author: STEVE MCKEITHEN, Chief Justice.

text:
    Carolyn MODICA, Appellant, v. The STATE of Texas, Appellee.
    No. 09-03-351-CR.
    Court of Appeals of Texas, Beaumont.
    Submitted on Sept. 28, 2004.
    Decided Dec. 1, 2004.

      Jack Lawrence, Beaumont, for appellant.
    Michael D. Papania, Nederland, for ap-pellee.
    Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
   OPINION

STEVE MCKEITHEN, Chief Justice.

Appellant, Carolyn Módica, was convicted by a jury for having committed a Class C misdemeanor offense of Assault. See Tex. Pen.Code Ann. § 22.01(a)(3), (c) (Vernon Supp.2004). The trial court assessed a fine of $200 and costs. Eight issues are raised for our consideration. We will recount facts elicited at trial only when necessitated by the issue under consideration.

Issue one reads: “The trial court erred by holding in its judgment only that defendant is convicted of ‘City Appeal-Other,’ which does not constitute an offense under Texas law, and therefore, said judgment is void, and appellant is correspondingly entitled to appropriate relief.” In Nix v. State, 65 S.W.3d 664, 668 (Tex.Crim.App.2001), the Court of Criminal Appeals noted that a judgment is void only in very rare situations, “usually due to a lack of jurisdiction.” The Court went on to enumerate the circumstances as follows:

A judgment of conviction for a crime is void when (1) the document purporting to be a charging instrument (i.e. indictment, information, or complaint) does not satisfy the constitutional requisites of a charging instrument, thus the trial court has no jurisdiction over the defendant, (2) the trial court lacks subject matter jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct is tried in a county court at law, (3) the record reflects that there is no evidence to support the conviction, or (4) an indigent defendant is required to face criminal trial proceedings without appointed counsel, when such has not been waived, in violation of Gideon v. Wainwright [, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)]. While we hesitate to call this an exclusive list, it is very nearly so.

Id. (footnotes omitted). In the instant case, none of the four enumerated situations appear in the record. The assault charge against appellant stemmed from the filing of a complaint with the municipal court of the City of Beaumont by the victim, [M.E.P.]. Therefore, the complaint is the document purporting to be the charging instrument. See Zulauf v. State, 591 S.W.2d 869, 871 n. 3 (Tex.Crim.App.1979). The complaint lists the offense as “Assault (Simple),” and alleges that on or about December 21, 2000, appellant did “intentionally, or knowingly cause physical contact with [M.E.P.] when he/she knew or should reasonably have believed that said [M.E.P.] would regard the contact as offensive or provocative.” Furthermore, the trial court’s written instructions to the jury listed appellant’s charge as “assault,” and set out the following language in the application paragraph:

Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, CAROLYN MODICA, did in Beaumont, Jefferson County, Texas, on or about the 21st day of December, 2000, intentionally or knowingly cause physical contact with [M.E.P.] when she knew or should reasonably have believed that said [M.E.P.] would regard the contact as offensive or provocative, you will find the defendant guilty.
Unless you so find beyond a reasonable doubt or if you have a reasonable doubt thereof, you will find the defendant not guilty.

At any rate, we agree with the State that the “City Appeal-Other” language shown on the face of the judgment is merely an irregularity that can be corrected by a judgment nunc pro tunc or by this Court on appeal. First, it must be remembered that the written judgment is merely a record of events which have occurred in fact; the written judgment is not itself the conviction but evidence, among other things, that a conviction has occurred. See Jones v. State, 795 S.W.2d 199, 202 (Tex.Crim.App.1990). And while it is true that an appeal may not be taken until a written judgment has been entered, it is not the signing of the judgment that constitutes the “appealable event”; it is the pronouncement of sentence in open court that is the appealable event. See Thompson v. State, 108 S.W.3d 287, 290 (Tex.Crim.App.2003); Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim.App.1998); Rodarte v. State, 860 S.W.2d 108, 109-10 (Tex.Crim.App.1993). As the judgment in the instant case is not void, we overrule issue one.

Issue two states, “The trial court erred as a matter of law by proceeding to trial without the appointed attorney pro tern, Mr. Holmes, having first taken the mandatory oath required by Texas Code of Criminal Procedure Article 2.07(c).” The record reflects that the trial court appointed a “Criminal District Attorney Pro Tern” to prosecute appellant and the “Oath Of Office” portion of said order does not appear to have been executed. While appellant implicitly concedes in her brief that no objection was raised to the failure of the appointed prosecutor to take the oath of office, she essentially contends that being prosecuted by a sworn prosecutor is a “systemic” and “absolute” right possessed by her and, therefore, unwaivable. In Marbut v. State, 76 S.W.3d 742, 750 (Tex.App.-Waco 2002, pet. ref'd), the Court found the provisions contained in Tex.Code Crim. Proc. Ann. art. 2.07 (Vernon Supp. 2004), “[do] not concern the jurisdiction of the trial court or the constitutionality of a statute.” Marbut, 76 S.W.3d at 750. The Court also found that a defendant’s right to have a prosecutor qualified under article 2.07 to represent the State is not a right so fundamental to the proper functioning of our adjudicatory process that it cannot be forfeited. Id. (quoting from Marin v. State, 851 S.W.2d 275, 278 (Tex.Crim.App.1993)).

Although appellant vigorously argues her fundamental constitutional and statutory rights were violated when the appointed prosecutor apparently neglected to take the oath of office, she fails to demonstrate the alleged error was preserved for appellate review by citing to Marin v. State or any of its progeny. See Marin, 851 S.W.2d 275 (Tex.Crim.App.1993). It is imprudent, to say the least, for an appellant to raise a “fundamental” or “systemic” rights violation, in the face of a failure to object at trial, without attempting to place said rights in the Marin “continuum.” As the Court of Criminal appeals recently reiterated:

Marin has been a watershed decision in the law of error-preservation. After Marin we have held that a right that formerly was thought to be “waivable
only” actually requires an objection at trial. We have held that some requirements that were formerly held to be absolute requirements are not. We have held that a party may be estopped from relying on an absolute requirement. On the other hand, we have recognized three more absolute requirements since Marin: a constitutional requirement that a district court must conduct its proceedings at the county seat, the constitutional prohibition of ex post facto laws, and certain constitutional restraints on the comments of a judge.

See Sanchez v. State, 120 S.W.3d 359, 365-66 (Tex.Crim.App.2003) (quoting from Saldano v. State, 70 S.W.3d 873, 888-89 (Tex.Crim.App.2002) (citations omitted)).

The system of adjudication at work in Texas contains rules of three distinct types: (1) absolute requirements and prohibitions; (2) rights of litigants which must be implemented by the system unless expressly waived; and (3) rights of litigants which are to be implemented upon request. Marin, 851 S.W.2d at 279. The particular provision in question is found in Tex.Code Crim. Proc. Ann. art. 2.07(c) (Vernon Supp.2004), which provides: “If the appointed attorney [pro tern] is not an attorney for the state, he is qualified to perform the duties of the office for the period of absence or disqualification of the attorney for the state on filing an oath with the clerk of the court.” On its face, article 2.07(c) does not appear to be the type of evidentiary or procedural rule that belongs to an accused and which must be protected by the system unless expressly waived, unlike the language of the rule at issue in Marin. Marin, 851 S.W.2d at 277, 279. Nor can we say that article 2.07(c) is such a requirement that “[ijmplementation of th[is] requirement[ ] is not optional and cannot, therefore, be waived or forfeited by the parties.” Id. at 279. We have found no cases which have raised the provisions of article 2.07(c) to a “systemic requirement.” We find that the provisions of article 2.07(c) fall into that class of Marin’s rules and procedures that are forfeited if not insisted upon by objection, request, motion, or some other behavior calculated to call its lack of implementation to the attention of the “system’s impartial representative, usually the trial judge.” Marin, 851 S.W.2d at 279. As appellant failed to complain either at trial or in her motion for new trial, we find the issue is not preserved for appellate review. Tex. R.App.P. 33.1(a). Issue two is overruled.

Issue three is presented to us as follows:

The costs of court assessed cannot be enlarged upon on an appeal from a municipal court conviction of a “fine only” citation offense where the additional assessments for items such as fugitive apprehension and correctional management do not correspond to the purposes behind creating said offense, and similar assessments are not made by the municipal court, thus causing the county court entertaining the appeal to assess an excessive penalty, in violation of the Eighth Amendment of the United States Constitution, and Article I, § 13, of the Texas Constitution, and necessitating that these parts of the order be vacated.

