author: Justice MAZZANT.

text:
    Terry Lynn BROWN, Appellant v. The STATE of Texas, Appellee.
    No. 05-04-00480-CR.
    Court of Appeals of Texas, Dallas.
    May 23, 2005.

      Deric King Walpole, Boyd Veigel, P.C., McKinney, for Appellant.

      John R. Roach, Collin County Dist. Atty., and John A. Stride, Asst. Dist. Atty., McKinney, for State.
    Before Justices BRIDGES, O’NEILL, and MAZZANT.
   OPINION

Opinion by

Justice MAZZANT.

Terry Lynn Brown appeals his conviction for murder. The jury found appellant guilty, and appellant agreed to a sentence of life imprisonment and a $10,000 fíne. Appellant brings six issues asserting (a) the trial court erred by denying appellant’s motion to dismiss for lack of a speedy trial, (b) the trial court erred by admitting certain scientific evidence, and (c) cumulative error warranted a new trial. We affirm the trial court’s judgment.

FACTUAL BACKGROUND

The evidence before the jury, viewed in the light most favorable to the verdict, showed the following.

In November 1993, appellant worked as a truck driver for a trucking company in New Jersey. On November 2, appellant picked up a load in Seacaucus, New Jersey to take it to Plano, Texas. The trucking company’s trucks were equipped with both global positioning system (GPS) receivers which determined the truck’s geographic position, and transmitters, which relayed the truck’s position to the trucking company every few seconds to every few hours, but mostly once an hour. The trucking company kept records of these transmissions. The GPS records for the truck issued to appellant showed appellant stopped overnight in Jersey City, New Jersey. The complainant, Christine Franklin, lived in Jersey City. The GPS records showed appellant then drove through New Jersey, Pennsylvania, Virginia, Tennessee, and Arkansas into Texas and delivered - his load in Plano at about 7:36 p.m. on November 4. The GPS records showed he spent a couple of days in the Dallas area and that he was in Richardson from 11:25 p.m. on November 5 until 10:57 p.m. on November 6. Appellant had family in Richardson. In the evening on November 6, Franklin’s body was found in a park in Richardson. Franklin had been strangled to death. A shoelace, the ends of which had been pierced by a wire, was wrapped around Franklin’s neck, and the wire had been used to tighten the shoelace. The lead investigator, Richardson Police Department Sergeant Daniel Nors, examined the GPS records, and testified that “the truck and [appellant] were in the location in the city of Richardson when the body was deposited.”

DNA analysis of a cigarette butt found next to Franklin’s body showed DNA consistent with both appellant as a major contributor of the DNA and Franklin as a minor contributor of the DNA. The DNA analyst, Dawn Ratliff, testified that the frequency of an unrelated African-American (both appellant and Franklin are African-American) having the same DNA pattern as that found on the cigarette butt consistent with the major contributor’s DNA was approximately one in 118 billion. DNA analysis of the material found under Franklin’s fingernails excluded Franklin but was consistent with appellant’s DNA. DNA analyst Anjali Swienton testified that the frequency within the unrelated African-American population of that DNA pattern was approximately one in 5.9 million. DNA analysis of a sock found stuffed in Franklin’s mouth showed the DNA found on the sock was consistent with Franklin being the major donor of the DNA and appellant being a minor donor of DNA found on the sock. The analysis of DNA on the sock also showed it was possible DNA may have been contributed by an unknown third person. Analysis of combings from Franklin’s head hair revealed the presence of a brown Caucasian pubic hair.

SPEEDY TRIAL

In his first issue, appellant contends the trial court erred in denying his motion to dismiss the indictment for denial of his Sixth Amendment right to a speedy trial. The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.... ” U.S. Const, amend VI. This right is fundamental and is imposed on the states through the Due Process Clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967).

The evidence before the trial court on this issue showed that on November 10, 1994, about one year after Franklin’s body was found, Dallas police officers arrested appellant on a warrant for crimes related to the murder of his mother, Sandra Brown. On November 15, 1994, appellant gave a written statement explaining that another truck driver strangled Franklin in his presence in New Jersey on November 2, 1993, and appellant, who had agreed to dispose of Franklin’s body, drove to Richardson where he dumped the body. A Richardson magistrate issued a warrant for appellant’s arrest related to Franklin’s murder on December 15, 1994. The Richardson police forwarded the warrant to Dallas County, which had custody of appellant, and Dallas County placed a “hold” on appellant. On December 29, 1994, the Richardson police filed the case against appellant relating to Franklin’s murder with the Collin County District Attorney’s Office. On March 27, 1995,- the Collin County District Attorney’s Office refused the case. The district attorney filed a document stating, “The charge listed below in regard to the defendant named will not be prosecuted by this office. If in custody, the defendant should be RELEASED OF THE CHARGE LISTED.” The district attorney refused the case on the ground that jurisdiction for Franklin’s murder lay in Suffolk County, New Jersey instead of Collin County, Texas. The Richardson police contacted officials in New Jersey, who said jurisdiction lay in Collin County, Texas because that is where Franklin’s body was found. The Collin County District Attorney’s Office rejected the case again on March 30, 1998 due to concerns about jurisdiction. In 2002, the Richardson police again presented the case to the district attorney’s, and this time the Collin County District Attorney accepted the case. Appellant was indicted for Franklin’s murder on May 1, 2002, and his case came to trial on March 15, 2004. After his release on March 27, 1995 from the charge of Franklin’s murder, appellant remained incarcerated on other charges, and he has been continuously incarcerated since his arrest in November 1994. He was sentenced to life imprisonment in 1997 for a murder conviction in Cooke County.

In Barker v. Wingo, the Supreme Court laid out the requirements for proving a violation of the right to a speedy trial. 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In that case, the defendant was arrested shortly after the crime on July 20, 1958, was indicted on September 15, 1958, and his trial began on October 9, 1963. Id. at 516-18, 92 S.Ct. 2182. The Court referred to the delay between the defendant’s arrest and his trial as the period of Sixth Amendment right-to-speedy-trial concern. See id. at 520, 533, 92 S.Ct. 2182. Where arrest and charging occur in close succession, the test set out in Barker is appropriate. See, e.g., Harris v. State, 827 S.W.2d 949 (Tex.Crim.App.1992) (.Barker test applied in ease where defendant arrested and taken to police station where capital murder accusation was explained to him). However, when charges are initially dismissed, and no formal charges are pending, the Supreme Court has made clear that the Speedy Trial Clause provides no protection.

