author: EVA M. GUZMAN, Justice.

text:
    Ceasar DAVIS, Jr., as Attorney-in-Fact for his Mother, Audrey Davis, Appellant v. SPRING BRANCH MEDICAL CENTER, INC., Appellee. Ceasar Davis, Jr., as Attorney-in-Fact for his Mother, Audrey Davis, Appellant v. Modern Health Systems, Inc. d/b/a/ Highland Park Care Center, Appellee.
    Nos. 14-04-00258-CV, 14-04-00927-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 14, 2005.

      Marian S. Rosen, Houston, TX, for appellant.
    John Wesley Raley, Kirsten Anne Davenport, Houston, Gary L. McConnell, Horseshoe Bay, Lanette L. Matthews, and Diana L. Faust, Dallas, TX, for appellees.
    Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.
   OPINION

EVA M. GUZMAN, Justice.

In this case, brought under the former Medical Liability and Insurance Improvement Act (“MLIIA”), appellant, Ceasar Davis, Jr., as attorney-in-fact for his mother, Audrey Davis, sued appellees Spring Branch Medical Center, Inc. (“the hospital”), and Modern Health Systems, Inc. (“the nursing home”). On appeal, Davis challenges the trial court’s orders (1) granting appellees’ motions to dismiss Davis’s claims with prejudice because he failed to file adequate expert reports as required by the MLIIA, (2) denying his requests for a thirty-day grace period in which to file conforming expert reports, and (3) declining to enter findings of fact and conclusions of law. We affirm.

I. PROCEDURAL BACKGROUND

On May 29, 2003, Davis sued the hospital and the nursing home based on their treatment of his mother, Audrey Davis, from primarily mid-November 2001 through late April 2002. During that time, Audrey Davis developed pressure ulcers on both feet and ultimately had to have both legs amputated above the knees. In the lawsuit, Davis asserted claims of negligence, gross negligence, and malice against the hospital; and claims of negligence, negligence per se (violation of regulations and statutes and injury to an elderly person), negligent hiring, gross negligence, and malice against the nursing home.

Under the MLIIA, Davis’s 180-day period for furnishing expert reports to the hospital and the nursing home expired November 25, 2003. On August 25, 2003, Davis filed and served the expert report and curriculum vitae of Dr. Donald M. Gibson. On September 8, 2003, he filed and served the expert report and curriculum vitae of Dr. J.R. Steinbauer.

On January 27, 2004, the hospital filed a motion to dismiss Davis’s claims with prejudice on the ground the expert reports were inadequate. Davis responded, arguing both Gibson’s and Steinbauer’s reports met the statutory requirements. In the alternative, he requested a thirty-day grace period within which to file additional reports if the court determined the reports on file were inadequate. As grounds for the extension, Davis alleged he had experienced difficulty obtaining “medical records and complete nursing home records,” including color photographs of Audrey Davis’s ulcers.

The trial court heard the hospital’s motion and Davis’s request on February 19, 2004. Counsel for Davis and for the hospital testified regarding when various documents were provided. Davis’s counsel stated that, with the exception of the color photographs, she received complete hospital records on October 10, 2003. The hospital’s counsel testified, without objection, he had been informed by his office that Davis’s counsel received black and white photographs, which were part of the medical chart, in April 2003, and would certainly have had these photographs by October 19, 2003. Further, it was his understanding that Davis’s counsel received the color photographs from the hospital on November 21, 2003.

In addition to this testimony, the court admitted into evidence the two reports, the color photographs, documents reflecting Davis’s requests for records, and the hospital’s responses. The documents included the hospital’s November 20, 2003 discovery response, to which color photographs were attached, and a certified mail receipt indicating receipt by Davis’s counsel’s office on November 21, 2003.

By written order entered February 20, 2004, the trial court granted the hospital’s motion to dismiss and denied Davis’s request for a thirty-day grace period. The order reads in part:

The court finds that the failure of plaintiff to file an adequate report was not the result of accident or mistake. Accordingly, the court hereby denies the plaintiffs motion for grace period. Similarly, the court hereby grants the defendant’s motion to dismiss for failure to provide an expert report that satisfies the statutory requirements.

Davis then requested the trial court enter findings of fact and conclusions of law. By written order entered March 15, 2004, the court declined to do so, stating it was not required to do so under the MLIIA, the Texas Rules of Civil Procedure, or any applicable case law. On March 17, 2004, Davis filed a notice of appeal from the February 20, 2004 order.

The nursing home also filed a motion to dismiss on the ground the expert reports were inadequate. Davis responded to the nursing home’s motion, relying only on Steinbauer’s report. Davis again requested, in the alternative, a thirty-day grace period within which to file additional reports if the court were to find Stein-bauer’s report inadequate. As before, he alleged he had experienced difficulty obtaining complete medical and nursing home records, including color photographs of Audrey Davis’s ulcers. He specifically alleged he did not receive the color photographs from the nursing home until February 12, 2004, after he had to invoke the court’s power to compel.

The trial court heard the nursing home’s motion and Davis’s request on July 1, 2004. The trial court admitted the expert reports, the color photographs, the corresponding black and white copies, and documents reflecting correspondence between Davis and the hospital and nursing home. In addition, the trial court heard testimony from Davis’s counsel.

Davis’s counsel testified she began requesting records from the nursing home in May 2002. When the nursing home had not provided records by July 2002, counsel reported the nursing home to the Texas Department of Human Services (TDHS), and TDHS conducted an investigation in September 2002. By September 9, 2002, counsel had received a 550-page document, for which the family paid a dollar per page. According to its investigation report, TDHS found the nursing home violated regulations providing for a patient’s right to purchase photo copies at a rate not exceeding community standards.

Counsel testified further that, on March 11, 2003, she again wrote the nursing home. In that letter counsel stated, “No photographs were included with the records we received regarding Audrey Davis. Would you please forward copies of the photographs in Mrs. Davis’ [sic] records, in color, as soon as possible.” On November 21, 2003, the trial court ordered the nursing home to produce documents on December 3, 2003. Counsel testified they went to the nursing home that day, but the color photographs were not copied at that time. Counsel testified that, on February 10, 2004, she again requested color copies of the photographs. According to counsel, she received color photographs from the nursing home on February 12, 2004, in response to a second motion to compel. On cross-examination, counsel admitted that “there was no extension of time to file any further expert reports in this case after the 180-day time period furnishing [sic] an adequate report expired until [she] filed the response to [the nursing home’s] motion to dismiss.”

By written order entered July 29, 2004, the trial court granted the nursing home’s motion to dismiss and denied Davis’s request for a thirty-day grace period. The order was substantively identical to that previously entered in Davis’s case against the hospital. Davis again requested findings of fact and conclusions of law, and on September 17, 2004, filed a notice of appeal in his case against the nursing home.

This court subsequently granted Davis’s motion to consolidate the two cases for purposes of appeal. In both cases, Davis contends the trial court “committed reversible error” by (1) granting the appel-lees’ motions to dismiss because the expert reports were insufficient to meet the requirements of the MLIIA, (2) denying Davis’s requests for a thirty-day grace period in which to file sufficient reports, and (3) declining to prepare and file findings of fact and conclusions of law.

II. DISCUSSION

A. The Insufficiency of the Expert Reports

In issue one, Davis contends the trial court “erred” in dismissing his lawsuits on the ground that his expert reports did not meet the requisite standards of the MLI-IA. Under former MLIIA section 10.01(d), not later than the 180th day after filing suit or the last day of any extended period under subsection (f) or (h), a health care liability claimant who wished to pursue a claim was required to furnish an expert report for each physician or health care provider against whom he asserted a claim. Act of May 5,1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(d), 1995 Tex. Gen. Laws 985, 986, repealed by Act of June 2, 2003, 78th Leg., R.S. ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. Subsection (e) provided that, if the claimant failed to comply with subsection (d) within the time allowed, the court should, on the defendant’s motion, enter an order dismissing the claim with prejudice as a sanction against the claimant. Id. sec. 13.01(e), 1995 Tex. Gen. Laws at 986. Under subsection (J), a defendant could challenge the adequacy of a timely filed report, and the trial court was to grant the motion only if it appeared to the court, after a hearing, that the report did not represent a good faith effort to comply with the definition of an expert report set out in subsection section (r)(6). Id. sec. 13.01(0, 1995 Tex. Gen. Laws at 987.

We apply an abuse-of-discretion standard in reviewing a trial court’s decision to dismiss a claim under subsections (d), (e) and (l) on the ground of an inadequate report. See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875, 878 (Tex. 2001). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Wright, 79 S.W.3d at 52 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). When reviewing matters committed to the trial court’s discretion, we may not substitute our own judgment for the trial court’s judgment. Id. (citing Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41 (Tex.1989)).

The MLIIA defined an “expert report” as

a written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.

Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(r)(6), 1995 Tex. Gen. Laws 985, 987 (repealed 2003). Accordingly, the expert report has to set out, in nonconclusory language, the expert’s opinions about three elements of the claim: the standard of care, breach, and causation. See Palacios, 46 S.W.3d at 879.

