author: JIM R. WRIGHT, Justice.

text:
    Janice Amanda HAYHOE, Appellant, v. Rick HENEGAR, Appellee.
    No. 11-03-00316-CV.
    Court of Appeals of Texas, Eastland.
    June 23, 2005.

      Angela Morrow Nickey, Robles, Bracken, Coffman & Hughes, L.L.P., El Paso, Pat Long Weaver, Stubbeman, McRae, Sealy, Laughlin & Browder, Midland, for appellant.
    Robert E. White, Childs Bishop & White, PlazaOdessa, for appellee.
    Panel consists of ARNOT, C.J., and WRIGHT, J., and McCALL, J.
   Opinion

JIM R. WRIGHT, Justice.

In a lawsuit arising out of an automobile accident, the jury found Janice Amanda Hayhoe liable for negligence. We modify and affirm.

On May 31, 1999, Rick Henegar was driving a truck in Sweetwater. While he was stopped at a red light, he was struck from behind by appellant. Immediately after the accident, EMS transported Hene-gar to the hospital emergency room, where he complained of back pain. On June 2, 1999, Henegar sought medical treatment with a chiropractor, Dr. Bobby Mai Hollander. Dr. Hollander diagnosed Henegar with a herniated disc in his back. Surgery was eventually required. Henegar subsequently sued appellant for negligence, alleging that the collision was the proximate cause of his back injury. After a jury trial, Henegar was awarded $86,491.91 in damages, including the costs associated with the surgery.

Appellant argues four issues on appeal. In her first issue, appellant asserts that the trial court abused its discretion in admitting the report and testimony of Dr. Hollander, the chiropractor who initially treated Henegar for his back pain. In her second issue, appellant asserts that the evidence was legally and factually insufficient to support the jury’s award of damages for past medical expenses. In her third issue, appellant asserts that the jury charge impermissibly included damage elements that were not supported by competent evidence of causation. In her fourth issue, appellant argues that the trial court erred in not calculating prejudgment and postjudgment interest at a rate of 5 percent.

In her first issue on appeal, appellant asserts that Dr. Hollander was not qualified to give an expert opinion on what caused Henegar’s need for surgery; therefore, the trial court abused its discretion in admitting his report and testimony. We disagree.

The decision as to whether an expert witness is qualified to testify is a matter committed to the trial court’s discretion. United Blood Services v. Longona, 938 S.W.2d 29, 30 (Tex.1997). The trial court abuses its discretion if it “acted without reference to any guiding rules or principles.” E.I. du Pont de Nemours and Company, Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995). The offering party bears the burden of establishing that the witness is qualified as an expert. Broders v. Heise, 924 S.W.2d 148, 151 (Tex.1996).

We conclude that Dr. Hollander was qualified to testify about what caused the need for Henegar’s back surgery. Although he was not a surgeon, Dr. Hollander testified that he had been a chiropractor for 20 years. He graduated in 1983 with a Doctorate in Chiropractic Medicine from the Texas Chiropractic College in Pasadena. There, he studied anatomy, physiology, and pathology. He also served as a professor at the Texas Chiropractic College. Dr. Hollander further testified that he was familiar with the anatomy and conditions of the spine.

In diagnosing Henegar with a herniated disc, Dr. Hollander performed a series of physical, orthopedic, and range-of-motion tests. In forming his opinion that the automobile collision caused the herniated disc, Dr. Hollander relied not only on his 20 years of chiropractic experience, but also on postgraduate work in physics and dynamics, in addition to the patient information and history provided by Henegar during their initial consultation. In Dr. Hollander’s practice, he has treated other patients with herniated discs, and he testified that a herniated disc is often referred to a surgeon for actual surgery.

Because of Dr. Hollander’s extensive experience with chiropractic medicine in general and herniated discs in particular, we do not believe that the trial court abused its discretion in finding that Dr. Hollander was qualified to testify that the car collision caused Henegar’s back injury and that the back injury required surgery. We overrule appellant’s first issue on appeal.

In her second issue on appeal, appellant asserts that the evidence was legally and factually insufficient to support the jury’s award of damages for past medical expenses. However, appellant disputes the sufficiency of evidence for only one element of Henegar’s total damages, the cost of surgery and the hospital charges related to the surgery. Appellant’s argument for both her legal and factual sufficiency points is that there was no competent causation evidence to establish that the surgery was a result of the car accident. We disagree.

To address a “legal sufficiency” or “no evidence” challenge, the appellate court must consider only the evidence and inferences that tend to support the finding, disregarding any evidence or inferences to the contrary. Southwest Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 274 (Tex.2002); Cannon v. Sun-Key Oil Co., Inc., 117 S.W.3d 416, 419 (Tex.App.-Eastland 2003, pet’n den’d). An appellate court will sustain a no-evidence issue when: (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the only evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Cannon v. Sun-Key Oil Co., Inc., supra. In order to determine if the evidence is factually sufficient, we must review all of the evidence and determine whether the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001); Davis Apparel v. Gale-Sobel, A Division of Angelica Corporation, 117 S.W.3d 15, 18 (Tex.App.-Eastland 2003, no pet’n).

Henegar submitted into evidence a report by Dr. Hollander explaining Hene-gar’s history, back injury, and subsequent treatment. In the report, Dr. Hollander concludes that “the surgical intervention entered into by Dr. Ramsey was the sole result of [the] motor vehicle accident that [Henegar] had been involved with.” Dr. Hollander also testified during trial that, based on his education, training, and experience diagnosing herniated discs, the condition operated on was a result of the accident on May 31, 1999. Because of Dr. Hollander’s 20 years of chiropractic experience, his opinion is legally sufficient, competent evidence of causation.

Dr. Hollander’s report and testimony also constitute factually sufficient evidence of causation. In reviewing all of the evidence, we find that Dr. Hollander’s report and testimony are not so against the great weight and preponderance of the evidence as to be manifestly unjust. Appellant did not present any evidence refuting Dr. Hollander’s report or testimony. Appellant did present some evidence suggesting that Henegar suffered from back problems prior to the accident, but she presented no evidence tending to prove that these prior back problems were the actual cause of Henegar’s surgery. This is not enough for us to conclude that the jury reached a manifestly unjust decision. We overrule appellant’s second issue on appeal.

In her third issue on appeal, appellant asserts that the trial court improperly submitted a jury question that mixed damages for past chiropractic care with damages for the surgery. Appellant contends that there was some competent evidence of causation for past chiropractic care, but no competent evidence of causation for the surgery. As with her second issue on appeal, appellant’s argument relies on the assumption that Dr. Hollander’s testimony was not competent evidence of causation. Because we have already held that Dr. Hollander was qualified to testify about causation, we overrule appellant’s third issue on appeal.

In appellant’s fourth issue on appeal, she argues that the judgment should be reformed to reflect a 5 percent prejudgment and postjudgment interest rate. We agree. A judgment in a personal injury case earns both prejudgment and post-judgment interest. See TEX. FIN. CODE ANN. §§ 304.005 & 304.102 (Vernon Supp. 2004-2005). Both the prejudgment and postjudgment interest rates are controlled by statute. See TEX. FIN. CODE ANN. §§ 304.003 & 304.102 (Vernon Supp.2004 - 2005). Because statutory construction is a question of law, we review the trial court’s decision de novo. Texas Department of Transportation v. Needham, 82 S.W.3d 314, 318 (Tex.2002).

The prejudgment interest rate is equal to the postjudgment interest rate applicable at the time of judgment. TEX. FIN. CODE ANN. § 304.103 (Vernon Supp. 2004-2005). During the regular 2003 legislative session, the legislature passed House Bills 4 and 2415, both of which contained nearly identical amendments to the Finance Code. The amendments reduced the postjudgment interest rate from 10 percent to 5 percent. Both bills provided that the new interest rate would apply to cases in which a final judgment was “signed or subject to appeal on or after the effective date of this Act.” (Tex. H.B.4, 78th Leg., R.S. (2003) and Tex. H.B. 2415, R.S. (2003)).

House Bill 4 took effect on September 1, 2003. See Pringle v. Moon, 158 S.W.3d 607, 610 n. 2 (Tex.App.-Fort Worth 2005, no pet’n). House Bill 2415, however, took effect on June 20, 2003. See Pringle v. Moon, supra at 610 n. 2. The trial court’s judgment in favor of Henegar was signed on July 24, 2003. We conclude that this is also the date the judgment was subject to appeal. See Columbia Medical Center of Las Colinas v. Bush, 122 S.W.3d 835, 865 (Tex.App.-Fort Worth 2003, pet’n den’d). As appellant notes in her brief, House Bill 2415 took effect prior to the judgment. We sustain appellant’s fourth issue on appeal and modify the judgment to reflect a prejudgment and postjudgment interest rate of 5 percent.

As modified, the judgment of the trial court is affirmed.

      . Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 6.04, 2003 Tex. Gen. Laws 847, 862; see also Act of June 1, 2003, 78th Leg., R.S., ch. 676, § 2(a), 2003 Tex. Gen. Laws 2096, 2097 (both codified at TEX. FIN. CODE ANN. § 304.003(c) (Vernon Supp.2004-2005)).

      . We note that, if appellant had relied exclusively on House Bill 4 in her brief as she did at the trial court, we would have overruled appellant on this issue because the judgment was signed and subject to appeal prior to September 1, 2003, the effective date of House Bill 4.


source: Caselaw Access Project

author: SARAH B. DUNCAN, Justice.

license: Public Domain

text:
    The STATE of Texas, Appellant, v. Rachel GUEVARA, Appellee.
    No. 04-02-00568-CR.
    Court of Appeals of Texas, San Antonio.
    July 6, 2005.

