author: ELSA ALCALA, Justice.

text:
    Ricky SEEKER, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00638-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 6, 2005.
    Discretionary Review Refused March 8, 2006.

      George McCall Secrest, Jr., Bennett <& Secrest, L.L.P., Houston, TX, for Appellant.
    Charles A. Rosenthal, Jr., District Attorney — Harris County, Bridget Holloway, Assistant District Attorney — Harris County, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
   OPINION

ELSA ALCALA, Justice.

Appellant, Ricky Seeker, pleaded not guilty to the misdemeanor offense of driving while intoxicated (DWI) and not true to two punishment enhancement paragraphs. The jury found appellant guilty. The trial court found not true the enhancement paragraph alleging appellant had been previously convicted for DWI and true the paragraph asserting that appellant had an open alcoholic beverage container during the commission of the current DWI offense. The trial court sentenced appellant to 180 days in jail and a $2,000 fíne. In his first point of error, appellant asserts that he is entitled to a new sentencing hearing because the trial court erred by considering the punishment range for a Class A, rather than the Class B misdemeanor DWI for which appellant was convicted. Appellant’s second point of error asks that we reform the judgment of conviction, by deleting the true finding on the open container enhancement paragraph, because the trial court’s oral pronouncements concerning that paragraph are inconsistent with the written judgment. We affirm.

Background

Appellant rear-ended a car stopped at a toll booth, causing the car to ignite. Appellant was arrested for DWI and convicted by the jury. During the sentencing hearing, the trial court ruled inadmissible the State’s evidence that purportedly showed appellant was previously convicted of the DWI offense alleged in the enhancement paragraph because of insufficient identification marks on the exhibit. No evidence, therefore, established that appellant had been previously convicted for DWI.

At the close of evidence, the trial court made no oral pronouncements concerning its finding the two punishment enhancement paragraphs true or not true. The trial court’s oral ruling, in its entirety, is as follows:

Basically at this time, the jury having found you guilty and the State being right about one thing and that is but for the grace of God Philip Carter could be dead and you would be going to the penitentiary instead of being considered for a Class A misdemeanor. I still believe that you still don’t think you did anything wrong. I don’t think that you think that you did anything wrong. I have been on the bench 10 years and I have never imposed the maximum sentence but I think that this is the appropriate case. I sentence you to 180 days in the Harris County Jail and a $2000 fine. Your Driver’s License, your right to have a license is suspended for two years.

The trial court’s written judgment of conviction shows that appellant was sentenced for a Class B misdemeanor DWI; that the trial court found not true the enhancement paragraph alleging that appellant had a prior conviction for DWI; and that the trial court found true the enhancement paragraph alleging that appellant had an open alcoholic beverage container during the commission of the, current DWI offense.

Error in Assessing Punishment

In his first point of error, appellant contends that the trial court erred by considering appellant’s punishment .within the range for a Class A, rather than a Class B, misdemeanor DWI.

A first DWI offense is a Class B misdemeanor punishable by up to 180 days in jail and up to a $2,000 fine. Tex. Pen.Code Ann. §§ 12.22, 49.04 (Vernon 2003). A second DWI offense is a Class A misdemeanor punishable by up to. one year in jail and up to a $4,000 fine. Tex. Pen.Code Ann. § 12.21, 49.09 (Vernon 2003).

To properly preserve error on appeal, a party must (1) object, (2) state the grounds with sufficient specificity, and (3) obtain an adverse ruling. Tex.R.App. P. 33.1; Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App.2002). However, because a sentence that is not within the statutory punishment range for an offense is void, no objection is required to preserve error. See ex parte Seidel, 39 S.W.3d 221, 225 (Tex.Crim.App.2001) (holding judgments are void for illegality); see also Heath v. State, 817 S.W.2d 335, 336 (Tex.Crim.App.1991) (holding that part of sentence imposing punishment not authorized by law void and that defect rendering sentence void may be raised at any time).

The written judgement of conviction shows that the trial court convicted appellant for Class B misdemeanor DWI. The trial court’s oral pronouncement, that appellant was sentenced to the “maximum sentence” of “180 days in the Harris County Jail and a $2000 fine,” shows that the trial court was sentencing appellant for a Class B misdemeanor DWI, rather than a Class A misdemeanor, which would carry a maximum possible sentence of one year in jail and a $4,000 fine. The oral pronouncement and written judgment consistently show that appellant was convicted for and received the maximum possible sentence for a Class B misdemeanor. Moreover, appellant had been charged with a Class A misdemeanor and thus could be characterized as being considered for a Class A misdemeanor, even though the trial court was not going to assess appellant’s punishment as a Class A misdemeanor, having found the evidence insufficient to prove the enhancement paragraph that alleged the prior DWI conviction. Therefore, the record does not show that appellant received either a void sentence or a sentence outside the punishment range for the offense for which he was convicted.

To the extent that appellant bases his complaint on the trial court’s statement that appellant “would be going to the penitentiary instead of being considered for a Class A misdemeanor” if he had killed the driver of the car he struck, appellant did not object concerning the statement at trial and has therefore waived any complaint. See Tex.R.App. P. 33.1; Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App.1995).

We overrule appellant’s first issue on appeal.

Lack of Oral Pronouncement on Enhancement Paragraph

In his second point of error, appellant contends that the trial court’s written finding of “true” conflicts with the trial court’s oral finding because the trial court did not make an oral finding of “true” on the second enhancement paragraph.

When the trial court alone assesses a defendant’s punishment, the court is not required to read that the enhancement paragraphs or the findings to the defendant. Garner v. State, 858 S.W.2d 656, 659 (Tex.App.-Fort Worth 1993, writ ref'd) (citing Reed v. State, 500 S.W.2d 497, 499 (Tex.Crim.App.1973)). Although it is preferred that trial courts read the enhancement paragraphs orally and find them to be true or not true on the record, a trial court does not err by not doing so. See Garner, 858 S.W.2d at 660. When a conflict exists between the oral pronouncement of a sentence and the sentence in a written judgment, the oral pronouncement controls. Taylor v. State, 131 S.W.3d 497, 500 (Tex.Crim.App.2004); Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim.App.1998). Conversely, when there is no conflict between the oral pronouncement and the written judgment, reformation of the judgment is not necessary. See in re A.P., 59 S.W.3d 387, 393 (Tex.App.-Fort Worth 2001, pet. dism’d by agr.) (holding no conflict between sentence as orally pronounced and as memorialized in disposition order when trial court did not make oral findings later included in disposition order). Our Penal Code provides that a person convicted of Class B misdemeanor DWI must serve a minimum term of confinement of 72 hours, unless the person had an open container of alcohol in his or her immediate possession, which increases the minimum term of confinement to six days. Tex. Pen.Code Ann. § 49.04(b), (c) (Vernon 2003).

The record shows that although the trial court did not make any oral pronouncement regarding the open container paragraph, the court found the paragraph true in the written judgment. Under these circumstances, in which the trial court has no duty to make an oral finding of true or not true on an enhancement paragraph, we hold that the finding of true recited in the written judgment of conviction is not inconsistent with the trial court’s oral silence concerning the finding. We deny appellant’s request to reform the judgment.

We overrule appellant’s second point of eiTor.

Conclusion

We affirm the judgment of the trial court.


source: Caselaw Access Project

author: GEORGE C. HANKS, JR., Justice.

license: Public Domain

text:
    Jesse Randolph CURRY, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00156-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 13, 2005.

      Josh Schaffer, The Schaffer Firm, Houston, TX, for Appellant.
    Kelly Ann Smith, Assistant District Attorney, Charles A. Rosenthal, District Attorney, Harris County Jr., Houston, TX, for Appellee.
    Panel consists of Justices TAFT, KEYES, and HANKS.
   OPINION

GEORGE C. HANKS, JR., Justice.

Appellant, Jesse Randolph Curry, appeals the trial court’s order denying his motion for post-conviction DNA testing. Appellant contends that article 64.03(a)(2)(A) of the Texas Code of Criminal Procedure, which sets forth the requirements for post-conviction DNA testing, is unconstitutional because it denies him (1) due process, due course of law, and equal protection of the law guaranteed by the United States and Texas Constitutions and (2) a meaningful remedy to exercise his right to be free from unlawful punishment, as guaranteed by the Open Courts provision of the Texas Constitution. See U.S. Const, amend. XIV, § 1; Tex. Const. art. I, §§ 3, 19. Appellant challenges the statute as being unconstitutional on its face and as applied. We affirm the trial court’s order.