Although the report need not marshal all the plaintiffs proof, it must fulfill two purposes in order to constitute a good faith effort under subsection (l). Id. at 878-89. First, it must inform the defendant of the specific conduct the plaintiff calls into question; and second, it must provide the trial court with a basis to conclude the plaintiffs claims have merit. Id. A report merely stating the expert’s conclusions, or one omitting any of the statutory requirements, does not constitute a good faith effort. Id. at 879. Finally, the report itself must include the required information within its four corners. Wright, 79 S.W.3d at 53; Palacios, 46 S.W.3d at 878.

The hospital. In responding to the hospital’s motion, Davis relied on both Steinbauer’s and Gibson’s reports. The only comment Steinbauer makes regarding the hospital is the following: “When the patient was in Spring Branch Medical Center, her tube feedings were done by intermittent bolus.”

Gibson sets forth the chronology of Audrey Davis’s stays at the hospital and nursing home from October 1, 2001, through April 29, 2002. He indicates that, during her first stay at the hospital, “she had gone from having no decubitus ulcer to a stage four decubitus ulcer to the right heel that was 6 cm. by 5 cm. and also had a stage one ulcer to the left heel.” His only statement regarding the standard of care is the following:

From my reading of this case, I would have concerns about the standard of care that the patient received at both the nursing home and Spring Branch Hospital. In my opinion the possibility exists that they both fell below the standard of care a patient should have received in a situation such as Ms. Davis’ [sic].

The standard of care for a hospital is what an ordinarily prudent hospital would do under the same or similar circumstances. Palacios, 46 S.W.3d at 880. A fair summary of the standard of care must set out what care was expected, but not given. Id. In Palacios, the supreme court held that a statement that precautions were not taken to prevent a patient’s fall was not a statement of the standard of care. Id. Gibson’s statement regarding the standard of care in the present case is even less informative than that provided by the expert in Palacios.

As in Palacios, we hold the trial court did not abuse its discretion when it concluded the expert reports relating to the hospital did not represent a good faith effort to meet the requirements of the MLIIA. See id. at 875.

The nursing home. In responding to the nursing home’s motion, Davis relied only on Steinbauer’s report. Other than a list of Steinbauer’s qualifications and the documents he reviewed, Stein-bauer’s report, in its entirety consists of the following:

I understand that Ms. Davis’ [sic] family has concerns about the quality of care she received at Highland Park. Specifically, when they visited her in April of 2002 and found her in pain, without protection properly applied to her heel ulcer, and apparently not getting enough fluid. Within a few days of this visit, the patient did undergo amputation of the ulcerous left leg. This unfortunate even [sic] occurred a few months after her right leg had been amputated.
Ms. Davis had severe vascular disease and also had diabetes. Her diseases certainly have a poor prognosis by virtue of their chronicity and irreversibility. The question becomes, did the Highland Park Nursing Center provide care that was standard and, if not, did substandard care rob Ms. Davis of quality and quantity of life which she would otherwise have?
Careful review of the nursing home records and hospital records raises the following concerns:
• When the patient was in Spring Branch Medical Center, her tube feedings were done by intermittent bolus. Despite an order from Dr. Skelton on 2-7-02 for the patient to receive her tube feeding every 4 hours by bolus, nurses notes from Highland Park on 2-8-02 show the patient was receiving a 2 hour infusion of her tube feeding. The problem here is that Ms. Davis spent long periods of time with the head of the bed (HOB) elevated and remaining in bed. This change, while making nursing care for the tube feeding easier, makes proper positioning of the patient difficult. This would increase her risk of pressure sores. Indeed, she developed ulcers on her left leg, and a sacral ulcer in May 2002.
• Dietary notes repeatedly mention the failure of Highland Park staff to obtain routinely ordered weights. Thus, the patient struggled with malnutrition during a time when careful attention should be paid to her nutrition status in order to give her the best chance for ulcer healing. Dr. Skelton ordered weekly weights in March of 2002, and this order was also not carried out.
• Dr. Skelton ordered that the G-tube be checked for position, gastric residuals checked, and the tube be flushed every shift. Flow sheet data show this was signed off at the end of a month as “okay”, but evidence of performance every shift was lacking.
Each of these variances between what the doctor ordered, and was [sic] actually done at Highland Park, call to question the quality of all care provided by Highland Park. The errors in care I found in the record would support the observations of the family in April 2002 when they allege they found patient in pain, without proper protection of her left extremity, and dehydrated. It is my opinion the quality of care at Highland Park did not meet the standard of good nursing home care, and robbed Ms. Davis of quality of life, and hastened the loss of her legs.
These comments and conclusions are true and correct to the best of my knowledge.

In the trial court, Davis argued that, with regard to the standard of care, Steinbauer stated it was below the standard of care not to follow doctor’s orders. As set forth above, Steinbauer observed three aspects of Audrey Davis’s care in which the nursing home did not follow Dr. Skelton’s orders: (1) the schedule of Audrey Davis’s feedings, (2) the failure to obtain routinely ordered weights, and (3) lack of evidence that every shift checked Audrey Davis’s G-tube. Nowhere in his report, however, does Steinbauer equate following the specific orders given in the present case with what an ordinarily prudent hospital would do under the same or similar circumstances. See Palacios, 46 S.W.3d at 880. “A trial court does not abuse its discretion in dismissing a suit in which one is required to infer the standard of care from the allegations in the expert report.” Russ v. Titus Hosp. Dist, 128 S.W.3d 332, 343 (Tex.App. — Texarkana 2004, pet. denied) (citing Wright, 79 S.W.3d at 53); see also Strom v. Mem’l Hermann Hosp. Sys., 110 S.W.3d 216, 224 (Tex.App. — Houston [1st Dist.] 2003, pet. denied) (concluding a report that arguably addressed breach of the standard of care did not address the standard of care itself).

Nevertheless, even if we assume Stein-bauer’s report, by implication, sufficiently set forth the standard of care, the report fails to adequately address the element of causation under Wright. With regard to Audrey Davis’s feeding schedule, Stein-bauer opined: “This [change in Audrey Davis’s positioning as a result of the change in feeding schedule] would increase her risk of pressure sores. Indeed, she developed ulcers on her left leg, and a sacral ulcer in May 2002.” With regard to the failure to obtain routinely ordered weights, Steinbauer opined: “Thus, the patient struggled with malnutrition during a time when careful attention should be paid to her nutrition status in order to give her the best chance for ulcer healing.” Finally, Steinbauer opined: “It is my opinion the quality of care at Highland Park did not meet the standard of good nursing home care, and robbed Ms. Davis of quality of life, and hastened the loss of her legs.”

In Wright, the plaintiffs complained that the hospital’s personnel had failed to diagnose the patient’s foot fracture, protect the patient’s foot, review diagnostic tests ordered and administered at the hospital, or properly supervise a physician’s assistant who x-rayed and diagnosed the patient. Wright, 79 S.W.3d at 50. Regarding causation, the plaintiffs’ expert stated, “I do believe that it is reasonable to believe that if the x-rays would have been correctly read and the appropriate medical personnel acted upon those findings then Wright would have had the possibility of a better outcome.” Id. at 51. The supreme court concluded:

After reviewing this report, we conclude that the trial court could have reasonably determined that the report does not represent a good-faith effort to summarize the causal relationship between Bowie’s [the hospital’s] failure to meet the applicable standards of care and Barbara’s injury. That is because the report simply opines that Barbara might have had “the possibility of a better outcome” without explaining how Bowie’s conduct caused injury to Barbara. We cannot infer from this statement, as the Wrights ask us to, that Bowie’s alleged breach precluded Barbara from obtaining a quicker diagnosis and treatment for her foot. Rather, the report must include the required information within its four corners. Because the report lacks information linking the expert’s conclusion (that Barbara might have had a better outcome) to Bowie’s alleged breach (that it did not correctly read and act upon the x-rays), the trial court could have reasonably determined that the report was conclusory. A con-clusory report does not meet the Act’s requirements, because it does not satisfy the Palacios test.

Id. at 53 (citations omitted).

Like the expert’s opinion in Wright, Ste-inbauer’s opinion that the quality of care at the nursing home “robbed Ms. Davis of quality of life, and hastened the loss of her legs” is conclusory. Steinbauer provides no basis for his statement that Audrey Davis “struggled with malnutrition,” and does not explain how lack of routine weighing would contribute to malnutrition. Steinbauer did opine that the changes in Audrey Davis’s feeding schedule and positioning “would increase her risk of pressure sores,” but provided no link between the pressure sores and the loss of Audrey Davis’s legs.

As in Wright, we hold the trial court did not abuse its discretion when it concluded Steinbauer’s report relating to the nursing home did not represent a good faith effort to meet the requirements of the MLIIA. See id. at 54.

In sum, the trial court did not abuse its discretion in dismissing either case based on the inadequacy of the expert reports. We overrule Davis’s first issue in both cases.

B. Denial of the Request for a Thirty-Day Grace Period

In issue two, Davis contends the trial court “committed reversible error” in denying his requests for thirty-day extensions under former MLIIA section 13.01(g). An appellate court reviews a trial court’s decision to grant or deny a section 13.01(g) grace period under an abuse-of-discretion standard. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003).

