author: Opinion by Justice FITZGERALD.

text:
    Michael A. PECK, Appellant, v. Pamela B. PECK, Appellee.
    No. 05-04-00919-CV.
    Court of Appeals of Texas, Dallas.
    July 13, 2005.
    Rehearing Overruled Sept. 30, 2005.

      Georganna L. Simpson, Law Office of Georganna L. Simpson, Dallas, for Appellant.
    Michelle May, The May Firm, Dallas, for Appellee.
    Before Justices WRIGHT, BRIDGES, and FITZGERALD.
   OPINION

Opinion by Justice FITZGERALD.

Michael Peck (Husband) appeals the property division and the injunction entered in the divorce decree terminating his marriage to Pamela Peck (Wife). In six issues, he asserts the trial court erred in (1) characterizing disability insurance benefits as community property and (2) in entering an injunction prohibiting him, when in possession of the child, from permitting any woman with whom he is in an intimate or dating relationship to remain overnight in the same residence or lodging. We conclude the trial court did not wrongly characterize the disability insurance benefits and that error, if any, in the entry of the injunction was harmless. We affirm the trial court’s judgment.

BACKGROUND

The parties married in 1980. They separated in January 2003, and Wife filed for divorce. They have one child, born in February 1995.

Husband is a dentist specializing in periodontics and endodontics. In 1992, as Husband prepared to open his practice, he borrowed money from a bank, and at the bank’s insistence, he took out a disability insurance policy. He subsequently purchased three more policies for a total of four disability policies. The premiums for the policies were not paid by Husband’s dental practice but were paid out of the parties’ joint account to avoid federal income taxation of the disability benefits. In late 1998, Husband’s hearing began to seriously deteriorate, and by trial he had no speech recognition in one ear and only about twenty percent in the other ear. Although he continued to practice dentistry, the insurance company declared him presumptively disabled as of January 1, 2000. The four policies paid benefits of $8464 per month and, according to a letter from the insurance company’s Senior Disability Benefits Specialist, will continue to do so for the rest of his life. Although he received disability insurance payments and had little hearing remaining, Husband testified he intended to keep practicing until he considered it unsafe or too frustrating due to his hearing loss. The trial court ruled the disability benefits were community property and ordered Husband and Wife each receive half of the monthly payments under the policies.

After the conclusion of the trial, Husband began cohabiting with a divorced woman who had an eleven-year-old son. Wife filed a motion requesting the trial court enjoin the parties from having a person of the opposite sex overnight when in possession of the child. Husband testified he opposed the motion, explained that his relationship with the woman was “happily monogamous,” and stated that the child and the woman’s child got along “excellently.” Husband testified that the relationship was beneficial to the child and in his best interest. After hearing this evidence, the trial court imposed an injunction prohibiting the parties from:

Permitting an unrelated adult of the opposite sex with whom Petitioner and/or Respondent has or might have an intimate or dating relationship to remain overnight in the same residence or temporary lodging while in possession of the child.

Husband filed a motion for new trial challenging the trial court's characterization of the disability insurance benefits and the propriety of the injunction. The trial court denied the motion.

CHARACTERIZATION OF DISABILITY POLICIES

In the first issue, Husband contends the trial court erred in characterizing the disability insurance benefits as community property and dividing future payments between the parties.

Under Texas law, a spouse’s separate property consists of: (1) the property owned or claimed by the spouse before marriage; (2) the property acquired by the spouse during marriage by gift, devise, or descent; and (3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage. Tex. Fam.Code Ann. § 3.001 (Vernon 1998); see Tex. Const, art XVI, § 15. All other property is community property. Tex. Fam. Code Ann. § 3.002. Property acquired after the dissolution of the marriage, including earnings from employment, is the spouse’s separate property. The trial court has no discretion to divest spouses of their separate property and to distribute it as community property. Cameron v. Cameron, 641 S.W.2d 210, 220 (Tex.1982); Barnard v. Barnard, 133 S.W.3d 782, 789 (Tex. App.-Fort Worth 2004, pet. denied). However, all property possessed by the spouses is presumed to be community property, and a spouse must prove by clear and convincing evidence that property is that spouse’s separate property. Tex. Fam. Code Ann. § 3.003. Under the inception of title doctrine, contractual property rights, acquired during the marriage with community funds or through employment that vest during the marriage are community property. See Barnett v. Barnett, 67 S.W.3d 107, 111 (Tex.2001).

DISABILITY INSURANCE BENEFITS

In the first issue, Husband contends the trial court erred in characterizing the disability insurance benefits as community property and dividing future payments between the parties. Wife asserts Husband judicially admitted at trial that the disability policies were community property, estopping him from contending otherwise.

During the trial, Husband’s attorney said in his opening statement that under Texas law, the disability policy “would be considered a community asset,” and he asked the court to use its discretion in dividing that asset. During Wife’s case in chief, Husband was called to testify, and he stated he did not agree the disability policy was community property, regardless of what the law was. During Husband’s case in chief, Husband’s Exhibit A was offered as a summary of his testimony of his proposal for division of the parties’ community estate. In that exhibit, Husband proposed the insurance disability benefits be divided equally between the parties for three years or until he is unable to practice dentistry, whichever comes first, and that Husband then receive all the benefits. Husband also testified consistent with this part of Exhibit A. Husband’s Exhibit E, his amended inventory and ap-praisement, also states the disability policy benefits were community property. During closing argument, Husband’s attorney, referring to the disability policy benefits, stated, “So granted it is a piece of community property, but ... this Court has the discretion to make an equitable distribution of the property....” After trial, Husband filed a Brief on the Issue of the Disability Policy, which stated, “The evidence shows that the disability policy was purchased during marriage, with community funds, and is therefore pursuant to Texas law, community property.” The brief then urged the court to divide the disability policy benefits equally for only three years or until Husband is unable to practice dentistry, whichever occurs first, and after the three years or Husband’s inability to practice, to award all the disability insurance benefits to Husband. When Wife moved for judgment attaching a draft judgment, Husband did not object to the division of the disability insurance benefits. The trial court then rendered a decree dividing the disability payments equally.

A judicial admission is a formal waiver of proof that dispenses with the production of evidence on an issue. Lee v. Lee, 43 S.W.3d 636, 641 (Tex.App.-Fort Worth 2001, no pet.). A judicially admitted fact is established.as a matter of law, and the admitting party may not dispute it or introduce evidence contrary to it. Id.; Dutton v. Dutton, 18 S.W.3d 849, 853 (Tex.App.-Eastland 2000, pet. denied); Roosevelt v. Roosevelt, 699 S.W.2d 372, 374 (Tex.App.-El Paso 1985, writ dism’d). This rule is based on the public policy that it would be absurd and manifestly unjust to permit a party to recover after he has sworn himself out of court by a clear and unequivocal statement. U.S. Fid. & Guar. Co. v. Carr, 242 S.W.2d 224, 229 (Tex.Civ. App.-San Antonio 1951, writ ref'd); Lee, 43 S.W.3d at 641; Roosevelt, 699 S.W.2d at 374. Five conditions must have occurred for a party’s admission to be conclusive against him: (1) the declaration relied upon must have been made in the course of a judicial proceeding; (2) the declaration was contrary to an essential fact embraced in the theory of recovery or defense asserted by the party; (3) the statement was deliberate, clear, and unequivocal; (4) giving conclusive effect to the declaration would not run contrary to public policy; and (5) the declaration related to a fact upon which a judgment for the opposing party was based. U.S. Fid. & Guar. Co., 242 S.W.2d at 229; Lee, 43 S.W.3d at 641-42.

These facts meet the five requirements set out in U.S. Fidelity & Guaranty Co. for a judicial admission because (1) the admissions were made during the course of a judicial proceeding, (2) the admissions are contrary to the essential fact now argued by Husband that the policies are his separate property, (3) the admissions were deliberate, clear, and unequivocal in that they were prepared and made with the assistance and approval of counsel, (4) giving effect to the admissions of the community character of the disability policy benefits would be consistent with the public policy that a party should not be permitted to recover when he has sworn himself out of court by a clear and unequivocal statement, and (5) the admissions support judgment for Wife. See U.S. Fid. & Guar. Co., 242 S.W.2d at 229; Lee, 43 S.W.3d at 641-42.

Except for one contrary statement in his testimony, Husband made no assertion that the disability insurance policies were his separate property until after the trial court entered its initial divorce decree. Only then did Husband make his separate-property assertion in a motion for new trial and a motion to modify, correct, or reform the judgment, both filed the same day. At the hearing on those motions, Wife’s attorney argued Husband had conceded the community character of the disability insurance benefits during trial.

Because Husband had judicially admitted the policies were community property during trial in his testimony, exhibits, opening statement, and closing argument, as well as in his post-trial brief on the issue of the disability policies, this issue was conclusively proven, and Husband was barred from asserting otherwise. See Lee, 43 S.W.3d at 641; Dutton, 18 S.W.3d at 853. We conclude the trial court did not err in characterizing the disability insurance benefits as community property and dividing future payments between the parties. We overrule Husband’s first issue.

In his second issue, Husband asserts the trial court’s incorrect characterization of the disability insurance benefits resulted in the court’s failing to make a just and right division of the marital estate. Because we have held the trial court did not err in characterizing the disability insurance benefits as community property, Husband’s argument lacks merit. We overrule Husband’s second issue.

INJUNCTION

The trial court’s final order permanently enjoined both parties, while in the possession of the child, from permitting persons of the opposite sex with whom they have or might have an intimate or dating relationship from remaining overnight in the same residence or lodging. In his third issue, Husband asserts the trial court abused its discretion by entering this permanent injunction. In his fourth, fifth, and sixth issues, Husband argues the evidence is legally and factually insufficient to support the trial court’s findings of facts and conclusions of law that, in turn, support the permanent injunction.

