source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Timothy SATRE, Appellant, v. Deborah DOMMERT, Appellee, and In re Timothy Satre.
    Nos. 09-05-249 CV, 09-05-301 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Nov. 17, 2005.
    Decided Jan. 26, 2006.

      Gerald R. Flatten, Rienstra, Dowell & Flatten, Beaumont, for appellant/relator.
    Wayne Reaud, The Reaud Law Firm, L. Dewayne Layfield, Law Office of L. De-Wayne Layfield, Beaumont, Johathan Craig Falls, The Falls Law firm, Austin, for appellee/real party in interest.
    Before GAULTNEY, KREGER and HORTON, JJ.
   OPINION

PER CURIAM.

This mandamus proceeding and interlocutory appeal concern the applicability of arbitration provisions. We dismiss the interlocutory appeal and determine the trial court abused its discretion in denying the relator’s motion to compel arbitration.

Background

Over a period of approximately eighteen months, Deborah Dommert established five accounts with Raymond James & Associates, Inc., a member of the New York Stock Exchange. Timothy Satre, a certified financial planner and authorized representative of Raymond James Financial Services, opened the accounts for Dom-mert. Dommert and Satre both signed all of the new account forms. Alleging that the management of her accounts caused her to suffer financial losses, Deborah Dommert sued Raymond James Financial Services, Inc. (“RJFS”), Timothy Satre, Raymond James & Associates, Inc. (“RJA”), and Raymond James Financial, Inc., the parent corporation of RJFS and RJA.

Satre and each of the corporate defendants moved to compel arbitration of the entire dispute based upon the arbitration clause in the Client Agreement. On May 19, 2005, the trial court denied all of the defendants’ motions to compel arbitration. Aso, at the same hearing, and at Dom-mert’s request, the trial court severed Dommert’s claims against Satre from her claims against the corporate defendants, making Satre the sole defendant in Cause No. B~172,804-A.

On May 31, 2005, Dommert filed an amended petition against Satre and omitted the contention that Satre was an agent or employee of RJFS. On July 7, 2005, Satre timely filed a petition for writ of mandamus asserting that the trial court abused its discretion in denying his motion to compel arbitration.

Mandamus relief is available to correct a clear abuse of discretion or the violation of a legal duty when there is no adequate appellate remedy. In re J.D. Edwards World Solutions Co., 87 S.W.3d 546, 549 (Tex.2002)(compelling arbitration when arbitration agreement applied to claims at issue and there were no defenses to enforcement of the agreement). Also, a trial court abuses its discretion if it erroneously applies the law to the facts, or if it errs in determining the law. In re Bruce Terminix Co., 988 S.W.2d 702, 703 (Tex.1998) (orig.proceeding). Under the Federal Arbitration Act (“FAA”), “upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.” 9 U.S.C.A. § 4 (1999). Thus, the FAA directs a trial court to refer the matter to arbitration if there is a valid agreement to arbitrate a dispute that falls within the scope of the arbitration agreement.

The Arbitration Clause

Each of the five new account forms signed by Dommert stated that her accounts were subject to a “binding arbitration clause and other provisions substantially affecting [her] rights.” Each of the new account forms incorporated by reference a document titled “Client Agreement” that contained an arbitration clause.

The parties dispute the applicability of the arbitration clause because after Dom-mert opened her initial account on May 11, 1998, she executed an agreement titled “Investment Management Service Agreement” (“IMSA”). The IMSA purports to be the entire agreement between Dom-mert and RJA. The IMSA does not contain an arbitration clause, and does not refer to the Client Agreement. Dommert asserts that the IMSA governs her relationship with Satre; while Satre, on the other hand, asserts the Client Agreement governs.

The Client Agreement, which was incorporated into the new account forms executed by Dommert and Satre on each of Dommert’s five accounts, provides:

Arbitration and Dispute Resolution:
(a) In a dispute or controversy, either arising in the future or in existence now, between me and you (including your officers, directors, employees or agents and the introducing broker, if applicable) we agree to first endeavor to settle the dispute in an amicable manner by mediation before the National Association of Securities Dealers, Inc. at the request of either party. Thereafter, any unsettled dispute or controversy will be resolved by arbitration conducted before the New York Stock Exchange, Inc., the National Association of Securities Dealers, Inc., or the American Stock Exchange, Inc., or other self-regulatory organizations (SRO) subject to the jurisdiction of the Securities and Exchange Commission (SEC) pursuant to the arbitration rules of the Exchange or SRO, and in accordance with the United States Arbitration Act (Title 9 of the United States Code).

Agreement to Arbitrate

We must initially determine whether the parties to this appeal agreed to arbitrate their underlying dispute. Safer v. Nelson Fin. Group, Inc., 422 F.3d 289, 293 (5th Cir.2005). A party moving to arbitrate a dispute must prove that a valid agreement to arbitrate exists, and that the dispute falls within the scope of the agreement. Will-Drill Res., Inc. v. Samson Res. Co., 352 F.3d 211, 214 (5th Cir.2003); J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.2003). Thus, we examine the record to determine whether Satre met his burden under the FAA to show the existence of a valid agreement.

With respect to the agreements in question, the parties do not disagree that Dom-mert signed the new account forms. However, the parties disagree that the Client Agreements defined the relationship between Dommert and Satre, and disagree that Satre, individually, benefited from the arbitration agreement. Thus, the issues in this case are whether the current agreement of the parties includes a valid arbitration agreement, and whether Satre, who is not specifically named in the provisions of the various Client Agreements, is entitled to enforce them.

We first examine the evidence regarding whether Dommert and Satre are bound by the arbitration provisions in the Client Agreements. On May 11, 1998, after meeting with Satre, Dommert established a financial relationship with RJA by opening two new accounts. One of these accounts was an individual account, and the other was an Individual Retirement Account. On both of the new account forms signed by Dommert to open these accounts, Dommert acknowledged: “I have received, read, understand, and agree to abide by all the terms and conditions set forth in the Client Agreement incorporated herein by this reference. The Client Agreement contains a binding arbitration clause and other provisions substantially affecting my rights. * * * I have detached and retained the Client Agreement for my records. * * * ”

The Client Agreements applicable to all of the accounts also provided:

I/we acknowledge and agree that my/ our relationship with Raymond James & Associates, Inc. is governed by the provisions of this agreement. Throughout this agreement, “I”, “me”, “we” and “us” refer to the undersigned and any other actual or beneficial owner of property in this account. “You” and “your” refer to Raymond James & Associates, Inc. and the introducing broker, if applicable.

Dommert argues that based on this language in the Client Agreements, Satre is not a party to the Client Agreement.

By signing the new account form, Dom-mert acknowledged in writing her agreement to abide by all of the terms of the Client Agreement. At the hearing on the motion to compel arbitration, Dommert attempted to avoid the terms of the Client Agreement by introducing her affidavit in which she swore that “I did not receive or sign a Client Agreement. I never agreed to arbitrate my claims against the Defendants in this matter.” The evidence at the hearing also included Dommert’s deposition testimony in which she testified, under oath, that when she initially signed the new account forms she read all of their provisions, including the provision that she received and retained the Client Agreement. Dommert further testified that she was not tricked into signing the new account forms.

Dommert’s argument that she did not receive or sign the Client Agreement itself is without merit. An unsigned document containing an arbitration clause, such as the unsigned client agreement in this case, may be incorporated by reference into another signed document. Teal Const Co. v. Darren Casey Interests, Inc., 46 S.W.3d 417, 420 (Tex.App.-Austin 2001, pet. denied). Also, a party’s failure to read a portion of a contract’s provisions is no defense to the enforcement of the contract’s terms. In the case of In re McKinney, 167 S.W.3d 833, 835 (Tex.2005) (orig.proceeding), the Texas Supreme Court confirmed that “[a]bsent fraud, misrepresentation, or deceit, a party is bound by the terms of the contract he signed, regardless of whether he read it or thought it had different terms.” We hold that the signed new account forms incorporated the unsigned arbitration provisions contained in the Client Agreements.

Next, we examine the arbitration clause in the Client Agreement to determine whether Satre was a party to it. Although not expressly named in the arbitration clause, the arbitration clause expressly extends to RJA’s agents. Therefore, we examine the record for the evidence introduced at the hearing regarding whether Satre was an agent of RJA.

At the time of the hearing on May 19, 2005, Dommert’s live pleading consisted of her Second Amended Petition, in which she asserted that Satre “did business as an authorized representative of RJA [Raymond James & Associates, Inc.].” Assertions of fact, not pleaded in the alternative, and contained in the live pleadings of a party to the suit are formal judicial admissions. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex.2001).

On May 31, 2005, Dommert subsequently amended her complaint after the Motion to Compel Arbitration hearing and dropped her allegation that Dommert was RJA’s agent. Dommert’s amended complaint was filed more than seven days after the hearing on the Motion to Compel Arbitration and after the trial court entered its order denying Satre’s Motion to Compel Arbitration. Because Dommert’s Second Amended Petition constituted the evidence considered by the trial judge at the time of the hearing on May 19, 2005, we disagree with Dommert’s contention that Satre presented no evidence that he was a party to the arbitration agreement. Based on Dommert’s admission in her pleadings, the evidence for purposes of the hearing conclusively proved that Satre was RJA’s agent. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex.2000); Mendoza v. Fidelity and Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980).

In summary, the record shows that: (1) the terms of the Client Agreements were by law incorporated by reference into the new account agreements’ terms; (2) Dom-mert signed the new account agreements and was notified that they incorporated an arbitration provision; (3) Dommert’s live pleading on file at the time of the hearing consisting of her Second Amended Petition established that Satre was RJA’s agent; and (4) the arbitration clause in question extends to Satre as RJA’s agent. Therefore, we find that Satre made a prima facie case that Dommert and Satre initially entered into an arbitration agreement under the FAA.

