author: BOB PEMBERTON, Justice.

text:
    KIRBY HIGHLAND LAKES SURGERY CENTER, L.L.P., Appellant, v. Edward E. KIRBY, M.D. and Helen Kirby, Appellees. In re Kirby Highland Lakes Surgery Center, L.L.P.
    Nos. 03-05-00423-CV, 03-05-00502-CV.
    Court of Appeals of Texas, Austin.
    Jan. 13, 2006.

      Elizabeth G. Bloch, James K. McClen-don, Brown McCarroll, LLP, Austin, for appellant.
    Rick Harrison, Christopher D. Atwell, Fritz, Byrne, Head & Harrison, LLP, Austin, for appellees.
    Before Justices PURYEAR, PEMBERTON and WALDROP.
   OPINION

BOB PEMBERTON, Justice.

Kirby Highland Lakes Surgery Center (the Partnership) filed a petition for writ of mandamus, 03-05-00502-CV, relying on the Federal Arbitration Act (FAA) to contend that the district court abused its discretion in denying the Partnership’s motion to compel arbitration of a dispute with one of the partners, Dr. Edward Kirby, and his wife, Helen Kirby. Contemporaneously, the Partnership also filed an interlocutory appeal, 03-05-00423-CV, purporting to challenge the district court’s order under the Texas Arbitration Act (TAA). Concluding that the FAA rather than the TAA governs and that the Partnership is entitled to relief, we conditionally grant the petition for writ of mandamus and dismiss the interlocutory appeal as moot. See In re Valero Energy Corp., 968 S.W.2d 916, 916-17 (Tex.1998) (orig.proceeding).

BACKGROUND

Dr. Edward Kirby and his wife, Helen Kirby, operated an outpatient surgical center in the Highland Lakes area. In 2001, they were approached by several other doctors who were interested in forming a partnership and purchasing the center. After protracted negotiations, the parties ultimately agreed to a transaction in which (1) the Partnership would be formed between the other doctors, Edward Kirby, and Highland Lakes Physician Management, L.L.P., with the latter serving as managing partner with day-to-day responsibilities over operations and billing; and (2) the Partnership would simultaneously purchase the assets of the surgical center. The transaction was effectuated through two agreements, a Partnership Agreement and a Purchase and Sale Agreement, that were simultaneously executed on December 31, 2002.

The parties to the Partnership Agreement were Edward Kirby and the other doctors. Helen Kirby was not listed as a partner and did not sign the principal agreement. However, she did sign a “Joinder of Spouses” addendum, in which she stated that she was aware of the provisions of the Partnership Agreement and its effect on her community property interests and that she was “fully aware of, [understood], and fully consented[ed] to and agreed to” its provisions. The Partnership Agreement contained an arbitration clause, providing that all “disputes or controversies arising under or related to this Agreement shall be arbitrated.”

Under the Purchase and Sale Agreement, the Kirbys sold to the Partnership the surgical center’s real estate and all their equipment at the surgical center with the exception of certain personalty including the ‘TAG equipment and all fees generated in association with such YAG equipment.” The Kirbys’ “right to retain all fees generated from the YAG equipment located on the Property ... so long as such YAG equipment remains on the Property” was recited as part of the consideration for the Purchase and Sale Agreement. Unlike the Partnership Agreement, the Purchase and Sale Agreement did not contain an arbitration clause. However, the Purchase and Sale Agreement explicitly required “Seller” to execute the Partnership Agreement, which was attached and incorporated by reference.

For a time, the Partnership remitted fees to the Kirbys for use of the YAG equipment. In August 2003, however, the Partnership notified the Kirbys that it would no longer remit fees from the use of the YAG equipment, citing prohibitions in federal anti-kickback statutes. The Kir-bys eventually filed suit in district court on November 18, 2004. As later amended, the Kirbys’ pleadings assert a claim for breach of contract solely under the “Purchase Agreement and related agreements, regarding the billing of the YAG laser,” not the Partnership Agreement. The Partnership moved to compel arbitration of the Kirbys’ claims. On June 29, the district court denied the motion, ordering that the dispute was not governed by the arbitration clause and that Helen Kirby was not a party to a binding arbitration clause. The Partnership then filed this petition and the related interlocutory appeal from the district court’s order.

DISCUSSION

In both its petition for writ of mandamus and its interlocutory appeal, the Partnership argues that the Kirbys’ breach-of-contract claims are subject to the arbitration clause of the Partnership Agreement because either (1) the Partnership Agreement, including its arbitration clause, was incorporated by reference into the Purchase and Sale Agreement, or (2) this dispute “arises under or is related to” the Partnership Agreement. Separately, the Partnership also argues that Helen Kirby was bound to the arbitration clause through the “joinder of spouses” provision of the Partnership Agreement.

Availability of mandamus versus interlocutory appeal

Mandamus is an extraordinary remedy, available only when a trial court clearly abuses its discretion and when there is no adequate remedy on appeal. See In re Kuntz, 124 S.W.3d 179, 180 (Tex.2003). When a request to arbitrate under the FAA is denied, the appellate remedy is through mandamus. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992); American Med. Techs., Inc. v. Miller, 149 S.W.3d 265, 269 (Tex.App.-Houston [14th Dist.] 2004, orig. proceeding). In contrast, interlocutory appeal is the proper remedy if this case is governed by the TAA rather than the FAA. See Jack B. Anglin Co., Inc., 842 S.W.2d at 272 & n. 10, 273. The Texas Supreme Court has instructed appellate courts that when, as here, parallel mandamus proceedings and interlocutory appeals are brought under the FAA and TAA, respectively, we should consolidate the two proceedings and consider them together. See In re Valero Energy Corp., 968 S.W.2d at 916-17. We accordingly consolidate the two proceedings.

In its first issue in cause 03-05-00502-CV, the Partnership argues that the FAA, and not the TAA, governs this case. See id.; see also Tex. Civ. Prac. & Rem. Code Ann. §§ 171.001-.098 (West 1997 & Supp.2005). The Partnership explains that it filed its interlocutory appeal invoking the TAA “[o]ut of an abundance of caution” in the event we find that the TAA applies. In their reply to the petition for writ of mandamus, the Kirbys concede that the FAA applies because the underlying dispute concerns billings to Medicare and Medicaid. We conclude that this dispute is governed by the FAA. We sustain the Partnership’s first issue presented in cause 03-05-00502-CV; we dismiss the interlocutory appeal, 03-05-00423-CV, as moot; and we will proceed to address the merits of the FAA claim in the petition for writ of mandamus.

Compelling arbitration under the FAA; general principles

A party seeking to compel arbitration under the FAA must establish that: (1) there is a valid arbitration clause, and (2) the claims raised fall within that agreement’s scope. In re FirstMerit Bank, 52 S.W.3d at 753 (Tex.2001); In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex.1999). The first element includes “gateway matters” such as whether a valid arbitration clause exists and whether an arbitration clause is binding on a nonparty. In re Weekley Homes, L.P., 180 S.W.3d 127, 130 (Tex., 2005). Such matters are governed by Texas law. Id. The scope of a valid arbitration clause, however, is governed by federal law. “Arbitration is heavily favored under federal and state law and should not be denied unless it can be said with positive assurance that the arbitration clause cannot be interpreted so as to encompass the dispute in question.” In re Sun Communications, Inc., 86 S.W.3d 313, 317 (Tex.App.-Austin 2002, no pet.) (citing Prudential Sec. Inc. v. Marshall, 909 S.W.2d 896, 898-99 (Tex.1995)). “We resolve doubts concerning the scope of coverage of an arbitration clause in favor of arbitration.” Pennzoil Exploration & Prod. Co. v. Ramco Energy Ltd., 139 F.3d 1061, 1067 (5th Cir.1998).

Whether the Kirbys’ claims fall within the arbitration clause

There is no dispute that Edward Kirby, as one of the Partnership’s partners, is a party to the arbitration clause contained in the Partnership Agreement, nor do the Kirbys challenge the validity of that provision. The parties do dispute whether Helen Kirby, as a nonparty to the Partnership Agreement, can be bound by its arbitration provision. They also contest whether the Kirbys’ claims fall within the provision’s scope. Because the arbitration agreement’s scope is potentially decisive of the Partnership’s right to arbitrate against either Edward or Helen Kirby, we first turn to that issue.

To determine the scope of an arbitration agreement, we first look to the terms of that agreement. See Marshall, 909 S.W.2d at 900. We then examine the factual allegations in the petition rather than the legal causes of action. Id.

Pleadings

The Kirbys pleaded that, after operating their surgical center for approximately three years, they were approached by principals of the general partner of the Partnership regarding the possible sale of the center to the Partnership. “These principals assured Dr. and Mrs. Kirby that their legal and other advisors were experts in the areas of acquisition of outpatient surgery centers, medicare and medicaid billing, operations of outpatient surgery centers, and the formation of entities composed of practicing physicians and an operating partner to own and operate the outpatient surgery centers.” Lengthy negotiations ensued, but “nearly foundered over the issue of price.” Thus, the Kirbys alleged,

13. In order to adequately compensate the Kirbys, the Partnership agreed in the Purchase Agreement conveying the Center that Dr. Kirby would continue to own and retain all of the economic value and income stream from ... the YAG Laser.... Dr. Kirby, Mrs. Kirby, and the General Partner were all aware of and discussed the value of the YAG Laser in negotiating the Purchase Agreement pursuant to which Dr. and Mrs. Kirby conveyed the Center to the Partnership.
14. The Kirbys and the Partnership agreed that while Dr. Kirby would continue to own the YAG laser (because it was excluded from the sale), the Partnership would bill a facility fee for the deployment of the YAG laser in connection with posterior capsulotomy and other procedures performed by Dr. Kirby at the Center. That revenue stream, even though it would be billed and collected by the Partnership, would flow directly and solely to Dr. Kirby less a nominal administration fee. By carving out this expected revenue stream from the billing of facility fees for the YAG laser, the Kirbys would receive fair consideration and compensation for the sale of the Center to the Partnership.
15. This understanding between the Kirbys and the Partnership was memorialized in the Purchase Agreement by the exclusion of the YAG laser from the sale of the other assets that composed the Center. It was recognized and expected by all parties that Dr. Kirby would continue to use the YAG laser at the Center after the sale on the terms outlined above. With all of these understandings memorialized, Dr. and Mrs. Kirby agreed to sell the Center to the Partnership on March 3, 2003.