Substance of the Injunction

We address first the substance of the trial court’s injunction. The parties have not identified, and our research has not located, a case speaking to this type of restriction upon the conduct of parents who have joint custody of a child. Accordingly, we find no specific legal authority that the trial court was bound to follow when asked to enter this order. We look, therefore, to general principles of visitation and custody in our review of these issues.

Husband brings his challenge to the substance of the court’s injunction in the form of sufficiency-of-the-evidence points. But the trial court’s judgment regarding what serves the best interest of a child with regard to visitation is a discretionary function and will only be reversed upon a determination that the trial judge has abused his discretion. MacCallum v. MacCallum, 801 S.W.2d 579, 582 (Tex.App.-Corpus Christi 1990, writ denied). Moreover, the trial court is given wide latitude in determining the best interests of a minor child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982). Under this abuse-of-discretion standard, legal and factual .insufficiency are not independent grounds for asserting error, but are merely relevant factors in assessing whether a trial court abused its discretion. Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex.App.Dallas 2004, no pet.); In re N.A.S., 100 5.W.3d 670, 672 (Tex.App.-Dallas 2003, no pet.). Therefore, in reviewing the substance of the trial court’s order, we ask whether the court acted without reference to any guiding rules or principles, i.e., whether the order was arbitrary or unreasonable. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

At the hearing on Wife’s motion to include the injunction in the divorce decree, Wife testified that because Husband and his girlfriend were not married, she did not think it was in the child’s best interest for the child to spend the night with both present in the same residence. Husband testified that he was in a stable, monogamous relationship with a recently divorced woman who had an eleven-year-old child whom the parties’ child “gets along with excellently.” Husband testified this relationship was beneficial to the child and was in his best interest because “[it] provides him with a family unit.” Husband testified that although he and the woman had no plans to marry, they were planning to purchase a house together. Husband also testified that heretofore, when he had possession of the child, Husband had slept either in the living room or with the child in the child’s bedroom.

In its findings of fact, the trial court found that Husband was involved in a romantic relationship and was cohabiting with a woman with whom he had no current plan to marry, that during the pen-dency of the divorce, Husband “exposed the child to several different women in dating relationships,” and “[a] nine-year-old child would have a very hard time discerning a relationship other than a marriage relationship.” The findings and conclusions concerning the injunction also stated the injunction was in the child’s best interest; was consistent with providing a safe, stable, and nonviolent environment for the child; was in the best interest of the child’s emotional development; and was “necessary to promote the emotional and physical needs of the child now and in the future, to protect the child from emotional and physical danger now and in the future, to promote the stability of the child’s environment with each parent, and to promote the moral welfare of the child.”

We find no legal authority that directly required or prohibited the trial court’s entering the order forbidding overnight dates during visitation of the child. Wife relies upon MacCallum v. MacCallum in support of the trial court’s order. However, in that case the trial court’s restriction concerned the activities of the children while they were visiting their father, not the activities of the father. 801 S.W.2d at 586-87. Nevertheless, we agree that Mac-Callum speaks to the trial court’s broad authority to place conditions on visitation that are in the child’s best interest. See id. at 586.

Husband, on the other hand argues that the trial court’s discretion is not unlimited — with which we agree — and that the trial court’s order violates his constitutional rights — with which we do not agree. Specifically, we reject Husband’s argument that the substance of the order violated his constitutional right of substantive due process because, in the absence of a finding that he is an unfit parent, the order interferes with his fundamental liberty interest in making decisions concerning the care of his child. Every custody and visitation order limits a parent’s “rights” to some extent; that is the nature of such an order. But Texas courts have held that applying the best-interest-of-the-child standard does not violate a parent’s due process rights. See In re R.D.Y., 51 S.W.3d 314, 324 (Tex. App.-Houston [1st Dist.] 2001, pet. denied); In re H.D.O., 580 S.W.2d 421, 424 (Tex.Civ.App.-Eastland 1979, no writ).

Husband cites three cases for the proposition that sexual activity of a parent committed outside the presence of the child is an insufficient basis on which to base a restriction of his possession of the child, so long as his fitness as a parent has not been called into question. See Wolfe v. Wolfe, 918 S.W.2d 533, 540 (Tex.App.-El Paso 1996, writ denied); In re W.G.W., 812 S.W.2d 409, 414-15 (Tex.App.-Houston [1st Dist.] 1991, no writ); Schwartz v. Jacob, 394 S.W.2d 15, 18 (Tex.Civ.App.-Houston 1965, writ refd n.r.e.). We do not find these cases helpful. Each of the three deals with sexual conduct that literally takes place in a different residence from the child’s or when the child is traveling and away from his residence. See id. Moreover, it does not appear in any of these eases that the parent was living with the non-parent sexual partner. See id. The cases do not speak to the situation before this Court.

We are unaware of any legal authority that would compel the trial court to rule differently on this issue.

Nor do the facts of this case compel a different outcome than the trial court’s decision. Wife testified that, in her opinion, the kind of overnight visits prohibited by the injunction were not in the best interest of the child; Husband disagreed. The trial court was charged with making the decision based upon that testimony, but also upon his experience with and understanding of the individuals involved and their circumstances. One reason we accord such latitude to the trial court is that it “is in the best situation to observe the demeanor and personalities of the witnesses and can ‘feel the forces, powers, and influences that cannot be discerned by merely reading the record.’ ” Niskar, 136 S.W.3d at 753 (quoting N.A.S., 100 S.W.3d at 673). In this instance the trial court had considerable time with the parties and undoubtedly understood better than this Court could the “forces, powers, and influences” that governed the relationships between and among Husband, Wife, and their son. Moreover, the court imposed the same restriction upon both parties. The court also referred to the visitation provision as a “standard” one. There is no reason on this record to assume Husband was unfairly treated. See also Capello v. Capello, 922 S.W.2d 218, 220 (Tex.App.-San Antonio 1996, no writ) (“The trial court, in considering the best interest of the child, had the discretion to weigh and compare appellant’s inconvenience with the safety and well-being of the child.”).

We find no abuse of discretion in the substance of the trial court’s order.

The Injunctive Form of the Order

Husband’s remaining complaints concerning the injunction can fairly be said to challenge the procedures surrounding the entry of this part of the final order. Initially, Husband complains that Wife’s pleading will not support this portion of the decree. We disagree. “Pleadings are of little importance in child custody cases and the trial court’s efforts to exercise broad, equitable powers in determining what will be best for the future welfare of a child should be unhampered by narrow technical rulings.” MacCallum, 801 S.W.2d at 586. Specifically, the trial court has discretion to place conditions on parents’ visitation even if the pleadings do not request such conditions. Id.

Husband further complains that the very presence of an injunction within the court’s order is not contemplated by the family code, which never mentions permanent injunctions. Although the family code does not speak to permanent injunctions, we have identified many Texas cases that address final orders in family law matters or divorce decrees that incorporate permanent injunctions. See, e.g., In re A.C.J., 146 S.W.3d 323 (Tex.App.-Beaumont 2004, no pet.); Walter v. Walter, 127 S.W.3d 396 (Tex.App.-Dallas 2004, no pet.); In re A.J.L., 108 S.W.3d 414 (Tex.App.Fort Worth 2003, pet. denied); Marriage of Edwards, 79 S.W.3d 88 (Tex.App.-Texarkana 2002, no pet.). We find no bar to incorporating language of injunction into a divorce decree.

Finally, Husband argues that Wife offered insufficient evidence to support the traditional requirements of a permanent injunction, namely a wrongful act, imminent harm, irreparable injury, and no adequate remedy at law. See Walter, 127 S.W.3d at 398. Where the family code does speak specifically to injunctive relief (i.e., in temporary orders), it specifically dispenses with the requirement of establishing such prerequisites. Tex. Fam.Code Ann. § 105.001. Moreover, we know that where the best interests of the child are at issue as they are here, sufficiency of the evidence is not the correct standard for review. See Niskar, 136 S.W.3d at 753. We have reviewed the record surrounding the entry of this injunction, and we find no abuse of discretion in the procedure employed.

In conclusion, we disagree that the trial court’s use of the permanent-injunction vehicle should somehow invalidate the order it embodies. Indeed, a final divorce decree that includes provisions concerning custody and possession of a child is capable of being modified. See generally Tex.Fam.Code Ann. ch. 156 (Vernon 2002). Likewise, a permanent injunction remains in place unless the trial court grants a party’s motion to modify its conditions. A violation of either can be punished by contempt. In both instances, the party is ordered to do, or not to do, what the trial court orders. And, we review both under an abuse-of-discretion standard. Thus, whether the trial court entered an injunction — as in this case — or a simple order that made the same prohibition within the divorce decree appears to be a distinction without a difference. Husband never argues the trial court could not have simply ordered the same restrictions on the parties’ visitation rights. In the end, even if there were error in adopting the permanent-injunctive form for this prohibition within the decree, it was harmless error.

We cannot say the trial court abused its discretion by entering the injunction. We overrule Husband’s third through sixth issues.

We affirm the trial court’s judgment.

      . Husband testified he would receive the full payments until he reached age sixty-five (Husband was fifty-two years old at the time of trial), after which he would receive about $3000 less per month for the rest of his life. On appeal, Husband does not dispute that the full amount of the disability payments will continue until his death.

      . Because the court has no authority to divest a party of separate property, see Cameron, 641 S.W.2d at 220, Husband’s testimony and exhibits stating the disability policy benefits should be divided between the parties conceded their community character.

      . Exhibit E does not expressly state the policies were community property. The exhibit first lists various real, personal, and intangible assets; then it lists other " Community Claim[s]” and "Community Liabilities"; and finally "Separate Estate of Husband” and "Separate Estate of Wife.” Because the exhibit separately lists the parties "Separate Estate[s],” the other property listed in the exhibit, including the benefits paid by the disability insurance policies, are presumptively community property.

