author: TERRY McCALL, Justice.

text:
    LEON’S FINE FOODS OF TEXAS, INC.; Leon’s Fine Foods, Inc.; and Leon’s Fine Foods, Inc. d/b/a Leon’s Texas Cuisine, Appellants, v. MERIT INVESTMENT PARTNERS, L.P., Appellee.
    No. 11-03-00146-CV.
    Court of Appeals of Texas, Eastland.
    Feb. 17, 2005.
    Gregory Perkes, Perkes Law Firm, P.C., Michael Stuart Lee, Lee Firm, P.C., Corpus Christi, John J. Ezell, Dallas, for appellants.
    Stephen H. Ramsey, Scott Henderson, James Stabler, Law Office of James M. Stabler, Dallas, William H. Hoffmann, Jr., Eastland, for appellee.
    Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
   Opinion

TERRY McCALL, Justice.

This is an appeal by Leon’s Fine Foods of Texas, Inc. et al (Leon’s) from a post-answer default judgment entered in favor of Merit Investment Partners, L.P. (Merit). There was an earlier appeal in this case after a jury trial. Leon’s Fine Foods of Texas, Inc. v. Merit Investment Partners, Ltd., No. 05-97-00543-CV, 2000 WL 1048491 (Tex.App.-Dallas 2000, pet’n den’d) (not designated for publication). The Dallas Court of Appeals reversed the trial court’s directed verdict for Merit on two of Leon’s causes of action and remanded the case for a new trial. This case demonstrates what may happen to a client when its attorney suffers from severe depression.

After the remand, Leon’s former attorney failed to file a response to Merit’s request for disclosure, failed to answer Merit’s interrogatories, and failed to produce Leon’s witnesses for deposition. Merit moved to strike Leon’s pleadings, to exclude Leon’s evidence, and to have a $15,000.00 sanction imposed. The hearing on the motion was held on February 7, 2003. The trial court granted Merit’s motion and imposed death penalty sanctions. Leon’s former attorney did not attend the sanctions hearing, and Leon’s did not know about the sanctions hearing.

Prior to the sanctions hearing, Merit’s attorneys on January 22, 2003, sent a request for admissions to Leon’s former attorney. Leon’s response was due on February 21, 2003, the day that another district court entered a default judgment declaring Leon’s attorney disbarred. Apparently unaware that the attorney had been disbarred, the trial court below called the case for trial on February 24, 2003. Upon learning that Leon’s attorney had been admitted to a hospital emergency room for chest pains, the trial court stated that it would recess the case until it heard from the attorney. On February 27, 2003, the court heard evidence by Merit, deemed admitted Merit’s requests for admissions, and entered a default judgment in favor of Merit. Leon’s had been aware of the February 24 trial date, but Leon’s attorney had falsely advised the president of Leon’s that the trial court had said it would reschedule the trial date. Leon’s was unaware of the default judgment hearing on February 27. The trial court entered a corrected final judgment on March 13, 2003. Again, Leon’s was unaware of that hearing.

In early April 2003, Leon’s president learned of the default judgment. On April 11, Leon’s new attorneys timely filed a motion for new trial. Despite the fact that Leon’s had no part in the discovery abuse by its former attorney and had no knowledge of the sanctions hearing or the February 27 and March 13 heatings, the trial court denied Leon’s motion for new trial. We reverse and remand.

Background Facts

This case began in 1993. Leon’s sued its former landlord, Merit, alleging fraud, breach of their lease agreement, breach of the covenant of quiet enjoyment, and violation of the Texas Deceptive Trade Practices Act (DTPA). TEX. BUS. & COM. CODE ANN. § 17.41 et seq. (Vernon 2002 & Supp.2004-2005). Merit counterclaimed, alleging that Leon’s had breached the lease. At the conclusion of the evidence in the first trial before a jury, the trial court granted Merit’s motion for directed verdict on each of Leon’s causes of action and entered sanctions against Leon’s because it found that some of Leon’s pleadings were “groundless and brought in bad faith.” The trial court’s judgment also sustained Merit’s counterclaim.