In United States v. MacDonald, the defendant, a captain in the United States Army, was suspected of murdering his wife and children. 456 U.S. 1, 3-4, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982). On April 6, 1970, the defendant was confined to quarters, and he was formally charged in the military court with murder on May 1, 1970. Id. at 4, 102 S.Ct. 1497. On October 23, 1970, all charges against the defendant were dismissed, and on December 5, 1970, the defendant was honorably discharged from the army. Id. at 5, 102 S.Ct. 1497. Although all military charges had been dismissed and the defendant had been discharged, the investigation against the defendant continued, and a grand jury-returned an indictment against him in January 1975. Id. The defendant moved to dismiss the indictment on the ground that the delay in bringing him to trial violated his Sixth Amendment right to a speedy trial. Id. In MacDonald, the Supreme Court explained the different protections provided by the Fifth Amendment’s Due Process Clause and the Sixth Amendment’s Speedy Trial Clause. Id. at 7-9, 102 S.Ct. 1497. The Due Process Clause, not the Speedy Trial Clause, provides protection for any delay before an arrest or indictment; the Speedy Trial Clause provides protection for delay between arrest and indictment and between indictment and trial. Id. at 7, 102 S.Ct. 1497. However, “[o]nce charges are dismissed, the speedy trial guarantee is no longer applicable.” Id. at 8, 102 S.Ct. 1497. Any delay between the dismissal of one set of charges and the bringing of another implicates the Due Process Clause, not the Speedy Trial Clause. Id. at 7, 102 S.Ct. 1497. Thus, the Court held the period between the dismissal of the defendant’s military charges and his subsequent indictment in the civilian courts was not subject to the protections of the Speedy Trial Clause even though the defendant remained a suspect during this period. Id. at 10, 102 S.Ct. 1497. “Once the charges instituted by the Army were dismissed, MacDonald was legally and constitutionally in the same posture as though no charges had been made.” Id.

“[T]he Sixth Amendment right of the accused to a speedy trial has no application beyond the confines of a formal criminal prosecution.” Doggett v. United States, 505 U.S. 647, 655, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). In this case, appellant came under the “confines of a formal criminal prosecution” for Franklm’s murder on December 15, 1994 when the arrest warrant was delivered to the Dallas County officials and a “hold” was placed on appellant. However, when the “hold” was released and all charges were dismissed on March 27, 1995, “the speedy trial guarantee [was] no longer applicable.” MacDonald, 456 U.S. at 8, 102 S.Ct. 1497. From then until his indictment ón May 1, 2002, the Speedy Trial Clause had no application.

In the trial court and in this Court, appellant complains only of the pre-indictment delay. Accordingly, we need not consider whether any post-indictment delay violated the Speedy Trial- Clause. Because the pre-indictment delay was not subject to the protections of the Speedy Trial Clause, the trial court did not err in denying appellant’s motion to dismiss. Appellant’s motions and arguments in the trial court and his briefing on appeal do not assert that the pre-indictment delay violated the Due Process Clause. Accordingly, that issue is not before us. See West v. State, 121 S.W.3d 95, 114 (Tex.App.-Fort Worth 2003, pet. ref'd) (failure to object on ground of violation of constitutional right to due process waives that ground); King v. State, 17 S.W.3d 7, 23 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (op. on motion for reh’g) (failure to brief due process claim on appeal waives error). We overrule appellant’s first issue.

SCIENTIFIC EVIDENCE

In the next four issues, appellant complains of the trial court’s admission of scientific evidence, specifically GPS records showing the location of appellant’s truck at various times and testimony concerning DNA population frequency statistics.

Rule of evidence 702 governs the admission of expert scientific evidence:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

Tex.R. Eved. 702. Before admitting expert scientific testimony, the trial court must determine whether the testimony is sufficiently rehable and relevant to help the jury reach accurate results and whether the expert witness is competent to testify as an expert on the subject for which his testimony is proffered. See id.; Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App.1992). In Kelly, the court of criminal appeals applied “common sense” and determined that for any scientific evidence to be admissible, it must satisfy three criteria: “(a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question.” Kelly, 824 S.W.2d at 573. The proponent of the evidence has the burden of proving its reliability by clear and convincing evidence. Id.

In Kelly, the court of criminal appeals provided a non-exclusive list of factors to be considered in determining whether scientific evidence is reliable:

(1) the extent to which the underlying theory and technique are accepted as valid by the relevant scientific community;
(2) the qualifications of the expert testifying;
(3) the existence of literature supporting or rejecting the underlying scientific theory and technique;
(4) the potential rate of error in the technique;
(5) the availability of other experts to test and evaluate the technique;
(6) the clarity with which the underlying scientific theory and technique can be explained to the court; and
(7) the experience and skill of the person who applied the technique on the occasion in question.

Id.

Whether to admit scientific evidence is a decision within the discretion of the trial court, and absent an abuse of discretion, the reviewing court will not overturn that decision. Mata v. State, 46 S.W.3d 902, 908 (Tex.Crim.App.2001); Griffith v. State, 983 S.W.2d 282, 287 (Tex.Crim.App.1998). If the trial court’s decision is within the “zone of reasonable disagreement,” there is no abuse of discretion and the decision will be upheld. Sexton v. State, 93 S.W.3d 96, 99 (Tex.Crim.App.2002).

GPS Records

In his second issue, appellant asserts the trial court erred by admitting evidence of GPS records because the sponsoring witness was not a qualified expert and the records were not shown to be reliable.

The presentation of the GPS records took two forms. First, State’s exhibit 63 is a spreadsheet showing the latitude and longitude coordinates, to the one-hundredth of a second, for appellant’s truck at specific times, and the name, distance, and direction of the nearest city from that location. Second, State’s exhibit 64 is a map of the United States with a line indicating appellant’s route as shown by the coordinates in State’s exhibit 63 with circles on the map indicating the locations of the coordinates on State’s exhibit 63.

The State used two witnesses to gain admission of the GPS records: Bret Fen-ster, who testified how GPS worked and about its reliability, and Kori Easterwood, an employee of the trucking company in 1993 who testified that State’s exhibit 63 was a business record. Easterwood also testified to ways in which the company verified the reliability of the GPS equipment.

Fenster testified outside the presence of the jury. He testified that he worked for Collin County in “GIS” and used GPS daily in his work, such as to prepare maps and to pinpoint the location of residences for purposes including the 911 system. He explained that GPS involves a series of orbiting satellites which transmit signals to Earth. The GPS receiver picks up the signals from several satellites, compares the different lengths of time it took the signal from each satellite to reach the receiver, and uses that information to triangulate the receiver’s position on Earth and provide latitude and longitude coordinates. He testified that GPS is accepted as valid in many civilian as well as military applications requiring positioning data, and that the acceptance of its reliability • is analogous to that of an electronic ■ calculator. Fenster stated that at the time he was testifying, March 2004, GPS was accurate to within a meter, and in 1993 it was accurate to within a kilometer.