      .In Appellant’s Reply Brief, Husband states, “On October 30, 2003, Husband filed a brief to support his position that the disability policies were his separate property,” and cited to Husband's Brief on the Issue of the Disability Policy. We disagree with Husband’s interpretation of this document. Nowhere in the Brief on the Issue of the Disability Policy did Husband take the position that the disability insurance benefits were his separate property. As stated above, the post-trial brief on disability benefits stated the disability policies were community property. Husband cited numerous out-of-state authorities holding disability insurance benefits were separate property in those other states. However, Husband did not cite these authorities to show the disability insurance benefits are separate property under Texas law. Instead, Husband (Respondent) cited the cases to show that after three years, awarding all the disability insurance benefits to Husband would be fair and equitable: Respondent respectfully submits the following cases and the legal reasoning in each, summarized for the court, not because he expects this court to overturn Texas law but simply to show that the law in many other jurisdictions, if applied here, would dictate that the disability policy would lead a court to decide that Respondent should receive the disability policy as his separate property, and that such a decision would be the fair and equitable result. Respondent re-urges that court to divide the disability policy as Respondent has requested. Respondent provides these cases and the reasoning within each one as an aid to the court in reaching its decision.

      . After submission, Husband filed a motion requesting we take into consideration the new legislative provisions codifying how disability insurance benefits are characterized. See Act of May 24, 2005, 79th Leg., R.S., H.B. 410, § 1 (to be codified at Tex Fam.Code Ann. § 3.008). As discussed above, Husband waived the issue of the characterization of the disability insurance benefits by judicially admitting the benefits were community property. Accordingly, we need not consider the new legislation. Furthermore, section 2 of the Act states, "The changes in law made by this Act apply ... to a suit for dissolution of a marriage pending before a trial court on or filed on or after the effective date of this Act_” Act of May 24, 2005, 79th Leg., R.S., H.B. 410, § 2. The effective date of the Act is September 1, 2005. Thus, because the suit for dissolution of marriage was filed before the effective date, and it will not be pending before the trial court after the effective date, we conclude the Act does not apply.

      . The trial court’s findings of fact and conclusions of law concerning the injunction were as follows:
      [Finding of Fact 11] It is in the best interest of the child that [Wife] and [Husband], and their agents, servants, employees, attorneys, and those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise, be permanently enjoined as follows:
      Permitting an unrelated adult of the opposite sex with whom Petitioner and/or Respondent has or might have an intimate or dating relationship to remain overnight in the same residence or temporary lodging while in possession of the child.
      [Finding of Fact 12] [Husband] currently resides in the same household with an unmarried cohabitant of the opposite sex, with whom he has a romantic relationship but has no current plan to marry. [Finding of Fact 13] During the pendency of the divorce, [Husband] exposed the child the subject of this suit to several different women in dating relationships with Michael A. Peck.
      [Finding of Fact 14] A nine-year-old child would have a very hard time discerning a relationship other than a marriage relationship.
      [Conclusion of Law 9] The permanent injunction is consistent with the best interest of the child in order to assure that the child will have frequent and continuing contact with both [Wife] and [Husband], to provide a safe, stable and nonviolent environment for the child, and to encourage both [Wife] and [Husband] to share in the rights and duties of raising the child after the dissolution of the marriage.
      [Conclusion of Law 10] The permanent injunction is necessary to promote the emotional and physical needs of the child now and in the future, to protect the child from emotional and physical danger now and in the future, to promote the stability of the child's environment with each parent, and to promote the moral welfare of the child. [Conclusion of Law 11] It is in the best interest of the child’s emotional development that the permanent injunction be entered restricting the parties’ right to have unrelated overnight guests of the opposite sex in the presence of the child.
      The findings and conclusions in bold-faced type are challenged by Husband.

      . Husband’s complaints that the trial court’s order violates his rights to free association (because the order interferes with Husband’s decisions about whom he may "associate” with while in possession of his son) and procedural due process (because he did not receive adequate notice of the hearing on Wife's motion) were not raised below and will not be addressed for the first time here.

      . The following typical injunctive accouterments are not necessary to obtain injunctive relief in temporary orders under the family code: an affidavit or verified pleadings stating specific facts showing immediate and irreparable injury, loss, or damage; a definition of an injury and statement of why it is irreparable; a statement of why the order was granted without notice; an order setting cause for trial; and a bond. Tex. Fam.Code Ann. § 105.001(b), (d).


source: Caselaw Access Project

author: FELIPE REYNA, Justice.

license: Public Domain

text:
    Howard Milton SHOOK, Appellant, v. The STATE of Texas, Appellee.
    Nos. 10-04-00121-CR, 10-04-00122-CR.
    Court of Appeals of Texas, Waco.
    Aug. 3, 2005.
    Rehearing Overruled Sept. 6, 2005.

      Walter M. Reaves, West, for appellant.
    Kathryn J. Gilliam, Falls County Dist. Atty., Marlin, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

A jury convicted Howard Milton Shook of assaulting a public servant and evading arrest or detention in a motor vehicle. The jury assessed his punishment at ten years for the assault charge and two years for the evading charge and assessed a $10,000 fine for each. Shook contends in three points that the court abused its discretion by: (1) permitting the arresting officer to provide hearsay testimony; (2) permitting the State to cross-examine him about a prior assault on his girlfriend; and (3) permitting the State to impeach him with a prior felony conviction not shown to be final. We will affirm.

The two offenses arose from Falls County Sheriffs Deputy Jason Campbell’s efforts to serve two arrest warrants on Shook. Campbell testified that he decided it would be safer to serve the warrants on Shook during a traffic stop away from Shook’s home because Shook had made threatening remarks to him during a prior encounter at Shook’s home. Campbell set up surveillance on Shook’s home and waited for Shook to leave.

When Shook left the premises, Campbell pulled in behind him and activated the overhead lights of his patrol car to stop him. Shook then accelerated his pickup, and Campbell activated the siren and radioed for assistance. Shook was driving between forty and fifty miles per hour at this point.

Campbell shot a rear tire of Shook’s pickup. Despite the flattening tire, Shook continued for some distance before the pickup drove into a bar ditch. Shook got out of the pickup, and Campbell noticed that he had something in his hand. Campbell ordered Shook to “Drop it and get down,” but Shook refused. Campbell charged toward him and tackled him.

Campbell ordered Shook to drop what he was holding. Shook refused, and a struggle ensued. Campbell hit Shook in the face twice before he dropped what he was holding. Campbell rolled Shook over and attempted to handcuff him, but Shook continued to fight. After Campbell got Shook in a “choke hold,” Shook relented. When Campbell released his grip to handcuff Shook however, Shook got out of his grasp and started toward his house, which was about four-tenths of a mile away.

Campbell caught up to Shook and tackled him again. After another struggle, Shook again escaped from his grasp and continued toward the house. Campbell again caught up to him, and both of them were out of breath at this point. Shook was not affected when Campbell used pepper spray on him twice. After another struggle, Campbell abandoned the encounter and returned to his patrol car to await back-up.

Shook’s testimony differed significantly from Campbell’s. Shook denied that he had made threatening remarks during a prior encounter at his house. He testified that he tried to pull over as soon as he saw Campbell’s overhead lights, until Campbell shot the tire. He testified that Campbell’s car rear-ended his pickup and force him off the road. Shook testified that he tried to surrender as soon as he exited the pickup but Campbell tackled him anyway. He testified that he fought back only because Campbell had attacked him without provocation.

The parties do not dispute that Shook turned himself in several days after the altercation.

Hearsay

Shook contends in his first point that the court abused its discretion by permitting Deputy Campbell to provide hearsay testimony about Shook assaulting his girlfriend Christy Curbello. The State responds that Shook failed to preserve this issue, that the testimony was admissible in response to cross-examination to explain Campbell’s actions, and that any error was rendered harmless by Shook’s admission that he assaulted Curbello.

One of the two arrest warrants which Campbell was attempting to serve on Shook was for assaulting Curbello. During cross examination, defense counsel questioned Campbell about the assault investigation and about his relationship to Curbello. On redirect examination, the prosecutor questioned Campbell further about the assault investigation. Campbell testified that when he arrived at the scene Curbello “had a disheveled appearance, pretty apparent that she had been involved in an altercation. She stated that ...”

Defense counsel objected on the basis of hearsay. The court overruled the objection. Campbell then testified that Curbel-lo told him “Mr. Shook had come to the fireworks stand, had grabbed her, lumped her up a little bit — by that, I mean he had assaulted her — and attempted to drag her off into the pickup and leave.”

Moments later, Campbell testified without objection that Curbello “indicated” to him that Shook and she “were living together,” “were boyfriend and girlfriend,” and “that she had her belongings at Mr. Shook’s residence.”

The State is correct that Shook failed to preserve the issue of whether this latter testimony was inadmissible hearsay because he failed to object. See Tex.R. Evbd. 108(a)(1); Paredes v. State, 129 S.W.3d 530, 535 (Tex.Crim.App.2004). However, Shook’s objection did preserve the issue of whether Campbell should have been allowed to testify about Curbello’s statements to him about how Shook assaulted her.

The State suggests that this testimony was not offered to prove the truth of the matter asserted and was admissible to explain the basis for Campbell’s decision to serve the warrants away from Shook’s home, which had been called into question during cross-examination. We disagree with this assertion however, because the lawfulness of Campbell’s actions had not been called into question.

[TJestimony by an officer that he went to a certain place or performed a certain act in response to generalized “information received” is normally not considered hearsay because the witness should be allowed to give some explanation of his behavior. But details of the information received are considered hearsay and are inadmissible — unless the officer’s conduct has been challenged, for instance, as lacking probable cause.

Poindexter v. State, 153 S.W.3d 402, 408 n. 21 (Tex.Crim.App.2005) (citing Schaffer v. State, 777 S.W.2d 111, 114-15 (Tex.Crim.App.1989)).