Factual Background

A jury convicted appellant of the aggravated assault of his wife and assessed his punishment at confinement for life in prison. During the punishment phase of trial, after appellant was convicted for the aggravated assault of his wife, the State produced evidence that appellant’s wife had been sexually assaulted. The DNA from appellant’s wife’s rape kit indicated that there was a mixture of more than one person’s DNA. The evidence further concluded that appellant’s DNA could not be ruled out. Pursuant to article 64.03(a) of the Texas Code of Criminal Procedure, appellant filed a motion for post-conviction DNA testing. The motion did not challenge the constitutionality of article 64.03(a)(2)(A). After a hearing, the trial court, finding that identity had never been an issue in the case, denied appellant’s motion.

Constitutional Challenge

In two points of error, appellant contends that article 64.03(a)(2)(A) of the Texas Code of Criminal Procedure is unconstitutional on its face and as applied because it denies him due process, due course of law, and equal protection of the law. Specifically, appellant argues that article 64.03(a)(2)(A) is unconstitutional because it “arbitrarily deprives all convicted persons whose cases involve biological evidence from obtaining post-conviction DNA testing to determine whether they are being unlawfully punished, and it violates the open courts provision of the Texas Constitution because it deprives them of any meaningful remedy to exercise their right to be free from unlawful punishment.” (Emphasis added.)

Standard of Review

In determining whether a statute is constitutional, an appellate court must presume that the statute is valid and that the legislature was neither unreasonable nor arbitrary in enacting it. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978). The party challenging the statute has the burden of establishing that the statute is unconstitutional. Id. This Court must uphold the challenged statute if it can be reasonably, construed in a manner consistent with the legislative intent and is not repugnant to the Constitution. See Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App.1979); see also Granviel, 561 S.W.2d at 511 (noting that an appellate court must invalidate a statute that is not supported by reasonable legislative intent).

Generally, a constitutional challenge to a statute must be asserted in the trial court to be considered on appeal. Tex.R.App. P. 33.1(a); Norris v. State, 902 S.W.2d 428, 446 (Tex.Crim.App.1995). Constitutional rights, including the rights of due process and due course of law, may be waived if the proper request, objection, or motion is not asserted in the trial court. See Solis v. State, 945 S.W.2d 300, 301 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd) (noting that almost every constitutional and statutory right may be waived by failing to object in trial court). However, there are two exceptions. First, appellate courts will address questions involving the constitutionality of the statute upon which a defendant’s conviction is based, even when such issues are raised for the first time on appeal. Rabb v. State, 730 S.W.2d 751, 752 (Tex.Crim.App.1987). Second, an appellant does not waive error if he fails to raise a facial constitutional challenge to a statute at trial. Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App.1990). A facial challenge claims that a statute is “invalid in toto — and therefore incapable of any valid application.” Steffel v. Thompson, 415 U.S. 452, 474, 94 S.Ct. 1209, 1223, 39 L.Ed.2d 505 (1974).

As Applied Challenge

Appellant argues that article 64.03(a)(2)(A) violates the United States and Texas Constitutions as applied because the statute prohibits him from seeking post-conviction DNA testing relevant to the punishment phase of his trial, and, therefore, he is deprived of a meaningful remedy to challenge his punishment.

Appellant failed to object in the trial court to article 64.03(a) as being unconstitutional as applied under either the United States or Texas Constitutions. An as applied constitutional challenge to a statute is waived if it is not asserted at the trial court level. See Briggs, 789 S.W.2d. at 924. Accordingly, appellant has not preserved this issue for appellate review. See Tex.R.App. P. 33.1(a)(1).

.We overrule point of error one.

Facial Challenge

In point of error two, appellant argues that article 64.03(a)(2)(A) is facially unconstitutional under the United States and Texas Constitutions because it only permits post-conviction DNA testing when the evidence is relevant to the guilt phase rather than the. punishment phase of a trial, and, therefore, it does not give all convicted persons a meaningful remedy to challenge their punishments.

A facial challenge to a statute is the most difficult challenge to mount successfully because the challenger must establish that no set of circumstances exists under which the statute will be valid. See Santikos v. State, 836 S.W.2d 631, 633 (Tex.Crim.App.1992). In this case, appellant’s facial challenge fails for the simple reason that the United States Constitution does not require the State to provide post-conviction DNA testing to any convicted person. See Kutzner v. Montgomery Co., 303 F.3d 339, 340 (5th Cir.2002); Harvey v. Horan, 278 F.3d 370, 375-76 (4th Cir. 2002). Furthermore, appellant cites no authority for the existence of this requirement under the Texas Constitution. In fact, the Texas Constitution provides that appellate review of criminal convictions may be limited by the legislature. See Henderson v. State, 132 S.W.3d 112, 114 (Tex.App.-Dallas 2004, no pet.). Accordingly, appellant cannot establish that the statute operates unconstitutionally as to all convicted persons.

We overrule point of error two.

Conclusion

We affirm the trial court’s order.

      . Article 64.03(a) provides in pertinent part that:
      (a) A convicting court may order forensic DNA testing under this chapter only if:
      (1) the court finds that:
      (A) the evidence:
      (i) still exists and is in a condition making DNA testing possible; and
      (ii) has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect; and
      (B) identity was or is an issue in the case; and

        (2) the convicted person establishes by a preponderance of the evidence that:

        (A) the person would not have been convicted if exculpatory results had been obtained through DNA testing; and

      (B) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or the administration of justice.
      Tex.Code Crim. Proc. Ann. art. 64.03(a) (Vernon Supp.2004-2005) (emphasis added).


author: EVELYN V. KEYES, Justice.

text:
    Arminda TORRES and Richard Torres, Appellants, v. MEMORIAL HERMANN HOSPITAL SYSTEM d/b/a Memorial Hermann Southwest Hospital, Appellee.
    No. 01-04-00550-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 13, 2005.

      Joe Maida, Houston, TX, for Appellants.
    Melanie Ann Rubinsky, Frank A. Doyle, Johnson, Spalding, Doyle, West & Trent, L.L.P., Houston, TX, for Appellee.
    Panel consists of Justices TAFT, KEYES, and HANKS.
   OPINION

EVELYN V. KEYES, Justice.

Appellants, Arminda and Richard Torres, appeal an order dismissing their suit against, appellee, Memorial Hermann Hospital System d/b/a Memorial Hermann Southwest Hospital (the Hospital). In one issue, appellants argue that the trial court erred in dismissing their suit with prejudice because they did not file an expert report pursuant to section 13.01(e) of the Medical Liability and Insurance Improvement Act (MLIIA). See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(e), 1995 Tex. Gen. Laws 985, 986, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (current version at Tex. Civ. PRAC. & Rem.Code Ann. § 74.001-507 (Vernon Supp.2004-2005)). We affirm.

Background

In March 2002, Arminda underwent knee replacement surgery at the Hospital. Three days after the surgery, Arminda was transferred to the rehabilitation unit at the Hospital. Shortly after the transfer, she was feeling weak and could not walk without assistance. She purportedly asked the nurses on her floor for a bedpan. The nurses allegedly told her that because there were neither bedpans nor bedside commodes on the rehabilitation floor, she would have to walk to the restroom. Ar-minda stated that she then asked for assistance from the nurses, but a nurse never came to help. At some point, Arminda’s daughter attempted to help her to the restroom. Arminda fell and fractured her femur bone on the same leg that had undergone surgery.

Appellants filed their original petition on April 16, 2003 and an amended petition on September 30, 2003. They argued that because Arminda was a patient at the Hospital, the Hospital “owed a duty to [Armin-da] to supply the required equipment and instrumentalities for the care of its patients, including furnishing a bedpan and other similar devices and furnishing adequate care to assist her in her rehabilitation period.” Appellants contend that the Hospital breached its duty to Arminda and that the breach was the proximate cause of their injuries and damages.