After remitting the YAG facility fee proceeds to the Kirbys “as had been agreed” for approximately four months, “the Partnership announced that it would no longer honor the Purchase Agreement and agreed practice regarding Dr. Kirby’s sole receipt of the YAG laser facility fees.” Although the Partnership gave assurances that “it would determine a way to make sure the Kirbys received what they contracted for, namely, the fell value and benefit of the YAG laser facility fee reimbursements,” “the Partnership failed and refused to hon- or its agreements.” The Kirbys pleaded this “Purchase Agreement and related agreements, regarding the billing of the YAG laser” as the basis for their breach-of-contract claim.

The Kirbys also made the following allegation regarding the relationship between the Purchase and Sale Agreement and the Partnership Agreement:

The purchase of the Center was related to, but independent from, the formation of the Partnership. The Partnership, which was formed pursuant to a written partnership agreement, did not involve or include Mrs. Kirby. The Partnership involves numerous additional third parties who have no direct stake or interest in this suit. The partnership agreement set forth numerous undertakings by the various partners none of which are material to the dispute raised herein.

Text of arbitration clause

The arbitration clause of the Partnership Agreement, provides, in relevant part, that “[a]ll disputes or controversies arising under or related to this Agreement shall be arbitrated.” The Partnership asserts two arguments for construing this clause to encompass the Kirbys’ allegations regarding the YAG laser facility fees. First, the Partnership emphasizes that the Purchase and Sale Agreement incorporates the Partnership Agreement by reference — the sale agreement attached, as one of several exhibits, a copy of the executed Partnership Agreement and “incorporated [all of the exhibits] as part of this Agreement,” each to have “the same meaning as if they were incorporated fully within the text of this Agreement.” Second, the Partnership contends that, even if the Partnership Agreement was not fully incorporated into the Purchase and Sale Agreement, the Kirbys’ claims nonetheless fell within the scope of the Partnership Agreement’s arbitration clause. Because we agree that the Partnership Agreement’s arbitration clause embraces the Kirbys’ claims, we need not consider the Partnership’s incorporation-by-reference argument.

The Partnership Agreement’s arbitration clause embraces “[a]ll disputes or controversies arising under or related to this Agreement,” terminology that federal courts applying the FAA have termed “extremely broad” and “capable of expansive reach.” See Pennzoil Exploration, 139 F.3d at 1067-68; see, e.g., Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 625-26, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 397-98, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967). Such “related to” language, in contrast to narrower phrases like “arising out of,” extends to “all disputes between the parties having a significant relationship to the contract regardless of the label attached to the dispute” or that “touch” matters covered by the contract containing the arbitration provision. Pennzoil Exploration, 139 F.3d at 1067-68. The breadth of the Partnership Agreement’s arbitration clause distinguishes it from those in many of the cases cited by the Kirbys. See Weber v. Hall, 929 S.W.2d 138, 142-43 (Tex.App.-Houston [14th Dist.] 1996, orig. proceeding) (construing arbitration clause covering controversies or disputes “as to all or any part of this Agreement”). However, “related to” does not mean unlimited in scope. Pennzoil Exploration, 139 F.3d at 1067 n. 8 (“We realize that even broad clauses have their limits.”). For instance, such language is not as broad as “any and all disputes between” the parties. See Neal, 918 F.2d at 36-37.

The Kirbys pleaded that “[t]he purchase of the Center,” the subject matter of the Purchase and Sale Agreement, “was related to, but independent from, the formation of the Partnership,” the subject matter of the Partnership Agreement. The Kirbys also pleaded that the agreements conferring them rights to YAG laser facility fees were memorialized at least in part in the Purchase and Sale Agreement and “related agreements.” In these ways, the Kir-bys have judicially admitted that their factual allegations concerning the YAG laser fees are, to some degree, “related to” the Partnership Agreement.

The Kirbys’ pleadings, while elsewhere stating that the purchase and partnership formation were “related ... but independent,” allege that the Kirbys entered into both the sale and the partnership to procure certain benefits of the arrangement:

10. On or about July 2001, the Kirbys were approached by principals of the general partner of the Partnership regarding the possible sale of the [Kirbys’ surgical] Center to the Partnership. These principals held themselves out as experienced managers of outpatient surgery centers. These principals assured Dr. and Mrs. Kirby that they uniquely understood and grasped the complexities of the arrangement they proposed. These principals assured Dr. and Mrs. Kirby that their legal and other advisors were experts in the areas of acquisition of outpatient surgery centers, medicare and medicaid billing, operations of outpatient surgery centers, and the formation of entities composed of practicing physicians and an operating partner to own and operate the outpatient surgery centers. Pursuant to these representations, which continued throughout the negotiations process, lengthy negotiations ensued between the Kirbys, on one hand, and the Partnership, on the other hand.

(Emphases added.). The Kirby’s intent to procure these benefits was ultimately reflected in both the Purchase and Sale Agreement and the Partnership Agreement. The latter appointed Highland Lakes Physician Management, L.L.P., as managing partner and charged that entity with day-to-day operations and management of the surgery center, including collecting bills and paying debts. According to the Kirbys’ pleadings, the dispute in this case arises from the Partnership’s failure to pay the amounts due to the Kirbys from the bills it collected for the use and operation of the YAG equipment. As the Kir-bys’ own pleadings emphasize, the agreement to exclude the YAG equipment and rights to facility fees was also an integral part of this overall transaction, a product of the Kirbys’ bargaining over price.

In Personal Security & Safety Systems Inc. v. Motorola, Inc., the Fifth Circuit considered a similar situation of simultaneously executed contracts, where only one of the contracts of which contained an arbitration clause with broad “related to” language. 297 F.3d 388, 392-95 (5th Cir.2002); see also Rameo, 139 F.3d at 1067. In Personal Security & Safety, Motorola initiated negotiations with Personal Security and Safety Systems Inc. (PSSI) concerning an investment in PSSI that would give Motorola access to certain technology that PSSI was developing. 297 F.3d at 390-91. The parties eventually executed two agreements: (1) a Stock Purchase Agreement, under which Motorola would provide a total of twelve million dollars in financing in return for a convertible debenture and equity stake in PSSI; and (2) a Product Development and License Agreement, under which the parties agreed to collaborate on the development of new technologies based on existing PSSI systems and which addressed respective rights to existing or future intellectual property. Id. at 391. Only the Product Development Agreement contained an arbitration clause, which, like the one here, extended to disputes “arising out of or relating to this Agreement.” Id. at 392-93. PSSI subsequently sued Motorola for failing to provide it financing to which PSSI claimed it was entitled under the Stock Purchase Agreement, claiming breach of that agreement and fraudulent inducement. Id. at 391. Motorola sought unsuccessfully in the trial court to compel arbitration. Id.

The Fifth Circuit relied on the broad language of the Product Development Agreement’s arbitration clause, as well as the principle that “separate agreements executed contemporaneously by the same parties, for the same purposes, and as part of the same transaction, are to be construed together.” Id. at 393. “Although the Stock Purchase Agreement and the Product Development Agreement governed] different facets of the parties’ relationship,” both agreements were “key elements of a transaction in which Motorola agreed to provide financing in return for a stake in PSSI and access to PSSI’s technology.” Id. The court also observed that each agreement expressly anticipated the execution of the other and that the Product Development Agreement was attached as an exhibit to the Stock Purchase Agreement. Id. It added that “the Product Development Agreement, which governed access to each party’s intellectual property as well as the parties’ joint development efforts, was a central part of this transaction,” pointing out that PSSI pleaded that Motorola had originally engaged in negotiations primarily to gain access to PSSI’s technology. Id. at 394 & n. 7. The court concluded that “where the parties include a broad arbitration provision in an agreement that is ‘essential’ to the overall transaction, we will presume that they intended the clause to reach all aspects of the transaction — including those aspects governed by other contemporaneously executed agreements that are part of the same transaction.” Id. at 395. Finding no “contrary expression of intent” in the Stock Purchase Agreement, the court held that the Product Development Agreement’s arbitration clause covered all disputes related to the subject matter of the entire transaction between PSSI and Motorola. Id. “It is of no moment,” the court maintained, that each agreement “focuses on a different aspect of the transaction and could be a valid free-standing contract.” Id.

The circumstances in Personal Security & Safety are similar to those here: the Partnership Agreement contains a broad arbitration clause extending to disputes “related to” that agreement; that agreement and the Purchase and Sale Agreement were executed at the same time as parts of a single transaction; and the Partnership Agreement was essential to the overall transaction. In light of these circumstances, applicable case law, and the Kirbys’ own admissions in their pleadings, we do not have “positive assurance that the arbitration clause is not susceptible of an interpretation which would cover the dispute at issue.” Id. at 395 (internal citations and quotations omitted).

