text:
    Marjorie Marie HALL, Appellant, v. SONIC DRIVE-IN OF ANGLETON, INC., and Michael Cantrell, Appellees.
    No. 01-03-01281-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 31, 2005.

      Judson Andrew Waltman, Kevin P. Parker, Mark Lanier, The Lanier Law Firm, P.C., Houston, TX, for Appellant.
    Mario Ernesto De La Garza, Michael J. Mazzone, Stephen John Maddex, Haynes and Boone LLP, Houston, TX, for Appel-lees.
    Panel consists of Justices TAFT, JENNINGS, and BLAND.
   OPINION

TERRY JENNINGS, Justice.

Appellant, Majorie Marie Hall, challenges the trial court’s rendition of summary judgment in favor of appellees, Sonic Drive-In of Angleton, Inc. (“Sonic”) and Michael Cantrell, in Hall’s suit for premises liability, assault, and intentional infliction of emotional distress. In three issues, Hall contends that the trial court erred in granting summary judgment on her (1) premises liability claim “in the face of evidence creating fact issues as to each element of her claim,” (2) assault claim based on the absence of an “inten[t] to injure,” and (3) intentional infliction of emotional distress claim as Sonic and Cantrell failed to move for summary judgment on that claim.

We reverse and remand.

Factual and Procedural Background

In her second amended petition, Hall alleged that, on February 28, 2001, while working as a shift supervisor at a Sonic Drive-In in Angleton, her hand was injured when she picked up a metal freezer cover that was lying on the floor in the middle of a walkway. The freezer cover was usually on the freezer, but Cantrell, Sonic’s manager, had removed the cover and had placed it on a table while repairing the freezer. Before Cantrell completed the repair, Brenda Ashworth, another Sonic employee, removed the cover from the table top and leaned it against one of the table’s legs. Hall then found the cover lying on the floor, and she attempted to pick it up; however, the edge of the freezer cover, which was “razor sharp,” sliced open her hand below her thumb, causing her to lose the use of her right hand.

Hall further alleged that, on April 24, 2002, after she returned to work, Cantrell grabbed her right wrist and tried to force her to hold a french-fry scooper in her right hand. As he was forcing the scooper into her hand, Cantrell told her that “[i]t don’t take a rocket scientist to scoop no damn fries. You don’t even have to use your thumb.” When Hall protested that Cantrell was hurting her, he belittled her for not being able to perform her work and said, “This is pathetic.”

Sonic and Cantrell jointly filed a summary judgment motion. Sonic asserted that it was entitled to judgment as a matter of law on Hall’s premises liability claim because (1) Sonic did not have actual or constructive knowledge that the metal freezer cover was on the floor; (2) the cover itself did not pose an unreasonable risk of harm; (3) Sonic exercised reasonable care to reduce or eliminate any alleged risk; and (4) Sonic did not proximately cause Hall’s hand injury. Sonic and Cantrell also asserted that they were entitled to judgment as a matter of law on Hall’s assault claim because Cantrell “did not touch [Hall] with the intent to cause her injury,” his “only intention was to encourage [Hall] to use her thumb and hand and to assist in her rehabilitation,” and, given their friendly relationship, he had “no knowledge or reason to believe that [Hall] would find his conduct offensive or provocative.” Finally, although Sonic and Cantrell did not expressly address Hall’s intentional infliction of emotional distress claim in their summary judgment motion, they contend on appeal that, because the motion addressed Hall’s assault claim, it encompassed Hall’s intentional infliction of emotional distress claim.

In support of their motion, Sonic and Cantrell attached the affidavits of Cantrell and Ashworth and portions of Hall’s oral deposition testimony. In his affidavit, Cantrell testified that, on February 28, 2001, while Hall was breading onion rings in the “food prep area,” he was performing maintenance on one of the refrigerator’s cooling units. Hall, Ashworth, and Cantrell were the only persons in the kitchen area that morning. The cooling unit was located behind a removable metal cover, “which is made of light-weight metal and is approximately two-feet long and one-foot high.” Cantrell explained that, in order to remove the freezer cover, a person “must grasp it firmly by the edges with both hands and slide the cover upward above one’s head.” That morning, Cantrell removed the cover with his bare hands and placed it on a table in the food preparation area. A few minutes later, a disturbance occurred outside the restaurant, prompting Cantrell to leave the restaurant. However, before departing, Cantrell told both Hall and Ashworth not to touch the freezer cover because he did not want the cover to be damaged. Cantrell explained that he had removed the cover on previous occasions and that, when he had handled the cover, including the morning when Hall injured her hand, he had “never noticed any sharp edges or noticed anything that would indicate that a person could be cut by lifting the cover or handling the cover in any fashion.” He noted that, other than Hall, no one had ever been cut when handling the freezer cover.

Cantrell further testified that he had been a manager at Sonic, had worked with Hall for about 14 years, and, during that time, had a “good, friendly relationship” with Hall. After Hall suffered her injury, he explained that one of Hall’s nurses told him that Hall “needed to use her thumb while at work for her thumb to fully recover.” Based on his observations of Hall after her return to work, Cantrell believed that Hall had been “reluctant to use her right hand at all.” He explained that, when he “handed Hall the fry scoop,” his “only intention was to encourage [Hall] to use her thumb and hand and to assist her in her rehabilitation.” He stated that he “did not touch [Hall] with the intent to cause her injury” and “had no knowledge and no reason to believe that [Hall] would find [his] conduct offensive.”

In her affidavit, Ashworth testified that, while Hall was breading onion rings in the food preparation area, Ashworth was in the kitchen, about 10 feet away, preparing food for customers. A few minutes after Cantrell left the restaurant, Ashworth wanted to slice tomatoes on the table upon which Cantrell placed the cover. Ash-worth, with her “bare hands,” picked up the freezer cover, “held it in one hand by the end, and leaned it up against the leg of the table.” Ashworth told Hall that she had leaned the cover against the table leg and not to touch the cover. A moment later, when a customer placed an order, Ashworth turned around and, with her back to Hall, went into the kitchen to prepare the order. “A minute or two” after Ashworth leaned the cover against the table leg, she turned toward Hall and saw her holding the end of the cover in her right hand. Hall, who was alone in the preparation area, was holding the same part of the cover that Ashworth had held when Ashworth had picked up the cover earlier.

In the excerpts of Hall’s oral deposition testimony attached to Sonic’s motion, Hall testified that, at the time of her injury, Hall had been a Sonic employee for more than 25 years and held the position of “crew chief’ or “supervisor.” Hall explained that part of her duties as a supervisor involved training new employees about Sonic’s safety policies. One of the safety policies that Hall had taught to new employees was that an employee should seek assistance if he comes upon a potentially dangerous tool or sharp object before attempting to pick it up. Hall also testified that she and Cantrell had worked together for about 14 years and had a “good relationship.” Hall also stated that when Cantrell touched her on April 24, 2002, he wanted to “show [Hall that she] did not have to use [her] thumb to scoop fries.”

In her response to Sonic’s and Cantrell’s summary judgment motion, Hall contended that Sonic had not conclusively disproved any of the elements of her premises liability claim because material fact issues existed as to each of the elements. Hall also asserted that Sonic and Cantrell had not conclusively disproved the elements of her assault claim and failed to move for summary judgment on her intentional infliction of emotional distress claim. To controvert Sonic’s summary judgment motion, Hall attached to her response her own oral deposition testimony as well as the oral deposition testimony of both Cantrell and Ashworth.

In the excerpts of Cantrell’s oral deposition testimony, Cantrell testified that he had removed the cover from the freezer and placed it on a nearby table in the preparation area in order to let the ice on the cooling unit defrost. He explained that the cover was a piece of sheet metal, approximately two feet by three feet in size. The cover was “U-shaped,” with edges approximately two inches wide. Cantrell explained that it took approximately one to two seconds to remove the cover from the freezer and that he could have replaced the cover in the same amount of time. However, before Cantrell replaced the freezer cover on the day in question, he was called away from the restaurant to chase after a bread truck that had just collided with the restaurant’s outdoor canopy. Cantrell told both Ash-worth and Hall that he was leaving but that he would be right back and that they should not touch the freezer cover because he did not want the cover to fall to the floor. Cantrell noted that prior to Hall’s injury, she had sprayed water on the preparation tables to clean them and that he did not “think [the cover] would have cut her if she hadn’t sprayed water and everything all over it, to where it would have slipped out of her hand, you know, because, when she sprayed, she sprayed onion ring batter and everything all — you know, everywhere.” Cantrell conceded that Hall’s injury would not have occurred if he had replaced the freezer cover prior to leaving the building to chase after the bread truck driver.

