author: DIXON W. HOLMAN, Justice.

text:
    Adrian Thaddeus WILSON, Appellant, v. The STATE of Texas, State.
    No. 2-03-490-CR.
    Court of Appeals of Texas, Fort Worth.
    Nov. 4, 2004.

      Daniel L. Young, Fort Worth, for Appellant.

      Tim Curry, Crim. Dist. Atty., Charles M. Mallín, Debra Ann Windsor, Lisa Callaghan, Shannon Estrada, Asst. Crim. Dist. Attys., Fort Worth, for State.
    Panel F: CAYCE, C.J.; LIVINGSTON and HOLMAN, JJ.
   OPINION

DIXON W. HOLMAN, Justice.

In four issues, Appellant Adrian Thaddeus Wilson appeals his aggravated robbery conviction, claiming that 1) the trial court erred in allowing hearsay testimony, 2) allowing the hearsay testimony was reversible error, 3) his constitutional right to confrontation was violated, and 4) such violation constitutes reversible error. We affirm.

Factual Background

On March 23, 2003, Aron and Kristyle Webb returned home from a Mend’s birthday party. At 1:30 a.m., Fort Worth Police received a dispatch to the Webbs’ home concerning a robbery. Aron told police that a car pulled next to him when he pulled into the driveway and that a man got out asking for directions. The man pulled out a revolver when Aron approached the car to give him directions. He pointed the revolver at Aron and said, “Give me your wallet.” Aron threw the cup of soda he was holding in the man’s face and took off running. Several days later Aron identified the man during a photospread shown to him by the Fort Worth Police Department.

A few days after the incident, Officer T.G. Shelton saw a car that matched the description given by Aron. Appellant was the driver of that car, and he also matched the physical description given by Aron. Once Appellant realized that Officer Shelton was following him, he stopped the car, put his head out of the window, and asked, ‘Why are you following me? You keep following me.” The officer then told Appellant to get out of the car, but instead of exiting the car, Appellant accelerated and took off. The car eventually jumped the curb and came to a stop, and Appellant and two others in the car took off running through a field.

Officers M.G. Middleton and B.D. Hal-ford testified that while they were at the scene where the car chase ended, Shanitra Thompson, whom police later learned was Appellant’s girlMend, approached them. Both testified that Thompson appeared to be upset, nervous, and looked like she was about to cry. Thompson inquired about what happened to the car and passengers that were in the car. Initially, she told police the car had been stolen. She then told police that she was the girlfriend of the driver of the car and that his initials were A.D. Thompson gave Appellant’s wallet, which contained a piece of paper with her name and number, to Officer Middleton. The police eventually arrested Appellant on April 5, 2003 in Dallas.

Confrontation Clause

In his first and second issues, Appellant contends that the trial court erred in allowing testimony over his hearsay objections regarding Thompson’s statements about the incident and that admitting the statements was reversible error because it affected one of his substantial rights. In his third and fourth issues, Appellant complains that allowing the hearsay testimony violated his constitutional right to confront Thompson and was reversible error. The State responds that Thompson’s statements indicate that she was under stress when she spoke to the police and that the trial court properly admitted the statements as excited utterances. Defense counsel objected to the testimony, and the trial court overruled the objection.

The admission of hearsay evidence against a criminal defendant implicates the Confrontation Clause of the Sixth Amendment because the defendant is not afforded the opportunity to confront the out-of-court declarant. U.S. Const, amend. VI. The central point in this case is whether a non-testifying witness’ self-initiated statements made to police officers during the investigation of a crime is admissible against the defendant. Therefore, the first issue we must address is not whether Thompson’s statements should have been admitted under the rules of evidence but whether the admission violated Appellant’s Sixth Amendment right to confrontation. In deciding this constitutional issue, we review the trial court’s ruling de novo. See Muttoni v. State, 25 S.W.3d 300, 304 (Tex.App.-Austin 2000, no pet.).

At the time of Appellant’s trial, a Sixth Amendment challenge to the admissibility of an out-of-court statement against the accused was governed by Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980), overruled in part by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 1369, 158 L.Ed.2d 177 (2004). In Roberts, to avoid a violation of the Confrontation Clause, hearsay must fall within a firmly rooted hearsay exception or must contain particularized guarantees of trustworthiness such that cross examination would probably add little, if anything, to the reliability of the evidence. Id. This standard was applied in several subsequent noteworthy decisions. See Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (holding co-defendant’s confession incriminating defendant was not within a firmly rooted exception to the hearsay rule under Roberts standard); see also Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) (holding evidence must be “so trustworthy that adversarial testing would add little to its reliability”). The Supreme Court overruled Roberts and set out a new test prohibiting the admission of “testimonial” statements when the witness is unavailable unless the defendant had the opportunity for cross-examination. Crawford, 124 S.Ct. at 1369. Now, different analyses apply to nontestimonial hearsay and testimonial hearsay. See id. at 1374. The court held that

[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law-as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.

Id.; see also Barela v. State, No. 08-02-00492-CR, 2004 WL 2192604, at *6 (Tex.App.-El Paso Sept.30, 2004, no pet. h.) (not designated for publication). According to Crawford, the use of the Roberts test has caused rationale of the Supreme Court’s cases to depart from the original intent of the framers of the Constitution. 124 S.Ct. at 1359-63. Crawford declares that the Roberts test is too broad because it applies the same analysis whether the out-of-court statement is testimonial or not and too narrow because it admits ex parte testimonial statements “upon a mere finding of reliability.” Id. at 1369. Crawford contends that the Roberts test is inappropriate not only because its results were unpredictable, but also because its application allowed testimony the Confrontation Clause clearly meant to exclude. Id. at 1371-72.

The threshold question imposed by Crawford is whether the proffered out-of-court statement is “testimonial” in nature. Id. at 1364. Although the Supreme Court declined to define “testimonial,” it identified certain categories that-fall under the heading of testimonial statements, specifically, “ex parte in-court testimony or its functional equivalent, ... extrajudicial statements contained in formalized testimonial materials, ... [and] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id. According to Crawford, these types of statements bear the closest kinship to the abuses at which the Confrontation Clause was directed. Id. If the out-of-court statement is determined to be testimonial in nature, the Sixth Amendment requires that the witness be unavailable and that the defendant had a prior opportunity for cross-examination. Id. at 1374.