As the Court explained in Schaffer: An officer’s actions may be made an issue before the jury, see Article 38.23, Y.A.C.C.P., and thus it may be necessary for the officer to testify not only how he happened upon the scene, but also the specific information received so that the jury may resolve any issues regarding an officer’s actions.

777 S.W.2d at 115 n. 4. Because of the Court’s reference to article 38.23 as the basis for allowing an officer to testify about out-of-court statements, we conclude that this principle of admissibility applies only when the lawfulness of a search or seizure has been called into question by the defense. See Tex.Code CRIM. PROC. Ann. art. 38.23(a) (Vernon 2005).

The State may also offer out-of-court statements in evidence without violating the hearsay rule to explain why the defendant became the subject of the investigation. See Dinkins v. State, 894 S.W.2d 330, 347 (Tex.Crim.App.1995); Powell v. State, 151 S.W.3d 646, 653 (Tex.App.-Waco 2004, pet. granted); Schneider v. State, 951 S.W.2d 856, 864 (Tex.App.-Texarkana 1997, pet. ref'd); Oberg v. State, 890 S.W.2d 539, 542 (Tex.App.-El Paso 1994, pet. ref'd).

Here, Shook challenged the manner in which Campbell decided to serve the arrest warrants on Shook but not the legality of Campbell’s decision to serve the warrants away from Shook’s home or the legality of the warrants themselves. The details of Shook’s assault on Curbello were unnecessary to explain how Shook became the subject of Campbell’s investigation. To the extent that Shook may have “opened the door” on the issue of whether Campbell believed it would be safer to serve the arrest warrants away from Shook’s house, this “opened door” did not excuse the State from compliance with the Rules of Evidence. See Kipp v. State, 876 S.W.2d 330, 337 (Tex.Crim.App.1994) (plurality); Daniels v. State, 25 S.W.3d 893, 898 (Tex.App.-Houston [14th Dist.] 2000, no pet.); Cardenas v. State, 971 S.W.2d 645, 651 (Tex.App.-Dallas 1998, pet. ref'd). Thus, the court abused its discretion by admitting the testimony at issue.

We must now determine whether this error affected Shook’s substantial rights. See Tex.R.App. P. 44.2(b). The State contends that any error was rendered harmless because Shook admitted on cross-examination that he had assaulted Curbello. We disagree. Admitting that the assault occurred does not render harmless the improper admission of testimony describing details of the assault. Cf. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim.App.1998) (“the erroneous admission of testimony is not cause for reversal, if the same fact is proven by other testimony not objected to”) (emphasis added) (quoting Wagner v. State, 53 Tex.Crim. 306,109 S.W. 169, 169 (1908)); Chapman v. State, 150 S.W.3d 809, 814 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd) (“improper admission of evidence is not reversible error if the same or similar evidence is admitted without objection”) (emphasis added).

We “consider everything in the record, including any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case.” Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App.2002); accord Geuder v. State, 142 S.W.3d 372, 376 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). In reviewing the entire record, we may consider the jury instructions, the State’s theory of the case, any defensive theories, closing arguments, voir dire, the strength of the evidence of the defendant’s guilt, and the extent to which the State emphasized the erroneously admitted evidence. See Motilla, 78 S.W.3d at 355-56; Geuder, 142 S.W.3d at 376.

Here, the extraneous assault was not discussed during voir dire or opening statements. Campbell’s testimony about the details of the assault did not arise until redirect examination, after Shook had cross-examined him about his contention that he feared a violent encounter if he tried to serve the arrest warrants on Shook at his house. The issue was not mentioned again until the State’s cross-examination of Shook. The State did not emphasize the details of the assault during closing argument.

Shook contends that the erroneous admission of this testimony had a substantial impact on his claim of self-defense or made him appear less credible before the jury. We disagree. The State did not argue that the prior assault was a reason to reject Shook’s self-defense argument. The State placed little emphasis on the assault other than to place the events leading up to the altercation between Campbell and Shook in perspective. The State made no further mention of the details of the assault.

Thus, we are convinced that the error “did not have a substantial and injurious effect or influence in determining the jury’s verdict.” Garcia v. State, 126 S.W.3d 921, 927 (Tex.Crim.App.2004). Accordingly, we overrule Shook’s first point.

Impeachment With Details of Prior Assault

Shook contends in his second point that the court abused its discretion by permitting the State to cross-examine him about assaulting Curbello. The State responds that Shook objected to only two of the State’s questions on this subject, that the first question was relevant to an issue raised by Shook on direct examination, and any error arising from the second question was rendered harmless because he had already admitted without objection that he assaulted Curbello.

During cross-examination, Shook conceded without objection that he had assaulted Curbello. On further questioning, he testified that she hit him first “with her open fist on the ear.” Shook’s counsel objected on the basis of relevance when the prosecutor asked whether that hurt. The prosecutor responded that it was relevant to impeach Shook’s prior testimony that his ear was hurting two days after the altercation with Campbell. We cannot say that the court’s admission of this evidence was “outside the zone of reasonable disagreement.” See Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App.2005); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991).

By the second question to which Shook objected, the State inquired further about the details of the prior assault. As we have already explained however, the details of the assault are irrelevant. Shook’s admission without objection that he assaulted Curbello does not render harmless the improper admission of testimony describing details of the assault. Nevertheless, for the reasons given hereinabove, this eiTor “did not have a substantial and injurious effect or influence in determining the jury’s verdict.” Garcia, 126 S.W.3d at 927. Accordingly, we overrule Shook’s second point.

Impeachment With Prior Conviction

Shook contends in his third point that the court abused its discretion by permitting the prosecutor to impeach him with a prior felony conviction which was not shown to be final. However, Shook objected only on the basis of relevance. Thus, he did not preserve this issue for appellate review. See Ibarra v. State, 11 S.W.3d 189, 197 (Tex.Crim.App.1999); Ester v. State, 151 S.W.3d 660, 663 (Tex.App.Waco 2004, no pet.). Accordingly, we overrule Shook’s third point.

We affirm the judgment.

      . It was later determined that Shook was holding a flashlight.

      . Article 38.23(a) of the Code of Criminal Procedure provides:
      No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
      In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
      Tex.Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005).

      . The assault on Curbello occurred on the day before the altercation.


author: BILL VANCE, Justice.

text:
    Hunter Harrison HAAS, Appellant, v. The STATE of Texas, Appellee.
    No. 10-04-00217-CR.
    Court of Appeals of Texas, Waco.
    Aug. 3, 2005.

      Harold J. Laine, Jr., Beaumont, for appellant.
    John D. Kimbrough, Orange County Dist. Atty., Orange, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

I. Introduction

Appellant Hunter Haas pled guilty to felony possession of marihuana (between five and fifty pounds). Haas received deferred adjudication probation for ten years and was ordered to pay a $1,500 fine and to serve forty-five days in county jail as conditions of probation. In two issues, Haas complains that the trial court erred in denying his motion to suppress because his detention and the subsequent search of his car were unconstitutional. We will affirm.

II. Factual Background

The evidence at the hearing on Haas’s motion to suppress was the testimony of Brad Frye, a Texas Department of Public Safety (DPS) trooper, and a videotape of Frye’s traffic stop of Haas, which occurred on November 9, 2002, at approximately 11:00 a.m. We have reviewed the testimony and the videotape.

Frye testified that he had been with the DPS since 1994 and a peace officer since 1990. On the morning of November 9, he was on patrol on Interstate 10 with his drug-sniffing dog, B.J., whom he had worked with for eleven months. He stopped Haas for speeding and following too closely while Haas was driving eastbound in Orange County near Vidor. According to Frye, his radar “clocked” Haas’s car at 74 m.p.h. (in a 70 m.p.h. zone), and Haas’s car, a 1997 two-door Cadillac, ran up on an SUV and nearly collided with it. After Haas pulled over on the highway shoulder and Frye pulled up behind him, Frye checked the license plate number (a dealer’s tag) by radio. Frye then got out of his patrol car, walked to Haas’s passenger-side window, and informed him of the purpose for the stop. Frye asked Haas to get out of his car so that he could hear Haas better, as traffic was noisily passing by. Haas got out of his car and walked around to the rear of it, and Frye asked to see his driver’s license. Frye said that he had looked in the car and saw maps spread out in the front and the back of the car.

After Haas handed Frye his license, Frye asked Haas if he still lived at the address in Mississippi that was on the license. Haas responded affirmatively and then volunteered the alleged purpose of his trip: Haas said that he was a car dealer, that he had just bought the car at an auction, that he had driven the car to Houston to try to sell it to “somebody,” but that they didn’t want it. Frye testified that Haas’s quick volunteering of where he had been and what he had been doing just in response to a question about Haas’s address “threw him off,” was unusual, and made Frye immediately suspicious of Haas. Frye also said that Haas was “a nervous wreck.” Frye testified that most people he pulls over are nervous, but that Haas’s nervousness escalated. Frye then asked where Haas had bought the car, and Haas said that he got it at a car auction in Mississippi. Frye then asked where Haas was going with the car. Haas replied that he went to Houston to “check on an auction” and a “couple of friends” because he thought they might be interested in the car, but they didn’t have the money for it. Frye said that Haas’s explanation made him more suspicious because he couldn’t understand why Haas would have driven the car from Mississippi to Houston without knowing if the purported purchaser wanted to buy it or could buy it.

Frye then asked Haas what car auction in Houston he had gone to, but Haas responded that he had just gone to “check on it.” Frye said that this response also made him suspicious. Frye next asked Haas how he was going to get home if he sold the car, and Haas said he would have taken a bus. Frye testified that, at this point, he thought Haas was just “making up stuff’ to please Frye.

