text:
    Teresa S. MUESHLER, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-01099-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 30, 2005.
    Rehearing Overruled Aug. 1, 2005.
    Discretionary Review Refused Dec. 7, 2005.

      Emily Munoz-Detoto, Muniz Law Office, Houston, TX, for Appellant.
    Carmen Castillo Mitchell, Assistant District Attorney, Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, KEYES, and BLAND.
   OPINION

JANE BLAND, Justice.

A judge convicted appellant, Teresa Mueshler, of felony aggregate theft and sentenced her to two years’ confinement. On appeal, Mueshler contends (1) her indictment for theft by cash money fatally varies with the evidence that she stole money by writing checks; (2) the evidence is legally insufficient to support the allegation that she stole cash money; (3) the evidence is legally insufficient to prove that she lacked consent to write the checks in dispute; and (4) the evidence is factually insufficient to prove that she lacked consent to write the checks in dispute. We hold that no variance exists and that the evidence is legally and factually sufficient to sustain her conviction. We therefore affirm.

Facts

Resource Connection, a firm owned by John Brock, employed Mueshler as its office manager and bookkeeper. Mueshler was responsible for receiving and paying the firm’s bills, but the checks issued to pay the bills required Brock’s signature. Brock frequently signed blank checks for Mueshler to pay bills while he was away from the office. Mueshler kept a check register that included check stubs to record the checks issued by the firm. Muesh-ler recorded the payee’s name and the amount of the check on the check stub. It is uncontested that between May 2002 and September 19, 2003, Mueshler wrote checks — totaling over $57,000 — from Resource Connection to herself and to her creditors. In these instances, Mueshler misrecorded a valid vendor or payee on the check stub. For instance, she wrote one check to herself for $500.00 and recorded on the check stub that the check had been made payable to the U.S. Postal Service for postage.

At trial, Brock testified that he believed that Mueshler used the blank checks he signed to pay the firm’s bills. He previously had loaned Mueshler money, but she did not have permission to write the checks to herself or to her creditors. Brock testified that he periodically reviewed the check stubs to inform himself of the firm’s expenditures. Before September 2003, he did not notice anything unusual.

On September 22, 2003, while Mueshler was out of the office, a vendor called and advised Brock that the firm was late in paying over $80,000 in its invoices. Brock immediately began investigating the unpaid invoices and noticed a discrepancy between some of the firm’s cancelled checks and corresponding check stubs. Brock testified that as soon as Mueshler returned to the office, he confronted her about the problem checks. When Brock asked her if she had an explanation for these discrepancies, Mueshler “hung her head” and responded that she did not. Mueshler told Brock that she was sorry and that she would repay him. Later, Mueshler sent several e-mails to Brock asking for an opportunity to correct the wrong that she had done: “I really want to make this wrong that I have done mostly right. I know that it will never be right because I betrayed you and am deeply sorry for that.”

Brock testified that he conducted an audit of the firm’s checking account by comparing the check stubs, cancelled checks and bank statements. Brock testified that he determined that Mueshler had written over 100 unauthorized checks to herself and her creditors. He discovered that on his copy of several of the cancelled checks, the name of the payee had been whited-out. Some of these checks had legitimate vendors — matching the check stubs — written over the white-out. Brock also discovered that many of the problem checks that Mueshler wrote to herself approximated the amount of her paycheck, so if he looked through the cancelled checks, they would not be conspicuous.

At trial, Mueshler conceded that she wrote all of the checks in dispute. She testified that she thought she had authority to write these checks because Brock previously had given her permission to borrow money from the firm to pay some of her personal needs — legal fees in fighting for the custody of her children, a down payment and closing costs for purchasing a house, and a doctor bill. Mueshler testified that the check stubs did not match the cancelled checks because Brock instructed her to record false information on the check stubs for tax purposes.

Cash

Mueshler’s first two issues relate to the indictment’s allegation that she committed theft of cash money instead of theft of checks. In her first issue, Mueshler contends that because she was charged with theft of cash, the indictment fatally varies from the proof at trial. In her second issue, Mueshler contends that the evidence is legally insufficient to sustain a conviction of theft by cash.

A Fatal Variance

Mueshler contends a variance exists between the allegations in the indictment — that she committed theft of cash money — and the evidence at trial — that she wrote the problem checks to herself and to her creditors. She further contends that the alleged variance is fatal and thus violates her Fifth Amendment right to due process.

A variance occurs if a discrepancy exists between the allegation in the indictment and the proof presented at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex.Crim.App.2001). In such cases, the State has proven the defendant guilty of a crime, but proved the commission of the crime in a manner that varies from the allegations in the indictment. Such a variance may render the evidence insufficient to sustain the conviction. Id. at 247. Only a material variance, however, renders the evidence insufficient and requires reversal. Id. at 257.

Here, the indictment' states: “TERESA S. MUESHLER ... on or about May 30, 2002 CONTINUING THROUGH SEPTEMBER 19, 2003, did then and there unlawfully, pursuant to one scheme and continuing course of conduct, appropriate, by acquiring and otherwise exercising control over property, namely, CASH MONEY, owned by JOHN BROCK, hereinafter the Complainant, with the intent to deprive the Complainant of the property and the total value of the property appropriated was over twenty thousand dollars and under one hundred thousand dollars.” The evidence at trial proves that Mueshler wrote cheeks to herself and her creditors, using funds from Resource Connection’s account.

Our courts have long held that there is no variance between an indictment alleging conversion of cash and proof showing conversion of a check. Kirkpatrick v. State, 515 S.W.2d 289, 293 (Tex.Crim.App.1974). In Kirkpatrick, the indictment alleged an employee converted $3.00; the evidence proved he converted $1,594 in checks. Id. at 291-92. The court held no variance exists because money was obtained “by a false pretext, through the instrumentality of the check.” Id. at 293 (emphasis added) (citing Rick v. State, 151 Tex.Crim. 426, 207 S.W.2d 629, 630 (1947)); see also Grogen v. State, 745 S.W.2d 450 (Tex.App.Houston [1st Dist.] 1988, no pet.) (“The Court of Criminal Appeals has repeatedly held that there is no variance between an indictment that alleges theft of ‘money’ and proof at trial that establishes theft of a ‘check.’ ”); Powell v. State, 82 Tex.Crim. 163, 198 S.W. 317, 320-21 (1917) (holding no fatal variance between indictment that defendant embezzled money and proof that he took a check — citing to Pope v. State, 75 Tex.Crim. 54, 170 S.W. 152 (1914) for statement that theft of money may occur when “not a dollar of actual money [is] handled in any way” by defendant).

Here, Mueshler stole cash that Brock had in the firm’s checking account. Mueshler used the checks as an instrumentality to misappropriate the money to herself and her creditors. We thus hold that there is no variance — hence no fatal variance — between the allegations in the indictment and the proof at trial.

B. Legally Insufficient Evidence

In her second issue, Mueshler contends that evidence that she committed theft by writing checks is legally insufficient to prove the allegations in the indictment that she committed theft of “cash money.” We review a claim that the evidence is legally insufficient by viewing “all of the evidence in the light most favorable to the verdict and then determining] whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App.2004) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)), cert. denied, — U.S.-, 125 S.Ct. 1697, 161 L.Ed.2d 528 (2005).

Here, we have held that, in connection with a fatal variance claim, checks are considered cash money. Our courts similarly have held that evidence that checks were used to obtain money is legally sufficient proof that the defendant committed theft of cash money. See Jackson v. State, 646 S.W.2d 225, 226 (Tex.Crim.App.1983) (overruling challenge to sufficiency of evidence in theft conviction, stating “use of a check does not render the evidence insufficient”); Rick, 207 S.W.2d at 629-30 (holding evidence of embezzled check sufficient to sustain conviction of embezzled money because check was manner in which defendant took money).

Mueshler cites Orr v. State, 836 S.W.2d 315, 319 (Tex.App.-Austin 1992, no pet.), to contend that checks may be considered cash only if there is proof at trial that the payee negotiated the checks. In Orr, a defendant was charged with theft of cash money in connection with money orders he received for payment of his fraudulently-induced sale of oil wells. Id. at 316-17. The court held that because a money order is not cash, a conviction of cash money must include evidence that it was negotiated — that the defendant in fact used it as an instrumentality to obtain cash. Id. at 317-19. Mueshler contends that the State failed to prove that she cashed the unauthorized checks or otherwise exercised control over the cash.

Evidence exists that Mueshler tendered the checks to the payee for negotiation, or in the cases in which she is the payee, negotiated them herself. First, Brock testified that exhibits 2-102 were canceled checks which Mueshler wrote to herself and her creditors, without his consent. A cancelled check, by definition, is one that has been negotiated. See Black’s Law DictionaRY 252 (8th ed.2004) (cancelled check is one “bearing a notation that it has been paid by the bank on which it was drawn.”). Second, the front of these checks indicates presentment to the bank and cancellation. Third, it is uncontested that after Brock confronted her, Mueshler offered to repay him for the problem checks. There would be no need to “repay” Brock unless the checks were negotiated and cash taken from the firm’s checking account.

Mueshler next cites to our opinion in Chachere v. State, 811 S.W.2d 135 (Tex.App.Houston [1st Dist.] 1991, pet. ref'd), contending that a check is not always considered cash. In Chachere, we held that theft of an insurance draft did not constitute theft of cash money. Id. at 137. In so holding, we recognized that in most theft cases, theft of a check is the same as theft of cash:

We agree with the State that, in most cases, a check is considered the same as cash. This is due to the ease of negotiating the check into cash.

Id. at 136. The insurance draft in Chach-ere was not considered cash because it was “not like a check” — (1) the draft had a lienholder listed as a second payee; (2) the draft was not considered by the bank to be a negotiable instrument; (3) the draft needed to have a copy of the vehicle’s title attached to it before it would be approved; and (4) the draft “had not been converted into cash or credit.” Id. The obstacles in negotiating the insurance check in Chach-ere are not present here. Moreover, contrary to the facts in Chachere, here evidence exists that Mueshler converted the unauthorized checks into cash and credit.

