text:
    Charles Daniel THACKER, Appellant, v. The STATE of Texas.
    No. AP-75286.
    Court of Criminal Appeals of Texas.
    Nov. 7, 2005.
    Richard Bourke, Houston, for Appellant.
    Jack Roady, Asst. District Atty., Houston, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

PER CURIAM.

Appellant was convicted of capital murder and sentenced to death on May 8, 1994. We affirmed his conviction and sentence on direct appeal, and the mandate for that affirmance issued on February 7, 1997. We denied habeas relief December 19, 2001. On October 13, 2005, appellant filed an application for post-conviction DNA testing. The trial court denied relief, finding, among other things, that appellant failed to establish that the request for DNA testing was not made to unreasonably delay the execution of sentence or the administration of justice. Appellant filed an appeal, which was received by this Court on November 3, 2005. Appellant is scheduled to be executed on November 9, 2005. He seeks a stay of that execution to allow his counsel adequate time to prepare briefing on appeal, or in the alternative, “an accelerated briefing schedule, requiring the State to submit any reply brief and to have the matter considered by the Court immediately.” Appellant has submitted an “interim brief’ and the State has submitted a reply.

To obtain relief under Chapter 64, the convicted person must “establish[ ] by a preponderance of the evidence” that “the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.” The trial court’s finding that appellant failed to do so is supported by the record. Chapter 64, authorizing motions for DNA testing, has been in effect since April 5, 2001. Appellant waited over four years to file his motion, and that motion was filed less than a month before his scheduled execution.

Appellant claims that his failure to file the motion was excused by the pen-dency of his federal application for writ of habeas corpus, which was finally disposed of on October 3, 2005. He asserts that “habeas counsel was clearly of the view that the two-forum rule would not permit a dual filing in state and federal court.” But nothing legally prevented appellant from filing a motion for DNA testing during the pendency of his federal habeas proceedings. Unlike a state application for writ of habeas corpus, a motion for DNA testing cannot, by itself, result in relief from a conviction or sentence. It is simply a vehicle for obtaining a certain type of evidence, which might then be used in a state or federal habeas proceeding. Moreover, appellant does not assert that he made any attempt to ascertain whether a dual filing would be permitted- — such as seeking leave from federal court to file a Chapter 64 motion, and appellant does not allege that he attempted to procure an abatement of federal proceedings to file a Chapter 64 motion, despite the fact that he now contends that DNA testing would provide him with crucial exculpating evidence.

Appellant also contends that the technology required for the testing he seeks did not become available until 2002 (Y-STR testing) and 2004 (laser microdissection). But appellant did not file a motion for DNA testing in 2002, 2003, or 2004. He waited until October of 2005, when his execution was imminent.

Appellant’s motion for stay of execution is denied. We grant his motion to have the appeal considered immediately. Having considered his appeal based upon his “interim” brief and the State’s reply, and having found that the trial court’s finding regarding unreasonable delay is supported by the record, we conclude that there was no reversible error in the proceedings below. We affirm the trial court’s judgment.

PRICE, J., did not participate.

      . Tex.Code Crim. Proc., Art. 64.03(a)(2)(B).

      . See Acts 2001, 77th Leg., ch. 2.


source: Caselaw Access Project

author: JANE BLAND, Justice.

license: Public Domain

text:
    Derrick Charles ARCENEAUX, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00714-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    July 21, 2005.

      Richard Edward “Dick” Wheelan, Houston, TX, for Appellant.
    Shirley Cornelius, Assistant District Attorney-Harris County, Charles A. Rosen-thal, Jr., District Attorney-Harris County, Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, KEYES, and BLAND.
   OPINION

JANE BLAND, Justice.

A jury convicted appellant, Derrick Charles Arceneaux, of aggravated robbery, and the trial court assessed punishment at thirty-five years’ confinement. On appeal, Arceneaux contends the evidence is legally and factually insufficient to support the aggravating element of the robbery — that he used or exhibited a firearm. We hold that sufficient evidence supports the conviction and therefore affirm.

Facts

On April 21, 2003, shortly after 5:00 a.m., Antonio Garcia stopped at a doughnut shop to purchase doughnuts and coffee. Garcia planned to use a pay telephone in the parking lot, so he parked his car near it. As Garcia looked through his wallet for a telephone number, Arceneaux approached his car, reached in through the window, and removed the keys from the ignition.

Arceneaux then opened the car door and told Garcia that he was a narcotics police officer. He told Garcia that he had a gun, and ordered him to get out of the car: “Get out from the car. I got gun. I got pistol. Don’t do nothing or I can use it with you.” Garcia quickly realized that Arceneaux was not a police officer. Ar-ceneaux grabbed Garcia’s wallet, looked through it, and stuffed it into his own pants. Arceneaux ordered Garcia to take off his socks and shoes to demonstrate that he did not have money or drugs hidden in them. Arceneaux then started looking through Garcia’s car and asked Garcia if he had additional money with him. After Arceneaux finished his search of the car, he pushed Garcia to the ground and ordered him to remain there. Arceneaux then fled the scene with another male in a white Cadillac.

Throughout the robbery, Arceneaux only used one hand — he kept the other hand concealed beneath his shirt. Garcia believed Arceneaux’s threat that he carried a pistol, though Garcia never saw a gun. Garcia testified that during the robbery he was scared for his life.

Garcia saw a portion of the Cadillac’s license plate as it drove away. A customer in the doughnut shop obtained the entire license plate number. Later that day, the police located a white Cadillac with a matching license plate number. As the police towed the ear, Arceneaux and another male appeared at the scene. Arceneaux claimed ownership of the car. He also provided the police officers with several false names. The police officer arrested Arceneaux, searched the car, and discovered Garcia’s bankcard inside it. The police never found a firearm.

Discussion

On appeal, Arceneaux contends the evidence is legally and factually insufficient to support his conviction of aggravated robbery.

Standard of Review

We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict and then determining whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App.2004), cert. denied, — U.S. -, 125 S.Ct. 1697, 161 L.Ed.2d 528 (2005). In our review of the factual sufficiency of the evidence, we view the evidence in a neutral fight, and we set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Id. (citing Zuniga v. State, 144 S.W.3d 477, 483 (Tex.Crim.App.2004)). In conducting a factual sufficiency review, we must “mention what the parties assert is the most important or most relevant evidence supporting a claim that the evidence is factually insufficient.” Sims v. State, 99 S.W.3d 600, 601 (Tex.Crim.App.2003).

Aggravated Robbery

Here, a jury found Arceneaux guilty of aggravated robbery with a firearm. A person commits robbery if, in the course of theft, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death, with intent to obtain or maintain control of the property. Tex. Pen.Code Ann. § 29.02(a)(2) (Vernon 2003). A robbery becomes an aggravated robbery if the actor “uses or exhibits a deadly weapon” during it. Tex. Pen.Code Ann. § 29.03(a)(2) (Vernon 2003). Arceneaux contends the evidence is neither factually nor legally sufficient to support a finding that he used or exhibited a firearm during the robbery because Garcia did not see a gun and the police did not recover one.

In relation to a deadly weapon, the term “use” means to employ, or to apply the deadly weapon to achieve an intended result. Patterson v. State, 769 S.W.2d 938, 940 (Tex.Crim.App.1989). A deadly weapon is exhibited when it is consciously shown, displayed or presented for view. Id. “[0]ne can ‘use’ a deadly weapon without exhibiting it, but it is doubtful one can exhibit a deadly weapon during the commission of a felony without using it.” Id.; see also McCain v. State, 22 S.W.3d 497, 502 (Tex.Crim.App.2000) (concluding that same analysis is “indeed relevant to interpreting the aggravated robbery section.”).

The Texas Court of Criminal Appeals has found that circumstantial evidence may be sufficient to support a finding that a defendant used a pistol during a robbery, even if the complainant never saw the pistol. See Moore v. State, 531 S.W.2d 140, 142 (Tex.Crim.App.1976). In Moore, the issue was whether the State proffered sufficient evidence for the jury to find that the defendant used a pistol in robbing the complainant. The complainant did not see a pistol during the robbery, but he heard one of the defendants tell the other defendant to keep “his shit on him,” and this slang was interpreted to refer to a pistol. Id. at 141. The complainant also heard what he thought was a revolver being cocked and a cylinder of a pistol rolling. Id. The police arrested the defendants, in the complainant’s car, about thirty minutes later, but never found a gun. Id. The court held that the conversation between the two defendants and the sound of a pistol “gave rise to a reasonable inference that the robbery was committed with a pistol” and, although the evidence of a pistol being used was circumstantial, it was “more than sufficient to support the conviction.” Id. at 142; see also Woods v. State, 653 S.W.2d 1,4 (Tex.Crim.App.1982) (holding circumstantial evidence sufficient to show robbery committed using and exhibiting pistol when complainant did not see gun but felt it poked into his side and defendant stated he had gun).

As in Moore, in this case, Garcia never viewed a gun, but Arceneaux continually kept one hand beneath his shirt and told Garcia that he “got pistol.” Moreover, our Court upheld a deadly .weapon finding under similar facts in Barehill v. State, 740 S.W.2d 572 (Tex.App.-Houston [1st Dist.] 1987, no pet.). In Barehill, the defendant and another male entered the restaurant with their right hands covered by brown bags. Id. at 573. The two men made several statements indicating that they had guns. Id. The complainant testified that she did not see a gun, but feared that the defendant would shoot her. Id. The defendant denied the robbery and testified that he did not own a gun. Id. A rebuttal witness testified that she saw the defendant three days later use a gun to commit an extraneous robbery. Id. We held that the evidence was sufficient to convict the defendant of aggravated robbery. Id. at 574; see also Webber v. State, 757 S.W.2d 51, 52 (Tex.App.-Houston [14th Dist.] 1988, pet. ref'd) (holding evidence sufficient to support deadly weapon finding when co-defendant put hand on something inside shirt and threatened to kill victim if he did not relinquish money from cash register).