      Susan Guinn, City Atty’s Office, Chief Prosecutor, Pamela C. Oglesby, Senior Prosecutor for City of San Antonio, Christopher J. Hebner, Prosecutor for City of San Antonio, San Antonio, Matthew W. Paul, Austin, for appellant.
    Philip Benson, Shaw & Benson, San Antonio, for appellee.
    Sitting: SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice.
   MEMORANDUM OPINION

Opinion by

SARAH B. DUNCAN, Justice.

The State of Texas appeals a county court at law judgment that reverses the San Antonio Municipal Court’s judgment convicting Rachel Guevara of violating a San Antonio city ordinance and renders judgment in Guevara’s favor. Because we conclude the county court at law lacked jurisdiction over Guevara’s appeal, we reverse its judgment and reinstate the judgment of the trial court.

The conduct forming the basis of the State’s complaint against Guevara occurred on July 17, 1998. On that date, an appeal from a San Antonio Municipal Court judgment was governed by former sections 30.00231 through 30.00242 of the Texas Government Code. Although these provisions were repealed effective September 1, 1999, the repealing legislation expressly provides that “[an] offense committed before the effective date of this Act is governed by the law in effect at the time the offense was committed.” Act of May 27, 1999, 76th Leg., R.S., ch. 691, § 140(a), (d), 1999 Tex. Gen. Laws 3263, 3291-92. In short, because the offense in this case was committed before the effective date of the repealing legislation, Guevara’s appeal is governed by Government Code sections 30.00231 through 30.00242.

Under former sections 30.00231 and 30.00232, a defendant desiring to perfect an appeal from a judgment of the San Antonio Municipal Court was required to: (1) file a motion for new trial not later than the tenth day after the date the judgment was rendered; (2) give a timely notice of appeal; and (3) if the defendant was not in custody, file an appeal bond, approved by the court, not later than the tenth day after the date on which the motion for new trial was overruled. Act of May 17, 1985, 69th Leg., R.S., ch. 480, § 1, 1985 Tex. Gen. Laws 1720, 1843-1844, renumbered by Act May 8, 1997, 75th Leg., R.S., ch. 165, § 8.08, 1997 Tex. Gen. Laws 327, 389-90 (formerly Tex. Gov’t Code Ann. §§ 30.00231, 30.00232) (repealed 1999). “If the defendant request[ed] a hearing on the motion for new trial,” she could “give the notice of appeal orally in open court on the overruling of the motion for new trial.” Id. (formerly Tex. Gov’t Code Ann. § 30.00231(d)). “Otherwise, the defendant must give a written notice of appeal and must file the notice with the court not later than the 10th day after the date on which the motion for new trial [was] overruled.” Id. This deadline for filing a written notice of appeal could be extended by the court for good cause for not more than ninety days. Id

Since the municipal court rendered its judgment in this case on June 15, 1999, Guevara’s motion for new trial, filed on June 23, 1999, was timely. The record does not reflect either that Guevara requested a hearing on her motion for new trial or that one was held; however, the record does reflect — and the parties state in their briefs — Guevara’s motion for new trial was denied on June 25, 1999. Accordingly, Guevara’s written notice of appeal and appeal bond were due not later than Monday, July 12, 1999. Neither was filed until July 23, 1999; and the record does not reflect that the July 12, 1999 deadline was extended.

Timely perfection of an appeal by filing a notice of appeal and appeal bond are required to invoke the county court at law’s jurisdiction. See Ford v. State, 20 S.W.3d 777, 779 (Tex.App.-Amarillo 2000, no pet.); State v. Morse, 903 S.W.2d 100, 104-05 (Tex.App.-El Paso 1995, no pet.). Because Guevara’s notice of appeal and bond were not timely filed, the county court at law did not acquire jurisdiction over Guevara’s appeal. Therefore, we vacate the judgment of the County Court at Law No. 3 and reinstate the municipal court’s judgment.

      .The State has not raised the issue of the county court at law’s jurisdiction over Guevara's appeal. However, jurisdiction is a systemic requirement that cannot be waived or conferred by consent, and which may be considered at any time. Mendez v. State, 138 S.W.3d 334, 340 (Tex.Crim.App.2004) (citing Marin v. State, 851 S.W.2d 275, 279-80 (Tex.Crim.App.1993)); see also Texas Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445-46 (Tex.1993) (holding it is appropriate for reviewing court to raise the issue of the lower court’s subject matter jurisdiction sua sponte and address it for the first time on appeal).

      . Act of May 17, 1985, 69th Leg., R.S., ch. 480, § 1, 1985 Tex. Gen. Laws 1720, 1843-1846, renumbered by Act of May 8, 1997, 75th Leg., R.S., ch. 165, § 8.08, 1997 Tex. Gen. Laws 327, 389-90, repealed by Act of May 27, 1999, 76th Leg., R.S., ch. 691, § 139(5), 1999 Tex. Gen. Laws 3263, 3290. The governing provisions are now codified as sections 30.00014 through 30.00027 of the Texas Government Code.

      . Act of May 27, 1999, 76th Leg., R.S., ch. 691, § 139(5), 1999 Tex. Gen. Laws 3263, 3290.

      . Although the statutes specifically governing appeals from the San Antonio Municipal Court have been repealed, the deadlines in the current statutes governing appeals from all municipal courts of record are the same. See Tex. Gov’t Code Ann. §§ 30.00014, 30.00015 (Vernon 2004).

      . The trial court wrote "6/25/99 motion denied” at the bottom of the motion for new trial and initialed the notation.


author: TERRY McCALL, Justice.

text:
    Carlton PROCTOR, Appellant, v. Glenda Sue WHITE, Independent Executrix of the Estate of Clyde C. White, deceased; and C. Carlton White, Inc., Appellees.
    No. 11-04-00098-CV.
    Court of Appeals of Texas, Eastland.
    July 7, 2005.

      David Greenhaw, Randal Patterson, Hollmann, Lyon, Patterson & Durell, Inc., Odessa, for appellant.
    David W. Lindemood, Tom Bruner, Stubbeman, McRae, Sealy, Laughlin & Browder, Inc., Leslie G. McLaughlin, Midland, for appellees.
    Panel consists of ARNOT, C.J., and WRIGHT, J., and McCALL, J.
   OPINION

TERRY McCALL, Justice.

Carlton Proctor’s grandmother, Inge-borg White, created a testamentary trust in her will. Appellant was one of the beneficiaries of the trust. Ingeborg White died in 1984, and appellant’s grandfather, Clyde C. White, was appointed as the independent executor of the estate. Ingeborg White’s will named Clyde C. White as the trustee of the trust. Appellant and his sister, Brandye Proctor Norman, filed suit against appellees, Glenda Sue White, Individually and as Independent Executrix of the Estate of Clyde C. White, Deceased, and C. Carlton White, Inc. They alleged that Clyde C. White breached his fiduciary duties to them and violated the provisions of the Texas Trust Code, TEX. PROP. CODE ANN. § 113.052 (Vernon 1995), while serving as the trustee of the trust. Appellees filed a motion for summary judgment. The trial court granted summary judgment in favor of appellees on appellant’s claims. In a single point of error, appellant argues that the trial court erred in granting summary judgment. We reverse the judgment of the trial court and remand this cause to the trial court for further proceedings.

Background Facts

Ingeborg White’s will provided that the beneficiaries would receive their distributions from the trust when they became 28 years old. Appellant reached the age of 28 on October 14, 1995. On July 8, 2002, appellant and Brandye Proctor Norman filed their petition in the probate proceeding involving Clyde C. White’s estate. They claimed, among other things, that Clyde C. White had purchased real property with funds belonging to the trust. They sought to impose a constructive trust on the subject real property. Appellant and Brandye Proctor Norman also alleged that Clyde C. White violated the Texas Trust Code by loaning trust funds to himself. Appellant claimed that he did not receive the money due him under the trust when he turned 28 years of age.

The probate court (county court at law) found that the district court had exclusive jurisdiction of the constructive trust cause of action and the Texas Trust Code cause of action. The probate court severed these two claims from the probate proceedings and transferred them to the district court. These two claims are the subject of this cause. Appellees moved for summary judgment on the merits of the claims and on their affirmative defense of limitations. The trial court granted summary judgment to appellees on appellant’s claims. The trial court also severed Bran-dye Proctor Norman’s claims from this cause. Therefore, the summary judgment on appellant’s claims became final and ap-pealable.

Standard of Review

This appeal involves the review of a traditional motion for summary judgment. We will apply the well-recognized standard of review for traditional summary judgments. We must consider the summary judgment evidence in the light most favorable to the non-movant, indulging all reasonable inferences in favor of the non-movant, and determine whether the mov-ant proved that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546 (Tex.1985); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). A defendant is entitled to summary judgment if it either disproves an element of each of the plaintiffs causes of action or establishes an affirmative defense on each of the plaintiffs causes of action as a matter of law. American Tobacco Company, Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997).