Section 13.01(g) provided:
Notwithstanding any other provision of this section, if a claimant has failed to comply with a deadline established by Subsection (d) of this section and after hearing the court finds that the failure of the claimant or the claimant’s attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection. A motion by a claimant for relief under this subsection shall be considered timely if it is filed before any hearing on a motion by a defendant under Subsection (e) of this section.

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

The section 13.01(g) grace period may be used to cure timely filed, but inadequate, expert reports. Walker, 111 S.W.3d at 62. The standard for granting a grace period — ie., “that the failure of the claimant or the claimant’s attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake” — mirrors the standard for setting aside a default judgment or reinstating a case dismissed for want of prosecution. Id. at 63 (citing Tex.R. Civ. P. 165a(3) and Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939)).

Although “some mistakes of law may negate a finding of intentional conduct or conscious indifference, entitling the claimant to a grace period under section 13.01(g),” not every act that could be characterized as a mistake of law constitutes sufficient excuse. Id. at 64. In Walker, for example, the supreme court held that a claimant’s mistaken belief his filed expert reports are adequate does not entitle the claimant to a section 13.01(g) grace period. Id. at 64-65.

Intermediate courts of appeals have upheld denials of requests for a 13.01(g) grace period when the reasons for the request included, among others, difficulties with discovery or obtaining records. In Whitworth v. Presbyterian Healthcare Center of North Texas, for example, the court of appeals upheld denial of a grace period when the plaintiff presented two reasons for filing an inadequate report: (1) his attorney’s belief the report was adequate and (2) the impossibility of filing an adequate report when the defendant hospital had not produced all the medical records. No. 05-97-01684-CV, 2001 WL 1264238 at *1, *3 (Tex.App.—Dallas Oct. 23, 2001, no pet.) (not designated for publication). In Broom v. MacMaster, the court upheld the trial court’s denial of a section 13.01(g) grace period when the reasons given for the request included the lateness with which the case was referred to counsel, the large amount of work created by the case and other cases counsel was handling, and counsel’s assumption opposing counsel would not seek strict compliance with the statutory requirements. 992 S.W.2d 659, 664 (Tex.App.—Dallas 1999, no pet.).

In the present case, Davis based his request for both extensions on the difficulty he had obtaining records from the hospital and the nursing home. Specifically, he pointed to delay in obtaining color photographs of Audrey Davis’s ulcers. In response to the hospital’s motion Davis alleged, “The color photographs are extremely important because there is a great discrepancy between the records of Defendant, Spring Branch Medical Center, and the nursing home regarding the development of the pressure ulcers and Audrey Davis’ [sic] condition when she arrived at the nursing home.” He responded to the nursing home’s motion in substantially the same terms.

In an affidavit in support of the response to the hospital, Davis’s counsel stated, “Photographs of Mrs. Davis were necessary for the experts to address the issue of development and progression of the bedsores.” He did not provide a similar affidavit in response to the nursing home’s motion.

The evidence at the hearing on the hospital’s motion established that, with the exception of the color photographs, Davis’s counsel received complete hospital records on October 10, 2003, and received the color photographs on November 21, 2003. The three color photographs from the hospital showed (1) Davis’s left or right heel on November 15, 2001, (2) her right heel on November 19, 2001, and (3) her right heel on November 29, the date of her discharge from the hospital and return to the nursing home.

The documents on file and the evidence at the hearing on the nursing home’s motion established that the trial court, in response-to Davis’s motion to compel, ordered that the nursing home produce all nursing and medical charts on November 20, 2003, and all other records and documents responsive to Davis’s first request for production on December 3, 2003. Davis therefore had access to the color photographs by December 3, 2003, but Davis’s copying service did not make color copies at that time, and, on January 12, 2004, counsel’s office again requested access to the documents. After a second request and an additional motion to compel, the nursing home, in mid-February 2004, provided color photographs of Audrey Davis’s right and left heels taken November 29, 2001.

As stated above, we apply an abuse-of-diseretion standard to a trial court’s section 13.01(g) grace period decision. Walker, 111 S.W.3d at 62. For three reasons, we conclude the trial court did not abuse its discretion in denying Davis’s requests for grace periods in both cases.

First, Davis’s actions were arguably inconsistent with his asserted need for the photographs. Davis did not request a section 13.01(g) grace period in either case until after the respective health care provider filed a motion to dismiss based on the inadequacy of the reports. Even then, Davis requested a grace period only as an alternative to his argument that the filed reports were adequate. Thus, Davis was arguing the color photographs were essential to the experts’ reports while at the same time arguing the reports, made without access to the color photographs, satisfied the statutory standards. The Dallas Court of Appeals characterized a similar argument as “self-contradicting.” Whitworth, 2001 WL 1264238 at *4.

Second, by late November or early December 2003, Davis had virtually all the information he contends he needed. By November 21, 2003, Davis had complete records, including color photographs, from the hospital. The third hospital photograph showed the condition of Audrey Davis’s right heel on the date of her November 29, 2001 discharge from the hospital, essentially duplicating the information in one of the two nursing home photographs. The only additional information provided by the color photographs from the nursing home was the condition of Audrey Davis’s left heel on November 29, 2001. By December 3, 2003, Davis had access to, and a black and white copy of, that photograph.

Despite having received this information, Davis apparently did not file a motion for a thirty-day extension under section 13.01(f). Such an extension would have required only a showing of good cause and, if granted, would have extended the November 25, 2003 deadline to December 27, 2003. At least one court of appeals upholding a trial court’s decision to deny a section 13.01(g) grace period has considered counsel’s failure to seek a “good cause” or agreed extension of the 180-day deadline. See Broom, 992 S.W.2d at 664.

Finally, Davis presented the trial court with no evidence of how the two experts might have cured the deficiencies in their reports had they been able to view the color photographs. In his report, Gibson states only that photographs were not available to him, and Steinbauer makes no mention at all of photographs. Neither doctor stated how the absence of color photographs hindered him in forming an opinion about the standard of care, about failure to meet the standard, or about eau-sation in relation to either the hospital or the nursing home.

In her affidavit in support of the request for a grace period in the case against the hospital, Davis’s counsel stated only that photographs were “necessary for the experts to address the issue of development and progression of the bedsores.” Like the expert reports, this statement provides no information about how viewing the color photographs might have resulted in more adequate reports, particularly when Gibson knew without the photographs that there was no evidence of a decubitus ulcer when Audrey Davis entered the hospital, and that she had stage four and stage one ulcers, on her right and left heels, respectively, when she was discharged November 29, 2001. Without evidence of what the experts might do differently if given more time, the trial court cannot be said to have abused its discretion in denying a thirty-day grace period.

Given the timing and nature of Davis’s requests and the evidence before the trial court, the trial court did not abuse its discretion in denying the requests for a section 13.01(g) grace period in both cases. We overrule Davis’s issue two.

C. Denial of the Request to File Findings of Fact and Conclusions of Law

In issue three, Davis contends the trial court “committed reversible error by declining to prepare and file findings of fact and conclusions of law.” In both cases, Davis requested findings of fact and conclusions of law “regarding [the trial court’s] Order granting sanctions” and “regarding its Order granting dismissal.”

Dismissal under section 13.01 is a sanction. Palacios, 46 S.W.3d at 877; Mocega v. Urquhart, 79 S.W.3d 61, 64 (Tex.App. — Houston [14th Dist.] 2002, pet. denied). When a trial court renders judgment as a sanction, findings of facts and conclusions of law are not required because (1) findings of fact and conclusions of law are often unnecessary, (2) requiring them in every case would unduly burden trial courts, and (3) appellate courts are not obliged to give them the same level of deference. Smalling v. Gardner, — S.W.3d -, -, No. 14-03-01079-CV, 2005 WL 549855 at *12 (Tex.App. — Houston [14th Dist.] Mar. 10, 2005, pet. filed) (citing IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997)). Thus, “when a trial court dismisses a claim because the plaintiff failed to comply with the MLIIA’s procedural requirements, it is appropriate to file findings of fact and conclusions of law, but the trial court is not required to do so.” Id.

Furthermore, as discussed in sections II-A. and II-B. above, the decisions to dismiss on the ground of an inadequate expert report and the decision to grant or deny a grace period are reviewed for an abuse of discretion. See Walker, 111 S.W.3d at 62 (regarding grace period); Wright, 79 S.W.3d at 52 (regarding expert report); Palacios, 46 S.W.3d at 878 (same). Unless a statute or rule specifically states otherwise, when an abuse-of-discretion standard applies on appeal, findings of fact and conclusions of law are not required. See Winters v. Chubb & Son, Inc., 132 S.W.3d 568, 580 (Tex.App.— Houston [14th Dist.] 2004, no pet.) (in context of review of an award of attorney’s fees, stating “findings of fact are not required in an abuse of discretion review”); Samuelson v. United Healthcare of Tex., Inc., 79 S.W.3d 706, 710 (Tex.App. — Fort Worth 2002, no pet.) (holding when abuse-of-discretion standard of review applies to trial court’s ruling, findings of fact and conclusions of law, although helpful, are not required).