We turn to the statements made by Thompson at the scene of the incident and address whether her out-of-court statements are testimonial in nature. The Crawford analysis applies to out-of-court testimonial statements by a declarant who is not available at trial. Thompson was not called to testify at trial and the objected-to evidence consisted of out-of-court statements. Thus, the only issue is whether the statements at issue were testimonial in nature. We conclude that Thompson’s statements were nontestimonial and that Crawford has no application here.

A number of factors support this determination. First, Thompson initiated the interaction with the officers; the police did not seek out Thompson. She approached the police at the scene where her car had been wrecked and abandoned. Second, her statements to the police were made in the course of her inquiring about her car and the occupants that were missing from the car. The officers at the scene testified that when Thompson approached them she seemed nervous and visibly upset. She was in no way being interrogated by them, and any questions poséd to her by the police were in the context of answering her questions and determining why she was upset. Third, she was not responding to tactically structured police questioning as in Crawford where Miranda warnings had been issued, but was instead seeking information about her vehicle that was visibly damaged and the whereabouts of the individuals missing from the car. The police were not questioning her regarding known criminal activity and did not have any reason to know her relationship to the driver of the car until she told officers that she was Appellant’s girlfriend and handed his wallet to Officer Middleton. Considering all of these facts set out in the record, we conclude that the statements made by Thompson to Officers Middleton and Hal-ford were not made during police interrogation triggering the cross-examination requirement of the Confrontation Clause as interpreted by the court in Crawford. See Cassidy v. State, 149 S.W.3d 712, 716 (Tex.App.-Austin 2004). Nor did Thompson’s statements in any other way constitute a “testimonial” statement. See id. Accordingly, we overrule Appellant’s third and fourth issues.

HeaRsay Excited Utterance

Because Thompson’s statements were nontestimonial in nature, we turn to Appellant’s first and second, issues to determine if the statements fall within any hearsay exception. See Tex.R. Evid. 803(2). In Ms first and second issues, Appellant contends that the trial court erred in allowing testimony over his hearsay objections regarding Thompson’s statements about the incident and that admitting the statements was reversible error because it affected one of his substantial rights.

Whether an out-of-court statement is admissible under an exception to the general hearsay exclusion rule is a matter within the trial court’s discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App.2003). We review a trial court’s ruling admitting testimony under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex.Crim.App.), cert. denied, 534 U.S. 855, 122 S.Ct. 127, 151 L.Ed.2d 82 (2001). Therefore, we will reverse only if the trial judge’s decision was “so clearly wrong as to lie outside the zone within which reasonable persons might disagree.” See Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App.1992). The appellate court’s role is limited to determining whether the record supports the trial court’s ruling. Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App.1994).

The Texas Rules of Evidence define hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tex.R. Evid. 801(d). The rules of evidence provide an exception to the hearsay rule for excited utterances. Tex.R. Evid. 803(2). The defimtion of an excited utterance is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Id. The foundation of this exception is the belief that the statements made are involuntary and do not allow the declarant an adequate opportunity to fabricate, ensuring their trustworthiness. Reyes v. State, 48 S.W.3d 917, 919 (Tex.App.-Fort Worth 2001, no pet.). In order to determine if a statement qualifies as an excited utterance, the court must determine if the de-clarant “was still dominated by the emotions, excitement, fear, or pain of the event.” Zuliani, 97 S.W.3d at 596. The critical factor to look at is whether the surrounding circumstances indicate that the utterance resulted from impulse rather than from reason and reflection. Id.

In the present case, the evidence showed that Thompson made the statements within a short time frame from seeing her abandoned and -wrecked car and speaking to officers at the scene. It was clear from the scene that the car had been in some type of accident and that the driver was missing from the car. Both Officers Middleton and Halford testified that when Thompson approached them, she seemed upset, nervous, and looked like she was about to cry. She asked numerous questions about the wrecked car and the individuals that were missing from the car. She initially told police that the car had been stolen and then in the same conversation told them that the driver was her boyfriend and that she had lent it to him. Based on Thompson’s relationship to Appellant, her apparent concern for the vehicle and occupants, testimony as to her emotional state when the statements were made, and the conflicting statements made at the scene, the record supports the trial court’s admission of Thompson’s statements. A reasonable person could conclude that Thompson made the statements while under stress, fear, or excitement from seeing her car wrecked, abandoned, and surrounded by police officers, knowing that she had lent the car to her boyfriend. See Cantu, 842 S.W.2d at 682. Because the trial court properly admitted the statements, we overrule Appellant’s first and second issues.

Conclusion

Having overruled Appellant’s four issues on appeal, we affirm the trial court’s judgment.

      . See Cassidy v. State, 149 S.W.3d 712, 716 (Tex.App.-Austin 2004, pet. ref'd) (holding that an interview of a witness by a police officer at a hospital, shortly after an assault, did not constitute interrogation as the term is used in Crawford). But see Wall v. State, 143 S.W.3d 846, 851 (Tex.App.-Corpus Christi 2004, no pet.) (disagreeing with holding in Cassidy in similar fact situation).


source: Caselaw Access Project

author: FELIPE REYNA, Justice. TOM GRAY, Chief Justice,

license: Public Domain

text:
    Rodger ZIMMERMAN, Appellant, v. GLACIER GUIDES, INC., and Jimmie Rosenbruch, Appellees.
    No. 10-03-00036-CV.
    Court of Appeals of Texas, Waco.
    Nov. 10, 2004.

      Michael G. Cosby, Pakis, Giotes, Beard & Page, Waco, for appellant.
    Bruce Burleson, Ñaman, Howell, Smith & Lee, P.C., Temple, Keith C. Cameron, Ñaman, Howell, Smith & Lee, P.C., Austin, for appellees.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

Rodger Zimmerman filed suit against Glacier Guides, Inc. and its president Jimmie Rosenbruch for unjust enrichment after Glacier Guides refused to refund nearly $20,000 Zimmerman had paid for an Alaskan hunting expedition which Zimmerman was unable to attend due to the disruption of air travel after the September 11 tragedy. Zimmerman appeals the granting of Appellees’ special appearance. He contends in his sole issue that the evidence is factually insufficient to support the court’s decision. Because we conclude that Appel-lees presented sufficient evidence to negate all bases of personal jurisdiction asserted by Zimmerman, we will affirm.