In response, the Kirbys maintain that the Purchase and Sale Agreement provides that “venue of any legal action filed in connection herewith shall be in Burnet County.” However, the Fifth Circuit rejected a similar contention in Personal Security & Safety and found such a clause to show that the parties intended the clause to apply only in the event of a non-arbitra-ble dispute that must be litigated in court. See id. at 395-96. Thus, the venue clause governs only after the court determines that the dispute is not subject to arbitration; the venue clause does not itself except disputes from arbitration. See id. The arbitration clause in this case functions similarly, and we reject the Kirbys’ argument.

Additionally, the Kirbys attempt to draw a temporal distinction between the Partnership Agreement, governing the “ongoing internal affairs” of the Partnership, and the Purchase and Sale Agreement, governing “a finite transaction.” See Fit Tech, Inc. v. Bally Total Fitness Holding Carp., 374 F.3d 1 (1st Cir.2004). To the contrary, as the Kirbys emphasize in their own pleadings, the Partnership’s obligations related to the YAG equipment and fees are ongoing in nature. Cf. Personal Sec. & Safety, 297 F.3d at at 390-92. In addition, the Fit Tech court specifically relied on the fact that both agreements it was considering contained their own alternative dispute resolution provisions. Fit Tech, 374 F.3d at 10-11. To have read a general arbitration clause found in one contract into another, which specified a different, and more narrow, dispute resolution process, would have rendered the language of the second agreement redundant. See id. at 10. Here, only the Partnership Agreement contains a dispute resolution provision.

Finally, the Kirbys emphasize that the parties to the Purchase and Sale Agreement differed from those to the Partnership Agreement. Specifically, while the Kirbys and the Partnership were the parties to the sale agreement, only Edward Kirby and the other individual partners— and not Helen Kirb — were parties to the Partnership Agreement. See Personal Sec. & Safety, 297 F.3d at 393 (“separate agreements executed contemporaneously by the same parties, for the same purposes, and as part of the same transaction, are to be construed together”). With regard to Edward Kirby, we find these distinctions immaterial. He was a party to both agreements, and the purpose of the two agreements was to be one complete transaction — the creation of the Partnership to buy the assets of the surgical center.

In sum, we hold that the Kirbys’ allegations relating to the YAG equipment and facility fees are “related to” the Partnership Agreement, and subject to the arbitration clause contained in that agreement. Because Edward Kirby is a party to the Partnership Agreement, his claims are subject to arbitration.

Whether Helen Kirby can be compelled to arbitrate her claims

We now consider the Partnership’s fourth issue, whether Helen Kirby, as a nonparty to the Partnership Agreement, can be compelled to arbitrate under the Partnership Agreement’s arbitration clause. The district court concluded that “Helen Kirby is not a party to a binding arbitration.” The Partnership challenges this conclusion on two grounds. First, relying on the undisputed fact that Helen Kirby is a party to the Purchase and Sale Agreement, the Partnership contends that she is also a party to the Partnership Agreement’s arbitration clause because the Purchase and Sale agreement incorporated the Partnership Agreement. Second, the Partnership argues that Helen Kirby bound herself to arbitrate disputes arising from or relating to the Partnership Agreement by executing a “Joinder of Spouses” addendum to the Partnership Agreement:

The Partners’ spouses join in the execution and delivery of this Agreement for the express purpose of binding their respective community property interests, if any, in the Partnership Units. The Partners’ spouses are fully aware of, understand, and fully consent and agree to the provisions of this Agreement and its effect upon any community property interests they may now or hereafter own, and agree that the termination of their marital relationship with any Partner for any reason or for no reason will not have the effect of removing any Partnership Units of the Partnership otherwise subject to this Agreement from coverage and that their awareness, understanding, consent, and agreement are evidenced by their signing this exhibit this exhibit to the Agreement.

We need consider only the Partnership’s second argument.

By purporting to “join in the execution and delivery of this Agreement” and “fully consent and agree to the provisions of this Agreement,” the Partnership asserts that Helen Kirby agreed to be bound by the Partnership Agreement’s arbitration clause. Because we have determined that the Kirbys’ claims regarding the YAG laser facility fees are “related to” the Partnership Agreement, we agree that Helen Kirby, like her husband, must arbitrate her claim.

Helen Kirby is not a party to the Partnership Agreement. It is not entirely clear whether Texas or federal law governs whether a nonparty must arbitrate, and the inquiry can involve issues of both whether an arbitration agreement has been formed (a state law issue) and the scope of an arbitration clause governed by the FAA (federal law). See In re Weekley Homes, L.P., 180 S.W.3d at 132; In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 738-39 (Tex.2005). We will begin by considering, under Texas state law, whether Helen Kirby’s execution of the joinder of spouses addendum bind her to arbitration. When construing a written contract, our paramount concern is to ascertain the true intentions of the parties as expressed in the instrument and we should examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless. Coker v. Coker, 650 S.W.2d 391, 393-94 (Tex.1983).

The joinder of spouses addendum is intended to address the rights of partner spouses holding potential community property interests in partnership units. To eliminate these potential limitations on the operation of the Partnership, the spouses “join in the execution and delivery of this Agreement for the express purpose of binding their respective community property interests, if any, in the Partnership Units,” and “are fully aware of, understand, and fully consent and agree to the provisions of this Agreement and its effect upon any community property interests they may now or hereafter own.” The Partnership Agreement to which Helen Kirby “fully consent[ed] and agree[d]” includes the arbitration clause. Cf. In re Weekley Homes, L.P., 180 S.W.3d at 130 (describing incorporation by reference as one means by which nonparties to arbitration agreements may be bound to arbitrate).

Having determined that Helen Kirby has consented to arbitration under the Partnership Agreement, we now address the scope of that agreement. Federal law governs this aspect of our inquiry. Id. at 131 (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). Applying those principles, we have previously determined that the Kirbys’ claims regarding the YAG equipment fees are “related to” the Partnership Agreement and thus fall within its arbitration provision. We thus conclude that Helen Kirby is bound to arbitrate her claim and that the district court abused its discretion in determining otherwise.

CONCLUSION

We consolidate causes 03-05-00502-CV, In re Kirby Highland Lakes Surgery Center, L.L.P., and 03-05-00423-CV, Kirby Highland Lakes Surgery Center L.L.P. v. Edward E. Kirby, M.D., & Helen Kirby. The Kirbys have conceded that the FAA applies, and, in cause 03-05-00502-CV, we have concluded that the FAA requires both Edward and Helen Kirby to arbitrate their claim regarding YAG equipment fees. Therefore, the district court abused its discretion in not ordering their claims to arbitration.

We conditionally grant the petition for writ of mandamus and order the trial court to compel arbitration of the Kirbys’ claims. The writ will issue only in the unlikely event that the district court does not modify its June 29 order consistent with this opinion. We dismiss cause 03-05-00423-CV as moot.

      . See 9 U.S.C.A. §§ 1-16 (West 1999 & Supp. 2005).

      . Helen Kirby served as office manager.

      . The “YAG equipment” is a type of laser used to perform certain medical procedures on the eye. It is apparently installed in the center’s facilities. The Kirbys allege that the Partnership agreed to bill a facility fee each time the YAG is used and that this revenue would flow directly to the Kirbys rather than be divided among the partners.

      . The Kirbys originally also asserted a breach-of-fiduciary-duty claim predicated upon allegations that “the formation of the Partnership and the purchase of the Center were two related and dependent transactions” that “could not successfully occur without the other” and that the partners’ fiduciary duties under the Partnership Agreement extended to the Purchase and Sale Agreement. The Kir-bys amended their petition to drop their breach-of-fiduciary-duty claim.
      We will consider the Kirby’s current pleadings when addressing whether their claims are subject to arbitration. See Prudential Sec. Inc. v. Marshall, 909 S.W.2d 896, 900 (Tex.1995) (to determine whether claim falls within arbitration clause’s scope, we look at terms of agreement and factual allegations in petition); Drake Ins. Co. v. King, 606 S.W.2d 812, 817 (Tex.1980) (if pleading is amended, it ceases to be judicial pleading; statements in such pleading cease to be judicial admissions); cf. Personal Sec. & Safety Sys., Inc. v. Motorola, Inc., 297 F.3d 388, 391 n. 1 (5th Cir.2002).