The State introduced evidence that the unauthorized checks written by Mueshler were negotiated — such that the bank used cash from the firm’s checking account to pay them. We thus hold that there is legally sufficient evidence to sustain Mueshler’s conviction of theft of cash money-

Consent

In her third and fourth issues, Mueshler challenges the legal and factual sufficiency of the evidence that she lacked consent to write the checks to herself and her creditors. She claims to have had consent for her actions because (1) Brock in the past allowed her to use the firm’s funds for her personal needs; (2) Brock never indicated his consent to use the firm’s funds for her personal use was limited; and (3) Brock never expressly stated that she did not have permission to use the firm’s funds for her personal use.

A. Legal Sufficiency

“In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Escamilla, 143 S.W.3d at 817 (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact-finders. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000).

Mueshler was convicted of aggregate theft. A person commits theft if she unlawfully appropriates property with intent to deprive the owner of it. Tex. Pen.Code Ann. § 31.03(a) (Vernon Supp.2004-2005). An unlawful appropriation includes one that is without the owner’s effective consent. Tex. Pen.Code Ann. § 31.03(b)(1) (Vernon Supp.2004-2005).

Mueshler cites to Walker v. State, 591 S.W.2d 493 (Tex.Crim.App.1979), for the proposition that the State is required to prove that Brock expressly communicated to her that she could not write the checks in dispute. In Walker, the complainant authorized an employee to negotiate sales but prohibited him from making credit sales. Id. at 494. The complainant did not communicate this limitation to anyone else. Id. The employee arranged a sale on credit with the defendant in which the defendant took complainant’s property without first paying for it. Id. at 493-94. The Texas Court of Criminal Appeals determined that the defendant acted with consent because the defendant had not been informed of the restrictions that the complainant intended to place on the sale of his goods. Id. at 494-95.

Here, Brock testified that he did not give Mueshler consent to write the checks in dispute. He testified that, although he loaned Mueshler money on occasion, she never had blanket authority to use the firm’s funds for . her personal needs. Mueshler’s actions of concealment in writing the checks — placing false payee names on the check stubs, redacting and changing the names of the payee on some of the checks, and writing checks to herself in amounts generally equivalent to her paycheck — is some evidence that she knew she lacked authority to write the checks. When Brock confronted her, Mueshler acted consistently with someone who knew that consent to write the checks was lacking — she hung her head, she stated she had no explanation for the discrepancy, and she later wrote an e-mail admitting that what she did was wrong.

Reviewing the evidence set forth above in the light most favorable to the verdict, we conclude that the evidence is legally sufficient for a reasonable fact finder to determine that Mueshler lacked consent to write the checks. See Gill v. State, 670 S.W.2d 758, 760 (Tex.App.-Corpus Christi 1984, pet. ref'd) (holding that when it was determined that defendant never was authorized to take property, then defendant need not be informed on limitations in using this property).

B. Factual Sufficiency

“In a factual sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met.” Escamilla, 143 S.W.3d at 817 (citing Zuniga v. State, 144 S.W.3d 477, 483 (Tex.Crim.App.2004)). In a factual sufficiency review, we may not substitute our own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App.1996). Unless the available record reveals that a different result is appropriate, we defer to the fact finder’s determination concerning the weight to place upon conflicting testimony, because resolution of facts often turns on evaluation of credibility and demeanor. See Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App.2000).

Mueshler contends she proved that she had consent to write the checks in dispute. She testified that she understood she could use the firm’s funds for her personal use and that she would re-pay Brock. Muesh-ler states that she developed this understanding because Brock had assisted her in the past with loans from the firm’s funds. She testified that she wrote false information on the check stubs because Brock instructed her to do so for tax purposes. Mueshler characterized her post-confrontation e-mails to Brock as expressions of exasperation after losing her job and of a resolution that she would repay Brock for his past assistance. At trial, she presented witnesses who testified that she was a trustworthy person and that Brock was honest only when it suited him.

As set forth above, Brock’s testimony contradicts that of Mueshler’s. Moreover, additional evidence indicates that Muesh-ler believed she lacked consent to write the problem checks. Given the verdict, the trial court evidently believed Brock’s testimony over Mueshler’s. We will not substitute our judgment for that of the fact finder’s. See Zuniga, 144 S.W.3d at 481-82. After examining all of the evidence neutrally, we hold that the proof of Muesh-ler’s lack of consent was not so obviously weak as to undermine confidence in the trial court’s determination of guilt; nor was the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. See Escamilla, 143 S.W.3d at 817.

Conclusion

We conclude (1) the indictment alleging theft of cash money does not fatally vary from the evidence at trial that Mueshler committed theft by writing checks to herself and to her creditors; and (2) the evidence is factually and legally sufficient to sustain the conviction. We therefore affirm the judgment.


source: Caselaw Access Project

author: LAURA CARTER HIGLEY, Justice. JANE BLAND, Justice,

license: Public Domain

text:
    THE UNIVERSITY OF HOUSTON, Appellant, v. Stephen BARTH, Appellee.
    No. 01-04-00828-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 30, 2005.

      Peter B. Plotts, III, Assistant Attorney General, Austin, TX, for Appellant.
    Richard A. Battaglia and J.W. Beverly, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices HIGLEY and BLAND.
   OPINION

LAURA CARTER HIGLEY, Justice.

This is an interlocutory appeal of the trial court’s denial of appellant’s, the University of Houston (UH), plea to the jurisdiction. Appellee, Stephen Barth, a tenured professor at the UH Conrad N. Hilton College of Hotel Management (Hilton College), filed suit against UH under the Whistleblower Act, contending that his supervisor retaliated against him after Barth reported alleged accounting violations.

In seven issues, UH contends that the trial court erred in denying its plea and supplemental plea to the jurisdiction because (1) Barth did not timely file all of his grievances, (2) Barth did not timely file suit, and (3) several of the acts complained of were not “adverse personnel actions” as defined in the Whistleblower Act.

Factual & Procedural Background

Barth is a tenured professor at-Hilton College. In 1998, one of Barth’s colleagues told him that Alan Stutts, Dean of Hilton College, was pressuring him to perform what he termed “questionable” accounting transactions and practices. Barth reported these alleged violations to (among others) UH Provost Ed Sheridan and UH’s general counsel. On January 14, 2000, Barth discovered he had been denied a 1999 merit raise he contends he deserved under the merit evaluation guidelines. Barth filed a grievance on March 10, 2000. On August 17, 2000, two weeks after receiving final notice that he would not be given a 2000 merit raise, Barth filed his second grievance. On November 21, 2000, Barth filed a third grievance. Eventually, the second and third grievances were consolidated into a single grievance. Barth complained that, as retaliation for reporting accounting irregularities, Stutts: (1) attempted to breach Barth’s supplementary compensation agreement; (2) intimidated Barth’s assistant and other faculty members with whom Barth worked closely; (3) denied Barth travel money; (4) wrote an arbitrary and capricious evaluation of Barth’s performance; (5) withdrew support for Barth’s academic initiatives; (6) encouraged an associate to file a false discrimination claim against him; (7) alienated the students and faculty from Barth; (8) excluded Barth from an on-line graduate program; (8) excluded Barth from internal and external communications; and (9) defamed Barth before students and faculty.

The provost responded in part to the first grievance on May 31, 2000 and responded to the second and third grievances, and the issues remaining from the first grievance, in a letter dated June 5, 2001. Barth filed suit on July 5, 2001. However, correspondence between Barth and the provost continued until the fall. Although the provost noted in his June 5 letter that “[Sjince you have chosen not to appeal any of the Grievance Committee recommendations to me, I now regard this grievance procedure as ended,” Barth responded on June 18 with a request for just such an appeal. In a letter dated September 5, 2001, the provost noted, “[I]n response to your statement that the grievance process has been concluded, I wish to state it is not concluded, at least not due to any action or decision on my part.”

There was no further action taken in regard to Barth’s grievances and the suit went forward. After the trial court denied UH’s plea and supplemental plea to the jurisdiction, this interlocutory appeal ensued.

Plea to the Jurisdiction

A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject-matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). Subject-matter jurisdiction is essential to the authority of a court to decide a case. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). Governmental immunity from suit defeats a trial court’s jurisdiction and so it may be raised by a plea to the jurisdiction. See Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 639 (Tex.1999).

Nature of Provisions of Whistleblower Act

As a preliminary matter, we address Barth’s contention that this Court has no jurisdiction to consider this appeal because the trial court could not entertain UH’s plea to the jurisdiction as a matter of law. Based on the Texas Supreme Court’s decision in Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex.2000), in which the Supreme Court determined that the failure to allege and prove a statutory prerequisite to a statutory cause of action was not a jurisdictional defect, Barth contends that the limitations provision and grievance requirements of the Whistleblower Act are likewise not jurisdictional.

