text:
    Cedric James BUCHANAN, Appellant, v. The STATE of Texas, Appellee.
    No. 06-05-00018-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Sept. 6, 2005.
    Decided Sept. 30, 2005.
    Rehearing Overruled Oct. 25, 2005.

      Mark A. Rubai, Rubai Law Firm, Houston, for appellant.
    Charles A. Rosenthal, Jr., Harris County Dist. Atty., Peyton Z. Peebles, III, Asst. Dist. Atty., Houston, for state.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

Cedric James Buchanan was convicted of aggravated robbery. The jury found that he had twice been previously convicted and assessed punishment at thirty years’ confinement. Buchanan appeals the trial court’s denial of his motion to suppress evidence. Buchanan contends it was error for the trial court to deny the motion because his arrest and the subsequent search violated both the United States and Texas Constitutions as well as provisions of the Texas Code of Criminal Procedure. We reverse and remand for a new trial.

Factual Background

Buchanan was accused of using a knife during a robbery committed at a Sears department store. At trial, he admitted he had stolen merchandise from the store, but denied using a knife during the act.

Police officers received information that Buchanan was staying at a dilapidated garage apartment adjacent to a fire-damaged house. The day after locating the apartment, officers entered it without a warrant and found Buchanan asleep. The officers arrested Buchanan and seized a backpack that was next to him. Upon searching the backpack, the officers found a steak knife. At trial, Buchanan filed a motion to suppress the evidence obtained during the search. The trial court denied the motion and allowed evidence that Buchanan was in possession of a knife at the time of his arrest.

Issues

Buchanan contends on appeal that the trial court erred by refusing to suppress the evidence obtained during the search of his backpack. He asserts that the initial entry and search of the residence were in violation of both the United States and Texas Constitutions, and additionally that his arrest without a warrant was in violation of the Fourth Amendment to the United States Constitution, Article I, Section 9 of the Texas Constitution, as well as Chapter 14 of the Texas Code of Criminal Procedure.

Standard of Review

We review the trial court’s ruling whether to admit or exclude evidence under an abuse of discretion standard. Wilks v. State, 983 S.W.2d 863, 866 (Tex.App.-Corpus Christi 1998, no pet.). In conducting this review, the court gives almost total deference to a trial court’s determination of historical facts and application of law to fact questions that turn on credibility and demeanor, then reviews de novo application of law to fact questions that do not turn on credibility and demean- or. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). In other words, we give almost total deference to the trial court in determining what the actual facts are, and then review de novo whether those facts are sufficient to provide legal justification for obtaining the complained-of evidence. Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App.2001). Where the trial court does not make explicit findings of historical facts, we review the evidence in the light most favorable to the trial court’s ruling. Walter v. State, 28 S.W.3d 538, 540 (Tex.Crim.App.2000). In this case, the trial court did not make explicit findings of fact. Therefore, the evidence must be reviewed in the light most favorable to the trial court’s ruling.

Unlawful Search

The purpose of both the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution “is to safeguard an individual’s legitimate expectation of privacy from unreasonable governmental intrusions.” Richardson v. State, 865 S.W.2d 944, 948 (Tex.Crim.App.1993). Under both constitutional provisions, an accused has standing to assert a claim challenging the admission of evidence obtained by a governmental intrusion only if he or she had a legitimate expectation of privacy in the place invaded. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Richardson, 865 S.W.2d at 948-49; Fuller v. State, 829 S.W.2d 191, 202 (Tex.Crim.App.1992); see Granados v. State, 85 S.W.3d 217, 223 (Tex.Crim.App.2002).

Further, the accused, because he or she has greater access to the relevant evidence, has the burden of proving facts establishing a legitimate expectation of privacy. Calloway v. State, 743 S.W.2d 645, 650 (Tex.Crim.App.1988). To carry this burden, the accused must normally prove: (a) that by his or her conduct, the accused exhibited an actual subjective expectation of privacy, i.e., a genuine intention to preserve something as private; and (b) that circumstances existed under which society was prepared to recognize the accused’s subjective expectation as objectively reasonable. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); Richardson, 865 S.W.2d at 948-49.

The following are relevant to the court’s determination of whether the accused’s subjective expectation was one that society was prepared to recognize as objectively reasonable: (1) whether the accused had a property or possessory interest in the place invaded; (2) whether he or she was legitimately in the place invaded; (3) whether he or she had complete dominion or control and the right to exclude others; (4) whether, before the intrusion, he or she took normal precautions customarily taken by those seeking privacy; (5) whether he or she put the place to some private use; and (6) whether his or her claim of privacy is consistent with historical notions of privacy. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996); Calloway, 743 S.W.2d at 651.

At the suppression hearing, Gary Young, the arresting officer, testified he found Buchanan asleep on a mattress on the floor of a dilapidated garage apartment, which was adjacent to a house with extensive fire damage. The surrounding yard was unkempt. The door to the apartment was off the hinges and supported only by a metal pole extending from the inside of the door to the garage floor. The apartment appeared to have no running water or electricity. The apartment did not contain any clothes or other personal effects that appeared to belong to Buchanan. Buchanan testified he paid “[a] couple of bucks here and there when I got ahold of it” to the “overseer” of the property known only to him as “Pops.” He also testified he did not know who owned the apartment. Buchanan testified he never reported this apartment as his address to his parole officer, did not pay the utilities and assumed “Pops” did, and did not receive mail at this address. He did testify that the front door was not off its hinges and was shut.

A trial court’s ruling on a motion to suppress is within the sound discretion of the court. In such a hearing, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Villarreal, 935 S.W.2d at 138. Therefore, an appellate court must view the record evidence and all reasonable inferences therefrom in the light most favorable to the trial court’s ruling. Id. Buchanan never testified that he was required to pay rent, only that he paid “[a] couple of bucks” to an “overseer” and did not know who owned the apartment. This explanation apparently was not credible to the trial court. Since Buchanan did not know the identity of the owner of the apartment and had no documentation to support his claim of possession, a reasonable conclusion is that his presence on the premises was not legitimate. See Davis v. State, 119 S.W.3d 359, 367 (Tex.App.-Waco 2003, pet. ref'd) (defendant spent two or three nights a week at the house searched, did not know who owned it, testified he had keys to the house, owned a mattress in the house, had no paperwork to support his claim and acknowledged he lived at times with his mother-no legitimate expectation of privacy found). If Buchanan did not have permission from the owner or the owner’s agent, he did not have the right to control the property. Id. While the metal bar supporting the door may have provided some measure of privacy, it would not be considered a normal or customary precaution. Viewing this evidence in the light most favorable to the trial court’s ruling, we conclude (1) Buchanan did not have a property or possessory interest in the apartment, (2) Buchanan was not legitimately on the premises, (3) Buchanan did not have complete control over the property or the right to exclude others, and (4) Buchanan did not take normal and customary precautions to ensure his privacy.

In effect, Buchanan was a mere trespasser within the apartment, and historically courts have not extended the privacy guarantees of the United States or Texas Constitutions to trespassers. See Granados, 85 S.W.3d at 224-26. Therefore, Buchanan did not prove that he had a reasonable expectation of privacy and cannot challenge the search of the premises under either the United States or Texas Constitutions. We further hold that Buchanan’s subjective expectation of privacy was not one that society is prepared to recognize as objectively reasonable.

Unlawful Arrest

Constitutional Claim.

Buchanan also contends on appeal that his arrest was in violation of the Fourth Amendment to the United States Constitution as well as Article I, Section 9 of the Texas Constitution. Neither the United States Constitution, nor Article I, Section 9 contains a requirement that an arrest be authorized by an arrest warrant. An arrest that is otherwise reasonable will not be found to be in violation of either provision because it was not authorized by an arrest warrant. Hulit v. State, 982 S.W.2d 431, 436 (Tex.Crim.App.1998).

Reviewing the evidence in the light most favorable to the trial court’s decision, the arrest of Buchanan was reasonable. The police officers had a physical description of a robbery suspect- and information as to the whereabouts of that suspect. Buchanan was found at the location that had been given to the officers and matched the description they had received. Therefore, the officers had probable cause to believe that Buchanan had committed a robbery and acted reasonably in arresting him. Because Buchanan’s arrest was reasonable, it neither violated the Fourth Amendment to the United States Constitution nor Article I, Section 9 of the Texas Constitution. This point of error is overruled.

Statutory Claim

In his final point of error, Buchanan contends his arrest violated Chapter 14 of the -Texas Code of Criminal Procedure. We agree.

The police officers arrested Buchanan without an arrest warrant. To arrest an individual, Texas statutory law requires an arrest warrant unless one of several exceptions to the general rule is present.

The State first contends Buchanan failed- to raise this issue in the trial court, thereby waiving any possible error. We find that Buchanan did raise this issue in the trial court and that it is properly before us on appeal.

In order to preserve an issue for appeal, an objection is required to inform the trial court of the basis of the objection and afford the court the opportunity to rule on the objection. Purtell v. State, 761 S.W.2d 360, 365 (Tex.Crim.App.1988). Even a general or imprecise objection will be sufficient to preserve error for appeal where the grounds of the objection are obvious to the court and opposing counsel. Eisenhauer v. State, 754 S.W.2d 159 (Tex.Crim.App.1988); Tribble v. State, 792 S.W.2d 280, 282 (Tex.App.-Houston [1st Dist.] 1990, no pet.).

In his written motion to suppress, Buchanan stated, “The Defendant would show that he was arrested without a valid warrant....” The written motion further states that the admission of any illegally seized evidence would violate Buchanan’s statutory rights under Article 38.23 of the Texas Code of Criminal Procedure.