Appellant argues Fenster was not qualified to testify about the reliability of GPS because his experience with GPS was in his job and because he lacked a “formal background” in GPS technology. Appellant cites no authority requiring a witness testifying about the reliability of GPS to have a “formal background” in GPS. Furthermore, the record does not show he lacked a “formal background” in GPS; Fenster testified he had a bachelor’s degree in geography, and his testimony demonstrated a knowledge of how GPS worked and its reliability. Contrary to appellant’s argument, we conclude the trial court could decide that a geographer who uses GPS daily in his job is qualified to testify about the reliability, of GPS technology. Fenster’s testimony demonstrated that GPS-figured coordinates are accepted as rehable in his field just as arithmetical sums on an electronic calculator are commonly accepted as reliable; and although GPS was not as accurate in 1993 as it was at the time of trial eleven years later, it was still accurate to within a kilometer. We conclude the trial court did not err in determining Fenster was qualified to testify about the reliability of GPS.

Easterwood testified she was the safety administrative coordinator for the trucking company and dealt with “[ajnything that would happen with our drivers or equipment anywhere within the country.” Easterwood testified that each of the trucks had a Qualcomm computer with a GPS receiver that would transmit the truck’s position to the company, usually about once every hour. State’s exhibit 63 was the company’s record of that information for appellant’s truck for the two weeks he worked for the company, October 29 to November 12, 1993. She testified that she was also able to verify the trucks’ positions through fuel purchases, ATM card use, the drivers’ check-in calls, and reports from the drivers and the customers about the arrival and departure times of the trucks. For example, the company’s records about two of appellant’s loads, State’s exhibits 59 and 60, included the arrival and departure times at the shipping and receiving points and correspond to the GPS locations and times shown for appellant’s truck in State’s exhibit 63. In Easterwood’s experience using the system at the trucking company, the computer system either worked and was accurate or it did not work and “doesn’t pull any data.”

Easterwood was not qualified as an expert on GPS. Her purpose was to explain how the GPS data, which Fenster’s testimony showed was rehable, became a business record of the trucking company. Furthermore, her testimony established her understanding of the many systems the company used to track its drivers. Her testimony about State’s' exhibits 59 and 60 showing appellant’s arrival and departure times at the shippers and receivers helped verify the accuracy of the GPS data in State’s exhibit 63. Her testimony also showed that the system of transmitting and receiving the GPS data was automatic. She also testified that the drivers could prevent the transmission of the data by covering the transmitter, but she testified she has never known the information transmitted to be inaccurate.

We conclude Fenster’s and Easter-wood’s testimony together was sufficient to establish by clear and convincing evidence the reliability of the GPS data. We hold the trial court did not err in admitting the evidence. We overrule appellant’s second issue.

DNA Statistics

In his third through fifth issues, appellant asserts the trial court erred in overruling his objections to the DNA experts’ testimony regarding the statistical interpretation of the DNA tests.

Van Winkle

In his third issue, appellant complains of the statistical evidence of the likelihood that the DNA found under Franklin’s fingernails came from appellant. DNA analyst Carolyn Van Winkle stated in her report that appellant was a potential contributor of the DNA found in the right fingernail clippings taken from Franklin and that Franklin was excluded from being a contributor. Van Winkle also stated in her report that “[t]he probability of an unrelated individual selected at random having the [DNA markers] obtained from [Franklin’s] right fingernail clippings is one in 150 thousand Caucasians, one in 400 Blacks and one in 78 thousand Hispanics.” Because appellant is “Blaek[ ],” “one in 400 Blacks” is the relevant statistic.

Van Winkle testified she worked for the Southwestern Institute of Forensic Sciences, and she tested the fingernail clippings. Her report on the testing is dated June 1997. Van Winkle’s DNA analysis tested for alleles at six different loci. Each of these alleles appears in the population in different proportions. Van Winkle used the population data from the National Research Council (NRC), which she testified used “conservative estimate^]” of the frequency of each of the alleles in the population. During voir dire examination by defense counsel, Van Winkle testified as to how she calculated the “one in 400 Blacks” statistic:

Q. How is it done? How do you go from that data to one in 400?
A. It’s done by calculating — using those allele frequencies in each of the databases, by calculating the genotype frequency. We use the NRC, the National Research Council, recommendations for conservativeness in that we use the beta factor. We incorporate that into any homozygous type that we have, and that just reflects that possible identical by descent issue on those particular items.'
And it’s a standard way of calculating genotype frequencies. Each one of those are — is multiplied together over the six alleles that we had typings on and ultimate number is detected, which is reflected in that one in 400 number.
Q. What’s the formula?
A. I’m sorry. What formula?
Q. The formula for coming up with a number based on what you found here.
A. If you use the product rule, the product of each of the genotype frequencies at the six different loci.
Q. Did that formula come up with that number account for linkage between the different alleles?
A. These particular six alleles are not linked.
Q. How do you know that?
A. They are chosen — because their particular chromosome location is known, the studies have been shown that none of those six is linked to each other.
Q. Which—
A. They’re on different chromosomes.

Appellant complains there was no testimony explaining whether multiplication was an accurate, accepted, or valid method of calculating the statistic; no testimony explaining what a “beta factor” is; and no testimony of the reliability or accuracy of the National Research Council’s population database. Appellant did not point out these specific complaints about the predicate to the trial court; accordingly, he has not preserved error. See Tex.R.App. P. 33.1(a)(1); Moore v. State, 109 S.W.3d 537, 542 (Tex.App.-Tyler 2001, pet. ref'd).

Even if preserved, appellant’s complaints lack merit. Van Winkle testified she is a registered medical technologist and has a master’s degree with “major [s]” in biology and molecular biology and a “specialty” in blood bank technology. She has received training in forensic DNA analysis from the FBI academy, was a visiting scientist at the National Institute of Standards in Technology during the development of the first DNA technology, and has been an accredited DNA analyst since the,inception of DNA testing in the late 1980s. She testified she has been trained in the statistical comparison and interpretation of DNA profiling results. She also testified she has performed “[m]aybe a million” DNA analyses. Van Winkle was, clearly, a highly qualified expert on all aspects of DNA analysis, including statistical interpretation of the DNA profile. Van Winkle testified that multiplication was the “standard way of calculating genotype frequencies.” The trial court could accept her expert testimony on this issue. She explained that multiplication of the frequencies for each allele is a permitted method of determining the overall statistical likelihood of a person having all the alleles because they are unrelated. See Watts v. State, 733 So.2d 214, 225-26 (Miss.1999) (product rule approved by FBI in 1993 and by NRC in 1996 as method of calculating population frequency statistics; all state courts to have considered product rule since FBI and NRC approval have admitted evidence using it, citing cases from 11 other states). Likewise, in the absence of any challenge to the veracity of the NRC’s population frequency database, the trial court could accept Van Winkle’s reliance on its numbers. As for the unexplained “beta factor,” nothing in the record explains the relevance of this factor; appellant did not question Van Winkle about it or object to the absence of any description of it.

We conclude appellant has failed to show the trial court abused its discretion in overruling his objection to Van Winkle’s testimony and report on the population frequency statistic of the DNA she tested. We overrule appellant’s third issue.