In her deposition, Ashworth testified that, although she heard Cantrell tell them to leave the cover alone when he left the restaurant, Ashworth lifted the freezer cover from the table top with her bare hands and leaned it against the table leg so that she could slice tomatoes on the table. Ashworth then told Hall not to touch the cover. When Ashworth left to prepare an order in the kitchen, Ashworth did see Hall reach down toward where Ashworth had placed the cover, but Ash-worth then turned away and had her back to Hall. Ashworth also explained that Ashworth had caused Hall’s injury by disregarding Cantrell’s orders and leaning the freezer cover against the table leg. In their depositions, both Cantrell and Ash-worth testified that Sonic had a policy that required employees to pick up stray objects from the floor and to put objects away after the employees were finished with them.

In her own deposition testimony, Hall testified that she was injured when she picked up the freezer cover that was laying in a pathway on the floor. As she picked up the freezer cover, the cover’s “sharp” edge sliced her hand open just below her thumb. As a result of this injury, Hall underwent emergency surgery and lost the use of her right hand. Hall noted that Cantrell did not give her any warnings about the freezer cover before he left the restaurant. Hall explained that she picked up the cover because she wanted to make sure the area was clean and that she was following Sonic’s safety policy by removing the freezer cover from the floor path. She noted that, although the cover, as a whole, was not “sharp,” the rims around the cover were sharp. Additionally, Hall denied spraying water on the table that morning.

Without specifying the grounds upon which it relied, the trial court granted Sonic’s and Cantrell’s summary judgment motion on all of Hall’s claims. Hall timely moved for a new trial, which was denied.

Standard of Review

Because the propriety of a summary judgment is a question of law, we review the trial court’s summary judgment decision de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156-57 (Tex.2004). To prevail on a summary judgment motion, a movant has the burden of proving that it is entitled to judgment as a matter of law and that there is no genuine issue of material fact. Tex.R. Crv. P. 166a(c); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 23 (Tex.1990); Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 670 (Tex.App.-Houston [1st Dist.] 1996, no writ). In deciding whether there is a disputed material fact issue precluding summary judgment, proof favorable to the non-movant is taken as true, and the court must indulge every reasonable inference and resolve any doubts in favor of the non-movant. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985); Lawson v. B Four Corp., 888 S.W.2d 31, 33-34 (Tex.App.-Houston [1st Dist.] 1994, writ denied). We may affirm a summary judgment only when the record shows that a movant has conclusively disproved at least one element of each of the plaintiffs claims or has conclusively established all of the elements of an affirmative defense as to each claim. Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Farah, 927 S.W.2d at 670. A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982). If the movant establishes a right to summary judgment, the burden shifts to the non-movant to present evidence raising a fact issue. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995).

A summary judgment must stand or fall on the grounds expressly presented in the motion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339-41 (Tex.1993). When a summary judgment does not specify the grounds on which the trial court granted it, the reviewing court will affirm the judgment if any theory included in the motion is meritorious. Browning v. Prostok, 165 S.W.3d 336, 344 (Tex.2005); Summers v. Fort Crockett Hotel, Ltd., 902 S.W.2d 20, 25 (Tex.App.-Houston [1st Dist.] 1995, writ denied).

Premises Liability

In her first issue, Hah argues that the trial court erred in granting summary judgment on her premises liability claim because the summary judgment evidence established material issues of fact as to each element of her claim. Sonic contends that the same evidence conclusively disproves each element of her claim.

In a premises liability case, the duty owed to the plaintiff depends on the plaintiffs status at the time of the incident. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 675 (Tex.2004). Here, the parties do not dispute that Hall, as Sonic’s employee, was an invitee when the incident in question occurred. See, e.g., Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex.1996). Thus, Sonic owed Hall a duty to exercise reasonable care to protect her from conditions on the property that created an unreasonable risk of harm of which Sonic knew or should have known by the exercise of reasonable care. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex.2000); H.E. Butt Grocery Co. v. Resendez, 988 S.W.2d 218, 219 (Tex.1999). This duty, however, neither made Sonic an insurer of Hall’s safety, nor did it make Sonic strictly liable for her injuries. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998).

The general elements of an invitee’s premises liability claim in which it is alleged that a dangerous condition is known to or discoverable by a possessor of land are well established. To prevail on such a claim, a plaintiff must prove that (1) the possessor had actual or constructive knowledge of some condition on the premises, (2) that posed an unreasonable risk of harm, (3) that the possessor failed to exercise reasonable care to reduce or eliminate the risk, and (4) the possessor’s failure to use such care proximately caused the plaintiffs injuries. Motel 6 G.P., 929 S.W.2d at 3; Restatement (Second) of ToRts § 343 (1965). Because Sonic asserts that the summary judgment evidence “conclusively disproves at least one essential element” of Hall’s claim, we address each element in turn.

Actual Knowledge

The threshold issue in a premises defect claim is whether the defendant had actual or constructive notice of the allegedly dangerous condition. Motel 6 G.P., Inc., 929 S.W.2d at 3. Generally, a plaintiff may satisfy the notice element by establishing that (1) the defendant placed an object or substance on the floor, (2) the defendant actually knew that an object or a substance was on the floor, or (3) that the object or substance was on the floor so long that it should have been discovered and removed by the defendant in the exercise of ordinary care. See Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex.1992). Actual knowledge is what a person actually knows as distinguished from constructive or imputed knowledge; that is, what a person after a reasonable inspection ought to know or have reason to know. Motel 6 G.P., 929 S.W.2d at 3-4. Here, although Sonic argued in its summary judgment motion that it conclusively established that it had neither actual nor constructive knowledge of the alleged defect, on appeal, Hall argues that, because Sonic’s employees created the dangerous condition, Sonic had actual knowledge of the condition.

Citing Taylor v. Albertsons, Inc., 814 S.W.2d 83, 85 (Tex.App.-Corpus Christi 1991, writ denied) and Price Constr., Inc. v. Castillo, 147 S.W.3d 431 (Tex.App.-San Antonio 2004, no pet. h.), Sonic argues that it conclusively established that it did not have actual knowledge of any dangerous condition because “only [Hall] knew the covering was on the floor.” Sonic asserts that the Taylor court “held that the defendant did not have actual knowledge that a stick of butter was on the floor, because there was no evidence that the defendant knew that it was on the floor until the plaintiff actually slipped and fell.” However, the court in Taylor was specifically addressing the plaintiffs appeal from a take-nothing judgment entered after the jury found that the defendant did not know, nor should it have known, that there was a stick of butter on the floor. 814 S.W.2d at 85. In concluding that the jury’s finding was not “against the great weight and preponderance of the evidence,” the court noted that the jury simply rejected the plaintiffs theory about how the stick of butter ended up on the floor and that this determination was properly within the province of the jury. Id. at 86. Taylor does not support Sonic’s contention that it disproved actual knowledge of the condition as a matter of law.

Relying on Castillo, Sonic concludes that Hall “cannot show that Sonic had actual knowledge of the alleged dangerous condition by showing that Sonic had actual knowledge that the cover was on the table or leaning against the table leg.” Sonic’s conclusion is erroneous. In Castillo, the court held that the plaintiffs evidence was legally insufficient to support the jury’s finding that the defendant had actual knowledge of an unreasonably dangerous condition at an automobile accident site. 147 S.W.3d at 437. In reaching its holding, the court emphasized that, although the plaintiff introduced evidence of numerous reports outlining certain deficiencies in the 2.25-mile stretch of highway constructed by the defendant, none of the reports dealt specifically with the plaintiffs alleged defects or the portion of the highway where the accident actually occurred. Id. In the instant case, however, we are not dealing with the legal sufficiency of reports about unobvious defects, but rather whether the summary judgment evidence in this case raised a fact issue as to whether Sonic had actual knowledge of the allegedly dangerous condition created by Ashworth’s placement of the thin metal cover against a table leg on the floor.

It is well settled that “[t]he fact that the owner or occupier of a premises created a condition that posed an unreasonable risk of harm may support an inference of knowledge.” Keetch, 845 S.W.2d at 265. Given such an inference, it is up to the fact finder to determine whether the owner or occupier knew or should have known of the condition. Id. Such an inference cannot be made as a matter of law unless knowledge is uncontroverted. Id.

Hall asserts that “the dangerous condition at issue was the leaving of the freezer cover in an exposed, dangerous and unstable position where it was foreseeable that it would fall to the floor.” In his affidavit, Cantrell stated that he placed the freezer cover on the table and that the cover was still on the table when he left to chase after the bread truck driver. Ash-worth testified that she removed the cover from the table and leaned it against the table leg on the floor. Thus, the evidence shows that Ashworth, a Sonic employee, knew the freezer cover was on the floor because she actually placed it on the floor, albeit against the leg of the table. Moreover, the evidence shows that Hall, another Sonic employee, actually saw the cover lying on the floor before she picked up the cover and injured herself. Accordingly, we hold that the summary judgment evidence did not conclusively establish that Sonic did not have actual knowledge of the condition.

Unreasonable Risk of Harm

A condition poses an unreasonable risk of harm for premises-defect purposes when there is a “sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen.” County of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex.2002). Foreseeability in this context “does not require that the exact sequence of events that produced an injury be foreseeable.” Id. Instead, only the general damage must be foreseeable. Id.