But, resolving these issues does not resolve the matter entirely. The continued validity of the arbitration clauses in the Client Agreements also depends upon whether the terms of the Client Agreements were superseded by the terms contained in the Investment Management Service Agreement (“IMSA”). Dommert argues that the IMSA agreement’s entire-ties clause operates to allow the IMSA to supersede all Client Agreements, whether made before or after the date the IMSA was signed. On the other hand, Satre argues that he was not expressly named as a party to the IMSA, and thus contends that he is entitled to enforce the arbitration clause in the Client Agreement.

On the same date that Dommert opened the initial two accounts, and subsequent to signing the two new account forms for those two accounts, Dommert executed the IMSA. The IMSA contains no arbitration clause, and contains a modification clause that states:

Modification.
This Agreement cannot be modified unless the modification is in writing and is signed by your President, Treasurer, or Corporate Counsel. I understand that this written document represents the entire Agreement between you and me, and that any previous or oral representations or promises, if not contained in this Agreement, are of no effect.

By executing the IMSA, Dommert appointed RJA as her attorney-in-fact, and gave it discretion to make investments without her advance consent. In the top right hand corner, the IMSA document references the account number established for the individual account that Dommert opened on May 11, 1998. The IMSA does not expressly reference the account numbers on Dommert’s Individual Retirement Account or other accounts.

Whether one contract executed in a series of contracts is intended by the parties to become the sole agreement presents a question under the merger doctrine. Generally, when a written agreement is fully integrated, the parol evidence rule precludes the enforcement of inconsistent prior or contemporaneous agreements. Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30, 31 (1958). “Merger, with respect to the law of contracts, refers to the extinguishment of one contract by its absorption into another contract and is largely a matter of the intention of the parties.” Smith v. Smith, 794 S.W.2d 823, 827-828 (Tex.App.-Dallas, 1990, no writ). “An integration clause is in essence the merger doctrine memorialized.” Id. at 828.

The IMSA expressly provides that it is “between Investment Advisory Services (hereinafter referred to as TAS’), a Division of Raymond James & Associates, Inc. and Deborah A. Dommert (hereinafter referred to as ‘Client’), who has appointed IAS to perform the investment services described below in accordance with the terms and conditions of this Agreement.” Unlike the Client Agreement, there is no language extending the terms of the IMSA to RJA’s agents.

Dommert expressly states in her brief that Satre is not a party to the IMSA. Satre also states in his brief that he is not a party to the IMSA. Finally, the testimony before the court on whether Satre was a party to the IMSA consisted of the deposition testimony of Paul Matecki, the Senior Vice President of Raymond James Financial, Inc., which is the parent corporation of RJA. Matecki testified that Satre was not a party to the IMSA.

On this record, the documents and testimony are consistent and are not contradicted. We therefore accept as a fact that Satre was not a party to the IMSA. Tex. R.App. P. 38.1(f). Aso, under the facts before the trial court, the evidence was conclusive that Satre was a party to the Client Agreements, but was not a party to the IMSA.

Before the merger doctrine applies to a contract, the later contract must be between the same parties. Kona, Technology Corp. v. Southern Pacific Transp. Co., 225 F.3d 595, 612 (5th Cir.2000); Fish v. Tandy Corp., 948 S.W.2d 886, 898-99 (Tex.App.-Fort Worth 1997, writ denied) (agreements between different parties cannot merge). Here, the parties are not identical because Satre is not a party to the IMSA. As a result, the merger doctrine does not apply with respect to Satre’s contractual rights because Satre was not a party to both contracts at issue. We hold that Satre met his burden of showing a valid arbitration agreement existed with Dommert.

Although Dommert does not argue that the arbitration clauses in the Client Agreements do not reach the complaints she makes in her suit against Satre, Satre also bore the burden of showing that Dommert’s claims fall within the scope of the arbitration agreement. Cantella & Co., Inc. v. Goodwin, 924 S.W.2d 943, 944 (Tex.1996). Dommert’s complaints against Satre relate to Satre’s representations of his skill as a money manager, his promise to personally and professionally manage her assets, his recommendation to her of an outside manager in which she placed a large percentage of her assets, his alleged failure to adequately disclose his financial arrangement with this outside manager, his subsequent alleged failure to manage Dommert’s assets “in the face of the worst stock market in recent history,” and his execution of trades in her account in disregard of her instructions not to sell certain of her stock holdings. Dommert’s legal theories included claims against Satre for breach of fiduciary duties, breach of contract, fraud, misapplication of fiduciary property, accounting, violations of the Texas Deceptive Trade Practices Act, and commercial bribery.

It is clear that the Client Agreement contemplated the purchase and sale of securities. The arbitration clause indicates that it applies to “any unsettled dispute or controversy.”

All of Dommert’s claims against Satre concern Satre’s representations in convincing her to hire him as her investment adviser and his subsequent actions in managing her accounts. The Fifth Circuit held that a similar arbitration clause was sufficiently broad to require the arbitration of several investors claims against their financial advisers for: (1) inappropriate investments; (2) misrepresentation; (3) breach of fiduciary duty; (4) violation of federal securities law; and (5) negligence. Safer, 422 F.3d 289 at 293. The Texas Supreme Court has likewise enforced broad arbitration clauses to require arbitration for the types of claims that are alleged against Satre. See In re McKinney, 167 S.W.3d at 834 (alleging claims for breach of contract, fraud, breach of fiduciary duty, and other claims for mishandling and loss of investments in his account); In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753 (Tex.2001)(alleging claims for breach of contract, revocation of acceptance, breach of warranty, negligence, fraud, violations of the Deceptive Trade Practices Act, Fair Debt Collection Practices Act, Equal Credit Opportunity Act and Fair Credit Reporting Act, and injunc-tive relief); and Cantella, 924 S.W.2d at 944 (alleging claims for fraud, Texas Securities Act violations, negligence and gross negligence). We likewise hold that the claims asserted by Dommert fall within the scope of the Client Agreements’ arbitration clauses.

Conclusion

Both Satre and Dommert signed a contract incorporating an arbitration clause by reference. The arbitration provision was not superseded by subsequent agreements. Accordingly, we hold the trial court abused its discretion in denying Sa-tre’s motion to compel arbitration. We conditionally grant the writ of mandamus and order the trial court to vacate its order denying Satre’s motion to compel arbitration, and to enter a new order compelling arbitration of all of Dommert’s claims against Satre. We are confident the trial court will comply, and our writ will issue only if it does not. We further dismiss Satre’s interlocutory appeal.

DISMISSED IN PART; WRIT CONDITIONALLY GRANTED.

      . Satre also timely filed his notice of appeal from the trial court’s order denying his motion to compel arbitration. The arbitration clause at issue expressly provides for arbitration in accordance with the United States Arbitration Act, and Dommert stipulated in her response to the petition for writ of mandamus that the federal Act applied. The investment advice that is the subject of this dispute involved the sale of securities; and, agreements that involve the sale of securities affect interstate commerce. In re Whitfield, 115 S.W.3d 753, 757 (Tex.App.-Beaumont 2003, orig. proceeding); Eurocapital Group, Ltd. v. Goldman Sachs & Co., 17 S.W.3d 426, 430 (Tex.App.-Houston [1st Dist.] 2000, no pet.); Thomas James Assocs., Inc. v. Owens, 1 S.W.3d 315, 319 (Tex.App.-Dallas 1999, no pet.). Accordingly, because we agree the federal Act applies, we dismiss Satre's interlocutory appeal as immaterial and consider his petition for mandamus. See In re Nexion Health at Humble, Inc., 173 S.W.3d 67, 69-70 (Tex.2005)(holding that because the arbitration agreement was governed by the federal Act and mandamus is available, appellant’s interlocutory appeal under the state Act was "immaterial.”).


author: BRIAN QUINN, Chief Justice.

text:
    Janie SANCHEZ and Kenneth Adams, Appellants, v. Lowry SCHAUB, M.D. and Kevin Crawford, M.D., Appellees.
    No. 07-04-0057-CV.
    Court of Appeals of Texas, Amarillo.
    Feb. 2, 2006.
    Rehearing Overruled March 27, 2006.
    Amy K. Witherite, Eberstein & Wither-ite, L.L.P., James Rauer M.D., Dallas, Richard N. Countiss, Countiss Law Firm, Houston, Todd Michael Hurd, Shotts, Hurd & Ziegler, L.L.P., Lubbock, for appellants.
    Jim Hund, Cory D. Halliburton, Hund & Harriger, L.L.P., Lubbock, for appellee Lowry Schaub M.D.
    Benjamin H. Davidson II, Jeannie N. Marrow, McCleskey, Harriger, Brazill & Graf, L.L.P., Lubbock, for appellee Kevin Crawford, M.D.

      Before QUINN, C.J. and CAMPBELL, J.

      . Ex-Chief Justice Philip Johnson originally sat on the panel that heard oral argument on this case. However, he did not participate in this opinion.

   Opinion

BRIAN QUINN, Chief Justice.

The dispute before us involves informed consent and whether Janie Sanchez gave same to Lowry Schaub, M.D., and Kevin Crawford, M.D., before performing a stel-late ganglion block on her. According to the record before us, the block was her third under the recommendation or with the approval of Crawford. At the time, Crawford and Schaub had just completed a procedure whereby they placed Sanchez under general anesthesia and manipulated her wrist. Some time before undergoing the wrist manipulation but after having received the first two ganglion blocks, Sanchez verbally told Crawford that she did not want any more blocks. Because of this, Crawford suggested the wrist manipulation as an alternative.

The record further indicates that after Sanchez received the third block while under general anesthetic, a large abscess developed at the site of the injection. This resulted in her experiencing pain and eventually having several of her spinal discs fused. So, Sanchez sued the two doctors, contending, among other things, that they acted without her informed consent. Upon entertaining cross-motions for summary judgment, the trial court granted those of Crawford and Schaub while denying that of Sanchez. The two doctors had argued that their patient had consented to the block via the written consent forms executed before undergoing the manipulation. We reverse the summary judgment.