Swienton

In his fourth issue, appellant complains of the trial court’s overruling his objection to Anjali Swienton’s testimony concerning the probability that the DNA found under Franklin’s fingernail clippings belonged to appellant.

In her testimony and in her August 1997 report, Swienton stated she tested the scraping from the fingernail Van Winkle had previously tested at four loci different from the six loci at which Van Winkle had tested. In this testing, Franklin was again excluded as a donor of the DNA tested, and appellant was included in the class of potential donors of the DNA. Swienton calculated the statistical likelihood of unrelated persons having all ten of the DNA characteristics shown in Swienton’s and Van Winkle’s analysis at one in 5.9 million in the African-American population.

Swienton testified that she had degrees in molecular biology and forensic sciences and had performed about 500' DNA analy-ses in criminal cases while working at Cell-mark Laboratories, now known as Orchid-Cellmark. She testified that the ten loci which she and Van Winkle tested were independent, and in support of this fact she “relied on validation from the FBI laboratory, as well as internal validation and published papers.” She stated that her calculation of one in 5.9 million was a “statistical estimate.” Swienton did not know on which chromosomes the ten loci were found. She then testified she did not know whether any of them were on the same chromosome, but she later testified she could say “with confidence” that the ten loci were each on a different chromosome. Defense counsel stated that if the loci were on the same chromosome, but close together, then that would affect the inheritability rate as the genes at those loci would be more likely to be passed on together instead of independently. Defense counsel also stated that if the loci were on the same chromosome but separated, they could still be more likely to be passed on together because of “crossing over” during the “meiotic process.” Swienton testified that for the purpose of what she did, crossing over was “not relevant.” She also testified that even if crossing over occurred, it would have only a slight affect on the inheritability rate: “it would not affect a statistic in the millions to make it, you know, in the thousands.” Swienton also testified, “the FBI, Cell-mark, other private laboratories and state laboratories, all do the — the same type of statistical frequency calculation, and I believe that it has — there’s ample documentation that all ten of those loci are independently inherited.” Swienton did not have the documents with her to prove the independent inheritability, but she stated, “It’s all been documented.”

At trial, appellant objected to Swienton’s population frequency calculation on the ground that her testimony failed to establish the reliability of her conclusions because of the possibility that two or more of the ten loci tested were on the same chromosome, affecting the independence of their inheritability and making the use of the product rule inappropriate. Appellant brings this same argument on appeal and argues Swienton’s failure to bring forth the documentation proving the independent inheritability of each of the ten loci made her testimony unreliable. The State did not have to prove in court the independent inheritability of the ten loci; it had to prove that the scientific evidence was “reliable and therefore relevant.” Kelly, 824 S.W.2d at 573. The State did so by Swien-ton’s testimony that her frequency calculations were the same as used by the FBI, the laboratory for which she worked, and other private and public laboratories. She testified that the FBI sets the standards for the industry, that it “accepted this multiplication statistic for this particular set of DNA markers, and that that is predicated on them not being on the same chromosomes.” This testimony shows the scientific theory and technique Swienton applied in making her population frequency calculation was accepted as valid in the scientific community. She also testified to the existence of documentation (i.e., literature) supporting the underlying scientific theory. Given this testimony, and the absence of any contrary expert testimony, we conclude the reliability of Swienton’s population frequency calculation is shown by clear and convincing evidence.

Appellant also argues Swienton did not identify which database she used to obtain her population frequency statistics and that the absence of this testimony rendered her conclusion unreliable. Appellant did not question Swienton on this subject, nor did he object at trial to the evidence on this ground, so this argument is not preserved for appellate review. Tex. R.App. P. 33.1(a)(1); Moore, 109 S.W.3d at 542.

Appellant has failed to show the trial court abused its discretion in overruling appellant’s objections to Swienton’s testimony. We overrule appellant’s fourth issue.

Ratliff

In his fifth issue, appellant asserts the trial court abused its discretion in admitting the testimony and report of Dawn Ratliff regarding the statistical frequency of the DNA of the objects found on or near Franklin’s body. In 2003, Ratliff tested the sock found in Franklin’s mouth, the shoelace and wire wrapped around Franklin’s neck, and the cigarette butt found near Franklin’s body. The DNA found on the items was consistent with appellant’s DNA. Ratliff calculated that in the African-American population, the DNA recovered from the sock occurred with a frequency of one in 41.3 million unrelated individuals. The testing of the shoelace led to a result that the DNA occurred with a frequency in the African-American population of one in 85 unrelated individuals. The DNA recovered from the wire showed only that it was from a male. The cigarette butt contained a mixture of DNA consistent with appellant’s DNA as the major donor and Franklin’s DNA as the minor donor. When the mixture as a whole was considered, the statistical frequency in the African-American population was one in 787 unrelated individuals. When only the DNA from the major donor (i.e., the DNA consistent with appellant’s) was considered, the statistical frequency in the African-American population was one in 118 billion unrelated individuals.

Ratliff testified she had a masters of science degree. She had worked for Orchid-Cellmark for about three years where she did serology and DNA testing. Orchid-Cellmark’s clients included many private and public entities around the country, and its work included the State of New York’s rape kits, the Houston Police Department’s cases, and the typing of the victims of the World Trade Center disaster. Orchid-Cellmark was accredited by four different entities, including the Texas Department of Public Safety. Ratliff is tested every six months on her proficiency in DNA analysis, and she has passed all those tests.

Ratliff testified that the DNA test she used tests thirteen loci. She stated this test is accepted in the scientific community and has been subjected to peer review around the world. It is “the most widely accepted used DNA identification method that we have in forensic testing today.” In determining population frequency, Orchid-Cellmark used the FBI’s population statistics, which Ratliff testified were widely accepted and approved by accredited laboratories besides the FBI.

Appellant asserts the trial court abused its discretion in admitting Ratliffs testimony of population frequency statistics because the State failed to demonstrate that the formula Ratliff used to calculate the statistics and the database on which Rat-liffs calculations were based were reliable. At trial, appellant’s rule 702 objection was, “I object under 702 as far as the statistical analysis of the data generated.” This objection constituted a general objection and did not preserve error. Tex.R.App. P. 33.1(a)(1); Moore, 109 S.W.3d at 542; Scherl v. State, 7 S.W.3d 650, 652 (Tex.App.-Texarkana 1999, pet. ref'd). Appellant never questioned Ratliff concerning the independence of the loci tested. Furthermore, Ratliffs testimony about the wide acceptance of the FBI’s population statistics that she used was sufficient to establish their reliability.

We conclude clear and convincing evidence supported the trial court’s decision to admit Ratliffs population frequency statistics, and appellant has not shown the trial court abused its discretion in admitting that evidence. We overrule appellant’s fifth issue.

CUMULATIVE ERROR

In his sixth issue, appellant asserts that even if each individual error does not warrant a new trial, the cumulative effect of the errors warrants a new trial. As discussed above, appellant has failed to show the trial court erred. Accordingly, no cumulative error is shown. We overrule appellant’s sixth issue.