Appellees moved for summary judgment (1) on the merits of appellant’s claims and (2) on their statute of limitations defense. The trial court’s order granting summary judgment does not specify the ground or grounds upon which it was based. When a trial court’s order does not specify the ground or grounds relied upon for its ruling, the summary judgment will be affirmed on appeal if any of the summary judgment grounds advanced by the movant are meritorious. Dow Chemical Company v. Francis, 46 S.W.3d 237, 242 (Tex.2001); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

Merits of Appellant’s Claims

Appellant alleged that Clyde C. White breached his fiduciary duties and violated Section 113.052 of the Texas Trust Code by loaning trust funds to himself to the detriment of the trust beneficiaries. The summary judgment evidence showed that Clyde C. White, as trustee, loaned trust funds to himself. Appellant argues that the summary judgment evidence established (1) that Clyde C. White engaged in self-dealing and (2) that Clyde C. White borrowed funds from the trust to the detriment of the trust beneficiaries. Appellees apparently agree that appellant raised fact issues on the merits of appellant’s claims; appellees did not respond to appellant’s argument in their brief. We find that the summary judgment evidence raised fact issues on the merits of appellant’s claims.

Statute of Limitations

Appellees argue that appellant did not file suit until about five and one-half years after his twenty-eighth birthday and, therefore, that the four-year statute of limitations bars his claims. Appellant relies on the discovery rule in arguing that the statute of limitations does not bar his claims. Appellees contend that appellant cannot rely on the discovery rule because he failed to plead the rule in the trial court. Appellant raised the discovery rule in his response to appellees’ motion for summary judgment.

A party seeking to avail itself of the discovery rule must plead the rule in response to a defendant’s claim that the statute of limitations bars the party’s claims. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex.1988). A matter in avoidance of the statute of limitations that is not raised affirmatively by the pleadings will, therefore, be deemed waived. Woods v. William M. Mercer, Inc., supra. However, in the summary judgment context, if a party relies on an unpleaded affirmative defense to support a motion for summary judgment, the non-movant must object in its response to that ground for summary judgment in order to avoid trying that issue by consent. If the non-movant does not object, the trial court may properly grant summary judgment on a conclusively-established, yet unpleaded affirmative defense. Roark v. Stallworth Oil and Gas, Inc., 813 S.W.2d 492, 494-95 (Tex.1991); Cianci v. M. Till, Inc., 34 S.W.3d 327, 329-30 (Tex.App.-Eastland 2000, no pet’n). Based on the same reasoning, when a non-movant relies on an unpleaded affirmative defense or an un-pleaded matter constituting a confession and avoidance to defeat a motion for summary judgment, the movant must object in order to avoid trying the issue by consent.

Appellant relied on the discovery rule in his response to the motion for summary judgment. Appellees did not object to appellant’s reliance on the discovery rule. Therefore, appellees tried the discovery rule issue by consent. Roark v. Stallworth Oil and Gas, Inc., supra at 494-95; Cianci v. M. Till, Inc., supra at 329-30.

In the summary judgment context, the defendant has the burden to negate the discovery rule by proving as a matter of law that no issue of material fact exists concerning when the plaintiff knew or should have known of the facts giving rise to the claims. Woods v. William M. Mercer, Inc., supra at 518; Weaver v. Witt, 561 S.W.2d 792, 794 (Tex.1977); Janis v. Melvin Simon Associates, Inc., 2 S.W.3d 647, 650 (Tex.App.-Corpus Christi 1999, pet’n den’d). Appellees did not address the discovery rule after appellant raised it in response to their motion for summary judgment. Appellees did not attempt to establish when appellant knew or should have known of the facts giving rise to his claims. Thus, appellees did not prove as a matter of law that no genuine issue of material fact exists concerning when appellant knew or should have known of the facts giving rise to his claims. Appellant’s point of error is sustained.

This Court’s Ruling

The judgment of the trial court is reversed, and this cause is remanded for further proceedings.


author: SANDEE BRYAN MARION, Justice.

text:
    TIG INSURANCE COMPANY, Appellant, v. SAN ANTONIO YMCA, d/b/a YMCA of San Antonio, Appellee.
    No. 04-04-00017-CV.
    Court of Appeals of Texas, San Antonio.
    July 13, 2005.

      Elizabeth G. Smith, Davis & Opper, P.C., W. Wendell Hall, Fulbright & Jawor-ski L.L.P., San Antonio, Amy L. Miner, Edward F. Rubbery, Robert W. Brunner, Bollinger, Rubbery & Garvey, Chicago, IL, for TIG Insurance Company.
    Thomas G. Kemmy, Law Office of Thomas G. Kemmy, Brian L. Blakeley, Blakeley & Reynolds, P.C., Pat Maloney, Jr., Law Office of Pat Maloney, P.C., San Antonio, for appellee.
    Sitting: CATHERINE STONE, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

SANDEE BRYAN MARION, Justice.

This is an appeal from the denial of a motion for summary judgment filed by appellant, TIG Insurance Company, and the granting of a motion for summary judgment filed by appellee, San Antonio YMCA d/b/a YMCA of San Antonio. The below suit is a declaratory judgment action filed by TIG and involves the construction of an insurance contract issued by TIG to the YMCA.

BACKGROUND

The YMCA operates a youth camp in Hunt, Texas known as YMCA Camp Flaming Arrow. In the summer of 1999, Kenneth Trimble, a YMCA counselor, allegedly sexually and physically assaulted six children attending the camp. The parents or guardians of the children sued the YMCA for negligent hiring practices. Three of the lawsuits were collectively settled for $6 million, with TIG contributing $1 million towards the settlement.

To resolve the issue of whether the YMCA had coverage under the TIG insurance policy for the remaining three lawsuits, TIG filed a petition for declaratory judgment, asserting the $1 million payment towards the settled lawsuits exhausted the policy limits and it had no duty to defend the YMCA in the remaining lawsuits. TIG subsequently moved for summary judgment on the grounds that the policy’s coverage for acts of sexual abuse was limited to a single occurrence, the incidents of sexual abuse alleged by all six children and the negligent hiring allegations against the YMCA were a single occurrence under the policy, the policy limits of $1 million for each occurrence were exhausted by the settlement payment, and, as a result, TIG had no duty to defend the YMCA in the remaining lawsuits.

The YMCA filed a cross-motion for summary judgment on the grounds that a separate new “occurrence” was triggered for each victim of Trimble’s alleged abuse; therefore, the policy limits have not been exhausted. The YMCA also argued TIG had a duty to defend against allegations of physical abuse that did not involve sexual abuse.

The trial court denied TIG’s motion, granted the YMCA’s motion, and declared TIG had a continuing duty to defend the YMCA in the remaining lawsuits and the YMCA was entitled to indemnity in each of the lawsuits, “subject only to the exhaustion of the policy’s aggregate limit.” This appeal by TIG ensued.

STANDARD OF REVIEW

Summary judgment movants have the burden of showing there are no genuine issues of material fact, and that they are entitled to summary judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). In deciding whether there is a disputed issue of material fact, evidence favorable to the nonmovant must be taken as true, every reasonable inference must be indulged in favor of the nonmovant, and all doubts must be resolved in his or her favor. Id. at 548^19.

When both parties file motions for summary judgment, each must carry its burden and neither may prevail because of the failure of the other to discharge its burden. Villarreal v. Laredo Nat’l Bank, 677 S.W.2d 600, 605 (Tex.App.-San Antonio 1984, writ refd n.r.e.). Where there are competing motions for summary judgment, and one is granted and the other denied, the appellate court determines all questions presented to the trial court. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988). The reviewing court may affirm the judgment or reverse the judgment and render the judgment the trial court should have rendered, including rendering judgment for the other movant. Id.

THE TIG POLICY

TIG issued an insurance policy to the YMCA that contains a General Liability Section, included in which is a Commercial General Liability Coverage Form (“the CGLCF”). The declaration page of the policy contains a $2 million “General Aggregate Limit” and a $1 million “Each Occurrence Limit.” The policy also contains a Sexual Abuse Occurrence Coverage endorsement form. At the top of this form, above the title, is the statement: “THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.” Below the title is the statement: “This endorsement modifies coverage provided under the following COMMERCIAL GENERAL LIABILITY COVERAGE FORM.” The endorsement then lists various additions or amendments to the CGLCF. Below are the pertinent sections of the CGLCF, with the italicized language representing the language from the Sexual Abuse Occurrence Coverage endorsement form that modifies the CGLCF.

Section I of the CGLCF, entitled “Section 1-Coverages,” contains three grants of coverage: “Coverage A. Bodily Injury and Property Damage Liability,” “Coverage B. Personal and Advertising Injury Liability,” and “Coverage C. Medical Payments.” Coverage A states as follows:

1. Insuring Agreement
b. This insurance applies to “bodily injury” and “property damage” only if
(1) the “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “coverage territory”; and
(2) The “bodily injury” or “property damage” occurs during the policy period.
c. Damages because of “bodily injury” include damages claimed by any person or organization for care, loss of services or death resulting at any time from the “bodily injury.”
d. This insurance applies to “bodily injury” caused by a “Sexual Abuse Occurrence.”

Section III of the CGLCF, entitled “Limits of Insurance,” states as follows:

1. The Limits of Insurance shown in the Declarations and the rules below fix the amount we will pay regardless of the number of:
a. Insureds;
b. Claims made or “suits” brought; or
c. Persons or organizations making claims or bringing “suits”.
2. The General Aggregate Limit is the most we will pay for the sum of
a. Medical expenses under coverage C;
b. Damages under Coverage A, except damages because of “bodily injury” or “property damage” included in the “products-completed operations hazard”; and
c. Damages under Coverage B.
3. The Products-Completed Operations Aggregate Limit is the most we will pay....
A Subject to 2. or 3. above, whichever applies, the Each Occurrence Limit is the most we will pay for the sum of:
a. Damages under Coverage A; and
b. Medical expenses under Coverage C
because of all “bodily injury” and “property damage” arising out of any one “occurrence” or any one “Sexual Abuse Occurrence.”