In making this argument, Barth relies on authority in which our sister appellate courts held that the provisions of the Whistleblower Act are not jurisdictional and asks us to overrule this Court’s decision to the contrary in a case directly on point here. See Tex. S. Univ. v. Carter, 84 S.W.3d 787, 792 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (holding that statutory prerequisite that plaintiff in Whistleblower action timely initiate grievance before filing suit is jurisdictional issue that may be challenged by plea to jurisdiction). We recognize that other courts of appeal have applied Kazi to the Whistleblower Act and held that its statutory prerequisites are not jurisdictional. See, e.g., Univ. of Houston v. Elthon, 9 S.W.3d 351 (Tex.App.-Houston [14th Dist.] 1999, pet. dism’d w.o.j.); Castleberry Indep. Sch. Dist. v. Doe, 35 S.W.3d 777 (Tex.App.-Fort Worth 2001, pet. dism’d w.o.j.); Tex. Dep’t of Mental Health & Mental Retardation v. Olofsson, 59 S.W.3d 831 (Tex.App.-Austin, 2001, pet.dism’d). However, none of the cases addressing whether the Whistleblower Act’s provisions are jurisdictional has been reviewed by the Texas Supreme Court. In University of Texas Southwestern Medical Center at Dallas v. Loutzen-hiser, 140 S.W.3d 351, 360 (Tex.2004), the Texas Supreme Court, in addressing whether certain provisions of the Tort Claims Act were jurisdictional, distinguished a statutory presentment provision from a statutory exhaustion of remedies provision, noting that an exhaustion requirement seeks to ensure that “the appropriate body adjudicates the dispute — the hallmark of a jurisdictional statute.” Id. at 361 (citing Essenburg v. Dallas County, 988 S.W.2d 188, 189 (Tex.1998)). The Whistleblower Act requires initiation of remedies via the governmental entity’s grievance or appeal procedure before a party may file suit, but does not require exhaustion of remedies. See Tex. Gov’t Code Ann. § 554.006 (Vernon 2004). Thus, whether the Act’s requirements are jurisdictional is open to question. But this question has not yet been directly answered; rather, the court has expressly refrained from answering it. See Univ. of Tex. Med. Branch at Galveston v. Barrett, 159 S.W.3d 631, 632 (Tex.2005) (observing “[W]e need not decide here whether the failure to meet these requirements [of section 554.006] deprives the court of jurisdiction over the action.”). Accordingly, Carter, which is directly on point and in which this Court held — albeit for reasons not applicable here — that the requirements of section 554.006 are jurisdictional, governs disposition of the issue in the case before us. See Carter, 84 S.W.3d at 792; accord Harris County v. Lawson, 122 S.W.3d 276, 281 (Tex.App.-Houston [1st Dist] 2003, pet. denied) disapproved of on other grounds by Barrett, 159 S.W.3d at 633) (following holding in Carter and reiterating that Kazi did not overrule [Univ. of Texas Med. Branch v.] Hohman [6 S.W.3d 767 (Tex.App.—Houston [1st Dist.] 1999)]).

We therefore hold that the limitations provisions in the Whistleblower Act are jurisdictional; thus, we examine UH’s plea to the jurisdiction to determine whether the trial court erred in denying the plea.

Standards of Review

Because subject-matter jurisdiction presents a question of law, we review the district court’s decision de novo. Mayhew, 964 S.W.2d at 928. In reviewing a trial court’s ruling on a plea to the jurisdiction, we do not look at the merits of the case; rather, we construe the pleadings in favor of the plaintiff, look to the pleader’s intent, and accept the pleadings’ factual allegations as true. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). We indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. See Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). However, if a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. See Bland, 34 S.W.3d at 555 (confining evidentiary review to evidence that is relevant to jurisdictional issue). When the consideration of a trial court’s subject matter jurisdiction requires the examination of evidence, the trial court exercises its discretion in deciding whether the jurisdictional determination should be made at a preliminary hearing or await a fuller development of the case, mindful that this determination must be made as soon as practicable. Id. at 554. If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue should be resolved by the fact finder. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex.2004).

The Whistleblower Act prohibits retaliation against public employees who, in good faith, report violations of law by their employers. Tex. Gov’t Code Ann. § 554.002 (Vernon 2004). Because the statute is remedial in nature, we construe its provisions liberally to effectuate its legislative purpose — to enhance openness in government and compel the government’s compliance with the law by protecting those who inform authorities of wrongdoing. See Castaneda v. Tex. Dep’t of Agric., 831 S.W.2d 501, 503 (Tex.App.-Corpus Christi 1992, writ denied).

Time Limits

In its second, fourth, and fifth issues, UH contends Barth did not timely file his grievances. In making this argument, UH focuses solely on the date that each alleged adverse personnel action occurred. However, the Whistleblower Act requires an employee, before filing suit, to initiate action under the grievance procedure of the employer before filing suit, “not later than the 90th day after the date on which the alleged violation of this chapter: (1) occurred; or (2) was discovered by the employee through reasonable diligence.” Tex. Gov’t Code Ann. § 554.006(a), (b). Barth argues that, at a minimum, there is a fact issue as to whether Barth should have filed his grievances earlier. We agree. The continuing-violation doctrine has been applied to the Whistleblower Act. See Univ. of Tex.-Pan Am. v. De Los Santos, 997 S.W.2d 817, 820 (Tex.App.-Corpus Christi 1999, no pet.). Under this doctrine, the focus is on what event, in fairness and in logic, should have alerted the average layman to protect his rights. See Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1560 (5th Cir.1985). There are sufficient factual allegations in Barth’s pleadings that could invoke the continuing-violation doctrine; whether that doctrine applies and which acts triggered the 90-day limitations period are issues that should be resolved by the trier of fact. See Hill v. Burnet County Sheriffs Dep’t, 96 S.W.3d 436, 442 (Tex.App.-Austin 2002, pet. denied) (noting that court, in reviewing ruling on plea to jurisdiction, only determines whether plaintiffs pleadings are sufficient to invoke jurisdiction).

In its first issue, UH argues that Barth did not timely file suit. The Whistle-blower Act provides that, “if a final decision is not rendered before the 61st day after the date procedures are initiated ... the employee may elect to (1) exhaust the applicable procedures” and sue not later than the 30th day after exhausting them or (2) terminate the procedures initiated and sue within the time remaining of the 90-day limitations period. See Tex. Gov’t Code Ann. § 554.006(d). Here, 90 days had long since elapsed, thus Barth’s only choice was to bring suit not later than the 30th day after exhausting the grievance procedures.

Although UH contends that the procedure was exhausted on May 31, 2000, when the provost sent his initial letter to Barth, the record does not entirely support this contention. It was not until the letter of June 5, 2001 that the provost wrote, “I now regard this grievance procedure as ended.” A reasonable inference from this comment is that the grievance procedure was not ended before the provost wrote this letter. Because appellant filed suit on July 5, therefore, his suit was timely. If the continuing correspondence between Barth and the provost did not prolong the process, and if the provost’s remark in his letter, dated September 5, 2001, that “I wish to state it [the grievance procedure] is not concluded, at least not due to any action or decision on my part” likewise had no effect on whether the procedure was exhausted, UH still cannot prevail. In Lawson, this Court held that, as statutory prerequisites to filing a Whistleblower lawsuit, an employee who timely initiates the grievance procedure is entitled to file suit after giving the employer at least 60 days to reach a final decision. 122 S.W.3d at 283-84. Barth filed suit after 60 days had elapsed, and 30 days after receiving a letter in which the provost decreed the process finished.

We hold that the fact issues present in the questions of timely grieving and timely filing in this case precluded the trial court from granting the plea to the jurisdiction on the basis of limitations. See Miranda, 133 S.W.3d at 227-28 (holding that if evidence creates fact question regarding jurisdiction, trial court cannot grant plea to jurisdiction, and the fact issue should be resolved by fact finder).

We overrule the first, second, fourth, and fifth issues.

Adverse Personnel Actions

In its third and sixth issues, UH contends that the trial court lacked subject-matter jurisdiction because the actions about which Barth complained were not adverse personnel actions. In its seventh issue, it contends that sovereign immunity shields it from liability for defamation.

The Whistleblower Act defines an adverse personnel action as “an action that affects a public employee’s compensation, promotion, demotion, transfer, work assignment, or performance evaluation.” Tex. Gov’t Code Ann. § 554.001(3) (Vernon 2004). This is a broad definition, asthas been recognized by the courts. See, e.g., Tex. Dep’t of Mental Health & Mental Retardation v. Rodriguez, 63 S.W.3d 475, 481 (Tex.App.-San Antonio 2001, pet. denied) (rejecting state agency’s narrow construction of what constituted adverse personnel action). Any of the acts about which Barth complained in his grievances, and which underlie his suit, could reasonably be construed by a jury to be acts that, although only indirectly in some instances, “affected” Barth’s “compensation, promotion, demotion, transfer, work assignment, or performance evaluation.” We further note that Barth did not file a cause of action for defamation; rather he contended that his supervisor’s defamatory remarks were one of the actions that affected his employment.

As in the question of limitations, which (if any) of the acts about which Barth complains constituted adverse personnel actions is a contested fact issue that should be resolved by the trier of fact. See Hill, 96 S.W.3d at 442 (court did not need to determine whether retaliatory acts constituted constructive discharge, thus were not adverse action; court needed only to determine whether pleadings invoked trial court’s jurisdiction); see also Miranda, 133 S.W.3d at 227-28.

We overrule the third, sixth, and seventh issues.

We affirm the trial court’s denial of UH’s plea to the jurisdiction and supplemental plea to the jurisdiction.

Justice BLAND concurring.

JANE BLAND, Justice,

concurring.

This case presents the question of whether a plaintiffs failure to comply with the Texas Whistleblower Act’s statutory requirements deprives a trial court of its subject matter jurisdiction. In Texas Southern University v. Carter, this court concluded that it does. 84 S.W.3d 787, 792 (Tex.App.-Houston [1st Dist.] 2002, no pet.). The emerging jurisprudence of the Texas Supreme Court, however, strongly signals that it does not. Instead, absent a framework in which statutory requirements expressly define a trial court’s power to hear the subject matter, such requirements are not jurisdictional, but rather operate only as elements necessary to a recovery.

The trial court in this case did not err in denying the university’s pleas to the jurisdiction because the Whistleblower Act does not require exhaustion of administrative remedies — or any sort of administrative decision, for that matter — before filing suit in state district court. Tex. Gov’t Code Ann. § 554.006 (Vernon 2004). The statute does not expand or limit a trial court’s power to hear the subject of the lawsuit. The university’s complaints about the timing of Barth’s initiation of grievance proceedings thus are not attacks on the trial court’s subject matter jurisdiction, but instead are arguments against its employee’s right to a recovery under the Act. Given the Texas Supreme Court’s recent decisions, this court should overrule its holding in Carter, instead of following it, because the grievance initiation timetables in the Act are not jurisdictional. I would affirm the trial court on this ground, and therefore I respectfully concur.