Arceneaux contends that these cases are distinguishable because in each of them “there is some evidence besides the robber’s claim to have a gun to establish the actual existence of the firearm ... [and] in the case at hand, no corroborating elements are present.” He further contends that a defendant’s statement that he has a gun is insufficient circumstantial evidence to support a finding that indeed he had one. Here, however, additional evidence corroborates Arceneaux’s statement that he carried a gun. Specifically, Arceneaux kept his hand under his shirt throughout the robbery, as if to conceal a gun. This evidence, similar to a hand concealed in a paper bag, is corroborating evidence that Arceneaux used a gun. Arceneaux’s statement and actions caused Garcia to believe that he carried a firearm. Arceneaux used that threat to force Garcia to get out of his car, surrender his wallet, take off his shoes and socks, and lie on the ground. We hold that this evidence, although circumstantial, is legally sufficient to support a finding that Arceneaux used a firearm during the robbery.

Arceneaux claims that the evidence is factually insufficient because circumstantial evidence indicates that he did not have a gun — Garcia did not see a gun during the robbery and the police did not find one thereafter. Arceneaux’s own statements and actions, however, clearly indicate that he had a gun during the robbery. Moreover, Arceneaux had ample time to dispose of the gun after the robbery and before being arrested. Viewing the evidence in a neutral light, we hold that the evidence is not so weak that the verdict is clearly wrong and manifestly unjust and that this circumstantial contrary evidence is not so strong that the standard of proof beyond a reasonable doubt could not have been met.

Conclusion

We hold the evidence is legally and factually sufficient to support the conviction for aggravated robbery. We therefore affirm the judgment of the trial court.

      . Arceneaux assumes that the State had to prove that he both used "and” exhibited a deadly weapon because the State alleged such in its indictment. Alleging in the conjunctive that a defendant used and exhibited a weapon does not require the State to prove that the defendant did both. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991) (holding that "although the indictment may allege the differing methods of committing the offense in the conjunctive, it is proper for the jury to be charged in the disjunctive.”).

      . See also Taylor v. State, 637 S.W.2d 929, n. 3 (Tex.Crim.App.1982) (stating that "Moore stands for the proposition that the victim need not actually see the deadly weapon, but only needs to be aware that one is being used.”) (overruled on other grounds by Garrett v. State, 749 S.W.2d 784, 791 (Tex.Crim.App.1986)).


author: WANDA McKEE FOWLER, Justice. CHARLES W. SEYMORE, Justice,

text:
    BOARD OF REGENTS OF THE UNIVERSITY OF HOUSTON SYSTEM and The State of Texas, Appellants, v. FKM PARTNERSHIP, LTD., A Texas Limited Partnership, Nationsbank of Texas N.A., City of Houston, County of Harris, Houston Community College, And Houston Independent School District, Appellees.
    No. 14-03-00392-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 14, 2005.
    Rehearing Overruled Sept. 29, 2005.

      Katherine E. Clark Kasten, Cavitt Wendlandt, Danica Lynn Milios, Austin, for appellants.
    Alan Brandt Daughtry, Billy C. Dyer, H. Dixon Montague, Houston, for appellees.
    Panel consists of Justices FOWLER, EDELMAN, and SEYMORE.
   MAJORITY OPINION

WANDA McKEE FOWLER, Justice.

The University of Houston appeals from the county court’s dismissal of its suit for condemnation of a tract of land owned by FKM Partnership (FKM). The University alleges the county court erred in (1) dismissing its cause for want of jurisdiction, and (2) assessing temporary damages, attorney’s fees, and costs for the University’s temporary possession of the property. We reverse and remand.

Background

FKM owns a 1.0792 acre tract of land located along the east side of the University’s campus with frontage on Calhoun Road and the frontage road of State Highway 35. In 1996, FKM made plans to develop the property as a retail shopping center. FKM presented its plan to Ron Shoup at the University, who expressed such an interest in the shopping center he explored the possibility of a partnership with FKM to develop the property. FKM worked with the University on sign control, tenants desired by the University, and landscaping for the retail center. After investigating the possibility of a partnership, the University declined to enter into an arrangement with FKM. FKM continued to work toward development of the shopping center and in early 1998, sent a site plan to the president of the University showing the proposed retail center. At approximately the same time, the University informed FKM it was considering acquiring the property.

On January 7, 1998, the University offered to purchase the property from FKM for $205,250. FKM rejected the University’s offer. On February 19, 1998, the University Board of Regents met and approved acquisition of the property by condemnation. The minutes of the board meeting reflected, “The acquisition of these tracts is necessary to complete the University of Houston’s obligations for creating the Texas Highway 35 right-of-way. The property is approximately 85,733 sq. ft. The cost to acquire these properties will not exceed $582,890.” Two days before the Board of Regents’ meeting, the University filed an original petition in condemnation in the County Civil Court at Law No. 3 for Harris County. Special commissioners were appointed by the county court and the commissioners assessed damages to be paid to FKM at $275,000. FKM timely filed objections to the special commissioners’ award and trial was set for February 17, 2003. Before trial, the University filed a motion for partial summary judgment on the grounds that (1) public necessity existed for the condemnation, (2) the University complied with statutory prerequisites, and (3) good faith negotiations occurred.

Several years later, the University filed a Fourth Amended Petition requesting a significantly smaller tract of land within the original 1.0792 acre tract sought in the condemnation proceeding before the special commissioners. Some time after this, FKM filed its Second Amended Motion to Dismiss and Plea to the Jurisdiction in which it contended the University failed to (1) demonstrate public necessity for the taking of the smaller tract; (2) comply with the statutory prerequisites; and (3) negotiate in good faith for the smaller tract prior to filing the fourth amended petition.

The trial court held a hearing on FKM’s motion to dismiss shortly thereafter. After hearing arguments of counsel, the county court determined the University did not have the legal right to acquire the smaller tract of land in the condemnation proceeding. The county court dismissed the University’s condemnation petition for want of jurisdiction and set a trial date to hear evidence of FKM’s temporary damages incurred because of the wrongful condemnation proceeding. The issue of FKM’s temporary damages was tried to a jury, which found FKM’s reasonable and necessary appraisal fees and expenses were $67,031.71, FKM’s reasonable and necessary attorney’s fees were $495,642.05 for preparation and trial plus $150,000 in the event of appeals to the Court of Appeals and the Texas Supreme Court, and $25,000 for further proceedings if the petition for review is granted. The jury further found $323,026 as damages for the University’s temporary possession of FKM’s property from July 6, 1999 to the date of trial.

Jurisdiction

In its first issue, the University contends the county court erred in concluding it lacked jurisdiction.' The procedure for condemning public property is prescribed in sections 21.012 through 21.016 of the Texas Property Code. If the entity with eminent domain authority cannot agree with the property owner regarding the amount of damages, it must file a petition with the proper court with a description that contains the following: (1) the property to be condemned; (2) the purpose for which the entity intends to use the property; (3) the name of the property owner; and (4) a statement that the entity and the property owner are unable to agree on the damages. Tex. Phop.Code § 21.012. The judge of the court must then appoint three disinterested freeholders who reside in the county as special commissioners to assess the damages of the property owner. Tex. PROp.Code § 21.014. The special commissioners must conduct a hearing to determine the amount of damages. Tex. PROP. Code § 21.015. If a party timely objects to the findings of the special commissioners, the court shall try the case in the same manner as other civil cases. Tex. PROP. Code § 21.018.

At the hearing on the motion to dismiss, FKM argued the county court at law is not a court of general jurisdiction, and its power to act in condemnation cases is both special and limited. See Pearson v. State, 159 Tex. 66, 315 S.W.2d 935, 937 (1958). FKM further claimed the University did not strictly comply with the Property Code and the county court was, therefore, without jurisdiction to hear the case. More specifically, FKM argued the following points:

• the jurisdictional prerequisite that the special commissioners conduct a hearing to determine the amount of damages was -not satisfied because the smaller tract was not presented to the commissioners (see Tex. PROP.Code § 21.015);
• the jurisdictional prerequisite that the University’s acquisition of the property was for a public purpose was not satisfied (see Tex. PROP.Code § 21.012(b)(2)); and
• the jurisdictional prerequisite that the parties negotiate in good faith was not satisfied. (see Tex. PROP.Code § 21.012(b)(4)).

The county court retained jurisdiction when the University sought to condemn less land

In FKM’s first contention before the county court, it argued the court had no jurisdiction because acquisition of the smaller tract of land was not presented to the special commissioners; therefore, the county court had no “appellate jurisdiction.” Proceedings to condemn land are special in character, and the party attempting to establish its right to condemn must show strict compliance with the law authorizing private property to be taken for public use. State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 640 (Tex.2001). When, as here, the parties are unable to agree on the amount of damages, section 21.015 of the Property Code requires that special commissioners be appointed to make a disinterested finding as to the amount of damages. State v. Blackstock, 879 S.W.2d 125, 126 (Tex.App.-Houston [14th Dist.] 1994, writ denied). From the time the condemnor files the original statement seeking condemnation to the time of the special commissioners’ award, the initial proceedings are administrative in nature. Amason v. Natural Gas Pipeline Co., 682 S.W.2d 240, 242 (Tex.1984). If either party timely files an objection to the commissioners’ award, the county court is invested with jurisdiction of the subject matter of the case. Denton County v. Brammer, 361 S.W.2d 198, 200 (Tex.1962).

FKM contends that because the acquisition of the smaller tract of land was never presented to the commissioners, the commissioners could not have assessed damages with respect to that piece of property. The University contends, however, it was entitled to decrease the amount of property it sought to acquire at any time. A condemnor has the right to dismiss a portion of the land it seeks when it decides its purpose may be accomplished with less land than was initially sought. Southwestern Bell Telephone Co. v. West, 417 S.W.2d 297, 299 (Tex.Civ.App.-Tyler 1967, writ ref'd n.r.e.).