Section V of the CGLCF, entitled “Section V-Definitions,” includes a variety of definitions, including the following:

8. “Bodily injury” means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.
3.a. The term “bodily injury” includes mental anguish or emotional distress if such mental anguish or emotional distress:
(i) Directly results from physical contact during a “Sexual Abuse Occurrence," or
(ii) Directly results from the claimant actually witnessing a “Sexual Abuse Occurrence” whether or not there is a physical contact between the claimant and the perpetrator(s).

9.a. A “Sexual Abuse Occurrence” is defined and conditioned as follows:

(1) A “Sexual Abuse Occurrence” means a single act, or multiple, continuous, sporadic, or related acts of sexual molestation or abuse caused by one perpetrator, or by two or more perpetrators acting together. “Sexual Abuse Occurrence ‘includes’ Negligent Employment” of any person accused of or involved in such sexual molestation or abuse. A “Sexual Abuse Occurrence” must occur while the claimant is in the care, custody or control of:
(i) An insured, or
(ii) A person or entity indemnified under an “Insured Contract” pursuant to which the Named Insured has legal responsibility for the person or entity.
(2) All acts of “Sexual Abuse Occurrence” by an actual or alleged perpetrator or perpetrators, including “Negligent Employment” of such perpetrator or perpetrators, shall be deemed and construed as one occurrence which takes place when the first act of sexual molestation or abuse occurs, regardless of the number of persons involved, or the number of incidents or locations involved, or the period of time during which the acts of sexual molestation or abuse took place.
(3) No coverage is afforded under this policy if the first act of a “Sexual Abuse Occurrence” took place outside this policy period.
9.b. “Negligent Employment” means negligence, or alleged negligence, in the employment, investigation, supervision, training or retention in employment or volunteer status, of any person for whom the Named Insured is or was ever legally responsible and whose conduct or alleged conduct is within the definition of “Sexual Abuse Occurrence.”
12. “Occurrence” means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.

Although TIG raises several issues on appeal, the central issues are (1) whether the CGLCF and the Sexual Abuse Occurrence Coverage form each provide a separate grant of coverage; (2) whether each of the six sexual abuse lawsuits constitute a single “Sexual Abuse Occurrence”; and (3) whether TIG has a duty to defend the YMCA on plaintiffs’ allegations of physical abuse.

INTERPRETATION OF AN INSURANCE CONTRACT

A contract of insurance is generally subject to the same rules of construction as other contracts. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex.1994); National Union Fire Ins. v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex.1991). The court’s primary concern is to give effect to the written expression of the parties’ intent. Forbau, 876 S.W.2d at 133.

If the court is uncertain as to which of two or more meanings was intended, a provision is ambiguous. See Butler & Binion v. Hartford Lloyd’s Ins., 957 S.W.2d 566, 569 (Tex.App.-Houston [14th Dist.] 1995, writ denied). Whether a contract is ambiguous is a question of law to be decided by looking at the contract as a whole in light of the circumstances present when the contract was executed. See National Union Fire Ins. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995). Only after a court has determined a contract is ambiguous may it consider the parties’ interpretations. Id. When language of a policy is susceptible to more than one construction and is ambiguous, the language should be strictly interpreted against the insurer and liberally in favor of the insured. Hudson Energy, 811 S.W.2d at 555. On the other hand, if the written contract is worded so that it can be given a definite or certain legal meaning, it is not ambiguous and will be enforced as written. CBI Indus., 907 S.W.2d at 520. When a contract is not ambiguous, the court will construe the contract as a matter of law. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983).

When construing the policy’s language, we must give effect to all contractual provisions so that none will be rendered meaningless. American Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.2003). Endorsements to a policy generally supersede and control over conflicting printed terms within the main policy. Mesa Operating Co. v. California Union Ins., 986 S.W.2d 749, 754 (Tex.App.Dallas 1999, pet. denied); see also INA of Texas v. Leonard, 714 S.W.2d 414, 416 (Tex.App.-San Antonio 1986, writ refd n.r.e.). Endorsements often are issued to add coverages that otherwise would be excluded. Mesa Operating Co., 986 S.W.2d at 754. Yet, an endorsement cannot be read apart from the main policy, and the added provisions will only supersede the previous policy terms to the extent they are truly in conflict. Id. When terms are defined in an insurance policy, those definitions control the interpretation of the policy. Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 823 (Tex.1997). “Reliance on defined terms in insurance policies to construe those contracts is necessary to determine the intent of the parties and integral to the application of basic principles of contract interpretation to insurance policies.” Provident Life & Accident Ins. v. Knott, 128 S.W.3d 211, 219 (Tex.2003).

COVERAGE UNDER THE POLICY

TIG argues that the Sexual Abuse Occurrence Coverage endorsement merely modifies, and does not add to, the coverage provided under the CGLCF. Based upon its interpretation of the policy, TIG asserts that a single “Sexual Abuse Occurrence” is alleged regardless of the number of persons involved; the number of children involved; the number of incidents involved; the number of locations involved; and the period of time during which the sexual abuse takes place. TIG also asserts it does not have a continuing duty to defend the YMCA in the remaining lawsuits because the policy limits have been exhausted. According to TIG, the trial court erred in determining it has a duty to indemnify the YMCA in each of the lawsuits, subject only to the policy’s aggregate limit of $2 million, because the acts of Trimble constitute one occurrence and TIG has already paid the maximum single occurrence limit of $1 million.

The YMCA argues, on the other hand, that the CGLCF, standing alone, provides coverage for the claims asserted against it by the plaintiffs in the six lawsuits. Under the YMCA’s interpretation, a claim may trigger coverage as both an “occurrence” and as a “Sexual Abuse Occurrence.” Therefore, according to the YMCA, because each claim for sexual assault triggered an “occurrence” under the CGLCF, the aggregate $2 million has not been exhausted. The YMCA’s argument is premised on its interpretation of the CGLCF and the Sexual Abuse Occurrence Coverage endorsement as each providing a separate grant of coverage. The YMCA relies on M.J.R. Corp. v. Scottsdale Insurance, 803 S.W.2d 426 (Tex.App.-Dallas 1991, no writ), in support of its argument that the CGLCF grants coverage independent from that granted in the Sexual Abuse Occurrence Coverage form.

In M.J.R., the court considered two policies (each issued by a different insurance company) that contained liability coverage applicable to third-party claims. Within the liability coverage, each policy contained two “insuring endorsements,” each of which contained coverage language. Id. at 427-28. The premises-restricted endorsement obligated Scottsdale Insurance to pay on behalf of M.J.R. “all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance, or use of the insured premises....” Id. at 430. This endorsement also contained an exclusion, which provided that the insurance did not apply to bodily injury or property damage “arising out of operations on or from premises (other than insured premises) owned by, rented to, or controlled by the named insured....” Id. The other endorsement stated it was issued in consideration of the payment of the premium and was described as a “comprehensive general liability insurance endorsement.” This endorsement obligated Scottsdale Insurance to “pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence. ...” Id. This endorsement did not contain any exclusion restricting the coverage to any particular premises. Id.

The issue before the court was whether one or both of the endorsements restricted liability coverage to a specific premises. The court concluded that one endorsement was premises-restricted, while the other was not. Id. at 430. In reaching this conclusion, the court held as follows:

.... Each coverage provision of each policy, along with its respective definitions and exclusions, must be read as separate and distinct. Although an attachment to an insurance policy upon a separate sheet of paper and the policy are to be construed together, and as one, it by no means follows that they constitute an indivisible contract. They are in fact two distinct contemporaneous contracts. Thus, the language of one of the contracts cannot be used to preclude the application of coverage under the other.

Id. at 430 (internal citations omitted).

Here, the TIG Sexual Abuse Occurrence Coverage form does not contain coverage language of its own. At the top of the form, above the title, is the statement: “THIS ENDORSEMENT CHANGES THE POLICY.” Below the title is the statement: “This endorsement modifies coverage provided under the following COMMERCIAL GENERAL LIABILITY COVERAGE FORM.” The endorsement then lists various additions or amendments to the CGLCF. Therefore, unlike the “separate and distinct” endorsements in M.J.R., the Sexual Abuse Occurrence Coverage form in TIG’s policy does not provide an additional grant of liability coverage such that a sexual abuse claim may trigger both an “occurrence” and a “Sexual Abuse Occurrence.” Instead, the policy clearly and unambiguously provides that the provisions of the Sexual Abuse Occurrence Coverage form modify the provisions of the CGLCF.

We next consider the effect of this modification on a claim for sexual abuse. More specifically, we determine whether each of the six incidents of sexual abuse constitute a single “Sexual Abuse Occurrence.” Under the policy, the insurance coverage provided by TIG applies to “bodily injury,” which is defined as (1) “bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time”; (2) “mental anguish or emotional distress if such mental anguish or emotional distress” is a direct result of physical contact during or the claimant actually witnessing a “Sexual Abuse Occurrence”; and (3) bodily injury “caused by a Sexual Abuse Occurrence.” The $1 million “Each Occurrence Limit” is the most TIG must pay for the sum of Coverage A damages and Coverage C medical expenses because of “all ‘bodily injury’ ... arising out of any one ‘occurrence’ or any one ‘Sexual Abuse Occurrence.’ ” Therefore, TIG’s “Each Occurrence Limit” liability is limited to $1 million for any one Occurrence or any one Sexual Abuse Occurrence.