The Hospital filed a motion to dismiss on January 16, 2004. It contended that appellants’ suit was a healthcare liability claim that alleged the Hospital was negligent in rendering care, and thus .it was subject to the mandatory requirements of the MLIIA. The Hospital argued that appellants failed to file the required expert report within 180 days of filing suit, and that, therefore, the trial court must dismiss appellants’ suit.

Appellants filed an objection to the Hospital’s motion to dismiss. In their objection, appellants acknowledged they had not filed an expert report. However, they contended that because their cause of action was for ordinary negligence, and not a health care liability claim, an expert report was not required. Appellants, argued that the applicable standard of care was ordinary care, which a jury was capable of understanding without expert testimony.

The trial court signed the order granting the Hospital’s motion to dismiss on February 17, 2004. This appeal followed.

Standard of Review

We review MLIIA section 13.01 rulings for an abuse of discretion. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003) (construing section 13.01(g)); Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (construing section 13.01(0 and (r)(6)); Am. Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001) (construing section 13.01(e)). A trial court abuses its discretion if it acts arbitrarily or unreasonably without reference to any guiding rules or principles when it dismissed appellants’ case with prejudice. See Walker, 111 S.W.3d at 62; Strom v. Mem’l Hermann Hosp. Sys., 110 S.W.3d 216, 220 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). We will not reverse the trial court’s discretionary ruling simply because we might have decided the issue differently. See Walker, 111 S.W.3d at 62; Strom, 110 S.W.3d at 220. When reviewing a matter committed to the trial court’s discretion, we may not substitute our own judgment for the judgment of the trial court. Walker, 111 S.W.3d at 62. However, to the extent the resolution of this issue requires interpretation of the statute itself, we review under a de novo standard. Ponce v. El Paso Healthcare Sys., Ltd., 55 S.W.3d 34, 36 (Tex.App.-El Paso 2001, pet. denied) (citing Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.1989)).

Discussion

In one issue, appellants contend that because their cause of action lies in common law negligence and not medical malpractice, the trial court erred in granting the Hospital’s motion to dismiss. Appellants assert the same arguments on appeal that they made to the trial court in their objection to the Hospital’s motion to dismiss, namely, that, because their cause of action is based upon the Hospital’s failure to provide Arminda “with adequate facilities and assistance in using the restroom,” their suit is for ordinary negligence and is not a health care liability suit subject to the provisions of the MLIIA.

MLIIA Provisions

The MLIIA and its restrictions apply to “health care liability claim[s],” which include “a cause of action against a health care provider ... for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety which proximately results in injury to or death of the patient, whether the patient’s claim or cause of action sounds in tort or contract.” A “health care provider” is “any person ... duly licensed or chartered by the State of Texas to provide health care as a registered nurse, hospital ... or agent ... acting in the course and scope of his employment.” “Health care” is defined by the MLIIA as “any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.” Thus, a health care liability claim is based on a breach of a standard of care applicable to health care providers. Bush v. Green Oaks Operator, Inc., 39 S.W.3d 669, 672 (Tex.App.-Dallas 2001, no pet.).

The MLIIA requires that a qualified physician or health care expert testify regarding the applicable standard of care, the breach of that standard, and causation of the plaintiffs damages. The MLIIA also requires that the plaintiff file an expert report. Section 13.01(d) of the MLIIA provides:

Not later than the later of the 180th day after the date on which a health care liability claim is filed or the last day of any extended period ... the claimant shall, for each physician or health care provider against whom a claim is asserted:
(1) furnish to counsel for each physician or health care provider one or more expert reports, with a curriculum vitae of each expert listed in the report; or
(2) voluntarily nonsuit the action against the physician or health care provider.

Id. If the plaintiff fails to file an expert report and fails to voluntarily nonsuit the case, the MLIIA requires the court to dismiss the suit with prejudice. Section 13.01(e) provides:

If a claimant has failed, for any defendant physician or health care provider, to comply with subsection (d) ... within the time required, the court shall, on the motion of the affected physician or health care provider, enter an order awarding as sanctions against the claimant or the claimant’s attorney:
(1) the reasonable attorney’s fees and costs of court incurred by that defendant;
(2) the forfeiture of any cost bond respecting the claimant’s claim against the defendant to the extent necessary to pay the award; and
(3) the dismissal of the action of the claimant against the defendant with prejudice to the claim’s refilling.

Id.

Applicability of the MLIIA

When the essence of the suit is a health care liability claim, a plaintiff cannot artfully plead to avoid the MLIIA’s requirements. Garland Cmty. Hosp., 156 S.W.3d at 543 (citing MacGregor Med. Ass’n v. Campbell, 985 S.W.2d 38, 40 (Tex.1998)). Instead, the determination of whether a cause of action is a health care liability claim depends on the underlying nature of the plaintiffs claims. Id. at 543-44. If the cause of action is based on a health care facility’s breach of the standard of medical care, then the claim is a health care liability claim, no matter how it is labeled. See MacGregor Med. Ass’n, 985 S.W.2d at 40-41; Gormley v. Stover, 907 S.W.2d 448, 450 (Tex.1995). If the act or omission alleged in the complaint is an inseparable part of .the rendition of health care services, then the claim is a health care liability claim. Garland Cmty. Hosp., 156 S.W.3d at 544 (citing Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex.1995)). A consideration in that determination is whether proving the claim would require the specialized knowledge of a medical expert. Id.

Appellants contend that “the simple act of assisting [a]ppellant to the restroom or furnishing her a bedpan is something that could have been done by anyone.” Appellants argue that the simple act “would not have required any expertise on the nurse’s part that would require expert testimony in the medical or health care field.” Therefore, appellants contend that their suit is for common law negligence and is not subject to the MLIIA. However, appellants make no effort to explain the inconsistency between their contention that a health care provider was not required to help Arminda to the restroom and their contention that the Hospital breached its duty of care to Arminda by not providing a trained health care provider to assist her to the bathroom, causing her to fall and be injured.

Appellants cite no authority, and we find none, that supports the contention that post-operative inpatient care gives rise to a duty of ordinary care. The cases appellants cite as authority involve the use of mechanical or medical instruments, patients assaulting other patients, and patients wandering out of a nursing hospital. None of these cases deal with postoperative inpatient care; therefore, they are not analogous to appellants’ suit.

The underlying nature of appellants’ allegations is that the Hospital and the nurses did not provide Arminda with proper treatment and facilities during her postoperative inpatient rehabilitation. Appellants brought suit against the Hospital. The Hospital and the nurses who provided Arminda’s care are health care providers. Section 1.03(a)(3) of the MLIIA states a “health care provider” is “any person ... duly licensed or chartered by the State of Texas to provide health care as a registered nurse, hospital ... or agent ... acting in the course and scope of his employment.” Indeed, the Nursing Practice Act’s definition of “professional nursing” specifically includes caring for and assisting patients during rehabilitation. The nurses and the Hospital were providing Arminda with health care because they were performing and furnishing treatment to Arminda while she was recovering as a patient at the Hospital. We conclude that appellants’ suit is a health care liability claim. • Thus, appellants’ suit is subject to the provisions and requirements of the MLIIA.

Appellants filed suit on April 16, 2003. They had 180 days either to furnish an expert report with a curriculum vitae attached or to nonsuit the case. They did neither. Thus, the trial court did not abuse its discretion by dismissing their suit with prejudice.

We overrule appellants’ sole issue.

Conclusion

We affirm the judgment of the trial court.

      . The record does not contain a first amended petition.

      . See Act of April 19, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847.

      . See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(d), 1995 Tex. Gen. Laws 985, 986 (repealed 2003).

      . See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(e), 1995 Tex. Gen. Laws 985, 986 (repealed 2003).

      . See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(d), 1995 Tex. Gen. Laws 985, 986 (repealed 2003).

      . See id.

      . See Act of April 19, 1977, 65th Leg., R.S., ch. 817, Part 1, § 1.03(a)(4), 1977 Tex. Gen. Laws 2039, 204,1 repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847 (repealed 2003).

      . Act of April 19, 1977, 65th Leg., R.S., ch. 817, Part 1, § 1.03(a)(3), 1977 Tex. Gen. Laws 2039, 2041 (repealed 2003); Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex.2004) (quoting same).

      . Act of April 19, 1977, 65th Leg., R.S., ch. 817, Part 1, § 1.03(a)(2), 1977 Tex. Gen. Laws 2039, 2041 (repealed 2003).

      . Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01, § 2. sec. 14.01(d). 1995 Gen. Laws 985, 985-87, 988 (repealed 2003); see Ocomen v. Rubio, 24 S.W.3d 461, 466 (Tex.App.-Houston [1st Dist.] 2000, no pet.).

      . Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(d), 1995 Gen. Laws 985, 986 (repealed 2003).

      . Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(e), 1995 Gen. Laws 985, 986 (repealed 2003).

      . We note that appellants' original and amended petitions state that "notice of [appellants’] claim was given in compliance with Article 4590-1” of the MLIIA. On their face, the pleadings indicate that appellants themselves believed that their claim fell within the ambit of the MLIIA.

        . See Rehabilitative Care Sys. Of Am. v. Davis, 43 S.W.3d 649 (Tex.App.-Texarkana 2001), pet. denied, disapproved, 73 S.W.3d 233, 234 (Tex.2002) (per curiam) (disapproving court of appeals’ statement that expert testimony is not needed to establish appropriate standard of care when physical therapy patient alleges that his therapists’ negligent supervision during a rehabilitative exercise program caused him injury).

      . See Zuniga v. Healthcare San Antonio, Inc., 94 S.W.3d 778, 781-83 (Tex.App.-San Antonio 2002, no pet.) (holding that failure to provide a safe environment does not fall within MLI-IA; therefore, expert report was not required when patient was assaulted by another patient); Sisters of Charity of the Incarnate Word v. Gobert, 992 S.W.2d 25, 28 (Tex.App.-Houston [1st Dist.] 1997, no pet.) (holding that hospital’s failure to protect patient from being assaulted by another patient is common law negligence and is not subject to MLIIA).

      . See Golden Villa Nursing Home, Inc., v. Smith, 674 S.W.2d 343, 348-49 (Tex.App.-Houston [14th Dist.] 1984,. writ ref'd n.r.e.) (holding that nursing home owed a duty of reasonable care to patient who was known for wandering).

      . See 65th Leg., R.S., ch. 817, Part 1, § 1.03(a)(3), 1977 Tex. Gen. Laws 2039, 2041 (repealed 2003).

      . Id.

      . Tex. Occ.Code Ann. § 301.001 (Vernon 2004).

      . Id. § 301.002(2)(A).

      . See 65th Leg., R.S., ch. 817, Part 1, § 1.03(a)(2), 1977 Tex. Gen. Laws 2039, 2041 (repealed 2003).

      . See 65th Leg., R.S., ch. 817, Part 1, § 1.03(a)(4), 1977 Tex. Gen. Laws 2039, 2041 repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847 (repealed 2003).

      . See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(d), 1995 Tex. Gen. Laws 985, 986 (repealed 2003)

      . See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(e), 1995 Tex. Gen. Laws 985, 986 (repealed 2003); Am. Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001)


text:
    Richard VELA, Appellant, v. The CITY OF HOUSTON, Texas, Appellee.
    No. 01-04-00264-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 13, 2005.

      Martin A. Shellist, Shellist, Lore & La-zarz, P.C., Houston, TX, for Appellant.
    Marcus Dobbs, Senior Assistant City Attorney, Arturo G. Michel, City of Houston, City Attorney, Legal Department, Houston, TX, for Appellee.
    Panel consists of Justices TAFT, KEYES, and HANKS.
   OPINION

GEORGE C. HANKS, JR., Justice.

Appellant, Richard Vela, appeals the trial court’s order granting summary judgment in favor of appellee, the City of Houston (“the City”), for an alleged violation of section 554 of the Texas Government Code, also known as the Whistle-blower Act (“the Act”). Vela asserts that summary judgment was improper because he (1) reported violations of law, (2) made reports to appropriate law enforcement authorities, and (3) established a causal link between the whistleblowing and his termination. We affirm the judgment of the trial court.

Background

Vela worked as an electrician in the City’s Aviation Department. He was promoted twice and ended his career as an Electrical Superintendent. In 2001, Hobby Airport began building a new concourse for Southwest Airlines. The same year, Vela and Fred Ellis, who was an Electrical Supervisor, attended an aviation lighting conference in San Diego, California. Following the conference, Vela and Ellis submitted expense reports to the City for reimbursement. The City examined the expense reports and determined that Vela and Ellis had submitted altered meal receipts to the City for reimbursement. As a result, the City rejected Vela’s expense report.

In 2002, Vela noticed that the electrical subcontractors were installing a metal clad cable (“MC cable”), which Vela alleged was an inferior type of cable. Vela claimed this deviation was illegal because the use of MC cable “violated the building code, was a serious safety violation, and resulted in fraud upon the City.” During a training class on May 9, 2002, Vela asked if he would be protected for doing something illegal if he was following a manager’s instructions. He further explained that a manager told him to “do whatever it took to [ensure that] the construction of the new concourse at Hobby Airport was completed by the target date.” Vela reported the alleged violations to Richard Newton, the Houston Airport System Human Resources Manager, and several members of the Airport System management team. Newton told Vela that, if he was aware of any illegal activity or wrongdoing, he should contact the Office of Inspector General. In July 2002, the City indefinitely suspended Vela and Ellis for “falsifying City records” and for “failing to adhere to City policies” in submitting altered meal receipts the year before.

Vela sued the City alleging that his termination violated section 554.002 of the Government Code. Vela contends that he was terminated because he reported what he in good faith believed to be violations of law to persons he believed to be the appropriate law enforcement authorities. The City moved for a no-evidence summary judgment and a traditional summary judgment based on the affirmative defense under section 554.004(b) of the Government Code. The trial court granted both of the City’s motions for summary judgment because the summary judgment evidence failed to raise a genuine issue of material fact concerning (1) whether the report that Vela made amounted to reporting a violation of law; (2) whether Vela made his report to an appropriate law enforcement agency; and (3) whether the City took adverse action against Vela because of his report.

The Act

In three issues, Vela asserts that summary judgment was improper because he (1)reported what he believed to be violations of law, (2) made reports to persons he believed to be appropriate law enforcement authorities, and (3) established a causal link between the whistleblowing and his termination.

A governmental entity is liable for damages under the Act if it discriminates against a public employee who reports a violation of law. See Tex. Gov’t Code Ann. §§ 554.001-.009 (Vernon 2004). To establish a valid claim under the Act, an employee must demonstrate that:

(1) he is a public employee;
(2) he made the report in good faith;
(3) he reported a violation of law;
(4) the report was made to an appropriate law enforcement authority;
(5) and he suffered retaliation as a result of making the report.

Tex. Gov’t Code Ann. § 554.002(a) (Vernon 2004).

Standard of Review

When reviewing a summary judgment, we determine whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of fact about one or more of the essential elements of the plaintiffs cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). The movant has the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). Evidence favorable to the non-movant will be taken as true in deciding whether there is a disputed material fact issue that precludes summary judgment. Id. at 548-49. Every reasonable inference must be indulged in favor of the non-movant and any doubt resolved in its favor. Id. at 549.

A party is entitled to a no-evidenee 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 an adverse party would have the burden of proof at trial. See Tex.R. Civ. P. 166a(i). The trial court must grant the motion unless the nonmov-ant produces more than a scintilla of evidence raising a genuine issue of material fact on each of the challenged elements. See Tex.R. Civ. P. 166a(i); see also Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex.App.-Houston [1st Dist.] 1999, no pet.). In reviewing a no-evidence summary judgment, we must indulge every reasonable inference in favor of the non-movant and resolve any doubts in its favor. See Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.).

Violation of the Law

In his first issue, Vela claims that he reported violations of the law as required under the Act. Tex. Gov’t Code Ann. § 554.001. “Law” under the Act is defined as “a state or federal statute, an ordinance of a local governmental entity, or a rule adopted under a statute or ordinance.” Tex. Gov’t Code Ann. § 554.001(1). In his response to the City’s motion for summary judgment, Vela states that he reported violations of the City of Houston Building Code, the City of Houston Electric Code (HEC), and the National Electric Code, as well as criminal fraud upon the City and breach of contract. Although Vela states that certain city codes were violated by the use of the MC cable, he has cited no provision of the building or electrical code that he believes was violated. Violation of the City’s internal policies are not “laws” under the Act. Ruiz v. City of San Antonio, 966 S.W.2d 128, 130 (Tex.App.-Austin 1998, no pet.) (citing Harris Co. Precinct Four Constable Dept. v. Grabowski, 922 S.W.2d 954, 956 (Tex.1996)). Vela’s belief that the use of the MC cable instead of a different type of cable is, at best, a report of a contract violation. There is no evidence that Vela reported a violation of law.