The Dallas Court of Appeals affirmed in part and reversed and remanded in part. Leon’s Fine Foods of Texas, Inc. v. Merit Investment Partners, Ltd., supra. The court concluded that there was direct evidence sufficient to raise a fact issue on each of the elements of Leon’s fraud claim and on Leon’s claim that Merit had breached the contract. The court also reversed the trial court’s sanction order and rendered judgment that the sanction order was unenforceable against Leon’s. The court of appeals issued its mandate on October 24, 2001.

Steven Edward Rogers, Leon’s former attorney, began having mental problems in 2001. In October 2001, other clients began filing grievances against Rogers with the State Bar. Rogers was failing to attend hearings, failing to keep clients informed, misrepresenting matters to clients, allowing default judgments to be entered, and allowing his clients’ cases to be dismissed. On July 11, 2002, the Evidentiary Panel of the State Bar’s Grievance Committee found Rogers guilty of professional misconduct and placed him on probation for 12 months. One of the conditions for probation was that Rogers obtain “a complete psychiatric/psychological evaluation by a psyehiatrisVpsychologist” and submit the results to the State Bar by October 1, 2002. Rogers failed to comply with that condition.

On October 21, 2002, the Chief Disciplinary Counsel for the State Bar filed a petition with the Collin County District Court for immediate interim suspension of Rogers. The' petition recited that on or about September 20, 2002, the State Bar District 1A Grievance Committee had found that Rogers posed a substantial threat of immediate and irreparable harm to clients. Despite the urgent nature of the State Bar’s petition, the district court did not hold a hearing for months. These proceedings ultimately ended with a default judgment dated February 21, 2003, disbarring Rogers.

At some point, Merit’s attorneys began monitoring the State Bar website. On September 17, 2002, Merit filed a Motion to Plaintiff Leon’s To Show Authority, alleging that Rogers was not eligible to practice law in Texas. The pleading requested that Rogers and Bob Clements, Leon’s president, be cited to appear before the trial court; however, the certificate of service shows that only Rogers was served with a copy of the pleading. No hearing was held on Merit’s motion.

On November 1, 2002, Merit’s attorneys noticed the oral deposition of Rogers for November 8, 2002. The subpoena duces tecum required Rogers to produce all correspondence with the State Bar’s Chief Disciplinary Counsel and any grievance committee since 1990 and to produce all written documents relating to times when Rogers was not authorized to practice law in Texas or was not authorized to represent that he was board certified. Rogers did not respond, and he failed to appear for his deposition on the rescheduled date of November 11.

On January 22, 2003, Rogers filed with the trial court below a letter -written by Dr. Mitchell Dunn, a psychiatrist. Dr. Dunn’s letter was addressed to the district judge in Collin County where the State Bar was seeking Rogers’s disbarment. Dr. Dunn had first seen Rogers on March 1, 2002, and had diagnosed Rogers with Major Depressive Disorder, Severe. Dr. Dunn had placed Rogers on medication, and Rogers had attended weekly psychotherapy sessions. Dr. Dunn stated that, in his opinion, Rogers had responded well to the treatment and that he thought that Rogers would continue to do well.

Merit’s attorneys were aware that Rogers had not improved despite Dr. Dunn’s opinion. At the sanctions hearing on February 7, 2003, which Rogers failed to attend and Leon’s did not know about, Merit advised the trial court and the trial court found that Leon’s had failed to file any written response to Merit’s First Supplemental Interrogatories which were first served on October 16, 2002; that Merit had served notices on Leon’s to take the oral depositions of Leon’s witnesses and Leon’s attorney had failed to produce the noticed witnesses on November 11, 2002, and November 25, 2002; that Leon’s had failed to comply with a TEX.R.CIV.P. 11 discovery agreement dictated to the court reporter at a pretrial conference held on December 4, 2002, which required Leon’s to answer Merit’s Request for Disclosure and Merit’s First Supplemental Interrogatories and required Leon’s to produce its witnesses for deposition; and that Leon’s had been ordered to file an amended pleading and had failed to so.