Sonic asserts that the summary judgment evidence conclusively established that the freezer cover did not pose an unreasonable risk of harm essentially because Cantrell and Ashworth handled it “without injury” and neither they nor Hall ever “knew the covering to cause injury.” Although evidence of other injuries attributable to the same condition “would be probative,” such evidence would not be “conclusive” on the question of whether the condition posed an unreasonable risk of harm. See Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754 (Tex.1970). Likewise, although evidence of the lack of any injuries attributable to the condition might be probative on the issue, it does not follow that such evidence conclusively establishes the absence of an unreasonable risk of harm.

The determination of whether a particular condition poses an unreasonable risk of harm is generally fact specific. As emphasized by the Austin Court of Appeals:

It is important to note that reasonableness determinations such as the one here are fact-intensive inquiries and, as such, are issues well-suited for a jury’s determination. Indeed, as the Texas Supreme Court commented in one of the cases cited by appellant, there is no definitive, objective test that may be applied to determine whether a specific condition presents an unreasonable risk of harm.

Reliable Consultants, Inc. v. Jaquez, 25 S.W.3d 336, 342 (Tex.App.-Austin 2000, pet. denied) (citing Seideneck, 451 S.W.2d at 754).

Here, we note that Hall testified in her deposition that the freezer cover’s “razor sharp edge” sliced her hand open below her thumb and that, as a result, she underwent emergency surgery and lost the use of her right hand. Hall also produced Cantrell’s deposition testimony in which he stated that he had removed the cover on three or four occasions in the four years preceding Hall’s accident and that he had not inspected the cover for a dangerous condition prior to laying it on the table. Moreover, Ashworth testified in her affidavit that she removed the freezer cover from the table and leaned it against the table leg on the floor. It would not be a stretch for a reasonable fact finder to con-elude that a very thin metal cover could easily slide or fall from such a position.

The exact sequence of events that produced Hall’s injury were disputed. After taking the proof favorable to Hall as true, and indulging every reasonable inference and resolving any doubts in favor of Hall, as we must, we conclude that Hall raised a genuine issue of fact regarding whether the placement of the freezer cover against the table leg on the floor posed an unreasonable risk of harm. Also, we note that, although Sonic asserts that it “conclusively established that the covering did not pose an unreasonable risk of harm,” Hall argued that the rims around the cover were “razor sharp.” Accordingly, we hold that the summary judgment evidence did not conclusively establish that the placement of the freezer cover did not pose an unreasonable risk of harm.

Failure to Exercise Reasonable Care

Hall asserts that the summary judgment evidence raised a fact issue as to whether Sonic failed to exercise reasonable care to reduce or eliminate any unreasonable risk of harm posed by the placement of the freezer cover. Sonic argues that, because Cantrell and Ashworth separately and specifically instructed Hall not to touch the freezer cover, it conclusively established that it exercised reasonable care to reduce or eliminate the alleged risk.

Cantrell did state in his affidavit that he told both Ashworth and Hall “not to touch the metal covering” because he did not want it “to be damaged.” Ashworth also testified that after she removed the cover from the table and leaned it against the leg of the table, she told Hall “not to touch it.” However, Hall specifically testified that Cantrell did not give her any warnings about the freezer cover. Also, Cantrell, in his deposition, further testified that, although it would have taken only one or two seconds to replace the cover, he did not do so before he left the restaurant. Moreover, in her deposition, Ashworth testified that, although Cantrell told both her and Hall not to remove the cover from the table, she, in fact, removed the freezer cover from the table and leaned it against the table leg on the floor. She also testified that, had she followed Cantrell’s instruction not to remove the cover from the table, Hall’s injury would not have occurred. Furthermore, both Cantrell and Ashworth testified in them depositions that Sonic had a policy that required employees to pick up stray objects from the floor and to put objects away after employees were finished with them.

After taking the proof favorable to Hall as true, and indulging every reasonable inference and resolving any doubts in favor of Hall, as we must, we conclude that Hall raised a genuine issue of fact as to whether Sonic failed to exercise reasonable care to reduce or eliminate any unreasonable risk of harm posed by the freezer cover. Accordingly, we hold that the summary judgment evidence did not conclusively establish that Sonic exercised reasonable care to reduce or eliminate the risk posed by the placement of the cover.

Proximate Cause

To prove an action for premises defect, the invitee must establish that the defendant’s lack of care proximately caused her injuries. Daenen, 15 S.W.3d at 99. The components of proximate cause are (1) cause-in-fact and (2) foreseeability. Leitch v. Hornsby, 935 S.W.2d 114, 118-19 (Tex.1996).

Cause-inr-Fact

Hall asserts that the summary judgment evidence shows that Sonic’s actions in removing the freezer cover and placing it on the floor were substantial factors in bringing about her injury. A defendant’s negligence is a cause-in-faet of the plaintiffs injuries if the negligent act or omission was a “substantial factor” in bringing about the injury, without which the harm would not have occurred. Doe v. Boys Clubs of Greater Dallas, 907 S.W.2d 472, 477 (Tex.1995).

Sonic argues that its actions were not substantial factors in bringing about Hall’s injury because Hall “alone decided to lift the covering and did so ... despite repeated instructions not to do so.” It also argues that any connection between its actions and Hall’s injuries are simply “too attenuated.” In its summary judgment motion, Sonic asserted that “Hall must have handled the cover in a way different from the way anyone else ever handled it” or “that she must have done something to make it dangerous to pick up.”

However, contrary to Sonic’s assertions, the simple fact remains that Hall testified that she picked up the freezer cover because she found it lying on the floor. Cantrell stated that he removed the freezer cover from the freezer and placed the cover on the table. Ashworth stated that, in spite of Cantrell’s instructions to the contrary, she did, in fact, remove the freezer cover from the table and place it on the floor, leaning it against the leg of a table. Moreover, Ashworth testified in her deposition that she “caused the accident” and that if she had “listened to Cantrell to begin with and not touched that tabletop, nobody would have gotten hurt.” Cantrell also testified in his deposition that if he had put the freezer cover back onto the freezer, Hall would not have been injured.

We conclude that the summary judgment evidence raised a question of fact on the issue of whether Sonic’s actions were substantial factors in bringing about Hall’s injury. Accordingly, we hold that the summary judgment evidence did not conclusively establish that Sonic’s conduct was not a cause-in-fact of Hall’s injury.

Foreseeability

In regard to the foreseeability issue, Hall asserts that “it was foreseeable that the freezer cover leaning on a table leg could slide to the floor and present a danger” to an invitee. Sonic contends that the summary judgment evidence “conclusively established” that the freezer cover “was safe and not foreseeably dangerous.”

The Texas Supreme Court has stated that foreseeability “means that the actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others.” Nixon, 690 S.W.2d at 549-50. Foreseeability does not require that a person anticipate the precise manner in which an injury will occur once he has created a dangerous situation through his negligence. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). Foreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable. Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996). As emphasized by the supreme court:

[I]t is not required that the particular accident complained of should have been foreseen. All that is required is “that the injury be of such a general character as might reasonably have been anticipated•” and that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen.

Nixon, 690 S.W.2d at 551 (citations omitted) (emphasis in original). Thus, the question of foreseeability involves a practical inquiry based on “common experience applied to human conduct.” City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex.1987) (citations omitted). It asks whether the injury might reasonably have been anticipated as a result of the defendant’s conduct. See id. at 517. However, foreseeability requires more than someone, viewing the facts in retrospect, theorizing an extraordinary sequence of events whereby the defendant’s conduct brings about the injury. Boys Clubs of Greater Dallas, 907 S.W.2d at 478.

In the instant case, the summary judgment evidence does show that both Cantrell and Ashworth handled the freezer cover with their “bare hands” just before Hall cut her hand. It also reveals that no one at the restaurant had ever been cut by handling the freezer cover. Additionally, Cantrell had previously handled the freezer cover on a few occasions and he had not noticed anything that would indicate that the edges of the freezer cover were sharp. Such evidence supports an inference that Sonic was not aware that the freezer cover could cause a person to suffer from a laceration, but it does not conclusively negate the foreseeability of the danger posed.

As noted above, Hall testified that when she picked up the freezer cover from the floor, the razor sharp edge of the cover sliced her hand open below her thumb. Although Cantrell had removed the cover on three or four occasions in the four years preceding Hall’s injury, he had not inspected the cover for dangerousness prior to laying it on the table. More importantly, Ashworth testified that she removed the freezer cover from the table and leaned it against the table leg on the floor. Again, a reasonable fact finder could infer that the very thin metal cover could easily slide or fall from its position on the table leg. Furthermore, both Cantrell and Ashworth testified that Sonic had a policy that required employees to pick up objects off of the floor and to put objects away when they were not in use. Finally, Hall testified that she picked up the freezer cover because she wanted to follow Sonic’s policy in picking up objects from the floor and she wanted to make sure that the restaurant was clean.