BACKGROUND

Zimmerman testified at the special appearance hearing that he first learned of Glacier Guides and Rosenbruch through an advertisement in the 1997 “Convention Issue” of Alaska Professional Hunter magazine, which Zimmerman obtained at a Safari Club International convention in Dallas or Houston. Zimmerman traveled to Las Vegas, Nevada in January 2001. While there he went to the Glacier Guides booth at the Safari Club convention and made arrangements for a September 2001 hunting expedition in Alaska. Zimmerman paid a $12,000 deposit and received a brochure. The hunt was scheduled for September 15, 2001.

Rosenbruch later sent Zimmerman a letter thanking him for his business and assuring him that the trip would be worthwhile. Rosenbruch also called Zimmerman twice, the latter time being in August 2001 to inquire whether Zimmerman had mailed the remainder of the monies owed for the trip.

Zimmerman’s airline tickets were can-celled because of the events surrounding the terrorist attacks of September 11. Glacier Guides refused to give Zimmerman a refund. This lawsuit followed.

STANDARD OF REVIEW

Zimmerman contends that the evidence is factually insufficient to support the court’s granting of the special appearance.

To prevail in a special appearance hearing, a nonresident defendant must negate all bases for personal jurisdiction alleged. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex.2002). Appellees contend that they satisfied then-burden by merely proving their nonresi-dence because Zimmerman failed to make factually-specific jurisdictional allegations in his petition. Zimmerman responds that the Supreme Court has rejected this approach.

It is true that this Court and others have held that, when a plaintiff fails to state specific jurisdictional allegations in the petition, a nonresident defendant satisfies the burden of proof at a special appearance hearing by proving the defendant’s nonresident status. E.g., Bruno’s Inc. v. Arty Imports, Inc., 119 S.W.Bd 893, 897 (Tex.App.-Dallas 2003, no pet.); Lacefield v. Elec. Fin. Group, 35 S.W.3d 755, 761 (Tex.App.-Waco 2000, no pet.); Valsangiacomo v. Am. Juice Import, Inc., 35 S.W.3d 201, 205 (Tex.App.-Corpus Christi 2000, no pet.). On further review however, we conclude that the Supreme Court expressly rejected this approach in Kawasaki Steel Corp. v. Middleton. 699 S.W.2d 199 (Tex.1985) (per curiam).

In Kawasaki Steel, the trial court sustained the defendant’s special appearance in part because the plaintiff failed to plead sufficient jurisdictional facts in the petition for service of process under the long-arm statute. Quoting at length from an article by Dean Frank Newton, the Supreme Court held that “[s]uch a narrow holding is inconsistent with the general rules of notice pleading. Indeed if the approach of the courts of appeals was applied to pleading generally, we would return to the thoroughly discounted English writ approach where a failure to dot an T or cross a V was fatal.” Kawasaki Steel, 699 S.W.2d at 203 (quoting W. Frank Newton, Conflict of Laws, 36 Sw. L.J. 397, 406 (1982)).

Therefore, we disavow our holding in Lacefield to the extent that it suggests the issues in a special appearance hearing are necessarily limited to the specific jurisdictional allegations in the plaintiffs petition.

In so doing, we recognize that the doctrine of stare decisis requires us to proceed with caution. As now Chief Justice Jefferson of the Supreme Court recently observed:

Stare decisis is, and should be, respected by any judge concerned with consistency and predictability in the law. Yet, prior precedent should be reconsidered when blind adherence to “settled” law binds the judiciary, and those who rely on its judgment, to doctrines that can no longer be justified in the current day and age.

Wallace Jefferson, Stare Decisis, 8 Tex. Rev. L. & Pol. 271, 275 (2004).

[T]he doctrine of stare decisis does not stand as an insurmountable bar to overruling precedent. Stare decisis prevents change for the sake of change; it does not prevent any change at all. It creates a strong presumption in favor of the established law; it does not render that law immutable. Indeed, the genius of the common law rests in its ability to change, to recognize when a timeworn rule no longer serves the needs of society, and to modify the rule accordingly.

Id. at 274 (quoting Gutierrez v. Collins, 583 S.W.2d 312, 317 (Tex.1979)).

The doctrine of stare decisis must yield when a prior decision of this Court is plainly contrary to a holding of our Supreme Court. Cf. Ratisseau v. Ratisseau, 44 S.W.3d 695, 697 (Tex.App.-Houston [14th Dist.] 2001, pet. dism’d by agr.) (“We find the doctrine of stare decisis must yield to the clear pronouncements of the Legislature.”). Although the particular phrase at issue in Lacefield is arguably dicta, we owe it to the bench and bar in general and to the litigants in particular to clarify our prior decisions when such excerpts play a central role in a party’s argument and/or a trial court’s ruling, as in this case. Cf Jefferson, 8 Tex. Rev. L. & Pol. at 275.

Accordingly, a plaintiff may allege additional bases for personal jurisdiction in a written response to a defendant’s special appearance or in some other pleading. In addition, a plaintiff may present evidence at the special appearance hearing of bases for personal jurisdiction not alleged in the pleadings. If the defendant does not object to the introduction of evidence pertaining to these unpleaded bases for jurisdiction, then the defendant bears the burden of negating the unpleaded bases as well. Thus, a nonresident defendant bears the burden of negating all bases of personal jurisdiction alleged in the plaintiff’s pleadings or raised without objection by the evidence. See Louis S. Muldrow & Kendall M. Gray, Treading the Mine Field: Suing and Defending Non-Residents in Texas State Courts, 46 Baylor L.Rev. 581, 605-07 (1994).