Three issues are before us. The first concerns whether Crawford and Schaub were entitled to judgment as a matter of law. The second involves whether Sanchez proved the lack of consent as a matter of law. The third covers whether the trial court erred in purportedly excluding parol evidence. We now address the first.

Informed Consent

As previously mentioned, Sanchez purportedly told Crawford of her refusal to undergo further blocks or other treatment entailing injections for the pain in her wrist. Nevertheless, she signed several consent forms granting him and Schaub authority to proceed with the manipulation and administer anesthetics. Therein appeared the following language:

I ... understand that my physician may discover other or different conditions which require additional or different procedures than those planned. I ... authorize my physician, and such associates, technical assistants and other health care providers to perform such other procedures which are advisable in their professional judgment ...[;]
I ... do hereby voluntarily consent and request such diagnostic procedures, hospital care, medical, surgical or x-ray treatment by Dr. Crawford, and such associates, assistants, designees, or other health care providers as are necessary in the judgment of the doctor, and further authorize the performance of such diagnostic studies or procedures which, in the professional opinion of such doctor, are advisable to attempt to remedy the condition(s) which have been explained to me as fracture left distal radius[;]
It has been explained that during the course of the operation and the proee-dure(s) named herein, other or different conditions may be revealed that necessitate an extension of the original proee-dure(s) or additional or different procedure(s) than those set forth herein. I ... therefore authorize and request such doctor, his associates, assistants, designees, or other health care provider to perform such procedures as are advisable in the professional judgment of such doctor. The authority granted herein shall extend to remedying all conditions that require treatment and which may not be known to such doctor at the time the procedure(s) or operation is commenced ...[;]
I ... understand that anesthesia involves additional risks and hazards but I ... request the use of anesthetics for the relief and protection from pain during the planned and additional procedures. I ... realize the anesthesia may have to be changed possibly without explanation to me ...; [and,]
I ... consent to the administration of any anesthesia deemed advisable to be applied by or under the direction of Dr. Schaub and/or an anesthesiologist on the Medical Staff of Methodist Hospital.

(Emphasis added). From the above, we see that the forms spoke in terms of informed consent viz the medical procedures to be completed and the anesthetics to be administered. Moreover, the words used withheld from the doctors unbridled discretion to act. For instance, their authority to undertake procedures other than the wrist manipulation (which the forms expressly alluded to) was conditioned by such terms as “advisable in their professional judgment,” “necessary in the judgment of the doctor,” “in the professional opinion of such doctor, are advisable,” “advisable in the professional judgment of such doctor,” and “require[d].” In other words, Crawford (who was to perform the manipulation) was given permission to undertake other medical procedures, but they had to be necessary, required, or advisable in his professional judgment.

Similarly conditioned was the anesthesiologist’s (ie. Schaub’s) discretion in administering anesthetics. Though one form stated that Sanchez consented to the “administration of any anesthesia,” the anesthesia and its mode of administration had to be “advisable.” The other form said nothing about the anesthesia being advisable by anyone. Yet, there, the “use of anesthetics” was linked to “the relief and protection from pain during the planned and additional procedures.” (Emphasis added). So, the administration of anesthetics under the second form was dependent upon the medical procedures pursued, which, in turn, were dependent upon the doctor’s professional judgment and opinion. Thus, the ability of the physicians to act and the scope of consent granted by Sanchez revolved around and were limited by concepts such as necessity, judgment, and advisability.

Next, authority holds that when practicing medicine, doctors represent that they possess the reasonable degree of skill and learning possessed by others in their profession. Zapata v. Rosenfeld, 811 S.W.2d 182, 184 (Tex.App.-Houston [1st Dist.] 1991, writ denied); Dennis v. Allison, 678 S.W.2d 511, 513 (Tex.App.-El Paso 1984), aff'd, 698 S.W.2d 94 (Tex.1985); accord Schneider v. Haws, 118 S.W.3d 886, 890 (Tex.App.-Amarillo 2003, no pet.) (stating that physicians need only exercise ordinary or reasonable care and skill under the circumstances). So too is it implicit in the performance of their trade that they will use reasonable and ordinary care and skill in the application of such knowledge to accomplish the purpose for which they are employed, Dennis v. Allison, 678 S.W.2d at 513, and that they will exercise their best judgment. Zapata v. Rosenfeld, 811 S.W.2d at 184. And, the standard against which one assesses whether these representations and duties were met is one of a reasonable physician in like circumstance. In other words, the exercise by a physician of his judgment is gauged against the accepted standards in the medical community. Russell v. Murphy, 86 S.W.3d 745, 749 (Tex.App.-Dallas 2002), rev’d on other grounds, 167 S.W.3d 835 (Tex.2005); see Murphy v. Russell, 167 S.W.3d 835, 839 (Tex.2005) (recognizing that a physician’s performance of a medical procedure without prior informed consent may not necessarily result in liability if circumstances exist which, under the applicable standard of care, justify the conduct, and expert testimony may be needed to determine that). With that said, we turn to the circumstances before us.

Upon comparison of the phrases used to describe the authority afforded both doctors via the consent forms with the general duties imposed upon physicians by the law, we conclude that the forms were little more than a reiteration of the law. The former merely stated that Crawford and Schaub were accorded the ability to invoke their judgment while the latter imposed upon them the obligation to exercise their best judgment. So, the consent forms at bar actually afforded them no more or less authority and protection than that given by law. Given this, we must also conclude that whether they exceeded the leeway granted and thereby exposed themselves to liability for undertaking a procedure outside the scope of Sanchez’ consent depended upon whether their actions, under the circumstances appearing before them, comported with objective standards of care applicable to those in their profession. Thus, their determination that the ganglion block was needed was not alone enough to shield them from liability if the decision nonetheless deviated from those standards of care, and we reject their argument to the contrary. Again, what mattered is whether the decision to administer the block comported with objective medical standards of care under the circumstances before them.

Moreover, the record contains evidence indicating that not only would Sanchez have refused Crawford and Schaub permission to undertake the block had she been asked but also that she purportedly refused to undergo such a procedure before agreeing to the manipulation. Furthermore, one can reasonably infer from that evidence (assuming it was to be believed) that Crawford knew of her refusal when discussing the block with Schaub since he was the one whom Sanchez told and who suggested the manipulation due to her refusal. To this, we add expert testimony appearing of record that: 1) “the standard of care ... required Schaub to wait until recovery from the general anesthesia to obtain actual and meaningful informed consent for the procedure before performing the stellate ganglion block ... ”; 2) “the standard of care ... required that if a stellate ganglion block is to be performed without informed consent and while the patient is unconscious ... the patient have an emergency condition involving life or death”; 3) “the standard of care ... require[d] that a stellate ganglion block should never be administered while the patient is unconscious, unless there is a medical emergency involving life or death”; and, 4) “the accepted standard of care in ordering and administering a stellate ganglion block procedure require[d] the patient to be awake and able to respond and report to the medical care provider.” Furthermore, we are cited to no evidence of record suggesting that there existed an emergency involving Sanchez’ life or death when Crawford and Schaub opted to perform the block. Nor did our own review uncover any. Rather, it revealed the presence of evidence illustrating that the injection was made to assure the effectiveness of the wrist manipulation, not to address some medical emergency encompassing Sanchez’ life or death.

In short, there appears evidence of record raising material issues of fact regarding whether the actions of Crawford and Schaub comported with accepted medical standards when performing the block. This, in turn, means that material issues of fact exist regarding whether the two physicians acted within the scope of consent granted by Sanchez. Thus, they were not entitled to judgment as a matter of law. Yet, we cannot say that Sanchez was entitled to judgment as a matter of law either. This is due to the testimony of Crawford and Schaub indicating that in their view the administration of the block was a necessary procedure under the circumstances. Given this contradictory evidence, we have no choice but to allow a factfinder opportunity to resolve the controversy.

Exclusion of Parol Evidence

As for the issue involving parol evidence, we must overrule it. We do so not because the trial court acted within the scope of its discretion when ruling but rather because we know of no particular evidence it excluded.

In granting the summary judgment, the trial court simply “sustain[ed] the defendant’s objections to all summary judgment evidence that violates the parol evidence rule and ... [ordered] such evidence stricken.” Yet, what evidence, if any, purportedly violated that rule went unmentioned in the order. That is, the trial court made no determination that any particular piece of evidence offered by Sanchez was inadmissible; it simply said that it was going to strike parol evidence, whatever that evidence may be. Given this, there was and is nothing for us to review.

Given the chance that this matter may arise again on remand, we do note that while the consent form may be a contract, the provisions at issue are far from specific. Again, they do not expressly address the administration of a stellate ganglion block. As previously stated, Crawford and Schaub endeavor to find succor from open ended words such as “advisable,” “professional judgment,” and “professional opinion.” And, because the exercise of professional judgment and opinion is dependent upon the circumstances involved and compliance with accepted medical standards applicable under those circumstances, knowledge that the patient did not want the procedure done would be a relevant circumstance to consider.

Accordingly, we reverse the summary judgment and remand the proceeding to the trial court.

      . The block entails an injection into the recipient's spine.

      . We take care to note that the same may not be true when the consent form expressly grants the physician authority to do the specific procedure done. Our opinion should not be read to encompass that situation since those are not the circumstances here. Again, the consent forms Sanchez executed did not expressly mention a stellate ganglion block. So, to escape liability, Crawford and Schaub invoked clauses permitting them to undertake additional procedures and administer anesthetics deemed required, necessary, or advisable in the exercise of their judgment.