The Statutory Language

Pursuant to section 554.006, entitled “Use of Grievance or Appeal Procedures,” a public employee seeking a recovery under the Whistleblower Act must initiate grievance or appeal procedures available through his employer “before suing” under the Whistleblower Act. See Tex. Gov’t Code Ann. § 554.006(a). The section also requires an employee to invoke such grievance procedures -within 90 days after a violation of the statute occurs, or is discovered by, the employee. Id. § 554.006(b). The time an employee uses in pursuing a grievance or appeal procedure is excluded from the statute of limitations associated with the Act. Id. § 554.006(c).

But a plaintiff is not required to exhaust his grievance or appeal process before filing suit. Section 554.006 further provides that, if the grievance or appeal procedure does not result in a final decision within 60 days of its initiation, then an aggrieved employee may elect either to (1) exhaust the procedure, in which case he must sue within thirty days of exhaustion; or (2) terminate the procedure and sue within the Act’s standard limitations period. Id. § 554.006(d). The statute thus does not forbid the trial court from deciding matters before it unless or until another tribunal reaches a decision; rather, the statute expressly contemplates that grievance proceedings may be abandoned and never conclude. Nor does the statute bind a trial court with the decision of a grievance or appeal process, in ways that a trial court is bound, for example, upon hearing a case appealed from an administrative tribunal. See, e.g., Tex. Gov’t Code Ann § 2001.174 (Vernon 2000) (defining judicial review of state agency administrative decisions).

Supreme Court Jurisprudence

In Dubai Petroleum Co. v. Kazi, the Texas Supreme Court held that courts should not assume that all statutory requirements are jurisdictional requirements. 12 S.W.3d 71, 76 (Tex.2000). The Court observed that a lack of jurisdiction deprives the court of the power to act (other than to determine that it has no jurisdiction), and to ever have acted. Id. at 74-75. Consequently, any jurisdictional irregularity subsets a judgment to attacks upon its finality, even if no party raised the issue at or before the time of judgment. Id. at 76. In Kazi, the court held that the Legislature did not intend the statutory requirements for suing in Texas for an injury or death that occurred in a foreign country to be jurisdictional. Id. at 77.

The Texas Supreme Court applied its analysis in Kazi to the notice provision of the Tort Claims Act in University of Texas Southwestern Medical Center at Dallas v. Loutzenhiser, 140 S.W.Sd 351 (Tex.2004). There, the court reiterated the principle that, absent the intent of the Legislature to fortify a statutory requirement with a jurisdictional effect, none should be assumed in construing a statute. See id. at 359.

Earlier this year, in The University of Texas Medical Branch at Galveston v. Barrett, 159 S.W.3d 631(Tex.2005), the Texas Supreme Court stepped toward harmonizing the Whistleblower Act with its jurisprudence in Kazi and Loutzenhiser. There, the court held that, section 554.006 does not require an employee to exhaust the grievance or appeal procedures before filing suit, and therefore a trial court could abate an action filed prematurely under the Act. Id. at 632-33. It expressly noted that an abatement protected the purpose of the statute whether or not its grievance initiation requirements are jurisdictional in nature. Id. at 633. Of course, an abatement is an exercise of a court’s power that presumes jurisdiction exists, and includes the premise that the court will entertain the lawsuit to its final outcome at a later date. See Butnaru v. Ford Motor Company, 84 S.W.3d 198, 207-08 (Tex.2002) The court’s conclusion that an abatement protects the purpose of the statute also lends support to a view that the statute was never intended to be an arbiter of trial court jurisdiction in the first place. Rather, the Act establishes parameters under which a recovery may be sought — much like a limitations statute, or a notice provision under the Tort Claims Act. See Lout-zenhiser, 140 S.W.3d at 359-60.

And, in Barrett, the Texas Supreme Court included a footnote expressly disapproving of cases that have held “to the contrary” including one from this court that relied upon Carter. See Barrett, 159 S.W.3d at 633 n. 6 (expressly disapproving of Harris County v. Lawson, 122 S.W.3d 276, 281-84 (Tex.App.-Houston [1st Dist.] 2003, pet. denied) (en banc)). The Texas Supreme Court’s disapproval of Lawson includes a parenthetical noting that our holding in that case suggests that the statutory prerequisites of the Whistleblower Act are jurisdictional. The footnote (with page references to our jurisdictional discussion) intimates that our “suggestion” in Lawson is wrong. Otherwise, the court need not have disapproved of it — after all, the plaintiff in Lawson was held to have satisfied the statutory requirements at issue in that case. Lawson, 122 S.W.3d at 284. Together with Lawson, the Texas Supreme Court similarly disapproved of a decision from the Waco Court of Appeals that held the Act’s requirements to be jurisdictional. Barrett, 159 S.W.3d at 633 n. 6. Accordingly, I respectfully disagree with the majority that Lawson was “disapproved of on other grounds.”

Carter Lacks Vitality Post-Loutzenhiser

Our court decided Carter shortly after the Texas Supreme Court decided Kazi. At the time, we declined to apply the principles the Texas Supreme Court enunciated in Kazi — a wrongful death action — to a case involving an action under the Whistle-blower Act. At the time, we read nothing in Kazi to indicate an intent to broadly include other statutes. See Carter, 84 S.W.3d at 790. Even at the time, such a narrow interpretation was questionable, given the Texas Supreme Court’s express disavowal of longstanding Texas jurisprudence that tilted toward reading statutory requirements as tantamount to jurisdictional ones. See Kazi 12 S.W.3d at 76 (expressly overruling Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084 (1926), observing that better policy is to preserve finality of judgments when such reading is not inconsistent with statutory language). Loutzenhiser placed the argument that Kazi was confined to a narrow set of facts to rest. See Loutzenhiser, 140 S.W.3d at 358 (holding that, in viewing statutory language generally, Legislature is bound to know consequences of making statutory requirement jurisdictional one, and courts must analyze whether it was Legislature’s intent to confer such consequences). With the benefit of the Texas Supreme Court jurisprudence that has emerged post-Carter, we can no longer rely upon the distinction that it drew from Kazi, for we now know that statutory elements are not synonymous with jurisdictional elements. As the distinction Carter relies upon is no longer valid, we should not continue to follow it, and refrain from analyzing whether the Whistleblower Act’s grievance initiation precepts are inherently jurisdictional.

Application of the Principles in Kazi and Loutzenhiser

Such an analysis would reveal that the grievance initiation provision of the Whis-tleblower Act, like the notice provision of the Tort Claims Act, is not one in which the Texas Legislature defines the power of the trial courts to hear and decide cases, nor to require they be met as a condition precedent to waiver of immunity. The Act merely requires claimants to initiate a dispute resolution process, and to comply with prescribed time periods for filing suit — a specialized limitations provision of sorts. Like the notice provision of the Tort Claims Act, a grievance initiation process notifies the potential defendant of the claim against it and facilitates early resolution, if possible, of the dispute. The statute does not require the process to continue or even to conclude with a decision. It does not bind the trial court with findings, or establish any sort of judicial review over the final decision of the grievance process, thus expressing no preference “to have the agency resolve disputed issues of fact and policy.” See Loutzenhiser, 140 S.W.3d at 361 (quoting Essenburg v. Dallas County, 988 S.W.2d 188, 189 (Tex.1998)). Hence, the statute imposes no express jurisdictional constraints. Given the preference for the finality of judgments, and the Legislature’s knowledge that, absent express definition, courts will not presume a statute to be jurisdictional, nothing about the Act indicates a legislative intent to define the power of the trial courts to hear and decide these eases, as opposed to defining the substantive and procedural elements that must be met to obtain a recovery. See id.

CONCLUSION

The grievance initiation requirements of the Whistleblower Act do not deprive a trial court of its subject matter jurisdiction should a claimant fail to comply with them. The trial court therefore did not err in denying The University of Houston’s pleas to the jurisdiction, and I concur in the judgment.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon 1997 & Supp.2004-2005) (authorizing interlocutory appeal of denial of plea to jurisdiction).

      . See Tex. Gov't Code Ann. § 554.002 (Vernon 2004).

      . Tex. Civ. Prac. & Rem.Code Ann. §§ 101.021-.022 (Vernon 1997).

      . As the majority observes, the Austin, Fort Worth, and our sister court here in Houston disagree with our holdings that the statutory requirements of the Whistleblower Act are jurisdictional. See Univ. of Houston v. Elthon, 9 S.W.3d 351 (Tex.App.-Houston [14th Dist.] 1999, pet. dism’d w.o.j.); Castleberry Indep. Sch. Dist. v. Doe, 35 S.W.3d 777 (Tex.App.-Fort Worth 2001, pet. dism’d w.o.j.); Tex. Dep’t of Mental Health & Mental Retardation v. Olofsson, 59 S.W.3d 831 (Tex.App.Austin 2001, pet. dism’d). The Texas Supreme Court did not disapprove of these cases in University of Texas Medical Branch at Galveston v. Barrett, 159 S.W.3d 631 (Tex.2005).

      . In Carter, we describe a wrongful death action as a “common law” cause of action as a means of distinguishing it from the Whistle-blower Act. Tex. S. Univ. v. Carter, 84 S.W.3d 787, 791 (Tex.App.-Houston [1st Dist.] 2002, no pet.) Although a wrongful death action is one of personal injury in character, it is a statutory cause of action. Tex. Civ. Prac. & Rem.Code Ann. § 71.002 (Vernon 1997).


author: ELSA ALCALA, Justice.

text:
    GALVESTON RACQUET CLUB, INC., Appellant, v. CITY OF GALVESTON, Appellee.
    No. 01-03-00901-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    July 7, 2005.

      J. Michael Fieglein, Law Office of J. Michael Fieglein, Galveston, TX, for Appellant.
    George W. Vie, III, Mills Shirley, L.L.P., Galveston, TX, for Appellee.
    Panel consists of Justices NUCHIA, JENNINGS, and ALCALA.
   OPINION

ELSA ALCALA, Justice.