      . Texas law currently is unclear regarding the proper disposition of an interlocutory appeal under the TAA from the denial of arbitration where the FAA is held to govern the arbitration provision at issue. Some courts of appeals have determined that, if the FAA applies, any right to relief under the TAA is preempted, and they are without jurisdiction to consider the interlocutory appeal. See Kroupa v. Casey, No. 01-05-00224-CV, 2005 WL 3315279, at *4, 2005 Tex.App. LEXIS 10212, at *14-15 (Tex.App.-Houston [1st Dist.] Dec. 8, 2005, no pet. h.); MONY Secs. Corp. v. Padilla, 132 S.W.3d 201, 203 & n. 4 (Tex.App.-Corpus Christi 2004, pet. dism’d by agr.); Verlander Family Ltd. P’ship v. Verlander, No. 08-02-00135-CV, 2003 WL 304098, at *2, 2003 Tex.App. LEXIS 1413, at *9 (Tex. App.-El Paso Feb. 13, 2003, no pet.); Pennzoil Co. v. Arnold Oil Co., 30 S.W.3d 494, 498 (Tex.App.-San Antonio 2000, orig. proceeding); see also Roger W. Hughes, Interlocutory Appeals from Orders Denying Arbitration Under the Texas Arbitration Act: Federal Law Does Not Preempt Jurisdiction, 14 The Appellate Advocate 18-22 (Fall 2005) (disputing this view and urging that it enables appellate courts to evade supreme court review by finding that FAA governs, summarily denying mandamus, and dismissing TAA appeal for want of jurisdiction, all without supplying opinion detailing reasoning). The supreme court recently granted review to consider this question. In re D. Wilson Construction Co., No. 05-0326, 2005 WL 1198742 (Tex. filed Apr. 25, 2005), consolidated with American Standard v. Brownsville Indep. Sch. Dist., No. 05-0327 (Tex. filed April 22, 2005); see American Standard v. Brownsville Indep. Sch. Dist. (In re D. Wilson Constr. Co.), Nos. 13-04—184— CV & 13-04—333-CV, 2005 Tex.App. LEXIS 1016, at *6 (Tex.App.-Corpus Christi Feb. 10, 2005, pet. granted). We need not consider this issue here, however. In cases where it has granted full relief under the FAA, the supreme court has dismissed as moot parallel TAA appeals. See In re L & L Kempwood Assoc., L.P., 9 S.W.3d 125, 128 (Tex.1999); In re Valero Energy Corp., 968 S.W.2d 916, 917 (Tex.1998). But see Kroupa, 2005 WL 3315279, at *1, 2005 Tex.App. LEXIS 10212, at *14 — 15 (granting relief under FAA and dismissing TAA appeal for want of jurisdiction on basis that TAA was preempted). Thus, because we ultimately conclude that the Partnership is entitled to full relief under the FAA, we dismiss as moot its TAA appeal.

      . The Kirbys argue that the Partnership “cannot have it both ways” by both asserting an illegality defense to its obligations regarding YAG facility fees while attempting to invoke arbitration under the same set of agreements. See American Med. Tech., Inc. v. Miller, 149 S.W.3d 265, 272-73 (Tex.App.-Houston [14th Dist.] 2004, orig. proceeding). Miller involved a defendant who denied the very existence of the employment agreement made the basis of its arbitration claim. Id. at 270-72. The Miller court contrasted “the more common argument made by a party that does not challenge the existence of a contract, but rather attacks the enforceability of the contract.” Id. at 272-73. Enforceability is normally an issue for the arbitrator unless the claim is specifically directed at the arbitration provision alone. Id. at 272-73. The Partnership’s illegality defense is in the nature of "this more common argument” — it does not dispute the existence of the Partnership Agreement and related agreements, but merely attacks enforceability.

      . The Kirbys suggest that our sister courts have split concerning the appropriate standard for determining whether their dispute falls within the arbitration provision of the Partnership Agreement. Applying chiefly Texas law, some of these courts appear to espouse what the Kirbys characterize as a "close” view, requiring the claim to be "so interwoven with the contract that it cannot stand alone,” as contrasted with claims "completely independent of the contract and [that] could be maintained without reference to the contract.” See Associated Glass, Ltd. v. Eye Ten Oaks Invs., Ltd., 147 S.W.3d 507, 513 (Tex.App.-San Antonio 2004, no pet.); Loy v. Harter, 128 S.W.3d 397, 403-05 (Tex.App.-Texarkana 2004, pet. denied); Valero Energy Corp. v. Teco Pipeline Co., 2 S.W.3d 576, 590 (Tex.App.-Houston [14th Dist.] 1999, no pet.); Valero Energy Corp. v. Wagner & Brown, II, 777 S.W.2d 564, 566 (Tex.App.-El Paso 1989, writ denied). In contrast, the Waco court of appeals has applied a standard closer to the federal one we apply above. See Dennis v. College Station Hosp., L.P., 169 S.W.3d 282 (Tex.App.-Waco, 2005, pet. filed) ("[g]enerally, if the facts alleged 'touch matters,' have a ‘significant relationship’ to, are ‘inextricably enmeshed’ with, or are 'factually intertwined’ with the contract that is subject to the arbitration agreement, the claim will be arbitra-ble.”).
      As we are required to do, we will rely on federal law to determine the scope of the Partnership Agreement's arbitration provision, but we note that the Kirby’s close-connection cases are founded ultimately upon Wagner & Brown, II, which involved narrow arbitration language governing any dispute "arising under this contract.” 777 S.W.2d at 566; see Associated Glass, 147 S.W.3d at 513; Loy, 128 S.W.3d at 403-05 (quoting Fridl v. Cook, 908 S.W.2d 507, 511 (Tex.App.-El Paso 1995, writ dism’d w.o.j.), which relied on Wagner & Brown, II); Teco Pipeline Co., 2 S.W.3d at 590 (quoting standard from Wagner & Brown, II). In contrast, the Waco court in Dennis relied in part on the language of the arbitration clause in that case, which, like the one here, applied to claims "relating to this Agreement.” 169 S.W.3d at 287 ("the term used in many arbitration agreements and in the agreement at issue here is the term ‘related’ — not 'interrelated,' 'interwoven,' or 'interdependent ' ").

      . In Neal, one of the principal cases on which the Partnership relies, a restaurant chain and its franchisee agreed in six license agreements to arbitrate "any and all disputes between” the parties. Neal v. Hardee’s Food Sys., Inc., 918 F.2d 34, 35 (5th Cir.1990). A dispute later arose under a purchase agreement concerning the restaurant facilities that had been executed at the same time as the license agreements. Id. at 36-37. The purchase agreement did not contain its own arbitration provision. Id. at 37. “Recognizing that the License Agreements were at the heart of their deal,” the Fifth Circuit held that "when the parties included a broad arbitration clause in the essential License Agreements covering 'any and all disputes,’ they intended the clause to reach all aspects of the parties’ relationship including the purchase of the physical properties. ” Id. at 3 8.

      . The parties also executed a Shareholders Agreement that was not at issue in the case. See Personal Sec. & Safety, 297 F.3d at 390.

      . The Kirbys also rely upon Van Weber v. Hall, 929 S.W.2d 138, 141-43 (Tex.App.Houston [14th Dist.] 1996, orig. proceeding), which involved employment agreements containing arbitration clauses and annual sales agreements that did not. However, Van Weber involved a narrow arbitration clause covering only any "controversy or dispute ... as to all or any part of this Agreement,” not the broad "related to” language at issue here. See id. at 142.


source: Caselaw Access Project

author: Chief Justice MORRISS.

license: Public Domain

text:
    In re Anthony E. GILL.
    No. 06-06-00009-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Jan. 19, 2006.
    Decided Jan. 20, 2006.
    Anthony E. Gill, Angleton, pro se.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

By his petition for writ of mandamus, Anthony E. Gill asks this Court to order the 23rd Judicial District Court in Brazo-ria County to hear and rule on his application for writ of garnishment. The initial, and dispositive, question is whether we have jurisdiction over Gill’s petition. Because we have no jurisdiction, we deny Gill’s petition.

Brazoria County is not in our appellate district, and we ordinarily do not have jurisdiction over a mandamus petition from that county. Gill, however, had a case pending in which the appeal was transferred to this Court by the Texas Supreme Court. In that appeal, we reversed the judgment of the trial court and remanded the case to that court for further proceedings. See Gill v. Boyd Distribution Ctr., 64 S.W.3d 601 (Tex.App.-Texarkana 2001, pet. denied).

In the period between our disposition of that appeal and Gill’s filing of the current mandamus petition, Gill filed with us five mandamus petitions. In each of those five proceedings, we accepted jurisdiction because Gill sought to enforce our judgment and mandate from the transferred appeal, alleging the trial court had failed to proceed as we had ordered. And, in each of those instances, the trial court action Gill attempted to obtain through his mandamus petition was within the original lawsuit, the appeal of which had been transferred to us.

But now, Gill holds a default judgment in that underlying case, signed by the trial court and filed March 14, 2005. He now pursues garnishment to collect that judgment. That is a separate action, over which we have no jurisdiction.

A garnishment action is separate from the original action. In re Tex. Am. Express, Inc., No. 05-05-01417-CV, 2005 WL 3804116, — S.W.3d -, 2005 Tex.App. LEXIS 10140 (Tex.App.-Dallas Dec.7, 2005, orig. proceeding); Varner v. Korns, 888 S.W.2d 511, 513 (Tex.App.-El Paso 1994, orig. proceeding) (post-judgment writ of garnishment); Roberts v. Stoneham, 31 S.W.2d 856, 857 (Tex.Civ.App.-Austin 1930, no writ); see also Walton & Stockton v. Corpus Christi Nat’l Bank, 185 S.W. 369 (Tex.Civ.App.-San Antonio 1916, no writ).

The relief sought in this instance extends beyond the enforcement of our mandate to the trial court. Accordingly, because the 23rd Judicial District Court in Brazoria County lies outside the jurisdictional boundaries of our district, we may not accept jurisdiction over this petition for writ of mandamus.

We deny Gill’s petition for writ of mandamus.

      . Tex. Gov’t Code Ann. § 22.201(g) (Vernon Supp.2005), § 22.221 (Vernon 2004).


author: Justice CARTER.

text:
    The STATE of Texas for the Best Interest and Protection of L.H.
    No. 06-05-00143-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Jan. 18, 2006.
    Decided Jan. 25, 2006.