At the hearing on the motion to suppress, Buchanan’s counsel argued, “It’s undisputed that the officers did not have a search warrant, did not have any sort of arrest warrant.” Further, while not using the specific words, “Chapter 14 of the Texas Code of Criminal Procedure,” Buchanan’s counsel used the exact language of that chapter during his closing argument when he said, “[T]hey have to have either consent, which they didn’t have, or emergency exigent circumstances, which they didn’t have.... ” (Emphasis added.) See Tex.Code Ceiivi. PROC. Ann. art. 14.05 (Vernon 2005).

Although Buchanan did not specifically mention Chapter 14, he clearly objected to Buchanan’s arrest without an arrest warrant while using language contained within the statute. While the motion and argument may not have been precise, they were sufficient to alert the trial court and opposing counsel that Buchanan sought to exclude evidence which was obtained as a result of a warrantless and unlawful arrest under State statutory law. See Hill v. State, 641 S.W.2d 543 (Tex.Crim.App.1982).

Once a defendant raises the issue of a warrantless arrest, the State carries the burden of establishing the validity of that arrest. Stull v. State, 772 S.W.2d 449, 453 (Tex.Crim.App.1989). The State failed to produce any evidence at the hearing on the motion to suppress that would have justified arresting Buchanan without a warrant. For this reason, and the reasons set forth below, the motion to suppress should have been granted.

The State contends on appeal that the officers were justified in making the warrantless arrest under the so-called “suspicious place” exception.

Under this exception, an officer may make an arrest without an arrest warrant if the person to be arrested is found: (1) in a suspicious place and under circumstances which reasonably show that the person (a) is guilty of some felony, (b) is guilty of a violation of Title 9, Chapter 42, Texas Penal Code, (c) is guilty of breach of the peace, (d) is guilty of an offense under Section 49.02, Texas Penal Code, or (e) threatens or is about to commit some offense against the law. Tex.Code Ceim. Proc. Ann. art. 14.03(a)(1) (Vernon 2005).

We have concluded the officers had reason to believe that Buchanan was guilty of a felony. Only one question remains: Was Buchanan found in a suspicious place? We hold that he was not.

Few places are inherently suspicious. See Johnson v. State, 722 S.W.2d 417, 421 (Tex.Crim.App.1986); State v. Johnson, 843 S.W.2d 252, 256 (Tex.App.-Texarkana 1992), aff'd, 871 S.W.2d 744 (Tex.Crim.App.1994). To hold that a dwelling is a suspicious place solely because it is in poor condition would be tantamount to holding that a car is a suspicious place simply because it needs a tuneup. Admittedly, there is no bright-line rule for determining whether a place is suspicious. Any determination is necessarily fact-specific. Holland v. State, 788 S.W.2d 112, 114 (Tex.App.-Dallas 1990, pet. ref'd). However, other courts have given us several factors to consider.

While there are no specific time limits, the Texas Court of Criminal Appeals has said, “[T]he time between the crime and the apprehension of the suspect in a suspicious place is an important factor.” Dyar v. State, 125 S.W.3d 460, 468 (Tex.Crim.App.2003). In finding a place as suspicious, “one factor seems to be constant throughout the case law. The time frame between the crime and the apprehension of a suspect in a suspicious place is short.” Id. Buchanan was arrested four weeks after the robbery took place. A span of nearly a month between an alleged crime and the arrest of a suspect in a particular place is far from short and does not lead to the conclusion that the place is suspicious.

There is no evidence to suggest that the apartment was used primarily for criminal activity as in Lara v. State, 469 S.W.2d 177, 179 (Tex.Crim.App.1971). Nor did the officers have reason to believe that the apartment was then currently being put to criminal use. Rather, the officers were specifically seeking Buchanan. See Rushing v. State, 500 S.W.2d 667, 669 (Tex.Crim.App.1973).

Buchanan did not run. See Lara, 469 S.W.2d at 179. Buchanan did not hide. See Muniz v. State, 851 S.W.2d 238, 251 (Tex.Crim.App.1993). The facts of this case do not show any suspicious conduct on the part of Buchanan. See Hawkins v. State, 758 S.W.2d 255, 260 (Tex.Crim.App.1988) (nothing is inherently suspicious about a person standing in a parking lot of a club at 8:30 p.m. or deciding not to be questioned). Buchanan was found asleep on a mattress on the floor. The officers had to wake him before arresting him. No exigent circumstances necessitated Buchanan’s immediate arrest, as was present in Gallups v. State, 151 S.W.3d 196, 202 (Tex.Crim.App.2004) (need to ascertain-defendant’s blood alcohol content for a driving while intoxicated charge).

Perhaps most importantly, the officers in this case clearly had time to secure an arrest warrant before arresting Buchanan. There was no evidence that the officers had any information that Buchanan was about to escape so there was no time to procure a warrant. See Johnson, 722 S.W.2d at 421. The police officers drove by and located the garage apartment April 19, but they did not enter and arrest Buchanan until the next day, April 20.

We cannot interpret Article 14.03(a)(1) to be so encompassing that it swallows the general rule that a valid arrest should be based on an arrest warrant. The statute must be limited to situations where the rationale for the warrant requirement does not apply. This is not one of those situations.

Because we have held that Buchanan’s arrest was in violation of Chapter 14 of the Texas Code of Criminal Procedure, it follows that any evidence obtained as a result of that arrest should have been suppressed in accordance with Article 38.23 of the Texas Code of Criminal Procedure. See TexCode Ceim. Peoc. Ann. art 38.23 (Vernon 2005). Article 38.23 requires the exclusion of evidence “obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas.” Tex.Code Ceim. PROC. Ann. art. 38.23(a). Evidence should be excluded once a causal connection between the illegality and the evidence is established. Roquemore v. State, 60 S.W.3d 862, 870 (Tex.Crim.App.2001) (citing State v. Daugherty, 931 S.W.2d 268, 270 (Tex.Crim.App.1996)).

The search of Buchanan’s backpack has a direct causal connection with his arrest. It followed immediately after the arrest and would not have occurred but for the arrest. Therefore, any evidence obtained as a result of that search should have been suppressed. We therefore hold that it was error for the trial court to deny the motion to suppress.

We must now consider whether this error affected Buchanan’s substantial rights. See Tex.R.App. P. 44.2(b). In order to properly conduct a harm analysis under Rule 44.2(b), we must consider this error as a type of “Other Errors,” and we must disregard the error unless it affected Buchanan’s substantial rights. Id. For claims of nonconstitutional error, the Texas Court of Criminal Appeals has held that “a conviction should not be overturned unless, after examining the record as a whole, a court concludes that an error may have had ‘substantial influence’ on the outcome of the proceeding.” Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App.2002). In other words, if we have “ ‘a grave doubt’ that the result was free from the substantial influence of the error,” then we must reverse. Id. The Texas Court of Criminal Appeals has explained that “grave doubt” means that “in the judge’s mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.” Id. at 637-38 (citing O’Neal v. McAninch, 513 U.S. 432, 433-36, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)). Thus, “in cases of grave doubt as to harmlessness the petitioner must win.” Burnett, 88 S.W.3d at 637.

At trial, Buchanan admitted taking merchandise from the Sears store. The defensive theory of the case rested on Buchanan’s assertion that he did not possess or exhibit a knife while perpetrating the theft. The State sought to show at trial that Buchanan pulled a knife out of his backpack after being approached by a security officer at the Sears store. This act elevated the theft to the crime of aggravated robbery.

The submission into evidence of the knife recovered from Buchanan’s backpack clearly served to strengthen the State’s theory. Even though the State presented several witnesses who testified they saw Buchanan with a knife, we cannot conclude that allowing the backpack and the knife itself into evidence did not have a substantial impact on the jury’s resolution of the case. Therefore, we must reverse the trial court’s judgment of conviction and remand the cause for a new trial.

We reverse the trial court’s judgment of conviction and remand the cause for proceedings consistent with this opinion.


source: Caselaw Access Project

author: BRIAN QUINN, Chief Justice.

license: Public Domain

text:
    Steven G. GIRDY, Appellant, v. The STATE of Texas, Appellee.
    No. 07-05-0076-CR.
    Court of Appeals of Texas, Amarillo.
    Oct. 18, 2005.

      David Crook, Crook & Jordan, Lubbock, for appellant.
    Nick A. Moutos, Asst. Criminal Dist. Atty., Lubbock, for appellee.
    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
   Opinion

BRIAN QUINN, Chief Justice.

Appellant, Steven G. Girdy, was convicted of the offenses of aggravated kidnapping and aggravated assault arising out of the same event. On appeal, he claims 1) the evidence was factually insufficient to support the conviction of aggravated kidnapping, 2) the evidence was factually insufficient to support the jury finding that he did not voluntarily release the victim in a safe place, and 3) he was subjected to double jeopardy. We affirm one judgment and reverse the other.

Issue One — Factual Sufficiency as to Intent

Appellant’s convictions arose out of a domestic dispute with his on-again/off-again girlfriend Deandra Smith. During the incident in question, he forced Smith into her car by the use of a knife and drove her to a nearby field where he verbally abused her, threatened to kill her, and urinated upon her. He ceased his conduct only when he observed the approach of a police vehicle; at that point, he forced Smith back into her car and headed out of the field. Appellant argues that the evidence is factually insufficient to show that he abducted Smith with the intent to inflict bodily injury upon her. We overrule the issue.

The standard by which we review factual sufficiency is well established. We refer the parties to Zuniga v. State, 144 S.W.3d 477 (Tex.Crim.App.2004), Zuliani v. State, 97 S.W.3d 589 (Tex.Crim.App.2003), and King v. State, 29 S.W.3d 556 (Tex.Crim.App.2000) for its explanation.