Courts construing the meaning of “occurrence” in policies that did not include an endorsement for sexual abuse focus on the events that cause the injuries and result in the insured’s liability, and not on the number of injurious effects. See H.E. Butt Grocery Co. v. National Union Fire Ins., 150 F.3d 526, 530 (5th Cir.1998) (and Texas cases cited therein). The H.E. Butt court held that “the two independent acts of sexual abuse ‘caused’ the two children’s injuries and gave rise to HEB’s separate and distinct liability in each case.” Id. at 531. The court concluded that the sexual molestation of different children constituted separate occurrences. Id. at 532. Likewise, we conclude that under TIG’s policy, each instance of sexual abuse of a different child would be a different “occurrence.” However, that does not end our inquiry because, under this policy, the issue is whether each instance in which a different child was sexually molested gives rise, not to six “occurrences,” but to six Sexual Abuse Occurrences.

Under the TIG policy “[ci]ll acts of ‘Sexual Abuse Occurrence’ by an actual or alleged perpetrator or perpetrators, including ‘Negligent Employment’ of such perpetrator or perpetrators, shall be deemed and construed as one occurrence which takes place when the first act of sexual molestation or abuse occurs, regardless of the number of persons involved, or the number of incidents or locations involved, or the period of time during which the acts of sexual molestation or abuse took place.” (Emphasis added.) A

“Sexual Abuse Occurrence” means “a single act, or multiple, continuous, sporadic, or related acts of sexual molestation or abuse caused by one perpetrator, or by two or more perpetrators acting together.”

Giving effect to all the provisions within the TIG policy, we conclude the Sexual Abuse Occurrence Coverage endorsement form limits coverage otherwise available under the basic CGCLF for “bodily injury” when that injury is caused by a Sexual Abuse Occurrence. Under the policy’s unambiguous language, all of Trimble’s alleged acts of sexual abuse, “regardless of the number of persons involved, or the number of incidents or locations involved, or the period of time during which the acts of sexual molestation or abuse took place,” constitute a single Sexual Abuse Occurrence. See Preferred Risk Mut. Ins. v. Watson, 937 S.W.2d 148, 150 (Tex.App.Fort Worth 1997, writ denied). To interpret each of the six alleged sexual assaults as giving rise to six separate Sexual Abuse Occurrences would render the policy’s distinctions between “occurrence” and “Sexual Abuse Occurrence” meaningless.

CONTINUING DUTY TO DEFEND

TIG asserts it has no continuing duty to defend the YMCA in the pending lawsuits because (1) its $1 million payment in the settled lawsuits has exhausted its “Each Occurrence Limit” and (2) an occurrence for physical abuse separate and apart from sexual abuse has not been alleged. The policy states that TIG’s duty to defend ends “when [it has] used up the applicable limit of insurance in the payment of judgments or settlements under Coverage A or B or medical expenses under Coverage C.” TIG contends that because it paid $1 million in Coverage A damages to settle three of the lawsuits, the applicable limit of insurance has been “used up” and it, therefore, no longer has a duty to defend in the three pending lawsuits. We disagree.

Subject to applicable aggregate limits, the Each Occurrence Limit is the most TIG must pay for the sum of Coverage A damages and Coverage C medical expenses “because of all ‘bodily injury’ and ‘property damage’ arising out of any one ‘occurrence’ or any one ‘Sexual Abuse Occurrence’.” Trimble’s alleged sexual abuse of the six children constitutes a single Sexual Abuse Occurrence. The Each Occurrence Limit is $1 million, and TIG’s payment of $1 million in the settled lawsuits exhausted its policy limit for “any one ‘Sexual Abuse Occurrence’.” However, because the policy distinguishes between an “occurrence” and a “Sexual Abuse Occurrence,” the payment of $1 million for a Sexual Abuse Occurrence does not result in the exhaustion of the Aggregate Limit if there is a separate “occurrence.” Therefore, if, during the coverage period, the YMCA is held liable on a claim for bodily injury arising from “any one ‘occurrence’,” the remaining limits are available to satisfy that claim, triggering TIG’s duty to indemnify. Accordingly, if the plaintiffs’ petitions allege a claim for bodily injury unassociated with sexual abuse, then TIG has a continuing duty to defend.

In its motion for summary judgment, the YMCA asserted the plaintiffs alleged physical assault separate from any allegations relating to sexual abuse. According to the YMCA, there is a “possibility” that “despite the Plaintiffs’ best efforts to prove otherwise, a jury may determine that the type of physical contact that actually occurred was wrongful but not sexual in nature.” Therefore, the YMCA argues that any liability on its part for Trimble’s physical assault of the children is covered by the policy, and TIG has a continuing duty to defend for an occurrence that does not involve sexual abuse.

Whether an insurer of a liability policy is obligated to defend the insured is a question of law to be decided by the court. State Farm Gen. Ins. v. White, 955 S.W.2d 474, 475 (Tex.App.-Austin 1997, no pet.). The duty to defend is triggered by the factual allegations in the plaintiffs petition and the language of the insurance policy. Cowan, 945 S.W.2d at 821. This duty is unaffected by facts ascertained before suit, developed in trial, or by the ultimate outcome of the case. See Argonaut Southwest Ins. v. Maupin, 500 S.W.2d 633, 635-36 (Tex.1973). Instead, the allegations in the pleadings are considered in light of the policy language without reference to the truth or falsity of the allegations and without reference to what the parties know or believe. Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 24 (Tex.1965). If a petition does not allege facts within the scope of coverage, an insurer is not legally required to defend a suit against its insured. American Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 848 (Tex.1994). On the other hand, if the underlying petition contains allegations that, when fairly and reasonably construed, state a cause of action that is potentially covered by the policy, then the insurer has a duty to defend. National Union Fire Ins. of Pittsburgh, PA v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 142 (Tex.1997).

We give the allegations in the petition a liberal interpretation, and we focus on the factual allegations that show the origin of the damages rather than on the legal theories alleged. National Union, 939 S.W.2d at 141. The National Union Court explained:

Where the complaint does not state facts sufficient to clearly bring the case within or without the coverage, the general rule is that the insurer is obligated to defend if there is, potentially, a case under the complaint within the coverage of the policy. Stated differently, in case of doubt as to whether or not the allegations of a complaint against the insured state a cause of action within the coverage of a liability policy sufficient to compel the insurer to defend the action, such doubt will be resolved in insured’s favor.

Id. (citations omitted). Accordingly, we resolve all doubts regarding the duty to defend in favor of the duty. King v. Dallas Fire Ins., 85 S.W.3d 185, 187 (Tex.2002).

Here, none of the petitions name Trim-ble as a defendant, only the YMCA is named. All petitions allege the YMCA was negligent or grossly negligent in its hiring, retention, staffing, and orientation and training practices, and that the YMCA breached its duty to the children to keep them safe from harm. In them petitions, the plaintiffs allege that, during the minor child’s stay at Camp Flaming Arrow, “the child was physically, sexually, and mentally abused” by a YMCA employee and “the minor child suffered physical abuse.” We conclude that, given its most liberal interpretation, these allegations suggest the possibility that the children’s injuries may have resulted from physical abuse unassociated with sexual abuse or molestation. Therefore, the allegations in the plaintiffs’ petitions state a cause of action potentially covered by the policy; thus, triggering TIG’s duty to defend in these lawsuits.

CONCLUSION

We conclude that each of the six claims that Trimble sexually assaulted a child constitutes a single Sexual Abuse Occurrence under TIG’s policy; therefore, TIG’s payment of $1 million in the settled lawsuits exhausted its limit for “any one ‘Sexual Abuse Occurrence.’ ” However, the plaintiffs’ petitions alleged a potential cause of action for physical abuse; therefore, TIG has a continuing duty to defend the YMCA in the remaining lawsuits. TIG’s duty to indemnify the YMCA may arise dependent upon the actual facts adduced at trial. We affirm the trial court’s judgment.

      . The policy definition of “occurrence” in H.E. Butt is substantially similar to that in the TIG policy: "an event, including continuous or repeated exposure to conditions, which result[s] in Personal Injury or Property Damage during the policy period, neither expected nor intended from the standpoint of the Insured. All Personal Injury or Property Damage arising out of the continuous or repeated exposure to substantially the same general conditions shall be considered as arising out of one occurrence.”

      . In Preferred Risk, three children were molested by an employee of Grace Temple Baptist Church’s day care center. Preferred asserted the children’s claims collectively constituted a single "occurrence.” The children countersued, arguing that each child’s claim constituted a separate "occurrence.” Id. at 148-49. Unlike TIG’s CGLCF, Preferred’s CGL policy specifically excluded "bodily injury” and "personal injury” caused by abuse or molestation under a policy entitled “Abuse or Molestation Exclusion.” However, Preferred’s policy included another endorsement entitled "Sexual Misconduct Liability Coverage Form,” which provided in pertinent part as follows:
      All acts of sexual misconduct by one person, or two or more persons acting together, or any breach of duty causing or contributing to such acts will be considered one occurrence in determining our liability under this section.

        Id. at 149. The court held that the definition of "occurrence” in the sexual misconduct endorsement unambiguously meant that "a single ‘occurrence’ is ‘[a]ll acts' of sexual molestation by either ‘one person, or two or more persons acting together, or any breach of duty causing or contributing to such acts.’ ” Id. at 150 (emphasis in original). The court concluded that " ‘all’ of the Grace Temple employee’s alleged acts of sexual misconduct and ‘any’ alleged breach of duty that may have contributed to those acts, collectively constituted a single ‘occurrence’ under the policy in question.” Id.