Merit’s attorneys served Rogers on January 22, 2003, with Merit’s First Request for Admissions. Leon’s responses to these requests for admissions were due on February 21, 2003 (the day that the district court in Collin County declared Rogers disbarred). Rogers, of course, did not respond; and Leon’s did not know about Merit’s First Request for Admissions. Merit’s First Request for Admissions was an obvious attempt to have Leon’s, through deemed admissions, admit that it had no causes of action. Typical of the requests were that Leon’s admit the following:

REQUEST NO. 1: Defendant Merit did not act to defraud Plaintiff Leon’s of its existing property rights in the parties’ lease agreement.
REQUEST NO. 2: Defendant Merit did not make any material misstatements of fact to Plaintiff Leon’s regarding the parties’ lease agreement.
REQUEST NO. 3: Defendant Merit did not make any false statements to Plaintiff Leon’s regarding the parties’ lease agreement.
REQUEST NO. 4: Defendant Merit made no fraudulent misrepresentations to Plaintiff Leon’s regarding the parties’ lease agreement.
REQUEST NO. 5: Defendant Merit did not breach any provision of the parties’ lease agreement during the time Plaintiff Leon’s occupied the lease premise.

Yet, the court of appeals had held that there were fact questions related to these issues raised by the evidence in the first trial. Leon’s Fine Foods of Texas, Inc. v. Merit Investment Partners, Ltd., supra. From the requests, it is obvious that Merit anticipated that Rogers would not respond to them on behalf of Leon’s. On remand, Leon’s will have an opportunity to file a motion to withdraw the admissions. The current state of the record demonstrates that Leon’s has shown good cause for their withdrawal.

The Trial Court Erred in Imposing Death Penalty Sanctions

We review the imposition of sanctions by a trial court for an abuse of discretion. Chrysler Corporation v. Blackmon, 841 S.W.2d 844, 853 (Tex.1992)(original proceeding).

Rogers failed to attend the February 7, 2003, sanctions hearing, and Leon’s did not know about the hearing. Yet, that hearing would have been an opportune time for the trial court to acquaint Leon’s with Rogers’s failings and, mental problems. Requiring Leon’s to appear would also have enabled the trial court to follow the requirements of TransAmerican Natural Gas Corporation v. Powell, 811 S.W.2d 913 (Tex.1991)(original proceeding).

TransAmerican Natural Gas Corporation v. Powell, supra at 917, held that an imposition of sanctions must be measured by two standards: (1) a direct relationship must exist between the offensive conduct and the sanction imposed and (2) the “punishment should fit the crime.” The first standard requires a trial court to determine whether the offensive conduct was attributable to counsel only, or to the party only, or to both. The second standard requires a trial court to consider the availability of less stringent sanctions and whether such lesser sanctions would fully promote compliance.

Although Merit could have filed another motion for Leon’s' to show Rogers’s authority, Leon’s was not cited to appear at the sanctions hearing. And Rogers did not tell Leon’s about the sanctions hearing. At the outset of the hearing, Merit’s attorney told the court that “Mr. Rogers’[s] phone has been disconnected, and [Merit’s attorney had] since December been personally delivering mail to Mr. Rogers’[s] mailbox in McKinney.” Merit’s attorneys introduced no evidence that Leon’s was at fault for Rogers’s numerous failings, and the trial court made no effort to determine whether Rogers’s offensive conduct was attributable to Leon’s actions.