For the preceding reasons, we conclude the trial court was not required to file findings of fact and conclusions of law and, therefore, did not abuse its discretion in declining to do so. See Smalling, — S.W.3d at , 2005 WL 549855 at *12.

III. CONCLUSION

Having overruled Davis’s three issues in both cases, we affirm the judgments of the trial court dismissing Davis’s claims against the hospital and the nursing home.

      . See Act of May 30, 1977, 65th Leg., R.S., ch. 817, §§ 1.01-12.01, 1977 Tex. Gen. Laws 2039, 2039-2053 (former Tex.Rev.Civ. Stat. art. 4590i), repealed by Act of June 2, 2003, 78th Leg., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884.

      . We refer to the appellant as "Davis,” and to his mother as "Audrey Davis.”

      . In addition to the hospital and nursing home, Davis sued various other individuals. They were subsequently non-suited.

      . In his statement of the facts in his petition, Davis set forth allegations sounding in fraud and breach of contract. He does not argue that any of his claims were other than health care liability claims covered by the MLIIA.

      . See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(d), 1995 Tex. Gen. Laws 985, 986, repealed by Act of June 2, 2003, 78th Leg., R.S. ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884.

      . In a subsequent hearing, the court admitted, for purposes of comparison, the black and white photographs Davis had received as part of the medical records.

      .Davis also filed a motion to sever his case against the hospital. The docket sheet indicates the trial court granted the motion on March 15, 2004, but there is no written severance order in the appellate record. Nevertheless, as discussed below, the trial court dismissed the remaining claims — i.e., those against the nursing home — on July 29, 2004. We therefore treat the March 17, 2004 notice of appeal as a prematurely filed notice. See Tex.R.App. P. 27.1(a).

      . The nursing home’s motion is not a part of the record on appeal.

      . In a letter dated January 12, 2004, an agent of plaintiffs counsel wrote the nursing home: “Evidently, when the nursing home records regarding Audrey Davis were copied previously, our copy service failed to make color copies of the photographs. We would like to send the service back to correct the error. Please advise when that will be possible.”

      . In his response to the nursing home's motion, Davis specifically stated he was relying on Steinbauer’s report and cited the trial court only to that report but attached both reports to his response. In this court, Davis argues the trial court should have considered both reports in his case against the nursing home. In the trial court, Davis made that argument only in the context of his case against the hospital. Davis has not preserved the argument that the trial court should have considered both reports in relation to the nursing home. See Tex.R.App. P. 33.1(a) (stating, as prerequisite to presenting complaint for appellate review, party must make complaint to trial court). Even were we to consider Gibson's report along with Stein-bauer’s in relation to the nursing home, the reports do not meet the statutory standards. Gibson states only that he "would have concerns about the standard of care” and disagrees with another expert’s statement that the nursing home "allowed the stage four ulcer to develop gangrene.”

      . In the trial court, Davis complained of his late receipt of the hospital records covering the time period between November 12 and November 29, 2001, when Audrey Davis developed a stage four ulcer on her right heel and a stage one ulcer on her left heel. In her letter of March 13, 2003, to the hospital, Davis’s counsel requested Audrey Davis’s "complete medical and billing records, including photographs ... from January 1, 2002 to the present.” According to the documentary evidence, counsel’s earliest request to the hospital for the November 2001 records was made September 17, 2003.

      . To the extent Davis was operating on the mistaken belief the reports were adequate, that belief is insufficient to support a section 13.01(g) grace period. See Walker v. Gutierrez, 111 S.W.3d 56, 64-65 (Tex.2003).

      . Section 13.01(f) provided: "The court may, for good cause shown after motion and hearing, extend any time period specified in Subsection (d) of this section for an additional 30 days. Only one extension may be granted under this subsection.” Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, sec 13.01(f), 1995 Tex. Gen. Laws 985, 986 (repealed 2003). Because the thirtieth day fell on December 25, 2003, and December 25 and 26 are legal holidays, the thirty days would have expired December 27. See Tex. Gov't Code Ann. §§ 662.003(a)(9), (b)(8), 662.021 (Vernon 2004); Tex.R. Civ. P. 4. A motion under section 13.01(f) would have been timely until December 27, 2003. See Pfeiffer v. Jacobs, 29 S.W.3d 193, 197 (Tex.App. — Houston [14th Dist.] 2000, pet. denied).


source: Caselaw Access Project

author: Opinion by Justice GARZA.

license: Public Domain

text:
    GRIFFIN INDUSTRIES, Inc., Appellant, v. The STATE of Texas, Appellee.
    No. 13-03-382-CR.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    July 14, 2005.

      Wendell Odom, Houston, for appellant.

      William J. Delmore, III, Chief Prosecutor, Appellate Division, Charles A. Rosen-thal, Jr., Dist. Atty .-Harris County, Roger A. Haseman, Asst. Dist. Atty., Houston, for appellee.
    Before Justices YÁÑEZ, CASTILLO, and GARZA.
   MEMORANDUM OPINION

Opinion by Justice GARZA.

Appellant, Griffin Industries, Inc., was convicted by a jury of the offense of unauthorized discharge. See Tex. Watee Code Ann. 7.147 (Vernon 2000) The trial court assessed appellants punishment at a fine of $10,000. We affirm.

I. BACKGROUND

On August 3, 2000, Stephen Dicker, a Houston police officer assigned to the Environmental Investigations Unit, responded to a call regarding a spill of chicken waste at 1200 Rutland Street. At the scene, Dicker observed chicken waste, along with some oils and fats, that were in the street and in an adjacent storm drain. He also observed a “makeshift” cleanup being conducted by employees of Lone Star Poultry, a chicken processing plant located on Rutland Street. The cleanup consisted of scooping up solid chicken waste, putting it into barrels, and washing the remaining waste down the storm drain. He also noticed appellant’s driver, along with other employees of appellant, washing out the cab of a truck owned by appellant. Dicker testified that he approached the owner of Lone Star, ceased the cleanup, instructed the workers to start a proper clean-up, and photographed the storm drain. After an investigation, Dicker concluded that appellant’s truck was filled with chicken waste beyond capacity. He determined that when the truck pulled forward to drive onto the street and then stopped suddenly to avoid an oncoming vehicle, the load of chicken waste shifted forward, came over the top of the truck, and ended up in the street. In his opinion, the overloading of the “opened bed” truck is what caused the release.

Melvin Rogers, the driver of appellant’s truck, testified it was his job to pick up animal parts for appellant to recycle. Rogers also testified that after Lone Star loaded his truck, he drove the truck off Lone Star’s premises but had to stop abruptly to avoid an oncoming car. The sudden stop caused the chicken waste in the bed of the truck to slosh out over the bed and cab of the truck and into the street. Rogers testified that he immediately notified Lone Star and his supervisor about the spill. Appellant hired CES Environmental Service to conduct a clean up of the 1200 block of Rutland and the loading dock at the facility.

On appeal, appellant contends that (1) section 7.147 of the Texas Water Code is unconstitutionally void for vagueness, (2) section 7.147 of the Texas Water Code is unconstitutional as applied to appellant, (3) there was insufficient evidence to support appellant’s conviction for unauthorized discharge, and (4) the trial court committed reversible error in refusing appellant’s request for a jury instruction on causation.

II. Constitutionality of Section 7.147 of Texas Water Code

Appellant argues that section 7.147 of the Texas Water Code is void for vagueness, both on its face and as applied to appellant, because it fails to provide notice of what conduct is prohibited and leaves the determination of what constitutes an offense to the discretion of law enforcement agencies of the State. See Tex. Water Code Ann. § 7.147. When considering the constitutionality of a statute, we commence with the presumption that the statute is valid and that the legislature has not acted unreasonably or arbitrarily in enacting the statute. Ex Parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978) (en banc); Brenneman v. State, 45 S.W.3d 729, 732 (Tex.App.-Corpus Christi 2001, no pet.). The burden is on the appellant to prove that the statute is unconstitutional. Granviel, 561 S.W.2d at 511; Brenneman, 45 S.W.3d at 732. Appellate courts must uphold the statute if it can be reasonably construed to be constitutional. Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App. 1979) (en banc); Brenneman, 45 S.W.3d at 732. A statute is void for vagueness if it fails to give a person of ordinary intelligence fair notice that his or her contemplated conduct is forbidden by statute or if it encourages arbitrary and erratic arrests and convictions. Brenneman, 45 S.W.3d at 732 (citations omitted). Stated another way, a statute is unconstitutionally vague “if persons of common intelligence must necessarily guess at its meaning and differ as to its application.” Id. The initial inquiry must be whether the ordinary, law-abiding individual would have received sufficient information that his or her conduct risked violating a criminal law. Bynum v. State, 767 S.W.2d 769, 773 (Tex.Crim.App. 1989) (en banc). If a statute can be construed in two different ways, one of which sustains its validity, we must apply the interpretation that sustains its validity. Mody v. State, 2 S.W.3d 652, 653-54 (Tex. App.-Houston [14th Dist.] 1999, pet. ref d). A statute is not vague or indefinite merely because its words or phrases are not specifically defined. State v. Edmond, 933 S.W.2d 120, 126 (Tex.Crim.App.1996) (en banc). If a statute is challenged for vagueness and no First Amendment rights are involved, the reviewing court need only scrutinize the statute to determine whether it is impermissibly vague as applied to the challenging party’s specific conduct. Bynum, 767 S.W.2d at 774.