Dismissal is not mandated by statute

Our review of this case must be guided by the applicable statutes and controlling case law. Although not immediately apparent, the property code’s eminent domain provisions, read in conjunction with Texas case law, reveal that the county court did not lose jurisdiction when the University amended its pleadings to condemn a smaller portion of land than originally sought before the commissioners. The county court’s jurisdiction vests when a party files objections to the special commissioners’ findings. Tex. PROP.Code § 21.017. Once the objections are filed, the court must “try the case in the same manner as other civil cases.” Tex. PROP.Code § 21.018(b). Like other civil cases, an eminent domain proceeding is subject to the rules of civil procedure. Rose v. State, 497 S.W.2d 444, 445-46 (Tex.1973). The rules of civil procedure permit parties to amend their pleadings and also to dismiss some or all of their claims. TEX.R. CIV. P. 63 (permitting amendments); TEX.R. CIV. P. 162 (permitting voluntary dismissal). Nothing in the property code specifies that the county court loses jurisdiction of an eminent domain proceeding when the condemning authority seeks to dismiss part of its claim by amending its pleadings to take less. See Tex. PROp.Code §§ 21.001-.065.

Texas jurisprudence permits the condemning authority to amend

Texas jurisprudence permits the condemning authority ' to amend. “[T]he trial court has power to and should permit an amendment [if] ... the description as amended does not inject entirely new subject matter into' the proceedings.” Rose, 497 S.W.2d at 447 (citing State v. Nelson, 160 Tex. 515, 334 S.W.2d 788, 792 (1960)). The condemning authority cannot enlarge the county court’s jurisdiction by seeking to include new or additional land or rights by way of an amended petition. Rose, 497 S.W.2d at 446; Nelson, 334 S.W.2d at 792. Here, the University did not attempt to condemn new or different land; the University sought only to condemn a smaller portion of the land originally described in its petition. And under Texas law, the condemning authority can amend to take less land or fewer rights. Texas Power & Light Co. v. Cole, 158 Tex. 495, 313 S.W.2d 524, 530 (Tex.1958) (“Undoubtedly a condemnor has the right to dismiss as to a portion of the land sought to be condemned.... ”); State v. Frost, 456 S.W.2d 245, 255 (Tex.App.-Houston [14th Dist.] 1970, no writ) (“The law is clear that the condemnor has the right to amend its pleadings and take less.”). Because the University’s amended petition sought to condemn only a smaller portion of the land originally described, and not add new or different land, the county court’s jurisdiction remained intact. See Rose, 497 S.W.2d at 446; Nelson, 334 S.W.2d at 792. As to the smaller portion of land the University sought to condemn, the court should have continued to exercise its jurisdiction.

Although a landowner is entitled to have the commissioners determine the land’s value, it does not follow that any variation from the precise issue considered by the commissioners precludes the county court’s exercise of jurisdiction. See Tex. Prop.Code § 21.014. Thus, the fact that the commissioners did not value the smaller portion separately did not deprive the court of jurisdiction. See Coastal Indus. Water Authority v. Celanese Corp. of America, 592 S.W.2d 597, 600 (Tex.1979) (“The petition’s description of the property is the basis for the [court’s] decree.”); Cole, at 501, 313 S.W.2d at 529 (acknowledging the extent of the easement before the commissioners was different than that considered in the county court and reinstating county court’s judgment on the condemning authority’s amended petition); Blasingame v. Krueger, 800 S.W.2d 391, 394 (Tex.App.-Houston [14th Dist.] 1990) (orig.proceeding) (“[The county] court is not confined to simply reviewing [the commissioners’] findings like an appellate court.”). Therefore, under both the statutes and case law, the fact that the commissioners evaluated only the larger tract of land in making their award does not strip the county court of jurisdiction to adjudicate the smaller tract of land. See id.

When the condemning authority amends to take less, the county court must still determine the landowner’s damages for the dismissed land

After determining that the University’s amended petition would only reduce the amount of land to be condemned, the county court’s hearing on FKM’s damages should have been limited to determining FKM’s damages for the portion of land dismissed. The property code instructs the county courts to award land owners certain elements of damage when the condemning authority dismisses condemnation proceedings. Tex. PROp.Code § 21.019 (“A party that files a condemnation petition may move to dismiss the proceedings, and the court shall conduct a hearing on the motion.... A court that hears a motion to dismiss ... shall make an allowance to the property owner for reasonable and necessary fees-”). The landowner’s damages include his reasonable and necessary fees for “attorneys, appraisers, and photographers and for the other expenses incurred by the property owner.” Tex. PROP. Code § 21.019. In addition, section 21.044 allows the land owner to recover temporary damages sustained while the condemning authority was in possession. Tex. PROP.Code § 21.044 (allowing court to award the land owner “the damages that resulted from the temporary possession”). Therefore, FKM should recover the damages it incurred for the portion of land the University no longer sought to condemn in addition to its damages for the smaller tract of land the University still wished to condemn. The county court, on remand, should limit its hearing on damages to those related to the portion of land the University sought to dismiss and reserve the damages determination related to the smaller portion of land for the conclusion of the condemnation proceeding related to that tract.

Dismissing the condemnation proceedings does not serve the statutory purposes

Finally, dismissal of the condemnation proceeding was contrary to the statutory purposes. The eminent domain statute’s provisions are designed to make the landowner whole, not to punish the condemning authority. State v. Tamminga, 928 S.W.2d 737, 740 (Tex.App.-Waco 1996, no pet.) (stating one of Legislature’s purposes in enacting section 21.019 was to “reimburse landowners for their necessary and reasonable expenses whenever the condemnor voluntarily dismisses condemnation proceedings”); Urban Wilderness, S.A. v. City of San Antonio, 924 S.W.2d 410, 413 (Tex.App.-San Antonio 1996, no writ) (same); City of Wharton v. Stavena, 771 S.W.2d 594, 595 (Tex.App.-Corpus Christi 1989, no writ) (same); City of Houston v. Blackbird, 658 S.W.2d 269, 272 (Tex.App.-Houston [1st Dist.] 1983, no writ) (same). When the condemning authority amends to take less, the statute allows the land owner to be made whole. See Tex. Prop.Code § 21.019 (providing for award of land owner’s damages); see, e.g., ExxonMobil Pipeline Co. v. Harrison Interests, Ltd., 93 S.W.3d 188, 191 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (reviewing a trial on damages after trial court dismissed condemnation case). Sections 21.019 and 21.044 enable the trial court to make FKM whole. Tex. Peop.Code §§ 21.019, 21.044. The statute does not explicitly require a dismissal of the entire case for FKM to recover its temporary damages, costs and other expenses. See Tex. PROp.Code §§ 21.019, 21.044.

Requiring the condemning authority to re-initiate condemnation proceedings in such a situation does more than make the landowner whole — it punishes the condemning authority. The condemning authority must either dismiss the entire proceedings, pay damages and start the condemnation proceedings all over again, or take land that it neither wants nor needs. Either result is undesirable. The condemning authority cannot be forced to take land it neither wants nor needs. Frost, 456 S.W.2d at 255 (“A con-demnor should not be required to take more land or rights in lands than it needs nor secure unnecessary rights and privileges and the condemnor should be allowed to abandon such unnecessary lands or rights.”) (citing Cole, 313 at 529.) Requiring the condemning authority to begin anew is also contrary to the condemnation statute’s purpose. See Tamminga, 928 S.W.2d at 740 (stating one of Legislature’s purposes in enacting section 21.019 was to “discourage the commencement and subsequent abandonment of condemnation proceedings”); Urban Wilderness, S.A., 924 S.W.2d at 413 (same); City of Wharton, 771 S.W.2d at 595-96 (same). In the absence of a statutory mandate to do so and in light of the statutory purposes, the condemning authority should not be placed in such a. position.

Condemning authority’s failure to comply with statutory prerequisites does not deprive the county court of jurisdiction.

In its second contention before the county court, FKM contended the court had no jurisdiction because the .University failed to present a board resolution showing the public necessity of the acquisition of the smaller tract of land. In its third contention, FKM argued the University failed to show the parties were unable to agree on damages because the University failed to negotiate in good faith on the smaller tract. Both contentions are based on the statutory prerequisites set forth in section 21.012 of the Property Code. Since the trial of this cause, the supreme court has specifically declared “section 21.012’s requirements are not jurisdictional.” Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172, 191 (Tex.2004). The court further held, “if a condemning entity files a condemnation petition without meeting section 21.012’s requirements, and a landowner opposing condemnation timely requests abatement, the trial court should abate the proceedings for a reasonable time to permit the condemnor to satisfy the statutory requirements.” Id.

Here, FKM presented evidence that the University originally sought condemnation of the larger tract of land for purposes of satisfying the University’s obligations for creating the Texas Highway 35 right-of-way and for the closing of Calhoun Road. In amending its petition to reduce the size of the acquisition, the University stated its acquisition of the property was to be used to “expand the campus of the University of Houston System.” According to FKM, the University has presented no board resolution to support its need for the property for the purpose of campus expansion. The University contends it presented evidence that supports its determination that the acquisition of the property was necessary to complete the acquisition of the east campus areas consistent with the Texas Higher Education Coordinating Board Master Plan for the University.