At Leon’s motion for new trial, Merit argued (and argues here) that Leon’s president was made aware of the discovery abuses at his deposition in September 2002. There was a heated exchange between Rogers and Merit’s attorney at Clements’s deposition. At one point, the following was said:

[MERIT’S ATTORNEY]: How about the sanctions, Steve? Let’s talk about sanctions. You’ve got 14 against you now, public reprimands by the Bar?
MR. ROGERS: You know that’s grievable what you just said?

As the argument between the two attorneys continued, Clements finally said that he had other things to do if they were not going to take his deposition. Merit’s attorney then asked Clements if he was aware that Leon’s had only two remaining causes of action left in this lawsuit, and Clements responded: “That’s a legal question, and Mr. Rogers would have to.” At that point, Rogers interrupted claiming that Merit’s question was an invasion of attorney-client privilege. Merit’s attorney then questioned Clements about a “death penalty”:

Q. Are you aware that next Friday, both parties are going to be submitting written affidavits on our motion to exclude all fact witnesses, expert testimony, and damage testimony because there was a failure by your attorney to respond to a request for disclosure that Merit had sent him?
A. I am sure that’s something he handled.
Q. Okay. Are you aware that if the Judge rules in our favor, it could be the death penalty for you, and this case is all over with?
A. There is no death penalty to me in this case.
Q. I am sorry.
A. There is no death penalty to me in this case.
Q. I don’t understand what that means.
A. Well, it’s a stupid question, so it’s a stupid answer. I don’t know what you mean by death penalty.
Q. Okay. That your lawsuit is dismissed.
A. That’s the decision of the Judge.

Even if the foregoing portion of Clements’s deposition had been introduced at the sanctions hearing, it was not a sufficient basis for imposing death penalty sanctions on Leon’s. The Texas Supreme Court has said that “death penalty sanctions should not be used to deny a trial on the merits” unless the guilty party’s conduct is so bad that it “justifies a presumption that its claims or defenses lack merit.” Hamill v. Level, 917 S.W.2d 15 (Tex.1996); Chrysler Corporation v. Blackmon, supra at 851; TransAmerican Natural Gas Corporation v. Powell, supra at 918. The court of appeals in Leon’s Fine Foods of Texas, Inc. v. Merit Investment Partners, Ltd., supra> determined after reviewing the trial record that there were fact questions on Leon’s fraud and breach of contract claims. That holding rebutted any presumption that Leon’s claims lacked merit. Moreover, there was no evidence that Leon’s engaged in “bad conduct.”

The exchange at Clements’s deposition was not sufficient to blame Leon’s for Rogers’s conduct. It is arguable that the brief exchange was not even sufficient notice to Clements to make further inquiries. Unfortunately, many attorneys engage in aggressive behavior and hyperbole before clients. To make any meaningful inquiries, Leon’s would have had to employ another attorney to check on Rogers. Clements testified at Leon’s motion for new trial hearing that he did not understand the term “death penalty” or the legal procedures referred to by Merit’s attorney. Clements later asked Rogers about Merit’s questions to him, and Rogers told Clements that the hearing referred to by Merit was not going to take place. Despite Merit’s attorney’s statement that the trial judge would rule the “next Friday,” nothing happened, just as Rogers said. Rogers had been Leon’s attorney for 12 years, and Clements had no reason to doubt Rogers’s statements to him. Clements said that he had “trusted [Rogers] like a brother.”

In view of TransAmerican’s requirement that the trial court determine whether the offensive conduct was attributable to counsel or the client, Merit’s attorneys could have requested that the trial court cite Leon’s to have a representative at the sanctions hearing. The trial court, of course, could have required Leon’s attendance on its own after reviewing Merit’s reasons for sanctions. There is no evidence of any offensive conduct by Leon’s. The trial court also should have considered lesser sanctions. The trial court abused its discretion. Wetherholt v. Mercado Mexico Cafe, 844 S.W.2d 806 (Tex.App.-Eastland 1992, no writ).