In this case, appellant contends that “to discharge,” as defined under Texas Water Code section 26.001, fails to give a person of reasonable intelligence fair notice of what is prohibited and allows unfettered discretion in the application of the statute by law enforcement. See TEX. WATER CODE ANN. § 26.001(19) (Vernon Supp. 2004-05). Appellant argues that, when read literally, the statute encompasses an enormous range of conduct.

A facial challenge to a statute on the basis of vagueness will be upheld only if the statute is impermissibly vague in all its applications. State v. Wofford, 34 S.W.3d 671, 678 (Tex.App.-Austin 2000, no pet.) (citing Briggs v. State, 740 S.W.2d 803, 806 (Tex.Crim.App.1987) (en banc)). A facial challenge is the most difficult because the challenger must establish that no set of circumstances exists under which the statute would be valid. Id. (citing Briggs v. State, 789 S.W.2d 918, 923 (Tex.Crim.App.1990)). When challenging the constitutionality of a statute, a defendant must first make a showing that the statute is unconstitutional as applied to him, that it may be unconstitutional as to others is insufficient. Brenneman, 45 S.W.3d at 732 (citations omitted). When analyzing a statute for vagueness, hypothetical situations are not utilized; instead, we must examine the statute to determine whether it is impermissibly vague as applied to the challenging party’s specific conduct. See Bynum, 767 S.W.2d at 774. Accordingly, our query becomes whether section 7.147 is unconstitutionally vague as applied to appellant in this specific set of circumstances.

All criminal laws must give fan-notice to the populace as to what activity is made criminal so that individuals have fair warning of what is forbidden. Id. Whether a law gives fair notice entails a two-step inquiry. State v. Fry, 867 S.W.2d 398, 401 (Tex.App.-Houston [14th Dist.] 1993, no pet.). First, we must determine whether appellant, as an ordinary person, received sufficient information from the statute to understand exactly what conduct is prohibited so that he could act in a lawful manner. Id. A statute need not be mathematically precise; it only must give fair warning, in light of common understanding and practices. Id. Second, we determine whether section 7.147 provides sufficient notice of the prohibited conduct to law enforcement personnel, so that appellant is not arbitrarily or discrim-inatorily prosecuted by the State or convicted by the jury. See Id. If either of these inquiries is not met, a statute can be found unconstitutionally vague. See id. (citing Adley v. State, 718 S.W.2d 682, 685 (Tex.Crim.App.1985)).

Appellant’s vagueness challenge centers on the definition of “to discharge” as provided by chapter 26 of the water code. TEX. WATER CODE ANN. § 26.001(19). Appellant contends that the statute and its definition failed to provide notice as to what conduct was prohibited and what duties were imposed by the law. Section 7.147 does not reference the definition found in chapter 26 nor does it define the term “discharge.” See TEX. WATER CODE ANN. § 7.147. Nevertheless, a statute is not unconstitutionally vague merely because the words or terms used are not specifically defined. Ahearn v. State, 588 S.W.2d 327, 338 (Tex.Crim.App. 1979). Instead, the words or phrases must be given their plain meaning and read in the context in which they are used. Bynum, 767 S.W.2d at 774. Usually, the word or phrase must then be construed according to the rules of grammar and common usage. Id.; see also Tex. Gov’T CODE ANN. § 311.011(a) (Vernon 1998).

We address appellant’s vagueness challenge to the word “discharge” in light of its conduct. Bynum, 767 S.W.2d at 773. Appellant argues the statute is unconstitutionally vague because the word “discharge” does not provide an objective standard by which to measure its conduct and does not provide adequate notice to appellant or law enforcement personnel of what conduct is prohibited. We disagree. Chapter 26 of the Texas Water Code defines “to discharge” as “to deposit, conduct, drain, emit, throw, run, allow to seep, or otherwise release or dispose of, or to allow, permit, or suffer any of these acts or omissions.” See Tex. Water Code Ann. § 26.001(19). “Discharge” is also a commonly used word with the plain meaning of “to reheve of a charge, load, or burden.” See MeRRIam-WebsteR’s Collegiate Dictionary (10th ed.1996). The two definitions are actually very similar.

We conclude that the term “discharge” as defined in chapter 26 and its plain meaning, adequately conveys to the public the legislature’s intent to criminalize the release of waste or pollutants into or near water in the state. Accordingly, as applied to appellant, and in light of appellant’s conduct, the term “discharge” is not vague. The record reveals that (1) appellant’s driver was in possession and control of the chicken waste at the time of the incident, (2) the abrupt stop caused the chicken waste to spill, (3) appellant’s driver failed to contain the spill or attempt to stop the discharge of the waste into the storm drain, and (4) appellant’s driver along with other employees of appellant washed chicken waste off the cab of appellant’s truck onto the sidewalk and allowed the parts to wash towards the storm drain. We have no basis to conclude that appellant did not receive sufficient information from the statute to understand what conduct is prohibited so that it could act in a lawful manner. See McGee v. State, 923 S.W.2d 627, 631 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd).

Appellant also contends that the statute, as applied in this case, is unconstitutionally void for vagueness because it delegates discretion to law enforcement. Appellant argues that depending on the mood, policy, and discretion of law enforcement, appellant could be charged with water pollution even if it informed others engaged in a cleanup, such as employees of the fire department, that they were committing an illegal discharge. These are hypothetical situations, however, and not the case that is actually before us. Appellant failed to present any evidence that law enforcement officers arbitrarily applied the statute at issue in this case. See Fry, 867 S.W.2d at 403. Our review is limited to whether the statute was arbitrary as applied to appellant in this case. See Bynum, 767 S.W.2d at 774. Appellant has not met its burden of establishing that the statute in this case is unconstitutional as applied to it. Accordingly, we overrule appellant’s first and second issues.

III. Legal Sufficiency

By its third issue, appellant contends that there was insufficient evidence of unauthorized discharge. See Tex. Water Code Ann. § 7.147. Appellant argues that there is no evidence that the original spill threatened to cause pollution (but for the intervention of the Lone Star employees) and no evidence that its truck driver aided or abetted the Lone Star employees in their act of washing the chicken waste down the storm drain. Appellant further argues that, standing alone, proof that an individual was present at the scene of a crime is insufficient to hold the accused criminally responsible for the conduct of another.

A challenge to legal sufficiency in criminal cases requires the appellate court to review the relevant evidence in the fight most favorable to the verdict to determine whether a rational jury could have found all the essential elements of the crime beyond a reasonable doubt. Clewis v. State, 922 S.W.2d 126, 132-33 (Tex.Crim.App.1996); see Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The court should consider all the evidence in favor of the verdict, whether properly or improperly introduced by the prosecution or the defense. Clewis, 922 S.W.2d at 132-33.

In a jury trial, legal sufficiency is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. It is up to the court to determine whether the jury was presented with evidence that established all of the elements of the crime beyond a reasonable doubt. Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App.2003). A person commits the offense of unauthorized discharge if:

(1) The person discharges or allows the discharge of any waste or pollutant into any water in the state, (2) that causes or threatens to cause water pollution, unless (3) the waste or pollutant is discarded in strict compliance with all required permits or with a valid and currently effective order issued or rule adopted by the appropriate regulatory agency.

See TEX. WATER CODE ANN. § 7.147(a). An offense may be prosecuted without alleging or proving any culpable mental state. TEX. WATER CODE ANN. § 7.147(b). The evidence shows that chicken waste was discharged from appellant’s truck, while in the possession of appellant’s employee, and that the chicken waste was spread all over Rutland Street. The evidence also shows that the driver of appellant’s truck, along with other employees of appellant and Lone Star, washed the chicken waste off the cab of appellant’s truck onto the sidewalk and allowed the waste to flow into the storm drain. We conclude that the acts of appellant’s driver and its other employees, standing alone, are sufficient to establish the first element of unauthorized discharge. We do not base this conclusion solely on the presence of appellant’s driver at the scene of the crime; our conclusion rests on evidence that appellant’s driver, accompanied by other employees of appellant, in washing appellant’s truck, discharged chicken waste onto the sidewalk and allowed it to be washed into the storm drain. In reaching this conclusion, we note that the statute not only prohibits the act of discharging, it also criminalizes acts or omissions allowing discharge of waste into any water in the state.

Appellant also challenges the evidence as to the second element of the statute. Appellant argues that there can be no assumption that the initial spill was a per se threat to the water of the State of Texas. Appellant contends that there is no evidence of waste or pollution near a water source and that the evidence is undisputed that someone was going to, and did, clean up the discharge before it threatened or entered the sewer. We disagree. The State produced multiple photographs that show the chicken waste on the street being swept into the storm drain. Further, Dorene Hancock, an environmental investigator for the City of Houston, testified that she observed the waste being discharged into the sewer and that she collected two samples. The lab records revealed oil and grease levels at 4,890 mg/1, and fecal coliform levels at 200,000,000 colonies per 100 ml. Terry Mills of Envirodyne Laboratories in Houston testified that these oñ and grease levels are sufficient to cause water pollution. He also added that oil and grease derived from chicken waste create a “serious potential for disease.” This evidence is sufficient to support the jury’s finding that the discharge caused or threatened to cause water pollution. For the foregoing reasons, we hold that the evidence is legally sufficient to support appellant’s conviction. We overrule appellant’s third issue.