      Nancy Kennedy, Law Office of Nancy Kennedy, Plano, for appellant.
    Jeffrey E. Dailey, Hunt County Asst. County Atty., Greenville, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

L.H. appeals the trial court’s order committing her to Terrell State Hospital inpatient mental health services for a period not to exceed ninety days. She argues the evidence is legally and factually insufficient to support the trial court’s order. Having concluded that the evidence is both legally and factually sufficient, we affirm the trial court’s order.

I. FACTUAL BACKGROUND

At the hearing, the State presented the testimony of Dr. Paul Lee, who testified that L.H. had been diagnosed with psychotic disorder, not otherwise specified (NOS). When asked about any overt acts — Dr. Lee interrupted with the following description:

Prior to her coming to the hospital, she was behaving in a very bizarre, paranoid manner; hiding herself in her home there with her mother; saying people were out trying to get her. She at one point fashioned a — according to her mother — fashioned a knife out of a razor blade and actually cut her mother with that razor blade and, according to her mother, cut herself.
She was very religiously preoccupied and was — I believe the final event that brought her into the hospital initially was she was out in her yard praying with her hands up, and the police in that area came and brought her in. Since she’s been in the hospital, she has behaved in a paranoid manner. She’s refused any medications or any suggestions that have been made.

Dr. Lee also testified that L.H. has been “very intrusive on the unit, inappropriate with other patients, kissing staff, kissing other patients” on the cheek. He further testified that L.H. admitted to having fashioned another razor into either a weapon or, from L.H.’s explanation, a caulk-removal tool. While in the hospital, presumably on an emergency commitment, L.H. removed the razor blades from a disposable razor. The hospital staff asked her about the razor, and she stated that she had fashioned the blade into a caulk-removal tool and then, after using it to clean the caulk in her hospital shower, “flushed the tool” out of concern for other patients in the hospital.

On cross-examination, Dr. Lee admitted that he did not attempt to confirm L.H.’s caulking explanation. He again described her as religiously preoccupied and explained that her preoccupation led her to make decisions contrary to her own best interests. He also testified that L.H. was in denial about her illness. He reiterated his testimony about L.H.’s. intrusiveness and “inappropriate boundaries.” He stated that he never discussed the cheek-kissing with her and also stated that she never went beyond kissing on the cheek to kissing on the mouth, groping, or lewd suggestions.

Dr. Lee indicated that L.H. described a good relationship with her family until, according to L.H., her mother concocted this story to get her into drug treatment. Dr. Lee testified that he thinks L.H. is a danger to herself. He also conceded that he did not know the exact date on which L.H. allegedly injured her mother and herself. Dr. Lee testified that L.H. had been trying to minister to fellow patients during her hospital stay. He admitted that, despite concerns regarding her safety and the safety of the other patients, L.H. is allowed regular access to pens and pencils. He explains that L.H. is always in the line of the staffs sight.

L.H. testified that the only harm she has done to herself is through past substance abuse, and denied any attempt to otherwise injure herself. She explained that the first weapon she made was out of concern regarding some associations with a drug dealer and her fear of retaliation after having begun to cooperate with law enforcement officials regarding the dealer. She explained that she was putting her prior home improvement experience to work with the razor blade tool at the hospital and that, after she had cleaned up the caulk, she “flushed the tool” because it could pose a danger to fellow patients.

She testified that she tried to help other patients as best she could and that she was a certified nurse’s assistant. She explained that several patients came to seek her help with food and drinks “and such.” She also described her recent religious conversion. She'explained her resistance to medication in terms of religion and her newly-formed stance against putting “anymore [sic] vile things in my body.” She testified that she had been clean since October “the 27th at 3:10 p.m.” She adamantly denied ever hurting or threatening her mother. She also explained that she was simply praying in her yard when she was taken in to the hospital and that she regularly kisses people on the cheek as an expression of “brotherly love” and because she loves everyone in the world.

In its order of commitment, the trial court found that L.H. “is likely to cause serious harm to self.” Additionally, the trial court found that L.H. “will, if not treated, continue to suffer severe abnormal mental, emotional or physical distress, is experiencing substantial mental or physical deterioration of [her] ability to function independently ... and is unable to make a rational and informed decision as to whether or not to submit [to] treatment.”

II. APPLICABLE LAW

A. Statutory Requirements

A court may order a proposed patient to receive temporary inpatient mental health services only if the fact-finder concludes from clear and convincing evidence that the proposed patient is mentally ill and also meets at least one of the additional criteria set forth in Section 574.034(a)(2):

(2) as a result of that mental illness the proposed patient:
(A) is likely to cause serious harm to himself;
(B) is likely to cause serious harm to others; or
(C) is:
(i) suffering severe and abnormal mental, emotional, or physical distress;
(ii) experiencing substantial mental or physical deterioration of the proposed patient’s ability to function independently, which is exhibited by the proposed patient’s inability, except for reasons of indigence, to provide for the proposed patient’s basic needs, including food, clothing, health, or safety; and
(iii) unable to make a rational and informed decision as to whether or not to submit to treatment.

Tex. Health & Safety Code Ann. § 574.034 (Vernon 2003). Here, the trial court’s written order affirmatively found the State’s allegations under (A) and (C) to be true.

B. The State’s Burden

The evidentiary standards for involuntary commitment are high. Harris v. State, 615 S.W.2d 330, 333 (Tex.Civ.App.-Fort Worth 1981, writ refd n.r.e.). The State has the burden of establishing by clear and convincing evidence that the proposed patient meets at least one of the additional criteria listed in Section 574.034(a)(2). See Mezick v. State, 920 S.W.2d 427, 430 (Tex.App.-Houston [1st Dist.] 1996, no writ). Clear and convincing evidence is that “degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” State v. Addington, 588 S.W.2d 569, 570 (Tex.1979).

When court-ordered temporary mental health services are sought under subsection (a), specific requirements for clear and convincing evidence are imposed: the evidence must include expert testimony and, unless waived, evidence of a recent overt act or a continuing pattern of behavior that tends to confirm: “(1) the likelihood of serious harm to the proposed patient or others; or (2) the proposed patient’s distress and the deterioration of the proposed patient’s ability to function.” Tex. Health & Safety Code Ann. § 574.034(d). An expert diagnosis, without more, is not sufficient to confine a patient for compulsory treatment. Mezick, 920 S.W.2d at 430. The State cannot meet its burden of proof without presenting evidence of the behavior of the proposed patient that provides the factual basis for the expert opinion. See id. The recent overt act or continuing pattern of behavior shown by the State must also relate to the criterion on which the judgment is based. See T.G. v. State, 7 S.W.3d 248, 252 (Tex.App.-Dallas 1999, no pet.).

C. Standards of Review

To review the legal sufficiency of the evidence where the burden of proof is clear and convincing evidence, we consider all of the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002). We must assume that the trier of fact resolved disputed facts in favor of its finding if a reasonable trier of fact could do so, and must disregard all evidence that a reasonable trier of fact could have disbelieved or found to be incredible. Id.

In reviewing factual sufficiency challenges, we review all the evidence in the record, both that in support of and contrary to the trial court’s findings. In re C.H., 89 S.W.3d 17, 27-29 (Tex.2002). We must give due consideration to evidence the trier of fact could reasonably have found to be clear and convincing. Id. at 25. Under the clear and convincing standard, we determine whether the evidence is such that the trier of fact could reasonably form “a firm belief or conviction” as to the truth of the allegations sought to be established by the State. Id. We must consider whether disputed evidence is such that a reasonable trier of fact could not have reconciled that disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266. The trial court as the trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. In re Estate of Canales, 837 S.W.2d 662, 669 (Tex.App.-San Antonio 1992, no writ).

III. ANALYSIS

L.H. does not challenge the determination that she was mentally ill. See Tex. Health & Safety Code Ann. § 574.034(a)(1). However, she challenges the evidence supporting the findings required pursuant to Section 574.034(a)(2). In a related appeal, she also challenges the order authorizing administration of psychoactive medications on the basis that the trial court’s commitment order is not supported by sufficient evidence.

We disagree with the State’s position that the evidence of L.H.’s Mssing of other patients serves as a factual basis for upholding the trial court’s order. We conclude that such action, while perhaps not advisable in a facility for those suffering from mental illnesses, does not sufficiently confirm the likelihood of harm to L.H. Likewise, we conclude that L.H.’s refusal to take medication is, alone, insufficient to form the factual basis for the trial court’s finding that L.H. posed a danger to herself.

In support of her position, L.H. relies on a line of cases holding that the evidence was insufficient to support the trial court’s findings. See In re K.D.C., 78 S.W.3d 543, 550-51 (Tex.App.-Amarillo 2002, no pet.); K.T. v. State, 68 S.W.3d 887, 893 (Tex.App.-Houston [1st Dist.] 2002, no pet.); T.G. v. State, 7 S.W.3d 248, 252 (Tex.App.-Dallas 1999, no pet.); Johnstone v. State, 961 S.W.2d 385, 389 (Tex.App.-Houston [1st Dist.] 1997, no writ); Broussard v. State, 827 S.W.2d 619, 622 (Tex.App.-Corpus Christi 1992, no writ); In re J.S.C., 812 S.W.2d 92, 95 (Tex.App.-San Antonio 1991, no writ); see also J.M. v. State, 178 S.W.3d 185 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (not designated for publication); For the Best Interest & Prot. of J.J.K. v. State, Nos. 14-03-00379-CV & 14-03-00380-CV, 2003 WL 22996950, 2003 Tex.App. LEXIS 10730 (Tex.App.-Houston [14th Dist.] Dec. 23, 2003, no pet.) (not designated for publication). We reaffirm the general proposition that evidence of L.H.’s mental illness, which she does not contest on appeal, without more, does not fulfill the statutory requirement for ordering involuntary inpatient mental health services under Section 574.034. See K.D.C, 78 S.W.3d at 551; T.G., 7 S.W.3d at 252; Broussard, 827 S.W.2d at 622.