      . Crawford and Schaub repeatedly allude to the decision in Byington v. Mize, No. 05-00-0786-CV, 2002 WL 1494219, 2002 Tex.App. LEXIS 5008 (Tex.App.-Dallas, July 15, 2002, no pet.) as dispositive. Though similarities exist between the consent forms involved there and those at issue here, the unpublished and heretofore uncited opinion is not one upon which we can rely. This is so for several reasons, not the least of which is the absence of evidence indicating that Byington expressly told Mize not to perform the objectionable procedure. Moreover, the opinion deviates from both the Dallas court's own published opinion in Russell v. Murphy, 86 S.W.3d 745 (Tex.App.-Dallas 2002), rev’d on other grounds, 167 S.W.3d 835 (Tex.2005) and the Supreme Court’s published opinion in that same case. See Murphy v. Russell, 167 S.W.3d 835, 839 (Tex.2005). Again, the latter state that determining whether a physician acted within the scope of his consent is an objective decision dependent upon expert testimony indicating compliance with accepted community medical standards. Yet, the By-ington panel deemed expert testimony irrelevant. So too did it imply that the subjective determination of the physician was controlling. And, we find the latter implication most interesting. How can a subjective test control when the consent form itself calls for the use of "professional” judgment and the profession is obligated to comply with generally accepted medical standards applicable to similarly situated physicians? Simply put, it cannot.


author: BEA ANN SMITH, Justice.

text:
    Charles H. CLARK and Elizabeth Hajek, Individually, and on behalf of all other persons similarly situated, Appellants, v. Carole Keeton STRAYHORN, Comptroller of Public Accounts, Appellee.
    No. 03-05-00212-CV.
    Court of Appeals of Texas, Austin.
    Feb. 3, 2006.

      D.J. Powers, Law Offices of D.J. Powers, Austin, Gavin H. Mclnnis, Michael Maloney, Maloney & Maloney, PC, San Antonio, for appellants.
    Sean D. Jordan, Adam W. Aston, Assistant Solicitors General, Maureen Powers, Asst. Atty. General, Austin, for appellee.

      Before Justices B.A. SMITH, PEMBERTON and WALDROP.
   OPINION

BEA ANN SMITH, Justice.

Appellants Charles H. Clark and Elizabeth Hajek (collectively, Clark) filed suit in Travis County alleging that the Comptroller’s failure to pay interest when returning unclaimed property was an unconstitutional taking. See U.S. Const, amend. V; Tex. Const, art. I, §§ 17, 19; Tex. Prop.Code Ann. §§ 72.001-74.710 (West 1995 & West Supp.2005) (Unclaimed Property Act). Clark moved to certify a class including all persons who had received payment for a claim exceeding $100 under the unclaimed property act. After a hearing on certification and the viability of Clark’s claims, the district court denied the motion to certify the class and dismissed the suit. Clark appeals and asks this Court to certify the class and remand the case for further proceedings. Because the payment of interest to owners of unclaimed property is not required by statute or the constitution, we affirm the district court’s judgment.

PROCEDURAL POSTURE

Before reaching the merits of Clark’s appeal, we must first review the procedure underlying the district court’s judgment. Clark initially obtained a favorable ruling on summary judgment. District Judge Patrick Keel denied the Comptroller’s motion for summary judgment and granted partial summary judgment holding that the Comptroller’s retention of any interest earned on unclaimed property would be an unconstitutional taking. Later, District Judge Gisela Triana denied the Comptroller’s motion for rehearing of its motion for summary judgment, and the case proceeded to a hearing on the issue of class certification before District Judge Scott Jenkins.

At the class certification hearing, the district court heard expert testimony regarding the class certification requirements. The hearing then turned to the question of whether the State had actually earned interest on unclaimed property as alleged by Clark. In response to an open records request, the Comptroller had initially reported earning millions of dollars of interest on unclaimed property. This report had been corrected in writing before the hearing, and witnesses for the Comptroller testified that no interest had been earned because unclaimed property is deposited into an account that has a negative balance. The Comptroller asserts that the money is spent the moment it is received.

Without resolving the fact dispute on interest, Judge Jenkins acknowledged the prior partial summary judgment, but explained that he was compelled to revisit the issue:

I’ve never been in a situation where we’ve already had partial summary judgments on a prospective class action. And again, I said at the outset that this is a classic case for a Rule 2.6 under our local rules, assignment to a particular judge. It’s just one of those things that didn’t happen and now we’ve had three judges touch it.
But I’m in the position where I’m going to — before I amplify this ruling to somewhere in the neighborhood of 200,000 Texans prospectively, I’m going to scrutinize the summary judgment. And if I conclude that it’s not a viable claim, notwithstanding that ruling being the ruling in the plaintiffs’ case here, then I’m going to decline to grant the class certification.

(Emphasis added.) Citing the recent supreme court opinion in State Farm Mutual Automobile Insurance Co. v. Lopez, 156 S.W.3d 550, 557 (Tex.2004), Judge Jenkins issued a case dispositive order stating that the court “tried the issue of whether a class member can state a viable takings claim, before considering a ruling on the issue of class certification.” (Emphasis added.) In his order, Judge Jenkins determined that Clark had not asserted a viable takings claim, denied the motion to certify the class, and dismissed Clark’s suit.

In Lopez, the supreme court held that “dispositive issues should be resolved by the trial court before certification is considered.” Id. Lopez could not and did not create a new procedural device for making a case dispositive ruling in the context of a class certification hearing. “Deciding the merits of the suit in order to determine the scope of the class or its maintainability as a class action is not appropriate.” Intratex Gas Co. v. Beeson, 22 S.W.3d 398, 404 (Tex.2000). “Viability” is not a requirement for class certification under Rule 42. See Tex.R. Civ. P. 42. The cited language from Lopez simply emphasizes that case dispositive issues, such as might be raised by special exception or a motion for summary judgment, should be resolved before a court considers the question of class certification under Rule 42. See Lopez, 156 S.W.3d at 556-57 (admonishing trial courts not to “certify now and worry later”). It is clear from the district court’s dispositive order that Judge Jenkins understood the basic holding of Lopez and that he was reconsidering the prior rulings on the State’s motion for summary judgment before ruling on class certification. See Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex.1993) (trial court has power to set aside interlocutory orders any time before final judgment entered); Loy v. Harter, 128 S.W.3d 397, 409 (Tex.App.-Texarkana 2004, pet. denied) (trial court has inherent authority to reconsider partial summary judgment at any time until plenary power expires). Accordingly, the district court’s order dismissing Clark’s case is properly construed as a summary judgment in favor of the State, and Clark’s appeal is from that summary judgment.

DISCUSSION

Clark’s challenge to the district court’s summary judgment is premised on his interpretation that the statute requires the Comptroller to pay interest on unclaimed property in her possession. Clark argues that the statute is constitutional and that the Comptroller’s failure to pay interest on returned unclaimed property both violates the statute and amounts to an unconstitutional taking. See U.S. Const, amend. V; Tex. Const, art. I, §§ 17, 19. Citing specific language in the statute that requires the Comptroller to invest unclaimed property and keep it safe, Clark asserts that the legislature intended that the Comptroller hold unclaimed property in trust and pay interest to owners. See Tex. Prop. Code Ann. §§ 74.304(a), .601. To support this assertion, Clark relies on the custodial nature of the statute. Thus, Clark compares the Comptroller’s possession of unclaimed property to other contexts in which courts have found that interest is owed when the State holds private property-

We hold that there is no unconstitutional taking of interest on property that is presumed abandoned. Viewed as a whole, the statute does not establish a trust relationship between the Comptroller and the original owner of unclaimed property. Rather, the unclaimed property act creates a mechanism for individuals to reclaim their lost property but empowers the Comptroller to use abandoned property for the benefit of the State until a claim of ownership has been asserted.

The Unclaimed Property Act

Under the unclaimed property act, personal property is presumed abandoned if, for longer than three years, (1) the existence and location of the owner is unknown to the holder of the property and (2) a claim to the property has not been asserted or an act of ownership has not been exercised. Id. § 72.101. Holders of property presumed abandoned are required to deliver that property to the Comptroller. Id. § 74.301. A holder who fails to deliver property within the prescribed time must pay penalties and interest to the Comptroller. Id. §§ 74.705, .706.

The statute requires the Comptroller to keep a record of all property received and to deposit the property in the “general revenue fund.” Id. § 74.601(a), (b). The statute anticipates that the Comptroller will invest the property:

(d) Except as provided by Subsection (e), the comptroller shall from time to time invest the amount of unclaimed money in investments approved by law for the investment of state funds.
(e) The comptroller may from time to time sell securities, including stocks, bonds, and mutual funds, received under this chapter or any other statute requiring the delivery of unclaimed property to the comptroller and use the proceeds to buy, exchange, invest, or reinvest in marketable securities. When making or selling the investments, the comptroller shall exercise the judgment and care of a prudent person.

Id. § 74.601(d), (e).

The unclaimed property act contains detailed provisions requiring the Comptroller to give notice to property owners of their right to recover unclaimed property in the Comptroller’s possession. Id. §§ 74.201-.205. A list of all owners must be compiled and made available to the public. Id. § 74.307.

The statute sets forth procedures through which an owner may reclaim property by filing a claim with either the Comptroller or the original holder of the property. Id. §§ 74.501, .502 (claim filed with Comptroller), 76.501-.505 (claim filed with holder). The Comptroller may hold a hearing to determine the validity of a claim. Id. § 74.504. That determination, or the Comptroller’s failure to make a timely decision, may be appealed by filing suit against the State in district court in Travis County. Id. § 74.506.

Statutory Construction

The unclaimed property act does not contain any provision directing the Comptroller to pay interest to owners. Clark asserts that the statute implies a trust relationship between the State and owners that creates a duty to pay interest. We will examine Clark’s construction of the statute in light of its plain language. See Texas Nat. Res. Conservation Comm’n v. Lakeshore Util. Co., Inc., 164 S.W.3d 368, 378 (Tex.2005) (we ascertain and give effect to legislature’s intent by looking at plain language of statute). We derive the legislature’s intent by reading the entire act, not a single section in isolation. See id.; Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864, 866 (Tex.1999).