The power of eminent domain can only be used to take property for a public purpose. See Tex. Const, art. I, § 17; Anderson v. Teco Pipeline Co., 985 S.W.2d 559, 565 (Tex.App.-San Antonio 1998, writ denied). An entity vested with the power of eminent domain must make a determination of public convenience and necessity for the acquisition of property to be condemned. Houston Lighting & Power v. Fisher, 559 S.W.2d 682, 685 (Tex.Civ.App.-Houston [14th Dist.] 1977, writ ref'd n.r.e.). The cases cited by FKM indicate a resolution is a proper method for declaring the determination of public necessity, but do not hold that a formal resolution is the only method of declaring public convenience and necessity. See Anderson, 985 S.W.2d at 565; Maberry v. Pedernales Elec. Coop., Inc., 493 S.W.2d 268, 270-71 (Tex.Civ.App.-Austin 1973, writ ref'd n.r.e.). For example, one case states that the governing body should adopt a resolution or “other action.” Maberry, 493 S.W.2d at 270-71. Although the evidence shows no board resolution, the University presented some evidence its board approved the acquisition of the smaller tract for campus expansion.

There is no evidence, however, that the parties negotiated in good faith on the smaller tract of land. The failure to do so does not affect the county court’s jurisdiction. See Hubenak, 141 S.W.3d at 191. Because FKM has raised a fact, issue with regard to whether the University has demonstrated a public necessity for the acquisition, and the parties did not negotiate in good faith on the smaller tract, on remand, we instruct the county court to abate the proceedings to permit the University a reasonable time to satisfy the statutory requirements. The University’s first issue is sustained.

Conclusion

Because the county court’s jurisdiction continued over the smaller tract of land, we reverse and remand to the county court. On remand, the county court is instructed to abate the proceedings to permit the University a reasonable time to satisfy the statutory requirements and to limit its hearing on damages to a determination of FKM’s damages related to the portion of land the University sought to condemn and the damages caused by the University’s constructive possession of the larger tract prior to its amendment.

SEYMORE, J., dissenting.

CHARLES W. SEYMORE, Justice,

dissenting.

I respectfully dissent because I believe the trial court lost jurisdiction over the special commissioners’ award. The majority holds that dismissal of this condemnation proceeding is not mandatory and would not fulfill the statutory purpose. My colleagues rely on this court’s opinion in Blasingame v. Krueger, 800 S.W.2d 391, 394 (Tex.App.-Houston [14th Dist.] 1990, orig. proceeding)' where we held “[The county] court is not confined to simply reviewing [the commissioners’] findings like an appellate court.”). The court in Blasingame, however, did not address the jurisdiction of the trial court to review the special commissioners’ award.

First, an appeal to the district court or county court at law in a condemnation suit is a special trial de novo proceeding; however, jurisdiction is appellate as distinguished from original or concurrent. State v. Nelson, 160 Tex. 515, 334 S.W.2d 788, 791 (1960). Thus, although the trial is de novo, it is limited to the issues presented at the administrative proceeding before the special commissioners, the administrative tribunal from which the court’s jurisdiction is derived. Board of Regents of University of Texas System v. Puett, 519 S.W.2d 667, 670-71 (Tex.Civ.App.-Austin 1975, writ ref'd n.r.e.).

Second, the majority holds that Texas jurisprudence permits the condemning authority to amend its condemnation pleadings. While this is true, the condemning authority may not amend to the prejudice of the landowner. An amendment that materially prejudices the rights of the landowner deprives the court of jurisdiction because it injects new subject matter into the proceeding. Nelson, 334 S.W.2d at 791.

Finally, the majority holds that dismissing the condemnation proceeding does not fulfill the statutory purpose. I respectfully disagree. The Texas Supreme Court opined as follows:

A holding that the county court on appeal has all of the power of a court of original jurisdiction would tend to thwart the. purpose of the Legislature in providing for the administrative hearing. It would also violate the elementary rule as to the subject matter over which an appellate tribunal may properly exercise its jurisdiction. See Wilbarger County v. Hall, Tex. Com.App., 55 S.W.2d 797; 2 Am.Jur., Appeal and Error s 11.

Id

It is my considered opinion that the majority confuses the requirements for appellate review with the concept of trial de novo. Moreover, by finding that the county court has original jurisdiction, the majority thwarts jurisdictional prerequisites expressed or implied in the statute. Accordingly, I respectfully dissent and would affirm the judgment of the trial court.

      . That it was a significantly smaller piece of land-only three percent of the land originally sought to be condemned-does not appear to be important in the statutes. See Tex Prop. Code § § 21.001-.065. The relevant case law does not address this aspect of the case; the cases do not appear to involve amendments quite this extensive. See Tex. Power & Light Co. v. Cole, 158 Tex. 495, 313 S.W.2d 524, 527-28 (Tex.1958) (concerning a supplemental petition that reduced the extent of the easement the condemning authority originally sought); Thompson v. Janes, 151 Tex. 495, 251 S.W.2d 953, 953-54 (Tex.1952) (concerning supplemental petition that would have dismissed all but .557 acres of the four acres of land the condemning authority originally sought); State v. Tamminga, 928 S.W.2d 737, 738 (Tex.App.-Waco 1996, no writ) (concern- ’ ing amended petition that would have dismissed one of the three tracts the condemning authority originally sought).

      . This is referred to as a dismissal as to a portion. See Cole, 313 S.W.2d at 530 (characterizing condemning authority's décision to redüce the rights sought as dismissing as to a portion).


author: LAURA CARTER HIGLEY, Justice.

text:
    TIG INSURANCE COMPANY and Safety Lights Company, Appellants, v. VIA NET, U.S. Delivery Systems Houston, U.S. Delivery Systems, Inc., and Corporate Express, Inc., Appellees.
    No. 01-04-00102-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 19, 2005.
    Rehearing Overruled Aug. 11, 2005.

      David J. Plavnicky, Plavnicky & Marshall, P.C., Houston, TX, Mitchell D. Rose, Bollinger, Ruberry & Garvey, Chicago, IL, for Appellant.
    Andrew J. Mytelka, Greer, Herz & Adams, L.L.P., Galveston, TX, Jeffrey N. Todd, Joseph A.C. Fulcher, Greer, Herz & Adams, L.L.P., League City, TX, Christopher Robin Richie, David R. Clouston, Patton Boggs LLP, Dallas, TX, Joseph A.C. Fulcher, Greer, Herz & Adams, L.L.P., League City, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices HIGLEY and BLAND.
   OPINION

LAURA CARTER HIGLEY, Justice.

Appellants, TIG Insurance Company (“TIG”) and Safety Lights Company, sued appellee, Via Net, and its corporate affiliates, appellees, U.S. Delivery Systems Houston, U.S. Delivery Systems, Inc., and Corporate Express, Inc. for various causes of action, including breach of contract and fraud, based on appellees’ failure to add Safety Lights as an additional insured on a liability policy. In one issue, appellants complain that the trial court erred in granting a take-nothing summary judgment against them based on appellees’ affirmative defense of statute of limitations.

We reverse and remand.

Factual and Procedural Background

Via Net was a vendor for Safety Lights during the time period at issue in this case. Also during that time, Safety Lights had a company policy, which required its vendors to add Safety Lights as an additional insured on the vendor’s liability policy. On March 19, 1996, a Safety Lights representative sent a letter to Via Net, stating that Via Net was required to provide a certificate of insurance, evidencing that Safety Lights had additional insured status under Via Net’s coverage. Later, another Safety Lights representative called Via Net and informed it that, in order to remain an active vendor with Safety Lights, it was required to add Safety Lights as an additional insured under its coverage.

Lumbermens Mutual Casualty Company (“Lumbermens”) issued a commercial general liability (“CGL”) policy, providing coverage to Via Net for the period of February 28, 1997 through February 28, 1998. At some point, Safety Lights received a certificate of insurance, dated February 28, 1997, from Sedgwick James of Washington (“Sedgwick”), an insurance broker-authorized to enter into binders on behalf of Lumbermens. The certificate of insur-anee was issued to Safety Lights as “holder.” The certificate lists Via Net and U.S. Delivery, subsidiaries of Corporate Express, as insureds under the Lumbermens policy. The top of the certificate provides, “This certificate is issued as a matter of information only and confers no rights upon the certificate holder. This certificate does not amend, extend or alter the coverage afforded by the policies below.” The bottom of the certificate provides, “Certificate holder [Safety Lights] is added as additional insured re: general liability.”

On June 25, 1997, Guy Wright, an employee of either Via Net or U.S. Delivery, was injured while delivering a steel plate to Safety Lights. Based on his injuries, Wright brought suit against Safety Lights. On October 27,1997, Safety Lights’s counsel sent a letter to Sedgwick, requesting defense and indemnity in the Wright litigation based on the certificate of insurance. On December 9, 1997, Safety Lights received a letter from a representative of Lumbermens, informing Safety Lights that it was not an additional insured under the Lumbermens CGL policy.

Safety Lights and its insurer, TIG, settled the Wright litigation on November 16, 1999 for $285,000. Safety Lights incurred defense costs in that litigation of $38,685.02, which were also paid by TIG.

In February 1999, Safety Lights and TIG brought suit against Sedgwick and Lumbermens, asserting various claims and seeking a declaration that Lumbermens was obligated to defend and indemnify Safety Lights in the Wright litigation. The United States District Court for the Southern District of Texas, the Honorable Nancy Atlas presiding, granted summary judgment in favor of Sedgwick and Lum-bermens on January 26, 2001. Judge Atlas concluded, inter alia, that Safety Lights was not entitled to insurance coverage by virtue of the certificate of insurance and that Safety Lights’s and TIG’s claims for negligent and fraudulent misrepresentations fail as a matter of law because it was not reasonable for Safety Lights to believe that it had coverage based on Sedgwick’s representation of coverage in the certificate.

Safety Lights and TIG, under its subro-gation rights, filed the instant action against appellees on December 7, 2001, asserting causes of action for breach of contract, negligence, deceptive trade practices, fraud, and negligent misrepresentation. The suit was premised on appellees’ alleged failure to add Safety Lights as an additional insured on the Lumbermens policy. As damages, appellants sought to recover “all sums paid in settlement and defense” of the Wright litigation. U.S. Delivery and Corporate Express filed answers in which they asserted the affirmative defense of limitations. Each also filed a Rule 166a(c) motion for summary judgment, asserting that appellants’ claims were time barred.