In this appeal, Galveston Racquet Club, Inc. (the Club), contends that the trial court erred by granting a plea to the jurisdiction in favor of appellee, the City of Galveston (the City). The Club asserts that the City’s governmental immunity from suit was waived under the Tort Claims Act because the property damage it sustained arose “from the operation or use of ... motor-driven equipment.” See Tex. Civ. PRAC. & Rem.Code Ann. §§ 101.021(1)(A); 101.0215(a)(11), (32); 101.025 (Vernon 2005). The parties do not dispute that the water pumps may constitute motor-driven equipment under the Tort Claims Act. See Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex.2001). Their disagreement concerns the narrow question whether the pleadings demonstrate that the damage arose “from the operation or use of ... motor-driven equipment,” i.e. whether there is a nexus between the operation or use of the water pump and the alleged damage to the Club’s property caused by water that leaked through the broken water pipes. We affirm the trial court’s order granting the City’s plea to the jurisdiction.

Factual and Procedural Background

The Club’s First Amended Original Petition alleged that in August 2001, the ground beneath its tennis courts and parking lot caved in due to water that leaked from “deteriorated,” “unmaintained,” and “worn out” water lines that ran beneath its property. The petition asserted that these water lines leaked because the City used motor-driven pumps to pressurize water into these water lines, and “subject[ed the lines] to substantial, continuous, pump-driven water flow.” In its plea to the jurisdiction, the City asserted that the Club failed to demonstrate a nexus between the use or operation of the water pumps and the cavitation of the ground that caused the property damage. The City contends that the water pumps did no more than furnish the condition that made the alleged property damage possible.

Waiver of Governmental Immunity

In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court’s subject-matter jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid, Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.2003). To determine whether the plaintiff has met that burden, we consider the facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties. Id. (quoting White, 46 S.W.3d at 868). “[I]f the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend.” County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). Because immunity from suit defeats a trial court’s subject-matter jurisdiction, immunity from suit may properly be asserted in a plea to the jurisdiction. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004).

We review a trial court’s ruling on a jurisdictional plea de novo, construing the pleadings in the plaintiffs favor and looking to the pleader’s intent. Id. at 226; Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). Whether the pleader has alleged facts that affirmatively demonstrate subject-matter jurisdiction is a legal question that we review de novo. Miranda, 133 S.W.3d at 226.

Because waterworks, and water and sewer services are governmental functions, the City, a governmental unit, is generally immune from liability for the Club’s damages unless that immunity has been waived by the Tort Claims Act. See Tex. Civ. PRAC. & Rem.Code Ann. §§ 101.021; 101.021(1)(A); 101.0215(a)(11), (32); 101.025 (Vernon 2005). The Tort Claims Act provides, as follows:

A governmental unit in the state is liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

Tex. Crv. Prac. & Rem.Code Ann. § 101.021.

For the government’s waiver of immunity from liability under the Act to apply, the supreme court has consistently required a nexus between the operation or use of the motor-driven equipment and a plaintiffs injuries. Whitley, 104 S.W.3d at 543; White, 46 S.W.3d at 869; LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex.1992). This nexus requires more than mere involvement of property. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.1998). Rather, “the equipment’s use must have actually caused the injury.” White, 46 S.W.3d at 869. Thus, the operation or use of motor-driven equipment “does not cause injury if it does no more than furnish the condition that makes the injury possible.” Bossley, 968 S.W.2d at 343.

The Club contends that the property damage was caused by the cavitation of ground underneath the Club’s property due to water that leaked from “deteriorated,” “unmaintained,” and “worn out” water lines. Although the use or operation of the water pump caused substantial water to flow into the water line and caused the water to pressurize, the alleged damage to the Club’s property was a result of the cavitation of the ground. The damage was caused by the condition created by the water pump — the pressurized, substantial water flow into “deteriorated,” “unmaintained,” and “worn out” water lines — rather than the actual use or operation of the water pump, as required for the waiver of governmental immunity under the Tort Claims Act. See Bossley, 968 S.W.2d at 343 (stating that operation or use of motor-driven equipment “does not cause injury if it does no more than furnish the condition that makes the injury possible.”); Ector County v. Breedlove, 2004 WL 2549146 (Tex.App.-Eastland, Nov.4, 2004, no pet.) (holding that operation and use of motor driven equipment to perform road and ditch work that increased grade near home and that installed culverts to other properties so that water would not drain away from Breedlove home did not constitute use of motor-driven equipment under the Tort Claims Act because motor-driven equipment only created condition that made flooding possible). We conclude that the Club’s claim does not fall within the exception to immunity set forth in section 101.021(1)(A).

We hold that the Club’s claim that the City negligently operated the water pump does not give rise to a claim for damages arising from the operation or use of motor-driven equipment. We further hold that the City’s immunity is not waived by the Tort Claims Act, and that the trial court did not err by granting the City’s plea to the jurisdiction. We overrule the Club’s first issue.

Conclusion

We affirm the judgment of the trial court.

      . The trial court also granted the City’s motion for summary judgment that was filed as an alternative to the jurisdictional plea. In its second issue on appeal, the Club contends that the trial court erred by granting the motion for summary judgment. Because we hold that the trial court properly granted the City’s plea to the jurisdiction, we need not address whether the trial court erred by rendering summary judgment.

      . The parties disputed whether the waters lines should have been in use when they burst. According to an affidavit from the Club’s general manager included in the Club’s responsive motion to the plea to the jurisdiction, he was told by the foreman of the crew sent by the City to stop the leak that the damage to the property was caused because a water line that ran underneath the Club's property was pressurized when it should not have been pressurized because it was an "antique” and should not have been in use. The City, however, in its plea to the jurisdiction, provided two affidavits, one from the Director of Public Works and one from the Utility Manager of the City Water Department, stating that the water line that ran underneath the Club’s property was neither abandoned, nor unpressurized and then pressurized. The City’s affidavits stated that the water line had been pressurized for years, and that the leak was not caused by a pump that caused the line to be pressurized inappropriately, but rather, that the leak was a result of a defect in the line that occurred spontaneously without regard to any employee negligence.

      .The Club has limited its appeal to an assertion that the Tort Claims Act has waived its immunity from suit for damages caused "from the operation or use of ... motor-driven equipment.” See Tex Civ. Prac. & Rem. Code Ann. §§ 101.021(1)(A); 101.0215(a)(ll), (32); 101.025 (Vernon 2005). Accordingly, the Club has waived any complaints concerning the trial court’s grant of the plea to the jurisdiction concerning any complaint that the city was negligent "in maintaining water and sewer lines.” See TexR.App. P. 38.1.

      . See also Schaefer v. City of San Antonio, 838 S.W.2d 688, 691-93 (Tex.App.-San Antonio 1992, no writ), rev’d on other grounds by Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 869 (Tex.2001). The Schaefer court made two holdings: (1) the city was not “operating” or "using” the water pump and (2) the pump was not "motor-driven equipment.” 'White, 46 S.W.3d at 868. In White, the supreme court disapproved of Schaefer's second holding, that the motor-driven pump was not "motor-driven equipment.” Schae-fer, however, also held that "controlling water pressure by use of the electric motor-driven water pumps is not operating or using motor-driven equipment within the meaning of the Act any more than is directing or controlling traffic by 'operation and use’ of the police car in Jackson." Schaefer, 838 S.W.2d at 693 (referring to Jackson v. City of Corpus Christi, 484 S.W.2d 806, 809-10 (Tex.Civ. App.-Corpus Christi 1972, writ ref'd n.r.e.)) (opinion on motion for rehearing). Jackson involved a collision between Jackson’s vehicle and Snyder’s stalled vehicle. Jackson, 484 S.W.2d at 809-10. Jackson contended that police removal of their vehicle from its stopped position behind Snyder’s car, under the circumstances alleged, constituted negligent operation and use of a motor vehicle within the meaning of the Act. Id. The Jackson court held, however, that this did not constitute negligence arising from the operation or use of a motor vehicle within the meaning of the Act. Id. Schaefer's pleadings, which are similar to the Club's pleadings here, alleged the following with respect to the electric motor-driven water pump:
      [0]n the occasion in question certain motor driven equipment described as pumps caused pressure in the water lines owned and operated by the [City Water Board], and that when the main water line broke, the pressure caused the water to gush up into the air and onto [Schaefer’s] property and under the foundation of his home, thereby causing damage and destruction to the home.

        Schaefer, 838 S.W.2d at 692. The Schaefer court went on to state:
      [T]hese allegations relate to the doing or performing of something to propel water through the water mains creating a constant water pressure throughout the system. Thus, the pleading and proof relate to matters involving the practical application of the principles or processes of directing and controlling water distribution to the City of San Antonio, not to the practical application of principles or processes of using or operating motor-driven equipment.

        Id. (citing Jackson, 484 S.W.2d at 809-10). Here, as in Schaefer, the property damage was not the result of the actual use of the motor driven equipment itself. See id.


author: JANE BLAND, Justice.

text:
    Charles DENNIS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 01-04-00514-CR, 01-04-00515-CR, 01-04-00516-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    July 7, 2005.
    Discretionary Review Refused Jan. 18, 2006.

      Stanley G. Schneider, Schneider & McKinney, P.C., Houston, TX, for Appellant.
    Charles A. Rosenthal, Jr., District Attorney-Harris County, Alan Curry, Assistant District Attorney, Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, KEYES, and BLAND.
   OPINION

JANE BLAND, Justice.

A jury convicted Charles Dennis of three counts of sexual assault with a minor and, after he stipulated to the indictment’s allegations in the enhancement paragraph, assessed punishment at twenty years’ confinement. On appeal, Dennis contends the trial court erred (1) in admitting testimony by M.W. of an extraneous offense; (2) in admitting the expert opinions of a psychotherapist; and (3) in refusing to order the production of evidence regarding, and allowing testimony concerning, the State’s decision to dismiss its prosecution of M.W.’s sexual assault. We hold that the trial court did not abuse its discretion in admitting the extraneous offense testimony or in admitting the expert opinions of the psychotherapist. We further hold that the trial court did not abuse its discretion in refusing to allow evidence of the State’s dismissal of its prosecution of MW.’s complaint, nor in refusing to order the production of the State’s memorandum concerning its dismissal. We therefore affirm the judgment.