      Although, unlike in Preferred, TIG’s Sexual Abuse Occurrence Coverage endorsement was not issued to add coverage that was otherwise excluded under the CGCLF, we consider the Preferred court's interpretation of the definition of "occurrence” in its sexual misconduct endorsement helpful.

      . Relying on Director of the Dallas County Child Protective Services v. Bowling, 833 S.W.2d 730 (Tex.App.-Dallas 1992, no writ), TIG argues there is no distinction between physical and sexual abuse. In Bowling, the court held there was no basis for distinguishing between physical abuse and sexual abuse in a suit to involuntarily terminate parental rights because either has the effect of endangering the physical or emotional well-being of the child. Id. at 733. We do not believe Bowling is authoritative when interpreting an insurance contract. Relying on State Farm Lloyds v. C.M.W., 53 S.W.3d 877 (Tex.App.Dallas 2001, pet. denied), TIG also argues that intent to harm is inferred as matter of law in cases involving the sexual abuse of a minor. The C.M.W. case involved an insurer’s obligation to indemnify and not its duty to defend. The C.M.W. court determined that intent to harm could be inferred from all of the insured’s actions because those actions were not separate and independent from the physical sexual contact. Id. at 890-92. Here, the plaintiffs' petitions do not provide the level of detail necessary for us to determine, as a matter of law, whether Trimble's actions were related and interdependent on his sexual molestation of the children. See id. at 889-90 (holding that a determination of whether to infer intent to harm must be made on a case-by-case basis).


author: ALMA L. LÓPEZ, Chief Justice.

text:
    Brent ERICKSON and Traci Erickson, Individually and as Next Friend of Caitlin Marie Erickson, a Minor, Appellants, v. Josefine HEIM-HALL, M.D. and Victor Saldivar, M.D., Appellees.
    No. 04-04-00895-CV.
    Court of Appeals of Texas, San Antonio.
    July 13, 2005.

      David M. O’Dell, M.D., J.D., Law Office of David M. O’Dell, M.D., J.D., Dallas, for appellants.
    Edward C. Mainz, Robert R. Biechlin, Jr., Thornton, Summers, Biechlin, Dunham & Brown, L.C., San Antonio, Paul A. Gay-tan, Steven M. Gonzalez & Associates, P.C., Corpus Christi, for appellees.
    Sitting: ALMA L. LÓPEZ, Chief Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice.
   OPINION

Opinion by

ALMA L. LÓPEZ, Chief Justice.

Brent Erickson and Traci Erickson sued Josefine Heim-Hall, M.D. and Victor Sal-divar, M.D. for medical malpractice arising from their alleged misdiagnosis of pathology slides made from biopsies taken from the Ericksons’ infant daughter, Caitlin Marie Erickson. The Ericksons appeal the trial court’s order granting a partial summary judgment as to their claims based on limitations. The Ericksons contend that they raised a genuine issue of material fact as to: (1) whether they had a reasonable opportunity to discover the alleged misdiagnosis during the applicable two-year limitations period; and (2) whether the application of the limitations period violated the open courts provision of the Texas Constitution. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court’s judgment in this memorandum opinion. See Tex.R.App. P. 47.4.

After examining one set of pathology slides in January of 1997 and a second set in February of 1997, Heim-Hall and Saldivar diagnosed Caitlin as having Hirschsprung disease. Assuming, without deciding, that the Ericksons did not have a reasonable opportunity to discover the misdiagnosis until another doctor had the January 1997 slide re-examined in October 2001, the open courts doctrine would apply. See Shah v. Moss, 67 S.W.3d 836, 846 (Tex.2001) (noting open courts guarantee applies to medical malpractice common-law claim if plaintiff did not have a reasonable opportunity to discover the alleged wrong before the limitations period expired). Nevertheless, the Ericksons may not obtain relief under the open courts provision unless they used due diligence and sued within a reasonable time after learning about the alleged wrong. Id. at 847-88. Whether a plaintiff has used the degree of diligence required is ordinarily a question of fact; however, it may be determined as a matter of law when the evidence, construed most favorably for the claimant, admits no other conclusion. Pech v. Estate of Tavarez, 112 S.W.3d 282, 286 (Tex.App.-Corpus Christi 2003, no pet.); DeRuy v. Garza, 995 S.W.2d 748, 752 (Tex.App.San Antonio 1999, no pet.).

Although counsel was retained in November of 2001, no lawsuit was filed until December of 2002. Moreover, that lawsuit was non-suited in March of 2003, and the underlying lawsuit was not filed until May of 2003. Although the Erick-sons’ attorney, David O’Dell, states in his affidavit that he made efforts to locate the pathology slides and was in contact with the attorney for the University of Texas Health System, the only correspondence attached to the Ericksons’ summary judgment response relating to the pathology slides is a letter dated May of 2002 in which O’Dell requested the January 1997 pathology slide from Christus Santa Rosa. In July of 2002, Christus Santa Rosa faxed O’Dell a note stating that it did not have access to the slides. Although O’Dell believed he had an agreement with the University’s attorney to abate formal action until the pathology slides were reviewed, the agreement does not excuse the Erick-sons from exercising due diligence in filing their lawsuit. A defendants’ refusal to provide medical records may support a reasonable delay in filing a lawsuit; however, under the open courts doctrine, an attorney’s internal operating procedures and professional decision not to file suit until after an expert opinion is obtained to support the asserted claim is not a reasonable explanation for an extended delay. Compare Gagnier v. Wichelhaus, 17 S.W.3d 739, 745 (Tex.App.-Houston [1st Dist.] 2000, pet. denied) with LaGesse v. PrimaCare, Inc., 899 S.W.2d 43, 44-45, 47 (Tex.App.-Eastland 1995, writ denied); see also Neville v. Molina, No. 14-00-00082-CV, 2001 WL 619526, at *5 (Tex.App.Houston [14th Dist.] 2001, pet. denied) (open courts does not extend limitations indefinitely until plaintiff knows of doctor’s negligence with certainty) (not designated for publication); Rubalcaba v. Kaestner, 981 S.W.2d 369, 377 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) (noting limitations could not be avoided indefinitely where attorney could file suit and invoke power of court to avail himself of various remedies to obtain medical records and legislature must determine nature of penalties to impose when records are withheld preventing plaintiff from meeting expert report deadline). We hold that the nineteen month delay between the October 2001 discovery of the misdiagnosis and the filing of the underlying lawsuit in May of 2003 was unreasonable as a matter of law. See, e.g., Shah, 67 S.W.3d at 847 (holding seventeen month delay unreasonable as a matter of law); LaGesse, 899 S.W.2d at 47 (holding twelve month delay excessive as a matter of law where only reasons given were attorney delay); Work v. Duval, 809 S.W.2d 351, 353-54 (Tex.App.-Houston [14th Dist.] 1991, no writ) (holding twenty-one month delay unreasonable as a matter of law).

The trial court’s judgment is affirmed.


text:
    Ex Parte Omar LUGO.
    No. 04-05-00068-CR.
    Court of Appeals of Texas, San Antonio.
    July 13, 2005.

      Alfonso Otero, Mercado Gonzalez & Ote-ro, L.L.P., San Antonio, for appellant.
    Susan D. Reed, Criminal Dist. Atty., San Antonio, for appellee.
    Sitting: CATHERINE STONE, Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.
   OPINION

Opinion by

SANDEE BRYAN MARION, Justice.

On July 11, 2004, defendant, Omar Lugo, was arrested and charged with intoxication manslaughter. On January 13, 2005, defendant filed an application for writ of habeas corpus, asserting he was not timely indicted pursuant to Texas Code of Criminal Procedure article 32.01. On January 20, 2005, the trial court conducted a hearing on the application and denied the requested relief.

Pursuant to article 32.01, the State had to file the charging instrument “on or before the last day of the next term of the court which is held after his commitment or admission to bail or on or before the 180th day after the date of commitment or admission to bail, whichever date is later.” Tex.Code CRiM. PROC. Ann. art. 32.01 (Vernon Supp.2005) (emphasis added). In Bex-ar County, grand juries are impaneled for two-month terms. See BexaR County CRiM. Dist. Ct. Rule 5.5. According to defendant, he was arrested during the July-August 2004 term of the 144th Judicial District Court; the “next term” of the 175th Judicial District Court ended on October 31, 2004; and by the time he filed his application for writ of habeas corpus on January 13, 2005, he had yet to be indicted. Therefore, defendant contends article 32.01 mandates dismissal of the criminal prosecution against him. Defendant also argues dismissal of the prosecution is required because more than 180 days have passed since the date of his commitment. We disagree. Although the Bexar County local rules require a criminal district judge to impanel grand juries in accordance with a two-month schedule, this two-month schedule does not control the terms of the Bexar County courts. Instead, the provisions of the Texas Government Code control.

The terms of the Bexar County district courts, which give preference to criminal cases, are established by statute, and begin on the first Monday in January and July and continue until the court has disposed of the business for that term. Tex. Gov’t Code Ann. § 24.139 (Vernon 2004). Because defendant was arrested during the July to December 2004 term, the last day of the “next term” of the court held after defendant’s commitment is the end of the January to June 2005 term. Accordingly, because defendant’s application for writ of habeas corpus is premature, article 32.01 does not require dismissal of the prosecution against him, and the trial court did not err in denying his application.