In their respective motions for summary judgment, appellees contended that the alleged breach occurred “shortly after” March 1996. Appellees asserted that Safety Lights should have discovered the alleged breach of contract when it received the Sedgwick certificate of insurance. Ap-pellees concluded that appellants’ breach of contract claim is time barred because appéllants waited more than four years from receipt of the certificate to assert their cause against appellees.

In response, appellants abandoned their negligence, deceptive trade practices, and negligent misrepresentation claims, but maintained that their fraud and breach of contract claims were timely filed. Appellants disagreed that they should have discovered the breach of contract when they received the certificate of insurance. Rather, appellants contended that Safety Lights could not have discovered the breach until December 9, 1997, when Safety Lights received notification that it was not an additional insured. Following a hearing on the motions, the trial court concluded that appellants’ fraud and breach of contract claims were barred by the applicable statutes of limitations, granted the motions for summary judgment on that basis, and signed a take-nothing judgment in appellees’ favor.

In one issue, appellants challenge the granting of the motions for summary judgment on their breach of contract claim.

Standard of Review

The standard of review for a traditional summary judgment is well established: the movant must show there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; in deciding whether there is a disputed material fact issue precluding summary judgment, the court must take evidence favorable to the nonmovant as true; and the court must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in the nonmovant’s favor. See Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). A motion for summary judgment must stand or fall on the grounds expressly presented in the motion. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993). We may not affirm or reverse a summary judgment on a ground not presented to the trial court. Travis v. City of Mesquite, 830 S.W.2d 94, 99-100 (Tex.1992); City of Houston v. Clear Creek Basin Auth, 589 S.W.2d 671, 677 (Tex.1979).

A defendant moving for summary judgment on the affirmative defense of limitations has the burden to establish conclusively that defense as a matter of law. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). In this regard, the defendant must conclusively prove when the cause of action accrued. Id. If it applies and has been pleaded or otherwise raised, the defendant has the burden to negate the discovery rule. Id. The defendant may do so by proving as a matter of law that there is no genuine issue of material fact about when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered, the nature of its injury. Id. If the movant establishes that the statute of limitations bars the action, the non-movant must then adduce summary-judgment proof raising a fact issue in avoidance of limitations. Id. On appeal, the movant still bears the burden of showing that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999).

Discovery Rule

The discovery rule is a limited exception to a statute of limitations and applies only if the nature of the plaintiff’s injury is both inherently undiscoverable and objectively verifiable. Computer Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex.1996). If these two factors are met, then the discovery rule defers the accrual of a cause of action until the plaintiff knew or, through the exercise of reasonable diligence, should have known of the facts giving rise to the cause of action. Wagner & Brown, Ltd. v. Horwood, 58 5.W.3d 732, 734 (Tex.2001). Thus, a summary-judgment movant can negate the discovery rule by showing that it does not apply as a matter of law or by proving that there is no issue of material fact as to when the plaintiff discovered or should have discovered the nature of the injury. Howard v. Fiesta Tex. Show Park, Inc., 980 S.W.2d 716, 719 (Tex.App.-San Antonio 1998, pet. denied) (citing Burns v. Thomas, 786 S.W.2d 266, 267 (Tex.1990) and Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 n. 2 (Tex.1988)). Appellants contend that appellees failed to meet their summary-judgment burden of proving, as a matter of law, that there is no genuine issue of material fact as to when appellants discovered, or in the exercise of reasonable diligence should have discovered, that ap-pellees had breached the alleged agreement to add Safety Lights as an additional insured. See Wagner & Brown, 58 S.W.3d at 734.

The parties agree that, to comply with the applicable statute of limitations, appellants’ breach of contract claim must have been brought within four years of the date that the cause of action accrued. See TEX.CIV. PRAC. & REM.CODE ANN. § 16.051 (Vernon 1997); see also id. § 16.004 (Vernon 2002). Generally, a cause of action for breach of contract accrues on the date of the alleged breach. Stine v. Stewart, 80 S.W.3d 586, 592 (Tex.2002). But, if the discovery rule applies, the accrual of a breach of contract claim is deferred until the plaintiff knew or, exercising reasonable diligence, should have known of the breach and resulting injury. See Wagner & Brown, 58 S.W.3d at 734; KPMG Peat Marwick, 988 S.W.2d at 749; see also Wilson v. John Daugherty Realtors, Inc., 981 S.W.2d 723, 728 (Tex.App.-Houston [1st Dist.] 1998, no pet.) (holding that summary judgment movant did not conclusively negate discovery rule with regard to breach of contract claim).

In their respective motions for summary judgment, appellees asserted that Safety Lights should have discovered the breach of contract when it received the Sedgwick certificate of insurance. Appellants responded that Safety Lights could not have reasonably discovered that it was not an additional insured until December 9, 1997, when Safety Lights received notification from Lumbermens that it was not an additional insured under the policy.

“Discovery” occurs when “a plaintiff had knowledge of such facts as would cause a reasonably prudent person to make an inquiry that would lead to discovery of the cause of action.” Hoover v. Gregory, 835 S.W.2d 668, 671 (Tex.App.Dallas 1992, writ denied). Stated differently, when a plaintiff possesses sufficient facts that would lead a reasonable person to make an inquiry, the plaintiff will be charged with sufficient notice under the discovery rule. See Lopez v. Martin, 10 S.W.3d 790, 792 (Tex.App.-Corpus Christi 2000, pet. denied); L.C. v. AD., 971 S.W.2d 512, 515 (Tex.App.-Dallas 1997, pet. denied); see also Prostok v. Browning, 112 S.W.3d 876, 898 (Tex.App.-Dallas 2003, pet. granted) (concluding that discovery rule tolled limitation statutes until time plaintiffs had knowledge of facts that would have led prudent person to make an inquiry). Accordingly, the discovery rule expressly mandates that a plaintiff exercise reasonable diligence to discover facts concerning the acts or omissions. Childs, 974 S.W.2d at 47; L.C., 971 S.W.2d at 515. Because the rule requires reasonable diligence, the tolling of the limitations statute by the discovery rule ends when the party claiming the benefits of the rule acquires knowledge of facts, conditions, or circumstances that would cause a reasonable person to make an inquiry leading to the discovery of the concealed cause of action. Stewart Title Guar. Co. v. Becker, 930 S.W.2d 748, 756 (Tex.App.-Corpus Christi 1996, writ denied); Bell v. Showa Denko K.K., 899 S.W.2d 749, 754 (Tex.App.-Amarillo 1995, writ denied).

When Safety Lights discovered or should have discovered that ap-pellees failed to add it as an additional insured, and whether Safety Lights exercised due diligence in so discovering, are questions of fact. See Wheeler v. Methodist Hosp., 95 S.W.3d 628, 637 (Tex.App.-Houston [1st Dist.] 2002, no pet.); Southwestern Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex.App.Houston [1st Dist.] 1992, writ denied). But, if reasonable minds cannot differ about the conclusion to be drawn from the facts in the record, then the start of the limitations period may be determined as a matter of law. Childs, 974 S.W.2d at 44.

Assuming, without deciding, that the discovery rule applies to appellants’ breach of contract claim, we examine the record to determine whether appellees met their evidentiary burden to conclusively establish that appellants did not file suit within the applicable period after the date appellants discovered or should have discovered appellees’ failure to add Safety Lights as an additional insured. That is, we determine whether appellees proved as a matter of law that no genuine issue of material fact exists about when Safety Lights discovered, or in the exercise of reasonable diligence should have discovered, the nature of its injury.

It is undisputed that appellants sued appellees on December 7, 2001 and that the statute of limitations for breach of contract is four years. Thus, to sustain their burdens of proof, appellees were required to offer summary judgment evidence to show, as a matter of law, that, before December 7, 1997, appellants knew or in the exercise of reasonable diligence should have known that appellees had failed to add Safety Lights as an additional insured. See Rhone-Poulenc, 997 S.W.2d at 224. Because this is a summary judgment proceeding, we make all reasonable inferences and resolve all doubts in appellants’ favor with regard to the summary judgment evidence. M.D. Anderson Hosp. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000).

Appellees offered the Sedgwick certifí-cate of insurance to support their summary — judgment contention that Safety Lights should have discovered appellees’ failure to add Safety Lights as an additional insured when Safety Lights received the certificate. According to appellees, the certificate establishes conclusively that, in the exercise of reasonable diligence, appellants should have discovered the nature of their injuries as early as February 1997 but no later than October 1997. In particular, appellees rely on the following language of the certificate: “This certificate is issued as a matter of information only and confers no rights upon the certificate holder. This certificate does not amend, extend or alter the coverage afforded by the policies below.” Appellees contend that this language would have caused a prudent person to inquire whether appellees had added Safety Lights as an additional insured. If Safety Lights had so inquired, then it would have learned that appellees had failed to add it as an additional insured.

We do not agree that Safety Lights’s receipt of the certificate of insurance establishes as a matter of law that, in the exercise of reasonable diligence, appellants should have known that appellees had breached the alleged agreement to have Safety Lights made an additional insured on appellees’ policies. Appellees’ reading of the certificate considers neither the purpose of the certificate nor its other language. Stated simply, appellees do not provide a contextual reading of the cited disclaimer language. In this regard, it is useful to understand the purpose of insurance certificates.