We affirm the trial court’s judgment.

      . See Tex. Pen.Code Ann. § 1.04(a), (b) (Vernon 2003) (territorial jurisdiction); TexCode Crim. Proc. Ann. art. 13.05 (Vernon 1979) (venue over homicide committed outside Texas).

      . In phrasing his third, fourth, and fifth issues, appellant asserts the DNA experts testified the DNA found in the fingernail clippings and the cigarette butt was appellant’s DNA. They testified that appellant’s DNA was consistent with the DNA found in the fingernail clippings and cigarette butt, and they then stated the frequency with which the combination of the DNA markers they found occurred in the population among unrelated persons. They did not testify the DNA actually came from appellant.


source: Caselaw Access Project

author: Justice LANG-MIERS.

license: Public Domain

text:
    Candace SANDLES, as the Administratrix of the Estate of Sarah Ann Williams, Deceased, Appellant v. Gary HOWERTON, Appellee.
    No. 05-04-01077-CV.
    Court of Appeals of Texas, Dallas.
    May 27, 2005.

      Jay C. English, Sarah Annette Rasparí-an, English & Associates, P.C., Dallas, for appellant.
    Brenda Neel Hight, Lance E. Caugh-field, Fletcher & Springer, L.L.P., Dallas, for appellees.
    Before Justices WRIGHT, FITZGERALD and LANG-MIERS.
   OPINION

Opinion by

Justice LANG-MIERS.

In this medical, malpractice case, we address whether the trial court abused its discretion by refusing to grant appellant a thirty-day grace period within which to file her expert report, by dismissing her claims with prejudice - pursuant to the Medical Liability and Insurance Improvement Act of Texas (the Act) and by awarding attorneys’ fees against appellant as sanctions. We affirm the trial court’s judgment.

BACKGROUND

Candace Sandies, as administratrix of the estate of Sarah Ann Williams, deceased, filed this health care liability claim on March 5, 2003 alleging that Ashford Hall Nursing Home, the Lion Hospice Foundation, two doctors and Gary Hower-ton, a family nurse practitioner, were negligent in providing medical care for Williams, resulting in her death. Williams’ death allegedly resulted from a series of falls over several months at the nursing home where she was a patient.

Under article 4590i, section 13.01(d) of the Act, Sandies was required on or before September 1, 2003 to either dismiss her claims voluntarily or provide opposing counsel with an expert report showing, among other things, how each defendant physician or health care provider failed to meet an applicable standard of care. San-dies furnished an expert report of registered nurse Joy Souther on September 3, 2004 to Howerton’s co-defendants but did not furnish the report to Howerton on that date. It appears Howerton was not served with citation in the lawsuit until after that date because Howerton filed his answer on October 8, 2004. He received a copy of the report on December 31, 2004.

In March 2004, Howerton filed a motion to dismiss Sandies’ claims against him alleging she failed to comply with the expert report requirements of article 4590i and requesting attorneys’ fees under section 13.01(e). In her response to the motion to dismiss, Sandies moved for an extension of time to file her expert report. At a combined hearing, the trial court denied San-dies’ request for an extension and granted Howerton’s motion to dismiss, but did not state the basis for its rulings.

Howerton then filed a combined motion for attorneys’ fees and to sever his case from the other defendants. In response to this motion, Sandies asked the court to reconsider its dismissal and grant her a thirty-day extension to file an expert re port in compliance with article 4590i section 13.01. Following the hearing, the trial court denied the motion for reconsideration and entered a final judgment in favor of Howerton granting the severance and awarding him $35,000 in attorneys’ fees, court costs, and $22,500 in attorneys’ fees contingent on whether appellant is unsuccessful on appeal, plus five percent post-judgment interest. Sandies timely appealed.

Discussion

Sandies raises three issues on appeal: (1) the trial court erred in dismissing her claim against Howerton without allowing her an extension to file an amended expert report, (2) the trial court erred in finding her expert’s report was insufficient as a matter of law, and (3) the trial court erred in awarding attorneys’ fees to Howerton. We have found no ruling in the record where the trial court held San-dies’ expert report was insufficient as a matter of law. In fact, the trial court did not state the basis for its rulings. In that situation, we will uphold the court’s judgment on any valid legal theory supported by the ■ record. See City of Garland v. Booth, 895 S.W.2d 766, 768-69 (Tex.App.Dallas 1995, writ denied); see also Town of Sunnyvale v. Mayhew, 905 S.W.2d 234, 243 (Tex.App.-Dallas 1994), rev’d on other grounds by Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex.1998); Dalrymple v. Univ. of Tex. Sys., 949 S.W.2d 395, 400 (Tex.App.-Austin 1997), rev’d on other grounds by Brewerton v. Dalrymple, 997 S.W.2d 212 (Tex.1999); Pepe Int’l Dev. Co. v. Pub Brewing Co., 915 S.W.2d 925, 929 (Tex.App.-Houston [1st Dist.] 1996, no pet.); Gessmann v. Stephens, 51 S.W.3d 329, 335 (Tex.App.-Tyler 2001, no pet.). Because a noncompliant expert report is one basis upon which the trial court could have ruled, we will address Sandies’ argument.

1. Adequacy of the expert report

We review a trial court’s determination of the adequacy of an expert report under an abuse of discretion standard. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001); Copeland v. Ayers, 138 S.W.3d 652, 654 (Tex.App.-Dallas 2004, pet. denied); Hansen v. Starr, 123 S.W.3d 13, 19 (Tex.App.-Dallas 2003, pet. denied). The trial court must grant a motion to dismiss a claimant’s health care liability claim unless the claimant shows she made a good faith effort to comply with the requirements of section 13.01. Eichelberger v. St. Paul Med. Ctr., 99 S.W.3d 636, 638 (Tex.App.-Dallas 2003, pet. denied); Fischer v. Tenet Hosps., Ltd., 106 S.W.3d 110, 115 (Tex.App.-Dallas 2002), rev’d on other grounds by Horizon/CMS Healthcare Corp. v. Fischer, 111 S.W.3d 67 (Tex.2003).

Article 4590i section 13.01(r)(6) defined 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 1, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws at 987 (repealed 2008).

An expert report filed under section 13.01 must discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct she has called into question and to provide a basis for the trial court to conclude the claims have merit. Palacios, 46 S.W.3d at 878-79; Eichelberger, 99 S.W.3d at 638-39; Fischer, 106 S.W.3d at 116. “A report that merely states the expert’s conclusions about the standard of care, breach, and causation does not fulfill [the purposes of the Act].” Palacios, 46 S.W.3d at 879. A report that omits any of the statutory requirements is not a good faith effort to comply with the Act. Id.