Clark’s contention that unclaimed property is held in trust for owners and that interest must be paid rests primarily on two provisions in the statute. First, “the state shall assume custody of the property and responsibility for its safekeeping.” Tex. Prop.Code Ann. § 74.304(a). Section 74.601 also instructs the Comptroller to “from time to time invest” the unclaimed property, and when making such investments, “exercise the judgment and care of a prudent person.” Id. § 74.601(d), (e). We agree that these provisions confirm the custodial nature of the statute, but conclude that the Comptroller is directed to invest the unclaimed property for the benefit of the State, not the owners.

Escheat statutes like the unclaimed property act can be either absolute or custodial in nature. See Texas Mun. League Intergovernmental Risk Pool v. Texas Workers’ Comp. Comm’n, 74 S.W.3d 377, 382 (Tex.2002). Under absolute escheat statutes, title passes to the State. Id. “Custodial statutes, by contrast, do not divest the ‘true owner’ of title and instead serve the dual purposes of reuniting owners with unclaimed funds or property and giving the state, rather than the holder, the benefit of the use of the unclaimed funds or property pending reclamation.” Texas Workers’ Comp. Comm’n v. Texas Mun. League Intergovernmental Risk Pool, 38 S.W.3d 591, 597-98 (Tex.App.-Austin 2000), aff'd 74 S.W.3d 377 (Tex.2002) (citing 30A C.J.S. Escheat § 2(b)). In fact, it is widely accepted that unclaimed property statutes that are custodial in nature are intended to allow use of the property to generate revenue for the State until the property is claimed by the owner. See, e.g., Commonwealth Edison Co. v. Vega, 174 F.3d 870, 872 (7th Cir.1999) (unclaimed property is “an interest free loan to the state — in perpetuity if the owner never shows up to claim it”); Louisiana Health & Indem. Co. v. Tarver, 635 So.2d 1090, 1092 (La.1994) (custodial escheat statute serves two purposes — to raise revenue for state and safeguard unclaimed property); Fong v. Westly, 117 Cal.App.4th 841, 844, 12 Cal.Rptr.3d 76 (2004); 1 David J. Epstein, Unclaimed Property Law and Reporting Forms § 1.07; K. Reed Mayo, Virginia’s Acquisition of Unclaimed and Abandoned Property, 27 Wm. & Mary L.Rev. 409, 420 (1986) (uniform unclaimed property act provides states method for raising revenue).

Clark relies on a recent opinion of the Ninth Circuit Court of Appeals to assert that unclaimed property must be held “in trust.” Taylor v. Westly, 402 F.3d 924, 931 (9th Cir.2005). The Ninth Circuit explained that the use of “traditional trust language” in the California statute established a custodial trust:

The care and custody of all property delivered to the Treasurer or Controller pursuant to this title is assumed by the State for the benefit of those entitled thereto ...

Id. (quoting Cal.Civ.Proc.Code § 1361). Clark argues that Texas’s unclaimed property act creates a similar trust relationship by stating “the state shall assume custody of the property and responsibility for its safekeeping.” Tex. Prop.Code Ann. § 74.304(a). This comparison disregards a key difference between California and Texas’s unclaimed property acts. The California statute requires that all funds received be deposited in a separate “trust fund for the interests of all parties having an interest in the property.” Taylor, 402 F.3d at 930 (citing Cal.Civ.Proc.Code § 1313). The court held that this provision created a custodial trust: “[T]o the extent that the funds remained in the state’s special account, they were being held in trust, rather than being in the state treasury.” Id. at 931. By contrast, the Texas statute directs that unclaimed property be deposited in the State’s general revenue fund, not in a separate trust fund for owners. See Tex. Prop.Code Ann. § 74.601(b). We hold that the Taylor opinion, relying as it does on the statutory creation of a separate trust fund for owners, does not control our interpretation of the Texas act which has no such provision for a custodial trust.

The only trust language in the Texas act is found in section 74.708, “Property Held in Trust,” and it establishes a trust relationship between the State and holders who fail to deliver unclaimed property to the State:

A holder who on June 30 holds property presumed abandoned under Chapters 72-75 holds the property in trust for the benefit of the state on behalf of the missing owner and is liable to the state for the full value of the property, plus any accrued interest and penalty. A holder is not required by this section to segregate or establish trust accounts for the property provided the property is timely delivered to the comptroller in accordance with section 74.301.

Id. This section also makes clear that the property is held in trust for the benefit of the State, not for the benefit of the owner. The legislature addressed when property should be held in trust and failed to create a trust relationship between the State and the owner of unclaimed property.

Conspicuously, the legislature not only avoided creating such a trust relationship, but greatly limited the Comptroller’s liability to the owner of unclaimed property:

The comptroller is not, in the absence of negligence or mishandling of the property, liable to the person who claims the property for damages incurred while the property or the proceeds from the sale of the property are in the comptroller’s possession. But in any event the liability of the state is limited to the extent of the property delivered under this chapter and remaining in the possession of the comptroller at the time a suit is filed.

Id. § 74.304(d). This provision limits the Comptroller’s liability, regardless of any malfeasance, to the amount of the property still in the Comptroller’s possession. Such a limitation is inconsistent with a trust relationship.

As noted, the statute contains no specific directive that the Comptroller pay interest to owners of unclaimed property. Compare id. § 74.501(b), with id. § 74.705 (holder who fails to deliver unclaimed property to State must pay interest). Viewing the statute as a whole, we hold that it does not create a trust relationship that would require the Comptroller to pay interest to owners.

Unconstitutional Taking

Having found that owners are not entitled to interest under the unclaimed property act, we next address Clark’s claim that payment of interest is required by the constitution. Clark does not contest a State’s power to deem private property abandoned and allow that property to escheat to the State. See Texaco, Inc. v. Short, 454 U.S. 516, 530, 102 S.Ct. 781, 70 L.Ed.2d 738 (1982); Standard Oil Co. v. New Jersey, 341 U.S. 428, 436, 71 S.Ct. 822, 95 L.Ed. 1078 (1951). Even when an owner of unclaimed property retains title, however, the State does not hold property in trust for the missing owners.

For the State to take possession, property must first be presumed abandoned under the statute. See Tex. Prop. Code Ann. § 72.101 (property presumed abandoned if unclaimed for over three years). As a general rule, the United States Supreme Court has held that private property may be deemed abandoned and that the State is not required to “compensate the owner for the consequences of his own neglect.” Texaco, Inc., 454 U.S. at 530, 102 S.Ct. 781. This principle has been relied upon to hold that other custodial escheat statutes do not violate the takings clause. In In re Folding Carton Antitrust Litigation, the Seventh Circuit Court of Appeals considered the constitutionality of a statute providing that, after five years, unclaimed funds held in the registry of the court be deposited in the Treasury in the name and to the credit of the United States. 744 F.2d 1252, 1255 (7th Cir.1984) (discussing 28 U.S.C.A. § 2042). Claimants were still permitted to petition the court for return of their funds. Id. The Seventh Circuit found no unconstitutional taking:

Since any legitimate claimant has been afforded an adequate remedy against the United States, there is no bar to interim governmental use of the escheat-ed money “deposited in the Treasury and to the credit of the United States.”

Id. (quoting 28 U.S.C.A. § 2042). The same reasoning has been applied to defeat takings challenges to unclaimed property statutes in other states. See Smolow v. Hafer, 867 A.2d 767, 775 (Pa.Commw.Ct.2005) (no unconstitutional taking where abandonment of property, not action of State, caused pecuniary loss); Fong, 117 Cal.App.4th at 853, 12 Cal. Rptr.3d 76 (“No unconstitutional taking occurs where a state exercises its right to take custody of abandoned property, as opposed to taking absolute title.”). We conclude that this principle applies with equal force to Texas’s unclaimed property act. Once the property is presumed abandoned, the State’s lawful use of that property for its own benefit cannot be an unconstitutional taking. See Texaco, Inc., 454 U.S. at 530, 102 S.Ct. 781; In re Folding Carton Antitrust Litigation, 744 F.2d at 1255; Smolow, 867 A.2d at 775; Fong, 117 Cal.App.4th at 854, 12 Cal. Rptr.3d 76.

Arguing that Texaco, Inc. v. Short and its progeny do not apply to this case, Clark directs us to cases discussing an owner’s right to interest earned on interpleader funds and IOLTA accounts. In Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164-65, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980), the United States Supreme Court held unconstitutional a statute allowing a county to retain interest earned on an interpleader fund deposited in the registry of the court. The United States Supreme Court rejected the lower court’s characterization that funds deposited into a court’s registry temporarily assumed the status of “public money.” Id. at 163, 101 S.Ct. 446. The Court noted that the interest on interpleader funds retained by the county bore no relation to any burden on the court and, thus the state’s use of the funds while in the court’s registry violated the Takings Clause of the Fifth Amendment. Id. at 164, 101 S.Ct. 446. The Court explained that “the earnings of a fund are incidents of ownership of the fund itself and are property just as the fund itself is property.” Id. In Sellers v. Harris County, the Texas Supreme Court similarly held that a county may not constitutionally retain the interest earned on interpleader funds. See 483 S.W.2d 242, 243 (Tex.1972) (interpleader funds held “in trust” and earnings on fund are incident of ownership). The United States Supreme Court has also held that interest earned by IOLTA accounts is the private property of the owner of the principal. Phillips v. Washington Legal Found., 524 U.S. 156, 172, 118 S.Ct. 1925, 141 L.Ed.2d 174 (1998). Citing Webb’s and Sellers, the Court emphasized the common law notion that “interest follows principal.” Id. at 165, 101 S.Ct. 446. Clark would have us apply this legal axiom to unclaimed property.

But Clark overlooks an important distinction between the interpleader and IOLTA cases and the issue of interest earned on unclaimed property. Inter-pleaded funds and funds deposited in an IOLTA account are held in trust for the owner. As we have discussed, unclaimed property funds are not. There is also no question as to who has asserted ownership of the interpleaded or IOLTA funds. By contrast, property delivered to the Comptroller as “unclaimed” is presumed abandoned. See Tex. Prop.Code Ann. §§ 72.101, 74.301. Until a missing owner asserts a claim, it is wholly appropriate for the Comptroller to use unclaimed property for the benefit of the State instead of allowing a windfall to a private holder or permitting the funds to lie fallow. Cf. Texaco, Inc., 454 U.S. at 530, 102 S.Ct. 781.