A certificate of insurance is a document issued by or on behalf of an insurance company to a third party who has not contracted with the insurer to purchase an insurance policy. 1 Allan D. Windt, Insurance Claims and Disputes § 6.37A at 809 (4th ed.2001); see also Black’s Law DictionaRy 240 (8th ed.2004) (defining certificate of insurance as document acknowledging that insurance policy has been written, and setting forth in general terms what policy covers). One noted insurance law commentator, Allan Windt, explains that the most common type of certificate is that provided for informational purposes to advise a third party of the existence and amount of insurance issued to the named insured. 1 Allan D. Windt, Insurance Claims and Disputes at 809. Such informational certificates are usually issued in conjunction with a contractual relationship between a third party and the named insured, requiring that the named insured have a particular amount and type of insurance. Id. In addition to, describing the insurance available to the named insured, Windt points out that a certificate may also convey information that the certificate holder is an additional insured under the policy issued to the named insured. Id. at 809-10. Indeed, the certifícate here provides that “Certificate holder [Safety Lights] is added as additional insured re: general liability.”

With regard to general liability coverage, the Sedgwick certificate informs the holder that the Lumbermens CGL policy is an occurrence, rather than a claims— made policy. The certificate gives the policy number, effective dates for the liability coverage, and lists the various coverage limits under the policy. The certificate indicates that Via Net and U.S. Delivery, as subsidiaries of Corporate Express, are the primary insureds.

In addition to the provision relied on by appellees that the certificate was issued as a matter of information only, conferred no rights upon Safety Lights, and did not amend, extend, or alter the coverage afforded by the policies listed, the certificate also contains the following disclaimer provision under the heading “Coverages”:

This is to certify that policies of insurance listed below have been issued to the insured named above for the policy period indicated. Notwithstanding any requirement, term or condition of any contract or other document with respect to which this certificate may be issued or may pertain, the insurance afforded by the policies described herein is subject to all of the terms, exclusions and conditions of such polices.

When read contextually, the focus of the certificate’s disclaimer language, in both the provision relied on by appellees and the provision under the heading “Coverages,” could be construed as a warning to the certificate holder, i.e., Safety Lights, that the coverage information described in the certificate may not be the same as the coverage actually provided by the applicable policy. When viewed in the light most favorable to appellants, and in context of the certificate as a whole, the disclaimer language on which appellees rely could reasonably be interpreted to mean that, as an additional insured, Safety Lights had the same coverage as the primary insureds on the policy, subject to the policy’s terms, exclusions, and conditions. Cf. Pekin Ins. Co. v. Am. Country Ins. Co., 213 Ill.App.3d 543, 548, 157 Ill.Dec. 648, 651, 572 N.E.2d 1112, 1115 (1991) (relying on same disclaimer language as in this case, court held that certificate of insurance served to inform undisputed additional insured that it had same coverage as named insured, subject to terms and exclusions of policy, regardless of whether certificate indicated greater coverage than actually provided under policy).

Making a reasonable inference in favor of appellants, as we must, the disclaimer language found in the certificate of insurance, including that cited by appel-lees, serves to warn Safety Lights that coverage may be different in the policy than that listed in the certificate. And, it serves to warn Safety Lights that, to the extent that there is a conflict regarding coverage, the policy’s language will control. Warning a certificate holder that the coverage identified in the certificate may not be the same as the coverage in the policy, is not synonymous with warning a certificate holder that it may not be an additional insured. This is particularly true when, as here, the certificate holder receives the certificate as proof that it had been made an additional insured and when the certificate expressly states that the certificate holder is an additional insured. Thus, a plausible, alternative reading of the certificate is available under which Safety Lights would not have been alerted to its lack of additional insured status. To the contrary, the fact that it was being warned by Sedgwick about possible coverage discrepancies between the certificate and the policy may have served to reaffirm Safety Lights’s belief that it was insured. In any event, reasonable minds could differ whether the certificate served to put Safety Lights on notice that it should further inquire into its additional insured status.

Despite the obvious similarities with the instant case, we find Sabine Towing to be inapposite. Primary among the differences is the procedural posture of the two cases. Sabine Towing involved a full trial on the merits, while the instant suit was disposed of summarily. The appellate issues in Sabine Towing were sufficiency of the evidence while here, we determine whether summary judgment was properly granted. Thus, the standard of review in this case is vastly different than those employed in Sabine Towing. Here, we must view the evidence in a light that favors appellants; the Sabine Towing court properly considered only the evidence favoring the verdict in conducting its legal sufficiency review and viewed all the evidence to determine whether the verdict was so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust in conducting its factual sufficiency review. Id. at 59. Moreover, in addition to the certificate of insurance, the Sabine Towing court cited other evidence that also supported a finding that the plaintiff should have discovered its lack of additional insured status. Comparable evidence is lacking in the instant suit. For these reasons, we find Sabine Towing of little assistance in determining whether summary judgment was properly granted in this case.

Conclusion

Viewing the evidence as required, we conclude that appellees did not meet their respective summary judgment burdens to show, as a matter of law, that no genuine issue of material fact exists regarding when Safety Lights discovered, or in the exercise of reasonable diligence should have discovered, that it had not been named as an additional insured on the Lumbermens CGL policy. For this reason, we hold that the trial court did not properly grant appellees’ motions for summary judgment.

We sustain appellants’ sole issue. Accordingly, we reverse the judgment of the trial court and remand for further proceedings.

      . The corporate relationships between appel-lees is not entirely clear from the record but does not appear to bear on the resolution of this appeal. We also note that, other than in the style of the case, the parties treat U.S. Delivery Systems Houston and U.S. Delivery Systems, Inc. as one entity; therefore, so shall we, referring to it as “U.S. Delivery.”

      . TIG Ins. Co. v. Sedgwick James, 184 F.Supp.2d 591, 606 (S.D.Tex.2001), aff'd, 276 F.3d 754 (5th Cir.2002).

      . Id. at 603-04.

      . On appeal, appellants have also abandoned their fraud claim.

      . Appellees contend that appellants cannot rely on the discovery rule because it was not raised in their pleadings; rather, it was raised for the first time in appellants' response to appellees’ motions for summary judgment. Appellants respond that the applicability of the discovery rule was tried by consent in the summary judgment proceedings. We agree with appellants. It was appellees who raised the discovery rule in their motions for summary judgment when they asserted that Safety Lights should have discovered any alleged breach of contract when it received the certificate of insurance. At the hearing on the motions for summary judgment, both sides engaged in argument regarding the discovery rule without objection. Thus, the issue was tried by consent. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex.1991) (recognizing that affirmative defense is tried by consent when summary judgment movant raises defense for first time in its motion for summary judgment and non-movant fails to object to newly raised defense before judgment rendered); Mayes v. Goodyear Tire & Rubber Co., 144 S.W.3d 50, 54 (Tex.App.Houston [1st Dist.] 2004, pet. filed) (treating unpled cause of action for negligent entrustment as tried by consent because plaintiffiap-pellant (1) did not object to variance between pleadings and appellee’s characterization of his claims and (2) presented appellate argument that fact issues exist in regard to negligent entrustment); De La Morena v. Ingenieria E Maquinaria De Guadalupe, S.A., 56 S.W.3d 652, 659 (Tex.App.-Waco 2001, no pet.) (holding unpled affirmative defense raised by non-movant for first time in response to motion for summary judgment and properly supported by evidence can defeat summary judgment if movant fails to object in trial court); Wyrick v. Tillman & Tillman Realty, Inc., No. 03-00-00061-CV, 2001 WL 123877, at *2 (Tex.App.-Austin 2001, no pet.) (not designated for publication) (concluding that discovery rule assertion of non-movant was tried by consent, even though not pled, because non-movant raised discovery rule in her response to motion for summary judgment and movant did not object in trial court).

      . On appeal, U.S. Delivery contends that appellants’ breach of contract claim is not the "type of injury” that by its nature falls into the category of being inherently undis-coverable. Specifically, U.S. Delivery Systems writes, “The discovery rule should not apply to a garden-variety claim for breach of contract such as this because the wrongful conduct and resulting injury in breach of contract cases are not 'inherently undis-coverable.’ ” However, neither U.S. Delivery nor Corporate Express sought summary judgment on the ground that the type of injury involved here is categorically not inherently, undiscoverable. That is, appellees never contended that appellants’ claimed injury is by its nature inherently discoverable. Instead, appellees asserted in their respective motions for summary judgment that, under the specific facts of this case, Safety Lights should have discovered the lack of coverage when it received the certificate of insurance. Such assertion presumes the application of the discovery rule. We may not affirm a summary judgment on a ground not addressed in the summary judgment proceeding. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.1979). We acknowledge that Corporate Express asserted that appellants' injury was not inherently undiscoverable in its reply to appellants’ response to the motions for summary judgment. However, in the absence of the nonmovant’s consent, a movant may not raise a new ground for summary judgment in a reply to the nonmovant’s response. Sanders v. Capitol Area Council, 930 S.W.2d 905, 911 (Tex.App.-Austin 1996, no writ); RR Publ’n & Prod., Inc. v. Lewis-ville Indep. Sch. Dist., 917 S.W.2d 472, 473 (Tex.App.-Fort Worth 1996, no writ). Thus, we make no determination whether the injury here was inherently undiscoverable and assume arguendo that the discovery rule applies to appellants’ breach of contract claim.

      . Although the exact date of Safety Lights's receipt of the certificate was not shown, it is undisputed that the certificate was dated February 28, 1997 and that appellants had the certificate no later than October 27, 1997, when appellants' counsel requested Lumber-mens to provide coverage as represented in the certificate of insurance.

      . Commentator Windt also explains that a second type of insurance certificate is "one that, by its terms, itself causes the party to which the certificate is issued to become an additional insured.” 1 Allan D. Windt, Insurance Claims and Disputes § 6.37A at 810. In the federal suit, Judge Atlas held that the Sedgwick certificate of insurance did not make Safety Lights an additional insured when Safety Lights was not so named in the insurance policy. Sedgwick James, 184 F.Supp.2d at 598. Appellants do not contend in this suit that the certificate creates coverage and they do not seek coverage here. Rather, appellants seek compensation from appellees for their alleged breach of their contractual duty to add Safety Lights as an additional insured on the CGL policy. Nonetheless, the Sedgwick certificate still served to inform Safety Lights, albeit incorrectly, that it had been made an additional insured under the policy. The summary judgment record contains uncontroverted evidence that the certificate was sent to Safety Lights, at its request, for informational purposes to show that it had been added as an additional insured on the policy.