IV. Jury Instruction

In its final issue, appellant contends that the trial court committed reversible error in refusing appellant’s request for a jury instruction on causation. The instruction read:

Causation:
(A) A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient. P.Code. Sec 6.04
Therefore if the jury finds from the evidence or has reasonable doubt thereof, that Lone Star Poultry discharged or allowed the discharge of a waste pollutant into or adjacent to water in the State OR Lone Star Poultry discharged or allowed the discharge of a waste or pollutant from a point source AND that the conduct of Defendant, Griffin Industries, Inc. either alone or concurrently was not sufficient to produce or allow the result, then the jury must acquit the defendant.

Appellant’s defense was based on its argument that, but for the actions of Lone Star in overloading the truck and sweeping the chicken waste into the storm drain, there would not have been any threat of pollution or actual pollution into the Texas water system. The trial court gave no instruction on causation.

Section 6.04 of the Texas Penal Code provides:
A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.

TEX. PEN. CODE ANN. § 6.04(a) (Vernon 2003). Under section 6.04, a person is criminally liable if his conduct, regardless of a concurrent cause, caused the harm or if his conduct, together with another cause resulted in the harm. Robbins v. State, 717 S.W.2d 348, 351 (Tex.Crim.App.1986). Only when the person’s conduct, by itself, is clearly insufficient to cause the harm is a conviction improper. Id. Cases interpreting this penal code section hold that a charge on causation is not required when the defendant’s conduct was sufficient to produce the result. See Daniel v. State, 577 S.W.2d 231, 235-36 (Tex.Crim.App.1979); Contreras v. State, 838 S.W.2d 594, 606 (Tex.App.-Corpus Christi 1992, pet. ref'd). Stated conversely, a concurrent charge is not required when the evidence does not show that the appellant’s conduct was clearly insufficient to cause the result. We find no such evidence in this case. Appellant relies on its argument that the spill was caused because Lone Star overfilled its truck with chicken waste and because Lone Star washed the chicken waste into the storm drain. However, this argument ignores the direct actions of appellant’s employees, who personally washed chicken waste into the storm drain. We overrule appellant’s fourth issue.

We affirm the judgment of the trial court.

      . A person under Texas criminal law includes a corporation. See Tex. Pen.Code Ann. 1.07(a)(38) (Vernon Supp.2004-05).

      . The statute reads, in relevant part:
      A person commits an offense if the person discharges or allows the discharge of any waste or pollutant into any water in the state that causes or threatens to cause water pollution unless the waste or pollutant is discharged in strict compliance with all required permits or with a valid and currently effective order issued or rule adopted by the appropriate regulatory agency.
      Tex. Water Code Ann. 7.147(a).

      .The State called a number of witnesses who testified that the storm drain used by Lone Star to dispose of the chicken waste tied directly into the waterways of the State of Texas.

      . Relative to its vagueness challenge, appellant offers several scenarios which, it asserts, render this statute vague. It asks: Is it an offense to permit another to commit water pollution? Does one have to have knowledge of the water pollution of another? Is it an offense to allow water pollution by another? What must you do to prevent another from engaging in the act of water pollution? Is an attempt to prevent the acts of another what is required? Or is a reporting of the incident sufficient?

      . The juiy charge included the definition of to discharge as provided by chapter 26 of the water code.

      . As evidence, the State introduced testimony and pictures taken by Officer Dicker that show appellants employees (including the driver) and Lone Stars employees washing chicken waste off the cab of the truck and brushing and hosing the chicken waste onto the street and into the storm drain.


author: JOHN S. ANDERSON, Justice.

text:
    Roxane E. MARTINEZ, Appellant v. The STATE of Texas, Appellee.
    No. 14-04-00191-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 19, 2005.

      David R. Bires, Houston, TX, for appellant.
    Carol M. Cameron, Houston, TX, for appellee.
    Panel consists of Justices YATES, ANDERSON, and HUDSON.
   OPINION

JOHN S. ANDERSON, Justice.

A jury found appellant guilty of Class B misdemeanor theft. The trial court sentenced appellant to confinement in the Harris County Jail for ninety days, suspended the sentence and placed her on community supervision for one year, and assessed a fine of $2,000.00. On appeal, appellant raises five issues, arguing: (1) the trial court erred in charging the jury on the lesser included offense of Class B misdemeanor theft; (2) the trial court erred in denying appellant’s motion to suppress her oral statements; (3) appellant’s oral statements were admitted in violation of her right to remain silent as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution; (4) appellant’s oral statements were admitted in violation of her right to remain silent as guaranteed by article I, section 10 of the Texas Constitution; and (5) the evidence is factually insufficient. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of June 26, 2003, appellant went to a local bar, Palmer’s Ice House, where she played several games of pool with a man named Mario. Ydalia Capetillo, the complainant, asked appellant if she could play pool with them, and appellant said yes. Capetillo then placed money on the table to play the next game. Capetillo subsequently went to the restroom, and, when she returned, appellant and Mario had begun another game of pool without her. Capetillo and appellant argued over Capetillo being excluded from the game of pool.

Around 2:00 a.m., the bar closed. Appellant walked out of the bar with Mario and Cassandra Vega, an acquaintance of appellant’s. Vega had come to the bar that evening with her brother, Omar Vega, and friends Julie Butanda and Melissa Gonzales. According to Vega, appellant was hugging Mario by his truck in the parking lot when Capetillo, who had also left the bar, approached them in the parking lot. Appellant and Capetillo began to argue, and their verbal argument escalated into a physical altercation.

During the altercation, Capetillo’s purse and its contents fell to the ground. According to some witnesses, appellant hit Capetillo during the altercation. The testimony also is conflicting as to whether appellant grabbed Capetillo’s purse and placed it in her car, or whether appellant was handed Capetillo’s purse, along with other items that belonged to appellant, and she placed the purse and other items in her car. The conflicting testimony on this issue is set forth below.

Capetillo testified she saw appellant put Capetillo’s purse in appellant’s car. According to Capetillo, her purse, valued at $16.00, contained a cell phone, valued at $280.00, a wallet, valued at $56.00, and approximately $1,000.00 in cash.

Alejandra Ortaga, a waitress at the bar, saw appellant and Capetillo grabbing each other outside in the parking lot that evening. Ortaga testified she picked up the purse’s contents that were strewn about the parking lot and placed them back into the purse. According to Ortaga, appellant fought with her over the purse and eventually grabbed the purse and tossed it into the back seat of her car.

Maria Flores, a waitress at the bar who also witnessed the altercation between appellant and Capetillo in the parking lot, testified she saw appellant place Capetil-lo’s purse in her car.

Martin Rojas, a disc jockey at the bar, saw both women arguing in the parking lot, and he saw appellant take the purse from Ortaga, get in her car, and drive away.

George Gutierrez, a patron of the bar that night, saw appellant and Capetillo exchange words by the pool table inside the bar over whose game it was and also saw them both arguing in the parking lot. Gutierrez saw Ortaga and appellant pulling on the purse, like a tug-of-war.

Yega testified appellant threw a wallet, a purse, and a pool cue stick in the trunk of appellant’s car, and she remembered Omar and Butanda handing appellant something. Vega did not see appellant and Capetillo struggle over the purse or hit each other.

Butanda testified she witnessed the altercation between appellant and Capetillo in the parking lot. Butanda stated she retrieved the wallet in the parking lot and handed it to appellant, believing it belonged to appellant. Appellant then, without looking at it, threw it in her trunk.

It is undisputed appellant drove away from the bar with Capetillo’s purse and its contents in her car.

Officer Larry Vasqez responded to the disturbance call at the bar that evening. He interviewed Capetillo, Rojas, Flores, and Alejandra Alvarado when he arrived. Capetillo told Vasqez she was struck on the face and body by appellant, and he observed both Capetillo and Flores appeared to have been in a physical altercation.

Suzanne Gonzales, appellant’s cousin who was living with appellant at the time, testified she and appellant discovered a wallet, the same one identified at trial as belonging to Capetillo, on the front seat of appellant’s car after having the car detailed one Saturday. Appellant thought the wallet belonged to Gonzales, but Gonzales told her it was not hers. When they arrived home, they took the wallet inside the house. Gonzales opened it up and found approximately $200.00 in cash, some photos, and various identification and business cards. After looking through the wallet, the various cards were placed in the drawer of a china cabinet, the wallet was left on the dining room table, and the cash was placed in a petty cash drawer in appellant’s bedroom. The wallet was eventually turned over to authorities, but Gonzales does not know what happened to the cards or the cash.