We sustain Leon’s second issue that the trial court erred in imposing “death penalty” sanctions and reverse the trial court’s imposition of sanctions against Leon’s. Our holding that Leon’s should have been cited to appear at the sanctions hearing is limited to the facts of this case. We need not reach Leon’s third issue, that a trial court must require actual notice to a client in every case before death penalty sanctions are imposed.

The Default Judgment

Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939), held that a trial court is required to set aside a default judgment and order a new trial where (1) the failure of the party to appear was not intentional or the result of conscious indifference on its part but was due to a mistake or an accident; (2) the motion for new trial sets forth a meritorious claim or defense; and (3) granting the motion will not occasion delay or otherwise work an injury to the other party. Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex.1987), held that the Craddock requirements apply to a post-answer default judgment. The court in Lopez v. Lopez, 757 S.W.2d 721, 722-23 (Tex.1988), held that, if the party had no actual or constructive notice of the default judgment trial, lack of notice satisfies the first Craddock requirement and that the party does not have to satisfy the other two requirements.

Merit argues that Leon’s was required to show that Leon’s failure to appear on February 24 was not because of the “conscious indifference” of both the attorney and the client. Leon’s made that showing. We agree that, when a defaulting party has an attorney, the party must demonstrate that the agent attorney did not act with conscious indifference in failing to appear at a hearing. Holt Atherton Industries, Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.1992). However, Rogers automatically ceased being Leon’s attorney on February 21, 2003, when he was declared disbarred. Thus, the record shows that Rogers did not act with “conscious indifference” in failing to appear on February 27; he couldn’t appear as Leon’s attorney.

Although Leon’s knew about the February 24, 2003, trial date, Clements testified at Leon’s motion-for new trial that Rogers falsely told him that the trial court had cancelled the February 24 date and would reschedule the trial. It is unrealistic to expect a client to verify its counsel’s statement that a trial date had been cancelled. Rogers’s false statement misled Leon’s. Leon’s has satisfied the first prong of Craddock as to the February 24 date. See Lowe v. Lowe, 971 S.W.2d 720, 724 (Tex.App.-Houston [14th Dist.] 1998, pet’n den’d). Leon’s did not know about the rescheduled date of February 27; hence, Leon’s did not act with “conscious indifference” in failing to appear on February 27. Any notice to Rogers of the February 27 date cannot be imputed to his former client, Leon’s. Langdale v. Villamil, 813 S.W.2d 187, 190 (Tex.App.-Houston [14th Dist.] 1991, no writ). And there was no notice to Rogers of the new February 27 date until after his disbarment date of February 21.

Citing Plains Growers, Inc. v. Jordan, 519 S.W.2d 633, 636 (Tex.1974)(original proceeding), Merit argues that Leon’s had notice of the February 24 scheduled setting and that Leon’s was required to keep itself informed of the time that the scheduled case might be heard during the following week. This ignores Rogers’s false statement to Leon’s. Also, Merit’s reliance on Plains Growers is misplaced.

The supreme court in Plains Growers held that the default judgment in that case was not void and denied the request for a writ of mandamus to set the judgment aside. But the supreme court indicated that the trial judge had abused his discretion in entering the default judgment with no notice to either the attorney or the client:

Although the setting and trial without notice may have constituted an abuse of discretion under the circumstances, a question we do not attempt to decide here, this does not render the judgment void. The trial court had jurisdiction of the subject matter and the judgment is not void even though it may have been erroneous. (Emphasis added)

Plains Groivers v. Jordan, supra at 636. The motion for new trial in Plains Growers was filed late; therefore, the relator filed a mandamus action to set aside the default judgment as void. Leon’s timely filed its motion for new trial and this appeal. We hold that the trial court below abused its discretion in entering the default judgment against Leon’s.