We have reviewed Souther’s report and conclude it is not a good faith effort to comply with the definition of an expert report. Souther’s report is three and one-half pages describing Williams’ mental and physical condition and incidents occurring at the nursing home over a period of several months. The report refers generally to acts that “the staff,” “the nursing staff,” and “the nurses” did or failed to do. Concerning the breach of the standard of care, Souther states:

The nursing staff in their failure to recognize, address and implement the most basic precautions in protecting Mrs. Williams from falls and the resulting injuries, fell below the nursing standard of care and contributed to the acute injury of a subdural hematoma and her resulting demise.

Souther’s report refers specifically to Howerton only once: “Progress Note of G. Howerton on January 29, 2001, states, ‘un-witnessed fall, found on floor’.” It does not inform Howerton of the care expected of him or of the manner in which he failed to provide that care. See Fischer, 106 S.W.3d at 116. Consequently, Souther’s report is a conclusory statement that Williams should have received different treatment and was injured as a result. See Eichelberger, 99 S.W.3d at 639. We overrule Sandies’ second issue.

2. Request for extension under section 13.01

Sandies also argues the trial court erred by not granting her a thirty-day extension to correct any deficiency in her expert’s report because her failure to comply with section 13.01 was the result of an accident or mistake. We review a trial court’s decision not to grant a claimant a grace period to file an expert report under an abuse of discretion standard. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003); Ayers, 138 S.W.3d at 654.

Sandies filed three motions regarding experts but only the second motion concerns us on appeal. Her second motion was filed May 5, 2004 and was designated a request for extension under section 13.01(f). However, Sandies argues on appeal that this motion, although designated as a subsection (f) motion, was argued also as a subsection (g) motion. 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 1, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws at 986 (repealed 2003).

In the conclusion of her motion, Sandies states:

Plaintiff did not intentionally miss the deadline for designation of expert, nor was the deadline ignored due to eon- . scious indifference, but was missed as the result of an accident and/or a mistake. For the reasons described herein, Plaintiff respectfully requests the Court GRANT her Motion for Rule 13.01(f) Extension to File Expert Report, whereby for good cause shown after motion and hearing, the court may grant one (30) day extension to designate her expert.

Additionally, at the hearing on the motion, Sandies argued her failure to comply with section 13.01 was not intentional or because of conscious indifference, the standard under subsection (g). Sandies apparently confused the burdens under these two subsections. Because a motion should be governed by its substance and not merely by its title, we will construe Sandies’ motion as a request for a thirty-day grace period also under subsection (g). See Rittenhouse v. Sabine Valley Ctr. Found., Inc., 161 S.W.3d 157, 164 (Tex.App.-Texarkana 2005, no pet. h.) (motion for extension construed under both subsections (f) and (g) because motion, while quoting the standard for subsection' (f), also alleged facts sufficient to constitute accident or mistake under subsection (g)).

Section 13.01(g) has been interpreted as a “ ‘safety valve’ to prevent the forfeiture of claims through an accident or mistake that causes a party to fail to comply with subsection (d) in the first instance.” Broom v. MacMaster, 992 S.W.2d 659, 662-68 (Tex.App.-Dallas 1999, no pet.). Courts have construed that “some excuse, though not necessarily a good one, is sufficient under subsection (g) ‘to warrant an extension of time to file the expert report, so long as the act or omission causing the failure to file the report was, in fact, accidental.’ ” Landry v. Ringer, 44 S.W.3d 271, 275 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (quoting Horsley-Layman v. Angeles, 968 S.W.2d 533, 536 (Tex.App.-Texarkana 1998, no pet.)). “Conscious indifference requires more than negligence.” Roberts v. Med. City Dallas Hosp., Inc., 988 S.W.2d 398, 403 (Tex.App.-Texarkana 1999, pet. denied). In determining whether a claimant acted intentionally or with conscious indifference, we look to the claimant’s knowledge and acts. Horsley-Layman, 968 S.W.2d at 536. In this context, an accident or mistake “is characterized by inadequate knowledge of the facts or an unexpected happening that precludes compliance” while conscious indifference is the failure to take action ‘“which would seem indicated to a person of reasonable sensibilities under similar circumstances.’ ” Pfeiffer v. Jacobs, 29 S.W.3d 193, 198 (Tex.App.-Houston [14th Dist.] 2000, pet. denied) (quoting Prince v. Prince, 912 S.W.2d 367, 370 (Tex.App.-Houston [14th Dist.] 1995, no writ)). However, when a report omits one of the required statutory elements, a mistaken belief that the report complied with section 13.01 will not negate a finding of intentional or conscious indifference. Fischer, 111 S.W.3d at 68; Walker, 111 S.W.3d at 64-65.

At the hearing, Sandies’ attorney testified that he was “immanently [sic] familiar with the requirements of Section 13” which required him to produce to Howerton a report “calling into question the standard of care, making a specific criticism of the standard of care; and also, providing causation to the damages that are sought in the lawsuit.” He primarily argued that Souther, as a registered nurse, was qualified to render an expert opinion concerning the standard of care and conduct of a nurse practitioner because the only distinction between the two professionals is that a nurse practitioner may write prescriptions and that Sandies’ criticism of Hower-ton’s abilities related only to “generalized nursing care.” At the same hearing, San-dies’ attorney also argued he did not know Howerton was a family nurse practitioner and therefore did not know the exact type of expert report to furnish.

Howerton’s attorney rebutted with evidence that as early as June 2003, Sandies’ attorney knew Howerton was a family nurse practitioner because, among other reasons, he was listed as such in Sandies’ own responses to discovery; he wrote San-dies’ attorney a letter in November 2003 advising that Howerton is a registered nurse/nurse practitioner and a clinical nurse specialist; and he wrote Sandies’ attorney a letter in January 2004 advising that the expert report did not comply with section 13.01 and that Sandies’ lawsuit was subject to dismissal.

The record demonstrates that Sandies’ attorney knew that Howerton was a nurse practitioner prior to the deadline for furnishing the expert report. And the letter from Howerton’s attorney in January 2004 attempted to warn Sandies’ attorney that Souther’s report did not meet the requirements of section 13.01. See Schorp v. Baptist Mem’l Health Sys., 5 S.W.3d 727, 733 (Tex.App.-San Antonio 1999, no pet.). This letter was sent two months before Howerton filed his motion to dismiss, yet Sandies’ attorney did not attempt to amend the report or request an extension until after Howerton moved to dismiss Sandies’ claims. Sandies’ attorney knew the requirements of section 13.01 and argued that Souther’s report substantially complied with those requirements. As we have already concluded, Souther’s report was not a good faith effort to comply with section 13.01. Under these facts, we conclude Sandies’ attorney’s mistaken belief that the expert report did comply is not the result of an accident or mistake. As a result, the trial court did not abuse its discretion in denying Sandies’ motion’ for extension. We overrule Sandies’ first issue.

3. Attorneys’ fees

Sandies argues in her third issue that the court erred in awarding attorneys’ fees because the fees are unreasonable and unnecessary and because the evidence was legally and factually insufficient to support the award.