      . The term "coverage” in the insurance context "normally refers” to "the amount and extent of risk included in the scope of the policy." Aid Assoc. For Lutherans v. United States Postal Serv., 321 F.3d 1166, 1176 (D.C.Cir.2003); see also Black’s Law Dictionary 372 (7th ed.1999) (defining "coverage” as "[i]nclusion of a risk under an insurance policy; the risks within the scope of an insurance policy”).

      . In the trial court and on appeal, appel-lees rely primarily on Sabine Towing & Transp. Co. v. Holliday Ins. Agency, Inc., 54 S.W.3d 57 (Tex.App.-Texarkana 2001, pet. denied). Following a bench trial, the trial court in Sabine Towing entered a take-nothing judgment against the plaintiff who sued an insurance agent under theories of negligent misrepresentation and violations of Texas Insurance Code article 21.21. Id. at 58-59. The plaintiffs claims arose from the insurance agent's representation that the plaintiff was an additional insured under a contractor's liability policy. Id. at 58. In determining the legal and factual sufficiency of the trial court’s judgment, the Sabine Towing court held that the trial court properly determined that the claims were barred by the applicable two-year statute of limitations. See id. at 62-63. In reaching its holding, the court concluded that the discovery rule- did not operate to delay the accrual of the plaintiff's cause of action. See id. at 61-63. Appellees rely heavily on Sabine Towing because, as in this case, the plaintiff had received a certificate of insurance, representing that it was an additional insured under the applicable policy Id. at 62. The certificate also contained the same disclaimer language that appellees rely on in this case. Id. Appellees point out that the Sabine Towing court reasoned that the plaintiff could have determined that it was not an additional insured by contacting the insurer after receiving the certificate of insurance. Id. at 62-63. The court ultimately concluded that the statute of limitations expired two years after the date the plaintiff received the certificate. Id. at 63.

      . On appeal, appellees also assert collateral estoppel, based on language in the federal district court's opinion that it was not reasonable for Safely Lights to rely on Sedgwick's representation of coverage in the certificate. While appellees offered the federal opinion as summary judgment evidence and referenced it in their respective motions for summary judgment to defeat appellants’ claims for negligent and fraudulent misrepresentation, neither appellee did so in support of summary judgment on appellants’ breach of contract claim. Thus, collateral estoppel cannot support the trial court’s summary judgment on appellants' breach of contract claim. See Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.1993) ("[W]e hold that a summary judgment cannot be affirmed on grounds not expressly set out in the motion or response.”).


author: SAM NUCHIA, Justice.

text:
    Aaron Keco RAYME, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00066-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 26, 2005.
    Discretionary Review Refused Nov. 9, 2005.

      Ken Goode, Houston, for Appellant.
    Charles A. Rosenthal, Jr., Dist. Atty.Harris County, Carol M. Cameron, Asst. Dist. Atty., Houston, for Appellee.
    Panel consists of Justices NUCHIA, JENNINGS, and ALCALA.
   OPINION

SAM NUCHIA, Justice.

Appellant, Aaron Keco Rayme, pleaded not guilty to the offense of murder. The jury found him guilty and assessed punishment at life in prison. Appellant presents the following issues on appeal: (1) that he was egregiously harmed by the trial court’s failure to instruct the jury in the punishment charge on the State’s burden of proof regarding extraneous offenses, and (2) that he was denied effective assistance of counsel. We affirm.

BACKGROUND

Enjoli Lavette Taylor was the mother of Aeshia, her then two-year-old daughter with appellant, and Journey, her then one-year-old daughter with another man. Taylor’s sister, Dineatras Smith, testified at trial that Taylor and appellant lived on opposite sides of town. Smith stated that Taylor occasionally left Aeshia with appellant, but that Taylor refused appellant’s requests that he be allowed to keep Journey as well. Smith also testified about several instances in which appellant physically and verbally abused Taylor. Smith described a telephone call from Taylor in which Taylor said that appellant was threatening her with a box cutter and was going to kill her. Smith stated that she heard appellant say that he wasn’t going to kill Taylor “right now,” but that he would later, if he wanted to. Smith also testified that instances of appellant’s abusive treatment of Taylor included the following: angrily knocking a telephone out of Taylor’s hand, grabbing Taylor’s cell phone and throwing it out of a car window, and making harassing telephone calls to Taylor on Mother’s Day weekend that included death threats. Smith said that she called the police during the Mother’s Day incident and that appellant, who had apparently come to the apartment, left after the police spoke with Taylor.

On the morning of June 14, 2003, Taylor left her apartment with the children to take Aeshia to stay with appellant. Smith testified that Taylor told her that appellant was angry because Taylor wasn’t going to let him keep Journey as well. Later that day, appellant stabbed Taylor to death in the home of Ronald and Pamela Blackmon, who lived near appellant. Pamela Black-mon testified that she heard screaming in her front yard followed by knocking on her front door and that, when her husband opened the door, Taylor rushed into their house followed by appellant. Ronald Blackmon testified that appellant went straight to where Taylor was and grabbed her. He said that he tried to get between them and told appellant to let Taylor go, but that appellant “pulled out a knife and he start[ed] stabbing her.” Blackmon said he and his family fled to a neighbor’s house to call police, and, about 10 to 15 minutes later, appellant walked calmly to a house down the street.

Houston Police Department (“HPD”) Officer Dan R. Hamill, testified that he responded to a “cutting-in-progress” call at the Blackmon home “a little after 3:00 o’clock” that day. Hamill said that he, another officer, and HPD Sergeant H.L. Mayer found and arrested appellant in the driveway of a home five houses down from the crime scene. Mayer testified that the owner of that home where appellant was arrested said she was appellant’s cousin and that appellant had telephoned her from the Blackmon house and told her that he had killed Taylor. Ana Elisa Lopez, an assistant medical examiner, testified that Taylor was stabbed and cut 46 times in her face and scalp, back, buttocks, chest, abdomen, hands, arms, and vagina.

DISCUSSION

Charge Error

In his first issue, appellant asserts that he is entitled to a new punishment hearing because the trial court did not sua sponte instruct the jury at the punishment phase that the State had the burden to prove extraneous offenses and bad acts beyond a reasonable doubt. Appellant relies on Huizar v. State to support this contention. 12 S.W.3d 479 (Tex.Crim.App.2000).

Following a finding of guilt, additional evidence may be introduced by both the State and the defendant at the punishment phase of trial in accordance with article 37.07, section 3 of the Code of Criminal Procedure, which states as follows:

Evidence of Prior Criminal Record in all Criminal Cases After a Finding- of Guilty
(a)(1) ... evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant, or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

Tex.Code CRiM. PRoc. Ann. art. 37.07 § 3(a)(1) (Vernon Supp.2004-2005) (emphasis added). The Code of Criminal Procedure also requires that the jury receive, in the punishment phase of trial, any “additional written instructions as may be necessary.” Id. § 3(b). Although the Code of Criminal Procedure does not expressly require a jury instruction concerning extraneous offenses admitted in the punishment phase of a trial under section 3(a), “such instruction is logically required if the jury is to consider the extraneous-offense and-bad act [sic] evidence under the statutorily prescribed reasonable-doubt standard.” Huizar, 12 S.W.3d at 484. “Section 3(a)’s requirement that the jury be satisfied of the defendant’s culpability in the extraneous offenses and bad acts is the ‘law applicable to the case’ in the non-capital punishment context.” Id. The trial court, thus, must instruct the jury that, at the punishment phase, extraneous offense and bad act evidence may only be considered if it meets the statutorily prescribed reasonable-doubt standard. Id. Because the trial court bears the responsibility to instruct the jury, the defendant is not required to make an objection or request under section 3(a) in order to preserve this type of charging error for appeal. Id.

While Huizar held that the trial court must sua sponte charge the jury under section 3(a) when extraneous evidence was admitted in the punishment phase of trial, this Court extended Huizar by holding that the trial court must sua sponte charge the jury under section 3(a) when extraneous evidence is used in the punishment phase of trial, even though the evidence was admitted diming the guilt-innocence phase. See Graves v. State, 176 S.W.3d 422, 432 (Tex.App.Houston [1st Dist.] 2004, pet. granted).

Appellant contends that the trial court erred by not instructing the jury regarding the State’s burden of proof in the punishment phase of trial concerning the following extraneous offenses and bad acts that were introduced in the guilt-innocence phase of trial: “(1) Appellant would take the family car and be gone for extended periods of time, leaving the deceased and their child without provisions such as food, water, and diapers; (2) Appellant tried to force the deceased to get an abortion; (3) Appellant was ‘rough’ with the deceased; (4) Appellant held his hand out like he was ‘hacking’ the deceased and knocked a phone out of her hand; (5) Appellant menaced the deceased with a box cutter and threatened to kill her; (6) Appellant would take the deceased’s money out of her purse; (7) Appellant was unfaithful to the deceased and had a child with another woman; [and] (8) Appellant threatened to kill the deceased on Mother’s day.”

Appellant’s sole contention is that the trial court was required sua sponte to instruct the jury on the State’s burden of proof on these eight extraneous acts that were introduced in the guilt-innocence phase of trial. Appellant does not assert that this evidence was used or referenced by the State in the punishment phase of trial. The eight extraneous acts referred to by appellant did not involve evidence introduced in the punishment phase, as did Huizar, or evidence admitted at the guilt-innocence phase and then used or referred to in the punishment phase of trial, as was the case in Graves. See Huizar, 12 S.W.3d at 484; Graves, 176 S.W.3d at 482. Thus, neither Huizar nor Graves supports appellant’s argument that he is entitled to a section 8(a) instruction for extraneous evidence used only in the guilt-innocence phase of trial.