A person may commit aggravated kidnapping by intentionally or knowingly abducting another person with the intent to inflict bodily injury on her. Tex. Pen.Code Ann. § 20.04(a)(4) (Vernon 2003). Appellant argues that because he did not physically harm Smith during her abduction and he cooperated with police officers upon being stopped by them, the State failed to prove the intent to inflict bodily injury.

While appellant may not have physically injured his captive, the ultimate issue is the intent to commit bodily injury. Phillips v. State, 597 S.W.2d 929, 936 (Tex.Crim.App.1980). Furthermore, intent may be inferred from the acts, words, and conduct of the accused. Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App.1995); Beltran v. State, 593 S.W.2d 688, 689 (Tex.Crim.App.1980).

Here, the evidence shows that 1) prior to forcing Smith into her car, appellant held a knife on her, her two children, and two other persons and threatened to kill them, 2) appellant was holding the knife while he forced Smith into her car by threatening to stab her with it, 3) just prior to Smith getting into the car, appellant poked her with the knife so she could feel its sharpness, 4) Smith believed he was going to inflict bodily injury on her, 5) after stopping the car in the field, appellant made Smith get on the ground, straddled her, told her she was “going to be in Heaven tonight” and that he would kill her, pointed the knife at her face, and then poked her with the knife, and 6) Smith believed appellant was going to kill her and leave her in the field.

While this evidence may also support a finding that appellant committed aggravated kidnapping by terrorizing the person abducted, see Tex. Pen.Code Ann. § 20.04(a)(5) (Vernon 2003), as appellant suggests, that does not make it insufficient to also support a finding that appellant intended to inflict bodily injury. See Ham v. State, 855 S.W.2d 231, 233 (Tex.App.Fort Worth 1993, no pet.) (finding that the same facts may support the commission of aggravated kidnapping by either terrorizing or intent to inflict bodily injury). Finally, the jury was rationally justified in inferring from the evidence before it that appellant had the requisite intent to inflict bodily injury. Phillips v. State, 597 S.W.2d at 936 (holding that evidence of an abduction accompanied by the words, “I am going to abduct and rape you,” would be enough to send the matter of aggravated kidnapping to the jury even if the defendant did not actually rape the victim).

Issue Two—Voluntary Release in a Safe Place

Appellant next contends that the evidence is factually insufficient to show that he failed to voluntarily release Smith in a safe place. We overrule the issue.

Upon a finding that the accused committed aggravated kidnapping, the defendant may reduce the seriousness of the offense by establishing that he voluntarily released the victim in a safe place. Tex. Pen.Code Ann. § 20.04(d) (Vernon 2003). Upon the accused establishing, by a preponderance of the evidence, that the victim was voluntarily released, the offense becomes a second degree felony. Id.

Appellant argues that he released Smith in a safe place because she was released in the same neighborhood where she lived, he had thrown the knife away before the vehicle stopped, police authorities were nearby at the time of release, there were no extreme weather conditions present, Smith was not harmed, the area was a residential one, Smith recognized the location, and he offered no resistance to the police officers. Yet, appellant must prove that he voluntarily released Smith. Moreover, that term excludes situations wherein the victim escaped or was rescued by police. Brown v. State, 98 S.W.3d 180, 188 (Tex.Crim.App.2003). Here, when appellant observed a police vehicle, he forced Smith (with knife in hand) back into the car, made a u-turn in the field, and exited onto a public street. Not until directed to stop by the police did he do so. When asked by the officer what he had been doing in the field, he replied that they were “doing things that lovers do” and gave a false name to the officer. Moreover, Smith remained in the vehicle until an officer removed her. In sum, no evidence suggests that appellant would have released his victim had the officers not intervened. Thus, the jury could have rationally determined that Smith was released due to her rescue by the officers and not the voluntary act of her captor.

Issue Three — Double Jeopardy

In his last issue, appellant claims that his right to be free of double jeopardy was violated. This purportedly occurred when he was convicted for both aggravated kidnapping and aggravated assault because one offense was a lesser-included offense of the other, given the allegations in the indictment and proof at trial. We sustain the issue.

Simply put, punishing a defendant for two crimes when one is the lesser-included offense of the other implicates double jeopardy. See Honeycutt v. State, 82 S.W.3d 545, 548-49 (Tex.App.-San Antonio 2002, pet. refd) (finding that, under the facts there present, deadly conduct was a lesser-included offense of aggravated assault and the conviction of appellant for both violated double jeopardy); Roy v. State, 76 S.W.3d 87, 98-99 (Tex.App.Houston [14th Dist.] 2002, no pet.) (finding that, under the facts there present, the unauthorized use of a motor vehicle was a lesser-included offense of aggravated robbery and convicting appellant of both violated double jeopardy). Next, whether one crime is a lesser-included offense of another depends upon the offense charged, its statutory elements, and the surrounding facts and circumstances of the crimes. Campbell v. State, 149 S.W.3d 149, 155-56 (Tex.Crim.App.2004). In other words, not only are the elements of the crime as described in the penal statute influential but so is the time and place of the crimes, the identity of the victim and accused in each, and the manner and means by which they were committed. Id. at 155; Roy v. State, 76 S.W.3d at 98.

As previously mentioned, the State indicted, tried, and convicted appellant for both aggravated kidnapping and aggravated assault. The former arises when, among other times, one intentionally or knowingly abducts another with the intent to inflict bodily injury. Tex. Pen.Code Ann. § 20.04(a) (Vernon 2003). The latter occurs when one assaults another while using or exhibiting a deadly weapon. Id. § 22.02(a)(2) (Vernon Supp.2004-05). Next, abduct means to restrain with the intent to prevent one’s liberation by either secreting or holding him in a place where he is unlikely to be found or using or threatening to use deadly force. Mason v. State, 905 S.W.2d 570, 574-75 (Tex.Crim.App.1995), citing Tex. Pen.Code Ann. § 20.01(2) (Vernon Supp.2004-05). And, it was the second means of abducting that the State incorporated into the indictment at bar. Moreover, to satisfy the allegations regarding deadly force and deadly weapon, the State proffered the same evidence, that being appellant’s use of the knife.

Next, the events at issue occurred during an unbroken sequence, i.e. appellant obtained the knife, threatened Smith and others with it, directed all present (including Smith) not to leave, demanded the car keys from Smith, forced Smith into the car with knife in hand, drove the car to the lot, brandished the knife while removing her from the vehicle, and again placed it against her. Though to convict him of assault the State need not have proved an abduction, in proving the abduction for purposes of kidnapping, the State satisfied the elements for aggravated assault. In other words, the very same evidence used to prove the kidnapping proved the assault. Indeed, it could be argued and the jury could have rationally concluded that Smith was both abducted (as that term is defined in Mason and the Penal Code) and assaulted the instant appellant brandished the knife and told all not to leave the house; that was the first instance of restraint via the use of a knife.

So, given the identity between the parties, time, manner, and means here involved and the elements of the crime as alleged in the indictment, the aggravated assault was indeed a lesser-included offense of the aggravated kidnapping. See Roberts v. State, 795 S.W.2d 842, 844 (Tex.App.-Beaumont 1990, no pet.) (recognizing that aggravated assault may be a lesser-included offense of aggravated kidnapping). And, the latter being a lesser-included offense of the former, it is presumed (absent a clear indication to the contrary) that the legislature did not intend to authorize the State to punish an accused for both. Hutchins v. State, 992 S.W.2d 629, 632 (Tex.App.-Austin 1999, pet. ref'd, untimely filed); see also Parrish v. State, 869 S.W.2d 352, 355 (Tex.Crim.App.1994) (stating that “we are inclined to agree that the Double Jeopardy Clause does bar prosecution of any offense which ... includes or is included within an offense for which the defendant has already been prosecuted....”). Moreover, we are directed to nothing clearly indicating that the legislature intended to permit punishment for both offenses at issue when one is the lesser-included offense of the other. Thus, convicting appellant of both crimes violated double jeopardy, and we are obligated to vacate the conviction carrying the lesser punishment, that being the conviction for aggravated assault. Roy v. State, 76 S.W.3d at 94-95.

Accordingly, we reverse that judgment manifesting appellant’s conviction for aggravated assault and render a judgment of acquittal and affirm that manifesting his conviction for aggravated kidnapping.

      . We reject the State’s contention that the claim was waived since appellant failed to raise it below. Double jeopardy may be raised for the first time on appeal when the undisputed facts show the violation is apparent on the face of the record and the enforcement of the usual rules of procedural default serve no legitimate state interest. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App.2000). Additionally, when a defendant is charged in the same instrument with two counts and one is a lesser-included offense of the other, the error is apparent on the face of the record. Honeycutt v. State, 82 S.W.3d 545, 547 (Tex.App.-San Antonio 2002, pet. ref'd). And, when the convictions were secured in the same court, on the same day, before the same judge, and on the same evidence, the enforcement of rules implicating the preservation of error serves no legitimate state interest. Id.


author: Chief Justice MORRISS.

text:
    James G. CONLEY, Sr., Appellant, v. Gianna DRIVER, Appellee.
    No. 06-03-00085-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 5, 2005.
    Decided Oct. 25, 2005.

      Ebb B. Mobley, Longview, for appellant.
    Stan 0. Springerley, Longview, for ap-pellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

The twelve- or thirteen-year-old Gianna Driver thought her stepfather, James G. Conley, Sr., was going to be the father she had never really had. He encouraged her to excel and told her he loved her. But he began initiating sexual contact with her when she was thirteen or fourteen years old, and the sexual abuse continued for approximately three years. Then, after Driver had ended the three years of sexual encounters and had told her mother and others of the sexual abuse by her stepfather, Conley told Driver that he hated her, that she had ruined his life and his marriage, and that he would do everything in his power to ruin her life, including making copies of videotapes he had surreptitiously made of some of their sexual encounters and sending them to Driver’s mother, boyfriend, family, and school.