We hold that the unclaimed property act does not require the State to hold unclaimed property in trust or otherwise require payment of interest to owners. Moreover, the State’s use of unclaimed property and retention of any interest earned before the owner asserts a claim is not an unconstitutional taking. Accordingly, we overrule Clark’s constitutional issues and need not address his other issues.

CONCLUSION

We affirm the district court’s summary judgment, its denial of class certification, and its dismissal of the suit.

      . In its motion for summary judgment, the Comptroller argued that Clark was not entitled to relief as a matter of law. The Comptroller's motion explained that the unclaimed property act did not provide for interest to be paid to owners, that the State's use of unclaimed property was not an unconstitutional taking, and that the reasoning in cases dealing with interpleader and IOLTA funds did not apply to the State’s use of unclaimed property.

      . Aspects of this case were heard by several judges because the district courts of Travis County have established a central settings docket in which causes are not assigned to a particular judge. Travis (Tex.) Civ. Dist. Ct. Loe. R. 1.1. Although the rules allow assignment to an individual judge on the suggestion of any judge or after conference with the parties, it was not done in this case. See id. 2.6.

      . Although the order incorrectly recites that "the requirements of Rule 42 of the Texas Rules of Civil Procedure have not been met because no class member is able to state a viable takings claim," Judge Jenkins's comments in the record and the case-dispositive nature of the order demonstrate that the court’s ruling was based on the State’s summary judgment motions and not the class certification requirements.

      . Special provisions apply to unclaimed wages, stored value cards, traveler’s checks, and money orders. See Tex. Prop.Code Ann. §§ 72.1015, .1016, .102 (West Supp.2005).

      . Similarly, the supreme court of Oklahoma held that unclaimed property is held “in trust” when the Oklahoma statute required such property to be placed in a separate "Unclaimed Property Fund.” TXO Prod. Corp. v. Oklahoma Corp. Comm’n, 829 P.2d 964, 971-72 (Okla.1992).

      . Clark attempts to limit this provision to property that has been physically damaged while in the Comptroller's custody. However, the plain language does not support such a limitation. The statute refers to "damages incurred while the property or the proceeds from the sale of the property are in the comptroller’s possession.” Tex. Prop.Code Ann. § 74.304(d) (West Supp.2005) (emphasis added). The legislature would not have mentioned the proceeds from the sale of property, presumably cash, if it meant to limit liability only for physical damage to property.

      . Under the common law, an owner could be shown to have abandoned property by proof of intent to relinquish a known property right. See, e.g., Huffington v. Upchurch, 532 S.W.2d 576, 579-80 (Tex.1976); Railroad Comm’n of Tex. v. Waste Mgmt. of Tex., Inc., 880 S.W.2d 835, 843-44 (Tex.App.-Austin 1994, no writ). Texas, like other states, has long provided by statute that property could be presumed abandoned by being unclaimed by its owner for a specified period of years. See Act of March 21, 1885, 16th Leg., R.S., ch. 37, §§ 1-2, reprinted in 9 H.P.N. Gammel, The Laws of Texas 1822-1897, at 655-66 (Austin, Gammel Book Co. 1898) (repealed) (formerly Tex.Rev. Civ. Stat. art. 3272); Act of Aug. 8, 1961, 57th Leg., 1st C.S., ch. 21, § 1, 1961 Tex. Gen. Laws 49, 49-57 (repealed) (formerly Tex.Rev. Civ. Stat. art. 3272a). The unclaimed property act — whose validity Clark does not challenge — is Texas’s current enactment of this sort.

      . The Interest on Lawyers Trust Account (IOLTA) program requires certain client funds held by an attorney to be deposited in an interest bearing account. Phillips v. Washington Legal Found., 524 U.S. 156, 159-60, 118 S.Ct. 1925, 141 L.Ed.2d 174 (1998). The interest income generated by the fund is paid to a foundation that finances legal services for low-income individuals. Id.


author: DAVID PURYEAR, Justice.

text:
    Steven JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 03-04-00102-CR.
    Court of Appeals of Texas, Austin.
    Feb. 3, 2006.

      David S. Barron, Bryan, for appellant.
    Forrest L. Sanderson III, Asst. Crim. Dist. Atty., Bastrop, for appellee.
    Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
   OPINION

DAVID PURYEAR, Justice.

Appellant Steven Jones was convicted by a jury of two counts of indecency with a child by contact and sentenced to ninety-nine years imprisonment, enhanced by a 1987 conviction for aggravated sexual assault. See Tex. Pen.Code Ann. § 21.11 (West 2003). In six issues, he appeals, asserting that the evidence is legally and factually insufficient, the jury charge contained reversible error, and the court erred in admitting his confession. We affirm the conviction.

Factual Summary

Appellant was indicted for touching the sexual organ of V.M., who was five or six years old at the time of the offense (count one), and touching the sexual organ and anus of D.M., who was three or four (count two); all of the inappropriate touching was alleged to have happened on the same night. The victims are sisters, and appellant is their step-grandfather. Their parents are Victor Gianna and Christina Rawls. Gianna and Rawls were not married at the time of the offense, but have since married. Appellant is married to Mary Jones, who is Rawls’s mother, and the victims refer to appellant as their grandfather.

Gianna testified as an outcry witness and said that in February 2003, appellant’s name came up in conversation while V.M. was present, and V.M. started “just, like, panting and stayed real quiet.” Gianna took V.M. aside and asked her if anything was wrong, saying he would not be angry at V.M. if something had happened. At first, V.M.’s “eyes got big and she stayed quiet for a while.” Gianna talked to her “about good touch/bad touch,” and asked “specifically what happened to her, if anything happens to her when she goes to her grandmother’s house.” V.M. told Gianna that appellant had touched her “in her private area.” She “pointed to her private area” and started crying. Gianna then took D.M. aside to ask her the same question, and “she told [Gianna] the same thing.” He asked her if her grandfather ever touched her in any way, and D.M. told him “[t]hat he would touch her in her private area.” Rawls was with Gianna and D.M. during this conversation.

Gianna denied having problems with appellant except that “he wasn’t supposed to be around my kids, and he was always somehow around them.” Gianna testified that he did not like it when the girls stayed with Mary Jones or with Jones’s mother, Mary Stockton, because “they let [appellant] go over there and walk around freely and he would tell them he wanted to pick up the kids and he would pick them up and drive off.”

Cynthia Ledesma, Christina Rawls’s cousin, lived with Stockton. Ledesma said appellant frequently came over to see V.M. and D.M., but she never saw him behave inappropriately. She said that in March 2003, while Gianna was hiding from the police and the children were being cared for by relatives, he called and yelled at Stockton, telling her that he did not want the children to be around appellant. After hearing that complaint, Ledesma talked to each girl individually. V.M. told Ledesma that appellant “would touch her in her private area,” and D.M. “said the same thing.” Ledesma took the girls to the Bastrop County Sheriffs Office the next day.

V.M. was called to testify and, after some inconsistent answers early on, demonstrated to the trial court’s satisfaction that she knew the difference between the truth and a lie. V.M. testified that one night while she and D.M. were at appellant’s house watching cartoons and a “[n]asty” movie, appellant touched her on “[t]he private,” which she also described as “[b]etween your legs.” She testified that appellant touched her skin under her panties with his hand and that he touched D.M. “[o]n the behind.” V.M. said that it was D.M. who turned off the “nasty movie.”

Lee Nusbaum, an investigator with the Bastrop County Sheriffs Department, testified that in March 2003, after his office received a report of V.M.’s outcry, he interviewed appellant, who was already in police custody for parole violations. During the interview, Nusbaum showed appellant a videotape of an interview with the girls, and appellant lowered his head and began to cry. Appellant said he would not make a written statement but agreed to a videotaped statement. Nusbaum read appellant his rights and had him sign a form acknowledging that he had been informed of and understood his rights, and that he wished to waive them. Appellant told Nusbaum that on the night in question, about a month and a half before the interview, he was lying on his couch, watching pornographic movies with V.M. and D.M., and that he “reachfed] down and touch[ed] [V.M.] between her legs and — twice between her legs.” Appellant said he touched V.M. under her pants but not inside her panties, but said it was “possible” that he touched V.M.’s skin. Appellant said he was “(j]ust rubbing across her panties.” Asked whether he had touched D.M., he said, “I don’t know. There’s a possibility that I could have, but not intentionally.” Appellant thought D.M. turned off the pornographic movie.

Sufficiency of the Evidence

In his first two issues, appellant argues that the evidence is legally and factually insufficient to support the jury’s verdict as to count two (the molestation of D.M.) because there was insufficient evidence to show he touched D.M. on her sexual organ or anus.

In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found the essential elements' of the offense beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). In reviewing the factual sufficiency, we view all of the evidence in a neutral light, comparing the evidence in support of a disputed fact with evidence tending to disprove that fact. Id. We will set aside a verdict for factual insufficiency only if the proof of guilt is so obviously weak or so greatly outweighed by contrary proof as to undermine confidence in the verdict. Id. at 11. We will reverse a fact-finder’s determination only if the record indicates manifest injustice; otherwise, we will accord due deference to the determinations of fact, particularly those involving evaluations of credibility. Id. at 8-9. The jury is the sole judge of the weight and credibility of witness testimony. Barnes v. State, 62 S.W.3d 288, 298 (Tex.App.-Austin 2001, pet. ref'd). The jury may accept or reject all or any of the evidence presented by either side, may draw reasonable inferences from the evidence, and must reconcile any evidentiary conflicts. Id. We determine the sufficiency of the evidence by viewing the cumulative effect of all of the evidence, not each fact in isolation. Id. at 297.