After taking the proof favorable to Hall as true, and indulging every reasonable inference and resolving any doubts in favor of Hall, as we must, we conclude that Hall raised a genuine issue of fact as to whether the general danger posed to Hall and the general character of her injury should have been reasonably anticipated by Sonic. Accordingly, we hold that the summary judgment evidence did not conclusively establish that the placement of the freezer cover was, as Sonic asserts, “safe and not foreseeably dangerous.”

Having concluded that Sonic did not conclusively disprove at least one of the elements of Hall’s premises liability claim, we hold that the trial court erred in granting Sonic’s summary judgment motion on the claim.

We sustain Hall’s first issue.

Assault

In her second issue, Hall argues that the trial court erred in granting Sonic’s and Cantrell’s summary judgment motion on her assault claim on the basis of Cantrell’s statement that he did not “intend to injure” Hall because an “intent to injure” is not a required element of an assault claim.

The elements of assault are the same in both the criminal and civil context. Forbes v. Lanzl, 9 S.W.3d 895, 900 (Tex.App.-Austin 2000, pet. denied). A person commits an assault if the person: (1) intentionally, knowingly, or recklessly causes bodily injury to another; (2) intentionally or knowingly threatens another with imminent bodily injury; or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Tex. Pen.Code Ann. § 22.01(a) (Vernon Supp.2004-2005); Forbes, 9 S.W.3d at 900.

In their summary judgment motion, Sonic and Cantrell asserted that they conclusively negated Hall’s assault claim as a matter of law because Cantrell stated in his affidavit that he did not “intend to injure” Hall when he grabbed her hand and attempted to force her to hold a french-fry scooper. However, because an assault, in regard to bodily injury, can be committed either knowingly or recklessly, as well as intentionally, Sonic is incorrect in its assertion that an “intent to injure” is the only way for Hall to prevail on her assault claim. Price v. Short, 931 S.W.2d 677, 688 (Tex.App.-Dallas 1996, no writ). Because Sonic and Cantrell moved for summary judgment based only upon the absence of Cantrell’s intent to injure, they did not conclusively negate Hall’s assault claim as a matter of law. Accordingly, we hold that the trial court erred in granting Sonic’s summary judgment motion on the assault claim.

We sustain Hall’s second issue.

Intentional Infliction of Emotional Distress

In her third issue, Hall argues that the trial court erred in granting Sonic’s and Cantrell’s summary judgment motion on her intentional infliction of emotional distress claim because Sonic and Cantrell did not include the claim in their summary judgment motion.

A motion for summary judgment must stand or fall on the grounds expressly presented in the motion. Tex.R. Crv. P. 166a; Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996); Perry v. Greanias, 95 S.W.3d 683, 700 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). We are restricted to reviewing the propriety of the granting of the summary judgment on the basis of the grounds actually asserted in the motion for summary judgment. Cates, 927 S.W.2d at 626; Perry, 95 S.W.3d at 700-01. It is reversible error to grant a summary judgment motion on a claim not addressed in the motion. Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.1983); Perry, 95 S.W.3d at 701.

Citing Cuyler v. Minns, 60 S.W.3d 209 (Tex.App.-Houston [14th Dist.] 2001, pet. denied), and Judwin Props., Inc. v. Griggs & Harrison, 911 S.W.2d 498 (Tex.App.-Houston [1st Dist.] 1995, no writ), Sonic argues that it has conclusively disproved intentional infliction of emotional distress as a matter of law because Hall’s assault and intentional infliction of emotional distress claims are based on the “same essential facts,” i.e., Cantrell’s grabbing Hall’s arm and forcing her to scoop french fries “with the intention of inflicting emotional distress.”

In Cuyler, the plaintiff sued his former attorneys on claims of legal malpractice, breach of contract, breach of fiduciary duty, and negligence, among other claims. 60 S.W.3d at 212. In response, the attorneys filed both traditional and no-evidence summary judgment motions, which the trial court granted. Id. The appellate court found that plaintiffs breach of contract and breach of fiduciary duty claims represented “an impermissible fracturing of her claim for legal malpractice.” Id. at 216. Thus, the court held that, since the traditional summary judgment on the plaintiffs legal malpractice claim was proper, summary judgment on the breach of contract and breach of fiduciary duty causes of action was also proper. Id.

In Judwin Properties, a law firm sued a client to recover for services rendered. 911 S.W.2d at 500. In response, the client asserted counterclaims based on the firm’s alleged disclosure of confidential and privileged information through the statement of services that had been attached to the firm’s petition. Id. The firm then filed a traditional summary judgment motion, asserting that it conclusively negated the element of damages in each of the client’s causes of action. Id. at 501. Before the summary judgment hearing, the client amended its counterclaim, alleging the same facts that supported his original counterclaim but expressly adding that the firm’s conduct constituted a breach of contract, breach of implied warranty, breach of fiduciary duty, negligence, and gross negligence. Id. The trial court granted the firm’s summary judgment motion. Id. On appeal, the client asserted that the trial court improperly granted the firm’s motion because his counterclaims for breach of implied warranty, breach of fiduciary duty, and negligence were not addressed in the firm’s motion. Id. However, the appellate court affirmed the summary judgment for the firm on the additional claims, holding that, because the client’s factual allegations of damages made in his original counterclaim were, “on their face, couched in tort, contract, and breach of fiduciary duty,” the law firm’s summary judgment motion contemplated the claims eventually specified in the client’s amended counterclaim. Id. at 503.

Here, however, Hall has not impermissibly fractured a claim; intentional infliction of emotional distress and assault are two distinguishable torts. In order to recover damages for intentional infliction of emotional distress, a plaintiff must establish that: (1) the defendant acted intentionally or recklessly; (2) the defendant’s conduct was extreme and outrageous; (3) the defendant’s actions caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 611 (Tex.1999). In making such a claim, a plaintiff does not have to establish that the defendant intentionally or recklessly caused her to suffer a physical injury or intentionally or knowingly caused an offensive or provocative contact. Hall’s allegation is that Cantrell’s actions, regardless of any lack of intent to cause bodily injury or offensive contact, including his belittling of her condition upon her return to work, caused her to suffer severe emotional distress, not just a physical injury.

Because Sonic and Cantrell’s summary judgment motion did not address Hall’s intentional infliction of emotional distress claim, we hold that the trial court erred in granting Sonic’s and Cantrell’s summary judgment motion as to this claim.

We sustain Hall’s third issue.

Conclusion

Having sustained all of Hall’s issues regarding her claims for premises liability, assault, and intentional infliction of emotional distress, we reverse the judgment of the trial court and remand the cause to the trial court for further proceedings in accordance with this opinion.

      . It is undisputed that Sonic is a non-subscriber to workers' compensation.


source: Caselaw Access Project

author: TIM TAFT, Justice.

license: Public Domain

text:
    The STATE of Texas, Appellant, v. Matthew Thomas GARRETT, Appellee.
    Nos. 01-04-00635-CR to 01-04-00637-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 31, 2005.

      David Bosserman, Keith G. Allen, Assistant Criminal District Attorneys, Jeri Yen-ne, Criminal District Attorney, Angleton, TX, for Appellant.

      Jerome Aldrich, Lake Jackson, TX, for Appellee.
    Panel consists of Justices TAFT, ALCALA, and HIGLEY.
   OPINION

TIM TAFT, Justice.

A Brazoria County Grand Jury indicted appellee, Matthew Thomas Garrett, for the three separate offenses of possession, with intent to deliver, of stanozolol (between 28 and 200 grams), cocaine (between 4 and 200 grams), and methylenedioxymeth-amphetamine (less than one gram). See Tex. Health & Safety Code Ann. §§ 481.114(c), 481.112(d), 481.113(b) (Vernon 2003). The State appeals from the trial court’s interlocutory order granting in part appellee’s motion to suppress. See Tex.Code Ceim. Peoc. Ann. art. 44.01(a)(5) (Vernon Supp.2004-2005). We reverse the order of the trial court and remand the cause with instructions for the trial court to enter an order denying that portion of the suppression motion that it previously granted.

Facts

State Trooper Blaine Chesser stopped appellee for speeding and mud flap violations. Trooper Chesser observed additional vehicle violations after the stop, including improper headlamp height, improper clearance lamps, and a window-tint violation. Trooper Chesser was unable successfully to show or to explain the windshield violations to appellee from the ground because of the truck’s height. Stepping up on the truck, Trooper Chesser opened the driver’s door to show appellee the violations. When Trooper Chesser opened the door, he saw a bottle of Crown Royal that appeared open in plain view on the back floorboard. After having retrieved the Crown Royal bottle, Trooper Chesser asked appellee if there were any “illegal substances” such as “illegal knives, guns, or narcotics” in the truck. Appellee replied, “No.” Trooper Chesser then asked if he could search the truck for any other “illegal contraband,” and appellee said, “Yes.” Trooper Chesser again asked appellee, “So you are telling me, yes, I can search your vehicle,” and appellee again answered affirmatively. During the post-consent search of the truck, Trooper Ches-ser found marihuana seeds, stems, and residue scattered throughout the truck and a vial containing a white residue on the back seat. Appellee never withdrew his consent “at any time” during the search of the truck.