However, after carefully reviewing the evidence presented in these cases, we distinguish the instant case from that line of cases in that, here, we do, in fact, have evidence that L.H. cut herself and also took actions that would indicate she contemplated doing so again. Such evidence confirms “the likelihood of serious harm” to L.H. We now focus our attention to the evidence of the two incidents regarding L.H.’s alteration of razors into weapons and determine whether such evidence is “a recent overt act ... that tends to confirm ... the likelihood of serious harm to [L.H.].” See Tex. Health & Safety Code Ann. § 574.034(d)(1).

A. First Incident with Razor

The first razor incident, again, involved the use of a razor as a weapon in response, according to L.H., to the danger posed to her by her former association with a drug dealer and her cooperation with law enforcement officials. The evidence shows that she used this weapon to injure both her mother and herself. Such evidence would appear to constitute a factual basis for the trial court’s finding that L.H. posed a danger to herself. However, Section 574.034(d) explicitly requires that the evidence show a “recent overt act ... that tends to confirm ... the likelihood of serious harm to [L.H.].” Tex. Health & Safety Code Ann. § 574.034(d)(1). L.H. concedes that such an act could confirm the likelihood of harm to herself. Here, the issue concerning this evidence centers on whether the act was a recent one.

Dr. Lee admits that he does not know the exact date the incident occurred. On cross-examination, he stated only that the incident occurred “[b]efore she came to the hospital.” It is not clear whether he means “shortly” before or simply at some point before her arrival at the hospital. We examine the remainder of the record for evidence regarding when this first incident occurred.

From L.H., we learn that she made the weapon out of concern for her own safety in the context of her cooperation with law enforcement in a case against a drug dealer. We do not and cannot know from this record whether there is any truth to the statement or whether she was delusional or paranoid. Her testimony is critical, however, in placing this first incident in its proper time frame.

L.H. testified that she had been clean and sober since 3:10 p.m. on October 27, 2005, approximately three weeks before her commitment hearing. She was then asked about the drug dealer who, allegedly, had been following her:

I hope he’s behind bars. Unless my mother’s turned in the evidence — but I was told to take matters into my own hands. I dropped onto my knees in my mother’s yard, and I got told I was crazy. That was the whole thing. And my mother is behind this.

By this, the record indicates that she was praying in the yard during the time frame in which she was in fear of the drug dealer. We know from Dr. Lee’s testimony that this public praying was “the final event that brought her into the hospital initially.” So, the record places the razor incident in the context of her drug recovery, cooperation with authorities, fear of being harmed by the drug dealer, and the praying-in-the-yard incident, all of which immediately preceded L.H.’s hospitalization.

So, while Dr. Lee only states that this first razor incident occurred “[p]rior to her coming to the hospital,” the record sufficiently places this incident in the time frame very shortly before she was taken to the hospital, making this incident a “recent overt act ... that tends to confirm ... the likelihood of serious harm to [L.H.].” Considering all of the evidence in the light most favorable to the trial court’s finding, we determine that a reasonable trier of fact could have formed a firm belief or conviction that its findings were true.

L.H. adamantly denies that she has ever cut herself (or her mother). Nevertheless, since the trial court is the exclusive judge of the credibility of witnesses and the weight to be given their testimony, we conclude that this disputed evidence would not prevent the trial court from reconciling the dispute in favor of its finding. See J.F.C., 96 S.W.3d at 266. We, therefore, conclude that the evidence was factually sufficient.

B. Second Incident with Razor

With that in mind, we add that the second incident, in which L.H. fashioned a razor “tool” while she was in the hospital, also constitutes “a recent overt act ... that tends to confirm ... the likelihood of serious harm to [L.H.].” See Tex. Health & Safety Code Ann. § 574.034(d)(1). That is, considering she had done harm to herself with a razor in the recent past, the fact that she fashioned another device out of a razor tends to confirm Dr. Lee’s concerns that L.H. is likely to harm herself. While the record does not demonstrate that she did any harm to herself with the second razor or that she did anything other than caulk repair before disposing of it on her volition, it need not do so. The trial court was authorized to disbelieve that L.H. made the device to clean the extra caulk out of the shower or, even, that she disposed of it. Moreover, “Texas law does not require relatives or physicians of the mentally ill (or the courts) to stand idly by until serious harm occurs.... The purpose of temporary commitment is to avoid just such harm.” See For the Best Interest & Prot. of J.L., Nos. 14-05-00360-CV & 14-05-00361-CV, 2006 WL 56821, at 5, 2006 Tex.App. LEXIS 204, at *14 (Tex.App.-Houston [14th Dist.] Jan. 12, 2006, no pet. h.) (mem.op.) (not designated for publication); see In re G.H. v. State, 94 S.W.3d 115, 117 (Tex.App.-Houston [14th Dist.] 2002, no pet.). Considering the evidence of L.H.’s prior self-inflicted injury, the trial court could reasonably conclude that this second razor incident confirmed the likelihood of harm to L.H.

IV. CONCLUSION

We conclude that the evidence supporting the trial court’s finding is both legally and factually sufficient. We overrule L.H.’s point of error and affirm the trial court’s order.

      . At oral árgument, L.H. contended that the trial court’s order was invalid insofar as it used the term "or” rather than "and.” According to her argument, since the trial court found that L.H. would likely cause harm to herself or that she will continue to suffer without treatment, the order was invalid. This contention was not raised in L.H.’s brief. Arguments and claims of error not raised in the party’s brief are considered waived. See Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 493 (Tex.1996); Satterfield v. Satterfield, 448 S.W.2d 456, 460 (Tex.1969); Flagship Hotel, Ltd. v. City of Galveston, 117 S.W.3d 552, 563 n. 2 (Tex.App.-Texarkana 2003, pet. denied). Since the issue was not raised in her brief to the Court, preventing the State from fairly responding to her contention, we do not consider the contention on appeal and note only that, in accordance with Section 574.034(c), the order ”specif[ies] which criterion listed in Subsection (a)(2) forms the basis for the decision.” See Tex. Health & Safety Code Ann. § 574.034(c) (Vernon 2003).


author: Justice ROSS.

text:
    James LONGINO, M.D., Appellant, v. Douglas CROSSWHITE and Kam Crosswhite, on Behalf of Ashton Douglas CROSSWHITE, a Minor, Appellees.
    No. 06-05-00109-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Dec. 19, 2005.
    Decided Jan. 27, 2006.

      Ken W. Good, Vance L. Metcalf, Kent, Good, Anderson & Bush, PC, Tyler, for appellant.
    Randy Taylor, Mark T. Falcon, Law Office of Randy Taylor, Yantis, for appellees.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

James Longino, M.D., appeals from the denial of his motion challenging the expert report in this medical malpractice lawsuit brought by Douglas Crosswhite and Kam Crosswhite, on behalf of Ashton Douglas Crosswhite, their minor son. Because the expert report fails to provide specific information concerning Longino’s conduct, the trial court abused its discretion in denying the motion. We reverse and remand for further proceedings consistent with this opinion.

The Expert Report

At close to midnight October 19, 2002, the Crosswhites took their three-year-old child, Ashton, to the Hopkins County Memorial Hospital Emergency Department with symptoms of a possible upper respiratory infection, accompanied by nausea, vomiting, and fever. Ricky Cameron, M.D., the emergency room physician, prescribed some medications to alleviate the vomiting, ordered increased fluids, and told the Crosswhites to return the child for a recheck in twenty-four hours if his condition had not improved. Approximately twenty-two hours later, the Crosswhites returned to the emergency room with Ash-ton, whose condition had deteriorated. Cameron admitted Ashton to the hospital, prescribed additional medication and IV fluids, and consulted by telephone with Longino, a pediatrician who had treated Ashton in the past. The following morning, at around nine o’clock, Longino ordered tests conducted that diagnosed Ash-ton with bacterial meningitis. Around noon the same day, Ashton was transferred to the Children’s Medical Center of Dallas, where he eventually recovered, but with what the Crosswhites’ expert describes as “significant and permanent neurological injuries.”

The Crosswhites sued Cameron, Longi-no, and Hopkins County Memorial Hospital for medical malpractice. The Cross-whites alleged that a prudent physician would have performed the tests necessary to diagnose the bacterial meningitis earlier and that the delay was the cause of Ash-ton’s “significant and permanent neurological injuries.” After the Crosswhites filed their expert report, Longino filed a motion challenging the adequacy of that report. The trial court denied Longino’s motion.

The Expert Report Is Not a Good-Faith Effort

Longino contends, in his sole point of error, that the report provided by the Crosswhites fails to describe any specific conduct on his part which could be construed as a deviation from the standard of care. Reviewing the four corners of the expert report, we agree.

Section 74.351 of the Civil Practice and Remedies Code requires a plaintiff asserting a healthcare liability claim to submit an expert report, along with the expert’s curriculum vitae, as to each physician or healthcare provider named as a defendant in the suit, no later than the 120th day after filing suit. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (Vernon Supp. 2005). The Act describes an expert report as a written report providing “a fair summary of the expert’s opinions ... 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.” Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6).

If a claimant furnishes a report within the time permitted, a defendant may file a motion challenging the report. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(l). The trial court shall grant the motion only if it appears to the court, after a hearing, that the report does not represent an objective good-faith effort to comply with the statutory definition of an expert report. See id; Am. Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001).