GLACIER GUIDES AND ROSEN-BRUCH NEGATED ALL RELEVANT BASES OF PERSONAL JURISDICTION ASSERTED BY ZIMMERMAN

Zimmerman identifies five contacts Glacier Guides and/or Rosenbruch have with Texas which he deems relevant to this inquiry: (1) they advertised in the 1997 “Convention Issue” of Alaska Professional Hunter magazine, which was distributed at two conventions in Texas; (2) Rosenbruch is included in the “Professional Member List” of the 1997 magazine and of the Spring 2001 edition with his address, telephone number, and fax number, and the 2001 magazine was distributed in Texas; (3) Glacier Guides and/or Rosenbruch arranged hunting or fishing expeditions for 13 Texans from 1995 to 2001; (4) Rosen-bruch was served with process in Houston at a meeting of the Houston Safari Club in March 2002; and (5) Rosenbruch mailed Zimmerman a letter and called him twice about the planned expedition.

Counsel for Glacier Guides and Rosen-bruch did not object to Zimmerman’s presentation of evidence relevant to these alleged contacts. Thus, we consider these alleged contacts as potential bases for personal jurisdiction. See Temperature Sys., Inc. v. Bill Pepper, Inc., 854 S.W.2d 669, 673-74 (Tex.App.-Dallas 1993, writ dism’d by agr.).

Zimmerman contends that these contacts give rise to specific jurisdiction, which exists when (1) a nonresident defendant has purposeful contacts with the forum state and (2) the plaintiffs cause of action arises from or relates to those contacts. Am. Type Culture Collection, 83 S.W.3d at 806. The requirement of “purposeful” contacts “ensures that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985); Am. Type Culture Collection, 83 S.W.3d at 806.

Zimmerman relies primarily on Glacier Guides’s and Rosenbruch’s advertisement in the 1997 magazine which was distributed in several states including Texas as evidence that Glacier Guides had purposeful contacts with Texas. Zimmerman also points to Rosenbruch’s listing in the 1997 magazine and the Spring 2001 magazine. However, advertising in a nationally circulated publication does not by itself constitute a purposeful contact with any particular state in which the magazine may be distributed. See CMMC v. Salinas, 929 S.W.2d 435, 439 (Tex.1996); Hayes v. Wissel, 882 S.W.2d 97, 97-99 (Tex.App.-Fort Worth 1994, no writ); C.W. Brown Mach. Shop, Inc. v. Stanley Mach. Corp., 670 S.W.2d 791, 792-94 (Tex.App.Fort Worth 1984, no writ).

Zimmerman also relies on Rosen-bruch’s statement that Glacier Guides arranged hunting or fishing expeditions for thirteen Texas residents between 1995 and 2001. However, Glacier Guides’s dealings with others are not relevant to the issue of specific jurisdiction. See Yfantis v. Balloun, 115 S.W.3d 175, 182-83 (Tex.App.Fort Worth 2003, no pet.); Shell Compania Argentina de Petroleo, S.A. v. Reef Exploration, Inc., 84 S.W.3d 830, 838 (Tex.App.-Houston [1st Dist.] 2002, pet. denied).

The letter Rosenbrueh mailed to Zimmerman and the two phone calls he placed likewise do not constitute purposeful contacts with Texas sufficient to give rise to specific jurisdiction because they were in response to Zimmerman’s inquiry and not to solicit his business. See Laykin v. McFall, 830 S.W.2d 266, 268-70 (Tex.App.-Amarillo 1992, orig. proceeding).

Finally, Rosenbruch’s presence in Texas after Zimmerman filed suit is irrelevant to the issue of whether Glacier Guides or he had purposeful contacts with Texas relative to Zimmerman’s booking of a hunting expedition with Glacier Guides. See Preussag Aktiengesellschaft v. Coleman, 16 S.W.3d 110, 126 (Tex.App.-Houston [1st Dist.] 2000, pet. dism’d w.o.j.); accord Asurco, Inc. v. Glenara, Ltd., 912 F.2d 784, 787 n. 1 (5th Cir.1990).

Accordingly, we cannot say that the court’s decision “is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” See Haskett v. Butts, 83 S.W.3d 213, 218 (Tex.App.-Waco 2002, pet. denied). Thus, we overrule Zimmerman’s sole issue.

The judgment is affirmed.

Chief Justice GRAY concurring.

TOM GRAY, Chief Justice,

concurring.

Rodger Zimmerman sued Glacier Guides, Inc., an Alaskan corporation, and Jimmie Rosenbrueh, the president of Glacier Guides, individually, for a refund of almost $20,000 Zimmerman paid to Glacier Guides for a hunt that never took place. Glacier Guides and Rosenbrueh filed a special appearance. After a hearing, the trial court sustained the special appearance and dismissed the case with prejudice.

The following jurisdictional acts alleged by Zimmerman present the best case scenario for his assertion of jurisdiction over Glacier Guides and Rosenbrueh:

1. Zimmerman picked up an issue of The Alaskan Professional Hunter in 1997 at a Safari Club Meeting in either Dallas or Houston.
2. In it, he saw what appeared to Zimmerman to be an advertisement for Glacier Guides.
3. Four years later, in 2001, Zimmerman saw Rosenbrueh at a convention in Nevada, and while in Nevada, scheduled a hunt and made a down payment of $12,000 toward the total cost of the hunt.
4. Thirty days before the scheduled hunt, Zimmerman received a call from Rosenbrueh asking for the remaining balance of approximately $7,000 for which Zimmerman had already written a check and placed in the mail.
5. Zimmerman attended at least twenty conventions in Texas and never saw Rosenbruch at one of those Texas conventions until Rosenbruch was served with this lawsuit at a Houston convention in 2001.

Zimmerman does not allege that The Alaskan Professional Hunter was available for subscription or that he had ever received it by subscription. He does not contend that Texas has general jurisdiction over Glacier Guides and Rosenbruch but contends, instead, that specific jurisdiction exists.

Applying this best case scenario to the law established by the United States Supreme Court and the Texas Supreme Court, Texas cannot exercise specific jurisdiction over Glacier Guides or Rosenbruch. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795-797 (Tex.2002). Thus, the trial court did not err in sustaining Glacier Guides’ and Ro-senbruch’s special appearance and dismissing the case with prejudice.