Narcotics agent Officer Glenda Mendoza passed by the scene of the search and stopped. Trooper Chesser testified that Officer Mendoza informed him that, in the recent past, she had received a Crime Stoppers tip that appellee was carrying large amounts of narcotics in one of his truck’s door panels. Officer Mendoza tested the vial found in the truck for cocaine using a wintergreen field test. Trooper Chesser arrested appellee after the vial’s residue tested positive for cocaine. The officers called a drug dog to the scene to search the truck. Trooper Chesser testified that the dog positively alerted for narcotics. After the dog had alerted, the truck was driven to the Sheriffs Department. After a search warrant was obtained, the truck’s door panels were searched. Trooper Chesser testified that 11.51 grains of cocaine were found in the driver’s side door panel. The inventory of the items from inside the door panel listed nine balls of cocaine (11.61 grams), three ecstasy pills (0.83 grams), two sacks of clomiphene citrate pills (7.79 grams), one bottle of liquid steroids (stanozolol: 100 milligrams, net 30 milliliters), and two baggies of powder cocaine (1.92 and 0.5 grams).

Appellee filed a motion to suppress all evidence and statements obtained from the initial vehicle stop through the final search of the truck, alleging that the detention, arrest, searches, and seizures were illegal. The trial court partially denied appellee’s motion, reciting in the order that appellee had been legally detained by the law enforcement officers with sufficient cause to stop, to detain, and to search the truck at the time of the stop and that the evidence seized during the initial search was legally obtained. However, the trial court also partially granted appellee’s motion, reciting in the order that the search warrant that was eventually obtained was an evi-dentiary search warrant that did not explicitly list the five items seized from the truck’s door panel. Additionally, the court’s order stated that the items seized from the door panel were not in plain view. For these reasons, the court concluded that the items seized subsequent to the search warrant had been illegally obtained and consequently suppressed the evidence seized from the truck doors pursuant to article 18.02(10) of the Code of Criminal Procedure. See Tex.Code CRiM. PROC. Ann. art. 18.02(10) (Vernon 2005). The trial court’s order did not mention the events occurring between the arrest and the warrant, which would have included testimony concerning the Crime Stoppers tip and the dog-sniff alert. The State did not request any findings of fact or conclusions of law, and the trial court did not file any.

Suppression of the Evidence

In one point of error, the State contends that the trial court erred in partially granting appellee’s motion to suppress because (1) a search warrant was not necessary to search the truck, rendering any defects or omissions in the warrant irrelevant; (2) the warrant was not necessarily an eviden-tiary search warrant, so that items other than those listed in the warrant could be seized; and (3) the plain-view doctrine applied to evidentiary search warrants, so that, even if the warrant was evidentiary, officers could seize any contraband in plain view once the panels were removed.

A. Standard of Review

A trial court’s ruling on a motion to suppress lies within its discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). A trial court abuses its discretion if it refuses to suppress evidence that is obtained in violation of the law and that is, therefore, inadmissible under article 38.23 of the Code of Criminal Procedure. Erdman v. State, 861 S.W.2d 890, 893 (Tex.Crim.App.1993).

In reviewing a trial court’s ruling on a motion to suppress, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000). We give almost total deference to a trial court’s determination of historical facts, while we conduct a de novo review of a trial court’s application of the law to those facts. Id. (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997)). During a motion-to-suppress hearing, a trial court is the sole trier of fact; accordingly, the trial court may choose to believe or to disbelieve all or any part of a witness’s testimony. See State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000); see also King v. State, 35 S.W.3d 740, 742 (Tex.App.-Houston [1st Dist.] 2000, no pet.).

In reviewing a suppression ruling in a case in which the trial court does not file fact findings, “we view the evidence in the light most favorable to the trial court’s ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.” Ross, 32 S.W.3d at 855; see King, 35 S.W.3d at 742. In the absence of fact findings and legal conclusions, if the trial court’s suppression ruling “is correct on any theory of law applicable to the case, the decision will be sustained.” Ross, 32 S.W.3d at 855-56.

The State contends that the issue on appeal does not turn in any way on the credibility of the witnesses, but, rather, on the classification of the search warrant and property seized. The State argues that we must, therefore, review the trial court’s ruling entirely de novo. Appellee responds that the complained-of suppression ruling is supported by the theory that the trial court disbelieved the officers’ testimony, in whole or in part. Consequently, appellee argues that the issue on appeal turns on witness credibility and that we must, therefore, review the trial court’s ruling with “almost total deference.” See Guzman, 955 S.W.2d at 89. In support of his position, appellee asks this Court to view every historical fact as if the trial court had granted the entire motion to suppress.

We do not agree entirely • with either party: the State incorrectly assumes that no determinations of historical fact could be relevant to that portion of the trial court’s ruling granting appellee’s motion, while appellee incorrectly assumes that all implied historical facts must be construed against the State’s position on appeal. Because the trial court made a Solomonic ruling on the motion to suppress, however, we must view each aspect of the ruling individually. That is, we must view the evidence leading up to appellee’s arrest in the. light most favorable to the denial of that portion of the suppression motion (ie., in a light that happens to be favorable to the State’s position on appeal), while we must view the evidence from the arrest forward in favor of the granting of that latter portion of the suppression motion (ie., in a light that happens to be favorable to appellee’s position on appeal).

B. The Law

On a motion to suppress, the accused bears the burden of rebutting the presumption that police conduct was proper. McGee v. State, 105 S.W.3d 609, 613 (Tex.Crim.App.2003). The accused satisfies the burden by showing that the search or seizure occurred without a warrant. Id. The burden of proof then shifts to the State to produce a warrant or to prove the reasonableness of the disputed conduct. Id. If the State produces a warrant, the burden of proof returns to the accused to show that the warrant was invalid. Russell v. State, 717 S.W.2d 7, 9-10 (Tex.Crim.App.1986).

If the State conducted a warrant-less search, the State must prove that the warrantless search or seizure was reasonable. Id. “Pursuant to the Fourth Amendment, a warrantless search of either a person or property is considered per se unreasonable subject to a ‘few specifically defined and well established exceptions.’ The Supreme Court has held that voluntary consent to search, search under exigent circumstances, and search incident to arrest are among these exceptions.” McGee, 105 S.W.3d at 615 (quoting Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 2135, 124 L.Ed.2d 334 (1993)). Furthermore, the Supreme Court has found that, “if a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more.” Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031 (1996). Put simply, the State may show a warrantless search’s or seizure’s reasonableness by showing that a well-recognized exception to the warrant requirement was met. See McGee, 105 S.W.3d at 613.

“An invalid search warrant does not preclude inquiry into whether or not the search could have been upheld under a warrant exception.” Powell v. State, 898 S.W.2d 821, 827 (Tex.Crim.App.1994) (considering automobile warrant exception). When a warrant that is procured is defective, “the search should be treated as one proceeding without a warrant and the facts of the case should be reviewed to determine whether the search can be upheld under a warrant exception.” Adkins v. State, 717 S.W.2d 363, 365-66 (Tex.Crim.App.1986). “[T]he question of whether a search is reasonable under the Fourth Amendment is not calculable under a per se rule but should be decided on a case by case basis. The facts of a particular case either excuse or proscribe the actions of the officers involved. The fact that the procurement of a warrant was attempted does not insulate those facts from review.” Id. at 366 (citations omitted).

C. Consent

The State argues that appellee voluntarily consented to a search of his truck for illegal contraband, making any defect or omission in the later obtained warrant irrelevant, so that the search of the truck’s door panel and the seizure of contraband from it was legal. One of the established exceptions to both the requirements of a warrant and probable cause is a search conducted pursuant to consent. Corea v. State, 52 S.W.3d 311, 315-16 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd) (citing Schneckloth v. Bustamante, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973)). “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness, ie., what the typical reasonable person would have understood by the exchange between the officer and the suspect.” Simpson v. State, 29 S.W.3d 324, 330 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd); see Florida v. Jimeno, 500 U.S. 248, 250-51, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991). The scope of a search is generally defined by its expressed object, and a suspect may limit the scope of the search to which he consents. Simpson, 29 S.W.3d at 330; see Jimeno, 500 U.S. at 251, 111 S.Ct. at 1804.

Absent an officer’s request or a suspect’s consent limiting a search to a particular area of a vehicle, such as the trunk or passenger compartment, a request to search “the car” reasonably includes all areas of the vehicle and excludes none. Simpson, 29 S.W.3d at 330. When an officer specifically asks a suspect if he can search a vehicle for illegal contraband, and the suspect answers affirmatively, a reasonable person would construe the consent to extend to any area of the vehicle in which such objects could be concealed. Id.