Frye next asked Haas for paperwork for the car, and Haas began to search for it. While Haas was searching, Frye asked him what kind of work he did, and Haas said he was just starting his own business buying and selling used cars. Haas volunteered that he was going to take a loss on this car because the original motor was blown and he had to put a used motor in it. Frye asked Haas why he didn’t just put the car back in a car auction if it needed a new motor, and Haas responded that it would not have brought anything. Frye concluded that Haas was now changing his story, as Haas had earlier said that he was going to cheek on a car auction in Houston. They then reviewed the car’s paperwork, and Frye pointed out that the title had not been signed by the previous owner.

At 11:03:49, as shown by the videotape, Frye told Haas that he was just going to issue him a warning if Haas’s driver’s license was valid. Frye then asked Haas if he had been driving all night, and Haas said that he had not been. In response to Haas’s statement that his cruise control had been set on 70 m.p.h., they then discussed that the car’s speedometer may be inaccurate because the tires on it may be a different size from the original tires.

Frye next asked Haas when he had left Mississippi to go to Houston, and after hesitating, Haas said that he had left Friday (the day before). Haas again volunteered that he had talked to a “couple of people,” that they didn’t want the car, and that he couldn’t find information on the auction in Houston. Haas then volunteered that he was “mostly just test driving” the car. Frye said Haas would not keep eye contact with him and got more nervous.

Frye asked Haas where he had stayed the night before, and Haas said that he stayed at a motel and retrieved a motel receipt from the car. The time was now 11:05. Frye went to his patrol car and called in Haas’s driver’s license at 11:06 and began writing the warning. Frye testified that he thought Haas’s story — with the timing and the alleged purpose for Haas’s trip — did not add up and did not make sense. Haas and Frye discussed the car again, and in response to Frye, Haas said that he had had only one car in his car business' — the one that he was driving.

At 11:07:30, Frye called in for the report on Haas’s driver’s license, and he then asked Haas who he had been to visit. Haas, hesitating, answered “Jeff.” When Frye asked what Jeffs last name was, Haas hesitated and said, “Actually, it was Jeff Farr.” Frye asked how long Haas had known Jeff, and Haas said that Jeff was his cousin’s Mend. Haas then volunteered that Jeff had looked at the car but that he didn’t really have extra money for it. Frye asked Haas why he had not stayed with Jeff (whom Haas had said was originally from Mississippi and had moved to the Houston area), instead of at a motel, and Haas said that Jeff had kids and he did not want to “barge in” on them. Frye testified that at this time (11:08:30), Haas was so nervous that his hands were shaking. The videotape shows Frye commenting to Haas on how nervous Haas appeared and on his shaky hands.

Frye then commented that nervous people whom he didn’t know concerned him, and he asked Haas if he was carrying any weapons. Haas replied that he was not, and Frye Msked Haas for weapons and found none. Haas asked if he was getting a ticket, and Frye replied that he was giving him a break and only issuing him a warning. They talked again about the car’s speedometer, tires, and motor, and then Frye asked Haas to sign the warning, and Haas complied. The time was 11:10.

At 11:10:30, Frye asked Haas if he had any weapons or anything illegal with him. Haas said that he did not, and Frye asked Haas if he would have a problem with Frye’s searching the car to make sure there were no guns or drugs in it. Frye testified that he asked for consent to search the ear because Haas’s actions, stories, and nervousness led Frye to conclude that some type of criminal act was occurring. And Frye said that with Houston being a hub for drugs and with Haas’s story for going to Houston not making sense, he knew that “something was going on.”

Haas said that he would rather Frye not search. Frye testified that at this point he did not have probable cause to search the car.

At 11:12, Frye said that he would then run his dog B.J. around the car and make sure the dog did not get an alert, and if there was nothing, then he would let Haas go on his way. Haas asked how long the dog would take, and Frye said that it would just take a few minutes because the dog was in his patrol car. Because they were on the shoulder of a busy interstate highway, Frye did not want to run his dog around the car without a back-up to watch the traffic and Haas while Frye and the dog were going around the car. At 11:13, Frye called for another officer to come to the scene and help.

At 11:25, another police officer showed up; at 11:28, a second officer showed up; and at 11:29, a third officer arrived. At 11:32, Frye walked B.J. around Haas’s car. B.J. quickly alerted to the left rear of Haas’s car. Frye then informed Haas that because his dog had alerted to the presence of narcotics in the car, he had probable cause to search the car. Frye first searched the interior and found nothing. At 11:34, Frye opened the trunk and found a suitcase with a strong marihuana odor. Frye then arrested and handcuffed Haas and read him his Miranda warnings, after which he asked Haas if he wanted to say how much marihuana was in the suitcase. Haas responded that because Frye was going to find out anyway, he would tell him. Haas said that the quantity was just under fifteen pounds. At this point, the entire stop had lasted about 35 minutes. At 11:42, Frye opened the suitcase and found a plastic bag containing almost fifteen pounds of marihuana.

III. Issues Presented

In his first issue, Haas asserts that the trial court erred and abused its discretion in denying his motion to suppress because the detention was without reasonable suspicion. His second issue is that the trial court erred and abused its discretion in denying his motion to suppress because the search of his car was without probable cause because it was tainted by the illegal detention. In both issues, Haas asserts that the detention and search violated his rights under the Fourth and Fourteenth Amendments of the U.S. Constitution and article 1, section 9 of the Texas Constitution.

IV. Burden of Proof and Standard of Review

To suppress evidence on an alleged violation of Fourth Amendment rights, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App. 2005). A defendant satisfies this burden by establishing that a search or seizure occurs without a warrant. Id. Once the defendant makes this showing, the burden shifts to the State, which must then establish that the search or seizure was conducted with a warrant or was reasonable. Id.

We have previously articulated the bifurcated standard of review of a trial court’s denial of a motion to suppress:

A trial court’s denial of a motion to suppress is reviewed for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App.1999). There is an abuse of discretion “when the trial judge’s decision was so clearly wrong as to he outside that zone within which reasonable persons might disagree.” Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App.1992); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (op. on reh’g).
The trial court’s findings of fact are given “almost total deference,” and in the absence of explicit findings, the appellate court assumes the trial court made whatever appropriate implicit findings that are supported by the record. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App.2000); Guzman v. State, 955 S.W.2d 85, 89-90 (Tex.Crim.App.1997). However, the application of the relevant law to the facts, including Fourth Amendment search and seizure law, is reviewed de novo. Cannouche, 10 S.W.3d at 327. Also, when the facts are undisputed and we are presented with a pure question of law, de novo review is proper. Oles, 993 S.W.2d at 106. Thus, for example, when the issue to be determined on appeal is whether an officer had probable cause, “the trial judge is not in an appreciably better position than the reviewing court to make that determination.” Guzman, 955 S.W.2d at 87. Therefore, although due weight should be given to the inferences drawn by trial judges and law enforcement officers, determinations of matters such as reasonable suspicion and probable cause should be reviewed de novo on appeal. Id. (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)).

Davis v. State, 74 S.W.3d 90, 94-95 (Tex.App.-Waco 2002, no pet.).

V. Applicable Law

A. Initial Traffic Stops

A law enforcement officer may lawfully stop a motorist who commits a traffic violation. Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App.1992). In general, the decision to stop an automobile is reasonable when an officer has probable cause to believe that a traffic violation has occurred. Walter v. State, 28 S.W.3d 538, 542 (Tex.Crim.App.2000); Wolf v. State, 137 S.W.3d 797, 801 (Tex.App.-Waco 2004, no pet.); see also Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). A traffic stop is a “seizure” within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the resulting detention is quite brief. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979); see United States v. Brigham, 382 F.3d 500, 506 (5th Cir.2004) (en banc); Francis v. State, 922 S.W.2d 176, 178 (Tex.Crim.App.1996).

Officers may stop and briefly detain persons (Terry stops) suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). Because a routine traffic stop is more analogous to an investigative detention than a custodial arrest, such stops are analyzed as Terry stops. Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984); Brigham, 382 F.3d at 506. An investigative detention—either as a part of, or apart from, a traffic stop—is also a seizure for Fourth Amendment purposes. See Francis, 922 S.W.2d at 178; Powell v. State, 5 S.W.3d 369, 375 (Tex.App.-Texarkana 1999, pet. ref'd). Therefore, a traffic stop and any concomitant investigative detention must be reasonable under the United States and Texas Constitutions. See U.S. Const, amend. TV; Tex. Const, art. I, § 9. The Fourth Amendment protects against only unreasonable searches and seizures. Terry, 392 U.S. at 20, 88 S.Ct. at 1879; Walter, 28 S.W.3d at 540 (citing Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 473, 142 L.Ed.2d 373 (1998)).

During a routine traffic stop, an officer may detain an individual to check for outstanding warrants. Walter, 28 S.W.3d at 542 (citing Davis v. State, 947 S.W.2d 240, 245 n. 6 (Tex.Crim.App.1997)). An officer may also request a driver’s license, liability insurance information, vehicle ownership information, the driver’s destination, and the purpose of the trip. Veal v. State, 28 S.W.3d 832, 835 (Tex. App.-Beaumont 2000, pet. ref'd) (citing Powell, 5 S.W.3d at 377, and Mohmed v. State, 977 S.W.2d 624, 628 (Tex.App.-Fort Worth 1998, pet. ref'd)). While an officer is awaiting a computer warrant check, questioning about matters unrelated to the initial traffic stop does not violate the Fourth Amendment because such questioning does not extend the duration of an initial valid seizure. United States v. Sharpe, 470 U.S. 675, 687, 105 S.Ct. 1568, 1576, 84 L.Ed.2d 605 (1985); United States v. Shabazz, 993 F.2d 431, 437 (5th Cir.1993). In some circumstances, however, extensive questioning about unrelated matters may exceed the scope of the initial stop. United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir.1993).