Response to New Opinion

The Court takes the long way around Lacefield. Lacefield v. Elec. Fin. Group, 35 S.W.3d 755 (Tex.App.-Waco 2000, no pet.). First, I disagree that it says what they now try to make it say. But if that is what it says, it was wrongly decided and should be overruled. See Vega v. State, 84 S.W.3d 613, 625-29 (Tex.Crim.App.2002) (Keller, P.J., dissenting); State v. Toney, 979 S.W.2d 642, 645-48 (Tex.Crim.App.1998) (Keller, J., concurring). The entire discussion of stare decisis is not on point because there is no new authority from a higher court or the legislature after Lace-field that causes us to change the result. It was just wrong if we limited the source of the “allegations” to the petition.

Finally, the Court’s discussion of, and reliance on, Kawasaki Steel is misplaced. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199 (Tex.1985). Kawasaki Steel is about jurisdictional allegations in the context of service of process under the long arm statute. It is not about jurisdiction under Rule 120a.

Thus, I concur only in the result reached by the Court.

      . Actually, Zimmerman contends that the court's decision is "absolutely contrary to the overwhelming weight of the evidence.” We construe this statement as a paraphrase of the factual insufficiency standard. See Haskett v. Butts, 83 S.W.3d 213, 218 (Tex.App.-Waco 2002, pet. denied) (finding will be set aside for factual insufficiency if it is "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust”); accord Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998).

      . Although the phrase “in the petition” does not appear in the sentence in Lacefield in which this Court stated, "If the plaintiff fails to allege any jurisdictional facts, the defendant satisfies his burden by showing that he is a non-resident,” numerous other references in the opinion indicate that this was the Court’s intent. Lacefield v. Electronic Fin. Group, 35 S.W.3d 755, 761 (Tex.App.-Waco 2000, no pet.). For example, in analyzing the issue presented, the Court stated, “As plaintiff, EFG bears the burden of pleading sufficient allegations to bring Lacefield within the provisions of the Texas long-arm statute. The burden shifted to Lacefield when he filed his special appearance to negate all bases of personal jurisdiction asserted in the petition." Id. at 762 (emphases added).

      . To challenge the adequacy of the jurisdictional allegations in the plaintiffs petition, the defendant should file a motion to quash the citation, which would constitute a general appearance. See Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 202-03 (Tex.1985) (per curiam).

      . The ability to make it to the hunt was prevented by the no flight restrictions after September 11, 2001.

      . I pause to briefly note that the term "facts” is used by some courts but the Texas Supreme Court in Siskind uses the term "acts” when discussing jurisdictional allegations. See Sis-kind v. Villa Found, for Educ., Inc., 642 5.W.2d 434, 437-38 (Tex.1982). I use the term "act” here because it is more precise than the term "fact.”

      . On July 7, 2004, the Court issued an opinion to which I concurred. It was withdrawn on September 1, 2004.


author: BILL VANCE, Justice.

text:
    TEXAS MEDICAL LIABILITY TRUST, American Physicians Insurance Exchange, The Medical Protective Company, and Texas Medical Liability Insurance Underwriting Association, Appellants, v. The HARTFORD ACCIDENT AND INDEMNITY COMPANY, First State Insurance Company, The North River Insurance Company, And Aetna Casualty & Surety Company, Appellees.
    No. 10-03-00169-CV.
    Court of Appeals of Texas, Waco.
    Nov. 10, 2004.
    Rehearing Overruled Dec. 14, 2004.

      R. Brent Cooper, Cooper & Scully, P.C., Dallas, for appellants.
    John H. Marks, Jr., Locke, Liddell & Sapp, L.L.P., Dallas, Matthew W. Childs, Tekell, Book, Matthews & Limmer, Houston, George L. Lankford, Fanning, Harper & Martinson, Dallas, for appellees.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

Appellants (hereafter “Physician-insurers”) are insurance companies that issued professional liability policies to physicians. Physician-insurers claim that they are additional insureds under the “vendor” endorsements of general liability policies issued to Dow Corning Company by Appellees (hereafter “Dow-insurers”). They contend that Dow-insurers owe them a duty to defend under the contracts. The trial court granted summary judgment for the Dow-insurers. Physician-insurers bring this appeal complaining that the trial court erred in granting summary judgment. We will reverse the summary judgment and remand the cause.

BACKGROUND

Physician-insurers provided the defense of physicians faced with lawsuits regarding breast implants manufactured by Dow Corning. Dow-insurers issued a series of comprehensive general liability policies to Dow. Each of the Dow policies incorporates an additional insured endorsement for “vendors.” In 1994, Physician-insurers and Dow-insurers entered into an “Interim Agreement Relating to the Defense of Certain Breast Implant Claims Against Certain Doctors” (“Interim Agreement”), under which Dow-insurers reimbursed Physician-insurers for a share of the physicians’ defense in the lawsuits.

Zurich Insurance Company, another insurer of Dow that did not join the Interim Agreement and is not a party to this litigation, filed suit against Physician-insurers seeking a declaration of Zurich’s obligations toward the physicians in the breast implant cases. In that case, the trial court granted Zurich’s motion for summary judgment. The Austin Court of Appeals affirmed the judgment of the trial court, holding as a matter of law that the physicians were not insureds under the vendor endorsements of Zurich’s insurance contracts with Dow. Texas Medical Liability Trust v. Zurich Ins. Co. 945 S.W.2d 839, 843 (Tex.App.-Austin 1997, writ denied).

In 1997, Physician-insurers instituted this declaratory judgment action, seeking a declaration that Dow-insurers had a duty to defend the physicians in the breast implant litigation and seeking reimbursement of expenses incurred in defending the physicians in that litigation.

Standard of Review

We review the trial court’s summary judgment de novo. The standards for reviewing a summary judgment are well established. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). The movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to the summary judgment as a matter of law. Id. The reviewing court must accept all evidence favorable to the non-movant as true. Id. at 548-49. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in its favor. Id. at 549.