Once again, the record reflects no objection was made to the trial court of the various assessments contained in the court costs. Appellant appears to be under the mistaken belief that the proceeding in the County Court at Law was an “appeal” from the proceeding in the municipal court. The Code of Criminal Procedure provides that in appeals from a justice or municipal court, the trial must be de novo, unless the appeal is taken from a municipal court of record and the appeal is based on error reflected in the record. See Tex. Code Crim. Proc. Ann. art. 45.042(b) (Vernon Supp.2004). It also provides that in all appeals to a county court from justice or municipal courts, other than municipal courts of record, the trial must be de novo in the trial in the county court, the same as if the prosecution had originally been commenced in that court. See Tex.Code Crim. Proc. Ann. art. 44.17 (Vernon Supp.2004). In Title 2, Chapter 102 of the Texas Code of Criminal Procedure, there are various costs and fees assessed to defendants upon conviction for criminal offenses ranging from “fine-only” crimes to felonies. See Tex.Code Crim. Proc. Ann. arts. 102.005 & 102.075 (Vernon Supp.2004). Chapter 103 of Title 2 also contains a provision to be utilized'when a defendant believes erroneous costs have been assessed. See Tex. Code Crim. Proc. Ann. art. 103.008 (Vernon Supp.2004).

Appellant, in effect, attempts to again couch this issue in terms of an un-waivable violation of constitutional rights. We reiterate that except for complaints involving systemic (or absolute) requirements, or rights that are waivable only, which are not involved here, all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Tex.R.App. P. 33.1(a); see also Mendez v. State, 138 S.W.3d 334, 342 (Tex.Crim.App.2004). The proper assessment of court costs are neither a systemic requirement nor a waivable-only right. By faffing to call the trial court’s attention to any alleged improper court costs, appellant has forfeited review of the issue on appeal. Issue three is overruled.

Appellant presents and argues issues four, five, and six together. Issues four and five provide the following:

Issue Four: The trial court erred by allowing the prosecutor to improperly comment to the jury in closing argument, thereby denying appellant her right to a fair trial under the Sixth Amendment of the United States Constitution.
Issue Five: The trial court erred by allowing the prosecutor to improperly comment to the jury by misstating applicable law, the cumulative effect of which prevented appellant from receiving a fair trial under the Sixth Amendment of the United States Constitution.

We initially note that appellant’s argument under these issues, along with the authorities cited, is woefully inadequate. An appellant seeking reversal of her conviction on the basis of a Sixth Amendment violation must allege the basis for a Sixth Amendment claim, such as that the error deprived her of her right to confront witnesses, or deprived her of the assistance of counsel for her defense. See generally Bishop v. State, 85 S.W.3d 819, 822 (Tex.Crim.App.2002). See also Faretta v. California, 422 U.S. 806, 818, 95 S.Ct. 2525, 45 L.Ed.2d 562, 572 (1975). Instead, citing to Cortez v. State, 683 S.W.2d 419, 420 (Tex.Crim.App.1984), appellant argues, “a fair trial cannot be had if it is not free from improper jury argument.” An examination of Cortez indicates this “fair trial” observation was taken from Richardson v. State, 158 Tex.Crim. 536, 257 S.W.2d 308 (App.1953). Cortez, 683 S.W.2d at 420. A reading of Richardson does turn up the statement:

The law provides for and presumes a fair trial free from such arguments as above quoted, and we do not think that this defendant has had a fair trial with such denunciations of the district attorney ringing in the ears of the jury who tried him.

Richardson, 257 S.W.2d at 309. However, there is absolutely no authority — statutory, constitutional, rule, or common law— cited in the entire Richardson opinion. Therefore, we feel appellant’s “fair trial” argument, like the “ ‘mandatory statute’ mantra,” is “based on questionable lineage and is inconsistent with more recent prece-dente.]” See Hawkins v. State, 135 S.W.3d 72, 78 (Tex.Crim.App.2004).

Additionally, appellant’s argument and authorities blur the distinct line between the determination of error and harm. See Hawkins, 135 S.W.3d at 76 (“A harm analysis is employed only when there is error, and ordinarily, error occurs only when the trial court makes a mistake.”) We must initially decide whether the jury arguments in question were improper. Jury argument must be confined to four permissible areas: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) an answer to the argument of opposing counsel; or (4) a plea for law enforcement. Wilson v. State, 938 S.W.2d 57, 59 (Tex.Crim.App.1996); Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Crim.App.1973). If error is found in the trial court’s ruling on an improper jury argument a three-prong test is used to determine if the error is reversible: (1) severity of the prosecutor’s misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks); (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) the certainty of the conviction absent the misconduct (the strength of the evidence supporting the conviction). Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998). For prosecutorial argument that strikes over the shoulders of defense counsel and for comments upon matters outside the record, the standard of harm for non-constitutional errors applies. Tex.R.App. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692 (Tex.Crim.App.2000).

Appellant’s brief directs our attention to three instances during the State’s closing remarks to the jury, the first appearing in the record as follows:

[Prosecutor]: And that those are routine inspections and that something went wrong on this particular day because as the inspection started before the noon break, half of the students, half of the students had left that school because they did not find it to be comfortable to be around the inspector under those circumstances.
[Trial Counsel]: Your Honor, I object to that. There’s absolutely no testimony from anybody who left the school that they—
THE COURT: What is your objection, counselor?
[Trial Counsel]: My objection is that he’s arguing outside of the record, Your Honor.
THE COURT: Overruled. Jurors, remember my instructions to you.

We find no error here as the State’s comments were proper summation of the evidence. Testimony indicated that on the day in question approximately fifty students were present at Dolphin Technical Institute when appellant arrived to inspect. Further testimony indicated that before appellant arrived, the atmosphere at the school among students and instructors was basically normal, but after appellant’s arrival that morning there was a “building tension” in the school. From this tension, testimony revealed that about “20 to 25” students left at lunch time and did not return. Therefore, the State’s remarks were supported by the evidence.

The second alleged instance of improper jury argument refers to the following:

[Prosecutor]: Ms. Módica tells you that she got there that day and that she was suspicious. She had had some reports from somebody, and she was there to see if she could catch them in violations.
She says she entered from the rear of the building and caught two people smoking in a fashion that violated the
regulations. When I challenged her on that provision, she did not — she did not deny that the commission had given special permission to that school for letting the smokers smoke in the back because the building permits for that building did not allow smokers in the front.
[Trial Counsel]: Your Honor, again, I object that he’s arguing outside of the record.
THE COURT: Overruled.

The record reflects the following exchange during appellant’s cross-examination testimony:

Q. [Prosecutor]: Did you know that your boss at that time, Mr. Knowles, had already approved — had previously approved smoking outside that building in the back because of the City regulations concerning smoking in the front? Did you know that?
A. [Appellant]: He didn’t.
Q. He didn’t?
A. No.
Q. You’re saying that that’s a false statement?
A. Yes, sir.

Clearly, appellant did indeed challenge the State’s assertion that the cosmetology commission gave permission to the school’s students to smoke at or near the back entrance of the school. However, the record reflects somewhat unique circumstances as is shown by the continuation of the State’s argument immediately following the overruling of appellant’s above-noted objection:

[Prosecutor]: But be all of that as it may, whether it’s a violation or not, one of the things that did come out that whatever Mrs. Módica wrote in that report, by February her supervisor had been sent from Austin down here, reviewed everything, and gave them a 100 percent perfect score.
[Trial Counsel]: Your Honor, again, I object to his arguing outside of the record.
THE COURT: Sustained.
[Trial Counsel]: Ask the jury to be instructed to disregard that argument, Your Honor.
THE COURT: Sustained. Disregard what argument.
[Trial Counsel]: You sustained my objection that he’s arguing outside the record. I’m merely asking for an instruction to [ask the] [sic] jury—
THE COURT: That they disregard what?
[Trial Counsel]: The statement that he made, Your Honor, that was outside of the record.
[Prosecutor]: Your Honor, I don’t believe it’s outside the record. That’s something we could recess and get the court reporter—
THE COURT: No. We’re not going to call a recess.
Members of the jury, you have — one of your responsibilities is to recall the facts. I trust that you will do that. Disregard any statement made by either attorney that is outside of the record.
[Trial Counsel]: Your Honor, move for a mistrial.
THE COURT: Denied.