B. Reasonable Suspicion

Under Terry, a temporary investigative detention — a Fourth Amendment seizure — is reasonable, and therefore constitutional, if: (1) the officer’s action was justified at the detention’s inception; and (2) the detention was reasonably related in scope to the circumstances that justified the interference in the first place. Terry, 392 U.S. at 19-20, 88 S.Ct. at 1879. For the officer’s initial action to be justified under the first Terry prong, we ask whether there existed specific, articulable facts that, taken together with rational inferences from those facts, reasonably warranted that intrusion. Id., 392 U.S. at 21, 88 S.Ct. at 1880; see also Davis, 947 S.W.2d at 242. Specifically, the officer must have a reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication that the unusual activity is related to crime. See Davis, 947 S.W.2d at 244 (citing Garza v. State, 771 S.W.2d 549, 558 (Tex.Crim.App.1989)). We give due weight, not to the officer’s inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences that he is entitled to draw from the facts in light of his experience. See id. at 243 n. 3. An investigative detention that is not based on reasonable suspicion is unreasonable and thus violates the Fourth Amendment. Id.

Even in the absence of reasonable suspicion, a sniff of the outside of a vehicle by a trained canine during a routine, valid traffic stop is not a search within the meaning of the Fourth Amendment. Illinois v. Caballes, 543 U.S. 405, -, 125 S.Ct. 834, 837-38, 160 L.Ed.2d 842 (2005); 1979 Pontiac Automobile v. State, 988 S.W.2d 241, 243-44 (Tex.App.-Eastland 1998, no pet.); see also United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644-45, 77 L.Ed.2d 110 (1983) (canine sniff of luggage not a search within Fourth Amendment).

A seizure that is reasonable at its inception may violate the Fourth Amendment by virtue of its excessive intensity and scope. Davis, 947 S.W.2d at 243. Thus, under the second Terry prong, an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. See Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983). Once the reason for the stop has been satisfied, the stop may not be used as a “fishing expedition for unrelated criminal activity.” Davis, 947 S.W.2d at 243 (quoting Ohio v. Robinette, 519 U.S. 33, 41, 117 S.Ct. 417, 422, 136 L.Ed.2d 347 (1996) (Ginsberg, J., concurring)).

Also, the scope of the seizure must be restricted to that necessary to fulfill the seizure’s purpose. Royer, 460 U.S. at 500, 103 S.Ct. at 1325. “There is, however, no constitutional stopwatch on traffic stops. Instead, the relevant question in assessing whether a detention extends beyond a reasonable duration is “whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.’ ” Brigham, 382 F.3d at 511 (quoting Sharpe, 470 U.S. at 686, 105 S.Ct. at 1575). An investigative detention following a traffic stop “may last as long as is reasonably necessary to effectuate the purpose of the stop, including the resolution of reasonable suspicion, supported by articulable facts within the officer’s professional judgment, that emerges during the stop.” Id. at 512. The Supreme Court has expressly rejected placing a rigid time limitation on Terry investigative detentions. Kothe v. State, 152 S.W.3d 54, 64-65 (Tex.Crim.App.2004) (citing Sharpe, 470 U.S. at 685-86, 105 S.Ct. at 1575 (declining to “establish a per se rule that a 20-minute detention is too long” under Terry )).

On appeal, we review the reasonableness of the detention from the same perspective as the officer: using an objective standard, we ask whether the facts available at the moment of detention would warrant a person of reasonable caution in the belief that the action taken was appropriate. See Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880; Davis, 947 S.W.2d at 243. The determination of reasonable suspicion is made by considering the totality of the circumstances. Ford, 158 S.W.3d at 492-93.

C. Prolonged Investigative Detention

Once the traffic stop investigation is concluded, the officer must no longer detain the driver, who must be permitted to leave. Kothe, 152 S.W.3d at 63-64; see Perales v. State, 117 S.W.3d 434, 439 (Tex.App.-Corpus Christi 2003, pet. ref'd). An officer may request consent to search a vehicle after the purpose of the traffic stop has been accomplished, as long as the request is reasonable under the circumstances and the officer has not conveyed a message that compliance with the officer’s request is required. Leach v. State, 35 S.W.3d 232, 235-36 (Tex.App.-Austin 2000, no pet.); Simpson v. State, 29 S.W.3d 324, 328 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). But if consent is refused, the officer must have reasonable suspicion to continue to detain the person stopped. Id.

If, during a valid traffic stop and detention, the officer develops reasonable suspicion that the detainee is engaged in criminal activity, prolonged or continued detention is justified. See Davis, 947 S.W.2d at 244; Perales, 117 S.W.3d at 439. Additional facts and information discovered by an officer during a lawful detention may form the basis for a reasonable suspicion that another offense has been or is being committed. See Razo v. State, 577 S.W.2d 709, 711 (Tex.Crim.App. [Panel Op.] 1979); Powell, 5 S.W.3d at 378-79; Mohmed, 977 S.W.2d at 628. Articulable facts coming to the officer’s knowledge during the proper stop or detention may justify further investigation. Razo, 577 S.W.2d at 711; Mohmed 977 S.W.2d at 628. More specifically, if the valid traffic stop evolves into an investigative detention of other criminal activity (such as transporting illegal drugs) so that a canine sniff can take place, reasonable suspicion is required to prolong the detention. Wolf, 137 S.W.3d at 802; Hill v. State, 135 S.W.3d 267, 269 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd); Sims v. State, 98 S.W.3d 292, 295 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd); McQuarters v. State, 58 S.W.3d 250, 256-57 (Tex.App.-Fort Worth 2001, pet. ref'd).

VI. Analysis

Haas does not dispute the validity of the initial traffic stop. Instead, and citing several federal cases, Haas contends that once Frye issued the warning and the purpose for the stop had concluded, Frye should not have detained him any longer. See United States v. Jones, 234 F.3d 234 (5th Cir.2000); United States v. Dortch, 199 F.3d 193 (5th Cir.1999); United States v. Diaz, 2004 WL 1260103 (W.D.Tex. June 2, 2004). Haas claims that instead of letting him go at the conclusion of the traffic stop, Frye then impermissibly commenced an investigative detention relating to drugs without reasonable suspicion. While the cases Haas cites support his contention, the record does not.

A. The Detention

Frye’s questioning of Haas that took place from the time of the initial stop until the completion of the warning was legitimate, even when unrelated to the speeding violation. See Dortch, 199 F.3d at 198; Shabazz, 993 F.2d at 437. Moreover, the additional information — articula-ble facts and rational inferences from those facts — that Frye discovered or learned during the lawful detention could form the basis for reasonable detention and justify further investigation. See Razo, 577 S.W.2d at 711; Powell, 5 S.W.3d at 378-79; Mohmed, 977 S.W.2d at 628; Bustamante v. State, 917 S.W.2d 144, 146 (Tex.App.-Waco 1996, no pet.); see also Wolf, 137 S.W.3d at 804 (the stop may be lengthened to accommodate its new justification).

Contrary to Haas’s contention, after giving the warning, Frye did not “switch gears” and begin a fishing expedition relating to drugs. Instead, both Frye’s testimony and the videotape reveal that the information that formed the basis for Frye’s suspicion was obtained by Frye at the very beginning of the stop — when Haas volunteered his alleged trip purpose — and that during the lawful stop Frye followed up on the volunteered information with legitimate questioning. Throughout the duration of the traffic stop — the driver’s license and license tag checks and the review of the car’s paperwork — the questioning and conversation between Haas and Frye about the car and Haas’s trip continued to provide Frye with additional information, including Haas’s increasing nervousness, that contributed to Frye’s suspicion. See Powell, 5 S.W.3d at 378-79 (officer’s continued detention after warning issued was not a fishing expedition because it was based on officer’s reasonable suspicion developed before warning was issued). The evidence shows that immediately after he had issued the warning, Frye then simply asked Haas if he had any guns or drugs and then asked for consent to search the car. Under these circumstances, these questions were not inappropriate. See id. at 379 (officer was justified in post-citation questioning because he had developed reasonable suspicion and was confirming inconsistency); see also Leach, 35 S.W.3d at 235-36 (officer may request consent to search vehicle after purpose of stop has been accomplished, as long as request is reasonable under the circumstances and officer has not conveyed message that compliance with his request is required); Simpson, 29 S.W.3d at 328 (same).

After issuing the warning, Frye could detain Haas only if he had reasonable suspicion. Haas contends that Frye did not have reasonable suspicion to continue or prolong Haas’s detention and to wait for help from other officers. Haas asserts that his nervousness and his talk about his business and his trip to Houston could not give rise to reasonable suspicion. We disagree.

Frye articulated three basic grounds for his decision to detain Haas so that his dog could sniff the car: (1) Haas volunteered a lot of information; (2) Frye thought the story was implausible and inconsistent and became more implausible and inconsistent as Frye questioned Haas; and (3) Haas was increasingly nervous and avoided eye contact. Increasing or extreme nervousness and conflicting or implausible information can, along with other factors, raise a reasonable suspicion. See Bzistamante, 917 S.W.2d at 146; see also Brigham, 382 F.3d at 504-05, 508-12; LeBlanc v. State, 138 S.W.3d 603, 605-08 (Tex.App.-Houston [14th Dist.] 2004, no pet.); Sims, 98 S.W.3d at 296; Powell, 5 5.W.3d at 378-79.

Based on our review of the totality of the circumstances, in light of Frye’s experience and knowledge, we find that the trial court was justified in determining that Frye had reasonable suspicion to prolong Haas’s detention so that Frye could conduct a canine sniff on Haas’s car. The trial court did not err or abuse its discretion in denying Haas’s motion to suppress. We overrule Haas’s first issue.

B. The Search

Haas’s second issue is premised in part on his first issue. He asserts that the search of the car was done without probable cause and was tainted by an illegal detention. We have found that the detention was legal. As for probable cause, once the dog alerted on the car, Frye had probable cause to search the car without a warrant. United States v. Cabello, 92 Fed. Appx. 983, 984-85 (5th Cir.2004) (citing United States v. Williams, 69 F.3d 27, 28 (5th Cir.1995)); Harrison v. State, 7 S.W.3d 309, 311 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd); Ortiz v. State, 930 S.W.2d 849, 856 (Tex.App.-Tyler 1996, no pet.). We overrule Haas’s second issue.