When dismissing a claim under section 13.01(d), the trial court must enter an order awarding as sanctions against the claimant the reasonable attorneys’ fees and court costs incurred by that defendant. See Act of May 1, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws at 986 (repealed 2003). We review a trial court’s award of attorneys’ fees under an abuse of discretion standard. See Strom v. Mem’l Hermann Hosp. Sys., 110 S.W.3d 216, 226 (Tex.App.-Houston [1st Dist.] 2003, pet. denied); see also Marquez v. Providence Mem’l Hosp., 57 S.W.3d 585, 596 (Tex.App.-El Paso 2001, pet. denied). Under an abuse of discretion standard, legal and factual insufficiency issues are not independent grounds of error but are relevant factors in assessing whether the trial court abused its discretion. See Doyle v. Doyle, 955 S.W.2d 478, 479 (Tex.App.-Austin 1997, no pet.); see also Wilemon v. Wilemon, 930 S.W.2d 290, 293-94 (Tex.App.-Waco 1996, no writ). We will not reverse the judgment of the trial court absent a clear abuse of discretion. Cordova v. Southwestern Bell Yellow Pages, Inc., 148 S.W.3d 441, 445-46 (Tex.App.-El Paso 2004, no pet. h.).

Section 13.01(e) authorizes the recovery, of “reasonable” attorneys’ fees. See Act of May 1,1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws at 986 (repealed 2003); see also Cordova, 148 S.W.3d at 446. In determining the reasonableness of an award of attorneys’ fees, the court considers: (1) the time and labor involved, novelty and difficulty of the questions involved, and the skill required; (2) the likelihood that the lawyer will be precluded from accepting other employment; (3) the fee customarily charged for similar services; (4) the amount involved and results obtained; (5) time limitations imposed by the client or the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and abilities of the lawyers performing the services; and (8) whether the fee is fixed or contingent. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.1997); see Marquez, 57 S.W.3d at 596; Academy Corp. v. Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 741-42 (Tex.App.-Houston [14th Dist.] 2000, no pet.); Cordova, 148 S.W.3d at 448. However, evidence on each of these factors is not necessáry to determine the amount of an attorneys’ fee award. Hagedorn v. Tisdale, 73 S.W.3d 341, 353 (Tex.App.-Amarillo 2002, no pet.). The court may also consider the éntire record and the common knowledge of the lawyers and judges. Id. The nature and extent of the services performed is typically expressed by the number of hours and the hourly rate. Hagedorn, 73 S.W.3d at 353-54; Pitts v. Dallas County Bail Bond Bd., 23 S.W.3d 407, 413-14 (Tex.App.-Amarillo 2000, pet. denied). But there is no rigid requirement that both facts must be in evidence to make a determination of attorneys’ fees. Hagedorn, 73 S.W.3d at 354.

In this case, two attorneys for Howerton testified at length about the nature of the work performed and that the fees charged were reasonable. Gay Tem-pleton testified that she was a nurse prior to becoming an attorney and that she had developed an expertise in medical malpractice cases. She testified that she analyzed and organized voluminous medical records, located medical experts and visited with them concerning the case, and prepared reports to the clients. Brenda Hight testified that she prepared the case as if it were going to trial and that the contentious nature of the case required more work than usual. Hight testified that San-dies’ lawsuit included claims for wrongful death and punitive damages. She also testified to the reasonableness of attorneys’ fees on appeal based on her experience in appellate matters. Sandies’ attorney cross-examined each attorney on the details of the work performed.

Following the hearing, the court awarded Howerton $35,000 in attorneys’ fees and fees contingent on appellant’s unsuccessful appeal. While Howerton’s attorneys offered no testimony of the actual number of hours spent by each attorney who had devoted time to it, or the total number of hours spent on the case, appellant’s counsel cross-examined the attorney witnesses about the reasonableness of hours spent on different types of work referenced in the bills. Based on the record, we cannot conclude the evidence is insufficient to support the award of attorneys’ fees in this case. Consequently, we conclude the trial court did not abuse its discretion in its award of attorneys’ fees. We overrule Sandies’ third issue.

Conclusion

We conclude the trial court did not abuse its discretion by denying Sandies’ motions for extension to file her expert report, by dismissing her claims against Howerton with prejudice or by awarding attorneys’ fees against her in favor of Howerton. We affirm the trial court’s judgment.

      . See Act of May 1, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985-86, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 864, 884 (current version at Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001-74.507 (Vernon Supp. 2004-05)) (formerly found at Tex.Rev.Civ. Stat. Ann. art. 4590i (Vernon Supp.2003)). San-dies filed this lawsuit before the repeal of article 4590i therefore this case is governed by the provisions of article 4590i in effect at that time. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 23.02(d), 2003 Tex. Gen. Laws 864, 899.

      . Sandies’ claims against Howerton were severed and this appeal relates only to those claims.

      . Section 13.01(d) provided ”[n]ot later than the later of the 180th day after the date on which a health care liability claim is filed or the last day of any extended period established under Subsection (£) or (h) of this section, the claimant shall, for each physician or health care provider against whom a claim is asserted (1) furnish to counsel for each physician or health care provider one or more expert reports, with a curriculum vitae of each expert listed in the report; or (2) voluntarily nonsuit the action against the physician or health care provider.” See Act of May 1, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws at 985-86 (repealed 2003).

      .Section 13.01(e) provided "[i]f a claimant has failed, for any defendant physician or health care provider, to comply with Subsection (d) of this section within the time required, the court shall, on the motion of the affected physician or health care provider, enter an order awarding as sanctions against the claimant or the claimant's attorney: (1) the reasonable attorney's fees and costs of court incurred by that defendant; (2) the forfeiture of any cost bond respecting the claimant’s claim against that defendant to the extent necessary to pay the award; and (3) the dismissal of the action of the claimant against that defendant with prejudice to the claim’s refiling.” See Act of May 1, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws at 986 (repealed 2003).

      . Sandies argues we should presume harm from the failure of the trial court to issue findings of fact and conclusions of law after a proper request. Although findings are helpful and appropriate in reviewing the dismissal of claims under the Act, they are not required because the dismissal under section 13.01 is a sanction, not a trial. Mocega v. Urquhart, 79 S.W.3d 61, 63-64 (Tex.App.-Houston [14th Dist.] 2002, pet. denied). Additionally, "findings entered in support of a sanction dismissing a case [under section 13.01] are not binding on the reviewing court” as are findings entered in support of a judgment after a bench trial. Strom v. Mem’l Hermann Hosp. Sys., 110 S.W.3d 216, 220 (Tex.App.-Houston [1st Dist.] 2003, pet. denied).

      . Howerton's motion to dismiss also argued that Sandies failed to request the extensions timely. Sandies does not raise this issue on appeal.