A person commits indecency with a child by contact if he “engages in sexual contact with the child.” Tex. Pen.Code Ann. § 21.11(a)(1). Sexual contact is “any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child.” Id. § 21.11(c)(1). The court of criminal appeals has stated that “we cannot expect the child victims of violent crimes to testify with the same clarity and ability as is expected of mature and capable adults.” Villalon v. State, 791 S.W.2d 130, 134 (Tex.Crim.App.1990). A child need not testify with precision as to where she was touched, and evidence that she was touched on her “privates” or her “private area” or “between her legs” can support a finding that she was touched on her anus or genitals. See, e.g., Gallegos v. State, 918 S.W.2d 50, 54 (Tex.App.-Corpus Christi 1996, pet. ref'd) (seven-year-old victim told outcry witness that defendant kissed her, took off her clothes, and put his “pee-pee” “in front of’ and “in back of’ her); O’Hara v. State, 837 S.W.2d 139, 141 (Tex.App.-Austin 1992, pet. ref'd) (eleven-year-old victim testified that defendant touched victim’s “privates” and put defendant’s “privates” “into my rear end”); Gottlich v. State, 822 S.W.2d 734, 741 (Tex.App.-Fort Worth 1992, pet. ref'd) (thirteen-year-old victim testified that defendant touched her “private,” her “pee pee,” and “down there,” and that he put “his hand down my pants and panties”), overruled in part on other grounds by Curry v. State, 861 S.W.2d 479, 482 n. 2 (Tex.App.Fort Worth 1993, pet. ref'd); Guia v. State, 723 S.W.2d 763, 766 (Tex.App.-Dallas 1986, pet. ref'd) (nine-year-old victim testified that defendant “touched her in her ‘private place’ ”); Bryant v. State, 685 S.W.2d 472, 475 (Tex.App.-Fort Worth 1985, pet. ref'd) (five-year-old victim testified that defendant touched her under her underpants and “down between [her] legs”).

In his statement to the police, appellant said that he might have touched D.M., but not intentionally. Gianna testified that D.M. told him the same thing that V.M. had told him, which was that appellant “touch[ed] her in her private area.” Le-desma also testified that she spoke to both girls separately, that V.M. told her that appellant “touch[ed] her in her private area,” and that D.M. “said the same thing.” Finally, V.M., who was six years’ old at the time she testified, said that she saw appellant touch D.M. “[o]n the behind.” Viewed in the light most favorable to the jury’s verdict, a reasonable jury could have found that this evidence established beyond a reasonable doubt that appellant touched D.M. either on her genitals or her anus. See Johnson, 23 S.W.3d at 7. Even when we view all of the evidence in a neutral light, there was no evidence presented that would dispute the State’s evidence, which is not so obviously weak as to undermine confidence in the verdict. See id. at 11. We hold that the evidence is legally and factually sufficient to support the jury’s verdict as to count two. We overrule appellant’s first and second issues.

Misspelling of the Victims’ Last Name

In his third and fourth issues, appellant contends that the evidence is insufficient because the indictment alleged that the victims’ last name was “Guana,” but the evidence showed their name is “Gian-na.” He argues that the two names are “incapable of being pronounced” alike.

The phrase “idem sonans” refers to names that, despite having different spellings, sound sufficiently alike that a listener would have difficulty distinguishing them. Farris v. State, 819 S.W.2d 490, 496 (Tex.Crim.App.1990), overruled on other grounds by Riley v. State, 889 S.W.2d 290, 301 (Tex.Crim.App.1993) (op. on reh’g); Martin v. State, 541 S.W.2d 605, 606-07 (Tex.Crim.App.1976); see Dingier v. State, 705 S.W.2d 144, 145 (Tex.Crim.App.1984) (“rule of ‘idem sonans’ is that absolute accuracy in spelling a name is not required”; if misspelled name sounds “practically identical with the correct name,” misspelling sufficiently identifies the person to whom it refers). A variance between the spelling of a victim’s name in an indictment and the proper spelling as proved at trial does not require reversal if the names sound alike, and whether two names are idem sonans is a question left to the fact-finder. Farris, 819 S.W.2d at 496; see Martin, 541 S.W.2d at 607-08. Unless the two names are “patently incapable of being sounded alike,” a defendant’s failure to ask that the fact-finder resolve the issue waives the complaint on appeal. Farris, 819 S.W.2d at 496; see Martin, 541 S.W.2d at 608. Appellant never complained that the victims’ last names were spelled incorrectly in the indictment and has not shown that the names are incapable of sounding alike, and therefore he waived any error associated with the misspelling.

Furthermore, in 2001, the court of criminal appeals reaffirmed the fatal variance doctrine, which provides that “when faced with a sufficiency of the evidence claim based upon a variance between the indictment and the proof, only a ‘material’ variance will render the evidence insufficient.” Gollihar v. State, 46 S.W.3d 243, 257 (Tex.Crim.App.2001). A variance between indictment and evidence is fatal only if it is material and prejudices the defendant’s substantial rights. Id. (quoting United States v. Sprick, 233 F.3d 845, 853 (5th Cir.2000)). That determination is made by considering (1) whether the charging instrument sufficiently informed the defendant of the charge so that he was able to prepare an adequate defense and (2) whether prosecution under the deficient charging instrument might subject the defendant to the risk of a later prosecution for the same crime. Id. (quoting Sprick, 233 F.3d at 853).

Appellant did not complain about the misspelling, seek to quash the indictment, or argue that he was surprised by the State’s proof at trial. See Bowker v. State, 481 S.W.2d 141, 142 (Tex.Crim.App.1972); Lopez v. State, 654 S.W.2d 521, 524 (Tex. App.-Corpus Christi 1983, pet. ref'd). In fact, the misspelling was never noted in any way, and the record shows that appellant knew the identity of the alleged victims from the beginning of the investigation, which started about three months before the indictment was prepared. Further, because appellant may “avail himself of the entire record and not merely the charging instrument,” there is no risk that he could be charged again later for the same offense. See Santana v. State, 59 S.W.3d 187,195 (Tex.Crim.App.2001). Appellant has not demonstrated surprise or prejudice with regard to any variance. See id.; Gollihar, 46 S.W.3d at 257. We overrule appellant’s third and fourth issues on appeal.

Was the Jury Charge Erroneous Under Ngo and Francis?

In his fifth issue, appellant argues that the jury was erroneously allowed to convict him without requiring a unanimous verdict as to where she was touched.

The Texas Constitution requires a unanimous verdict in felony criminal cases. Tex. Const, art. V, § 13; Tex. Code Crim. Proc. Ann. art. 36.29(a) (West Supp.2005). Allowing a jury to choose from several separate acts, each of which is a violation of a specific statute, without requiring the jury to agree on which act was committed violates the unanimity requirement. Ngo v. State, 175 S.W.3d 738, 747-48 (Tex.Crim.App.2005); Francis v. State, 36 S.W.3d 121, 124-25 (Tex.Crim. App.2000). However, allowing a jury to choose between alternative theories of how an offense was committed does not run afoul of the unanimous-verdict requirement. Martinez v. State, 129 S.W.3d 101, 103 (Tex.Crim.App.2004); Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991).

Count two of this indictment alleged that appellant, “on or about the 1st day of March, A.D. 2002 ... did then and there, with the intent to arouse or gratify the sexual desire of said defendant, intentionally or knowingly engage in sexual contact with [D.M.] by touching the female sexual organ and anus of’ D.M. The jury charge instructed the jury to convict appellant on count two if it found that “on or about 1st day of March, A.D. 2002 ... [appellant] did then and there with the intent to arouse or gratify the sexual desire of said defendant, intentionally or knowingly engage in sexual contact with [D.M.] by touching the female sexual organ or anus of’ D.M. Appellant argues that the jury charge, by allowing the jury to convict him of indecency with D.M. if it believed he touched her genitals or her anus, did not require agreement about where he touched her, and thus improperly allowed the jury to convict him without reaching a unanimous verdict as to the offense committed. We disagree.

In Francis, the defendant was accused of indecency with a child, charged with improperly touching the victim on four separate days; in two of the alleged incidents he was alleged to have touched the victim’s breasts and in the other two he was alleged to have touched her genitals. 36 S.W.3d at 122. At trial, the State elected to seek one conviction, relying on one breast-touching incident and one genital-touching incident, and the jury charge allowed a conviction on a finding that the defendant touched the victim’s breasts or genitals, without requiring the jury to agree on which incident they were voting to convict. Id. The court of criminal appeals held that the charge improperly authorized the jury to convict the defendant of one count of indecency without reaching agreement on which of the acts he committed, noting that “[t]here was never a single incident in which the appellant touched both the breasts and the genitals of the victim.” Id. at 124-25. The court held that the charge did not submit two alternate means of committing one offense, but instead submitted two separate offenses in the disjunctive. Id. at 124 (“These incidents [on which the State elected to proceed] constitute two separate offenses.”).

In Ngo, the defendant was charged with one count of credit card abuse through allegations of “three statutorily different criminal acts” — stealing a credit card, receiving the stolen credit card, or presenting the card for a purchase. 175 S.W.3d at 744. The court of criminal appeals held that the three alleged acts were “all credit card abuse offenses, to be sure, but they are not the same, specific credit card abuse criminal acts committed at the same time or with the same mens rea and the same actus reus.” Id. at 745. The court noted that “[a] handy, though not definitive, rule of thumb” to help determine whether a statute sets out different offenses versus listing possible manner and means of committing an offense “is to look to the statutory verb defining the criminal act. That verb — such as steal, receive, or present — ... is generally the criminal act upon which all jurors must unanimously agree.” Id. at 745-46 n. 24. The court reiterated that a trial court must require a jury to “reach a unanimous verdict on which single, specific criminal act the defendant committed.” Id. at 748.