On September 15, 2003, Officer Jared Davis visited appellant, an associate judge at the time, at her chambers in the municipal courthouse. A bailiff let him in to see her. Davis identified himself to appellant. He told her she was a named suspect in a theft, and he was there to get her side of the story. Davis did not have a warrant and did not read her Miranda warnings; however, he did tell her she did not have to talk to him. Appellant told Davis the following:

[Appellant] had gotten into a verbal argument with one of the ladies that was in a bar called Palmer’s Ice House on the night of June 26th, 2003, and that following the argument that had taken place inside the bar, [appellant] and [Ca-petillo] had then walked outside of the bar where they got into a physical confrontation. [Appellant] then told [Davis] that somewhere during that process, a purse, [Capetillo’s] purse, had been placed — put into [appellant’s] vehicle, which [appellant] later discovered the following day.

Appellant also told Davis she believed the purse was somewhere inside her home. She told him the purse had been placed in her car and that it belonged to Capetillo. Appellant told him there was approximately $200.00 cash in the purse along with some change, but she did not know where the cell phone was. She also told him she had spent the money. She explained that during the altercation with Capetillo her bracelet was torn off and her knee was injured, and appellant felt that, given her injuries and the damage to her bracelet, there was nothing wrong with spending the money. Appellant told Davis she would try to locate the purse and meet him with it the next day.

Two days later, Davis returned a voice mail message appellant had left for him the day before. Davis taped their entire telephone conversation. The tape recorded conversation was admitted into evidence and published to the jury. During their telephone conversation, appellant repeated to Davis some of what she had told him during their meeting two days earlier. Appellant tells Davis she has the wallet and purse, but she cannot find the cell phone or business cards. Appellant reiterates there was only $200.00 cash in the purse along with some change. Appellant also tells Davis Omar put Capetillo’s wallet and purse in her car. Appellant asks Davis about what the other witnesses are saying appellant did, and Davis tells appellant the witnesses are saying appellant hit them. Appellant denies hitting anyone and reiterates that she did not intentionally take anything. She admits knowing the purse and wallet belonged to Capetillo and spending the money. Appellant asks Davis about possibly paying the money back, and Davis tells her the complainant is the one who would make the decision as to whether or not to press charges against appellant and the decision is not up to the police department or the prosecutor. At the end of their conversation, appellant tells Davis she brought the purse to work. Davis asks if he may call her later and come by to get the purse; appellant tells him that is “okay” and to give her a call.

Later that same day, appellant was arrested pursuant to an arrest warrant. She turned over Capetillo’s wallet. Appellant was charged with Class A misdemeanor theft of property valued over $500 and under $1500 and assault. Appellant pled not guilty.

During trial, over appellant’s objections, her oral and tape-recorded conversations with Davis were admitted into evidence. The jury charge included instructions on Class A misdemeanor theft and on the lesser included offense of Class B misdemeanor theft, theft of property valued at $50 or more but less than $500. The jury ultimately found appellant guilty of the lesser included Class B theft offense.

DISCUSSION

I. Lesser Included Offense

In issue one, appellant argues the trial court erred in charging the jury on the lesser included offense of Class B misdemeanor theft because the instruction does not meet the second prong of the test established in Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App.1993). Appellant contends no evidence existed for the jury to find appellant guilty only of theft of property in an amount less than $500.00.

To determine whether a defendant is entitled to a lesser included offense instruction, a two-prong test applies: (1) the lesser included offense must be included within the proof necessary to establish the offense charged; and (2) some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, she is guilty only of the lesser included offense. Id. at 672-73. Appellant concedes the first prong of the test has been met, that Class B misdemeanor theft is a lesser included offense of Class A misdemeanor theft. However, appellant argues the second prong of the Rousseau test has not been met because no evidence of the lesser offense of Class B misdemeanor theft existed for the jury to find appellant guilty only of theft of property in an amount less than $500. Thus, appellant contends the trial court erred in instructing the jury on Class B misdemeanor theft over her objection.

A person commits the offense of theft if she unlawfully appropriates property with intent to deprive the owner of that property. Tex. Pen.Code Ann. § 31.03(a) (Vernon Supp.2005). The grade of the theft offense and the applicable punishment depend upon the value of the property stolen. Price v. State, 165 Tex.Crim. 326, 308 S.W.2d 47, 48 (1957). Theft of property with a value of $500 or more but less than $1500 is a Class A misdemeanor, and theft of property with a value of $50 or more but less than $500 is a Class B misdemeanor. Tex. Pen.Code Ann. § 31.03(e)(2)(A)(i), (e)(3).

Here, the complaint charged appellant with theft of Capetillo’s cash money, purse, and cell phone, valued over $500.00 and under $1,500.00, a Class A misdemeanor. The following jury charge instruction was submitted on the lesser included offense of Class B misdemeanor theft:

[I]f you believe from the evidence beyond a reasonable doubt that the defendant is guilty of theft but you further believe beyond a reasonable doubt that the value of the property is $50 or more but less than $500, you must give the benefit of such doubt to the defendant and find that the value of the property is $50 or more but less than $500, and you will so state in your verdict....

The only physical evidence introduced at trial was Capetillo’s wallet, valued at $56.00. Capetillo’s cash, cell phone, and purse were never recovered. Despite appellant not having been charged with theft of the wallet, appellant on appeal argues the value of the wallet should be included in the total value of the property stolen. Appellant cites Warren v. State, 810 S.W.2d 202, 203-04 (Tex.Crim.App.1991) as authority for the proposition that when prosecuting theft of items in the conjunctive, the State must prove the appropriation and value of each item. Appellant is correct; however, here, appellant was not charged with theft of the wallet. Thus, the value of the wallet may not be included in determining the value of the property stolen. See Lehman v. State, 792 S.W.2d 82, 84 (Tex.Crim.App.1990) (declaring a theft conviction can never rest in whole or in part upon theft of property not alleged in the indictment as stolen).

As to the value of the three items alleged in the complaint to have been stolen, the purse, cash, and cell phone, there is conflicting testimony in the record as to the amount of cash in Capetillo’s purse at the time it was stolen. The evidence showed that somewhere between approximately $200.00 and $1,000.00 in cash was in Capetillo’s wallet at the time it was taken. Capetillo testified $1000.00 in cash was in her purse when it was stolen. In contrast, Davis testified appellant told him the amount of cash in the purse was approximately $200.00. Gonzales also testified the amount of cash was around $200.00. As to the value of the other two items, the purse and the cell phone, Cape-tillo testified she bought the purse for $16.00, and the value of the cell phone was $280.00.

If the jury believed Capetillo’s testimony and valued the cash at $1,000.00, a rational jury could find the total value of the purse, cell phone, and the cash together was $1296.00. However, if the jury instead believed Davis’ and/or Gonzales’ testimony and valued the cash at $200.00, the cash, cell phone, and purse together total $496.00. A $1296.00 value constitutes a Class A misdemeanor, and a $496.00 value constitutes a Class B misdemeanor. See Thomason v. State, 892 S.W.2d 8, 10-11 (Tex.Crim.App.1994). Thus, because there is some evidence in the record which, if believed, would show that appellant is guilty only of the lesser included offense of Class B misdemeanor theft, we conclude the trial court did not err in including the instruction on the lesser included offense in the jury charge.

Accordingly, we overrule appellant’s first issue.

II. Admission of Oral Statements

In issues two, three, and four, appellant argues the admission of her oral and recorded statements, both taken by Davis, violated her right to remain silent as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 10 of the Texas State Constitution. U.S. Const, amends. V, IV; Tex. Const, art. 1, § 10. Appellant argues she should have been read her Miranda rights because Davis’ questioning of her was custodial. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

At a suppression hearing, the trial judge is the sole finder of facts. Arnold v. State, 873 S.W.2d 27, 34 (Tex.Crim.App.1993); Hill v. State, 902 S.W.2d 57, 59 (Tex.App.-Houston [1st Dist.] 1995, pet. ref d). The trial judge is free to believe or disbelieve any or all of the evidence presented. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). On appeal, mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor are reviewed de novo. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). Here, both sides agree on the basic facts surrounding the custody question.

During the motion to suppress hearing, Davis testified he contacted appellant at her place of work on September 15, 2003 and asked to see her. At the time, appellant was a municipal court judge, and the bailiff invited Davis into appellant’s chambers. Davis told appellant she was a suspect in a theft and he wanted to get her side of the story. Appellant then told Davis that on June 26, 2003 she had a verbal disagreement with Capetillo inside Palmer’s Ice House and later got into a physical altercation with Capetillo outside in the parking lot of the bar. Appellant told him a purse had ended up in her car, and, after examining its contents, she knew the purse belonged to Capetillo. She further stated there was a couple hundred dollars and loose change inside the purse which she spent. At the end of their conversation, Davis told appellant to call him if she found the purse. He left her place of work without arresting appellant.

Two days later, Davis called and spoke to appellant over the telephone; appellant had left him a voice mail message the day before. Davis taped their phone conversation, unbeknownst to appellant. The substance of the telephone conversation was essentially what they had discussed in her chambers two days earlier. Appellant was arrested later that day.

For Miranda rights to be necessary, a police interrogation must be custodial. 384 U.S. at 444, 86 S.Ct. 1602. In order for an interrogation to be custodial, the questions must be asked after the suspect has been taken into custody or otherwise deprived of freedom of action in a significant way. Id.