Vela also argues that, if he did not report an actual violation of law, he is still entitled to prevail on his Whistleblower claim if he presents evidence that he had a good faith belief that he was reporting violations of law. “Good faith” has been interpreted to mean that “(1) the employee believed that the conduct reported was a violation of the law and (2) the employee’s belief was reasonable in light of the employee’s training and experience.” Wichita County v. Hart, 917 S.W.2d 779, 784 (Tex.1996). The second part of the definition ensures that, even if the reporting employee honestly believed that the reported act was a violation of law, an employer that takes prohibited action against the employee violates the Act only if a reasonably prudent employee in a similar circumstance would have believed that the facts as reported were a violation of law. Id. at 785. Because Vela had been an Electrical Supervisor and Electrical Superintendent for the City of Houston for nearly 18 years, we hold that it was not reasonable for Vela to believe that he reported a violation of law prior to his adverse employment action. We therefore hold that the trial court properly granted the City’s motion for summary judgment with regard to this issue. Accordingly, we overrule Vela’s first issue.

Appropriate Law Enforcement Authority

In his second issue, Vela claims that he had a good faith belief that he reported violations of law to the appropriate law enforcement authorities. “Good faith,” in the context of an appropriate law enforcement authority, means that “(1) the employee believed the governmental entity was authorized to (a) regulate under or enforce the law alleged to be violated in the report, or (b) investigate or prosecute a violation of criminal law; and (2) the employee’s belief was reasonable in light of the employee’s training and experience.” Texas Dep’t of Transp. v. Needham, 82 S.W.3d 314, 321 (Tex.2002).

It is undisputed that Vela reported the use of MC cable to several city employees including his supervisor, a human resources manager, the deputy director of aviation, the director of aviation, the Hobby Airport manager, and a master electrician. However, once informed that the appropriate law enforcement authority for receiving his complaint about the MC cable was the Office of Inspector General (OIG), Vela failed to make a report with the OIG until after he was indefinitely suspended by the City.

Vela may have believed in good faith that he was reporting the alleged violations of law to the appropriate law enforcement authorities, but once he was informed that the proper procedure was to file a report with the OIG, he should have done so. Vela could not have acted in good faith by not filing a report with the OIG when he had actual knowledge that it was the appropriate law enforcement authority for reporting the use of the MC cable. Accordingly, because Vela was unable to establish a good faith belief that he reported the use of the MC cable to an appropriate law enforcement authority, we hold that the trial court properly granted the City’s motion for summary judgment with regard to this issue. We overrule Vela’s second issue.

Causation

In his third issue, Vela claims that he established a causal link between the whistleblowing and his termination. The City contends that it terminated Vela based on information, observation, or evidence that was not related to the fact that Vela reported an alleged violation of law.

An employee suing under the Act must prove that, without the reports of violations of law, the retaliatory conduct would not have occurred when it did. See Texas Dep’t of Human Sens. v. Hinds, 904 S.W.2d 629, 636 (Tex.1995). In other words, the plaintiff must establish a “but for” causal nexus between the protected activity and the employer’s prohibited conduct. Gold v. City of College Station, 40 S.W.3d 637, 646 (Tex.App.-Houston [1st Dist.] 2001, no pet.). The plaintiff need not establish, however, that the protected activity was the sole cause of the employer’s prohibited conduct. See Hinds, 904 S.W.2d at 636.

Circumstantial evidence may be sufficient to establish a causal link between the adverse employment action and the reporting of illegal conduct. See Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450-51 (Tex.1996). Such evidence includes: (1) knowledge of the report of illegal conduct, (2) expression of a negative attitude toward the employee’s report of the conduct, (3) failure to adhere to established company policies regarding employment decisions, (4) discriminatory treatment in comparison to similarly-situated employees, and (5) evidence that the stated reason for the adverse employment action was false. See id. at 451. Evidence that an adverse employment action was preceded by a superior’s negative attitude toward an employee’s report of illegal conduct is not enough, standing alone, to show a causal connection between the two events. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 69 (Tex.2000).

Here, the City explained that, even assuming Vela’s allegations were true, it “would have indefinitely suspended Vela anyway” because he falsified City records by submitting altered meal receipts and failed to follow City policies. Moreover, Vela acknowledged that he submitted receipts that contained charges for alcoholic beverages. He also testified that he used correction fluid to “white-out” the receipts to hide the alcohol purchases. Vela did not deny that he submitted receipts for reimbursement which included alcohol purchases. He only stated that it was an “oversight.” Furthermore, the City and Vela both acknowledge that the City terminated Ellis for the exact same reason it terminated Vela and at the same time. Vela has not presented a scintilla of evidence to refute the City’s reason for his termination. Accordingly, because Vela was unable to establish a causal nexus between any protected activity and any prohibited activity by the City, we hold that the trial court properly granted the City’s motion for summary judgment with regard to this issue. We overrule Vela’s third issue.

Conclusion

Because we hold that Vela did not produce evidence raising a genuine issue of material fact on each of these issues, we affirm the judgment of the trial court.

      . Section 554.002(a) states that "a state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.” Tex Gov’t Code Ann. § 554.002(a) (Vernon 2004).

      . Vela claimed in his appellate brief that he reported violations of the City of Houston Building and Electric Codes, and the National Electric Code, but when asked during his deposition about violations of those laws, Vela conceded that the MC cable did not violate the National Electric Code (CR at 31, p. 66,11. 16-18). He also could not articulate how MC cable violated the Houston Electric Code, which sections of the code were violated, nor how the alleged violations resulted in danger to the public. (CR at 30-31, p. 65-66).

      . In his deposition, Vela claims to have made calls to OIG to ask the generic question “Is it illegal for a contractor to continue to do work and not follow the specification?” Vela has no documentation of this call, nor could he remember whom he spoke with at OIG.


author: LAURA CARTER HIGLEY, Justice.

text:
    Trung Minh LE, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00988-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 20, 2005.

      Kyle B. Johnson, Houston, TX, for Appellant.
    Trung Minh Le, Huntsville, TX, pro se.
    Charles A. Rosenthal, Jr., District Attorney-Harris County, William J. Del-more, III, Chief Prosecutor, Appellate Division, Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, JENNINGS, and HIGLEY.
   OPINION

LAURA CARTER HIGLEY, Justice.

Appellant, Trung Minh Le, challenges the trial court’s adjudication of guilt after being placed on deferred adjudication community supervision. Tex.Code CRim. PROC. Ann. art. 42.12, § 5(a) (Vernon Supp.2004-2005). On appeal, appellant’s appointed counsel filed an Anders brief stating that he had not found arguable grounds for appeal. Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991). Appellant filed a pro se response to counsel’s Anders brief asserting five points of error that he believed constituted arguable grounds for appeal. Concerning his original trial, appellant contends that (1) there was insuffi-dent evidence to support' a showing of guilt and (2) he did not understand that he was agreeing to a guilty plea because his translator and lawyer were ineffective. Concerning the hearing on the motion to adjudicate guilt, appellant contends that (3) he did not understand that he was pleading true to one of the allegations because his translator was ineffective, (4) the judge was biased, and (5) one of the witnesses lied under oath. Appellant also recounts his version of events that he testified to at the adjudication of guilt hearing and presents them as points of error.

We conclude that the appellant has raised no arguable grounds for appeal, we dismiss the appeal, and we grant appellant’s counsel’s motion to withdraw.

Background

Appellant pleaded guilty on April 20, 2004 to the offense of aggravated assault with a deadly weapon. Tex. Pen.Code Ann. § 22.02 (Vernon Supp.2004-2005). As a part of a plea bargain agreement, appellant was placed on a five year deferred adjudication community supervision and assessed a fine of $500. Tex.Code CRiM. PROC. Ann. art. 42.12, § 5(a) (Vernon Supp. 2004-2005). On June 8, 2004, the State filed a motion to adjudicate guilt alleging violations of his community supervision. Appellant pleaded not true to four of the five alleged violations. After a hearing, the trial court found all five allegations to be true, adjudicated the appellant guilty, and assessed punishment at 10 years’ confinement. Tex. Pen.Code Ann. § 12.38 (Vernon 2003).

