable as a matter of law. See Stokes v. State, 978 S.W.2d 674, 676 (Tex.App.-Eastland 1998, pet. ref'd) (“two second” delay between the announcement and the forced entry does not make the search unreasonable “as a matter of law”)- The United States Supreme Court, rejecting “bright-line” time guidelines for how long a police officer must wait before forcible entry, has held that the same criteria for dispensing with a knock and announcement “bear on when the officers can legitimately enter after knocking.” United States v. Banks, 540 U.S. 31, 35, 124 S.Ct. 521, 157 L.Ed.2d 343 (2003); see Flores v. State, — S.W.3d -,-, No. 01-03-00910-CR, 2005 WL 20532, *3 n. 5, 2005 Tex.App. LEXIS 68, at *9 n. 5 (Tex.App.-Houston [1st Dist.] Jan. 6, 2005, no pet.) (not designated for publication). In Banks, the United States Supreme Court found that entry was reasonable fifteen to twenty seconds after the announcement because the officers could reasonably expect destruction of the evidence if they delayed longer. Banks, 540 U.S. at 40, 124 S.Ct. 521. The United States Supreme Court held that the exigency had matured after fifteen to twenty seconds and entry was reasonable. Id. Therefore, if a reasonable suspicion of exigency had matured by the time the deputies entered Jeffrey’s residence, the entry was not unreasonable.

The burden of proof is on the State to justify dispensing with the “knock and announce” requirement by showing exigent circumstances. Ballard, 104 S.W.3d at 376. We evaluate whether the execution of a warrant was reasonable on a case-by-case basis and consider the “totality of the circumstances.” Banks, 540 U.S. at 35-36, 124 S.Ct. 521. The reasonableness of the forced entry is judged by the facts known to the officer at the time of entry. Id. at 39, 124 S.Ct. 521 (citing Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). The mere assumption that those in possession of controlled substances are normally also in possession of firearms is insufficient as a matter of law to reheve the authorities of their historical duty to knock and announce their presence. Price v. State, 93 S.W.3d 358, 367 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd).

The State presented sufficient evidence of exigent circumstances in this case. Deputy John Plemons testified he knocked three times on the front door, announced his presence and his intent to execute the warrant, and entered after approximately five seconds. On cross-examination, Plem-ons admitted it may have only been four or four and a half seconds. Plemons testified he immediately heard the sound of running when he commenced knocking. Sheriff Mark Bassham, who was at the side of the house, testified he heard the announcement. The burden to justify a “no-knock” entry “is not high.” Ballard, 104 S.W.3d at 375-76. Although the deputies in this case entered more quickly than the officers in Banks, they had heard the sound of someone running inside. As the United States Supreme Court noted in Banks, drugs can be disposed of in a relatively short period of time. Banks, 540 U.S. at 40, 124 S.Ct. 521. The approximately five second wait, combined with the sound, coming from inside the house, of someone running in reaction to the knocking, provided the deputies with specific articulable facts creating reasonable suspicion that further delay would result in the suspects fleeing the scene or destroying evidence. Under the totality of the circumstances, the trial court did not abuse its discretion in determining that a reasonable suspicion of exigency had matured at the point the officers entered the residence.

Jeffrey cites Ballard in support of his argument that the entry was unreasonable. In Ballard, the parties did not dispute that the officers failed to knock and announce their presence before entering the house. Ballard, 104 S.W.3d at 376. The Beaumont Court of Appeals ruled there were not sufficient specific articulable facts to create a reasonable suspicion of exigent circumstances, and refused to create a per se exception for searches of methamphetamine labs. Id. at 383-84. Unlike officers in Ballard, the officers in this case did have specific articulable facts that created reasonable suspicion. The officers heard footsteps and had waited a few seconds. The trial court could have reasonably concluded these facts provided sufficient specific articulable facts to create reasonable suspicion of exigency.

While we may have reached a different conclusion as to the reasonableness of the entry, we cannot conclude the trial court abused its discretion in finding the entry reasonable. The trial court did not abuse its discretion in determining that a reasonable suspicion of exigency had matured by the time the officers entered the residence. Since the trial court did not abuse its discretion in denying the motion to suppress, we overrule Jeffrey’s first point of error.