Instead of fulfilling his threat, Conley sued Driver for defamation. Driver counterclaimed for assault and intentional infliction of emotional distress. Finding for Driver, the jury found that Driver should recover $150,000.00 in damages for assault and $150,000.00 in damages for intentional infliction of emotional distress. We affirm the judgment because (1) sufficient evidence supports the assault damages, (2) sufficient evidence supports the damages for intentional infliction of emotional distress, and (3) there was no error in awarding damages for both.

(1) Sufficient Evidence Supports the Assault Damages

When reviewing the legal sufficiency of the evidence to support facts found at trial, we will not set aside the judgment if there is any evidence of a probative nature to support it. Ray v. Farmers’ State Bank, 576 S.W.2d 607, 609 (Tex.1979). An appellate court cannot substitute its own findings of fact for those of the trial court if there is any evidence in the record to sustain the trial court’s findings. Id.

In reviewing the trial court’s findings for factual sufficiency, we consider all the evidence in the record, including any contrary to the trial court’s judgment. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). The trial court’s findings may be overturned only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

There is no set formula for finding the value that should be awarded for enduring physical pain and mental anguish. The process of awarding damages for amorphous, discretionary injuries such as mental anguish or pain and suffering is inherently difficult because the alleged injury is a subjective, unliquidated, nonpecu-niary loss. Dollison v. Hayes, 79 S.W.3d 246, 249 (Tex.App.-Texarkana 2002, no pet.). Because personal injury damages are unliquidated and are not capable of measurement by any certain standard, the jury has large discretion in fixing the amount of the award. SunBridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 248 (Tex.App.-Texarkana 2005, no pet.) (citing Texarkana Mem’l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 841 (Tex.1997)); Dollison, 79 S.W.3d at 249; Phillips Petroleum Co. v. Burkett, 337 S.W.2d 856 (Tex.Civ.App.-Fort Worth 1960, writ refd n.r.e.). The measure of damages is a matter of opinion of the fact-finder, and courts in most instances have been reluctant to disturb the findings of a trial court or jury on such matters when there is any evidence to support the findings. George C. Vaughan & Sons v. Dyess, 323 S.W.2d 261 (Tex.Civ.App.-Texarkana 1959, writ dism’d); see also Baylor Med. Plaza Servs. Corp. v. Kidd, 834 S.W.2d 69, 78 (Tex.App.-Texarkana 1992, writ denied); Exxon Corp. v. Roberts, 724 S.W.2d 863 (Tex.App.-Texarkana 1986, writ refd n.r.e.).

Conley’s first point of error charges the evidence was legally and factually insufficient to sustain the jury’s award of damages for assault. Conley concedes the sufficiency of the evidence to support a finding of assault, and challenges only the sufficiency of the evidence to support the damages for assault. Conley argues that Driver did not present evidence of mental anguish, and thus, there was no evidence to support the jury’s award of damages.

Driver gave detailed and copious testimony. Driver testified that the first physical contact which she regarded as inappropriate involved Conley coming up from behind her in the kitchen of their home, hugging her, and rubbing her stomach; his hand gradually going “south” beneath her underwear. She also testified that Conley forced her to engage in sexual intercourse with him, that it was very painful, and that he inserted his finger in her anus. She testified it was common for the two to go to a Sonic restaurant, and on the way for Driver to perform oral sex on Conley. Conley made her engage in sexual contact at least one or two times a month.

There is a significant amount of evidence to support damages for assault. After the first time Conley touched Driver sexually, she felt betrayed and went to her room and cried. As a result, Driver attempted suicide twice — the first time at age thirteen or fourteen, by cutting her wrists, and again around age fifteen, by taking pills. She was distressed when her mother did not believe her about the sexual abuse by Conley. Driver believes her recovery from the sexual abuse will be a lifelong process. Driver testified, “It hurts me to think that my mom is still married to him today.” This has affected how Driver relates to men — she is very distrusting and does not believe them. When Driver found that Conley was obtaining or trying to obtain custody of his granddaughters, she could not sleep at night knowing someone else might live through the nightmare she had been through. Though there were times she could not emotionally handle the abuse, she tried not to let that show on the outside. The first time Driver told school counselor, Donna Fleming, about the sexual abuse, Driver was “tearful and upset.” There was a “lot of sadness and emotion [and it] seemed to really hurt” Driver that her mother did not believe her about the allegations of sexual abuse. In later counseling sessions, Driver began to divulge more details and was very upset. Driver said she was extremely upset, felt dirty, did not think she could ever have a normal sex life, and was taking it very hard because she was thinking of marrying her boyfriend. It took eight counseling sessions before Driver started talking about the sexual abuse, because there is “a lot of secrecy involved with incest, a lot of shame.” In the counseling session with Driver’s parents and Driver, Driver sat between her parents on the couch “like she was trying to make herself real small and invisible and didn’t want to be there.” Driver exhibited relief when Fleming told her “you can’t be around” Conley.

As cited above, there is a tremendous amount of discretion given to the jury on the amount of damages. There is evidence of a probative nature, and thus legally sufficient evidence, to support the jury’s award of damages.

While there is evidence to the contrary, Conley’s evidence is essentially directed at challenging whether the sexual assault happened at all, not the damages for the assault. There is legally and factually sufficient evidence to support the jury’s determination of damages for assault.

(2) Sufficient Evidence Supports the Damages for Intentional Infliction of Emotional Distress

Conley complains the evidence was legally and factually insufficient to support the jury’s award of damages for Conley’s intentional infliction of emotional distress on Driver. Conley argues that intentional infliction of emotional distress requires a showing that the emotional distress at issue is so severe no reasonable person could be expected to endure it. See GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 618 (Tex.1999); see also Restatement (Second) Of ToRts § 46 (1965). As with the first point of error, Conley concedes the sufficiency of the evidence to establish the tort of intentional infliction of emotional distress. He challenges the amount of damages, which, again, is within the jury’s discretion.

Driver testified to nonassaultive behavior by Conley which caused her emotional and psychological harm. She testified that she found a video camera in the hotel room she shared with Conley, that he told her he had videotaped their sexual acts of the night before, and that he specifically told her he did this to “destroy [her] reputation, [her] future, [her]marriage and ... relationships.” Conley told Driver that the videotape would be his “ace in the hole” should she report the abuse to her school counselor. Conley blamed Driver for ruining his life and marriage after she reported the history of abuse and said he would do “everything in [his] power to ruin hers.” This conduct especially evinces Conley’s intent to control or harm his stepdaughter.

Conley told Driver he had videotaped previous sexual encounters, including one where Driver had fluid dripping down her leg. He told her it was because one day they would not have their special relationship, and he wanted to remember. Conley later said he would ruin Driver’s reputation by showing the videotape to future boyfriends or husbands; and said he would send it to her school, her current boyfriend and his family, and to her mother. Fleming said that Driver was very upset and very worried that Conley had threatened her with these videotapes, and that Driver wanted help. Driver acted like she expected videotapes to show up at her dormitory any day. Conley threatened to mail them to various people, demonstrating a pattern of trying to control Driver by these threats. Driver was afraid of Conley making good on his threats to expose her and to withhold financial support. Also, when Driver would refuse Conley sex, he would cry and accuse her of not wanting their “special relationship.” When she began dating a boy in high school, Conley acted like a jealous boyfriend. There is legally sufficient evidence to support damages for intentional infliction of emotional distress.

As with the evidence relative to the assault damages, the minimal contrary evidence challenged whether the events occurred, not the damages sustained as a result of his intentional infliction of emotional distress.

There is sufficient evidence, legally and factually, to support the jury’s award of damages for intentional infliction of emotional distress.

(3) There Was No Error in Awarding Damages for Both

Conley’s third point of error complains the trial court erred in entering judgment for damages for liability on the two causes of action, which he claims were mutually exclusive.

Intentional infliction of emotional distress is a “gap-filler” tort, allowing recovery in the rare instances in which a defendant intentionally inflicts severe emotional distress in an unusual manner so the victim has no other recognized theory of redress. Hoffmann La-Roche, Inc. v. Zeltwanger, 144 S.W.3d 438 (Tex.2004). The tort supplements existing forms of recovery and therefore provides a cause of action for egregious conduct that might otherwise go unremedied. Id. Intentional infliction of emotional distress is not available as a cause of action unless the actor intended to cause severe emotional distress, or such distress is a primary risk of the conduct. If conduct is intended or primarily likely to produce severe emotional distress, Section 46 of the Restatement of Torts is the applicable theory of recovery, even if the actor’s conduct also produces some other harm. Johnson, 985 S.W.2d at 68. Properly limited, the tort is not available when the actor “ ‘intends to invade some other legally protected interest,’ even if emotional distress results.” Zeltwanger, 144 S.W.3d at 447. Even if the evidence of intentional infliction of emotional distress is independent of that necessary to establish another tort claim, the extraneous actions must be “extreme or outrageous as a matter of law.” Id. “[EJxcept in circumstances bordering on serious criminal acts,” even heinous acts “will rarely have merit as intentional infliction claims.” Jackson, 157 S.W.3d at 818 (emphasis added).