We review a trial court’s decision regarding the adequacy of an expert report by an abuse-of-discretion standard. Hillcrest Baptist Med. Ctr. v. Wade, 172 S.W.3d 55, 60 (Tex.App.-Waco 2005, pet. filed); see Group v. Vicento, 164 S.W.3d 724, 727 (Tex.App.-Houston [14th Dist.] 2005, pet. filed). An abuse of discretion occurs when a trial court acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. Bowie Mem’l Hasp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). A trial court does not abuse its discretion simply because it may decide a matter within its discretion differently than an appellate court. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985). However, “a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion.... ” Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).

In determining whether the report represents a good-faith effort, the trial court’s inquiry is limited to the four corners of the report. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6); Palacios, 46 S.W.3d at 878. A “good-faith” effort requires that the report discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question and to provide a basis for the trial court to conclude that the claims have merit. Palacios, 46 S.W.3d at 875. “To avoid dismissal, a plaintiff need not present evidence in the report as if it were actually litigating the merits. The report can be informal in that the information in the report does not have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at trial.” Id. at 879. The expert report is not required to prove the defendant’s liability, but rather only provide notice of what conduct forms the bases of the plaintiffs complaints.

“To constitute a ‘good-faith effort,’ the report must provide enough information to fulfill two purposes: (1) it must inform the defendant of the specific conduct the plaintiff has called into question, and (2) it must provide a basis for the trial court to conclude that the claims have merit.” Wright, 79 S.W.3d at 52 (citing Palacios, 46 S.W.8d at 879). Omission of any of the statutory elements prevents the report from being a good-faith effort. Palacios, 46 S.W.3d at 879. A report that merely states the expert’s conclusions about the standard of care, breach, and causation does not meet the statutory requirements. Id.

The report here fails to provide a fair summary of how Longino breached the applicable standard of care. That report states in pertinent part as follows:

In consultation with Dr. James Longino, Dr. Cameron ordered a blood culture, basic blood tests, IV fluids, IV Claforan antibiotics (1st given around 12 midnight), and admitted Ashton to the hospital with a presumptive diagnosis of dehydration and enteritis. During this encounter, a prudent physician would have at least become alarmed by Ash-ton’s symptoms, would have promptly performed a diagnostic lumbar puncture, and would have aggressively initiated treatment with the appropriate combination of antibiotics.
Dr. Cameron[’s] and Dr. Longino’s care of Ashton Crosswhite fell below the standard of care for the emergency diagnosis and treatment of bacterial meningitis in a child. Their failure to either recognize or acknowledge the obvious symptoms of fever, altered mental status, and neck pain; to perform a timely diagnostic lumbar puncture; and to aggressively treat Ashton’s bacterial meningitis with an appropriate combination of antibiotics led to an unnecessary exacerbation of his symptoms. Subsequently, this prolonged symptomatology was a cause of Ashton’s significant and permanent neurological injuries.

“While a ‘fair summary’ is something less than a full statement of the applicable standard of care and how it was breached, a fair summary must set out what care was expected, but not given.” Palacios, 46 S.W.3d at 879. The Texas Supreme Court stated that “whether a defendant breached his or her duty to a patient cannot be determined absent specific information about what the defendant should have done differently.” Id. at 880. In Jones v. Ark-La-Tex Visiting Nurses, this Court held that the trial court did not abuse its discretion in dismissing a case against several nurses because the expert report failed to differentiate between the nurses and the doctors, and complained of an act not within the control of the nurses. 128 S.W.3d 393, 397 (Tex.App.-Texarkana 2004, no pet.). Similarly, in this case, the expert report fails to differentiate between the conduct of Cameron and Longino, and the complained-of conduct occurred while Cameron was the treating physician. The report contains no specific information concerning how Longino breached the standard of care apart from Cameron’s conduct. The report, therefore, is not a good-faith effort as to Longino.

In addition, the expert’s report must contain information on causation. It is not enough for a report to contain con-clusory insights about the plaintiffs claims. Moore v. Sutherland, 107 S.W.3d 786, 790 (Tex.App.-Texarkana 2003, pet. denied); Wright, 79 S.W.3d at 52. Rather, the expert must explain the bases of the statements and link his or her conclusions to the facts. Wright, 79 S.W.3d at 52. The report here only states that the delay in diagnosis caused significant and permanent neurological injuries. An expert report must show causation beyond mere conjecture. Id. The report in this case contains mere conclusions concerning causation.

Palacios makes it clear that a claimant must present specific evidence in a medical report because “knowing what specific conduct the plaintiffs experts have called into-question is critical to both the defendant’s ability to prepare for trial and the trial court’s ability to evaluate the viability of the plaintiffs claims.” Palacios, 46 S.W.3d at 876-77. Thus, in the language of Palacios, the expert report here fails to “inform the defendant of the specific conduct the plaintiff has called into question.” See id. at 879. In the absence of specific information concerning Longi-no’s conduct and only conclusory statements concerning causation, the trial court abused its discretion by finding that the expert report constituted a good-faith effort.

For the reasons stated, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

      . We note that the parties in their briefs cite to the current version of Section 74.351 of the Texas Civil Practice and Remedies Code. Section 74.351 has been amended since the trial court's decision. Compare Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 864, 875 (amended 2005) (current version at Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (Vernon Supp.2005)) with Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590 (codified at Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (Vernon Supp.2005)). Because the amendment is not relevant to this case, we will cite to the current version of the statute.

      . Longino contends the claims must be dismissed. Because a report, although deficient, was timely filed, the trial court could grant the Crosswhites an extension of time under Section 74.351. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c); In re Woman’s Hosp. of Tex., Inc., 141 S.W.3d 144, 156 (Tex.2004).


author: RICK STRANGE, Justice.

text:
    Shad Edward LUVANO, Appellant, v. STATE of Texas, Appellee.
    No. 11-04-00218-CR.
    Court of Appeals of Texas, Eastland.
    Feb. 2, 2006.
    Rehearing Overruled March 1, 2006.

      Kenneth G. Leggett, Gravley & Leggett, PLLC, Attorneys At Law, Abilene, for appellant.
    James Eidson, District Attorney, Patricia Dyer, Assistant Criminal District Atty’s Office, Abilene, for appellee.
    Panel consists of: WRIGHT, C.J., and McCALL, J., and STRANGE, J.
   OPINION

RICK STRANGE, Justice.

The jury convicted Shad Edward Luva-no of capital murder. Punishment was assessed at life. Appellant asserts that the trial court erred in not allowing him to (1) test DNA samples collected by the State at the crime scene and (2) collect and test a DNA sample of a witness. We affirm.

Background Facts

On March 9, 2003, the victim’s body was discovered in his Abilene apartment. A police investigation determined that the victim was stabbed multiple times in the upper torso and neck while sitting in his recliner.

Appellant was identified as a suspect in the crime. The police located appellant and his girlfriend Misty Rodriguez in Room 116 of the Century Lodge. Rodriguez consented to a search of their room. The police discovered several pieces of clothing during the search, including a pair of denim pants and a white shirt both stained with blood. DNA testing indicated that the blood found on this clothing matched the victim’s DNA.

After taking appellant into custody, the police interviewed Rosie Applin, who was staying in Room 112 of the Century Lodge. On the night of the murder, she had loaned a sword to appellant. When she asked why he wanted to borrow the sword, appellant told her that he was going to kill or “shank” somebody. When appellant returned to the Century Lodge the next morning, Applin noticed that his jeans and shirt were bloody. She also noticed that the sword, which appellant returned to Applin, was covered in what looked like blood. DNA testing indicated that the blood on the sword belonged to the victim.

Detectives Jeff Bell and James David Atkins of the Abilene Police Department interviewed appellant after his arrest. Appellant called his mother during the interview and told her that he killed the victim. After talking to his mother, appellant admitted to the detectives that he stabbed the victim because the victim insulted his mother. Appellant also consented to a television interview during which he again confessed to killing the victim.

The State charged appellant with capital murder. Rodriguez, although charged with aggravated robbery, was not indicted in the capital murder case. Rodriguez was called to testify during the trial and asserted her Fifth Amendment right against self-incrimination.

Appellant testified in his own defense. Appellant first testified that he went with Rodriguez to the victim's apartment to sell him swords and that an argument between himself and the victim escalated into a fight. Appellant further testified that, during the fight, he stabbed the victim in the neck with his pocketknife and that the stabbing was in response to the victim choking him. Appellant also testified that Rodriguez was involved in the fight. Finally, appellant testified that he lied to the police about killing the victim in order to protect Rodriguez.

Dr. Marc Andrew Krouse, a medical examiner, testified that the victim was stabbed or cut at least thirty-five times and that several of the wounds would have caused death almost immediately, including two wounds to the neck. He testified that the neck wounds could have been caused by a pocketknife but that the chest wounds were caused by something else.

Both the State and the defense called DNA experts to testify. Constance Patton, the State’s expert, testified that the blood on the murder weapon and on appellant’s clothing belonged to the victim. Appellant’s DNA expert, Dr. Rick Staub, concurred with the results of the State’s DNA testing. Dr. Staub also testified that there was both male and female DNA on the white shirt found in appellant’s motel room and that it was possible that a female could have worn the shirt on the night of the murder. Dr. Staub admitted, however, that there was no way to determine when the shirt was worn by the female. The State’s DNA expert testified that the presence of female DNA on the shirt had little evidentiary value because it would not indicate if the female was wearing the shirt on the night of the offense.