Eight-Corners Rule

To determine whether Dow-insurers have a duty to defend the physicians, we consider only the facts alleged in the four corners of the pleadings of the underlying lawsuits and the language in the four corners of the insurance contracts. National Union Fire Ins. Co. v. Merchants Fast Motor Lines, 939 S.W.2d 139, 141 (Tex.1997). Because courts are confined to the four corners of the underlying complaint and the four corners of the insurance contract, the rule is referred to as the “eight-corners rule.” We consider the factual allegations without reference to their veracity, to what the parties know or believe the facts to be, or to any legal determination of the facts. Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 24 (Tex.1965). In applying the eight-corners rule, we interpret the allegations liberally, resolving any doubt in favor of the insured. See National Union Fire Ins. Co., 939 S.W.2d at 141.

The relevant portion of the vendor endorsement at issue in this ease provides:

It is agreed that the “Persons Insured” provision is amended to include any person or organization (herein referred to as “Vendor”), as an Insured, but only with respect to the distribution or sale in the regular course of the Vendor’s business of the Named Insured’s products subject to the following additional provisions:

To be an additional insured under the plain language of the vendor endorsement, the physicians must have distributed or sold Dow products in the regular course of their business.

We now consider the allegations in the underlying pleadings in light of the language of the vendor endorsement to determine if Dow-insurers had a duty to defend the physicians under the contract. The Master Petition makes several allegations specifically against the defendant physicians. The plaintiffs allege that Dow sold the breast implants to the physicians or the hospital. They allege that they purchased the implants for use as prostheses when the physician inserted the implant into their bodies. The petition also alleges that the physicians are strictly liable as sellers of defective products under Section 402A of the Restatement (Second) of Torts as adopted by the Texas Supreme Court. Although the words “in the regular course of business” are not found in the Master Petition, the plaintiffs specifically allege that the physicians were sellers of Dow’s breast implants. Interpreting the allegations liberally, and resolving any doubts in favor of the physicians, it was error for the trial court to conclude that, as a matter of law, the physicians are not additional insureds under the vendor endorsements.

Collateral Estoppel

Dow-insurers also contend that Physician-insurers are precluded by collateral estoppel from arguing that the vendor endorsements in the Dow policies extend coverage to the physicians because that issue was already litigated in Zurich,. Physician-insurers argue that the prerequisites for application of collateral estoppel are not present in this case. To invoke collateral estoppel, a party must establish that: (1) the parties were cast as adversaries in the first proceeding; (2) the facts sought to be litigated in the current proceeding were essential to the judgment in the first; and (3) those facts were fully and fairly litigated in the first proceeding. Sysco Food Services, Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex.1994). Physician-insurers argue that the issues are not identical because the endorsements in Zurich contain different language than the endorsements at issue here. They also argue that the issue of whether the vendor’s endorsements are ambiguous — an issue raised and argued here — was not litigated in Zurich. Additionally, they argue that intervening changes in the law preclude application of collateral estoppel.

We conclude that collateral estoppel does not bar Physician-insurers’ claim.

CONCLUSION

We sustain Physician-insurers’ sole point of error and hold that the trial court erred in granting summary judgment. We reverse the judgment and remand the cause to the trial court for further proceedings.

      . Filed in In re Master Silicone Implant File, No. 92-16550 in the 270th District Court of Harris County, Texas, 1994 WL 16138071.


author: PER CURIAM.

text:
    Theo C. RICHARDSON, Appellant, v. The STATE of Texas, State.
    Nos. 2-04-428-CR, 2-04-429-CR.
    Court of Appeals of Texas, Fort Worth.
    Nov. 12, 2004.
    Terry M. Casey, Fort Worth, TX, for Appellant.
    Tim Curry, Criminal District Attorney, Charles M. Mallin, Assistant Criminal District Attorney, Chief of the Appellate Section, Fort Worth, TX, for Appellee.
    PANEL D: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.
   OPINION

PER CURIAM.

Theo C. Richardson is attempting to appeal from his convictions for possession or transport of certain chemicals with intent to manufacture methamphetamine. We will dismiss the appeals.

We notified appellant that his appeals were subject to dismissal based on the trial court’s certification that these are plea-bargain cases and appellant has no right of appeal. In response, appellant asserts that the trial court never acquired jurisdiction over his cases because the indictments failed to state an offense.

The court of criminal appeals has held that a plea-bargaining defendant cannot appeal a jurisdictional issue unless, in accordance with appellate rule 25.2(a)(2), the appellant raised the issue in the trial court by written pretrial motion and obtained a pretrial ruling or the appellant obtained the trial court’s permission to appeal. Griffin v. State, 145 S.W.3d 645, 647-648 (Tex.Crim.App. 2004); see also Tex.R.App. P. 25.2(a)(2). Appellant does not contend that he did either of these things. Therefore, we dismiss the appeals. See Griffin, 145 S.W.3d at 648-649.

DAUPHINOT, J. concurs without opinion.


author: STEVE McKEITHEN, Chief Justice. DAVID GAULTNEY, Justice,

text:
    Michael Ray COMEAUX, Appellant, v. The STATE of Texas, Appellee.
    Nos. 09-04-010 CR, 09-04-011 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted Sept. 2, 2004.
    Decided Nov. 17, 2004.

      James A. DeLee, Port Arthur, for appellant.
    Tom Maness, Criminal Dist. Atty., Wayln G. Thompson, Asst. Criminal Dist. Atty., Beaumont, for state.
    Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

In separate indictments, appellant, Michael Ray Comeaux, was charged with assault committed on a member of his family or household. See Tex. Pen.Code Ann. § 22.01(a)(1), (b)(2) (Vernon 2003). Cause number 87667 alleged that on or about August 20, 2002, appellant caused bodily injury to the victim, L.W., and that L.W. was a member of appellant’s family or household. The indictment further alleged that appellant had previously been convicted of an offense against a member of his family or household on January 11, 1996, in cause number 174943. The second indictment, cause number 87725, contained an identical charge of assault on L.W. and also alleged the previous 1996 assault conviction. The second indictment was different in two respects; the offense date alleged was September 17, 2002, and it further contained an enhancement paragraph alleging a prior felony conviction for Involuntary Manslaughter in 1988.