Though Conley’s counsel admitted in oral argument that the tort of intentional infliction of emotional distress had been committed, any damages for that tort must be shown to have arisen from the tort, within the framework for that tort as set out by the Texas Supreme Court. We conclude Driver has made such a showing. The evidence of damages detailed above qualifies under the above authority because the evidence supports findings that (a) the damages for intentional infliction of emotional distress came from Conley’s actions, which were separate and apart from his assaultive behavior; (b) those separate actions intentionally inflicted emotional distress on Driver or were likely to produce that result in her; and (c) those separate actions were extreme and outrageous as a matter of law, either being or bordering on criminal behavior. Therefore, the damages for intentional infliction of emotional distress were recoverable in addition to the damages for assault under the facts of this case.

We affirm the judgment of the trial court.

      . Driver's school was the Texas Academy of Mathematics and Science (TAMS) in Denton, on the campus of the University of North Texas.

        . As part of that argument, Conley complains the trial court’s jury charge did not separate the question of damages into “separate elements such as past or future mental anguish, medical expenses, lost income, [and] pain and suffering.” Conley did not request any such breakdown in the charge, so he did not preserve the point for our review. Thus, we need not address this. See Tex.R. Civ. P. 272, 274.

      . 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. Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 65 (Tex.1998).

      . The Texas Supreme Court has employed the term “gap-filler” in describing intentional infliction of emotional distress, we believe, to indicate that the tort cannot be used as an alternative to some other, more conventional tort which fits the facts but might be subject to some structural impediment. See Creditwatch, Inc. v. Jackson, 157 S.W.3d 814 (Tex.2005) (sexual harassment claim barred by limitations; intentional infliction claim not available); Zeltwanger, 144 S.W.3d 438 (sexual harassment damages statutorily limited; intentional infliction claim not available); Johnson, 985 S.W.2d at 68 (bystander claim fails due to added elements of proof beyond ordinary personal injury claim; intentional infliction claim not available as alternative).

      . We conclude that, when. Conley videotaped, and when he threatened to disclose the videotapes of, his sexual encounters with Driver, his actions at least bordered on serious criminal acts within the meaning of Creditwatch. In a cursory review of the Texas Penal Code, we identify a few criminal acts on which Conley’s nonassaultive actions at least bordered. "Sexual Performance by a Child” is committed by inducing a child under eighteen years of age to engage in a sexual performance — including a motion picture that can be exhibited — or by a parent, legal guardian, or custodian consenting to his or her minor child's or ward’s sexual performance in Section 43.25(b). See Tex Pen.Code Ann. § 43.25(b) (Vernon Supp.2004-2005). It is also committed if the actor "produces”— takes any action to help create — a performance that includes sexual conduct by a child under eighteen years of age in Section 43.25(d). See Tex. Pen.Code Ann. § 43.25(d) (Vernon Supp.2004-2005). "Possession ... of Child Pornography” is committed by knowingly possessing a visual depiction of a child under eighteen engaging in sexual conduct in Section 43.26. See Tex. Pen.Code Ann. § 43.26 (Vernon 2003). "Improper Photography or Visual Recording” is committed if the actor videotapes another without the other's consent and with the intent to arouse or gratify the sexual desire of any person or if, knowing the videotape’s sexual contents, he or she "promotes” it — which includes manufacturing, issuing, providing, mailing, presenting, or publishing it, or offering to do the same in Section 21.15 and Section 43.21(a)(5). See Tex. Pen.Code Ann. § 21.15 (Vernon Supp. 2004-2005); § 43.21(a)(5) (Vernon 2003).


author: Justice CARTER.

text:
    Kimberly T. DANIELS and Willie Daniels, Appellants, v. Christopher A. YANCEY, M.D., and Diagnostic Clinic of Longview, P.A., Appellees.
    No. 06-05-00010-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Sept. 6, 2005.
    Decided Oct. 25, 2005.

      David M. O’Dell, Law Office of David M. O’Dell, M.D., J.D., Dallas, for appellants.
    Mary-Olga Lovett, Tracey S. Dry, Stin-nett Thiebaud & Remington, LLP, Houston, for appellees.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

Kimberly T. and Willie Daniels appeal from a take-nothing judgment in favor of Christopher A. Yancey, M.D., and Diagnostic Clinic of Longview, P.A (collectively, Yancey). The Danielses complain on appeal that the trial court erred in excluding certain testimony from the jury’s consideration. We deny all points of error and affirm the judgment of the trial court.

Factual BackgRound

Dr. Christopher Yancey performed a hysterectomy on Kimberly Daniels. Following the surgery, Kimberly began to suffer from abdominal pain and bowel problems. She returned to the hospital. Dr. Lee Merritt, in consultation with Dr. Yancey, determined that it was necessary to remove a section of Kimberly’s small intestine to cure her affliction. This surgery, in turn, caused Kimberly further medical problems.

The Danielses allege that Dr. Yancey perforated Kimberly’s small intestine during the hysterectomy, thereby breaching the proper standard of care. The Daniels-es claim that this alleged breach of duty caused Kimberly’s subsequent medical problems. This claim is the basis of the underlying lawsuit.

Issues

The trial court prohibited the Danielses’ expert witness, Dr. Robert Kovac, from testifying about his observations regarding certain pathology slides relating to Kimberly’s surgery. Dr. Kovac is a member of the American Board of Obstetrics and Gynecology. The trial court also excluded testimony regarding a statement purportedly made by Dr. Merritt to Kimberly before the second surgery. These two rulings by the trial court form the basis of the Danielses’ appeal.

Motion to Limit Testimony

The Danielses assert that the trial court erred in granting Yancey’s motion to limit the testimony of Dr. Kovac because the motion was untimely. In support of this, the Danielses contend the motion was not filed within the time limitations prescribed by the former Tex.Rev.Civ. Stat. Ann. art. 4590i, § 14.01(e). See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 2, Tex. Gen. Laws 988, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, Tex. Gen. Laws 884 (current version at Tex. Civ. PRAC. & RemGode Ann. § 74.401(e) (Vernon 2005)). We hold that the Danielses failed to raise this issue at the trial court level and thereby waived any possible error on appeal.

As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion. Tex.R.App. P. 33.1(a). The record must also show that the trial court ruled or refused to rule on the complaint. If the trial court refused to rule on the complaint, the record must show that the complaining party objected to the refusal. Id.

It is clear from the record that, within the motion to limit expert testimony, and during the hearing on the motion, there was but one issue in contention: whether the Danielses’ expert witness, Dr. Kovac, was qualified to testify about pathology slides.

Dr. Yancey, the proponent of the motion, began the hearing by stating, “The basis of our motion is Broders v. Heise, the well-settled law of this state through the Texas Supreme Court, asking that expert witnesses be limited in medical malpractice cases to testify in their area of specialty.” Yancey argued that, “Dr. Kovac is not now nor has he ever been even board eligible.” Yancey went on to say, “[H]e doesn’t even read his own patients’ Pap smears.... [N]o one in a medical setting, has ever asked Dr. Kovac to review pathology slides and write a report for them, because they know that he’s not qualified to do that.” Yancey finished the argument by declaring, “[W]e would ask that his testimony be limited only to obstetrics and gynecology, the area in which he has been proven an expert witness.”

The Danielses, opposing the motion, focused the argument squarely on Dr. Ko-vac’s credentials as well. The Danielses began, “[UJnder the Rules of Evidence, testimony by experts should be based upon their qualifications by knowledge, skill, experience, training or education; Rule of Evidence 702.”

The court interjected, “[W]hen you have an expert who — an OB/GYN who doesn’t even read his own Pap smear slides, tell me why I should give him an area of expertise in front of a jury.”

The Danielses continued to point out Dr. Kovac’s qualifications, “Dr. Kovac teaches residents about pathology slides including bowel.” The Danielses directed the trial court to deposition testimony in which Dr. Kovac described his qualifications. However, the Danielses failed to mention, even once, the time limits imposed by Article 4590i.

The only brief reference to the time limitations of Article 4590i was by counsel for Yancey, the proponent of the motion to limit the testimony. However, this is analogous to the well-established rule that one party may not use another party’s objection to preserve an error where the record does not reflect a timely expression of an intent to adopt the objection. Scott Fetzer Co. v. Read, 945 S.W.2d 854, 871 (Tex.App.-Austin 1997), aff'd, Read v. Scott Fetzer Co., 990 S.W.2d 732 (Tex.1998).

Further, the trial court made it clear that it was ruling solely on the qualifications of Dr. Kovac and not on any other issue. During the hearing, the trial court stated, “[M]y consideration is limited to his area of expertise as far as being able to testify about these pathology slides.” The trial court even gave the Danielses the opportunity to present an alternative argument by stating, “And at this point, unless you have something else to show me, I’m going to grant the defendant’s request and limit his testimony on the pathology.” The Danielses never presented another argument to the trial court.

Before issuing its ruling, the trial court again focused on Dr. Kovac’s qualifications, saying, “[F]or specialty testimony, it looks to me that they have to basically be engaged in that as their specialty, such as, in this case, pathology.” And on issuing its ruling, the trial court stated, “[M]y ruling is going to be that I’m going to limit his testimony and that he’s not going to be able to go into—unless the door is opened, he’s not going to be able to go into the pathology slides.”

There is nothing in the record to indicate the trial court was presented with, or considered, the contention that the Dan-ielses now assert on appeal. The Daniels-es never filed a response to Yancey’s motion to limit the testimony of Dr. Kovac. At the hearing on the motion, Daniels never complained or objected that the motion was in violation of statutory time limits. In fact, during that hearing, the Danielses’ counsel stated, “I do not question defense’s ability to challenge the credibility of my expert based on his knowledge, training and experience.... ” Because the Daniels-es failed to present this complaint to the trial court, this issue is waived and we will not consider it.