Because the trial court denied appellee’s motion to suppress the evidence obtained pursuant to the initial search- — -which, according to Trooper Chesser’s testimony, occurred immediately after appellee consented to that initial search — -we infer that the trial court believed that appellee in fact consented to a search of the truck for “illegal contraband.” Nothing in the evidence relevant to consent, when viewed in the appropriate light, indicates that appel-lee limited his consent to a particular area of his truck. Because illegal contraband could have been concealed inside the door panels of appellee’s truck, a reasonable officer would have construed appellee’s consent to extend to that area. See Simpson, 29 S.W.3d at 330; see also Jimeno, 500 U.S. at 251, 111 S.Ct. at 1804. It would also be reasonable to construe ap-pellee’s consent, which nothing shows was revoked, as extending to the search of the truck following its removal to the sheriffs department after appellee, who had been driving alone, was arrested for the discovery of the marihuana remnants and drug paraphernalia that the court found had been legally seized. See Delgado v. State, 718 S.W.2d 718, 721 (Tex.Crim.App.1986) (“One of the instances in which an automobile may be validly impounded ... is where the driver is removed from his automobile and placed under custodial arrest and no other alternatives are available other than impoundment to insure the protection of the vehicle.”); see also Estrada v. State, 30 S.W.3d 599, 605 (Tex.App.-Austin 2000, pet. ref'd) (in holding that search of car door and seizure of cocaine from within was legal, stating, “Because the search at the [service] station was a continuation of the search begun beside the highway, to which appellant gave his voluntary and unrevoked consent, the question of probable cause is again irrelevant.”); Fields v. State, 932 S.W.2d 97, 105 (Tex.App.-Tyler 1996, pet. ref'd) (holding that search of car at sheriffs office was valid because defendant and passenger consented without limitation at side of highway and because neither objected to car’s movement to other location to conduct search due to inclement weather and construction in area of stop); cf. Texas v. White, 423 U.S. 67, 68, 96 S.Ct. 304, 305, 46 L.Ed.2d 209 (1975) (holding that probable cause to search that existed at roadside still existed when car was transported to station house, where car was searched, despite dissenting Justice’s contention that nothing showed that it would have been impractical or unsafe to search car at roadside); Chambers v. Maroney, 399 U.S. 42, 52 & n. 10, 90 S.Ct. 1975, 1981-82 & n. 10, 26 L.Ed.2d 419 (1970) (holding that probable cause to search that existed in parking lot where stop occurred still existed when car was transported to station house for search, although noting, in dictum, that taking car to station house was not unreasonable because of circumstances at place of stop).

Consequently, as a matter of law, appel-lee’s consent obviated the need for a search warrant to search the door panels or to seize items visible once the officers removed the panels. See Corea, 52 S.W.3d at 315-16 (recognizing consent as warrant exception). Any deficiencies in the warrant were thus irrelevant. See Adkins, 717 S.W.2d at 365-66. Therefore, we hold that the trial court erred in granting ap-pellee’s motion to suppress the contraband seized from inside the door panel. Given our disposition, we need not reach the parties’ remaining arguments.

Conclusion

We sustain the State’s sole point of error. We reverse the order of the trial court and remand the cause with instructions for the trial court to enter an order denying that portion of the suppression motion that it previously granted.

      . Trial court cause number 42,960; appellate cause number 01-04-00635-CR.

      . Trial court cause number 42,961; appellate cause number 01-04-00636-CR.

      .Trial court cause number 42,962; appellate cause number 01-04-00637-CR.

      . Accord Adkins v. State, 717 S.W.2d 363, 365-66 (Tex.Crim.App.1986) (considering automobile warrant exception); Amos v. State, 819 S.W.2d 156, 160 (Tex.Crim.App.1991) (same); Zarychta v. State, 44 S.W.3d 155, 168 n. 6 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (discussing probable-cause warrant exception); see 40 Dix & Dawson, Texas Practice: Crim. Practice & Procedure § 12.53 (2d ed. 2001) ("If a situation fits within the vehicle exception, the reasonableness of a warrant-less search is unaffected by a defendant’s affirmative showing officers had an opportunity to obtain a warrant. It is not even affected by a showing the officers did obtain a warrant (albeit a defective one).”).

      . Consent to search, by itself, does not necessarily allow the impoundment of a vehicle to conduct the search, and our opinion is not to be read as so holding. Here, however, appel-lee’s arrest, after the finding of contraband that the court concluded was legally seized, along with the lack of any evidence in the record that appellee revoked his earlier consent, would have led a reasonable person to understand that appellee’s consent extended to a search after impoundment.


author: JANE BLAND, Justice.

text:
    Ducthanh Thi NGUYEN, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00449-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 31, 2005.

      Gary Michael Polland, Polland & Cook, L.L.P., Lance C. Hamm, Houston, TX, for Appellant.
    Amanda J. Peters, Assistant District Attorney, Charles A. Rosenthal, Jr., District Attorney-Harris County, Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, KEYES, and BLAND.
   OPINION

JANE BLAND, Justice.

A jury convicted Ducthanh Thi Nguyen of insurance fraud, and the court assessed punishment at five years’ probation. On appeal, Nguyen contends (1) the evidence is not legally or factually sufficient to support the conviction of insurance fraud; (2) the trial court erred in admitting evidence of an extraneous homicide; (3) the trial court erred in not instructing the jury on her accomplice theory; and (4) the trial court erred in admitting hearsay evidence. We hold that the evidence supports Nguyen’s conviction for insurance fraud, that the trial court did not err in admitting evidence of a homicide or in charging the jury, and that Nguyen waived her hearsay argument. We therefore affirm.

Facts

In the early morning of April 11, 2003, at approximately 4:29 a.m., Nguyen called the Houston Police Department and reported her 2002 BMW X5 SUV (“BMW”) stolen. Nguyen told the police that, hours earlier, she had driven the BMW to attend a birthday party at Gatsby’s night club in Houston, Texas, accompanied by her cousin Jacqueline Bahutar. While in the club, Nguyen gave Bahutar the keys to the BMW. When they were ready to leave the club, they could not find the keys. They walked to where the BMW was parked and noticed that it was missing. Nguyen reported that whomever took the keys must have hit the panic button on the key chain to find the car.

Nguyen had an automobile insurance policy with Farmer’s Insurance. The next day, on April 11, 2003, at approximately 2:15 p.m., Nguyen called a Farmer’s Insurance service help line and reported her BMW stolen. Nguyen’s claim was referred to an adjuster, Allison Wood. On April 15, 2003, Wood began a standard claim review by mailing Nguyen a proof of loss and physical damage form, and ordering a copy of the police report. Wood noted from her copy of the police report that Nguyen claimed that the theft had resulted in a $65,000 loss to her.

On April 14, 2003, an anonymous caller telephoned 9-1-1 and reported that individuals were stripping a car involved in a possible homicide, on property owned by Terrence and Tracy Murray, located in Bastrop, Texas. On April 15, 2003, officers from the Bastrop County Sheriffs Department drove to the Murrays’ property. The police found several people in the process of cutting Nguyen’s BMW into pieces and burying it on the property. The BMW was not just stripped for parts; it was completely dismantled. All that remained of the BMW was a basic frame and an engine — and the engine had been beaten with a sledgehammer in an apparent attempt to destroy it. A Galveston police officer testified that it would have taken several days to dismantle the BMW to leave it in the condition in which it was found.

Four people were present at the property when the Bastrop police arrived: Michael Pedraza, James Finely, Terrance Murray, and Traci Murray. The police separately interviewed these people, and they consistently reported that the BMW had been brought to the Bastrop property around April 8, 2003. Traci Murray testified that Pedraza drove the vehicle to their property in the evening of April 8, 2003— two days before Nguyen claimed that she had driven it to the club where it had been stolen. Traci Murray also testified that on April 9 or 10, Pedraza used a blow torch to begin dismantling the BMW.

Traci Murray testified that Pedraza had promised to pay the Murrays to store the BMW and later had promised to pay them more money to bury the BMW on the Murrays’ property. James Finley reported to the police that he owed Pedraza money and that he had agreed to help dismantle the BMW in payment of the debt. Pedraza reported to the police that he was destroying the BMW because it was evidence in a homicide investigation regarding an unidentified body found in Galveston. He later stated that he stole the car from someone who owed him money. Pedraza was able to give the police accurate directions to Nguyen’s neighborhood, which was different from the address on her license.

After several attempts to contact her, on April 21, 2003, Wood spoke with Nguyen and scheduled a date to obtain her recorded statement. Wood also sent Nguyen claim forms to complete. In connection with completing these forms, Nguyen told Wood that her husband had installed special rims and tires on the BMW. Wood told Nguyen that because she lacked receipts for these additions she could not claim them.