VII. Conclusion

Having overruled Haas’s two issues, we affirm the judgment.

      . All times mentioned are those shown by the videotape.

      . But when an officer while conducting a valid traffic stop asks routine questions about matters such as the driver’s destination and the purpose of the trip, the individual is not legally obligated to answer, may not be compelled to answer, and may not be arrested for refusing to answer. United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 647 n. 2 (8th Cir.1999) (citing Terry, 392 U.S. at 34, 88 S.Ct. at 1886 (White, J., concurring)).

      . Put another way, "an officer conducts a lawful temporary investigative detention when the officer has reasonable suspicion to believe that an individual is violating the law." Ford, 158 S.W.3d at 492 (citing Balen-tine v. State, 71 S.W.3d 763, 768 (Tex.Crim. App.2002)). "Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity." Id.

      . But see Mohmed, 977 S.W.2d at 628 (pre-Caballes case holding that exterior canine sweep of vehicle requires reasonable suspicion that automobile contains narcotics) (citing Crockett v. State, 803 S.W.2d 308, 310-11 (Tex.Crim.App.1991) (reasonable suspicion required for canine sniff of railway passenger's luggage)); cf. Walter, 28 S.W.3d at 542 (pre-Caballes case noting that U.S. Supreme Court has not addressed whether canine sniff alone is a detention or whether calling in a canine unit requires reasonable suspicion, but assuming pr e-Caballes that reasonable suspicion was required).

      . The Supreme Court explained: “While it is clear that 'the brevity of the invasion of the individual’s Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion,’ we have emphasized the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes.” Sharpe, 470 U.S. at 685, 105 S.Ct. at 1575 (citation omitted).

      . Cf. United States v. Sokolow, 490 U.S. 1, 9, 109 S.Ct. 1581, 1586, 104 L.Ed.2d 1 (1989) (“While a trip from Honolulu to Miami, standing alone, is not a cause for any sort of suspicion, here there was more: surely few residents of Honolulu travel from that city for 20 hours to spend 48 hours in Miami during the month of July.”); Hill, 135 S.W.3d at 271 (officer thought it implausible that someone would make one-day trip from Florida to Houston to buy one or more trucks).

      . "Extreme nervousness has traditionally been a fact that law enforcement has used in its list of elements leading up to either reasonable suspicion or probable cause.” Veal, 28 S.W.3d at 837 (citing Sokolow, 490 U.S. at 3, 109 S.Ct. at 1583). "[N]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000). But nervousness alone is not sufficient to be a factor giving rise to reasonable suspicion. LeBlanc v. State, 138 S.W.3d 603, 608 n. 6 (Tex.App.-Houston [14th Dist.] 2004, no pet.).

      .Courts must "consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes.” Sharpe, 470 U.S. at 685, 105 S.Ct. at 1575 (citations omitted). Based on the record in this case — Frye’s diligence and especially the proximity of Haas's car to the busy interstate highway (obvious on the videotape), which Frye claimed as a reason for needing back-up help — the twenty-minute wait for back up to arrive and the canine-sniff to begin was not unreasonable. See, e.g., Sims, 98 S.W.3d at 294 (officer and driver waited twenty minutes for canine unit to arrive to conduct canine sniff); see also Sharpe, 470 U.S. at 686-88, 105 S.Ct. at 1575-77 (twenty-minute detention was reasonable); Place, 462 U.S. at 709-10, 103 S.Ct. at 2645-46 (ninety-minute detention of defendant’s luggage was unreasonable when agents did not act diligently to minimize the delay); United States v. Bloomfield, 40 F.3d 910, 917 (8th Cir.1994) (en banc) (one-hour delay for drug dog to arrive not unreasonable); United States v. Frost, 999 F.2d 737, 741-42 (3d Cir.1993) (wait of almost one hour for drug dog was reasonable).


author: BILL VANCE, Justice. TOM GRAY, Chief Justice,

text:
    HILLCREST BAPTIST MEDICAL CENTER, Appellant, v. Penny WADE, Appellee.
    No. 10-04-00297-CV.
    Court of Appeals of Texas, Waco.
    Aug. 3, 2005.

      Roy L. Barrett and John A. Powell, Ñaman, Howell, Smith & Lee PC, Waco, for appellant.
    Barry N. Johnson, Needham Johnson PC, Plano, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

This is a medical malpractice case involving heart damage resulting from a delayed angioplasty. Penny Wade sued Hillcrest Baptist Medical Center, two emergency room doctors, and their employers, under Chapter 74 of the Texas Civil Practice and Remedies Code. Hill-crest challenged the sufficiency of Wade’s expert reports for failure to include the causation element as to Hillcrest and its nursing staff. The trial court denied Hill-crest’s motion to dismiss. Hillcrest appeals in two issues: (1) trial court abused its discretion in denying Hillcrest’s motion to dismiss; and (2) Wade would not be entitled to a thirty-day extension to cure any deficiency in her expert reports.

We will overrule the first issue and affirm the judgment, so we do not reach the second issue.

BACKGROUND

Facts

On February 4, 2002 at 3:45 a.m., Wade, a thirty-eight year old woman, went to Hillcrest Emergency Department complaining of a cough and chest pains. At 3:52, she was triaged by a triage nurse, who noted that she smoked a pack of cigarettes a day but did not note Wade’s positive family history of coronary artery disease. Approximately 30 minutes later, a treating night-shift nurse assessed Wade but did not place Wade on a cardiac monitor. At 5:07, Dr. Norwid, an emergency room physician, saw Wade, and he ordered an electrocardiogram (“EKG”) and lab tests. Wade was then transferred to a bed with a cardiac monitor and an acute myocardial infarction (AMI) protocol was initiated. The EKG, performed at 5:26, was described by Dr. Norwid as “worrisome.” The EKG had deep Q waves and a bit of ST elevation from VI though V4. Dr. Nor-wid left at the end of his shift and turned Wade’s care over to Dr. Welter, another emergency room physician. At 5:40, a Nitroglycerin drip was reducing Wade’s pain from an “eight out of ten” to a “three out of ten.” By 6:15, her pain was down to a “one out of ten.”

At 7:00, a treating day-shift nurse assumed care of Wade from the treating night-shift nurse. At 7:31, a second EKG was performed, and additional blood for lab tests was drawn at 8:40. The second EKG demonstrated changes from the earlier EKG; there was now ST segment elevation in the lateral leads. The cardiac enzymes were also remarkably elevated. Wade was then sent for a CT scan without a cardiac monitor and without a registered nurse trained in Advanced Cardiac Life Support (ACLS). Between 9:15 and 10:30, Wade vomited twice and her blood pressure dropped slightly. She was treated with Phenergan and a saline bolus.

A cardiologist was reviewing EKGs in the heart station, and after reviewing Wade’s EKGs, was concerned and proceeded to the emergency room. The cardiologist saw Wade at 11:10, and she was taken to the cardiac catheterization lab at 12:05 p.m. where angiograms demonstrated a 100% occlusion of the left anterior descending coronary artery. The occluded artery was treated with balloon angioplasty and stenting. According to Wade’s physician-experts, Wade now has significantly impaired cardiac ejection fraction, requires an implantable cardioverter/defi-brillator, and may possibly require a heart transplant in the future.

The relationship of the defendants in the underlying medical malpractice case is not entirely clear from the record. It appears that Hillcrest’s liability would be based on, at a minimum, any negligence by its nursing staff, which will be the subject of our inquiry.

Expert Reports

Wade filed three expert reports from two physicians and one nurse.

Nurse Nelson-Richardson Expert Report

Nurse Nelson-Richardson is an emergency nurse. She explains in her report that the national standard of care for emergency rooms is to have an AMI protocol to ensure that patients experiencing an AMI are rapidly recognized, to limit damage done by cardiac ischemia. She stated: “The very purpose of the AMI protocol used by Hillcrest Baptist Medical Center was to provide a clinical pathway to expedite patients with AMI to receive definite medical treatment.” She also stated: “The standard of care for all phases of the management of the patient with potential AMI is to limit the time the heart muscle is being denied adequate oxygen. The well known phrase of ‘time means muscle’ well explains the goal of care for these patients.” The AMI protocol allows a maximum time of 60 minutes to make a decision to administer thrombolytics or send for coronary angioplasty. An EKG must be done within ten minutes and no longer than 20 minutes after the patient arrives in the emergency room.

The standard of care for a triage nurse is to be able to quickly recognize possible AMI patients and ensure there is no delay in physician management or the taking of an EKG. Nurse Nelson-Richardson stated that the triage nurse at Hillcrest breached her standard of care and should have recognized Wade’s AMI symptoms and risk factors and taken her to a cardiac monitor bed and obtained an EKG within ten minutes of Wade’s arrival (at the most within twenty minutes of her arrival).

If the triage nurse fails to recognize AMI symptoms, the treating nurse must seek immediate physician evaluation and an EKG. Because the triage nurse failed to recognize Wade’s AMI symptoms, the treating nurse had the responsibility to summon the physician and obtain an EKG as quickly as possible. Instead, a physician did not see Wade until approximately one hour after her arrival, and an EKG was not performed for one-and-one-half hours after Wade presented to the triage nurse. Thus, Nurse Nelson-Richardson also concluded that this treating nurse at Hillcrest breached her standard of care.