Alternatively, the Danielses assert that the motion was not filed within the time limitations prescribed by the parties’ agreed scheduling order. That agreed order set October 10, 2003, as the deadline to file any motion to exclude or limit expert testimony and November 10, 2003, as the trial date. Yancey’s motion was not filed until January 7, 2004.

On November 6, 2003, both parties filed an agreed motion for continuance. The trial court then reset the trial date to January 12, 2004.

The agreed motion for continuance expressly mentioned Dr. Kovac’s review of the pathology slides and his new opinions based on that review. The motion’s stated purpose was to provide extra time for further discovery on that issue and other issues, and to extend the deadline for mediation, as well as other matters. Therefore, one of the purposes of the agreed motion for continuance was to allow discovery after the deadlines previously imposed by the agreed scheduling order.

Further, several courts have held that a trial resetting has the effect of nullifying a deadline set by a scheduling order. See J.G. v. Murray, 915 S.W.2d 548, 550 (Tex.App.-Corpus Christi 1995, no writ). Thus, the continuance effectively nullified the deadlines set by the agreed scheduling order.

Dr. Yancey’s motion could not have violated the deadlines set by the agreed scheduling order because it was filed after those deadlines ceased to exist. Accordingly, we dismiss the Danielses’ assertion that Yancey’s motion was not filed within the time limitations prescribed by the agreed scheduling order and deny the Danielses’ first point of error.

Qualifications of Expert Witness

While Dr. Kovac testified extensively, the Danielses assert the trial court erred in ruling that Dr. Kovac was not qualified to testify as an expert concerning pathology slides. At issue were Dr. Ko-vac’s conclusions based on his review of pathology slides of Kimberly’s bowel. We hold that the trial court did not err in limiting Dr. Kovac’s testimony, and we deny the Danielses’ second point of error.

The determination of whether an expert witness is qualified to testify is left largely to the trial court’s discretion, and we will not disturb it on appeal absent a showing that the court abused its discretion. Broders v. Heise, 924 S.W.2d 148, 151 (Tex.1996); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995). In determining whether an abuse of discretion occurred, we look to see whether the trial court acted without reference to guiding principles or rules. Robinson, 923 S.W.2d at 558. A reviewing court cannot conclude that a trial court abused its discretion merely because it would have ruled differently. Id.; Purina Mills, Inc. v. Odell, 948 S.W.2d 927, 932 (Tex.App.-Texarkana 1997, writ denied).

The proponent of the expert witness bears the burden of showing that the expert witness is qualified and that the testimony is relevant to issues in the case, based on a reliable foundation, and will assist the trier of fact. Robinson, 923 S.W.2d at 556. The offering party is required to establish that the expert has the knowledge, skill, experience, training, or education regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject. Broders, 924 S.W.2d at 153. In addition, the underlying foundation on which that opinion is based must be reliable. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Robinson, 923 S.W.2d at 555.

Yancey contends that the Danielses failed to present any evidence to the trial court before or during trial that would support Dr. Kovac’s qualifications, thereby waiving appeal of this issue. We disagree that this issue was waived, but find the trial court did not abuse its discretion in excluding Dr. Kovac’s testimony regarding pathology slides.

At the time the motion to limit Dr. Kovac’s testimony was presented to the trial court before the trial started, the trial court reviewed and considered deposition testimony from Dr. Kovac on this issue. That evidence showed that Dr. Kovac at times reviewed pathology slides, that it, was his pattern to review a slide of the bowel in the course of gynecologic surgery, and that he usually reviewed the slides with a physician who was board certified in gynecologic pathology. During the trial, the Danielses offered, and the trial court excluded, a report written by Dr. Kovac opining that the pathology slides of Kimberly confirmed his previous belief that the hysterectomy was unnecessary and that an unrecognized bowel perforation led to the removal of a substantial amount of her small bowel. Even though the Danielses presented some evidence of Dr. Kovac’s qualifications to interpret pathology slides and therefore the issue was not waived, the evidence on that subject was very abbreviated. When the report of Dr. Kovac was offered and excluded, his curriculum vitae had also been admitted into evidence, but it did not contain specific information regarding pathology credentials. Dr. Kovac may be qualified to interpret pathology slides. However, based on the record before the trial court as summarized above, the trial court acted within its discretion in finding that the evidence was inadequate to establish that Dr. Kovac had the requisite knowledge, skill, experience, training, or education regarding the interpretation of pathology slides to qualify him to give an opinion on that specific subject. See Broders, 924 S.W.2d at 153.

Even if the testimony of Dr. Kovac was improperly excluded, we do not believe that such an error would be harmful. “No judgment may be reversed on appeal on the ground that the trial court made an ■error of law unless the court of appeals concludes that the error complained of: (1) probably caused the rendition of an improper judgment.” Tex.R.App. P. 44.1(a)(1).

The Danielses argue that the exclusion of Dr. Kovac’s testimony concerning the pathology slides resulted in the “exclusion of Appellants’ only witness to the issue of causation of a bowel perforation.... ” We disagree. Dr. Kovac testified at length concerning his opinion that a bowel perforation occurred during Dr. Yancey’s surgery of Kimberly. An excerpt of that testimony follows:

A. I strongly believe that there was a hole that was in the intestine of this— was made which caused her subsequent problems.
Q. You think the hole occurred during Dr. Yancey’s surgery?
A. I think it did.

Dr. Kovac further testified that the adhesion disease and obstruction and the necessity to remove fifty centimeters of Kimberly’s small bowel were due to an unrecognized perforation of the small bowel at the time of the hysterectomy, which caused leaking into the abdominal cavity. He further stated that, at the time of the surgery to remove part of the intestine, Dr. Yancey and Dr. Merritt opened the intestine looking for a perforation. This evidence was utilized by the Danielses’ counsel in his argument to the jury when he stated that puncturing of the bowel was a breach of the standard of care. The only limitation placed on Dr. Kovac’s testimony was that he was not allowed to interpret the pathology slides.

Considering all the evidence from Dr. Kovac that was admitted, even if the limitation of Dr. Kovac’s testimony was error, we do not find that such limitation “probably caused the rendition of an improper judgment.” See id. Accordingly, we deny the Danielses’ second point of error.

Exclusion of Hearsay Testimony

The Danielses asserts that the trial court erred in excluding certain testimony from Yancey’s witness, Dr. Merritt. We hold that the trial court did not err in excluding the testimony.

The Danielses’ counsel sought to ask Dr. Merritt whether he had told Kimberly, “Dr. Yancey is scared to death that he’s done something wrong to you.” The trial court prohibited the Danielses from introducing the statement. The court held that the statement was hearsay and no exception to the hearsay rule applied.

The admission or exclusion of evidence is a matter within the sound discretion of the trial court. Thus, we review this issue under an abuse of discretion standard. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995).

The Danielses’ only argument at trial, and now on appeal, is that the statement is not hearsay, or that if it is hearsay, it falls within the “present sense impression” exception to the hearsay rule. See Tex.R. Evid. 803(1). Hearsay is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Tex.R. Evid. 801(d). The trial court could have reasonably found that the statement at issue was being offered to prove the truth of the matter asserted — that Dr. Yancey was afraid he had done something wrong to Kimberly.

One of the exceptions to the hearsay rule is for present sense impressions. A present sense impression is a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. Tex.R. Evid. 803(1). The rationale for the exception stems from the statement’s contemporaneity. Rabbani v. State, 847 S.W.2d 555, 560 (Tex.Crim.App.1992). Without probative evidence in the record which establishes the amount of time between Dr. Merritt’s statement and his meeting with Dr. Yancey, we cannot conclude that the statement falls within this exception. See 1.70 Acres v. State, 935 S.W.2d 480, 489 (Tex.App.-Beaumont 1996, no writ). The Danielses point us to no such evidence, nor can we find any in the record, which would establish the contemporaneity of Dr. Merritt’s statement.

Even if such evidence was present in the record, it is not clear how Dr. Merritt’s statement would fit within this particular exception to the hearsay rule. Therefore, we cannot conclude the trial court abused its discretion in finding that the statement did not meet the requirements of the present sense impression exception to the hearsay rule. Accordingly, we deny the Danielses’ final point of error.

Having denied all of the Danielses’ points of error, we affirm the judgment of the trial court.

      . This statute applies to medical malpractice litigation. It requires a pretrial objection to the qualifications of an expert witness to be made within twenty-one days after the date that the objecting party receives a copy of the witness’ curriculum vitae or within twenty-one days after the witness is deposed.

      . Along with setting October 10, 2003, as the deadline to file a motion to limit expert testimony, the agreed scheduling order also set October 10 as the deadline to conduct all written discovery and depositions, as well as the deadline to conduct mediation.

      . A present sense impression relates to a statement describing an event or condition that was perceived by the person making the statement. It is not readily apparent that Dr. Yancey's alleged fear that he had caused harm to Kimberly would meet the standard definition of an "event" or "condition.”


text:
    Debra THOMAS and Stan Thomas, Appellants, v. Gearald FARRIS, Individually and d/b/a Farris Chiropractic Clinic, Appellee.
    No. 06-04-00115-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 17, 2005.
    Decided Oct. 26, 2005.

      Matthew R. Patton, IV, Robert D. Bennett, & Associates, PC, Gilmer, for appellants.
    David L. Ovard, Christine D. Roseveare, Brian G. Hamilton, Strasburger & Price, LLP, Dallas, for appellee.

      Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

Debra Thomas and Stan Thomas alleged that Dr. Gearald Farris, a chiropractor, was negligent in fading to x-ray Debra’s hips and discover fractures incurred after she had an automobile accident. The Thomases appeal the summary judgment granted to Dr. Farris. We affirm the judgment of the trial court.