We are aware that one court has extended Huizar even further by requiring a jury instruction any time extraneous-offense evidence is admitted in the trial, regardless of whether it is admitted in the guilt-innocence phase or the punishment phase of trial, and regardless of whether the evidence admitted at the guilt-innocence phase is used or referenced in the punishment phase of trial. See Allen v. State, 47 S.W.3d 47, 50 (Tex.App.-Fort Worth 2001, pet. ref'd) (“If extraneous offense or bad acts evidence is before the jury, regardless of whether such evidence was introduced at the guilt-innocence or punishment phase, article 37.07, section 3(a) requires that the jurors be instructed not to consider such extraneous offenses or bad acts in assessing the defendant’s punishment unless they find the defendant culpable for such offenses or bad acts under the statutorily prescribed reasonable doubt standard.”) (emphasis added). But see, Guzman v. State, No. 04-02-00198-CR, 2003 WL 22336052, at *4 (Tex.App.San Antonio Oet.15, 2003, pet. refd) (not designated for publication) (citing Allen but finding no harm because, inter alia, the State did not use evidence of extraneous acts during punishment phase). We decline to follow the holding in Allen requiring that a trial court sua sponte give a section 3(a) jury instruction any time extraneous-offense evidence is admitted in the trial, regardless of whether it is admitted in the guilt-innocence phase or the punishment phase of trial, and regardless of whether the extraneous-offense evidence admitted at the guilt-innocence phase is used or referenced in the punishment phase of trial.

Appellant next asserts that the trial court was required sua sponte to give the extraneous-offense burden-of-proof instruction because the State introduced victim impact evidence. In the punishment phase of trial, the State called Ronald Blackmon, the owner of the house where appellant committed the murder. Black-mon testified that he had to sell his house because his children were afraid and uncomfortable living there. The State also presented testimony from the deceased’s mother, who explained how she and the deceased’s children were impacted by appellant’s offense. The evidence described here is not evidence of extraneous offenses or bad acts; it is victim impact evidence and does not require a section 3(a) burden of proof jury instruction. See Brown v. State, 54 S.W.3d 930, 932 (Tex.App.-Corpus Christi 2001, pet. ref'd).

Appellant further asserts that the trial court was required to give sua sponte the extraneous-offense burden-of-proof instruction because the State elicited evidence during its cross-examination of appellant’s character witnesses during the punishment-phase by asking “Have you heard ...” and “Did you know ...” type questions. During the punishment phase of trial, Randall King testified on behalf of appellant regarding appellant’s relationship with Taylor, stating that the two were “not on bad terms.” During cross-examination, the State asked King if he knew about a string of “kick” burglaries appellant committed in the 1990s. King acknowledged that he knew about those offenses. The State also questioned King about whether he knew that appellant had assaulted a man with a brick, and King replied that he did not know that. The State asked King if he knew that appellant had pulled a gun on Taylor’s brother and King denied knowing about such an incident.

When an attorney has a good-faith basis for his questions, a witness’s character testimony may be impeached by asking “Have you heard ...” and “Did you know ...” type questions. See Wilson v. State, 71 S.W.3d 346, 350-51 (Tex.Crim.App.2002) (noting that punishment-phase character witness’s awareness of specific instances of conduct may be tested on cross-examination and “not only was the State not required to prove to the jury that the acts actually occurred, but it would have been improper for the State to attempt to do so”). Appellant does not assert that the State lacked the required good-faith basis for these questions or that the questions were not relevant to the character traits at issue in the case. See In re G.M.P., 909 S.W.2d 198, 210 (Tex.App.Houston [14th Dist.] 1995, no pet.). Thus, we hold that the testimony complained of resulted from the impeachment of character witnesses through “Have you heard ...” and “Did you know ...” type questions, and did not require an extraneous-offense burden-of-proof jury instruction.

Finally, appellant relies on the assertion that the trial court was required sua sponte to give an extraneous offense burden of proof jury instruction because the State moved to re-admit, in the punishment phase of trial, all of the evidence admitted during the guilt-innocence phase. The State’s punishment-phase re-offer of all guilt-innocence evidence had no effect on the use of that evidence in the punishment phase of trial. “It is clear that in assessing punishment the jury may consider all of the evidence adduced at trial on guilt or innocence.” Duffy v. State, 567 S.W.2d 197, 208 (Tex.Crim.App.1978). In other words, the evidence admitted in the guilt-innocence phase of trial may be considered by the jury during the punishment phase regardless of whether the State moves to re-admit it. Thus, we see no distinction in our evaluation of the evidence merely because the State moved to re-admit it in the punishment phase of trial.

We hold that the trial court did not err by not instructing the jury in the punishment phase of trial that extraneous offenses and bad acts could not be considered unless the State proved the offenses or bad acts beyond a reasonable doubt. We overrule appellant’s first issue.

Ineffective Assistance of Counsel

In his second issue, appellant contends that his trial counsel provided ineffective assistance. Specifically, appellant asserts ineffective assistance because his counsel did not: (1) request reasonable doubt instructions on extraneous offenses and bad acts, (2) object to the victim impact testimony of Ronald Blackmon and Barnes, (3) object to improper jury argument made by the State, and (4) request an instruction on sudden passion.

In addressing this issue, we begin by noting that appellant’s counsel did not err in not requesting a sudden passion instruction because the evidence did not raise the issue. Appellant correctly cites Trevino v. State for the proposition that a sudden passion charge should be given at punishment if there is some evidence to support it, even if that evidence is weak, impeached, contradicted, or unbelievable. 100 S.W.3d 232, 238 (Tex.Crim.App.2003). Appellant claims that his demeanor and actions after he stabbed Taylor to death, and the comment of one police officer that, from his viewing of the crime scene, it looked like the perpetrator was in a “rage,” were sufficient to raise the issue of sudden passion. We disagree.

A. Sudden Passion Instruction

Sudden passion is raised only when there is evidence that a defendant acted under the immediate influence of sudden passion arising from an adequate cause. See Saldivar v. State, 980 S.W.2d 475, 505 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd) (holding that issue of sudden passion was not raised because evidence showing victim and appellant argued was not sufficient to establish adequate cause). “Sudden passion” means passion directly caused by and arising out of provocation by the victim or another acting with the victim, and which arises at the time of the offense and is not solely the result of former provocation. Tex. Penal Code Ann. § 19.02(a)(2) (Vernon 2003). In other words, sudden passion is “an excited and agitated mind at the time of the killing caused by an act of the deceased.” Hobson v. State, 644 S.W.2d 473, 478 n. 10 (Tex.Crim.App.1983). “Adequate cause” is cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection. Tex. Penal Code Ann. § 19.02(a)(1) (Vernon 2003).

In this case, there is no evidence that Taylor engaged in a provocative act that would have been adequate cause for appellant’s asserted sudden passion. The only evidence is that Taylor had told appellant earlier in' the day that she would not let appellant watch both children. Appellant’s stabbing Taylor to death because she would not allow him to babysit Journey is a response that “is not objectively common in the ordinary, reasonable person [and] does not support a voluntary manslaughter issue.” See Saldivar, 980 S.W.2d at 506 (citing Willis v. State, 936 S.W.2d 302, 308 (Tex.App.-Tyler 1996, pet. ref'd)). Further, the evidence demonstrated that Taylor had refused appellant’s request that he babysit Journey hours before appellant murdered her. This refusal was not a provocation “which arises at the time of the offense,” but a “former provocation,” if a provocation at all. See Tex. Penal Code Ann. § 19.02(a)(2).

B. Remaining Claims of Ineffective Assistance

The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Appellant must show that (1) counsel’s performance was so deficient that he was not functioning as acceptable counsel under the sixth amendment, and (2) but for the counsel’s error, the result of the proceedings would have been different. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. “Under Strickland, the defendant must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission.” Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App.2002). Our review of appellant’s trial counsel’s performance must be highly deferential. Strickland, 466 U.S. at 690, 104 S.Ct. at 2065. We determine the reasonableness of counsel’s challenged conduct in context and view it as of the time of counsel’s conduct. Id. We are to assume a strategic motive if any can be imagined and find counsel’s performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it. Bone, 77 S.W.3d at 833 n. 13. The policy behind this assumption is that “[ijntensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.” Strickland, 466 U.S. at 690,104 S.Ct. at 2065.

In this case, the record is silent as to why appellant’s trial counsel took, or failed to take, the actions that, according to appellant, are proof of ineffective assistance of counsel. Appellant has not overcome the strong presumption that his counsel’s conduct falls within a wide range of reasonable professional assistance and might be considered sound trial strategy. See Bone, 77 S.W.3d at 836. To find that appellant’s counsel was ineffective based on the stated grounds would call for speculation, in which we will not engage. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994); Lumpkin v. State, 129 S.W.3d 659, 665 (Tex.App.-Houston [1st Dist.] 2004, no pet.).

We overrule appellant’s second issue.

CONCLUSION

We affirm the judgment of the trial court.

      . In his brief, before asserting the “specific blunders” made by his trial counsel, appellant also makes the “general observations” that his counsel did not cross-examine the State’s witnesses during the guilt-innocence phase thoroughly enough for a murder case, did not cross-examine any of the State's witnesses during the punishment phase, and did not conduct an adequate voir dire. After making these "general observations” appellant does not attempt to incorporate them into his argument that his trial counsel provided ineffective assistance. Thus, these "general” complaints are waived for insufficient briefing. See McDuff v. State, 939 S.W.2d 607, 613 (Tex.Crim.App.1997); James v. State, 48 S.W.3d 482, 487 (Tex.App.-Houston [14th Dist.] 2001, no pet.).