Anders Procedure

Under Anders, once appellant’s court-appointed counsel files a motion to withdraw as counsel and files a brief in which he concludes that there are no arguable grounds for appeal, we review the record and make an independent determination. Anders v. California, 386 U.S. at 744, 87 S.Ct. 1396; Stafford v. State, 813 S.W.2d at 511. We consider any pro se response appellant may file to the Anders brief, but we do not rule on the ultimate merits of his response. Downs v. State, 137 S.W.3d 837, 839 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd). If we find arguable grounds for appeal, we must abate the appeal, remand the case to the trial court, and allow the court-appointed attorney to withdraw. Stafford, 813 S.W.2d at 511. The trial court then must either appoint another attorney to present all arguable grounds for appeal or allow the defendant to proceed pro se if he desires. Id. If we do not . find arguable grounds for appeal, we affirm the judgment of the trial court and allow the court-appointed attorney to withdraw. Downs, 137 S.W.3d at 842. However, if we find that the appellant does not raise a point of error from the decision to adjudicate that we have jurisdiction over, we must dismiss the appeal. Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App.1992).

Jurisdiction

This Court’s jurisdiction on an appeal from an adjudication of guilt is extremely limited. No appeal may be taken from a trial court’s determination of whether to proceed with an adjudication of guilt on the original charge. Tex.Code CRiM. PROC. Ann. art. 42.12, § 5(b) (Vernon Supp.2004-2005). Thus, the trial court’s decision to proceed with an adjudication of guilt is one of absolute, nonreviewable discretion. Williams v. State, 592 S.W.2d 931, 932 (Tex.Crim.App.1979); Burger v. State, 920 S.W.2d 433, 437 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd). As a result, we lack the jurisdiction to consider the voluntariness of appellant’s plea of true. Phynes, 828 S.W.2d at 2; Hargrave v. State, 10 S.W.3d 355, 357, 360 (Tex.App.-Houston [1st Dist.] 1999, pet. refd). This rule also prevents us from considering appellant’s version of the facts for any potential error. Phynes, 828 S.W.2d at 2. Therefore, we can neither consider appellant’s third point of error concerning his plea of time, nor review his recounting of his version of the facts for error.

For Ms fifth point of error, appellant claims that a witness lied on the stand. This is a credibility issue, which relates to the trial court’s decision to proceed with an adjudication of guilt. Washington v. State, 127 S.W.3d 197, 204 (Tex.App.-Houston [1st Dist.] 2003, pet. dism’d). We lack jurisdiction to consider this point of error. Id.

This Court’s jurisdiction to consider error from the original trial is also extremely limited. Error in the original plea proceeding must be appealed when the conditions of deferred adjudication were originally imposed. Tex.R.App. P. 25.2(a)(2), (d); Vidaurri v. State, 49 S.W.3d 880, 884 (Tex.Crim.App.2001). The time in which appellant could have appealed the original proceeding has passed, and appellant is barred from raising his first two points of error on this appeal.

Ás a result of our limited jurisdiction, we can only consider appellant’s fourth point of error.

Trial Judge Bias

Appellant essentially argues in his fourth point of error that the trial judge was biased because he believed the testimony of Manhtrang Nguyen, the original complainant^ which appellant characterizes as deceptive. The trial court, as the finder of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and may accept or reject all or any part of the witnesses’ testimony. Williams v. State, 911 S.W.2d 191, 194 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd). Showing simply that the trial court chose to believe one person’s testimony over another’s does not establish bias. See Ray v. State, 106 S.W.3d 299, 302 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (holding that a trier of fact’s decision is not erroneous merely because it resolves inconsistencies between testimony in favor of the State). Appellant fails to identify any other action taken by the trial court that could establish bias, and in reviewing the record, we find none.

We conclude that there is no merit to appellant’s fourth issue.

Conclusion

After considering appellant’s pro se response and conducting an independent examination of the appellate record, we conclude that there are no arguable grounds for appeal. Accordingly, we affirm the judgment of the trial court and grant appellant’s counsel’s motion to withdraw.

      . We recognize that Vidaurri was based on the former Rules of Appellate Procedure. Vidaurri v. State, 49 S.W.3d 880, 884-85 (Tex.Crim.App.2001); Tex.R.App. P. 25.2(b)(3), 66 Tex. B.J. 166 (Tex.1997, amended 2002). However, the text in the former Rule 25.2 that the Court of Criminal Appeals based its decision on is largely identical in the amended Rule. The historical notes to the amended Rule state, "The requirement in former subdivision 25.2(b)(3) that a plea-bargaining appellant’s notice of appeal specify the right of appeal is replaced by a requirement in subdivision 25.2(d) that the trial court certify the ' defendant’s right of appeal in every case in which a judgment or other appealable order is entered.” Tex.R.App. P. 25.2 cmt. Additionally, amended Rule 25.2(a)(2) lays out essentially the same requirements as former Rule 25.2(b)(3) and tracks the bases for appeal summarized in Vidaurri. Vidaurri, 49 S.W.3d at 883 (quoting Brown v. State, 943 S.W.2d 35, 41 (Tex.Crim.App.1997)). While the exact wording has changed to some degree, the ultimate purpose of the Rule has not. "

      . Appellant’s counsel maintains a duty to inform appellant of the result of this appeal and of the fact that he may, on his own, pursue discretionary review in the Court of Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim.App.1997); Stephens v. State, 35 S.W.3d 770, 771 (Tex.App.-Houston [1st Dist.] 2000, no pet.).


text:
    Gilbert Anthony MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00715-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 20, 2005.
    Discretionary Review Refused May 24, 2006.

      Robert Morrow, Hocker & Morrow, Boyd & Mathews, Spring, TX, for Appellant.
    Charles A. Rosenthal, Jr., District Attorney-Harris County, Alan Curry, Assistant District Attorney, Houston, TX, Ap-pellee.
    Panel consists of Justices NUCHIA, JENNINGS, and HIGLEY.
   OPINION

LAURA CARTER HIGLEY, Justice.

Appellant, Gilbert Anthony Martinez, was charged by indictment with murdering the complainant by shooting her with a deadly weapon, namely a firearm. See Tex. Pen.Code Ann. § 19.02 (Vernon 2003). The jury found appellant guilty as charged and assessed punishment at confinement for life.

In five issues, appellant contends that the trial court abused its discretion in (1) admitting DNA evidence from fingernail scrapings without a proper chain of custody, (2) refusing to strike the testimony of two witnesses who spoke to one another outside the courtroom, and (3) allowing hearsay into evidence over timely objections.

We affirm.

Background

On the night of November 2, 2000, appellant’s girlfriend, the complainant April Dykes, was found shot to death in Idyl-wood Park in Houston. Earlier that evening, April had gone to visit a neighbor, Albert Castillo. April and Castillo went to the corner store in Castillo’s car. Later, while they sat in the car and talked, appellant drove by, turned around, then parked near Castillo’s car. Appellant drove a black Cadillac with a white right-front panel.

Appellant got out and approached the passenger side of Castillo’s car. April ducked down in her seat to hide. Appellant saw April and told her to get out of Castillo’s car while cursing at her. April hesitated, telling Castillo that she did not want to get out. Castillo told her to stay in the car, but April replied, “That’s my boyfriend, I got to go.” April got into appellant’s Cadillac with appellant, Terrence “TJ” Brundage, and Alex Caballero, and the group headed toward Idylwood Park.

Shortly thereafter, Darryl Hickey and Sabrina Sheppard heard three gunshots from their respective homes near Idylwood Park. Hickey ran outside and saw three men running out of the park and getting into a dark-colored, older-model, four-door car with a light-colored front panel on the passenger side. Sheppard ran to the end of her driveway and saw a dark-colored vehicle with a white right-front panel at the park. She then saw three men run out of the park and get into the car. Hickey and Sheppard ran to the park and found April gasping for breath. Moments later, April died. Houston Police Sergeant Michael , Peters arrived at the scene, “bagged” April’s hands, and requested fingernail scrapings from the medical examiner.