We overrule defendant’s issues on appeal and affirm the trial court’s judgment.

      . Because we conclude defendant's application for writ of habeas corpus was premature, we do not reach the issue of whether the State established good cause for delay in filing the charging instrument. See Tex.R.App. P. 47.1.


author: KAREN ANGELINI, Justice.

text:
    Gabriel DIAZ, Appellant, v. The STATE of Texas, Appellee.
    No. 04-04-00611-CR.
    Court of Appeals of Texas, San Antonio.
    July 20, 2005.
    Vincent D. Callahan, San Antonio, for appellant.
    Susan D. Reed, Criminal Dist. Atty., San Antonio, for appellee.
    Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

KAREN ANGELINI, Justice.

In his sole issue, Gabriel Diaz argues that during his community supervision revocation hearing, his constitutional right to confront witnesses under the Sixth Amendment to the United States Constitution was violated, relying on the Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Because a community supervision revocation proceeding is not a stage of a criminal prosecution, we hold that Diaz’s right under the Sixth Amendment’s Confrontation Clause does not apply. As such, we affirm the judgment of the trial court.

Background

Following his plea of guilty to the offense of aggravated assault, Gabriel Diaz was placed on community supervision for a period of ten years. Six years later, the State filed a motion to revoke his community supervision, arguing that he had violated the terms and conditions of his community supervision by committing the offense of assault bodily injury — married and by interfering with an emergency telephone call. At the revocation hearing, Officer Ian Garcia testified that on the night of May 1, 2004, he received a domestic disturbance call. Upon arriving at the scene, Officer Garcia met "with Christina Salazar. Over Diaz’s objection, Officer Garcia testified that Salazar told him that she and Diaz had been arguing and Diaz pushed her. According to Officer Garcia, while she was dialing 9-1-1, Diaz ripped the phone by the cord and pulled it out from the wall. As Diaz tried to “break away from him, he whipped her across the face with the phone cord.”

After hearing the evidence presented, the trial court determined that Diaz had violated the terms and conditions of his community supervision, revoked his community supervision, and sentenced him to ten years imprisonment.

Discussion

In his sole issue, Diaz argues that Officer Garcia’s testimony violated his rights under the Sixth Amendment’s Confrontation Clause as enunciated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In response, the State argues that Crawford does not apply to community supervision revocation hearings. The applicability of Crawford and the Sixth Amendment’s Confrontation Clause to revocation proceedings is an issue of law that we review de novo. Smart v. State, 153 S.W.3d 118, 120 (Tex.App.-Beaumont 2004, pet. ref'd).

This issue is one of first impression in our court; other courts, however, have addressed this issue. The Beaumont Court of Appeals has held that Crawford’s holding does not apply to revocation proceedings. See Smart v. State, 153 S.W.3d 118 (Tex.App.-Beaumont 2004, pet. refd). The federal courts are split on this issue with the majority of courts holding that Crawford does not apply to revocation proceedings. Compare United States v. Aspinall, 389 F.3d 332, 342-43 (2d Cir.2004) (holding that Crawford does not apply to probation revocation proceedings), and United States v. Martin, 382 F.3d 840, 844 (8th Cir.2004) (holding that Crawford does not apply to proceedings relating to revocation of supervised release), and United States v. Barraza, 318 F.Supp.2d 1031, 1034-35 (S.D.Cal.2004) (holding that Craw ford does not apply to revocation of unsupervised release proceeding), with United States v. Jarvis, 94 Fed.Appx. 501, 502 (9th Cir.2004) (holding that Crawford does apply to revocation of supervised released proceeding), and Ash v. Reilly, 354 F.Supp.2d 1, 9-10 (D.D.C.2004) (holding that Crawford does apply to parole revocation hearing). And, at least one state supreme court has held that Crawford does not apply to revocation hearings. See State v. Abd-Rahmaan, 111 P.3d 1157, 1162 (Wash.2005). We agree with the majority of authority and, for the reasons below, hold that the Supreme Court’s holding in Crawford does not apply to Diaz’s community supervision revocation hearing.

The seminal case involving an individual’s due process rights at a parole revocation hearing is the United States Supreme Court’s decision in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). In Morrissey, the Court addressed “whether the Due Process Clause of the Fourteenth Amendment requires that a State afford an individual some opportunity to be heard prior to revoking his parole.” Id. at 472, 92 S.Ct. 2593. The Court began “with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.” Id. at 480, 92 S.Ct. 2593 (emphasis added). The Court explained why a parole revocation proceeding is not part of a criminal prosecution:

Parole arises after the end of the criminal prosecution, including imposition of sentence. Supervision is not directly by the court but by an administrative agency, which is sometimes an arm of the court and sometimes of the executive. Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.

Id. at 480, 92 S.Ct. 2593. Because a defendant is not afforded the “full panoply of rights” when the proceeding is not part of a criminal prosecution, the Court then turned to “whether the requirements of due process in general apply to parole revocations.” Id. at 481, 92 S.Ct. 2593. The Court concluded that the liberty of a parolee “is valuable and must be seen as within the protection of the Fourteenth Amendment.” Id. at 482, 92 S.Ct. 2593. As such, “[i]ts termination calls for some orderly process, however informal.” Id. The Court held that the Fourteenth Amendment guarantees, at a minimum, the following due process protections to a defendant in a parole revocation hearing:

(1) written notice of the claimed violations of parole;
(2) disclosure to the parolee of evidence against him;
(3) opportunity to be heard in person and to present witnesses and documentary evidence;
(4) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation);
(5) a “neutral and detached” hearing body; and
(6) a written statement by the factfin-ders as to the evidence relied on and reasons for revoking parole.

Id. at 489, 92 S.Ct. 2593 (emphasis added). The Court, however, emphasized that “there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense.” Id. According to the Court, “[i]t is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.” Id. The following year, in Gagnon v. Scarpelli 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the Supreme Court extended the due process protections enunciated in Morrissey to state probation revocation proceedings, recognizing that revocation of probation, like revocation of parole, deprives an individual of a conditional liberty. Id. at 782, 93 S.Ct. 1756. According to the Court, it did not perceive “any difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation.” Id. The Court further noted that “[probation revocation, like parole revocation, is not a stage of a criminal prosecution.” Id. Addressing the right of an individual to cross-examine live witnesses, the Court emphasized that it did not intend in Mor-rissey to prohibit the use of alternatives to live testimony, including affidavits, depositions, and documentary evidence. Id. at 782 n. 5, 93 S.Ct. 1756.

Both Morrissey and Scarpelli define a defendant’s rights in a revocation proceeding under the Due Process Clause of the Fourteenth Amendment. In contrast, Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), discusses a defendant’s right under the Confrontation Clause of the Sixth Amendment. The Sixth Amendment’s Confrontation Clause provides the following: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ...” U.S. Const. amend. VI (emphasis added). Crawford held that a defendant’s right to confrontation under the Sixth Amendment is violated where testimonial hearsay is admitted at trial and the defendant has not been afforded the prior opportunity to cross-examine the witness. Crawford, 541 U.S. at 61, 124 S.Ct. 1354. In doing so, the Court overruled its prior decision in Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which held that under the confrontation clause, statements of a witness unavailable at trial may be admitted if the hearsay falls under a “firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness.” Crawford, 541 U.S. at 61, 67-69, 124 S.Ct. 1354.

In holding that Crawford does not apply to revocation proceedings, courts have recognized that the Confrontation Clause of the Sixth Amendment explicitly applies to “criminal prosecutions.” See Aspinall, 389 F.3d at 342; Martin, 382 F.3d at 844 & n. 4; Barraza, 318 F.Supp.2d at 1034-35; Smart, 153 S.W.3d at 120; Abd-Rahmaan, 111 P.3d at 1160. As emphasized by these courts, the Supreme Court in Morrissey and Scarpelli held that a revocation proceeding is not a stage of a “criminal prosecution.” See Aspinall, 389 F.3d at 342; Martin, 382 F.3d at 844 & n. 4; Barraza, 318 F.Supp.2d at 1034-35; Smart, 153 S.W.3d at 120; Abd-Rahmaan, 111 P.3d at 1160. As such, these courts conclude that because revocation proceedings are not “criminal prosecutions,” Crawford’s holding under the Sixth Amendment does not apply. See Aspinall, 389 F.3d at 342; Martin, 382 F.3d at 844; Barraza, 318 F.Supp.2d at 1034-35; Smart, 153 S.W.3d at 120; Abd-Rahmaan, 111 P.3d at 1160.

These courts also emphasize that Crawford discussed rights under the Sixth Amendment while Morrissey and Scarpelli discusses rights arising from the Fourteenth Amendment. See Aspinall, 389 F.3d at 342; Martin, 382 F.3d at 844; Barraza, 318 F.Supp.2d at 1034-35; Smart, 153 S.W.3d at 120; Abd-Rahmaan, 111 P.3d at 1160. As noted by Second Circuit, “[njothing in Crawford, which reviewed a criminal trial, purported to alter the standards set by Morrissey/Scarpelli or otherwise suggested that the Confrontation Clause principle enunciated in Craw ford is applicable to probation revocation proceedings.” Aspinall, 389 F.3d at 343; see also Smart, 153 S.W.3d at 121 (“Nothing in Crawford suggests that the Confrontation Clause, which applies to criminal trials, alters the standard set forth in Mor-rissey for the admissibility of evidence in a revocation proceeding.”).