Nurse Nelson-Richardson also stated that “all nursing care is based on assessment.” She stated that it is the treating nurse’s duty to continually reassess a patient’s condition. For a patient with chest pain, like Wade, the pattern of pain levels and response to the Nitroglycerin should be presented to the physician and repeat EKGs should be obtained with any episodes of pain or changes in condition such as vomiting. Nurses do have a duty to recognize acute changes on serial EKGs. She stated that it is also a nurse’s duty to recognize that a patient with chest pain, ST segment elevation, and elevated cardiac enzymes must be evaluated for emergency thrombolytics or cardiac catheteri-zation. Nurse Nelson-Richardson found that the treating nurse at Hillcrest knew Wade had vomited twice and had unresolved pain, and that the treating nurse should have recognized the changes between the two EKGs and that the Nitroglycerin did relieve Wade’s pain. She stated that this treating nurse did not pursue the physician for emergency consultation with cardiology, and that had repeat EKGs been performed, they would have more likely than not demonstrated worsening ischemia. Thus, Nurse Nelson-Richardson concluded that the treating nurse, who observed Wade’s symptoms and test results for at least three hours, breached her standard of care because she should have presented this data to the physician and requested that cardiology be called immediately. If the physician failed to take this action, it was the treating nurse’s duty to access her chain of command to facilitate Wade’s being evaluated by cardiology.

Dr. Mathews Expert Report

Dr. Mathews is an emergency medicine doctor. His report states:

Penny Wade, a 38 year old previously healthy woman, sought care at the Hill-crest Baptist Medical Center — Emergency Department on 2/4/02 for the evaluation and treatment of chest pain and cough. The symptom of chest pain was severe and seemed to radiate though her chest to her back. Pertinent care, while in the Emergency Department, was provided by Dr. Mark Norwid, Dr. Welter and several emergency department nurses.
The above breaches of Drs. Norwid and Welter resulted in delay of proper treatment of Ms. Wade’s coronary syndrome resulting in Acute Myocardial Infarction with permanent and severe compromise of cardiac output function.
For the reasons stated above, it is my opinion that Dr. Norwid and Dr. Welter were negligent, and that their negligence was a direct and proximately cause of Ms. Wade’s permanently compromised cardiac function.

Dr. Kerber’s Expert Report

Dr. Kerber is an internal medicine doctor with a subspecialty in cardiovascular diseases. His report states:

Because Dr. Norwid failed to recognize the infarction promptly and instead ordered time wasting chest x-ray and CT studies, the angioplasty was not begun until 12:38 p.m., approximately nine hours after her arrival at the emergency room. This was characterized by Dr. Attas [the cardiologist] as “delayed” rescue percutaneous transluminal coronary angioplasty and stent procedure.
As a result of these breaches of the standard of care, Ms. Wade’s “delayed” primary angioplasty could no longer salvage myocardium which was at risk of necrosis (cell death) from the interruption of blood supply. Primary angioplasty, performed within the first hour or two following a myocardial infarction has the potential to minimize the permanent heart damage which occurs from coronary artery occlusion. When the angioplasty is delayed, as was the case here, large portions of the jeopardized myocardium die, and the result is significant impairment of the pumping action of the heart. This generally results in further complications and disability, including strokes related to embolization of blood clots from the heart (which Ms. Wade has sustained), further episodes of chest pain (which she has also sustained) and congestive heart failure. The progressive worsening of Ms. Wade’s ejection fraction is very ominous in that ejection fraction is the best predictor of disability and death from myocardial infarction. Her most recent ejection fraction of 20-25% is alarming low. She has already required an implantable cardio-verter/defibrillator and sustained a transient ischemic attack (“mini stroke”). It is highly likely that she will require a heart transplant in the future if her cardiac function continues to decline. All of these complications could have been avoided or at least substantially reduced had Dr. Norwid followed the accepted standards of care for correct diagnosis and immediate treatment of acute myocardial infarction.

ISSUE ONE: MOTION TO DISMISS

Arguments

Hillcrest argues that Wade did not make a good-faith effort to comply with the expert report requirements as to Hillcrest. Hillcrest specifically argues that Wade’s expert opinions fail to establish a causal relationship between the alleged breaches of the standard of care by Hillcrest’s nurses and the injuries claimed by Wade.

Wade argues that the report of Nurse Nelson-Richardson addresses both nursing standards of care applicable to Hill-crest and breaches of those nursing standards. Wade asserts that the nurse’s expert report describe the breaches of the nursing standards of care as delays in care and errors resulting in delays in care. Wade acknowledges that the expert reports by Dr. Mathews and Dr. Kerber address medical standards of care applicable to the physicians in the emergency room and the breaches of those medical standards. Wade asserts that the physician expert reports describe the breaches of the medical standards of care as delays in care and errors resulting in delays in care. Wade also asserts that the physician expert reports provide expert opinions as to how the delays in care resulted in the injuries Wade sustained. Thus, she argues that considering the three expert reports together demonstrates a good-faith effort to meet the expert report requirements as to Hillcrest.

Standard of Review

Medical-malpractice plaintiffs must, within 120 days after the date their claim is filed, serve on each party one or more expert reports, with a curriculum vitae for each expert, for each physician or health care provider against whom a liability claim is asserted. Tex. Civ. PRAC. & Rem. Code Ann. § 74.351(a) (Vernon 2005). If a physician or health care provider files a motion challenging the adequacy of an expert report, the trial court must grant the motion “only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6).” Id. § 74.351(i)- An expert report is defined as “a written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.” Id. § 74.351(r)(6). A plaintiff may satisfy the requirements of a good-faith effort “by serving reports of separate experts regarding different physicians or health care providers or regarding different issues arising from the conduct of a physician or health care provider, such as issues of liability and causation.” Id. § 74.351(c). However, a nurse is not qualified to render an expert opinion regarding causation. Id. § 74.403(a) (Vernon 2005).

We review a trial court’s decision regarding the adequacy of an expert report by an abuse-of-discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). In determining whether the report represented a good-faith effort, the trial court’s inquiry is limited to the four corners of the report or reports. Id. at 878.

The expert report(s) must represent only a good-faith effort to provide a fair summary of the expert’s opinions. Id. The report does not have to marshal all of the plaintiffs proof, and the plaintiff does not have to present evidence in the report as if it were actually litigating the merits. Id. at 878-79. However, the report(s) must include each of the statutory elements as to each defendant: (1) standard of care; (2) breach of the standard of care; and (3) causation. Tex. Crv. Peac. & Rem. Code Ann. § 74.351(r)(6); see also Chandler v. Singh, 129 S.W.3d 184, 188 (Tex.App.-Texarkana 2004, no pet. h.). A report does not constitute a good-faith effort to comply with the statutory requirements if it omits any of the statutory elements. Palacios, 46 S.W.3d at 879. To constitute a good-faith effort, the report(s) must: (1) inform the defendant of the specific conduct the plaintiff has called into question, and (2) provide a basis for the trial court to conclude that the claims have merit. Id.

Analysis

The care a patient receives in a hospital does not occur in a vacuum, but rather is a collaborative effort involving doctors, nurses, and other health care providers. There was at least a seven hour delay in Wade’s receiving cardiology care. We believe that a delay is a delay. Nurse Nelson-Richardson’s expert report establishes that the specific conduct of Hill-crest’s nursing staff that breached the accepted standards of nursing care delayed Wade from receiving necessary cardiology care. Dr. Mathew’s and Dr. Kerber’s reports establish that the delay in Wade’s receiving necessary cardiology care resulted in permanent and severe compromise of her cardiac output function with a future heart transplant highly likely. These physician expert reports clearly established the pathophysiologic basis explaining the causal relationship between the delay in Wade’s receiving cardiology care and her injuries.

The trial court could have concluded that the three expert reports, considered together, contained the three statutory requirements as to Hillcrest and its nursing staff. See Tex. Civ. Peac. & Rem.Code Ann. § 74.351(r)(6). The three expert reports, considered together, informed Hillcrest of the specific conduct called into question by Wade and provided a basis for the trial court to conclude that Wade’s claim had merit. See Palacios, 46 S.W.3d at 879. Thus, after a review of the four-corners of the three expert reports, we find that the trial court did not abuse its discretion by denying Hillcrest’s motion to dismiss. See id. at 877.

We overrule issue one.

CONCLUSION

Having overruled issue one, we need not address issue two. We affirm the judgment.

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice,

dissenting.

Hillcrest appeals the trial court’s denial of its motion to dismiss. We should reverse.

In Hillcrest’s first issue, it argues that Wade’s purported expert reports fail to provide a fair summary of the experts’ opinions of the manner in which Hillcrest’s care failed to meet the applicable standards of care. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6) (Vernon Supp. 2004-2005). Though addressing the alleged breaches by Hillcrest’s codefendants, the two reports by physicians do not address Hillcrest’s conduct, and in particular any causal relationship between Hillcrest’s conduct and the injury to Wade. See Taylor v. Christus Spohn Health System Corp., 169 S.W.3d 241, 242-44 (Tex.App.Corpus Christi 2004, no pet.). Moreover, the nurse who gave Wade’s other report is not qualified to render an expert opinion on causation. See Tex. Civ. PRAC. & Rem. Code Ann. § 74.403(a) (Vernon Supp.2004-2005). The trial court abused its discretion in overruling Hillcrest’s motion. See id. § 75.351(l) (Vernon Supp.2004-2005); Taylor at 242-44. We should sustain Hill-crest’s first issue.

In Hillcrest’s second issue, it contends that the trial court should not grant Wade an extension of time to file a report. See Tex. Civ. PRAC. & Rem.Code Ann. § 74.351(c) (Vernon Supp.2004-2005). Since the trial court has neither granted nor denied Wade an extension, this issue is not ripe. See Tex. Const, art. V, § 6; McAllen Med. Ctr., Inc. v. Cortez, 66 S.W.3d 227, 231-34 (Tex.2001); Waco Ind. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851-53 (Tex.2000). We should overrule Hillcrest’s second issue.

We should, after sustaining Hillcrest’s first issue, reverse and remand for further proceedings.