In this instance, the record does support the State’s argument. The following exchange took place during cross-examination of appellant:

Q. [Prosecutor]: Now, you inspected— and I’m going to cut to the chase. You inspected that day; and you cited numerous violations, did you not?
A. [Appellant]: Yes, I did.
Q. Okay. Isn’t it true that that report — your report was set aside and superseded by a report of Mr. Knowles not
even two months later and that that school got a 100 percent perfect score? That’s true, isn’t it?
A. Would you repeat that statement?
Q. Yes. Isn’t it true that within, say, the month of February about two months or less from the time you inspected and cited that school on all those violations that the — Mr. Knowles inspected that school and it got a perfect score, did it not?
A. Yes.

It is necessary at this point to place the closing argument of the parties in its proper perspective. The charge of the court was read to the jury prior to the commencement of jury argument. The jury was also provided with the written instructions, which contained the following general instructions in pertinent part:

Questions and comments of the attorneys do not constitute testimony and must not be considered as evidence. You must also disregard any statement of the attorneys that is inconsistent with the law contained in this charge.
You must not consider facts that have not been introduced into evidence or legal principles not contained in this charge. It is improper for any juror to discuss or consider anything which he or she knows or has learned outside of the testimony presented to you and the law contained in this charge....
You are the exclusive judges of the facts proven, the believability of the witnesses and the weight to be given their testimony. However, you must be bound by and strictly follow the law contained in this charge....
After the attorneys present their arguments, you will retire, select a foreperson, and consider your verdict. The arguments are not evidence and you should give the arguments only the consideration you feel they deserve during the evaluation of the evidence....

Moments later, during the closing argument of appellant’s trial counsel, the trial court sustained the State’s objection that trial counsel was arguing outside the record and gave the following verbal instruction to the jury:

THE COURT: Members of the jury, I may sustain or overrule an objection as to what was said but it is not my interpretation or understanding of what is said that is crucial. It is your understanding that — what the witnesses said that is crucial. So, [Trial Counsel] will be given some latitude to give his rationale and relate to you how he recalls the facts. [The Prosecutor] will likewise be given, an opportunity to tell you how they [sic] recall the facts. I may rule one way or the other. But disregard those statements, even the Court’s ruling. You’ll recall the facts as you understand them to be because what [Trial Counsel] says is not evidence.
What [The Prosecutor] says is not evidence, and what the judge says is not evidence. You decide what the evidence is.
That having been said, move forward, [Trial Counsel].

Trial counsel immediately followed the trial court’s instructions with his own “admonishment”:

[Trial Counsel]: Thank you, Your Hon- or.
Questions and comments of the attorneys do not constitute testimony and must not be considered as evidence. I’m not giving you evidence. I’m giving you what I think my opinion is drawn from the evidence....
Thereafter, the prosecutor prefaced his final remarks to the jury with the following:
[Prosecutor]: Thank you. The first thing — I don’t want to be repetitive but I do want to remind you you’re the exclusive judges of the facts. So, regardless of what I say I think came from that stand and what I say I recall or [Trial Counsel], that’s not the way it is. You heard the testimony. You heard the evidence. I ask you to be very careful in that regard....

It was only after being verbally instructed by the trial court, with echoing remarks by counsel for the parties, that the improper remark by the State was made. Although the trial court overruled appellant’s timely objection to the improper remark, the jury had already been instructed in great detail that nothing the attorneys said was evidence, to disregard the trial court’s ruling on objections, and that only the members of the jury were to recall and decide what the evidence was. While appellant did deny that the cosmetology commission had given the school permission to allow students to smoke in the rear of the building, the State’s improper comment to the contrary during final argument did not affect appellant’s substantial rights so as to require reversal of her conviction. Tex.R.App. P. 44.2(b). Under the test for reversible error in jury argument as set out in Mosley, we find the cautionary instruction given by the trial court and affirmed by counsel for the parties combined to cure the error by the trial court in overruling appellant’s objection. See Mosley, 983 S.W.2d at 259. Additionally, the prosecutor’s “misconduct” was not severe and the strength of the evidence in support of the conviction was not given added weight in any significant degree. Id. We also find, under Mosley, that any error by the trial court during closing argument did not af-feet appellant’s substantial rights. Issues four and five are overruled.

Issue six avers: “The trial court erred by failing to provide sufficient curative instructions to the jury following the sustaining of defense objections to the prosecutor’s improper comments.” As noted above, two of the three instances of the State’s closing argument in question found support in the evidence. Nevertheless, appellant argues that because any curative instructions given by the trial court were insufficient to cure the State’s misconduct, the “cumulative effect” of the improper argument raised in appellate issues four and five require us to “review other misstatements of law and twisting of facts performed by [the prosecutor].” As only one of the three instances of alleged improper argument had merit, we find it unnecessary to conduct the sweeping review of the record for other “misstatements” by the State.

An isolated mischaracterization of the record by the State which was not severe and was made in the context of a plethora of prophylactic admonishments from the trial court and the parties does not require appellate analysis of the record for the effects of cumulative error. We recognize the proposition that a number of errors may be found harmful in their cumulative effect. See Feldman v. State, 71 S.W.3d 738, 757 (Tex.Crim.App.2002) (op. on rehearing); Stahl v. State, 749 S.W.2d 826, 832 (Tex.Crim.App.1988). However, there appears to be no precedent for holding that non-errors may, in their cumulative “effect,” cause error, much less reversible error. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App.1999). We overrule issue six.

Issue seven registers this complaint: “Trial counsel’s failures to request indicated jury instructions, to properly file a motion for new trial, to obtain rulings on filed discovery motions, to raise [the prosecutor’s] disqualification, and failure to use certain highly exonerating exhibits supplied by appellant, cumulatively and singularly constituted a denial of the effective assistance of counsel, in violation of appellant’s rights to effective counsel under the Sixth and Fourteenth Amendments to the United States Constitution.”

In general, to obtain a reversal of a conviction on the ground of ineffective assistance, an appellant must demonstrate that (1) trial counsel’s performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel’s unprofessional error(s), the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674, 693, 698 (1984). In assessing a claim of ineffective assistance, an appellate court “must indulge a strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance; that is, the [appellant] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” 466 U.S. at 689, 104 S.Ct. 2052 (some punctuation omitted; citation omitted).

Texas courts have consistently adhered to the standard set out in Strickland. See generally McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996). “Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness.” Id. at 500. It is also recognized that counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. See id.; see also Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

The deficiencies of trial counsel alleged by appellant include (1) failing to request an instruction on self-defense, (2) failing to secure a jury instruction to the effect that the victim and her brother were not permitted to interfere or impede appellant’s inspection of the school per cosmetology commission rules and regulations and provisions of the Texas Administrative Code, (3) failing to request disqualification of the prosecutor as he had been previously consulted by appellant regarding legal representation for the instant offense, (4) failing to properly “present” appellant’s motion for new trial to the trial court for a ruling, (5) failing to obtain rulings on the pretrial motions he filed thereby failing to obtain “complete” discovery, and (6) failing to utilize certain “materials” acquired through prior State investigations of the victim’s cosmetology school “which would have aided in [appellant’s] defense.”

With regard to most of these alleged deficiencies, appellant essentially asks us to assume no trial strategy existed or only an unreasonable one at best. Yet, what appellant asserts “ought to have been done” by trial counsel has virtually no legal foundation or factual support. For example, we are unaware of any statutory provision or common law precedent which would have permitted the trial court to have provided the jury with the provisions of Texas Cosmetology Commission’s Regulation § 1602.551 so as to “have informed jurors that Appellant had both a right and a duty to protect such evidence [time cards] of violations.” Indeed, such an instruction could arguably have been subjected to an objection by the State as a comment by the trial court on the weight of the evidence. See Tex.Code Crim. Proc. Ann. art. 36.14 (Vernon Supp.2004) (Judge shall deliver to the jury a written charge “distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury.”)

In a similar vein, appellant’s insistence that trial counsel’s performance was grossly deficient for failing to request an instruction on self-defense is entirely misplaced in fight of the testimony of appellant. On direct examination, appellant testified as to how she sustained injuries to her hand and wrist. She continued her testimony concerning the events in question as follows:

Q. [Trial Counsel]: Did you knock [the victim] to the ground?
A. [Appellant]: No.
Q. Did you grab her by the shoulders and push her in a fashion that she would have hit her head on a wall?
A. No.
Q. Did you cause any injury to [the victim]?
A. No.
Q. Are you still feeling any of the effects of your injuries?
A. Yes.
Q. Okay. Did you in any way provoke [victim’s brother] into doing what he did?
A. No.
Q. Did you in any form or fashion have any intention of touching [the victim]— A. No. I’m sorry.
Q. Well, let me just finish.
—in a manner that she would have considered provocative or offensive?
A. No.