The next day, Sergeant Peters received a report from Crime Stoppers that the shooter had been identified as “Gilbert Martinez.” Sergeant Peters located appellant and asked him to come in and give a statement. In his statement, appellant asserted that he was not with April at the time of the incident and did not know the circumstances surrounding her death.

' April’s autopsy revealed that she had been shot three times in the chest, once at close range. Among the samples submitted for DNA analysis were scrapings from under her fingernails. The analysis indicated that appellant could not be excluded as a possible contributor to the material recovered from April’s fingernails.

In January 2001, appellant told his ex-girlfriend Monica Parra that April was killed in his car during, a drive-by shooting. When Parra continued to question him as to why there were no bullet holes in his car, appellant admitted that he killed April.

In November 2001, appellant began dating Maya Blakely. Blakely asked appellant multiple times about April’s death over the course of several months. Appellant first asserted that she was killed by a jealous boyfriend. Eventually, appellant confessed that he shot April, and he took Blakely to Idlywood Park to show her where it occurred. Blakely contacted police, and appellant was arrested.

Chain of Custody

In his first issue, appellant contends that the “trial court abused its discretion in admitting DNA testimony concerning fingernail scrapings, when the chain of custody of those scrapings was not proven.”

A. Standard of Review and Applicáble Law

The standard of review for a trial court’s ruling under a rule of evidence is abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000). A trial court abuses its discretion when it acts without guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1991). We review the trial court’s ruling in light of what was before the trial court at the time the ruling was made and uphold the trial court’s judgment if it lies within the zone of reasonable disagreement. Weatherred, 15 S.W.3d at 542.

As a condition precedent to the admission of evidence, the trial court must be satisfied that the evidence offered is what the proponent claims. Tex.R. Evm 901(a); Angleton v. State, 971 S.W.2d 65, 67 (Tex.Crim.App.1998). This can be accomplished by testimony from a witness with knowledge that an item is what it is claimed to be. Tex.R. Evm 901(b)(1). The authentication requirement for admissibility is met once the State has shown the beginning and the end of the chain of custody, particularly when the chain ends at a laboratory. Gallegos v. State, 776 S.W.2d 312, 315-16 (Tex.App.-Houston [1st Dist.] 1989, no pet.). Any gaps and minor theoretical breaches go to the weight rather than the admissibility of the evidence, absent a showing of tampering. Medellin v. State, 617 S.W.2d 229, 232 (Tex.Crim.App.1981); Gallegos, 776 S.W.2d at 315-16.

B. Analysis

Appellant argues that the chain of custody was broken because there was no testimony from the “doctor who supposedly collected [the fingernail scrapings]” or from the person who transported the evidence from the medical examiner’s office to the crime lab. Appellant further asserts that there was no evidence showing how the fingernail scrapings were stored, tagged, or labeled or showing that the scrapings were given a consistent identifying number.

Contrary to appellant’s argument, testimony was offered to show that the chain of custody was maintained. Sergeant Peters testified that he bagged April’s hands at the crime scene and asked that fingernail scrapings be obtained by the Harris County Medical Examiner during the autopsy process.

The record reflects that Dr. Harminder Narula of the Harris County Medical Examiner’s Office performed the autopsy; however, Dr. Narula was unavailable to testify at trial. Instead, Deputy Chief Medical Examiner Dr. Dwayne Wolf testified regarding the autopsy evidence. Dr. Wolf testified that it is common for a medical examiner to review autopsy reports prepared by colleagues and to testify about the findings. Indeed, the Court of Criminal Appeals has stated that the testimony of someone other than the doctor who performed the autopsy is sufficient for admissibility purposes. Mays v. State, 726 S.W.2d 937, 951 & n. 7 (Tex.Crim.App.1986).

Dr. Wolf testified that April’s body was given a unique “medical legal number” upon arrival and that the same medical legal number was used to identify materials from the autopsy. Dr. Wolf stated that the autopsy records were made at or near the time of the events recorded, were kept in the regular course of business of that office, and were made by an employee with personal knowledge of the contents. Fingernail scrapings were collected from both hands by Dr. Narula’s assistant, while under Dr. Narula’s direct observation and supervision. A wooden stick was used to scrape the fingernails and the samples were folded into a white piece of paper and sealed in an envelope.

Sergeant Peters testified that he transported the fingernail' scrapings from the Medical Examiner’s Office to the Houston Police Department (“HPD”) Property Room. The scrapings were received by Hawan Wilson, in Centralized Evidence Receiving. Sergeant Peters also testified that he obtained a search warrant and brought appellant down to the HPD Crime Lab where he watched Dr. Joseph Chu obtain a blood sample from appellant.

Christy Kim, also of the HPD Crime Lab, testified that she received the fingernail scrapings from the property room and that the scrapings were “in the paper folds,” matching the description Dr. Wolf gave. Kim also testified that she received appellant’s blood sample and made blood stain cards. Kim extracted the DNA and sent out two samples. One was sent to Dr. Chu for analysis; a second sample was sent to Identigene by Connie Dieringer.

Senior Forensic DNA Analyst Robin Guidry testified that Identigene received seven items of evidence from the Houston Police Department, including fingernail scrapings from April and blood sample cards from appellant and Caballero. Gui-dry testified that Identigene’s chain of custody report states that the samples were delivered by Connie Dieringer, of the Houston Police Department, and received in person by Jennifer McCue, a DNA analyst at Identigene. The sealed evidence was given a unique identification number and placed in a secure frozen storage. Guidry testified that she retrieved the items from the freezer and performed the DNA analysis. She compared the scrapings with the blood stain cards and concluded that, while Caballero could be excluded, appellant could not be excluded as a contributor of the DNA material recovered from April’s fingernails.

Although there was no direct testimony by Dr. Narula, who performed the autopsy, or Hawan Wilson, who transported the evidence within HPD, the testimony of Sergeant Peters, Dr. Wolf, and Kim established the chain of custody of the fingernail scrapings from the scene, to the Medical Examiner’s Office, and then to the HPD Crime Lab. See Mays, 726 S.W.2d at 951 & n. 7. Further, the testimony of Kim and Guidry established the chain of custody from the HPD Crime Lab to the Identi-gene lab. Any gaps were minor and went to the weight of the evidence rather than its admissibility. Foster v. State, 101 S.W.3d 490, 498 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (holding that “particularly if the chain of custody through to the laboratory is shown,” gaps go to the weight, not admissibility of evidence).

Appellant does not assert that there is evidence of tampering or that the fingernail scrapings were not collected or transported according to Houston Police Department policies and procedures. See Lagrone v. State, 942 S.W.2d 602, 617 (Tex.Crim.App.1997) (concluding that, without questions of tampering, most questions concerning care of a substance will go to weight and npt to admissibility). Absent such evidence, the chain of custody evidence was sufficient for the State to meet its burden.

We conclude that the trial court did not abuse its discretion in admitting the DNA evidence obtained from the fingernail scrapings. The testimony elicited by the State was sufficient for the trial court to have determined that the DNA evidence was derived from the material recovered from April’s fingernails and was thus what it was purported to be. Deciding what weight to give to the evidence was within the province of the jury. We hold that the trial court did not abuse its discretion in admitting the DNA testimony and evidence.

Appellant’s first issue is overruled.

“The Rule”

In his second issue, appellant contends that the trial court “erred by refusing to strike the testimony of two State witnesses who violated the rule against discussing testimony with each other” prior to testifying. The record reflects that Rule of Evidence 614 was invoked at the beginning of trial and that the trial court admonished all witnesses not to “discuss the case with anyone; not with each other or anyone else” and asked all witnesses to leave the courtroom until called.