Background

On June 1, 2000, Debra was involved in an automobile accident. The next day, she went to see Dr. Farris, complaining of pain in her neck and upper shoulders. She also reported that she had been experiencing hip pain for one year. She continued to see Dr. Farris for a month. In the latter part of June, she traveled to San Francisco. After returning from California, she began to have more hip pain. A few days later, when she was in New Orleans, she tripped in a restaurant and developed severe hip pain. On returning from New Orleans, she went to Good Shepherd Hospital with her hip severely swollen and extremely painful. She was diagnosed with fractures of both hips (a femoral neck fracture of both hips). The right hip was treated conservatively, but Dr. Stephen Littlejohn operated on Debra’s left hip July 6, 2000. She later saw Dr. Charles Rutherford, who operated on Debra’s right hip. Eventually, she had a total replacement of the left hip. The Thomases filed suit against Dr. Farris alleging negligence in his treatment of Debra. Dr. Farris filed a motion for summary judgment (both traditional and no-evidence). The trial court granted the traditional motion for summary judgment. The Thomases appeal alleging the trial court erred in granting the summary judgment because there are material questions of fact as to (1) whether Dr. Farris was negligent in failing to diagnose/x-ray Debra’s hips, which caused or exacerbated her hip fractures, and (2) whether x-rays of Debra’s hips could have diagnosed a pre-existing hip fracture and prevented further injury.

Standard of Review

The trial court granted the traditional motion for summary judgment. In a traditional motion for summary judgment, the party moving for summary judgment carries the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999); Calvillo v. Gonzalez, 922 S.W.2d 928, 929 (Tex.1996); Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant. See Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). We indulge every reasonable inference to resolve any doubts in the nonmovant’s favor. Id. An appellate court may affirm the judgment on any grounds properly raised before the trial court, even when the trial court grants summary judgment specifically on fewer than all grounds asserted. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625-26 (Tex.1996). A defendant who conclusively negates at least one of the essential elements of the plaintiffs cause of action is entitled to a summary judgment. Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex.2004).

Proof Required in Medical Malpractice Cases

In a medical malpractice case, the plaintiff must prove by competent testimony that the defendant’s negligence proximately caused the plaintiffs injury. Duff v. Yelin, 751 S.W.2d 175, 176 (Tex.1988) (citing Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex.1965); Bowles v. Bourdon, 148 Tex. 1, 5, 219 S.W.2d 779, 782 (1949)). The plaintiff must establish a causal connection beyond the point of conjecture; proof of mere possibilities will not support the submission of an issue to the jury. Duff, 751 S.W.2d at 176 (citing Longer v. Physician’s Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex.1970)). In a medical malpractice case, the plaintiff is required to show evidence of a “reasonable medical probability” or “reasonable probability” that his or her injuries were proximately caused by the negligence of one or more of the defendants. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex.1995). The ultimate standard of proof on the causation issue is “whether, by a preponderance of the evidence, the negligent act or omission is shown to be a substantial factor in bringing about the harm and without which the harm would not have occurred.” Id. (quoting Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 400 (Tex.1993)). A plaintiff is not required to establish causation in terms of medical certainty, nor is he or she required to exclude every other reasonable hypothesis. Bradley v. Rogers, 879 S.W.2d 947, 954 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (citing King v. Flamm, 442 S.W.2d 679, 682 (Tex.1969); Rose v. Friddell, 423 S.W.2d 658 (Tex.App.-Tyler 1967, writ ref d n.r.e.)). While expert medical testimony concerning the possible causes of the condition in question is admissible to assist the trier of fact in evaluating other evidence in the case, a possible cause only becomes probable when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. Bradley, 879 S.W.2d at 954.

Analysis and Conclusion

Dr. Farris argues that the trial court correctly granted his traditional motion for summary judgment because the evidence conclusively established that his actions did not cause or exacerbate Debra’s hip fractures.

In support of this motion, Dr. Farris relies on the deposition testimony of Dr. Littlejohn, an orthopedic surgeon who operated on Debra’s left hip. Dr. Littlejohn testified that Dr. Farris was not responsible for any injuries to Debra’s right hip. He further testified that, even if Dr. Farris had x-rayed Debra, it would not have changed her outcome. Specifically, Dr. Littlejohn testified as follows:

A. It is a medical probability that if he had taken an x-ray three weeks prior to her seeing me that it wouldn’t have influenced her outcome.
Q. Okay. All right. Thank you. And in your opinion is there anything Dr. Farris did or did not do to cause or exacerbate Mrs. Thomas’s right hip fracture?
A. In my opinion there is nothing that Dr. Farris did to exacerbate her hip fracture.

As to Debra’s left hip, Dr. Littlejohn testified similarly. Dr. Littlejohn, who surgically placed three pins across the femoral neck of Debra’s left hip, stated that, even if Dr. Farris had taken an x-ray of Debra’s left hip and discovered the non-displaced left hip fracture, her course of treatment would have been the same and that, in his opinion, there was nothing Dr. Farris did to cause or exacerbate the left hip fracture.

For further treatment on her right hip, Debra saw Dr. Rutherford. Dr. Rutherford operated on Debra’s right hip and agreed that, if Dr. Farris had x-rayed Debra’s right hip on June 27 after she returned from her trip to San Francisco, her outcome would not have been any different. He further testified that nothing Dr. Farris would or would not do changed the way that Debra heals her fractures.

The only medical evidence the Thomases presented was Dr. Kelly Hood, D.C. Dr. Hood stated that, in his opinion, Dr. Farris should have taken x-rays of Debra’s hips. He further stated that failing to take the x-ray of Debra was not “handled correctly” and that “poor record keeping has got him in the situation that he is in now.” However, Dr. Hood provided no testimony that, if such conduct of Dr. Farris was a violation of the standard of care for chiropractors, it caused or exacerbated Debra’s hip fractures.

The Thomases further allege that Dr. Farris’ own statements raised a material fact issue as to whether his failure to x-ray/diagnose Debra’s hip condition exacerbated her femoral neck stress fracture. In supporting this argument, the Thomases point to the testimony of Dr. Farris as follows:

Q.Can failure to stay off of a leg that has an incomplete stress fracture going across the femoral neck cause a stress fracture to go ahead and finish the break across?
A. It’s possible.

In determining medical causation or exacerbation of an injury, there must be evidence that some particular causal connection is a reasonable medical probability, that is, a result reasonably to be anticipated. Reasonable probability, in turn, is determinable by a consideration of the substance of the testimony of the expert witness and does not turn on semantics or on the use by the witness of any particular term or phrase. Ins. Co. of N. America v. Myers, 411 S.W.2d 710, 713 (Tex.1966). The Texas Supreme Court has upheld a finding of causal connection based on the testimony of an expert witness stating, “I think that the chronological events that have happened makes it a strong possibility that this could help precipitate a heart attack.” Ins. Co. of N. America v. Kneten, 440 S.W.2d 52, 54 (Tex.1969). In Kneten, the expert, when asked to look at the question from the standpoint of circumstantial evidence and say if medical probability was reasonable, answered, “Well, circumstantially, I would say, yes, strong possibility.” Id. However the Texas Supreme Court, in an opinion issued on the same day as Kneten, also held that there was a logical distinction between a reasonable medical “probability” and a medical “possibility.” There can be many possible “causes,” indeed, and an infinite number of circumstances can cause an injury. But a possible cause only becomes “probable” when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was the result of its action. This is the outer limit of inference on which an issue can be submitted to the jury. Parker v. Employers’ Mutual Liability Ins. Co., 440 S.W.2d 43, 47 (Tex.1969). An expert need not use the magic words “reasonable medical probability” if the evidence establishes that this is the substance of his or her opinion. Stodghill v. Tex. Employers Ins. Ass’n, 582 S.W.2d 102, 105 (Tex.1979). Likewise, even if an expert uses the phrase “reasonable probability,” the evidence is not sufficient when the substance of the expert testimony raised only mere possibilities, speculation, and surmise. Schaefer v. Tex. Employers’ Ins. Assn., 612 S.W.2d 199, 204 (Tex.1980). The Texas Supreme Court found such testimony was no evidence of causation even though the witness testified using the phrase “reasonable probability.” Id. at 205.

In this case, Dr. Farris was not asked whether Debra’s stress fractures were further damaged because of her continuing to walk on the leg. He only answered that it was possible for a stress fracture to “go ahead and finish the break” if a person continues to walk on the leg.

There is no testimony in the record that Debra’s failure to “stay off her leg” caused her further injury. This evidence of Dr. Farris does no more than suggest that such further damage is conceivably possible in a hypothetical case. We do not find this testimony to constitute evidence of a causal connection between the acts or omissions of Dr. Farris and the ultimate injury of Debra. We believe that this testimony is no more than a mere possibility, speculation, and surmise and is no evidence of reasonable medical probability of a causal connection between Dr. Farris’ acts or omissions and the injury of Debra. See id. at 204; Lenger, 455 S.W.2d at 707.

We conclude there is no material fact issue raised by the evidence that any action or omission of Dr. Farris was a proximate cause of Debra’s injuries.

We affirm the judgment of the trial court.


author: Justice ROSS.

text:
    In re Shelly Kasandra SHAW.
    No. 06-05-00123-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 27, 2005.
    Decided Oct. 28, 2005.

      Phil N. Smith, Sulphur Springs, for relator.
    Martin E. Braddy, Asst. Dist. Atty., Sul-phur Springs, for real party in interest.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

Shelly Kasandra Shaw has filed a petition asking us, alternatively, to issue a writ of habeas corpus or a writ of mandamus in connection with her effort to obtain a pretrial ruling on her claim that the statute under which she is being prosecuted is unconstitutional. Shaw is being prosecuted under Tex. Pen.Code Ann. § 21.12 (Vernon Supp.2004-2005). That article provides an additional penalty for what the caption describes as an “Improper Relationship Between Educator and Student.” The statute itself does not refer to educators, however, but provides penalties for sexual contact between an “employee” of the school district and a student.