The record reflects that appellant denied even touching the victim or the victim’s brother, but said she was herself assaulted by the victim and the victim’s brother. Appellant contends that because trial counsel “argued” for the “fallback position of self-defense,” his performance was deficient for failing to request such an instruction from the trial court.

We agree with the general proposition that when evidence from any source raises a defensive issue, and the defendant properly requests a jury instruction on that issue, the trial court must submit the issue. See Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App.1993). However, we have previously held that when the defensive issue in question is one contained in Chapter Nine of the Texas Penal Code, and the defendant fails to admit to having committed the charged act, the defendant is not entitled to an instruction on self-defense. See Gilmore v. State, 44 S.W.3d 92, 96-97 (Tex.App.-Beaumont 2001, pet. ref'd). As we explained, Chapter Nine is titled, “Justification Excluding Criminal Responsibility,” and includes “justifications” such as “necessity” and “public duty,” as well as self-defense. Id. at 97. As the title of the chapter indicates, these defenses have traditionally been recognized as justification for conduct that would otherwise be criminal. Id. As such an instruction informs the jury that the charged conduct was excusable under the law, the accused must admit to having committed the charged conduct in the first place. However, when a person accused of assault denies even touching the victim, as appellant so testified, she has engaged in no conduct which needs justifying. She has essentially denied that the alleged criminal act ever took place. Therefore, trial counsel’s performance was not deficient for not having requested an instruction on self-defense as such a defense was not raised by the evidence. And, as noted above, argument of counsel is not evidence.

In Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002), the Court of Criminal Appeals observed that, under normal circumstances, “the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient and so lacking in tactical or strategic de-cisionmaking [sic] as to overcome the presumption that counsel’s conduct was reasonable and professional.” (footnote omitted). This proposition was reiterated by the Court in Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App.2003). In her brief, appellant states: “Rylander is inapplicable because trial counsel’s actions speak louder than his words in his own defense could, anyway, in the designated instances of ineffectiveness.” Appellant appears to miss the entire point of Bone and Rylander in that her trial counsel’s alleged deficiencies of performance are neither professionally deficient nor prejudicial per se. Under such circumstances, both Bone and Rylander agree that “trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.” Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836.

The somewhat unique procedural history of the instant case makes affording to trial counsel the opportunity to respond to appellant’s particular complaints compelling in that appellant had already been adjudicated guilty by a jury in municipal court on the identical charge, albeit with different trial counsel. We have no way of knowing if present trial counsel discussed the strategy and presentation with municipal court trial counsel so as to refíne or entirely change trial strategy for the de novo trial in county court. Obviously, all this is pure speculation as present trial counsel has not been afforded the opportunity to provide reasons for the alleged deficient acts and omissions. As has been often noted, no Texas court defines the right to effective assistance of counsel as the right to error-free counsel. See Ex parte Welborn, 785 S.W.2d 391, 393 (Tex.Crim.App.1990); Mercado v. State, 615 S.W.2d 225, 228 (Tex.Crim.App.1981); Ex parte Burns, 601 S.W.2d 370, 372 (Tex.Crim.App.1980). From the state of the record before us, appellant has failed in her burden to show trial counsel’s performance fell below an objective standard of reasonableness. See Rylander, 101 S.W.3d at 110. Issue seven is overruled.

Appellant’s concluding issue argues “[t]he evidence was factually insufficient to support the jury’s verdict that appellant was guilty of simple assault beyond a reasonable doubt, and judgment should be reversed.” In a factual sufficiency review, we review all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App.2004). Even in a neutral light, evidence in support of the verdict came in the form of testimony from the victim, [M.E.P.], and the victim’s brother, [D.L.LJ. Additionally, one student eye-witness testified that she observed appellant “push [M.E.P.] over the table. She reached over the table and pushed her.... So, [M.E.P.] was standing on this side; and when she [appellant] pushed her [M.E.P.], she pushed her into the wall. Her head hit the wall.” Another student eye-witness testified that “[appellant] proceeded to turn around and shove [M.E.P.] into the wall, and [M.E.P.] hit the ground.” When asked if he observed appellant being provoked into pushing [M.E.P.], this student stated he did not.

In addition to the denial by appellant that any offensive contact by her took place, the defense also elicited the following description of events from another student eye-witness present at the school when the incident occurred:

Q. [Trial Counsel]: Could you see [M.E.P.]?
A. [Student]: I saw her. She had come and was across the table. When I stopped what I was doing and I walked towards there and people were going towards there because there was obviously something going on. Just heard a lot of loud noises and some movement and I’m short. But, I mean, there were people moving over there and I looked in and I saw him, [D.L.L.], come around the table and he was still hollering at this point and just — it was more like just hearing loud noises. It’s like one of those things something flashes in your head and something’s really wrong and [M.E.P.] had come in and she was like where he had been across the table from Mrs. Módica. And I saw — I saw him like, I don’t know, lunge maybe. His shoulder like went into her, and he was obviously reaching for her.
Q. You saw that?
A. That’s all I could see on — on his part that he was — I don’t want to say throwing himself into her but he lunged at her, I guess, with his shoulder.
Q. Where was [M.E.P.] when this actually took place?
A. She was across the table like — you know, sitting — standing kind of across the table from like where she would be sitting now, where Mrs. Módica is and [M.E.P.] was kind of across the table and she was reaching across the table.
Q. Okay. Did you see — well, as a result of [D.L.L.]’s actions, what happened?
A. I saw him lunge into her and she kind of knocked sideways and I saw [M.E.P.] grabbing at her and then there was a whole lot of people around.
Q. In the room or just out—
A. And she was — coming towards — I mean, in that room there were already people and then it was — I mean, people were coming, you know, to see what was happening because you could hear a scuffle and you could hear the loudness. Q. Okay. Now—
A And I went back to my station after that. I was packing up.
Q. Okay. Were you the only one who started to pack up?
A. I don’t think so because it made everybody really nervous.
Q. Okay. Did you see Mrs. Módica do anything to [D.L.L.]—
A. No.
Q. —physically?
A. No, sir.
Q. Okay. Did you see Mrs. Módica do anything to [M.E.P.]?
A. Not — not what I could see. She— she couldn’t have got to her. I mean, I guess she could have reached across the table maybe but I didn’t see any of that. After I saw the main — what I thought was the main scuffle of it, I thought “I’m getting my stuff and I’m leaving,” but I didn’t see — she was — I don’t know. She was — it’s like she was reaching or digging for something. You could see that, but that’s all I could tell she was doing.
Q. Okay. Did you see [M.E.P.] physically being pushed back into a wall?
A. Oh, no, sir.

This student also stated that shortly after the “scuffle,” she observed [M.E.P.] “running towards the front door,” and [M.E.P.] was not being assisted, carried, or aided by anyone.

There is no question but that the record contains testimony in support of both appellant’s and the State’s theory of prosecution. Viewing all the evidence in a neutral light, as we must, we simply cannot say that the State’s evidence is so weak that the jury’s verdict is clearly wrong and manifestly unjust. Ross, 133 S.W.3d at 620. Nor can we say that evidence favorable to appellant is so strong that the State’s evidence could not have met the standard for criminal conviction- — proven beyond a reasonable doubt. Id. The evidence is factually sufficient to support the jury’s verdict. Issue eight is overruled. In connection with our resolution of issue one, we reform the judgment of the trial court, substituting the properly-worded offense “Assault,” for the improperly worded term “City Appeal — Other,” wherever necessary. See Tex.R.App. P. 43.2(b); Cobb v. State, 95 S.W.3d 664, 668 (Tex.App.-Houston [1st Dist.] 2002, no pet.)(“ ‘An appellate court has the power to correct and reform a trial court judgment to make the record speak the truth when it has the necessary data and information to do so[.]’ ’’Xquoting Nolan v. State, 39 S.W.3d 697, 698 (Tex.App.-Houston [1st Dist.] 2001, no pet.)). As so reformed, the judgment of the trial court is affirmed.

AFFIRMED AS REFORMED.

      . The provision at issue in Marin states: “An appointed counsel is entitled to 10 days to prepare for a proceeding but may waive the preparation time with the consent of the defendant in writing or on the record in open court.” See Tex.Code Crim. Proc. Ann. art. 1.051(e) (Vernon Supp.2004) (emphasis added); see Marin, 851 S.W.2d at 281-82.