Because of their claims that appellant confessed to killing April, Monica Parra and Maya Blakely were key witnesses and were listed on the State’s witness list. During cross-examination, defense counsel asked Blakely if she‘ had spoken with Par-ra outside the courtroom while both waited to be called to the stand. Blakely responded that she had. Defense counsel asked her if she and Parra had discussed any facts relating to their testimony. Specifically, appellant complains of the following testimony by Blakely:

A.... I didn’t tell her, you know, details. But she knew I was testifying against Gilbert.
Q. I mean, did she talk — I don’t mean details, like the date he came over, " and how long he stayed. But, I mean, generally, did you talk about, you know, yeah, he told me this. And, you know, he told me the same kind of things, and that’s why I’m down here?
A. Yeah.
Q. You talked about — did y’all talk about — had she already testified when you talked to her, or do you know?
A. I think she was about to testify..
Q. Okay. So, y’all talked about the fact that you were going to testify that . he, essentially, confessed to you?
A. Well, she was — she was asking me, did he tell you about the murder? Or this and that? And I told her, yeah. 'But as far as going, you know, details, I didn’t tell her any details. She was asking me, you know, are you testifying against Gilbert? And she was telling me, you know, what he had told her.

After this exchange, the jury was dismissed for the day and defense counsel moved to strike the testimony of Parra and Blakely on the ground that they violated “the Rule.” The State explained to the trial court that both witnesses had arrived at the courthouse on the day after the court gave its admonishments to the witnesses and that they had not been in the courtroom to hear the admonishments. However, the prosecution stated that it had warned the witnesses not to talk to one another about their testimony.

A. Standard of Review and Applicable Law

Rule of Evidence 614, commonly known as “the Rule,” provides for the exclusion of witnesses from the courtroom during trial. Tex.R. Evid. 614. The purpose of Rule 614 is to prevent the testimony of one witness from influencing the testimony of another. Russell v. State, 155 S.W.3d 176, 179 (Tex.Crim.App.2005); Phillips v. State, 64 S.W.3d 458, 459 (Tex.App.-Houston [1st Disk] 2001, no. pet.). Once Rule 614 is invoked, witnesses are instructed by the court that they cannot converse with one another or with any other person about the case, except by permission from the court. Tex.Code CRiM. PROC. Ann. art. 36.06 (Vernon 1981); Russell, 155 S.W.3d at 179. Further, the trial court must exclude witnesses from the courtroom during the testimony of other witnesses. Tex.R. Evid. 614. However, if a witness violates this rule, the trial court still has discretion to allow testimony from the witness. Bell v. State, 938 S.W.2d 35, 50 (Tex.Crim.App.1996). On appeal, the trial court’s decision to admit testimony will not be disturbed absent an abuse of that discretion. Id.

In reviewing the trial court’s decision to allow testimony, we determine whether the appellant was harmed or prejudiced by the witness’s violation. Id. Harm is established by showing that (1) the witness actually conferred with or heard testimony of other witnesses and (2) the witness’s testimony contradicted the testimony of a witness from the opposing side or corroborated testimony of a witness she had conferred with or heard. Id.

B. Analysis

The first prong of the test for harm has been met; Blakely admitted to talking to Parra about the ease after the Rule was invoked. Under the second prong, while Parra and Blakely’s testimonies corroborated each other in that they both testified that appellant confessed to killing April, their testimonies consisted of separate confessions given under different circumstances with separate facts revealed in each.

Parra testified that appellant had originally maintained that April was killed in his car during a drive-by shooting. Parra testified that, when she continued to question him as to why there were no bullet holes in his car, appellant finally stated, “I killed her.” Parra testified that she asked him why and that he would not respond. This confession came in January 2001.

In November 2001, Blakely and appellant began dating. Blakely testified that she asked about April’s death and that appellant initially explained that April’s ex-boyfriend was very jealous and had stabbed appellant and shot April. Blakely testified that she felt he was hiding something, so she continued to question him. Finally, during a telephone conversation, Blakely threatened to end the relationship if appellant did not tell the truth. Appellant agreed but insisted that she come to his house because his telephone had been tapped. Blakely testified that, at the house, appellant stated that he believed April was cheating on him because he found her in his car with some of his friends. Appellant told Blakely the details surrounding his taking April to Idylwood Park and then shooting her three times in the chest. Appellant then took Blakely to Idylwood Park, where he showed her the location of the incident (by a tree near a ditch) and told her specific details about April’s body (such as the blood he saw in her mouth).

In Bell, a police investigator remained in the courtroom during the trial even though Rule 614 had been invoked. Bell, 938 S.W.2d at 50. However, because his testimony and opinions were “clearly.... based upon his own experiences and investigations” and not “based upon any testimony from appellant’s witnesses,” and because there was no evidence to suggest the testimony he heard influenced him, the court found no abuse of discretion in allowing his testimony. Id. at 51.

Here, as in Bell, there is no evidence that Parra or Blakely’s testimony was influenced by ,the other, and both had vastly different experiences to relate to the court. Parra and Blakely discussed different facts that Gilbert had related to them, and only one had details of the murder. There were very few details that the two had in common that would raise doubts as to the veracity of either witness’s testimony. It was well within the trial court’s discretion to decide whether the testimony would be allowed to stand.

We conclude that the trial court did not abuse its discretion in admitting the testimony of Blakely and Parra because, even if they violated the trial court’s instructions by conversing with one another, there is no evidence that appellant was harmed or prejudiced by the violation. Id.

Appellant’s second issue is overruled.

Hearsay

In his third, fourth, and fifth issues, appellant contends that the trial court erred by allowing hearsay into evidence on multiple occasions over timely objections.

A. Standard of Review and Applicable Law

We review the trial court’s admission of testimony under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex.Crim.App.2001). We will uphold the trial court’s decision unless it lies outside the “zone of reasonable disagreement.” Id.

Hearsay is a statement, other than one made by the declarant while testifying at trial, that is offered to prove the truth of the matter asserted. Tex.R. Evid. 801(d). An extrajudicial statement or writing that is offered- for the purpose of showing what was said rather than-for proving the truth of the matter stated therein does not constitute hearsay. Dinkins v. State, 894 S.W.2d 330, 347 (Tex.Crim.App.1995); see Ellis v. State, 99 S.W.3d 783, 788 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd).

'• Hearsay statements are generally inadmissible. Tex.R. Evid. 802. However, there are a number of exceptions to this general proscription. See Tex.R. Evid. 803. -Determining whether an out-of-court statement falls under an exception to the hearsay rule is within the trial court’s discretion. Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App.1994).

B. Analysis

In his third issue, appellant contends that the trial court erred in admitting Sergeant Peters’s testimony concerning the information he received from Crime Stoppers as hearsay.

Sergeant Peters testified that, on November 3, 2000, the day after the murder, he received a call from Crime Stoppers reporting that April had been shot by a “Gilbert Martinez.’’’ Sergeant Peters testified that appellant initially became a suspect based on that information.

Testimony by a police officer offered to explain how the officer came, to suspect the accused, and not offered for the truth of the matter asserted, is not hearsay. Dinkins v. State, 894 S.W.2d at 347. The Crime Stoppers tip was offered to show how Sergeant Peters began to suspect appellant, not to prove that appellant was guilty of the crime. Sergeant Peters’s testimony was not hearsay and therefore the trial court did not abuse its discretion in overruling appellant’s objection.

In appellant’s fourth and fifth issues, appellant contends that Albert Castillo’s testimony about his conversation with April and her demeanor in his car on the evening of her murder was hearsay. Castillo testified that April told him that she wanted to leave appellant and that she sounded scared when appellant approached. Appellant argues that this testimony suggested that “appellant was violent and bad-tempered, making it more likely that he killed her.”

As the State contends, these statements fall under the “state of mind” exception. Hearsay statements relating to the declar-ant’s existing state of mind — such as mental feelings or intent — are generally admissible when that conduct is relevant to some aspect of the case. Tex.R. Evid. 803(3); Martinez v. State, 17 S.W.3d 677, 688 (Tex.Crim.App.2000). Castillo’s testimony that April was scared was a statement of her then existing state of mind, and hence subject to the exception. There was no “statement of memory or belief to prove the fact remembered or believed,” which would have made the statement inadmissible. Tex.R. Evid. 803(3).

We conclude that the complained-of statements to which Castillo testified indicated complainant’s state of mind at the time they were made (i.e., her fear and intentions of leaving appellant) and were, therefore, admissible under Rule of Evidence 803(3). Accordingly, we hold that the trial court did not abuse its discretion in admitting the testimony.

Appellant’s third, fourth, and fifth issues are overruled.

Conclusion

We affirm the judgment of the trial court.