Habeas Corpus

We first address Shaw’s request that we issue a writ of habeas corpus and hear the writ application originally in this Court. Our jurisdiction to issue writs of habeas corpus is limited. Ex parte Hawkins, 885 S.W.2d 586, 588 (Tex.App.-El Paso 1994, orig. proceeding). It extends to situations where a person is restrained of his or her liberty “by virtue of an order, process, or commitment issued by a court or judge because of the violation of an order, judgment, or decree ... made, rendered, or entered ... in a civil case.” Tex. Gov’t Code Ann. § 22.221(d) (Vernon 2004). This case does not fall within those requirements, and that request for relief is denied.

Mandamus

Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law (which is often described as a “ministerial” act), and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex.1994); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992); De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex.Crim.App.2004). This Court will thus grant mandamus relief if Shaw can demonstrate that the act sought to be compelled is purely “ministerial” and that she has no adequate legal remedy. See Rosenthal, 98 S.W.3d at 198. Such a remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraordinary writ. Walker, 827 S.W.2d at 842; De Leon, 127 S.W.3d at 6.

Availability of an Appeal

There is no appeal from the refusal to issue or grant a writ of habeas corpus. Ex parte Hargett, 819 S.W.2d 866, 868 (Tex.Crim.App.1991). It is apparent from the record that the writ itself, which requires the body of the person to be brought before the court, was granted. Price v. Johnston, 334 U.S. 266, 283, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948) (“[t]he historic and great usage of the writ, regardless of its particular form, is to produce the body of a person before a court for whatever purpose might be essential to the proper disposition of a cause”). We note that the record of the proceeding does not explicitly state that Shaw was present, but we also recognize that Article 28.01 of the Texas Code of Criminal Procedure requires an accused to be present during any “pre-trial proceeding.” Tex. Code CRiM. Proc. Ann. art. 28.01 (Vernon 1989); see Sanchez v. State, 122 S.W.3d 347, 351 (Tex.App.-Texarkana 2003, pet. refd). In the absence of some indication in the record to the contrary, we will assume that the proper procedures were followed.

That is only the first step of the process, however. After the writ is granted, the next step for the trial court is to determine whether the defendant is entitled to relief. When the court makes a decision on the merits of the claim, the losing party may appeal. Hargett, 819 S.W.2d at 868. Thus, a court of appeals lacks jurisdiction over a trial court’s denial of a writ of habeas corpus as opposed to a denial of relief. Ex parte Martell, 901 S.W.2d 754, 755 (Tex.App.-San Antonio 1995, orig. proceeding).

In this case, in a convoluted sequence of events, it is apparent the trial court directed that the body of the person be brought before it, thus the writ was issued. The question, then, is whether the court ruled on the request for relief. As the proceedings commenced, the court initially stated that it had looked at the allegations and that “the Court is going to deny that.” The State immediately asked the court to go off the record, but before doing so, the court stated it was denying “you having a hearing today, because I’ve looked it over, and I just don’t see any merit to it at this point.” Shaw’s counsel then attempted to confirm that the court was not denying his motion — only denying having a hearing. An off-the-record discussion ensued. Afterward, the State made two presentations in which the prosecutor set out what he understood the court intended to do (and defense counsel responded). The court ultimately stated that “the Court will not grant a hearing and withdraw my Order that we were going to have a hearing.”

A trial court’s ruling is appealable only when the trial court issues the writ and then rules on the merits of the questions presented at the hearing and denies the relief sought. Ex parte McCullough, 966 S.W.2d 529, 532 (Tex.Crim.App.1998); Ex parte Walker, 813 S.W.2d 570, 571 (Tex.App.-Corpus Christi 1991, pet. refd). The trial court did issue the writ and produced the body. It is not clear, however, that it ruled on the merits of the claim. Both parties are addressing this proceeding based on their fundamental understanding that the court did not, in fact, rule on the merits. Their understanding is supported by the absence in the record before us of a written order by the trial court. We therefore accept that position and conclude the court did not rule that it was granting or denying relief, and thus we now move to the question of whether mandamus is available to require the court to rule on the merits of Shaw’s claim.

On the Merits

A trial court is required to consider and rule on a motion within a reasonable time. Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding); Kissam v. Williamson, 545 S.W.2d 265, 266-67 (Tex.Civ.App.-Tyler 1976, orig. proceeding). When a motion is properly filed and pending before a trial court, considering and ruling on that motion is a ministerial act, and mandamus may issue to compel the trial court to act. In re Eleven, 100 S.W.3d 643, 644 (Tex.App.-Texarkana 2003, orig. proceeding); Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.-San Antonio 1997, orig. proceeding); see also Eli Lilly & Co. v. Marshall, 829 S.W.2d 157, 158 (Tex.1992) (holding trial court abused its discretion by refusing to conduct hearing and render decision on motion); Chiles v. Schuble, 788 S.W.2d 205, 207 (Tex.App.-Houston [14th Dist.] 1990, orig. proceeding) (finding mandamus appropriate to require trial court to hold hearing and exercise discretion). While we have jurisdiction to direct the trial court to make a decision, we may not tell the court what that decision should be. Crofts v. Court of Civil Appeals, 362 S.W.2d 101 (Tex.1962); State ex rel. Hill v. Court of Appeals for Fifth Dist., 34 S.W.3d 924, 927 n. 3 (Tex.Crim.App.2001); O’Donniley v. Golden, 860 S.W.2d 267, 269-70 (Tex.App.-Tyler 1993, orig. proceeding).

The issue in this case is the question of the constitutionality of the statute under which Shaw is being prosecuted. A long series of cases have held consistently — in the context of an appeal from the denial of relief — that a pretrial habeas proceeding claiming that the prosecution is proceeding under a statute that is unconstitutional on its face is an appropriate procedure to address the question. Ex parte Weise, 55 S.W.3d 617, 620 (Tex.Crim.App.2001). The courts have not held that pretrial habeas is the only method that may be used to address the issue. That is not, however, the question before us. Our problem is somewhat simpler: was the trial court required to rule on the motion before it. For several reasons, we conclude that it was.

First, the cases cited above all support the general concept that a party is entitled to have a ruling on its motions at an appropriate time for the type of pretrial proceeding involved. See In re Greenwell, 160 S.W.3d 286, 288 (Tex.App.-Texarkana 2005, orig. proceeding) (party entitled to ruling on pretrial motion rather than being required to wait until trial).

Second, there are policy reasons that support such a requirement in this particular' context.

We recognize that this issue could have been raised at trial or by a motion to quash the indictment, and could be raised before this Court on appeal. The availability of a possible alternative method for the defendant to ultimately obtain review, however, does not mean the trial court can properly avoid the issue set out by the defendant to that end.

This concept was recently examined by the Texas Court of Criminal Appeals in Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d 645, 648-49 (Tex.Crim.App.2005). The court recognized that “potential review at a later time is not always or automatically an adequate remedy: ‘In some cases, a remedy at law may technically exist; however, it may nevertheless be so uncertain, tedious, burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed inadequate.’ ” As examples of occasions when mandamus should be available, the court pointed to situations where a court had removed appointed counsel before trial, and pretrial habeas where some types of double jeopardy claims were raised — because the protection of the constitutional right required review before exposure to double jeopardy occurred. Id. at 649.

In this case, to unnecessarily expose Shaw to trial before determining whether the statute criminalizing her behavior would pass constitutional muster has the potential to be wasteful both of the resources, time, and effort of the court and the State, as well as those of the defendant herself.

Third, this was an application for writ of habeas corpus. This proceeding has been a foundational protection in the republic since the inception of this country. U.S. Const, art. I, § 9, cl. 2. To allow a court to avoid any review of its action on a habeas proceeding by granting the writ, but then declining to rule on the merits of the proceeding, is not consistent with those protections.

For all the reasons stated above, the petition for writ of mandamus is conditionally granted. The writ will issue only if the trial court fails to take appropriate action in accordance with this opinion. Subject to the court taking such action, the order issued by this Court October 5, 2005, staying the proceedings in the case styled State of Texas v. Shaw, cause number 05,18,176, in the Eighth Judicial District Court of Hopkins County, Texas, is hereby dissolved.

      . The ministerial aspect of this review was recently addressed by the Texas Court of Criminal Appeals, which stated that mandamus may lie to compel a trial court "to rule a certain way” on an issue that is "clear and undisputable” such that its merits are "beyond dispute” or when the "law clearly spells out the duty to be performed with such certainty that nothing is left to the [sic] discretion or judgment” whether that law is derived from "statute, rule, or opinion of a [superior] court.” State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 n. 3 (Tex.Crim.App.2003).

      . Ultimately, the court stated that it was not conducting the hearing, but that, alone, is not controlling. The issue was a pure question of law, based on the State's allegations of how the statute was violated. In such a situation, an evidentiary, fact-based hearing was not necessary.

      . Ex parte Matthews, 873 S.W.2d 40 (Tex.Crim.App.1994); Ex parte Boetscher, 812 S.W.2d 600 (Tex.Crim.App.1991); Ex parte Crisp, 661 S.W.2d 944 (Tex.Crim.App.1983); Ex parte Meyer, 172 Tex.Crim. 403, 357 S.W.2d 754 (1962); Ex parte George, 152 Tex.Crim. 465, 215 S.W.2d 170 (1948); Ex parte Halsted, 147 Tex.Crim. 453, 182 S.W.2d 479 (1944).

      . "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”