      . Article 102.075 was repealed effective January 1, 2004. See Act of June 2, 2003, 78th Leg. R.S., ch. 209, § 85(a)(7), (b) 2003 Tex. Gen. Laws 979, 1003. For relevant provisions which took effect on January 1, 2004, see Chapter 133 of the Texas Local Government Code, and particularly Tex. Loc. Gov't Code Ann. §§ 133.101-133.104 (Vernon Supp.2004).

      . Faretta states that, because Sixth Amendment rights are basic to our adversary system of criminal justice, they are part of the "due process of law" that is guaranteed by the Fourteenth Amendment to defendants in the criminal courts of the States. Id., 422 U.S. at 818, 95 S.Ct. 2525. Therefore, a defendant's “right of self-representation” finds support in the "structure of the Sixth Amendment.” Id. at 819, 95 S.Ct. 2525. Because the Sixth Amendment does not contain explicit language providing for a defendant’s "right” to proceed without counsel when he voluntarily and intelligently elects to do so, the Court was required to "find” such a right within the meaning of the Sixth Amendment as applied to the States through the Fourteenth Amendment. Id. at 818-20, 95 S.Ct. 2525. The instant appellant argues that a prosecutor whose closing arguments contain evidentiary assertions that are outside the record violates her "right to a fair trial” under the same Sixth Amendment. Yet, unlike the Court in Faretta, appellant does not attempt to inform us specifically where such an argument, even if erroneous, falls within the right afforded by the Sixth Amendment so as to be "necessarily implied by the structure of the Amendment.” Faretta, 422 U.S. at 819, 95 S.Ct. 2525.

      . Similar language to that quoted in appellant’s brief appears in Tex. Occ.Code Ann. § 1602.551 (Vernon 2004), and reads as follows:
      (a) The commission, an inspector, or an authorized representative of the commission may enter a license holder’s premises at any time during normal business hours to determine whether the license holder is in compliance with this chapter and commission rules.
      (b) If an inspector discovers a violation of this chapter or a commission rule, the inspector shall:
      (1) give to the violator written notice of the violation on a form prescribed by the commission; and
      (2) file a complaint with the executive director.

      . For a compelling example of the importance of providing an evidentiary basis for an ineffective assistance claim, see Ex parte Varelas, 45 S.W.3d 627 (Tex.Crim.App.2001). Varelas’s conviction for capital murder and death sentence were affirmed on direct review by the Court of Criminal Appeals in the face of, inter alia, an ineffective assistance challenge because of “an otherwise silent record.’’ Id. at 629, 632. However, Varelas's post-conviction habeas corpus application was accompanied by an affidavit from his trial counsel admitting the omissions at trial were not the result of trial strategy. Id. at 632. The Court found trial counsel’s affidavit admitted to deficient performance and later found prejudice as a result of the deficient performance. Id. at 632, 636. The Court granted Varelas relief and ordered a new trial for him. Id. at 636.

      . See also Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App.2004); Zuniga v. State, 144 S.W.3d 477, 481-82 (Tex.Crim.App.2004); Vodochodsky v. State, - S.W.3d -, -, No. 74129, 2004 WL 840121, at *6 (Tex.Crim.App. April 21, 2004)(not yet released for publication).


source: Caselaw Access Project

author: Chief Justice MORRISS.

license: Public Domain

text:
    Pat FORTH, Individually and on Behalf of others Similarly Situated, Appellants, v. ALLSTATE INDEMNITY COMPANY, Appellee.
    No. 06-03-00135-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Nov. 12, 2004.
    Decided Dec. 8, 2004.

      Stephen Gardner, Law Office of Stephen Gardner, G. Laird Morgan, John M. Phalen Jr., Daniel Sheehan & Assoc, LLP, Dallas, for appellants.
    Jeffrey Lennard, Sonnenschein, Nath & Rosenthal, Chicago, IL, Roger D. Higgins, Thompson, Coe, Cousins & Irons, LLP, Dallas, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

After Pat Forth’s daughter was injured in an automobile accident, Forth filed claims for the resulting medical expenses with her then personal-injury-protection (PIP) insurer, Allstate Indemnity Company. Allstate paid only a portion of the claimed expenses, and Forth sued Allstate for herself and as representative of a putative class of PIP claimants. Forth asserts Allstate is arbitrary in its PIP claim practices in paying only those portions of claimed medical expenses which do not exceed those which rank at the eighty-fifth percentile of medical expenses for the same treatment or procedure in a third-party contractor’s computerized database. Forth asserts Allstate should, instead, pay “reasonable” medical expenses as determined by an independent, fair evaluation. Forth amended her pleadings to remove any request for damages, leaving requests for only declaratory judgment and injunction.

Forth’s remaining requests include both retrospective and prospective relief. She seeks retrospective relief requiring Allstate to review her past claims, and those of the putative class, using an independent and fair evaluation — not its computerized Medical Bill Review System (MBRS) and the eighty-fifth percentile standard currently used with MBRS — and to pay her, and her putative class members, what that new review shows Allstate owes them, if anything. Prospectively, Forth seeks to enjoin Allstate from using MBRS and the eighty-fifth percentile standard on future claims.

The trial court dismissed Forth’s suit.for lack of standing after she amended her pleadings to drop her request for money damages. We are presented with one point of error on appeal-whether the trial court erred in granting Allstate’s motion to dismiss. The trial court erred if Forth has standing to seek any of the relief she requests. We hold she has standing to seek the retrospective relief, concerning past claims, but not to seek prospective relief concerning Allstate’s claim evaluation practices.

In the remainder of this opinion, we first explore in greater detail just what remedies Forth seeks. Then we review the concept of standing. Finally, we explain why we hold she has no standing regarding Allstate’s practices as to future claims but does have standing to seek a review of past claims.

Remedies Sought by Forth

According to her appellate brief, “Forth seeks an injunction requiring Allstate to conduct an honest, good-faith review of her actual charges without using [an] automated computer reduction program”; that is, she wants Allstate to determine the reasonableness of those charges in light of her specific situation and, once that review has been conducted, to compensate her for the loss of any benefits that should have been provided under the terms of her policy. At first, this request appears somewhat inconsistent with Forth’s pleadings and engenders some confusion in the parties’ arguments. After all, in addition to her request that Allstate review her claims and compensate her for lost policy benefits, Forth states both in her pleadings and in her appellate brief that she does not seek money damages either for herself or for the putative class. She also specifically requested a permanent injunction proscribing Allstate’s use of MBRS to reduce claims payments absent an independent determination of the reasonableness of the charges submitted.

Allstate argues that Forth’s lawsuit was properly dismissed due to a lack of standing because she expressly abandoned her prayer for damages and requested only declaratory and injunctive relief. Allstate emphasizes the prospective nature of the relief requested, pointing out that Forth cannot have standing for such relief because she is no longer an Allstate insured. True, Forth is admittedly no longer an Allstate insured. But when we construe the pleadings in Forth’s favor, as we should, and consider her intent, we see that Allstate’s approach addresses only a portion of the sought remedies which are before us. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). At the hearing on Forth’s motion for class certification, Forth’s attorney explained her position:

The important thing here is we are seeking two overlapping but independent certifications: ... certification of this [action] pursuant to 42(b)(2) as an in-junctive class, seeking to enjoin Allstate from future practices and to order Allstate to review its prior practices with actual reasonable criteria in place. Separately, we seek damages, both that the amounts were wrongfully withheld, and independently of that, the 21.55 penalty just for the delay in payment. One doesn’t overlap the other.

That explanation, plus Forth’s pleadings and her argument on appeal, help us understand Forth’s original attempt to obtain damages (both for delay and for withholding payment) and injunctive relief (seeking both to enjoin Allstate from its allegedly illegal practices in the future and to have re-evaluated those claims already reviewed using those practices). Now that Forth has removed the damages request, her standing to bring this action rises or falls based on the remaining remedies she has requested. First, does Forth have standing to seek prospective relief enjoining Allstate from certain practices in the future? Second, does Forth have standing to seek retrospective relief ordering Allstate to review past claims submitted under the terms of her policy and similar policies and then to pay any amount by which its payments fell short of “reasonable” expenses? We review the concept of standing and then address these two questions in turn.