(2) The Evidence Sufficiently Corroborates the Covert Witness’ Testimony

In his second point of error, Jeffrey argues that the evidence corroborating the testimony of the covert witness was insufficient. According to Jeffrey, the State failed to introduce some evidence other than the covert witness’ testimony that tended to connect Jeffrey to the offense charged. Because the State introduced sufficient evidence to corroborate the testimony of the covert witness, it is not necessary that we address the State’s argument that Article 38.141 does not apply in this case.

The investigation of Jeffrey resulted from a tip by Timothy Sims, an inmate at the Delta County jail. Sims approached Sheriff Bassham while in custody at the jail and offered to provide information about illegal drug activity in Delta County in exchange for a personal recognizance bond on three misdemeanor charges on which he was being held. Sheriff Bassham arranged for Sims’ release and arranged for Sims to make a “controlled buy” from Jeffrey. Sheriff Bassham and Deputy Plemons searched Sims before the purchase and provided Sims with fifty dollars with which to purchase drugs. The fifty dollars had been previously photocopied to track the serial numbers. Sheriff Bass-ham testified they maintained constant visual observation of Sims from the time he exited Bassham’s car until he entered Jeffrey’s residence. A short time later, Sims left Jeffrey’s residence and proceeded directly to meet with the Sheriff. Another search of Sims revealed that Sims no longer possessed the fifty dollars and had two rocks of alleged crack cocaine in his possession. Based on Sims’ statement, Bass-ham obtained a warrant to search Jeffrey’s residence. At trial, Sims testified he purchased crack cocaine from Jeffrey. Sims’ testimony was admitted as evidence of Jeffrey’s intent to deliver and was accompanied by a limiting instruction.

Article 38.141 of the Texas Code of Criminal Procedure requires that testimony of a person who is not a licensed police officer or special investigator but is acting covertly on behalf of the police be corroborated by other evidence tending to connect the accused to the offense. Brown v. State, 159 S.W.3d 703, 707 (Tex.App.-Texarkana 2004, pet. ref'd); see Tex.Code. Crim. Proc. Ann. art. 38.141(a), (b) (Vernon 2005). Similar to accomplice witnesses, covert witnesses may have incentives to lie or shade their testimony in favor of the State and, therefore, such testimony should be viewed with a measure of caution. Brown, 159 S.W.3d at 707; Young v. State, 95 S.W.3d 448, 451 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). In Brown, this Court found the interpretations of Article 38.14 of the Texas Code of Criminal Procedure relating to accomplice witness testimony persuasive and applicable to Article 38.141. Brown, 159 S.W.3d at 707; see Torres v. State, 137 S.W.3d 191, 196 (Tex.App.-Houston [1st Dist.] 2004, no pet.); Jefferson v. State, 99 S.W.3d 790, 793 (Tex.App.-Eastland 2003, pet. ref'd); Young, 95 S.W.3d at 451; Cantelon v. State, 85 S.W.3d 457, 461 (Tex.App.-Austin 2002, no pet.).

The covert witness rule requires that the State produce some other evidence which “tends to connect” the accused to the commission of the offense alleged in the indictment. Brown, 159 S.W.3d at 707-08. In our analysis of whether there is “other evidence” which tends to connect the accused with the offense, we must eliminate all of the covert witness’ testimony and determine whether the remaining inculpatory facts and circumstances tend to connect the appellant to the offense. Id.

Just Jeffrey’s presence at the scene is not enough to corroborate the accomplice testimony. Mere presence of a defendant at the scene of the crime is insufficient to corroborate accomplice testimony. Id.; Torres, 137 S.W.3d at 196. But the presence of the accused at or near the scene of the crime at or about the time of its commission coupled with other suspicious circumstances may be sufficient to tend to connect the accused to the crime. Brown, 159 S.W.3d at 708; see Brown v. State, 672 S.W.2d 487, 489 (Tex.Crim.App.1984). “Even apparently insignificant incriminating suspicious circumstances may sometimes prove to be sufficient corroboration.” Brown, 159 S.W.3d at 708; Torres, 137 S.W.3d at 196; Cantelon, 85 S.W.3d at 461; see Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App.1993). Cumulative evidence of “suspicious circumstances” may be sufficient even if none of the circumstances would be sufficient individually. Cantelon, 85 S.W.3d at 460-61.