Moreover, as emphasized by a federal district court, because the Supreme Court in Morrissey “specifically noted that ‘the revocation of parole is not part of a criminal prosecution,’ it is difficult to conclude that Morrissey was a Sixth Amendment case.” Barraza, 318 F.Supp.2d at 1035. This court also found significant that prior to Morrissey and Scarpelli, the Supreme Court had held that the “Sixth Amendment’s right of an accused to confront the witnesses against him is likewise a fundamental right and is made obligatory on the States by the Fourteenth Amendment.” Id. (citing Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)). Noting that Pointer involved the Sixth Amendment right of confrontation at trial, the federal district court reasoned that “[h]ad the Court in Morrissey and Scar-pelli been confronted with the issue of whether the Sixth Amendment right of confrontation is applicable to the States via the Fourteenth Amendment in parole and probation revocation proceedings, one would assume that the Court would have framed the issue as whether the rule in Pointer should be extended to revocation proceedings.” Id. The court emphasized that “[a]t a minimum, one would expect that the Pointer decision would be at least mentioned in Morrissey and Scarpelli, which it is not.” Id. Thus, the federal court concluded that “the conditional right to confrontation in a revocation proceeding recognized by Morrissey and Scarpelli is a due process, not a Sixth Amendment, right.” Id. And, because Crawford discussed a defendant’s right under the Sixth Amendment, “it is clear that Crawford is not controlling authority regarding the right to confrontation in a revocation proceeding.” Id. The federal district court also refused to apply Crawford by analogy, explaining that to do so would be tantamount to “finding that Crawford implicitly overruled Morrissey, Scarpelli, and their progeny.” Id. The court declined to “conclude that by its decision in Crawford the Supreme Court implicitly intended to overrule its well-established precedent regarding the due process right to confrontation in revocation hearings absent even the smallest indication of such an intent.” Id.

Likewise, the Washington Supreme Court distinguished Morrissey and Scar-pelli from Crawford, emphasizing that Morrissey and Scarpelli involved due process rights under the Fourteenth Amendment while Crawford involved a defendant’s right of confrontation under the Sixth Amendment. Abd-Rahmaan, 111 P.3d at 1161. The court also refused to hold that Crawford implicitly overruled Morrissey and Scarpelli. Id. It, therefore, concluded that because parole revocation hearings are not criminal prosecutions, Cratvford, a Sixth Amendment case, was inapplicable. Id.

Agreeing with the reasoning of these courts, we hold that Crawford does not apply to Diaz’s community supervision revocation hearing and overrule Diaz’s sole issue.

Conclusion

Because Crawford’s holding under the Sixth Amendment does not apply to revocation hearings, we overrule Diaz’s sole issue and affirm the judgment of the trial court.

      . It is undisputed that during the revocation hearing, Salazar was in the hallway and, therefore, available to testify. Neither the State nor the defense chose to call her to testify.

      . Diaz objected, arguing that the testimony was hearsay and that it was “testimonial evidence” under Crawford- The court determined that the testimony was admissible as an excited utterance.

      . At least two courts have disagreed with this conclusion: a panel from the Ninth Circuit and a federal district court from the District of Columbia. In United. States v. Jarvis, the Ninth Circuit, with little analysis, held that ‘'[d]ue process mandates that at revocation proceedings, the releasee must be afforded the right to confront and cross-examine witnesses unless the hearing officer specifically finds good cause for not allowing confrontation.” 94 Fed.Appx. at 502. In Ash v. Reilly, 354 F.Supp.2d 1, 8 (D.D.C.2004), the federal district court did not find the Sixth Amendment/Fourteenth Amendment distinction to be persuasive. Although the court acknowledged "the context in which Morrissey was decided,” it believed that Morrissey "discussed confrontation in the context of 'due process' because that case concerned state court action, and thus, any rights applicable to the defendants in that case would exist solely via incorporation of constitutional rights through the Due Process Clause of the Fourteenth Amendment and not because the [Supreme] Court envisioned an alternative form of confrontation different from that referenced in the Sixth Amendment.” Id. For the reasons stated above, we disagree with the reasoning of both these courts.


text:
    Aaron M. BLANK, Appellant, v. The STATE of Texas, Appellee.
    No. 04-04-00243-CR.
    Court of Appeals of Texas, San Antonio.
    July 20, 2005.

      Louis D. Martinez, San Antonio, for appellant.
    Laura Burton Bates, Asst. Criminal Dist. Atty., San Antonio, for appellee.
    Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, SANDEE BRYAN MARION, Justice.
   OPINION ON REHEARING

Opinion by SANDEE BRYAN MARION, Justice.

In an opinion and judgment dated April 6, 2005, we reversed the trial court’s judgment and rendered an acquittal in favor of defendant, Aaron Blank. The State filed a motion for rehearing and a motion for rehearing en banc. We grant the motion for rehearing, withdraw our opinion and judgment of April 6, 2005, and issue this opinion and judgment in its place.

In a two-paragraph complaint and information, the State charged defendant with driving while intoxicated and alleged defendant had previously been convicted of driving while intoxicated by a court in Illinois. A jury found defendant guilty as alleged in the information. The trial court adjudged defendant guilty of “driving while intoxicated-2D,” and assessed punishment at ten months’ confinement. On appeal, defendant challenges the State’s use of an Illinois court “Case Synopsis,” which the State contends proves a prior conviction. Because we determine the State failed to prove a prior conviction, we reverse and remand for a new punishment hearing.

DISCUSSION

The information charged defendant with the misdemeanor offense of driving while intoxicated. Ordinarily, a driving while intoxicated offense under Penal Code section 49.04 is a Class B misdemeanor. See Tex. Pen Code Ann. § 49.04 (Vernon 2003). A section 49.04 offense may be enhanced to a Class A misdemeanor under Penal Code section 49.09 if “it is shown on trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated.” See id. § 49.09(a) (“Enhanced Offenses and Penalties”). In this case, the complaint and information contained a paragraph alleging defendant had been convicted in 1993 of the offense of driving while intoxicated in Illinois. On appeal, defendant asserts the trial court erred in allowing the State’s use of a computer-generated “Case Synopsis” as proof of the 1993 conviction. According to defendant, the Case Synopsis is not a judgment of conviction; therefore, absent the use of the synopsis, the evidence is legally and factually insufficient to support the jury’s verdict.

A prior conviction may be proven by certified copies of a judgment and sentence and authenticated copies of records from the Texas Department of Corrections or other correctional institution, including fingerprints, supported by expert testimony matching them to the defendant. Littles v. State, 726 S.W.2d 26, 28 (Tex.Crim.App.1984); Zimmer v. State, 989 S.W.2d 48, 50 (Tex.App.-San Antonio 1998, pet. ref d). However, this is not the only method by which the State may prove a prior conviction. The State also may offer: (1) testimony from a witness who personally knows the defendant and the fact of his prior conviction; (2) the defendant’s stipulations or judicial admissions; or (3) the defendant’s photograph in a penitentiary packet or other official record. Littles, 726 S.W.2d at 31; Zimmer, 989 S.W.2d at 50.

Here, the State relied on a computer print-out entitled “Case Synopsis,” which it contends is a judgment. However, the synopsis is not entitled “Judgment,” does not indicate the name of the court, and does not identify the presiding judge. The synopsis contains the following information, which the State argues establishes the 1993 conviction for driving while intoxicated:

The synopsis indicates defendant was charged with the offense of driving while intoxicated. However, the notation of “guilty” may indicate defendant’s plea or it may, as the State alleges, indicate a guilty verdict. In either event, it does not indicate whether defendant was actually convicted of any offense, much less which offense. There is no evidence in the record that the synopsis is “a writing authorized by law to be recorded or filed and [was] in fact recorded or filed in a public office, or [is] a purported public record, report, statement, or data compilation, in any form, ... from the public office where items of this nature are kept.” See Tex.R. Evid. 901(b)(7). The synopsis bears the seal of the Lake County, Illinois Circuit Court of the Nineteenth Judicial Circuit, and it contains a certification by the clerk of the court that “the above [is] correct.” However, there is no evidence that the synopsis is a “copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed in a public office, including data compilations in any form....” Id. 902(4). Nothing in the record supports the State’s contention that the synopsis represents a judgment of conviction. The State introduced no other evidence of the 1993 conviction, and the defendant repeatedly denied such a conviction.

During the guilt-innocence phase of trial, two police officers testified regarding their conclusions that defendant was driving while intoxicated. Although defendant denied he was intoxicated, we conclude the evidence is legally and factually sufficient to support the conviction. However, when a defendant is charged with a Class A misdemeanor driving while intoxicated, the prior driving while intoxicated conviction is treated as an enhancement provision of the information, and not an element of a separate offense. See Love v. State, 833 S.W.2d 264, 265-66 (Tex.App.-Austin 1992, pet. refd). Because there is no evidence supporting an enhanced punishment, we affirm the judgment of conviction, reverse the judgment as to punishment, and remand the cause for a new hearing on punishment.

      . The appendix to defendant's brief contains a copy of a Agreed Order Nunc Pro Tunc, which states that "the official record and Circuit Court Clerk’s minutes shall be corrected in order to reflect the following: Pursuant to a negotiated plea, the charges in the above entitled matter were reduced from the offense of Driving Under the Influence to the Offense of Reckless Driving on July 12, 1993.” However, an appellate court must determine a case on the record as filed and cannot consider documents attached as exhibits or appendices to briefs or motions. TexR.App. P. 34.1.