In cause number 87725, appellant elected to waive a jury and go to trial before the court. The trial court found appellant guilty and sentenced him to four years’ confinement in the Texas Department of Criminal Justice, Institutional Division. Based upon these events, appellant pleaded guilty to the charge in Cause No. 87667 and was assessed a four year sentence of incarceration, to run concurrently with the sentence in Cause No. 87725. The trial court certified appellant’s right to appeal in both cases. Appellant raises one identical issue for our consideration in both appeals, viz: “Whether the use of the enhancement conviction is a violation of protection against ex post facto law.” Our resolution of these appeals will be combined in this single opinion as the applicable authorities are the same.

The following sequence of events are not in dispute. On October 26,1993, appellant committed a family assault on K.D.C., in Jefferson County, Texas, cause number 174943. On January 11, 1996, appellant was convicted in a non-jury trial of the misdemeanor offense of “Assault-Family” in cause number 174943. The trial judge assessed punishment at confinement in the Jefferson County Jail for 90 days, and included a fine of $650. The trial court suspended immediate imposition of incarceration and placed appellant on community supervision for one year. From all appearances, appellant successfully served his one-year term of community supervision.

In his brief, appellant asserts that:

At the time of this [1996] conviction the law as pertains to enhancement of future acts of family violence was as follows:
(1) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is:
(2) A state jail felony if it is shown in the trial of the offense that the offense was committed against a family member [and] that the defendant has been previously convicted of an offense against a family member under this section two or more times.

However, appellant is mistaken about the law in effect on October 26, 1993, the date of the prior offense. At that time, a first-offense family assault was a Class A misdemeanor unless:

(3)the offense is committed against a family member and the actor has been previously convicted under this section for an offense against a family member
two or more times, in which event the offense is a felony of the third degree. Act of May 17, 1991, 72nd Leg., R.S., ch. 366, § 1, 1991 Tex. Gen. Laws 1415, 1416 (amended 1993, 1995, 1997, 1999, 2003) (current version at Tex. Pen.Code Ann. § 22.01(b)(2) (Vernon Supp.2004)). Therefore, the law in effect in October of 1993, when the prior offense was committed, provided for the identical punishment exposure that appellant complains of in the instant appeals. The 1993 law did, however, require two previous family assault convictions before a defendant faced the felony punishment exposure. However, the authorities appellant cites in his brief do not support his argument that review of an ex post facto violation “should be on the enhancement conviction on (sic) offense and not on the instant offense.” We find no merit to this argument which focuses entirely on the mistaken distinction between appellant’s “third degree felony” punishment exposure (actual) and the “state jail felony” punishment exposure (mistaken). Instead, we find we must address another issue we discovered on the face of the records before us, also involving ex post facto law, even though it was not specifically brought to the trial court’s attention nor specifically argued to us on appeal. As noted in Blue v. State, 41 S.W.3d 129, 131 (Tex.Crim.App.2000), pursuant to Tex.R. Evid. 103(d), reviewing courts are authorized to “tak[e] notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court.” Our explanation and analysis follow.

As noted above, the instant offenses were committed on or about August 20, 2002, and September 17, 2002. At the time appellant committed his prior family assault, section 22.01of the Texas Penal Code did not include sub-section (f), which was added to section 22.01 in 1999. See Act of May 26, 1999, 76th Leg., R.S., ch. 1158, § 1, sec. 22.01, 1999 Tex. Gen. Laws 4063. Sub-section (f) of section 22.01 took effect on September 1, 1999, and currently reads as it did on the dates of commission of the instant offenses:

(f) For the purposes of this section, a defendant has been previously convicted of an offense against a member of the defendant’s family or a member of the defendant’s household under this section if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision.

See Tex. Pen.Code Ann. § 22.01(f) (Vernon Supp.2004).

In Scott v. State, 55 S.W.3d 593 (Tex.Crim.App.2001), the Court of Criminal Appeals framed the issue before it in the following manner: “Can a successfully completed deferred adjudication be used to enhance punishment for a later offense when the provision permitting such enhancement did not exist at the time adjudication was deferred?” Id. at 594. The issue we must decide can be framed as follows: “Can a successfully completed and subsequently discharged “regular” community supervision be used to enhance punishments for later offenses when the provision permitting such enhancement did not exist at the time the “regular” community supervision was imposed in lieu of incarceration?” The Court in Scott answered its question “no,” and reversed the defendant’s conviction. Id. at 594-95. As we will explain, we feel constrained to answer our question “yes,” and affirm the convictions.

The enhancement provision in Scott contains language that is substantively identical to the language contained in section 22.01(f). See Scott, 55 S.W.3d at 596. Scott complained on direct appeal and on petition for discretionary review that this sentencing scheme violated the United States Constitution’s prohibition against ex post facto laws. Id. In addition to the questioned enhancement provision, the Scott Court noted a second key statute which played prominently in resolving the issue:

When appellant pled guilty in 1991 to indecency with a child, the deferred adjudication statute provided that a discharged deferred adjudication would not be considered a conviction except in certain enumerated circumstances:
A dismissal and discharge under this section may not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense except that....

Id. at 595 (footnote omitted). See also Tex.Code Crim. Proc. Ann. art. 42.12, sec. 5(c) (Vernon Supp.2004). The Court construed the enhancement scheme in question and concluded that the legislature intended for it to apply to past deferred adjudications, “i.e. those that were assessed before the change in the law.” Id. at 596. The Court also construed the “disqualifications or disabilities” language in art. 42.12, sec. 5(c) to include enhancement of punishment. Id. at 596-97. The Court concluded by noting its traditional position on ex post facto punishment-law issues, and then contrasted the facts and the law as applied to Scott’s situation:

Among other things, the ex post facto clause prohibits “[ejvery law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” Both the United States Supreme Court and this Court have addressed the issue of prior crimes used to enhance punishment and have declined to find an ex post facto violation. In arriving at its holding the Supreme Court found that enhancement statutes penalize the new criminal offense being enhanced rather than the prior offense used for enhancement: “The punishment is for the new crime only, but is the heavier if he is an habitual criminal.... The statute, imposing a punishment on none but future crimes, is not ex post facto.”[ ]
The distinguishing factor in this case is the existence in the prior statute of an explicit limitation on the collateral consequences of deferred adjudication. The resolution of criminal charges will always carry the possibility of collateral consequences, and as long as those consequences are not statutorily restricted, disabilities and disqualifications which the defendant might not have anticipated may proceed from the prior cause. But when a statute explicitly restricts the collateral consequences of an offense, the defendant is entitled to rely on that restriction. Punishment for the offense is increased by the removal of the statutory restriction, and such an increase in punishment constitutes an ex post facto law.