On April 25, 2003, Nguyen returned her Proof of Loss and Facts of Occurrence statements to Farmer’s Insurance. On the Proof of Loss form, Nguyen reported that she had purchased the BMW for $55,000 plus tax, title and license, and that she owed $48,441.65 on a corresponding loan. Nguyen did not estimate the worth of the BMW.

Nguyen gave a recorded statement to Wood on April 29, 2003. In the statement, Nguyen claimed that her BMW had been stolen from Gatsby’s parking lot on the evening of April 11, 2003. She claimed that she had lost her keys in the bar. Wood determined that the BMW was worth $44,800 plus title, tax and license.

On April 30, 2003, the Bastrop Police Department called the Houston Police Department to confirm the identification of a missing BMW. The identification number of the BMW found on the Murrays’ property matched Nguyen’s BMW. With this information, the Houston Police Department called Farmer’s Insurance, and learned that Nguyen had made an insurance claim. Bahutar, the cousin who allegedly had accompanied Nguyen on the night that Nguyen reported her BMW stolen, refused to speak to an investigator from Farmer’s Insurance and failed to return any phone calls made by the Houston Police Department.

Legal Sufficiency

Nguyen contends that the evidence is not legally sufficient to support her conviction for insurance fraud because the State did not prove that her statements to Farmer’s Insurance were made as a claim for payment equaling more than $20,000, and were made with the intent to defraud Farmer’s Insurance out of that payment. Specifically, Nguyen contends that, because she did not estimate the worth of her BMW on the Proof of Loss form, she never sought reimbursement from Farmer’s Insurance, and thus no evidence exists that she intended to defraud it.

We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000). In a legal sufficiency review, we may not substitute our own judgment for that of the fact finder. Id.

A person commits the offense of insurance fraud if,

with the intent to defraud or deceive an insurer, the person ... presents to an insurer in support of a claim for payment under a ... property and casualty insurance policy a statement that the person knows contains false or misleading information concerning a matter that is material to the claim, and the matter affects a person’s right to a payment or the amount of payment to which a person is entitled.

Tex. Pen.Code Ann. § 35.02(a) (Vernon Supp.2004-2005). A defendant’s intent may be inferred from her actions, words, and conduct. Henderson v. State, 825 S.W.2d 746, 749 (Tex.App.-Houston [14th Dist.] 1992, pet. ref'd). Whether property is damaged or lost in the manner and under the circumstances described in a statement relating to an insurance claim is “material to a claim for payment under an insurance policy.” Tex. Pen.Code Ann. § 35.02(c)(8) (Vernon Supp.2004-2005).

In the present case, Nguyen called the Farmer’s Insurance hotline to report that her BMW had been stolen on April 11, 2003 — two days after it had, in fact, arrived in Bastrop, Texas to be destroyed. Nguyen spoke with Wood several times regarding her claim. She provided Wood with a recorded statement. Nguyen discussed with Wood the items that she could include in her claim — for example, that equipment added could not be included unless she had matching receipts. Nguyen filed a “Proof of Claim” and “Facts of Occurrence.” In these documents, Nguyen reports that her BMW was stolen on April 11, 2003, that she purchased the BMTW on March 20, 2002, that the purchase price was $55,000, plus title, tax and license, and that she had a loan balance of $48,441.65. The Proof of Loss form asked for the actual cash value of the BMW. Nguyen reported that she was “not sure how to calculate” it. Wood testified that it is Farmer’s Insurance’s policy to review police reports in its investigation of its claim, and that Nguyen reported to the police that her BMW was worth about $65,000. Based on this evidence, together with the evidence of what actually happened to the BMW, a rational fact finder reasonably could find that Nguyen intended to submit a fraudulent insurance claim for payment in excess of $20,000.

We are not persuaded by Nguyen’s contention that, as a matter of law, she was not claiming a loss because she put a dash through the space on the Proof of Loss form which requested the amount of the entire loss. First, Nguyen placed dashes in other spaces for which she did not know the specifics, such as the department or division of the police to which she had reported her loss. Second, Wood explained that the total amount of the claim would differ from the worth of the vehicle if the insured had luggage or other valuables in the car. Nguyen did not claim personal items in the BMW, making this space inapplicable to Nguyen’s claim.

Neither are we persuaded by Nguyen’s reliance on Logan v. State, 89 S.W.3d 619 (Tex.Crim.App.2002), for her contention that a defendant must provide a stated value of loss to her insurance company before she can be convicted of insurance fraud. In Logan, the defendant made a claim to her insurance company for damages sustained in a house fire — both to the house sfrueture and to her personal belongings therein. Id. at 619-20. An investigation determined that the defendant had moved the personal belongings included in her insurance claim to another location before the fire. Id. at 621-22. The defendant thus fraudulently had included the worth of her personal belongings in her claim. The court determined that the evidence was not legally sufficient to convict the defendant for fraud as to the amount of her entire insurance claim, but it was sufficient to convict her for the fraudulent amount actually claimed — the amount the defendant stated as the value of her personal belongings. Id. at 624, 630. Here, the evidence supports the conclusion that Nguyen’s entire claim was fraudulent, not a portion of it. Logan therefore does not support Nguyen’s contention that the evidence is legally insufficient to support her conviction.

Factual Sufficiency

Nguyen further contends that the evidence is factually insufficient to support a conviction for insurance fraud because the evidence is insufficient to establish the essential element of intent. Nguyen specifically contends that she did not claim a dollar amount on her Proof of Loss, and therefore the State failed to carry its burden to prove that Nguyen filed her claim “with intent to defraud or deceive an insurer.”

In our review of the factual sufficiency of the evidence, we view all of the evidence neutrally, not in the light most favorable to the verdict, 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.” Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App.2004); see also Johnson v. State, 23 S.W.3d 1, 6-7 (Tex.Crim.App.2000). Although our analysis considers all the evidence presented at trial, the trier of fact is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to their testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986). In conducting a factual sufficiency review, we discuss the evidence that Nguyen contends most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003). Unless the available record reveals that a different result is appropriate, we defer to the jury’s determination concerning the weight to place upon conflicting testimony, because resolution of facts often turns on evaluation of credibility and demeanor. Johnson, 23 S.W.3d at 8.

Here, Nguyen repeats that insufficient evidence exists that she made a claim for any dollar amount. She relies on testimony from one of the police officers that Nguyen does not claim an amount for payment or reimbursement. She also relies on the dash being placed through the space on the Proof of Loss form which requested the amount of the entire loss.

The evidence presented against Nguyen in connection with the amount of her claim includes the Proof of Loss, her recorded statement to Wood, and Wood’s testimony concerning her conversations with Nguyen. The evidence indicates that Nguyen submitted a claim to Farmer’s Insurance and that the claim was for the value of the one-year-old BMW in “excellent” condition. Although Nguyen declared that she did not know how to determine this value, there was evidence that she thought it to be between $65,000 (the worth she reported to the police) and $48,441.65 (the amount she reported as the pay-off).

Reviewing the evidence submitted in a neutral light, we conclude that a rational fact finder could have concluded beyond a reasonable doubt that Nguyen intended to defraud Farmer’s Insurance by submitting a claim. See Escamilla, 143 S.W.3d at 817. The evidence supporting the verdict is not so weak that the jury’s finding is clearly wrong and manifestly unjust; nor is Nguyen’s contrary evidence so strong that the State’s burden to prove the charged offense beyond a reasonable doubt could not have been met. See id. We therefore conclude that the evidence is factually sufficient to support Nguyen’s conviction for insurance fraud.

Extraneous Offense

Nguyen contends that the trial court erred in admitting evidence of an extraneous offense, because evidence of her vehicle’s connection to a homicide in Galveston is inadmissible under Texas Rule of Evidence 404(b) and the balancing test of Texas Rule of Evidence 403.

We review the trial court’s determination of admissibility under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex.Crim.App.1990). Rule of Evidence 404(b) prohibits the use of evidence of a defendant’s other bad acts or wrongs to prove the character of the defendant “in order to show action in conformity therewith.” Tex.R. Evid. 404(b). Such evidence of extraneous offenses may be admitted for other purposes, however, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. See id. It may also be admitted as contextual evidence. “[I]t has long been the rule in this State that the jury is entitled to know all the relevant surrounding facts and circumstances of the charged offense; an offense is not tried in a vacuum.” Moreno v. State, 721 S.W.2d 295, 301 (Tex.Crim.App.1986).

Here, the State contends that Rule 404(b) does not apply because, although the evidence indicates that Nguyen’s BMW was involved in a separate unsolved homicide, the State presented no evidence that Nguyen is the one who committed the homicide. To constitute an extraneous offense, the evidence must show a crime or bad act and the defendant’s connection to it. Lockhart v. State, 847 S.W.2d 568, 573 (Tex.Crim.App.1992). Evidence of an extraneous offense necessarily involves evidence of prior criminal conduct by the defendant. “If the evidence fails to show that an offense was committed or that the accused was connected to the offense, then evidence of an extraneous offense is not established.” McKay v. State, 707 S.W.2d 23, 32 (Tex.Crim.App.1985).