The State introduced sufficient “suspicious circumstances” which tend to connect Jeffrey to the controlled substance. Jeffrey leased the residence and therefore had control over its contents. Jeffrey made several statements indicating his guilt. While Jeffrey was being escorted from the residence by the deputies, Q.W., Jeffrey’s son, stated “Daddy, I didn’t have any of your rocks.” Jeffrey replied: “Boy, have you been in my stuff?” Jeffrey also informed the deputies that Cynthia Nance, the other person in the residence, “didn’t have anything to do with this.” In addition, several objects found in Jeffrey’s bedroom tended to connect him to the offense. The police discovered crack cocaine in a pill bottle wrapped in duct tape, a crack pipe, a brass metal tray, Jeffrey’s driver’s license, a ledger with a list of names and figures, and almost $300.00 in currency, including the cash the police had provided to the covert witness to purchase drugs. Fifty dollars found in Jeffrey’s bedroom had identical serial numbers as the currency provided to Sims. Cumulatively, these suspicious circumstances tend to connect Jeffrey to possession of a controlled substance with the intent to deliver.

Jeffrey argues the only evidence to support the intent to deliver element of the charged offense was the testimony of the covert witness. The corroborating evidence does not need to prove all the elements of the alleged offense or directly link the accused to the commission of the offense. See Munoz, 853 S.W.2d at 559; Underwood v. State, 967 S.W.2d 925, 928 (Tex.App.-Beaumont 1998, pet. ref'd); Hernandez, 939 S.W.2d at 176. The covert witness rule requires only some evidence which tends to connect the accused to the offense. Further, there was additional evidence of the intent to deliver. The scales, ledger, and other items found in Jeffrey’s bedroom provide circumstantial evidence of Jeffrey’s intent to deliver.

The State sufficiently corroborated the testimony of the covert witness. There is some evidence other than the covert witness’ testimony which tends to connect Jeffrey to the offense. We overrule Jeffrey’s second point of error.

We affirm the judgment.

      . The State argues that Jeffrey waived any issue concerning failure to “knock and announce.” According to the State, Jeffrey failed to establish a prima facie case at trial that an unannounced entry occurred. The State contends that Jeffrey failed to argue to the trial court that the police failed to knock and announce. We believe that Jeffrey’s argument at trial is consistent with his argument on appeal. Jeffrey argued, at the trial level and on appeal, that the delay between the announcement and the forced entry was insufficient, making the search unreasonable. The State cites several Fifth Circuit opinions for the proposition that the defendant has the initial burden of proof to present a prima facie case. See United States v. Posada-Rios, 158 F.3d 832, 868 (5th Cir.1998); United States v. Moser, 123 F.3d 813, 823 (5th Cir.1997); United States v. Fike, 82 F.3d 1315, 1323 (5th Cir.1996), overruled on other grounds, United States v. Brown, 161 F.3d 256 (5th Cir.1998). Although Fifth Circuit opinions, or those of any other federal or state court, may be relied on as persuasive authority, we are obligated to follow only higher Texas courts and the United States Supreme Court. See Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex.1993); Thomas v. Miller, 906 S.W.2d 260, 262 (Tex.App.-Texarkana 1995, no pet.); Barstow v. State, 742 S.W.2d 495, 500-01 & n. 2 (Tex.App.-Austin 1987, pet. denied). In addition, the defense did present a prima facie case that the announcement was not sufficient. During trial, the trial court held a suppression hearing outside the presence of the jury for the limited purpose of determining whether the deputies complied with the knock and announce requirement. Several officers testified concerning the entry. These officers established that only four or five seconds elapsed between the announcement and the forced entry. Even if the defense is required to present a prima facie case, Jeffrey met this requirement. Once the defense has established a prima facie case, if required, the State has the ultimate burden to show exigent circumstances justified the entry. See Ballard v. State, 104 S.W.3d 372, 376 (Tex.App.-Beaumont 2003, pet. ref'd).