Facts and Background

A Facts of the Sexual Assault

Charles Dennis was charged with repeatedly sexually assaulting his daughter F.S. Dennis and F.S.’s mother divorced when F.S. was thirteen years old. At the time of the divorce, Dennis moved into a two-room garage apartment with his girlfriend, Rotasha Brown. Brown had two children who also lived in the apartment. F.S. and her sister visited Dennis at the apartment every other weekend. The apartment’s living room contained two couches and a set of bunk-beds. When F.S. visited Dennis, she slept on one of the living room couches.

F.S. testified that on June 9, 2001, when she was fourteen years old, she visited Dennis for the weekend. That evening, Brown’s children and F.S.’s sister slept on the bunk-beds. F.S. slept on one of the living room couches. Dennis fell asleep on the other living room couch. Brown went into the bedroom to sleep. During the night, Dennis came over to F.S. and pulled her to the floor. Dennis told F.S. that he was “going to teach her about sex.” Dennis then removed F.S.’s shorts and underwear, got on top of her and put his penis inside of her vagina. F.S. cried. After it was over, Dennis went into the bedroom to go to sleep. F.S. went into the bathroom and eventually returned to the living room couch where she fell asleep. F.S. did not tell her mother or Brown what had happened because she did not think anyone would believe her and because she was scared.

F.S. testified that on June 23, 2001, Dennis repeated the assault. F.S. was on one of the couches watching television. Brown’s children and F.S.’s sister were asleep on the bunk-beds, and Brown was asleep in the bedroom. Dennis came over to F.S.’s couch, pulled her to the floor and told her that he wanted to teach her about sex. Dennis told F.S. that she should not tell anyone what he was doing because he would have to go away for a long time and F.S. would have to tell her sister what had happened. Dennis then put his penis inside her vagina. F.S. did not tell anyone what had happened.

In July 2001, F.S. again visited Dennis. This time, Brown, Brown’s children and F.S.’s sister fell asleep in the living room while watching television. F.S. left the couch to go to the bathroom, which was .in the bedroom. Dennis followed her and shut the door behind him. Dennis pushed F.S. down on the bed, got on top of her, and put his penis in her vagina. After-wards, F.S. returned to the living room. F.S. did not tell anyone about the assault.

F.S. testified that she was assaulted dim-ing another weekend visit in July 2001. Brown was asleep in the bedroom, and Brown’s children and F.S.’s sister were asleep in the bunk beds. While F.S. was watching television on one of the living room couches, Dennis came out of the bedroom and pulled F.S. to the floor. Dennis put his penis inside her vagina. F.S. cried. F.S. did not tell anyone what had happened.

During F.S.’s next weekend visit, Brown, her children, and F.S.’s sister fell asleep in the bedroom while watching television. While F.S. was watching television on one of the living room couches, Dennis came out of the bedroom and sat on the other living room couch. Dennis then came over to F.S., pulled her to the floor and sexually assaulted her.

In the fall of 2001, Dennis came to F.S.’s house but she refused to open the door for him. F.S.’s mother discovered this, at which time F.S. told her mother’s boyfriend and her mother about the sexual assaults. A doctor examined F.S. and determined that her hymen was not intact — a condition consistent with vaginal penetration. F.S. and her mother reported the assault to the police. The Children’s Assessment Center interviewed F.S. Later, an officer from the Houston Police Department interviewed F.S., and the State filed charges against Dennis.

B. Facts of the Extraneous Offense

During the trial, the State introduced testimony from M.W., Brown’s teenage cousin. M.W. testified that in June 2001, she saw her cousin at a barbeque and was invited to spend the night at her cousin’s apartment. At this time, Brown’s children were visiting other relatives and Dennis’s children were not visiting him. After visiting with her cousin and watching television, M.W. went to sleep on the couch; Dennis and Brown slept in the bedroom. Early the next morning, after Brown had gone to work, M.W. woke up with Dennis on top of her. M.W. cried as Dennis moved her legs apart, held her arms down and moved her underwear to the side. Dennis then put his penis inside her vagina. Dennis later returned to the bedroom. M.W. was scared and did not immediately tell anyone about the assault. M.W. eventually told her mother, who took her to the police station.

Here, before the State introduced M.W.’s testimony, the trial court gave a limiting instruction — that M.W.’s testimony could be used only to rebut the defensive theory of fabrication. The court instructed the jury as follows:

You are instructed that if there is any evidence before you in this case regarding the defendant’s committing an alleged offense or offenses other than the offense alleged against him in the indictment in this case, you cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offense or offenses, if any, and even then you may only consider the same to rebut the defensive theory of fabrication, if any, in connection with this offense, if any, alleged against him in the indictment and for no other purpose.

Extraneous Offenses

In his first two issues, Dennis contends that the trial court erred in admitting M.W.’s testimony that he sexually assaulted her because the testimony involved an irrelevant extraneous offense. Dennis contends that the testimony is irrelevant because (1) its sole purpose is to prove character conformity; (2) it is not similar enough to the charged offense to be used to rebut his defensive theory; and (3) it was impeached by allegations of fabrication and therefore may not be used to rebut his defensive theory. Dennis also contends that MW.’s testimony was unfairly prejudicial. We hold that the trial court did not err because MW.’s extraneous offense testimony was relevant under Rule 404(b) and admissible under Rule 403.

A. Standard of Review

A trial court’s admission of extraneous evidence is reviewed for an abuse of discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App.2003). We will affirm a trial court’s ruling that an extraneous offense has relevance apart from proving conformity with the defendant’s character if the ruling is within the zone of reasonable disagreement. Id. (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990)). ‘When a trial court further decides not to exclude the evidence, finding that the probative value of the evidence is not outweighed by the danger of unfair prejudice, this decision too shall be given deference.” Id. We cannot simply substitute our own decision for the trial court’s. Id.

B. Relevance of the Extraneous Evidence for Rebuttal of a Defensive Theory

Dennis initially contends that the extraneous offense testimony’s “only logical relevance is to show [his] character trait of sexually assaulting children” and, therefore, it should have been excluded. Rule 404(b) precludes a defendant from being tried for his collateral crimes or for having a propensity for criminal conduct. Tex.R. Evid. 404(b); Nobles v. State, 843 S.W.2d 503, 514 (Tex.Crim.App.1992). Extraneous offenses thus are not admissible at the guilt-innocence phase of a trial to prove that a defendant committed the charged offense in conformity with a bad character. Tex.R. Evid. 404(b). Extraneous offense evidence that has relevance beyond character-conformity, however, may be admissible. Id.; Moses, 105 S.W.3d at 626.

Rebuttal of a defensive theory is “one of the permissible purposes for which relevant evidence may be admitted under Rule 404(b).” Moses, 105 S.W.3d at 626. In a sexual assault case, an extraneous offense may be admitted to rebut the defense that the defendant is the innocent victim of a frame-up by the complainant or others. Wheeler v. State, 67 S.W.3d 879, 887-88 n. 22 (Tex.Crim.App.2002). In Wheeler, the Texas Court of Criminal Appeals held that the trial court did not err in admitting evidence that the defendant had previously sexually assaulted his niece. Id. at 887-89. During trial, the defendant suggested that he was the victim of a frame-up and that the complainant had fabricated the allegations against him. Id. at 887. The Court of Criminal Appeals held that the extraneous offense evidence contradicted the defendant’s frame-up theory by showing the defendant’s misconduct in circumstances in which the child making the allegations was not motivated to lie by money or revenge, and thus the extraneous testimony was relevant. Id. at 887.

Here, during his opening and closing argument, Dennis argued to the jury that F.S. fabricated the sexual assault allegations because she was angry at him for taking away her cellular telephone and for disciplining her because of her poor grades in school. On cross-examination, Dennis solicited testimony from witnesses that F.S. was angry when he took her cellular telephone from her and that children may fabricate allegations out of anger. In a hearing regarding the admissibility of the extraneous witness testimony, Dennis explained to the trial court that his whole defense is F.S.’s fabrication of the allegations against him “based upon her being angry.” Thus, under Wheeler, M.W.’s testimony is relevant rebuttal evidence showing that under similar circumstances, Dennis sexually assaulted another child.

Dennis, however, claims his case is “legally indistinguishable” from Pavlacka v. State, 892 S.W.2d 897 (Tex.Crim.App.1994), in which the Texas Court of Criminal Appeals held that the evidence of an extraneous sexual assault of a child was inadmissible to rebut a defense that the child fabricated his testimony. In Pavlac-ka, the defendant did not raise the defense that the complainant had fabricated testimony as a result of improper influence or motive, and “the State, as proponent of the evidence, suggested no theory of logical relevance other than character conformity.” Id. at 901-02 (emphasis added). Here, unlike in,Pavlacka, the State introduced M.W.’s testimony to rebut Dennis’s defense that F.S. fabricated the sexual assault allegations — a theory other than character conformity. Pavlacka, thus, is distinguishable.

C. Degree of Similarity

Dennis next contends that MW.’s testimony cannot be used to rebut his defensive theory that F.S. fabricated her allegations because the sexual assaults of M.W. and F.S. are not similar enough. In Wheeler, the Texas Court of Criminal Appeals held that an extraneous offense may be admitted to rebut the defense that the defendant is the innocent victim of a frame-up if the extraneous misconduct is “similar to the charged one and an instance in which the ‘frame-up’ motive does not apply.” 67 S.W.3d at 887 n. 22 (emphasis added) (citing Boutwell v. State, 719 S.W.2d 164, 179 (Tex.Crim.App.1985) and Johnston v. State, 418 S.W.2d 522, 527 (Tex.Crim.App.1967)).