      . The first was a motion for leave to designate expert witnesses and this motion addressed the deadline in the court’s scheduling order, not the expert report required by section 13.01. Sandies’ third request for a thirty-day grace period in which to file an amended expert report was not filed timely because it was filed nineteen days after the hearing on Howerton’s motion to dismiss. See Act of May 1, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws at 986 (repealed 2003).

      . Subsection (f) provided "[t]he 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 1, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws at 986 (repealed 2003). Subsection (f) has been interpreted to give the trial court broad discretion in determining whether good cause is shown and to limit the court's ability to extend the time to file expert reports to one thirty-day period immediately following the initial 180 days, or up to 210 days from the date the health care liability claim was filed. Landry v. Ringer, 44 S.W.3d 271, 274 (Tex.App.-Houston [14th Dist.] 2001, no pet); Pfeiffer v. Jacobs, 29 S.W.3d 193, 197 (Tex.App.-Houston [14th Dist.] 2000, pet. denied); Roberts v. Med. City Dallas Hosp., Inc., 988 S.W.2d 398, 402 (Tex.App.-Texarkana 1999, pet. denied); Estrello v. Elboar, 965 S.W.2d 754, 758 (Tex.App.-Fort Worth 1998, no pet.). A motion for an extension under section 13.01(f) filed more than 210 days after the filing date of the claim is untimely. Landry, 44 S.W.3d at 274; Pfeiffer, 29 S.W.3d at 197; Roberts, 988 S.W.2d at 402. Because Sandies filed this motion over a year after she filed her claims against Howerton, it was untimely.

      . Howerton asked the court to take judicial notice of the reasonable and customary fees in Dallas County for lawyers practicing in its court. Nothing in section 13.03(e) modifies the general rule that a party seeking attorneys’ fees must present evidence of those fees. Tibbetts v. Gagliardi, 2 S.W.3d 659, 665 (Tex.App.-Houston [14th Dist.] 1999, pet. denied); see also Marquez, 57 S.W.3d at 596; but see Tex Civ. Prac. & Rem.Code Ann. §§ 38.001, .004 (Vernon 1997) (authorizing court to take judi-dal notice of reasonableness of attorneys’ fees in actions under section 38.001). However this does not affect our analysis. Counsel for both parties referred to attorney fee bills during the hearing. We cannot tell from the record whether the trial court reviewed these bills in making its determination, but the court did have before it a summary of those bills which reflected the hours worked and hourly rates for each person working on Howerton’s case.


author: Justice MORRIS.

text:
    Lorenzo EASLY, III, Appellant v. The STATE of Texas, Appellee.
    No. 05-04-01038-CR.
    Court of Appeals of Texas, Dallas.
    May 27, 2005.

      Ted Sansom, Rockwall, for appellee.
    Gaylen Ray Sumrow, Crim. Dist. Atty., Craig Stoddart, Asst. Dist. Atty., Rock-wall, for state.
    Before Justices MORRIS, FRANCIS, and LANG-MIERS.
   OPINION

Opinion by

Justice MORRIS.

At trial, Lorenzo Easly, III was convicted of possession of marijuana in the amount of fifty pounds or less but more than five pounds. He now complains on appeal that the trial court erred by faffing to admonish him upon his plea of guilty and by not granting his motion for new trial based on juror misconduct. We affirm the trial court’s judgment.

In his first issue, appellant complains that when he changed his plea to guilty after the trial court denied his motion to suppress, the trial court failed to admonish him about the punishment range for his offense as required by Texas Code of Criminal Procedure article 26.13(a). A trial court errs if it accepts a defendant’s guilty plea without admonishing him on the punishment range for his offense. See Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App.2002); see also Tex.Code Crim. PROC. Ann. art. 26.13(a) (Vernon Supp. 2004-05). The record in appellant’s case shows the trial court did not admonish appellant about the punishment range for his offense and therefore erred.

Failure to admonish is statutory error. Accordingly, we must examine the record in appellant’s case to determine if the error affected his “substantial rights.” See Hwang v. State, 130 S.W.3d 496, 499 (Tex.App.-Dallas 2004, pet. ref'd); see also Tex.R.App. P. 44.2(b). If the error did not affect appellant’s substantial rights, we must disregard it. See Hwang, 130 S.W.3d at 499. To warrant a reversal on direct appeal, the record must “support an inference that appellant did not know the consequences of his plea.” Burnett, 88 S.W.3d at 638 (emphasis in original). A silent record may support such an inference. Hwang, 130 S.W.3d at 499. The critical inquiry is whether the trial court’s failure to admonish appellant materially affected his decision to plead guilty to the charge. Id. at 499-500. Thus, we must examine the record for indications that appellant was not aware of the consequences of his plea and was misled or harmed by the trial court’s failure to admonish him. Id.- at 500. The record in appellant’s case contains no such indications.

To the contrary, appellant was present during the jury selection process that occurred the same day he decided to change his plea to guilty. In jury selection, appellant’s attorney and the attorney for the State discussed the punishment range for his offense with the potential jurors. Nothing in the record indicates that, despite being present for these discussions, appellant was unaware of the punishment consequences of his plea and was misled by the trial court’s failure to admonish him. We therefore conclude that appellant was not harmed by the trial court’s failure to admonish him on the punishment range for his offense. See id. We resolve appellant’s first issue against him.

Appellant complains in his second issue that the trial court erred by denying his motion for hew trial. He specifically argues he is entitled to a new trial because the jurors in his case considered the application of parole law in setting his punishment. We review a trial court’s denial of a motion for new trial under an abuse of discretion standard. See Ford v. State, 129 S.W.3d 541, 547 (Tex.App.-Dallas 2003, pet. ref'd).

After trial, appellant’s attorney filed with the court an affidavit attached to a motion for new trial. In the affidavit, the attorney alleged that two jurors told her one of the other jurors had returned to deliberations, after an overnight recess, with a chart showing calculations of how much time appellant would actually have to serve in prison as a result of the parole laws. The jurors took this information into consideration “along with information a juror had been told by a friend who was a police officer concerning parole issues.” The attorney alleged that the parole information influenced the jurors’ decision about appellant’s punishment.

The attorney’s affidavit consists of indirect testimony from jurors. Texas Rule of Evidence 606(b) prohibits a juror from testifying, either in person or by affidavit, about “any matter or statement occurring during the jury’s deliberations.” Ford, 129 S.W.3d at 550; see also Tex.R. Evid. 606(b). The only exceptions to this rule permit a juror to testify about whether any outside influence was brought to bear upon any juror or to rebut a claim that the juror was not qualified to serve. Ford, 129 S.W.3d at 550. The latter exception is not raised in this case. And even if the two jurors had testified in person, their testimony would not have met the outside influence exception to rule 606(b). Thus, the evidence offered by appellant was “incompetent to support the granting of a motion for new trial.” Id. at 551. The trial court did not abuse its discretion in denying appellant’s motion for new trial. We resolve appellant’s second issue against him.

We affirm the trial court’s judgment.