Standing

Implicit in the concept of subject-matter jurisdiction, standing is a prerequisite to maintaining a suit. It “stems from two limitations on subject matter jurisdiction: the separation of powers doctrine and, in Texas, the open courts provision.” Brown v. Todd, 53 S.W.3d 297, 302 (Tex.2001); Tex. Ass’n of Bus., 852 S.W.2d at 443-44. As such, standing is essential to the authority of a court to decide a case, identifies those suits appropriate for judicial resolution, and cannot be waived. Brown, 53 S.W.3d at 305; Tex. Ass’n of Bus., 852 S.W.2d at 443, 445-46. If a plaintiff lacks standing, the trial court has no jurisdiction and must dismiss the entire case. M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 707-08 (Tex.2001); Am. Nat'l Ins. Co. v. Cannon, 86 S.W.3d 801, 806 (Tex.App.-Beaumont 2002, no pet.).

A plea to the jurisdiction is a dilatory plea by which a party challenges a court’s authority to determine the subject matter of an action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). The purpose of a dilatory plea is not to force the plaintiff to preview his or her case on the merits, but to establish a reason why the merits should never be reached. Id. Thus, our task is not to decide the merits of Forth’s case, but rather to examine her pleadings, taking as true the facts pled, to determine whether those facts support jurisdiction in the trial court. Penley v. Westbrook, 146 S.W.3d 220 (Tex.App.-Fort Worth 2004, no pet. h.). “When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.” Miranda, 133 S.W.3d at 226; Bland, 34 S.W.3d at 555.

Unless standing is conferred by statute, a plaintiff must show an interest in a conflict distinct from that of the public at large. Williams v. Lara, 52 S.W.3d 171, 178 (Tex.2001). That is, “standing limits subject matter jurisdiction to cases involving a distinct injury to the plaintiff and ‘a real controversy between the parties, which ... will be actually determined by the judicial declaration sought.’ ” Brown, 53 S.W.3d at 305 (quoting Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 517-18 (Tex.1995)).

Forth Has No Standing as to Future Claims or Claim Practices

Fatal to Forth’s request for prospective relief is the standing requirement that a plaintiffs alleged injury will be redressed by the judicial declaration sought. See Brown, 53 S.W.3d at 305. When Forth conceded she was no longer an Allstate insured, she effectively removed herself from among those who could potentially sustain future harm resulting from Allstate’s ongoing claims review process. Because Forth is no longer insured by Allstate, she cannot be injured or threatened with injury by any of Allstate’s future practices and, thus, would have no personal stake in any litigation that might arise from them. See Novak, 52 S.W.3d at 707-08.

In Williams, the Texas Supreme Court was asked to determine whether two former inmates had standing to pursue declaratory and injunctive relief against Tarrant County in an attempt to stop a religious education program alleged to be in violation of constitutional protections. 52 S.W.3d at 175-76. The court reasoned that, because the plaintiffs were no longer inmates, they no longer faced the allegedly unconstitutional conduct about which they complained and would, thus, not be affected by the requested relief. Id. at 184. Similarly, a plaintiff, who sought to enjoin a manufacturer’s continuing distribution of certain health products that allegedly injured him, lacked standing because he testified he had no intention of ever again using the product. MET-Rx USA Inc. v. Shipman, 62 S.W.3d 807, 810-12 (Tex.App.-Waco 2001, pet. denied).

Once the controversy between two parties ceases to exist, the case becomes moot. That is, “the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Williams, 52 S.W.3d at 184 (quoting Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982)). Because Forth is no longer an Allstate insured, she has no standing to seek an injunction against Allstate’s ongoing policies. That relief will not redress any injuries she suffered in the past. See Shipman, 62 S.W.3d at 811.

Forth Has Standing as to Her Past Claims

Forth does, on the other hand, have standing to seek to require Allstate to review her previously processed claims. If she can prove her allegations—that she has suffered a distinct injury from Allstate’s alleged wrong—a real controversy exists between the parties (i.e., Forth’s injury is causally connected to Allstate’s allegedly unlawful conduct), and the controversy will be actually determined by the judicial remedies sought. See Brown, 53 S.W.3d at 305. Allstate presses two principal arguments on this issue.

Allstate first argues that, because Forth has abandoned any request for damages, she cannot seek an injunction requiring the review of earlier claims. But one can seek an injunction and declaratory relief without seeking a money judgment for damages. The question is whether she seeks redress of a justiciable issue. If Forth ultimately is awarded the relief she seeks, Allstate will be required to review her claims. She also asks that the order contain language that if, on Allstate’s ordered review of her claims, Allstate determines she has not been paid a “reasonable” amount for her claims, Allstate should then pay her enough to bring her total payments from Allstate to that newly-determined reasonable total. Though that payment, if any, would not be specified in the judgment Forth now seeks, such does not negate the fact that she has pled a justiciable controversy as to her past claim. A fair reading of her five pleading would provide her payment, not of a numerical sum reduced to judgment, but of whatever sum Allstate determines she is due, once it has reviewed her claim using the alternate method she describes.

Allstate also argues Forth does not have standing because she cannot demonstrate actual or even threatened injury. That is, even though Forth maintains that Allstate has refused to pay her medical bills in full, she has faded to allege that she has had to pay any of the disputed balance or that her medical providers have pursued her for any unpaid services. This position, however, is insupportable in light of Allstate’s contractual obligations. By the terms of its own policy, Allstate agreed to pay the reasonable expenses incurred for necessary medical services, not those actually paid by the insured.

The relevant portion of Forth’s personal injury protection coverage benefits under her Allstate policy confirms this:

Insuring Agreement

A. We will pay Personal Injury Protection benefits because of bodily injury:
1. resulting from a motor vehicle accident; and
2. sustained by a covered person.
Our payment will only be for losses or expenses incurred within three years from the date of the accident.
B. Personal Injury Protection benefits consist of:
1. Reasonable expenses incurred for necessary medical and funeral services.

(Emphasis added.) There is no requirement under the policy that an insured first demonstrate out-of-pocket expenses or potential future liability in order to demand payment. Under the circumstances, payment is restricted only by set policy limits and the reasonableness of the expenses incurred for medical services made necessary because of bodily injury resulting from a motor vehicle accident. There is nothing in the record indicating any policy conditions have not been met beyond the disputed reasonableness of the expenses.

In Texas, PIP benefits are recoverable regardless of whether an insured has been made to pay for necessary medical services. In Am. Indem. Co. v. Olesijuk, 353 S.W.2d 71, 72 (Tex.Civ.App.-San Antonio 1961, writ dism’d w.o.j.), for example, a United States Navy physician suffered bodily injuries when he was involved in a motor vehicle accident. After incurring expenses for the treatment he received at a civilian hospital, the physician was reimbursed by the Navy. Id. at 73. The defendant insurance company argued that, because the plaintiffs treatment expenses were paid by the government, he owed no debt, suffered no loss, and consequently incurred no actual expenses. The insurer, therefore, maintained it was not obligated under its policy to pay for the already-satisfied expenses. Id. The court disagreed:

The fact that the insured has other arrangements for the reimbursement of his expenses does not operate to relieve [the insurer] of its obligation as expressed in its contract in plain, certain and unambiguous language. If [the insurer] desired to limit its liability to actual loss or damage ultimately suffered by the insured, it could have and should have done so in its policy.

Id. (citation omitted).

In a similar case, which relied in part on Olesijuk, the Texas Supreme Court determined that an insurer was still obligated to pay expenses incurred despite direct payment of those expenses by Medicare. Black v. Am. Bankers Ins. Co., 478 S.W.2d 434 (Tex.1972). The court noted that the word “incur” means simply to become ha-ble and that the insured, who selected the treatment facility, “occasioned,” “caused,” or “brought on” the obligation to pay for the services rendered. Id. at 437 (citing Olesijuk, 353 S.W.2d at 72). The court held, as a matter of law, that, when an insured receives healthcare services, there is created an implied contract to pay for those services, and the insured is liable until he or she (or a third party) pays the bin. Id. The fact that an insured’s action may create a derivative obligation on the part of a third party to pay or reimburse the expenses does not in any way affect the insured’s obligation under the implied contract between the insured and the healthcare provider. Id. If a derivative ob-ligor fails to pay, the healthcare provider would still have some legal remedy against the insured. Id. at 437-38.

The facts — that Forth did not have any out-of-pocket expense or that Forth’s healthcare providers are now likely barred by the applicable statute of limitations from collecting from Forth the portion of her expenses left unpaid — do not change this analysis. See Tex. Civ. Prac. & ReM. Code Ann. § 16.004 (Vernon 2002). The point is that Forth incurred necessary medical expenses because of bodily injuries resulting from a motor vehicle accident and that Allstate, by the terms of its own policy, agreed to pay those expenses, if reasonable. Anything less than the payment of a reasonable amount of those expenses would result in a distinct injury to Forth — that is, receiving less than the sums for which she contracted. Therefore, Forth has standing to seek a new review, using a reasonableness standard, of her claim previously reviewed by MBRS and its eighty-fifth percentile standard.