We have discovered no cases specifically discussing the degree of similarity required before an extraneous offense may be used to rebut the defense of fabrication. Dennis cites Owens v. State, 827 S.W.2d 911 (Tex.Crim.App.1992), contending that the degree of similarity is one of exacting sameness. In Owens, the State introduced the extraneous offense evidence “on the theory that it tended to prove the criminal ‘system’ of [the defendant].” Id. at 914. The court required the extraneous offense to be “so nearly identical in method to the charged offense as to earmark them as the handiwork of the accused.” Id. at 914-15 (internal quotations omitted).

The similarity required to prove a “defendant’s system” naturally is high because the extraneous offense evidence is being used to show the defendant’s distinctive and idiosyncratic manner of committing the criminal acts. Id. We hold that it does not follow that an extraneous offense admitted to rebut the defensive theory of frame-up requires this same degree of exacting similarity between the extraneous and charged offenses. Cf. Plante v. State, 692 S.W.2d 487, 492-93 (Tex.Crim.App.1985) (En banc) (holding that high degree of similarity between extraneous and charged offense used in cases proving mo-dus operandi not required when purpose of proof is to show intent).

Moreover, the facts in Wheeler do not support Dennis’s contention that the extraneous and offense charges here must have the same high degree of similarity required in cases in which the extraneous witness testimony is used to prove a defendant’s system. In Wheeler, evidence of the extraneous offense was admitted after the court found it similar to the charged offense. The similarity was not one of exacting sameness-in both cases, the defendant reached underneath a young girl’s outer clothing and touched her private parts while a family member was nearby. Wheeler, 67 S.W.3d at 886-88. Likewise, in Johnston — cited by Wheeler for the proposition that similarity is required before extraneous offense testimony may be admitted to rebut a defendant’s theory of frame-up — the facts of the alleged offense and the charged offense did not have the degree of similarity required by Owens for cases admitting extraneous offenses to prove a defendant’s system. In Johnston, the charged offense concerned a victim who visited the defendant’s apartment several times, during which the defendant talked the victim into “hypnotizing him with a vibrator” and “kissing him on the stomach” to help the victim “with girls, sex and stuff.” 418 S.W.2d at 525-26. The extraneous offense evidence admitted to rebut the defendant’s theory of a frame-up was testimony that the defendant “played around” with another boy in a car and asked the boy to spend the night and have sexual relations. Id.

Here, both the extraneous and charged offenses involved teenage girls whom Dennis knew; both occurred in Dennis’s apartment, on a couch, in the living room area; both occurred in the summer of 2001; and, during both instances, Dennis did not say much to the victim as he sexually assaulted her. We hold that the similarity between the sexual assaults of M.W. and F.S. is at least as strong as that presented in Wheeler and Johnston, and thus, sufficient to allow use of the extraneous offense evidence to rebut Dennis’s theory that F.S. framed him.

D. Alleged Fabrication by Extraneous Witness

Dennis also contends that under Wheeler, M.W.’s testimony is not relevant because he produced evidence that M.W. had a motive to lie. Dennis again cites to footnote 22 in Wheeler, which states that an extraneous offense may be admitted to rebut the defense that the defendant is the innocent victim of a frame-up if the extraneous misconduct is “similar to the charged one and an instance in which the ‘frame-up’ motive does not apply.” 67 S.W.3d at 887 n. 22 (emphasis added). Dennis contends that Wheeler requires an extraneous offense to be an instance in which no motive exists for the witness to frame the defendant, and because he presented evidence that M.W. had a motive to lie, the extraneous offense was inadmissible.

Wheeler, however, notes that “the” frame-up motive with regard to the complaining witness must not exist; not the complete absence of any frame-up motive with respect to the extraneous witness. See id. We interpret Wheeler as requiring that the extraneous offense be one for which the complainant’s “frame-up” motive does not apply — not that a motive to fabricate the extraneous offense be wholly absent. To read Wheeler otherwise would permit a defendant to exclude any extraneous offense evidence merely by alleging that the extraneous offense witness has some motive — one wholly unrelated to that of the complaining witness’s — to lie.

Although it addressed the issue under Rule 403 — instead of Rule 404(b) — the Texas Court of Criminal Appeals rejected an argument similar to Dennis’s in Montgomery v. State, 810 S.W.2d at 382 (adopted by court in opinion on rehearing at 390 n. 3). In Montgomery, the court rejected the argument that the extraneous offense testimony had limited usefulness because its source was an ex-wife who could not be considered an objective, unbiased, witness. Id. The court held that it would be improper for the trial court to omit extraneous offense testimony because the witness has a motive, to lie — rather, credibility is a question for the jury to decide. Id.

Here, Dennis’s “frame-up” theory against P.S. is that she fabricated the allegations against him because she was angry that he had disciplined her for abusing her cellular telephone and for receiving poor grades. Dennis claims that M.W.’s testimony is not credible because she also had a motive to lie — because she was jealous of Brown, her cousin and Dennis’s girlfriend, and because she was afraid to tell her mother her fear that she might be pregnant. Dennis’s allegation that M.W. also had a motive to lie involves the evaluation of M.W.’s credibility, which Dennis attacked during her cross-examination. Dennis’s impeachment theory that M.W. had motives to lie — different from those F.S. allegedly had — does not preclude the relevance of the extraneous offense.

D. Admissibility under Rule ⅛08 Balancing Test

Even if evidence is relevant, and the purpose for which it is being offered is permissible under Rule 404(b), a trial court should exclude it from evidence if the probative value is substantially outweighed by the danger of unfair prejudice. Tex.R. Evid. 404(b); Moses, 105 S.W.3d at 626 (citing Montgomery, 810 S.W.2d at 387). Courts should consider the following factors under a Rule 403 analysis: (1) the strength of the extraneous offense evidence to make a fact or consequence more or less probable; (2) the potential of the extraneous offense to impress the jury in some irrational but indelible way; (3) the time during trial that the State requires to develop evidence of the extraneous misconduct; and (4) the need by the State for the extraneous evidence. Wheeler, 67 S.W.3d at 888.

Here, MW.’s testimony has similarities to F.S.’s testimony — both involved assaults by Dennis, in the same apartment, during the same month and year, on or about the same couch, and to teenage girls whom he knew. The extraneous offense evidence thus suggests that F.S.’s allegations were not the result of Dennis’s taking away her cellular telephone. As such, this evidence is relevant to rebut Dennis’s theory of fabrication. Second, M.W.’s testimony was not especially graphic, and the trial judge correctly instructed the jury to consider it only for a limited purpose. Third, our review of the record indicates that M.W.’s direct examination was not unduly lengthy. Finally, Dennis strongly contested that the sexual assault actually occurred. The trial court reasonably could have concluded that the State demonstrated that it needed M.W.’s testimony to counter lengthy testimony elicited by Dennis, during both direct and cross-examinations of several witnesses, that F.S. was angry at him for taking away her cellular telephone and thus fabricated the allegations.

Although MW.’s testimony of an extraneous sexual assault carried emotional weight and the danger of impressing the jury in an indelible way, the trial court’s decision to admit the extraneous offense evidence is within the zone of reasonable disagreement. We thus hold that the trial court did not abuse its discretion in admitting MW.’s testimony.

Scientific Evidence

In his third issue, Dennis contends the trial court erred in permitting Dr. Jean Lerner, a child psychotherapist and social worker, to testify about the general characteristics of a child victimized by sexual assault. Dennis argues that the testimony was inadmissable under Rule 702 because Lerner “lacked the training and experience to give such opinions and she lacked the underlying data upon which to base her opinion.”

A. Facts Concerning Lerner’s Qualifications and Testimony

Lerner testified that she obtained a master’s degree in social work from the University of Houston in 1972. She became an accredited certified social worker in 1982 and obtained her advanced clinical practitioner’s certificate in 1984. She earned a doctorate in psychotherapy in 1991 from the International University. Lerner’s training focused on helping children, adolescents and adults work through trauma, emotional problems, or behavioral issues. She has practiced for thirty-five years, working primarily with abused children. She has worked with various agencies in Houston that assist families and children. In her practice, Lerner has seen many children. In 1999, Lerner presented a seminar to professionals on sexual abuse and the treatment of children in play therapy. She has read extensively on the cognitive investigation of abused children. Besides her training and experience, Lerner relied on documentation from the American Academy of Child and Adolescent Psychiatry and the American Academy of Pediatrics in forming her opinions.

Lerner testified that she personally evaluated F.S. before and after the sexual assaults. After the assaults, F.S. had changed her dress to a provocative style. Lerner further testified that F.S. told her that she was worried about Dennis’s spending Christmas alone, that she was angry with Dennis for sexually assaulting her, and that she was feeling anxious about the stress in the family. F.S. revealed feelings of hopelessness based on an inability to deal with her anger towards her father while still missing him. At trial, Lerner testified that F.S.’s expressed feelings and dress are consistent with those of sexually abused children.

B. Standard of Review

We will not disturb a trial court’s determination of whether a witness is qualified as an expert, absent a clear abuse of discretion. Morales v. State, 32 S.W.3d 862, 865 (Tex.Crim.App.2000). We gauge an abuse of discretion by testing whether the trial court acted without reference to any guiding rules or principles. Overall, “a trial court enjoys wide latitude in determining whether expert testimony is admissible”. Hernandez v. State, 53 S.W.3d 742, 750 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd).

C. Admissibility ofLemer’s Testimony

Reliability is the cornerstone of determining the admissibility of scientific testimony — unreliable evidence will not assist a jury to understand the evidence or accurately determine a fact in issue. State v. Medrano, 127 S.W.3d 781, 784-86 (Tex.Crim.App.2004). “When addressing fields of study aside from the hard sciences, such as the social sciences or fields that are based primarily upon experience and training as opposed to scientific method, [the usual] requirement of reliability applies but with less rigor than to the hard sciences.” Nenno v. State, 970 S.W.2d 549, 561 (Tex.Crim.App.1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App.1999); Medrano, 127 S.W.3d at 785. ' When soft sciences are at issue, the trial court should determine (1) whether the field of expertise is a legitimate one; (2) whether the subject matter of the expert’s testimony is within the scope of that field; and (3) whether the expert’s testimony properly relies upon and/or utilizes the principles involved in the field. Medrano, 127 S.W.3d at 785 (citing Nenno, 970 S.W.2d at 561).