Although the State did not argue that Nguyen committed the homicide, it implied that she somehow was involved. Specifically, the State argued to the court that the BMW’s link to the homicide was a motive for Nguyen to commit insurance fraud — Nguyen needed to have the BMW destroyed because it was linked to the homicide, and after it was destroyed, she wanted to be reimbursed for it. The State solicited testimony from one of the police officers that the BMW was reported stolen to cover up another crime: “It was my belief that the vehicle had been reported stolen by [Nguyen], and, in fact, wasn’t a stolen vehicle at any time. Was, in fact, reported stolen to cover other crimes and to obtain financial gain.” Thus, evidence that the car was destroyed because it was linked to a homicide suggests or implies Nguyen’s commission of an extraneous offense. See Holmes v. State, 962 S.W.2d 663, 672-73 (Tex.App.-Waco 1998, pet. ref'd) (police officer’s statement that his testimony was restricted by court, approaches “inappropriate testimony suggesting or implying an extraneous offense”).

The mere fact that the evidence concerns an extraneous offense does not, however, make the evidence inadmissible. Here, the evidence of the BMW’s connection to a homicide was not admitted to prove Nguyen’s character. Rather, the State used it to explain one of Nguyen’s motives for the insurance fraud. In her brief to this Court, Nguyen explains that “[a]ecording to the prosecution’s theory of the case, Ms. Nguyen’s motive for reporting her car stolen was because her car was involved in a homicide.” Motive is an appropriate basis to admit extraneous offense evidence. See Tex.R. Evid. 404(b).

Moreover, the evidence is same transaction contextual evidence, which is an exception to Rule 404(b). See Rogers v. State, 853 S.W.2d 29, 33 (Tex.Crim.App.1993) (“Same transaction contextual evidence is deemed admissible as a so-called exception to the propensity rule where ‘several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others.’ ”). The purpose of admitting extraneous evidence as same transaction contextual evidence is to place the instant offense in context. Swarb v. State, 125 S.W.3d 672, 681 (Tex.App.-Houston [1st Dist.] 2003, pet. dism’d).

Here, the evidence of Nguyen’s BMW’s connection to a homicide explains the tip that led the police to find the car, discover the discrepancy in dates, and suspect insurance fraud. The evidence that Pedraza delivered the BMW to the Murrays’ property two days before it allegedly was stolen, and reported that Nguyen told him to destroy the BMW to cover up evidence of another crime, was helpful to the jury’s understanding of Nguyen’s false statements to Farmer’s Insurance that the BMW was stolen — the two offenses of insurance fraud and the underlying crime are intertwined. We thus hold that the homicide evidence is admissible as an exception under Rule 404(b). See Mayes v. State, 816 S.W.2d 79, 86-87 (Tex.Crim.App.1991).

In addition to satisfying the requirements of Rule 404(b), extraneous evidence must also satisfy the balancing test of Rule 408. Tex.R. Evid. 403; see also Swarb, 125 S.W.3d at 681. In our review, we defer to the trial court’s determination that the probative value of the extraneous offense evidence outweighs its prejudicial effect. Swarb, 125 S.W.3d at 683. We also note that “[gjenerally, although a trial court must still perform a balancing test to see if the same transaction contextual evidence’s probative value is substantially outweighed by its prejudicial effect, the prejudicial nature of contextual evidence rarely renders such evidence inadmissible, as long as it sets the stage for the jury’s comprehension of the whole criminal transaction.” Id. at 681.

Here, the probative value is compelling, as the evidence relates to Nguyen’s motive for claiming the vehicle to be stolen in submitting her insurance claim, proof of one of the elements of insurance fraud. The State introduced limited details surrounding the homicide: testimony that an anonymous caller reported that a car used in a homicide was being dismantled, testimony that the BMW was Nguyen’s, and testimony that Nguyen told Pedraza to destroy the vehicle to destroy evidence of an underlying crime. This evidence was not discussed in the State’s opening statement. When the reference to a potential homicide was mentioned during closing argument, the jury was instructed to disregard the statement. The evidence thus had only a slight potential for impressing the jury irrationally because the State presented no evidence that Nguyen committed the homicide. Consequently, we hold that the trial court did not abuse its discretion in admitting this extraneous offense evidence.

Accomplice Witness Charge

Nguyen contends that the trial court erred in failing to grant her request for a jury instruction on accomplices. She contends that she was entitled to the instructions because Michael Pedraza, James Finely, Terrance Murray, and Traci Murray participated in the dismantling and secreting the BMW and therefore are criminally responsible accomplices.

A conviction cannot be based upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the committed offense. Tex.Code CRiM. Proc. Ann. art. 38.14 (Vernon 2005). An accomplice witness is one who participated with another before, during, or after the commission of a crime and “can be prosecuted for the same offense with which the accused is charged.” Ashford v. State, 833 S.W.2d 660, 663 (Tex.App.-Houston [1st Dist.] 1992, no pet.). A prosecution witness who can be indicted for a lesser included offense based on his alleged participation in the commission of the defendant’s charged crime is also an accomplice. Herron v. State, 86 S.W.3d 621, 631 (Tex.Crim.App.2002). A witness is not an accomplice just because he knew of the crime and either failed to disclose it, or even concealed it. Ashford, 833 S.W.2d at 663.

If the State’s witness is an accomplice, the court is under a duty to instruct the jury on this accomplice rule. Herron, 86 S.W.3d at 631. If it is clear from the evidence that the State’s witness is not an accomplice, then the trial court should not give any charge regarding an accomplice. Ashford, 833 S.W.2d at 664 (citing Villarreal v. State, 708 S.W.2d 845, 847 (Tex.Crim.App.1986)). If a conflict in evidence exists, the trial court should instruct the jury on the issue of whether the witness was an accomplice. Id. Corroboration of an accomplice’s testimony is required only if the testimony is “adduced in open court by live witnesses under oath.” Bingham v. State, 913 S.W.2d 208, 210-13 (Tex.Crim.App.1995). The accomplice statute does not apply to out-of-court statements. Id.

Here, only one of the individuals who Nguyen alleges to be an accomplice testified at trial — Traci Murray. Because the accomplice rule applies only to testimony adduced in open court by five witnesses, there is no basis for an accomplice jury instruction for Michael Pedraza, James Finely, or Terrance Murray. See Bingham, 913 S.W.2d at 210.

Nor is there any basis for concluding that Traci Murray was an accomplice witness. Nguyen was charged with insurance fraud. Traci Murray was not charged with insurance fraud or with any lesser included offense. At trial, Murray testified that until the BMW was brought to her property, she did not know that criminal activity was occurring — before then, she merely thought that someone needed to store a vehicle. The defense offered no evidence that Murray was aware that Nguyen had made, or intended to make, an insurance claim for the BMW. No evidence at trial suggested that Murray participated in or benefited from the insurance claim. Rather, Murray’s connection to the crime is only that she became aware that people were destroying a vehicle on her property. Absent additional evidence, her knowledge of the destruction of the vehicle and her failure to disclose this event does not make her an accomplice to insurance fraud. See id. We therefore hold that the trial court did not err in failing to instruct the jury on the accomplice witness rule.

Hearsay Statements

Lastly, Nguyen contends the trial court erred in admitting Michael Pedraza’s hearsay statements made to police officers and other witnesses. Nguyen contends that “every witness who testified for the State, with the exception of Ms. Allison Wood, testified to what a non-testifying witness, Mike Pedraza, allegedly stated....” Nguyen raises this argument in a single sentence and fails to provide any citation to a record of more than 350 pages. Without record citations, we cannot determine whether hearsay was admitted over proper objection or whether any exception for the hearsay statements applies. We hold that Nguyen has waived her hearsay argument. See Tex.R.App. P. 38.1(h).

Conclusion

We conclude (1) the evidence is legally and factually sufficient to support Nguyen’s conviction for insurance fraud; (2) the trial court did not err in admitting evidence of an extraneous homicide; (3) the trial court did not err in failing to instruct the jury on Nguyen’s accomplice theory; and (4) Nguyen waived her contentions concerning the admissibility of hearsay evidence of Michael Pedraza. We therefore affirm the judgment of the trial court.

      . Nguyen also contends that the trial court erred in failing to grant a directed verdict. On appeal, such a claim is treated as an attack on the legal sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App.1996) (“We treat a point of error complaining about a trial court’s failure to grant a motion for directed verdict as a challenge to the legal sufficiency of the evidence.”).

      . Without citation to the record, Nguyen contends that the admission of such testimony violates her constitutional right to confront and cross-examine witnesses. Nguyen waived this argument because she failed to raise it at trial. See Oveal v. State, 164 S.W.3d 735, 739 n. 2 (Tex.App.-Houston [14th Cir.] 2005, no pet.) (by failing to object to hearsay on Confrontation Clause grounds, appellant failed to preserve the issue for review).