Conclusion

Although the trial court was correct in dismissing that portion of Forth’s case addressing Allstate’s use of MBRS or its methodology on future claims, it erred in granting Allstate’s motion to dismiss as to its review of Forth’s past claim, because Forth does have standing to pursue declaratory and injunctive relief seeking Allstate’s re-evaluation of the process by which it determined the reasonableness of her personal injury protection claims. Accordingly, we vacate the trial court’s order of dismissal, to the extent it covered Forth’s past claims and those of the putative class, and remand for further proceedings consistent with this opinion.

      . Apparently, Forth adopted her novel strategy of disclaiming money damages to make the remedies of the members of her putative class more similar and thus to keep alive her hope of having the class certified. The issue before us remains, however, whether Forth has standing to pursue the causes of action she has pled and not relinquished.

        . Although the trial court never ruled on Forth’s motion to certify the putative class, the parties address Forth’s standing both as an individual and as a potential representative of the putative class.

      . Allstate, nevertheless, cites several opinions in support of its position that plaintiffs, in situations similar to Forth's, lack standing to sue because their alleged injuries are too speculative to form the basis of an injury in fact. See, e.g., Noah v. Gov’t Employees Ins. Co., No. SA-00-CA-018-WWJ (W.D.Tex. Apr. 5, 2001); Gloria v. Allstate County Mut. Ins. Co., No. SA-99-CA-676-PM (W.D.Tex. Sept. 29, 2000); Smith v. Allied Group, Inc., No. 2000-CV-822 (Colo.Dist.Ct. Jan. 25, 2002); LaMothe v. Auto Club Ins. Ass’n, 214 Mich. App. 577, 543 N.W.2d 42 (1995); McGill v. Auto. Ass’n of Mich., 207 Mich.App. 402, 526 N.W.2d 12 (1994); Kinnard v. Allstate Ins. Co., No. 992-00812 (Mo.Cir.Ct. Nov. 15, 1999). Most of these cases are unreported, and they are neither binding on this Court nor do they comport with Texas law.


author: DAVID GAULTNEY, Justice.

text:
    In re The COMMITMENT OF George LOWE.
    No. 09-03-475 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Sept. 2, 2004.
    Decided Dec. 9, 2004.

      Daniel E. Maeso, Nelda F. Williams, State Counsels for Offender, Huntsville, for appellant.
    Gina M. DeBottis, Special Prosecution Unit, Huntsville, for appellee.
    Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
   OPINION

DAVID GAULTNEY, Justice.

The State of Texas filed a petition to commit George Lowe as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.147 (Vernon 2003 and Supp.2004-05). A jury found Lowe suffers from a behavioral abnormality making him likely to engage in a predatory act of sexual violence, and found Lowe has serious difficulty in controlling his sexually violent behavior. The trial court entered a final judgment and order of civil commitment. Lowe presents four issues for appellate review.

In his first issue, Lowe contends the SVP statute is punitive. We have addressed and rejected this argument in other cases. See Beasley v. Molett, 95 S.W.3d 590, 607-08 (TexApp.-Beaumont 2002, pet. denied); In re Commitment of Graham, 117 S.W.3d 514, 514-15 (Tex.App.-Beaumont 2003, pet. denied); In re Commitment of Larkin, 127 S.W.3d 930, 931 (Tex.App.-Beaumont 2004, no pet.); In re Castillo, 144 S.W.3d 655, 656 (Tex.App.-Beaumont 2004, no pet.). For the same reasons, we reject Lowe’s argument here. Issue one is overruled.

In his second issue, Lowe contends certain portions of the SVP statute and the final judgment and order of commitment entered thereunder are unconstitutionally vague and, therefore, violate his due process rights. Lowe complains specifically of Section 841.082(a). See Tex. Health & Safety Code Ann. § 841.082(a) (Vernon Supp.2004-05). We have considered and rejected this and similar arguments in previous cases, and for the same reasons reject Lowe’s argument here. See Beasley, 95 S.W.3d at 608-10; see also In re Commitment of Mullens, 92 S.W.3d 881, 887-888 (Tex.App.-Beaumont 2002, pet. denied). Issue two is overruled.

In his third issue, Lowe argues Section 841.082(d) of the Texas Health and Safety Code is void for vagueness. (1) Section 841.082(d) provides:

Immediately after the case becomes final for purposes of appeal, the judge shall transfer jurisdiction of the case to a district court, other than a family district court, having jurisdiction in the county in which the person is residing, except that the judge retains jurisdiction of the case with respect to a civil commitment proceeding conducted under Subchapters F and G.

Tex. Health & Safety Code Ann. § 841.082(d) (Vernon Supp.2004-05). Lowe contends “[t]he vagueness of the statute creates uncertainty as to where [Lowe] and other SVPs are required to file appeal.” According to Lowe, section 841.082(d) purports to transfer appellate jurisdiction to another appellate district, contrary to the jurisdictional provisions of Section 22.201(j) of the Texas Government Code and the Texas Constitution. See Tex. Gov’t Code Ann. § 22.201(j) (Vernon 2004); see Tex. Const. art. V, § 6.

Words not defined in a statute are given their plain meaning, read in context, and construed according to the rules of grammar and common usage. See Tex. Gov’t Code Ann. § 311.011(a) (Vernon 1998); see also Waldie v. State, 923 S.W.2d 152, 157 (Tex.App.-Beaumont 1996, no pet.). We presume the legislature intends a just and reasonable result, a result feasible of execution, and the entire statute to be effective. See Tex. Gov’t Code Ann. § 311.021(2), (3), (4) (Vernon 1998). We further presume the legislature enacted the statute with knowledge of and with reference to existing law. Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301 (Tex.1990).

The legislature made the following findings in support of a civil commitment procedure for the long-term supervision and treatment of sexually violent predators:

The legislature finds that a small but extremely dangerous group of sexually violent predators exists and that those predators have a behavioral abnormality that is not amenable to traditional mental illness treatment modalities and that makes the predators likely to engage in repeated predatory acts of sexual violence. The legislature finds that the existing involuntary commitment provisions of Subtitle C, Title 7, are inadequate to address the risk of repeated predatory behavior that sexually violent predators pose to society. The legislature further finds that treatment modalities for sexually violent predators are different from the traditional treatment modalities for persons appropriate for involuntary commitment under Subtitle C, Title 7. Thus, the legislature finds that a civil commitment procedure for the long-term supervision and treatment of sexually violent predators is necessary and in the interest of the state, (footnote omitted).

Tex. Health & Safety Code Ann. § 841.001 (Vernon 2003). The provision at issue is found in Section 841.082 of the Health and Safety Code. That section provides as follows:

(a)Before entering an order directing a person’s outpatient civil commitment, the judge shall impose on the person requirements necessary to ensure the person’s compliance with treatment and supervision and to protect the community. The requirements shall include:
(1) requiring the person to reside in a particular location;
(2) prohibiting the person’s contact with a victim or potential victim of the person;
(3) prohibiting the person’s possession or use of alcohol, inhalants, or a controlled substance;
(4) requiring the person’s participation in and compliance with a specific course of treatment;
(5) requiring the person to:
(A) submit to tracking under a particular type of tracking service and to any other appropriate supervision; and
(B) refrain from tampering with, altering, modifying, obstructing, or manipulating the tracking equipment;
(6) prohibiting the person from changing the person’s residence without prior authorization from the judge and from leaving the state without that prior authorization;
(7) if determined appropriate by the judge, establishing a child safety zone in the same manner as a child safety zone is established by a judge under Section 13B, Article 42.12, Code of Criminal Procedure, and requiring the person to comply with requirements related to the safety zone;
(8) requiring the person to notify the case manager immediately but in any event within 24 hours of any change in the person’s status that affects proper treatment and supervision, including a change in the person’s physical health or job status and including any incarceration of the person; and
(9) any other requirements determined necessary by the judge.
(b) The judge may request assistance from the council in determining an appropriate residence for the person.
(c) The judge shall provide a copy of the requirements imposed under Subsection (a) to the person and to the council. The council shall provide a copy of those requirements to the case manager and to the service providers.
(d) Immediately after the case becomes final for purposes of appeal, the judge shall transfer jurisdiction of the case to a district court, other than a family district court, having jurisdiction in the county in which the person is residing, except that the judge retains jurisdiction of the case with respect to a civil commitment proceeding conducted under Subchapters F and G.
(e) The requirements imposed under Subsection (a) may be modified at any time after notice to each affected party to the proceedings and a hearing.