The Court of Criminal Appeals examined expert testimony concerning behavioral characteristics of sexually abused children in Duckett v. State, 797 S.W.2d 906 (Tex.Crim.App.1990), disapproved -on other grounds by Cohn v. State, 849 S.W.2d 817, 819 (Tex.Crim.App.1993). In Duckett, the court held that a qualified social worker demonstrating expertise in the field of child sexual abuse can testify to background patterns found in exploited children and can offer opinions of whether the complainant’s statements demonstrate a pattern consistent with other exploited children, but cannot offer expert opinions of the child’s truthfulness. Id. at 915-17. Expert testimony helps the jury understand the seemingly illogical behavior of the child who changes her story, seems confused, and does not immediately disclose a sexual assault. Id. at 916.

Here, Lerner’s opinions regarding the characteristics and dynamics of sexually abused children are based on her extensive experience working with, and learning about, abused children. The State thus sufficiently demonstrated the reliability of Lerner’s expert testimony. See Duckett, 797 S.W.2d at 908, 917; Hernandez, 53 S.W.3d at 751.

We are not persuaded by Dennis’s argument that Lerner’s opinions lacked a sufficient basis because they were not based on her own examination. First, Lerner personally met with F.S. on several occasions, both before and after the sexual abuse. Second, an expert may base her opinions on facts made known to her as well as facts personally observed. Tex.R. Evid. 703; see also Duckett, 797 S.W.2d at 908 (certified social worker testified without personally examining child — he based expert opinion on various witnesses’ testimony, statements in police report and child’s videotaped interview). The trial court did not abuse its discretion in admitting Lerner’s expert opinions into evidence.

Evidence Concerning the Dismissal of M.W.’s Case

Dennis’s last three issues concern evidence of the State’s earlier dismissal of M.W.’s case. Before F.S. told the police that she had been sexually assaulted, the State had investigated M.W.’s allegations of sexual assault, and brought charges against Dennis based on them. Thereafter, Dennis obtained a recorded statement from M.W.’s mother stating that she did not believe her daughter’s allegations. Shortly after Dennis gave a copy of this statement to the prosecutor, the State dismissed its charges in connection with the sexual assault of M.W.

At trial, Dennis introduced into evidence the recorded statement of M.W.’s mother. MW.’s mother testified — she admitted that she previously had stated that she did not believe M.W., and that she thought Dennis was innocent. She explained that she had made these statements because M.W. “did not want to go no further because she didn’t want to hurt his family. She didn’t want his — his children to be without a father.” M.W. also testified. She admitted that on one occasion she had told her mother that Dennis did not do anything to her. She also admitted that her details of how the sexual assault occurred had changed over time.

During the trial, Dennis asked the State to produce its file on M.W.’s case, including the reasons why the State dismissed its charges. The trial court reviewed the records in camera and determined that they were not discoverable. During his cross-examination of M.W. and MW.’s mother, Dennis inquired about the State’s dismissal of its prosecution of M.W.’s case. The trial court sustained the State’s objections to these inquiries. Finally, Dennis attempted to call as a witness the assistant district attorney who dismissed the State’s prosecution of MW.’s case. The trial court granted the State’s motion to exclude this testimony.

Dennis contends the trial court erred (1) in not requiring the State to produce its file regarding the dismissal of MW.’s case; (2) in sustaining the State’s objections to his cross-examination of M.W. and MW.’s mother concerning the State’s dismissal of the prosecution; and (3) in granting the State’s motion to exclude testimony from the district attorney concerning the reason the State dismissed the prosecution of MW.’s case.

A. Relevance

Here, the fact that the State did not prosecute and obtain a conviction in MW.’s case is irrelevant. First, extraneous misconduct may be admissible evidence even if it does not result in a conviction. See, e.g., Rankin v. State, 953 S.W.2d 740, 741 (Tex.Crim.App.1996) (“An extraneous offense is defined as any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers.” (emphasis changed)). Second, there are many possible reasons for the State’s choice in not prosecuting a case. See Mendiola v. State, 61 S.W.3d 541, 546 (Tex.App.-San Antonio 2001, no pet.). Third, to the extent that Dennis attempts to use the evidence as another’s opinion of MW.’s credibility, it is improper. See Schutz v. State, 957 S.W.2d 52, 59 (Tex.Crim.App.1997) (stating that generally it is improper for witness to offer direct opinion as to truthfulness of another witness).

Dennis cites to Mendiola v. State, 21 S.W.3d 282 (Tex.Crim.App.2000) and Lape v. State, 893 S.W.2d 949 (Tex.App.-Houston [14th Dist.] 1994, pet. ref d), in support of his contention that the dismissal of charges of an extraneous offense is admissible evidence. Mendiola concerns evidence admitted during the punishment phase of a trial and the considerations of what should be admitted to determine a defendant’s criminal record. Mendiola is inapplicable to this ease because, as the court explained, “the sentencing phase presents different issues than those contemplated in the guilt/innoeence phase” and at the sentencing phrase, policy rather than relevancy is at issue. Id. at 285. Moreover, on remand, the Texas Court of Appeals determined that the trial court did not abuse its discretion in refusing to admit evidence that the charges on an extraneous offense were dismissed because evidence of the dismissal was irrelevant. Mendiola, 61 S.W.3d at 546.

Nor are we persuaded by Dennis’s citation to Lape. Lape holds that a prior conviction of filing a false report is admissible because, under Rule of Evidence 609, a witnesses’s prior convictions involving moral turpitude may be used to attack the witnesses’s credibility. Id. at 957-58. Here, neither M.W. nor M.W.’s mother was convicted of filing a false report. We hold that the trial court did not abuse its discretion in ruling that evidence of the State’s dismissal of Dennis’s earlier prosecution was not relevant.

B. Brady Violation

Dennis contends that the State’s refusal to produce its file on M.W.’s ease, including notes explaining the dismissal of its prosecution of Dennis for the alleged assault of M.W., violated his constitutional rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In Brady, the United States Supreme Court held that the State’s suppressing material evidence favorable to the accused, upon the accused’s request for the evidence, denies the accused due process of law under the Fourteenth Amendment of the United States Constitution, irrespective of the State’s good or bad faith in withholding the evidence. Id. Withheld evidence is material if there is a reasonable probability that the proceeding’s outcome would have differed had the evidence been disclosed. United States v. Bagley, 473 U.S. 667, 680-82, 105 S.Ct. 3375, 3383-84, 87 L.Ed.2d 481 (1985).

Dennis speculates that the undisclosed documents contain evidence that the State “introduced trial testimony that it knew or should have known was perjured.” The undisclosed documents consist of the recorded statement already in the possession of Dennis and three additional pages of notes. We have reviewed these documents and disagree. First, the undisclosed documents do not have information in addition to that already in the possession of Dennis and that used by Dennis during his examination of M.W. and M.W.’s mother. There is not a reasonable probability that the production of the same-type of information would have changed the outcome of the trial and thus, the evidence is not material. Second, contrary to Dennis’s speculation, the notes do not contain evidence that the State • introduced perjured testimony. Third, as noted above, evidence of the dismissal was not admissible at trial. See Lagrone v. State, 942 S.W.2d 602, 615 (Tex.Crim.App.1997) (stating that State has no duty to produce evidence that would be inadmissible at trial).

Furthermore, our review of the undisclosed documents reveals merely that the State acknowledged inconsistent testimony of which Dennis’s counsel already was aware — this is not evidence that the State introduced perjured testimony. See Weisinger v. State, 775 S.W.2d 424, 427 (Tex.App.-Houston [14th Dist.] 1989, pet. ref'd) (citing Nix v. Whiteside, 475 U.S. 157, 191, 106 S.Ct. 988, 1007, 89 L.Ed.2d 123 (1986)) (holding that “[a] lawyer’s certainty that a change in ... recollection is a harbinger of intended perjury — as well as judicial review of such apparent certainty — should be tempered by the realization that, after reflection, the most honest witness may recall (or sincerely believes he recalls) details that he previously overlooked.”); see also Duckett, 797 S.W.2d at 915-17 (recognizing that abused children often change their testimony).

Conclusion

We conclude (1) the trial court did not abuse its discretion in admitting the extraneous offense testimony of M.W.; (2) the trial court did not abuse its discretion in admitting the expert opinions of the psychotherapist; (3) the trial court did not err in excluding evidence of the State’s decision to dismiss its prosecution of Dennis for the sexual assault of M.W.; and (4) the State did not violate Brady in refusing to produce its notes regarding its dismissal of the prosecution of M.W.’s case. We therefore affirm the judgment of the trial court.

      . Dennis further relies on Gauna v. State, No. 01-99-00790-CR, 2000 WL 567629 (Tex. App.-Houston [1st Dist.] May 11, 2000, pet. ref'd) (not designated for publication), to support his argument that M.W.’s testimony is not relevant beyond proving character-conformity. Gauna, however, does not support his argument. In Gauna, the State argued that the extraneous offense evidence was relevant to rebut the defendant's theory that the victim was lying. Id. at *6. The defendant did no more than attempt to impeach the victim's credibility — he did not argue that the defendant was framed. Id. We held that the evidence was inadmissible because, “[u]nlike the defendants in the child sexual assault cases the State cites, appellant never offered a motive or reason for the victim's purported lie.” Id. Here, Dennis both argued that F.S. had a motive to lie and offered evidence of the reason — she framed him because she was upset that he had disciplined her. Gauna thus is distinguishable because Dennis did more than merely impeach F.S.’s credibility, and thus opened the door to extraneous evidence of his prior sexual assault of a minor.

      . We decline Dennis’s invitation to include in this analysis the time spent out of the presence of the jury on motions and arguments concerning M.W.’s testimony. The potential for unfair prejudice occurs if the State spends an undue amount of time presenting the extraneous offense to the jury.