Scott, 55 S.W.3d at 597-98 (selected footnotes omitted)(emphasis added).

Unlike Scott, appellant was found guilty by the trial court in 1996, and assessed a fine and incarceration in the county jail. However, the trial court also placed appellant on community supervision in lieu of incarceration, which appellant successfully completed. At the time of appellant’s 1996 community supervision, the statutory provision explaining the significance of successful completion of community supervision was Tex.Code Ceim. PROC. Ann. art. 42.12, sec. 20(a) (Vernon Supp.2004) which read in pertinent part as follows:

Upon the satisfactory fulfillment of the conditions of community supervision, and the expiration of the period of community supervision, the judge, by order duly entered, shall amend or modify the original sentence imposed, if necessary, to conform to the community supervision period and shall discharge the defendant. If the judge discharges the defendant under this section, the judge may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty, ...

In Cuellar v. State, 70 S.W.3d 815, 818 (Tex.Crim.App.2002), a plurality of the Court construed the portion of article 42.12, sec. 20(a), set out above, as containing “two entirely different types of ‘discharge’ from felony community supervision[.]” Under the first type of “discharge,” the defendant “has paid his debt to society and, in effect, ‘graduates’ from community supervision.” Id. Nevertheless, this type of discharge does not erase the defendant’s conviction, but a successfully completed regular community supervision is not normally considered a “final conviction” for enhancement purposes. Id. See also Ex parte Langley, 838 S.W.2d 141, 143 (Tex.Crim.App.1992); Ex parte Murchison, 560 S.W.2d 654, 656 (Tex.Crim.App.1978).

The second type of “discharge” noted in Cuellar is less common and is not a right, but a matter of “judicial clemency” within the trial court’s sole discretion. Cuellar, 70 S.W.3d at 819. This occurs when the judge exercises his discretion and sets aside the verdict or permits a defendant to withdraw his plea, which triggers the judge’s dismissing the charging instrument, which results in the defendant’s being “released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty.” Id. Because the defendant in Cuellar had secured a written order from the judge in his prior community supervision setting aside the “judgment of conviction” and dismissing the indictment following his successful completion of community supervision, he could not subsequently be charged as a “felon” in possession of a firearm. Id. at 816, 820. As the plurality concluded, “[o]nce the trial court judge signs the Article 42.12, § 20, order, the felony conviction disappears, except as specifically noted in subsections (1) and (2).” Id. at 820.

We note that Cuellar was not a case involving the application of ex post facto law. We also note that, on its face, section 20(a) does not contain an “explicit limitation on the collateral consequences” of a successfully completed term of regular community supervision when compared with the language in section 5(c) regarding a successfully completed deferred adjudication community supervision. While the record before us indicates that appellant did successfully complete his term of regular community supervision, it does not contain an order from the trial judge, as in Cuellar, setting aside appellant’s conviction and dismissing the 1993 family assault information. Unlike the language of article 42.12, sec. 5(c) before the Court in Scott, we do not see the provisions of article 42.12, sec. 20(a) as “explicitly” restricting the collateral consequences of a successfully completed regular community supervision. At most, any restriction on the collateral consequences of a successfully completed term of regular community supervision on the face of section 20(a) seems limited to a defendant who obtains a written court order formally setting aside his prior judgment of conviction and dismissing the instrument used to charge him with the crime. As the instant appellant had no such court order, we cannot say he was entitled to rely on section 20(a) to shield him from the collateral consequences of his 1996 conviction. As such, we conclude that the punishment for the two instant offenses was not increased by the legislature’s passage of sub-section (f) of section 22.01 in 1999. Therefore, the use of the 1996 conviction in each indictment was not a use of prohibited ex post facto legislation. As the constitutional prohibitions against passage of any ex post facto law are systemic requirements and, therefore, un-waivable, we were required to address the issue although not framed before the trial court or this Court in the manner addressed. See Mendez v. State, 138 S.W.3d 334, 340-41 (Tex.Crim.App.2004). We overrule this unassigned issue and affirm both judgments of the trial court.

JUDGMENTS IN BOTH CAUSES AFFIRMED.

GAULTNEY, Justice, concurs.

DAVID GAULTNEY, Justice,

concurring.

I concur, but join only in the majority’s treatment of the issue raised by appellant and in the affirmance of the judgments. The majority writes persuasively on an issue not raised by appellant. If fundamental error exists it should be corrected, and the issue raised by the majority is related to appellant’s issue. But I do not believe a court should raise an issue on its own and then overrule the unassigned issue as without merit. The opportunities to do that are endless.

      . We cite here to the Penal Code provision in effect at the time appellant committed the instant offenses. Although not germane to the issue before us, we note the 78th Legislature amended section 22.01 in 2003. See Tex Pen.Code Ann. § 22.01 (Vernon Supp.2004).

      . In each case, appellant filed a pretrial motion entitled, "Motion To Set Aside Enhancement Due To Being Ex Post Facto Law.” The trial court denied the motion in each case.

      . The record does not indicate appellant’s community supervision was revoked. Indeed, the pre-sentence investigation report filed pri- or to sentencing in the instant case indicates that the 1996 community supervision was "[c]ompleted [successfully.”

      . We use the term "regular” in describing this type of community supervision to distinguish it from deferred adjudication community supervision. Regular community supervision involves a finding of guilt and formal assessment of punishment, while deferred adjudication community supervision does not. See Tex.Code Crim. Proc. Ann. art. 42.12, sec. 2(2) (Vernon Supp.2004).

      . The current version of section 5(c) contains language identical to that portion quoted by the Court in Scott as set out above.

      . Citing to McDonald v. Massachusetts, 180 U.S. 311, 313-14, 21 S.Ct. 389, 45 L.Ed. 542 (1901).