Tex. Health & Safety Code Ann. § 841.082 (Vernon Supp.2004-05).

Subsection (d) refers to the time when jurisdiction — other than for purposes of “a civil commitment proceeding conducted under Subchapters F and G” (2) — is to be transferred to a court in the county in which appellant resides for supervision and treatment pursuant to a final commitment order. Id. This jurisdiction transfer provision must be read in the context of the statute’s structure. In Subchapter C, the statute provides that “a petition alleging that the person is a sexually violent predator and stating facts sufficient to support the allegation” may be filed “in a Montgomery County district court other than a family district court[.]” See Tex. Health & Safety Code Ann. § 841.041(a) (Vernon Supp.2004-05). Subchapter D provides for the trial, and provides that either the State or the person is entitled to appeal a determination that the person is a sexually violent predator. See Tex. Health & Safety Code Ann. § 841.062 (Vernon 2003). Sub-chapter E, where the provision at issue is found, provides for the civil commitment of a person determined at trial to be a sexually violent predator. Section 841.081(a) provides in part:

The commitment order is effective immediately on entry of the order, except that the outpatient treatment and supervision begins on the person’s release from a secure correctional facility or discharge from a state hospital and continues until the person’s behavioral abnormality has changed to the extent that the person is no longer likely to engage in a predatory act of sexual violence.

Tex. Health & Safety Code Ann. § 841.01(a)(Vernon Supp.2004^05). The district judge in Montgomery County who tried the case is to “impose on the person requirements necessary to ensure the person’s compliance with treatment and supervision and to protect the community.” See Tex. Health & Safety Code Ann. § 841.082(a) (Vernon Supp.2004-05). Those requirements include requiring the person to reside in a particular location. See Id. Subchapter E provides for treatment and supervision of the committed person. See Tex. Health & Safety Code Ann. § 841.083 (Vernon Supp.2004-05). Compliance with the commitment order is supervised while the case is on appeal, because the commitment order is effective while the case is on appeal. It is in this context that Subsection 841.082(d) provides for transfer of certain jurisdiction to a district court, other than a family district court, having jurisdiction in the county in which the person is required to reside.

The entire jurisdiction over the case is not transferred. Section 841.082(d) provides “the judge retains jurisdiction of the case with respect to a civil commitment proceeding conducted under Subchapters F and G.” See Tex. Health & Safety Code Ann. § 841.082(d) (Vernon Supp.2004-05). Subchapter F provides that a person committed under Section 841.081 “shall receive a biennial examination.” See Tex. Health & Safety Code Ann. § 841.101(a) (Vernon 2003). The case manager provides a report of the examination to the judge. Id. The judge conducts a biennial review of the status of the committed person. See Tex. Health & Safety Code Ann. § 841.102 (Vernon 2003). The judge sets a hearing if the judge determines that a requirement imposed on the person should be modified or probable cause exists to believe that the person’s behavioral abnormality has changed to the extent that the person is no longer likely to engage in a predatory act of sexual violence. See Id. Subchapter G provides for the filing of petitions for release. See Tex. Health & Safety Code-Ann. § 841.121(a) (Vernon Supp.2003). The Montgomery County trial judge who committed the person retains jurisdiction over the commitment proceedings under Subchapters F and G as well as the initial commitment proceeding conducted under Subchapters D and E. The jurisdiction over the ease to be transferred under subsection 841.082(d) is to ensure the person’s compliance with treatment and supervision and to protect the community. See Tex. Health & Safety Code Ann. § 841.082(a) (Vernon Supp.2004-05).

Subdivision 841.082(d) does not address in which appellate court one is to file an appeal of the commitment order. See Tex. Health & Safety Code Ann. § 841.082(d) (Vernon Supp.2004-05). The subsection does not say the case is to be transferred for purposes of appeal. To read the statute as requiring the trial court that tried the case to, immediately after signing a final judgment, transfer the file to another district court for consideration of post-judgment motions would create an unworkable process. See Tex.R. Civ. P. 306a(l). The transferee court likely would have insufficient information on what had transpired at trial to consider post-trial motions. Furthermore, contrary to the State’s argument, the provision does not say the trial court is to wait until after all appeals are exhausted to transfer supervising jurisdiction. The commitment order, with certain exceptions, is effective immediately. The phrase “final for purposes of appeal” in Section 841.082(d) refers to the end of the trial court’s plenary power to change a judgment under the rules governing filing of post-trial motions and appeals, and refers to when a case becomes final at the trial court level. See generally Thomas v. Oldham, 895 S.W.2d 352, 356 (Tex.1995) (describing trial court’s plenary power in civil actions). This is the end of a discrete phase in the commitment proceeding. When all post-trial motions are resolved and the trial court concludes its work on the commitment order, to ensure compliance with treatment and supervision and to protect the community, supervisory jurisdiction is to be transferred to a proper court in the county where the committed person resides at that time.

The SVP statute does not have a provision outlining appeal procedure. An appeal of the trial court’s judgment and commitment order is to be filed with the court of appeals having jurisdiction as in any other case. This Court has jurisdiction over an appeal from a judgment by a Montgomery County district court. See Tex. Gov’t Code Ann. § 22.201(j); § 22.220 (Vernon 2004); see also Tex. Const, art. V, § 6. Despite Lowe’s vagueness argument, he properly filed his appeal with this Court. Section 841.082(d) is not void for vagueness. Lowe’s third issue is overruled.

In his fourth issue, Lowe argues his Fifth Amendment privilege against self-incrimination was violated when he was interviewed by the State’s experts and when he was required to give a deposition. At the beginning of Lowe’s deposition, Lowe’s counsel stated on the record:

For the record, we would object. We feel that our client, George Lowe, has a — kind of a blanket Fifth Amendment right not to answer questions or to give information that would be used in a proceeding which is going to deprive him of his liberty interests; and so, we would like for the record, again, to reflect that we do object to these proceedings on those grounds.

Shortly after the deposition began, Lowe refused to answer all questions posed to him, and he continued to do so until the judge instructed him to answer. Lowe filed a motion to exclude the evidence the State obtained by questioning him. The trial court denied his motion.

The United States Constitution and the Texas Constitution guarantee a person may not be compelled to testify or give evidence against himself. See U.S. Const, amend. V; Tex. Const. art. I, § 10; see Maness v. Meyers, 419 U.S. 449, 464, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975). The privilege may be asserted in civil cases when “the answer might tend to subject to criminal responsibility him who gives it.” Texas Dep’t of Pub. Safety Officers Ass’n v. Denton, 897 S.W.2d 757, 760 (Tex.1995) (quoting McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 69 L.Ed. 158 (1924)). Blanket assertions of the privilege in civil cases are impermissible. See In re Commitment of Browning, 113 S.W.3d 851, 865 (Tex.App.-Austin 2003, pet. denied). Rather, the privilege must be asserted on a question-by-question basis. Id. The trial court is to determine whether the assertion of the privilege is in good faith and is justifiable under the totality of the circumstances. See In re Speer, 965 S.W.2d 41, 46 (Tex.App.-Fort Worth 1998, orig. proceeding).

Lowe does not point to any questions that elicited information that would subject him to future criminal prosecution. “It is the trial court’s duty to consider the witness’s evidence and argument on each individual question and determine whether the privilege against self-incrimination is meritorious.” In re Speer, 965 S.W.2d at 46. Because the commitment proceeding is civil, Lowe did not have a Fifth Amendment privilege to refuse to answer all questions. See In re Browning, 113 S.W.3d at 865. Lowe’s fourth issue is overruled. The judgment of the trial court, is affirmed.

AFFIRMED.

      . See generally Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)(‘The degree of vagueness that the Constitution tolerates — as well as the relative importance of fair notice and fair enforcement— depends in part on the nature of the enactment.”); see also generally National Endowment for the Arts v. Finley, 524 U.S. 569, 588, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998)(“The terms of the [grant] provision are undeniably opaque, and if they appeared in a criminal statute or regulatory scheme, they could raise substantial vagueness concerns.”).

      . Subchapter F is entitled "Commitment Review.” Subchapter G is entitled "Petition for Release.” References