      . Though Jeffrey contends the entry violated both the Fourth Amendment and the Texas Constitution, he briefed only the allegation that the entry violated the Fourth Amendment. Since there is no indication that the Texas Constitution imposes a more stringent standard than the Fourth Amendment, we have confined our analysis to the Fourth Amendment of the United States Constitution.

      . The State does not contend on appeal that the search warrant in question authorized a no-knock entry.

      . The jury was not instructed, pursuant to Article 38.141 of the Texas Code of Criminal Procedure, that the testimony of a covert witness must be corroborated. The defense did not request such an instruction. On appeal, the defense does not complain the failure to instruct the jury resulted in egregious harm. In the context of accomplice witnesses, an appellate court will review the sufficiency of the corroboration of an accomplice as a matter of law even when the jury is not instructed concerning the accomplice witness rule. Campbell v. State, 139 Tex.Crim. 379, 138 S.W.2d 1091, 1093-94 (1940). The Texas Court of Criminal Appeals has stated: "where no accomplice witness charge was requested or given, a reviewing court, 'in passing upon the sufficiency of the evidence, must treat the testimony of [an accomplice] as that of an accomplice witness and find sufficient evidence from other sources tending to connect appellant with the commission of the offense;....'" Hernandez v. State, 939 S.W.2d 173, 175 n. 2 (Tex.Crim.App.1997) (citing Hammonds v. State, 166 Tex.Crim. 499, 316 S.W.2d 423, 424 (1958)). But see Reyna v. State, 22 S.W.3d 655, 660 (Tex.App.-Austin 2000, no pet.) (declining to address whether the corroboration was sufficient when the witness was not an accomplice as a matter of law); Green v. State, 72 S.W.3d 420, 424 (Tex.App.-Texarkana 2002, pet. ref’d) (declining to address corroboration when witness was not an accomplice as a matter of law and there was "no jury finding that she was an accomplice as a matter of fact”). We note that Hernandez indicated that review of the sufficiency of corroboration may be questionable when the jury is not instructed concerning the accomplice witness rule because, at that time, the sufficiency of the evidence was measured against the charge that was given. See Hernandez, 939 S.W.2d at 175 n. 2. Evi-dentiary sufficiency, however, is now measured against the hypothetically correct jury charge. See Gollihar v. State, 46 S.W.3d 243, 253 (Tex.Crim.App.2001); Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). Because the witness is a covert witness as a matter of law, we will address whether the corroboration is sufficient.

      . The State argues that Article 38.141 does not require corroboration when the covert witness' testimony concerns a drug deal for which the defendant is not charged. The testimony of the covert witness was introduced only to prove the intent to deliver, and a limiting instruction was given. Article 38.14 does not require corroboration when an accomplice witness testifies concerning extraneous offenses during the punishment phase of a trial. Thompson v. State, 691 S.W.2d 627, 633 (Tex.Crim.App.1984); Megas v. State, 68 S.W.3d 234, 242 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). However, the testimony at issue was introduced during the guilt/innocence phase of the trial. The Texas Court of Criminal Appeals has yet to resolve this issue. See 43 George E. Dix and Robert O. Dawson, Texas Practice. Criminal Practice And Procedure § 31.253 (2d ed.2001). In Rice, a majority of the three judge panel originally held that accomplice testimony concerning extraneous offenses admitted during the guilt/innocence phase of the trial to prove intent to commit the crime charged must be corroborated, but on rehearing the court subsequently heard the case en banc and declined to resolve the issue. See Rice v. State, 605 S.W.2d 895, 903 n. 1 (Tex.Crim.App.1980) (en banc) (holding that the extraneous offense was conspiracy to commit theft rather than for arson introduced to prove intent and finding the corroboration sufficient); see also Bustamante v. State, 702 S.W.2d 193, 194 (Tex.Crim.App.1985) (Clinton, J., dissenting); cf. Williams v. State, 47 S.W.3d 626, 632 (Tex.App.-Waco 2001, pet. ref'd). Because we find the corroboration of the covert witness’ testimony is sufficient, we decline to decide whether corroboration is required.