Here, appellant was charged with one count of indecency with D.M. occurring on one day, the same day that V.M. was molested, and the State alleged and presented evidence of two possible means by which appellant committed the offense. Because there was only one incident of touching alleged, the analysis in Francis, which concerned four separate incidents of touching, does not control our decision. See 36 S.W.3d at 124. Further, the statute under which appellant was charged, indecency by contact, does not show the same kind of legislative intent described in Vick v. State. See 991 S.W.2d 830, 833 (Tex.Crim.App.1999). The conduct proscribed by the statute is “engaging] in sexual contact with the child,” which is defined as touching a child’s anus, breast, or genital area; where the child is touched is a manner and means element of the offense. See Tex. PemCode Ann. § 21.11; see also Ex parte Chafin, 180 S.W.3d 257, 259-60 (Tex.App.-Austin 2005, no pet.) (“Like aggravated sexual assault, indecency with a child is a conduct-oriented offense. At the relevant time, section 21.11 criminalized two distinct types of conduct requiring different acts to commit: (1) any touching of the anus, breast, or any part of the genitals of a child; or (2) exposure of the defendant’s anus or genitals knowing that a child is present.... The word ‘or’ was used by the legislature to distinguish and separate the proscribed conducts.... We conclude that the legislature intended the two separately described conducts to constitute separate statutory offenses.”). In other words, the statute provides “differing methods of committing the offense” of indecency by contact, rather than several distinct offenses, see Kitchens, 823 S.W.2d at 258, and the jury was required to reach a unanimous verdict on whether appellant committed the criminal act of improperly touching D.M. See Francis, 36 S.W.3d at 128 (Johnson, J., concurring) (“The indictment against appellant contained one count of indecency with a child, alleging two kinds of contact on the same date. The indictment was valid on its face; if both types of contact occurred at the same time, they would comprise a single act.” (emphasis added)); see also Ngo, 175 S.W.3d at 748 (requiring unanimity as to which “single, specific criminal act” was committed). We therefore hold that the jury charge did not allow a non-unanimous verdict as to what offense appellant committed. The jury was given two options to determine the manner and means by which the single offense was committed on one single night, and it reached a unanimous decision that appellant improperly touched D.M. We overrule appellant’s fifth point of error.

Admission of Appellant’s Statement

In his sixth and final issue, appellant asserts that the trial court erred in admitting his confession into evidence, arguing that the statutory warnings he was given were improper.

Before Nusbaum began his videotaped interview of appellant, he verbally told appellant his statutory rights and then had appellant sign a written statement of those rights, acknowledging that he both understood and waived his rights. The written waiver stated that appellant had “the right to have a lawyer present to advise [him] prior to or during any questioning” (emphasis added), but Nusbaum stated, “You have the right to have a lawyer present to advise you prior to answering any questions.” (Emphasis added.) Nusbaum neglected to expand the verbal warning to inform appellant that he had the right to an attorney’s advice during questioning. This faffing, appellant argues, rendered the admonition ineffective and requires reversal and the suppression of the confession. We disagree.

Appellant filed a motion to suppress his statements, as well as any other tangible evidence and any police testimony about appellant’s actions or statements while in custody. The motion stated that his statements “were obtained in violation of [appellant’s] right under the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution, Article 1, §§ 9, 10, and 19 of the Constitution of the State of Texas, and Chapter 14 and Article 38.22 of the Texas Code of Criminal Procedure,” but did not explain which rights were at issue or how they were violated.

The trial court held a pre-trial hearing on appellant’s motion to suppress. At that hearing, Nusbaum testified about the appellant’s statement. Nusbaum testified that he read appellant his statutory warnings and that appellant indicated that he understood his rights and signed the written warning waiving his rights. At the hearing, appellant asked whether appellant was in police custody or free to leave; Nusbaum testified that appellant was handcuffed and could not leave. Nusbaum did not recall appellant saying that he could not read the written warning without his glasses, and he testified that he had not altered the videotape of appellant’s statement in any way. After a few more questions related mostly to the search of appellant’s house, appellant passed the witness, and the trial court denied the motion to suppress. At no point during the hearing did appellant point out that Nusbaum told him only that he was entitled to counsel before questioning, nor did appellant’s motion raise this issue.

By his failure to make a clear objection at trial that comports with his argument on appeal, appellant has waived any error in the admission of his confession. See Saldano v. State, 70 S.W.3d 873, 889 (Tex.Crim.App.2002) (“We have consistently held that the failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence. This is true even though the error may concern a constitutional right of the defendant.” (footnote omitted)); Ramirez v. State, 815 S.W.2d 636, 645 (Tex.Crim. App.1991) (defendant was told, “ ‘7 have the right to remain silent’ instead of ‘you have the right,’ ” but any error was waived by his failure to object on that basis at trial). We overrule appellant’s final issue.

Conclusion

We have held that appellant’s confession was properly admitted, that the misspelling of the victims’ name does not merit reversal, that the jury was properly charged, and that the evidence is sufficient to support the jury’s verdict. Having overruled appellant’s issues on appeal, we affirm the judgment of conviction.

      . The indictment alleged that the touching occurred "on or about the 1st day of March, A.D. 2002.” The State elicited testimony explaining that the victims’ outcries were made in March 2003, but that V.M., who turned six years’ old in early February 2003, indicated in her interview with the Child Advocacy Center that she was five years’ old when appellant touched her. In his interview with the police on March 26, 2003, appellant admitted that he had touched V.M. about "a month and a half” earlier, which would be early February 2003. The State used March 2002 as the "on or about date” so as to account for any discrepancies in time, but the evidence shows that the inappropriate touching made the subject of this prosecution occurred during one incident on one night.

      . Despite hearing the girls's outcries, however, Gianna did not report appellant to the authorities because he and Rawls were wanted by the police. At the time of trial, Gianna was in jail, having been sentenced to five years’ imprisonment for burglary and engaging in organized crime.

      . Gianna was not asked to explain why he did not want appellant to be around his daughters, but during the punishment phase, it was shown that appellant had been convicted in 1987 of sexually assaulting Rawls, appellant's stepdaughter, Gianna’s wife, and the mother of the victims.

      . We have been unable to find case law that discusses idem sonans in light of Gollihar other than in passing. See Arellano v. State, 54 S.W.3d 391, 395 (Tex.App.-Waco 2001, pet. ref'd) (citing Gollihar for proposition that variance between victim’s name in indictment and proof at trial may be fatal, and stating that misspelling is not fatal if within idem sonans); see also Sanchez v. State, No. 07-02-0287-CR, 2004 WL 1093719, at 1, 2004 Tex. App. LEXIS 4440, at *5 (Tex.App.-Amarillo May 17, 2004, no pet.) (not designated for publication) (discussing idem sonans and stating that consideration of sufficiency of evidence must involve Gollihar inquiry into materiality of name variance). However, the rule of idem sonans, that a misspelling is not fatal if it sounds like the correct name and thus sufficiently identifies the victim so that the defendant is not misled to his prejudice, see Dingler v. State, 705 S.W.2d 144, 145 (Tex.Crim.App.1984), harmonizes with the holding of Gollihar that a variance is not fatal unless if it is material and prejudices the defendant’s substantial rights.

      . The State argues that appellant waived this issue when, asked whether there were any objections to the jury charge, he answered, "None from the defense.” The State cites to Reyes v. State, in which our sister court held that the defendant waived any charge error by "affirmatively approving] the charge as written.” 934 S.W.2d 819, 820 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd) (statement that “defense has read both charges and is satisfied with them” waived any error). The Reyes court distinguished between situations in which a defendant fails to request an instruction or object to an omission and those in which a defendant “affirmatively approves the charge as written, telling the trial judge that he sanctions the charge.” Id. We decline to follow Reyes in holding that appellant waived any error by stating that he had no objection to the jury charge. See Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App.2000) (considering defendant's issue related to jury charge error despite failure to object or request proper charge); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g) (if defendant objected to charge error, conviction will be reversed unless error is harmless; if no proper objection, conviction will be affirmed unless "fundamental error” caused "egregious harm”); see also Ponce v. State, 89 S.W.3d 110, 117 (Tex.App.-Corpus Christi 2002, no pet.) ("Based upon a reading of Almanza, and following the analysis and holding of other sister courts, we find that an error in a jury charge cannot be waived by an affirmative approval of the jury charge.” (footnote omitted)); Ward v. State, 72 S.W.3d 413, 417 (Tex.App.-Fort Worth 2002, no pet.) ("we reject the State’s argument ... that Appellant has forfeited his complaint of error in the jury charge” by stating he had "no problem” with charge); Webber v. State, 29 S.W.3d 226, 232 (Tex.App.-Houston [14th Dist.] 2000, pet. ref’d) ("We are unpersuaded by the state’s waiver by 'affirmative approval' argument for three reasons. First, it cannot withstand a careful reading of Al-manza. Second, the cases that have accepted this waiver argument are not consistent with our reading of Almanza or, in the alternative, are distinguishable. Third, we find the right at issue in this case either cannot be waived or must be expressly waived.”).

      . If an indictment alleges differing means of committing an offense, a trial court does not err by charging the jury in the disjunctive. Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991); see Rosales v. State, 4 S.W.3d 228, 231 (Tex.Crim.App.1999).

      . Vick v. State concerned double-jeopardy issues. 991 S.W.2d 830, 831 (Tex.Crim.App.1999). After Vick was acquitted of penetrating the victim’s sexual organ with his sexual organ, he was again indicted for aggravated sexual assault for the same incident, alleged to have contacted the victim's sexual organ with his mouth and with his sexual organ, each of which is set out as an offense under different subsections of the aggravated sexual assault statute. Id.; see Tex. Pen.Code Ann. § 22.021 (West Supp.2005). The court held that the structure of the statute demonstrated a legislative "intent to separately and distinctly criminalize any act which constitutes the proscribed conduct,” and that therefore double jeopardy did not protect the defendant from being separately prosecuted for the other two alleged offenses. See Vick, 991 S.W.2d at 833.

      . A defendant’s statement may only be used against him if he was informed of his right to remain silent, the caution that anything he said could be used against him in court, the right to an attorney and to have an attorney appointed, and the right to terminate the interview at any time. See Tex.Code Crim. Proc. Ann. art. 38.22, § 2 (West 2005).