First, appellant argues her freedom of movement was denied because she was not told she was free to leave. Second, appellant argues that after she admitted knowing who owned the wallet and spending the money, there was probable cause to arrest her, and her Miranda rights should have been read to her at that time. See Dowthitt v. State, 931 S.W.2d 244, 255 (Tex.Crim.App.1996) (stating Texas courts recognize four general situations which may constitute custody: (1) when the suspect is physically deprived of his freedom of action in any significant way; (2) when a law enforcement officer tells the suspect he cannot leave; (3) when law enforcement officials create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect he is free to leave).

With regard to appellant’s contention that she was denied freedom of movement, we conclude appellant’s freedom of movement in both situations, at her office and on the telephone, was not impaired in any way. The record shows Davis’ first questioning took place inside appellant’s own office. Davis told her he was there to get her side of the story. She told him what happened, and Davis left her office without arresting her. Davis’ second questioning took place over the telephone two days later, and appellant again discussed with Davis what had happened. Davis asked appellant if he could come by later and pick up the wallet, and she said okay. This evidence does not show appellant was deprived of freedom of action in a significant way.

We next address appellant’s contention that she was in custody because there was probable cause to arrest her and Davis did not tell her she was free to leave. For the purpose of Miranda warnings, the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views held by either the investigator or the person being questioned. Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). While an investigator’s beliefs may bear upon the custody issue if the beliefs are conveyed, those beliefs are only relevant as to how a reasonable person in the position of the individual being questioned would gauge her “freedom of action.” Id. at 325, 114 S.Ct. 1526. For custody to arise in the scenario where there is probable cause to arrest and law enforcement officers do not tell the suspect she is free to leave, not only must there be probable cause to arrest, but the police must manifest the information to the suspect, so that a reasonable person would believe he or she is under restraint to the degree associated with an arrest. State v. Rodriguez, 986 S.W.2d 326, 330 (Tex.App. — El Paso 1999, pet. ref d). Thus, probable cause is a factor to consider under this scenario, but it does not automatically establish custody. Id.; see also Dowthitt, 931 S.W.2d at 255. The determination of custody is to be made on an ad hoc basis, after considering all of the objective circumstances. Dowthitt, 931 S.W.2d at 255.

Here, Davis approached appellant, an associate municipal court judge at the time, at her place of employment, and they discussed the facts of the case in her chambers. He told her she was a suspect and he wanted to get her side of the story. Appellant told him her side of the story; she admitted knowing the purse was Cape-tillo’s and spending the money inside the purse. At the close of the discussion in appellant’s chambers, appellant told Davis she would get in touch with him about the purse’s whereabouts. Two days later, Davis and appellant spoke over the telephone when Davis returned appellant’s phone call. Appellant again admitted to spending the money she had found in Ca-petillo’s purse.

There is no evidence in the record that shows appellant believed her freedom of movement was impaired to the extent of a formal arrest. Additionally, probable cause to arrest appellant never was manifested to appellant in any form sufficient to lead a reasonable person to believe that he or she is under arrest or under restraint to the degree associated with an arrest. See Rodriguez, 986 S.W.2d at 330. Considering all of the objective circumstances, we conclude appellant was not in custody when Davis questioned appellant in her chambers on September 15, 2003 or when appellant spoke to Davis on the telephone two days later on September 17, 2003. Because appellant was not in custody on either occasion, Miranda warnings were unnecessary.

Accordingly, we overrule appellant’s second, third, and fourth issues.

III. Factual Sufficiency

In her fifth and final issue, appellant argues the evidence is factually insufficient to sustain the jury verdict finding her guilty of theft. Appellant asserts the disputed issue at trial was whether appellant knowingly took Capetillo’s purse intending to deprive her of the purse and its contents. Appellant contends the evidence shows the purse was among other property handed to appellant just prior to her getting in her car and leaving, and this evidence supported appellant’s defense that she did not knowingly take Capetillo’s purse and did not unlawfully appropriate the property.

When an appeals court conducts a factual sufficiency review, the court views all evidence “without the prism of ‘in the light most favorable to the prosecution.’ ” Zuniga v. State, 144 S.W.3d 477, 482 (Tex.Crim.App.2004) (quoting Stone v. State, 823 S.W.2d 375 (Tex.App.-Austin 1992, pet. ref'd, untimely filed)). There is only one question to be answered: “Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt?” Id. at 484. There are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, where there is evidence both supporting and contrary to the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85.

The jury found appellant guilty of Class B misdemeanor theft. A person commits Class B misdemeanor theft if she unlawfully appropriates property valued at $50 or more, but less than $500, with intent to deprive the owner of the property. Tex. Pen.Code Ann. § 31.03(a), (e)(2)(A)(i); see Thomason v. State, 892 S.W.2d 8, 10-11(Tex.Crim.App.l994).

It is undisputed appellant drove away with Capetillo’s purse and its contents in her car. However, some witnesses testified appellant took the purse and put it in her car, and other witnesses testified appellant was handed the purse and put it in her car. The following witnesses testified appellant took the purse: (1) Capetillo testified she saw appellant put her purse in her car; (2) Ortaga testified appellant fought with her over the purse, grabbed the purse from her, and tossed it into the back seat of her car; (3) Flores testified she saw appellant place the purse in her car; (4) Martin Rojas saw appellant take the purse from Ortaga, get in her car, and drive away; (5) Gutierrez saw Ortaga and appellant pulling on the purse, like a tug-of-war; and (6) Davis testified appellant admitted she knew the purse belonged to Capetillo, and she felt justified in spending the money. In contrast, three witnesses testified appellant was handed the purse or was unaware the purse was in her car. Vega testified appellant threw a wallet, a purse, and a pool cue stick in the trunk of her car, and she remembered her brother Omar and Butanda handing appellant these items. Butanda testified she picked up the wallet in the parking lot and handed it to appellant, thinking it belonged to appellant. Gonzales testified appellant did not know who the wallet belonged to when it was discovered in appellant’s car until after they examined its contents.

The jury is the finder of fact, and it is not the appellate court’s role to “find” facts or substitute its judgment for that of the jury. Zuniga, 144 S.W.3d at 482. What weight to give conflicting testimony is within the sole province of the jury, because it turns on an evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App.1997). “A decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State.” Id. at 410. The jury was free to believe or disbelieve the witnesses as they chose. Id.

After considering the evidence in a neutral light, we conclude the evidence supporting the verdict is not too weak to support the finding of guilt beyond a reasonable doubt, and the evidence contrary to the verdict is not so strong that the beyond a reasonable doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. Accordingly, we hold the evidence is factually sufficient to support appellant’s conviction for Class B misdemeanor theft.

We overrule appellant’s fifth issue.

CONCLUSION

The judgment of the trial court is affirmed.

      . Vega testified no officers escorted her and appellant out of the bar that evening. However, Officer Noe Hernandez, who worked security at the bar that evening, testified he walked appellant out to the parking lot. According to Hernandez, appellant had told him she was having problems with a female inside the bar, and appellant asked him to escort her out to the parking lot at the end of his shift. Hernandez testified he and another officer escorted appellant out of the bar to her car that night. However, Hernandez did not witness the altercation in the parking lot that evening.

      . Nothing other than the wallet was ever recovered. The wallet was admitted as an exhibit during trial.

      . The jury found appellant not guilty of assault.

      . The State asserts on appeal the Rousseau two-prong test is applicable only to defense requested lesser included offense instructions and is not applicable to State requested lesser included offense instructions. The Texas Court of Criminal Appeals has held both prongs of the Rousseau test are applicable to the State’s request for a lesser included offense instruction, and we are bound by this precedent. Arevalo v. State, 943 S.W.2d 887, 890 (Tex.Crim.App.1997).

      . The complaint and information allege appellant "on or about June 26, 2003, did then and there unlawfully appropriate, by acquiring and otherwise exercising control over property, namely, CASH MONEY, A PURSE, AND A CELL PHONE, owned by YD ALIA CAPETILLO, hereafter styled the Complainant, of the value of over five hundred dollars and under one thousand five hundred dollars, with the intent to deprive the Complainant of the property.” The probable cause section of the complaint valued the items taken at $1000.00 in cash, a $280.00 cell phone, and a $20.00 purse. Class A misdemeanor theft involves property valued at five hundred dollars or more. Tex. Pen.Code Ann. § 31.03(e)(3). The State established a higher burden for itself by charging appellant with theft of over five hundred dollars. Warren v. State, 810 S.W.2d 202, 204 (Tex.Crim.App.1991) (en banc).

      . In Stansbury, the United States Supreme Court discussed the effect an officer’s statement to an individual that she was a suspect has on the custody issue:
      An officer’s knowledge or beliefs may bear upon the custody issue if they are conveyed, by word or deed, to the individual being questioned. Those beliefs are relevant only to the extent they would affect how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her "freedom of action.” Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest. The weight and pertinence of any communications regarding the officer's degree of suspicion will depend upon the facts and circumstances of the particular case. In sum, an officer’s views concerning the nature of an interrogation, or beliefs concerning the potential culpability of the individual being questioned, may be one among many factors that bear upon the assessment whether that individual was in custody, but only if the officer's views or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave.
      511 U.S. at 325, 114 S.Ct. 1526 (citations omitted).