Appellant filed a pretrial motion requesting forensic DNA testing on twenty-nine samples collected by the police during the investigation and also a motion to require Rodriguez to produce a DNA sample. The trial court denied both motions. On August 3, 2004, the day after the trial began, appellant filed a subpoena duces tecum to collect DNA from Rodriguez. Counsel for Rodriguez filed a motion to quash the subpoena. The trial court granted the motion to quash. The trial resumed, and appellant was convicted of capital murder. This appeal followed.

Issues on Appeal

In appellant’s first issue, he asserts that the trial court erred by refusing to allow appellant’s court-appointed expert to test the twenty-nine DNA samples collected by the Abilene Police Department at the crime scene and related areas. In appellant’s second and third issues, he asserts that the trial court erred by denying his motion to require Rodriguez to produce a DNA sample. In appellant’s fourth and fifth issues, he asserts that the trial court erred by quashing appellant’s subpoena duces tecum for a sample of Rodriguez’s hair.

The Motion for Forensic DNA Testing

Appellant asserts initially that the trial court’s refusal to allow his court-appointed expert to test the twenty-nine DNA samples collected by the Abilene Police Department from the crime scene and related areas violated his right to due process under the Fourteenth Amendment to the U.S. Constitution.

Prior to trial, appellant filed a Motion for Forensic DNA Testing of Evidence Collected by the State. The motion involved twenty-nine untested DNA samples collected by the Abilene Police Department during the investigation. One of appellant’s theories during trial was that Rodriguez stabbed the victim. Appellant asserts that it was essential for him to prove in some way that Rodriguez was in the room where the victim died.

Motions for forensic DNA testing are authorized by Tex.Code Crim. Proc. Ann. ch. 64 (Vernon Supp.2005) and are usually not made until after a person has been convicted of an offense. Because there is no provision in the Code of Criminal Procedure authorizing such motions prior to conviction, we will treat appellant’s motion as a discovery request pursuant to Tex. Code Crim Proc. Ann. art. 39.14 (Vernon Supp.2005).

A defendant in a criminal case does not have a general right to discovery of evidence in possession of the State. Whitchurch v. State, 650 S.W.2d 422, 425 (Tex.Crim.App.1988). There is a limited right to discovery pursuant to Article 39.14 which provides, in relevant part, that the trial court may “order the State before or during trial ... to produce and permit the inspection ... of any ... objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies.” An accused’s right to discovery is within the sound discretion of the trial court. Quinones v. State, 592 S.W.2d 933, 940 (Tex.Crim.App.1980). A trial court abuses its discretion if it does not permit discovery of evidence that is material to the defense of the accused. See McBride v. State, 838 S.W.2d 248, 250 (Tex.Crim.App.1992).

In determining materiality, omitted evidence must be evaluated in the context of the entire record. See Frank v. State, 558 S.W.2d 12, 14 (Tex.Crim.App.1977). Materiality requires more than the mere possibility that the information might help the defense or affect the outcome of the trial. See Hampton v. State, 86 S.W.3d 603, 612 (Tex.Crim.App.2002). Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Amos v. State, 819 S.W.2d 156, 159 (Tex.Crim.App.1991). A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Ex parte Kimes, 872 S.W.2d 700, 702 (Tex.Crim.App.1993).

After reviewing the entire record, we do not believe there is a reasonable probability that, had appellant been able to test the DNA samples, the result of the proceeding would have been different. Initially we note that it is unclear from the record where the untested samples came from. Attached to appellant’s motion was a report by Tammy McLean, a forensic specialist, who participated in the crime scene investigation. She reported that the samples were taken from the victim’s apartment and two bathrooms in the Century Lodge, but she did not specify where exactly each untested sample came from.

McLean reported that she processed a coke can and a coffee cup from an end table by the couch; an ashtray, a wallet, and a day planner from the coffee table; an empty pack of cigarettes; and a DVD player. However, the report does not indicate if the untested DNA samples came from these items. The untested samples may also have come from the victim’s kitchen, bathroom, the inside knob of the front door, and the stairs outside the front door. Nowhere in the report are the untested samples matched with the specific areas in which they were obtained. The report also does not break down how many untested samples were taken from the victim’s apartment and how many were taken from the Century Lodge. Without knowing if the samples even came from inside the victim’s apartment, it is impossible to conclude that DNA analysis would have confirmed Rodriguez’s presence there.

Moreover, even if we assume each of the samples did in fact come from inside the apartment and in close proximity to the victim, the record does not support a finding of materiality because the evidence of appellant’s guilt was overwhelming. The victim’s blood was .found on appellant’s shirt and pants. The victim’s blood was also found on the handle wrapping of a sword that appellant had borrowed on the night of the murder. One witness testified that appellant told her he was going to kill the victim, and another witness testified that appellant said he was going to hurt the victim. Appellant confessed to stabbing the victim to the police, to his mother, and to a television reporter. There is also evidence in the record that he confessed the crime to his ex-girlfriend.

DNA testing would not have contradicted this evidence. At most, DNA testing might have proven that someone else was in the victim’s apartment at some point in time. DNA testing would not prove when the third person was in the apartment nor what he or she was doing while there.

Appellant contended during oral argument, however, that confirmation of Rodriguez’s presence in the room would bolster his credibility. That alone does not make testing the DNA evidence material to appellant’s case. Materiality requires that the testing directly impact the outcome as opposed to potentially providing helpful information. See United States v. Agurs, 427 U.S. 97, 109-10, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)(“The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality1 in the constitutional sense”). Appellant’s first issue is overruled.

The Motion to Require Rodriguez to Produce a DNA Sample

In appellant’s second and third issues, he asserts that the trial court’s denial of Ms motion to require Rodriguez to produce a DNA sample to compare -with the female DNA found on the white shirt with the victim’s blood violated Ms right to compulsory process under the Sixth Amendment of the U.S. Constitution and Article I, section 10 of the Texas Constitution.

The Sixth Amendment of the Umted States Constitution provides in relevant part that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor.” Similarly, Article I, section 10 of the Texas Constitution provides that a defendant “shall have compulsory process for obtaining witnesses in his favor.”

The right to compulsory process is “the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies.” Coleman v. State, 966 S.W.2d 525, 527 (Tex.Crim.App.1998). It does not guarantee, however, the right to secure evidence from any and all witnesses; rather, compulsory process is guaranteed only for ob-taimng evidence that would be both material and favorable to the defense. See id. at 527-28. The burden of proving materiality and favorableness is on the defendant. See id. at 528.

Appellant has not met his burden of proof. If Rodriguez’s DNA was on the white shirt, this could possibly be favorable to appellant’s case; but we cannot conclude that it would be material. The female DNA was not found on the murder weapon nor was it found on the victim. It was found on a shirt seized by the police from a motel room appellant and Rodriguez were sharing. This shirt could have been worn at any point in time prior to the night of the murder because appellant and Rodriguez had an intimate relationship. It is certainly conceivable that Rodriguez could have worn appellant’s shirt on more than one occasion. Therefore, even if testing revealed that the female DNA on the shirt belonged to Rodriguez, it would not prove anything material to appellant’s case. The mere possibility that she wore the shirt at some point in time does not necessarily implicate Rodriguez nor does it exculpate appellant. Appellant’s second and third issues are overruled.

The Subpoena Duces Tecum

In appellant’s fourth and fifth issues, he asserts that, by quashing his subpoena duces tecum, the trial court violated Tex.Code Crim. Proc. Ann. art. 24.02 (Vernon 1989) and the Sixth and Fourteenth Amendments of the U.S. Constitution. Appellant’s arguments concerning the Sixth and Fourteenth Amendments involve his constitutional rights to due process and compulsory process. As we have already explained, we do not believe appellant’s rights to due process and compulsory process were violated because the DNA evidence was not material to appellant’s case.

We also do not believe Article 24.02 was violated. This statute provides that, “[i]f a witness have in his possession any instrument of writing or other thing desired as evidence, the subpoena may specify such evidence and direct that the witness bring the same with him and produce it in court.” A subpoena duces te-cum is not to be used as a discovery weapon but as an aid to discovery based upon a showing of materiality and relevance. Ealoms v. State, 983 S.W.2d 853, 859 (Tex.App.-Waco 1998, pet. ref'd). If a showing of materiality is not made, it is proper for the trial court to quash the subpoena. See Martin v. Darnell, 960 S.W.2d 888, 840-41 (Tex.App.-Amarillo 1997, no pet.).

As we have already explained, Rodriguez’s DNA was not material to appellant’s ease because there is not a reasonable probability that Rodriguez’s DNA would have changed the outcome of the trial. For that reason, we hold that the trial court did not err in quashing the subpoena duces tecum. We overrule appellant’s fourth and fifth issues.

Conclusion

Because the untested DNA samples and Rodriguez’s DNA were not material to appellant’s case, the trial court did not abuse its discretion in denying appellant’s motions and in quashing appellant’s subpoena duces tecum.

The judgment of the trial court is affirmed.

      . Applin testified that "shank” means to cut or stab somebody.

      . The robbery charge arose from the theft of an Xbox and other items from the victim’s apartment.

      . Chapter 64 refers repeatedly to the movant as "a convicted person” and to the trial court to which the motion is submitted as "a convicting court.” See, e.g., Sections 64.01(a), 64.03(a).

      . This conclusion is supported by the fact that the State did not dispute that Rodriguez could have been present at the time of the murder. In fact, during its opening argument, the State conceded she was probably present.