A party who has made an appearance in a cause is entitled to notice of a trial setting as a matter of due process under the Fourteenth Amendment of the Federal Constitution. LBL Oil Company v. International Power Services, Inc., 777 S.W.2d 390, 390-91 (Tex.1989); Lopez v. Lopez, supra. Because Leon’s had no notice of the post-answer default-judgment proceeding, actual or constructive, Leon’s was deprived of due process. Lopez v. Lopez, supra. A party who has been denied due process through lack of notice of a trial setting satisfies the first requirement of Craddock and does not have to meet the remaining requirements of Crad-dock to be entitled to a new trial. Lopez v. Lopez, supra; Smith v. Holmes, 53 S.W.3d 815, 817 (Tex.App.-Austin 2001, no pet’n); Green v. McAdams, 857 S.W.2d 816, 819 (Tex.App.-Houston [1st Dist.] 1993, no writ). Leon’s is entitled to have the default judgment set aside and to have a new trial. LBL Oil Company v. International Power Services, Inc., supra at 390-91; Lopez v. Lopez, supra.

Leon’s first issue is sustained. The trial court erred in refusing to grant Leon’s motion for new trial.

Because of our disposition of issues one and two, we need not address issues three, four, five, six, seven, and eight. TEX. R.APP.P. 47.1.

This Court’s Ruling

We reverse the trial court’s judgment, including its partial summary judgment on August 21, 2002, and sanctions order on February 7, 2003, and remand for a new trial in accordance with this opinion.

      . The trial court found that the lease terminated on December 30, 1993; that Leon’s failed to vacate the premises; and that Leon’s owed Merit the fair market rental value of $9,695.00 per month for the period from January 1, 1994, through January 31, 1995. Leon's tendered $99,206.16 into the registry of the court; later, that amount was paid to Merit.

      . A sanctions hearing was ultimately held 5 months later on February 7, 2003.

      . Merit's attorney acknowledged that Rogers had lied to him more than once.


source: Caselaw Access Project

author: JAMES T. WORTHEN, Chief Justice.

license: Public Domain

text:
    In the Matter of D.L., A Juvenile.
    No. 12-03-00071-CV.
    Court of Appeals of Texas, Tyler.
    Feb. 23, 2005.

      James J. Dewitt, Ebb B. Mobley, Long-view, for appellant.
    Sharon N. Pruitt, Irving, Renee F. Gart-land, for appellee.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J. and DeVASTO, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

A jury found that D.L., a juvenile, had committed six acts of aggravated sexual assault against five different victims and that he used or exhibited a deadly weapon during one of the incidents. He was sentenced to ten years of probation and was required to register as a sex offender pursuant to Chapter 62 of the Texas Code of Criminal Procedure. On appeal, D.L. raises five issues relating to cruel and unusual punishment, the trial court’s denial of his motions for severance and mistrial, the terms of his community supervision, and the sufficiency of the evidence to support the deadly weapon finding. We affirm.

Background

Around the first of April in 2002, C.L. was sleeping with his grandmother, M.L. In the middle of the night, M.L. was awakened by C.L., who was “on all fours,” still asleep, and crying out: “[B.S.], help me! Stop! Stop! [D.L.], you’re hurting me! Stop it! Get off of me.” C.L. was approximately four years old at the time.

The next morning, C.L.’s grandmother asked him if somebody “had been messing with him.” C.L. told his grandmother that D.L. “put his thing up my ass. I was crying. I was trying to get away.” Later in the day, M.L. questioned B.S. and S.L., two of C.L.’s older cousins, about whether they had “fooled” with C.L. The boys went outside for a short time. Upon their return, S.L. stated that it was D.L. and that D.L. “got both me and [B.S.].”

M.L. reported the information to the Gregg County Sheriffs Office. Detective Tim Bryan, the investigator who spoke to M.L., notified Child Protective Services and also set up interviews for C.L., S.L., and B.S. at the Child Advocacy Center of East Texas. In separate interviews, each child restated his allegations against D.L. At least one of the children told the interviewer that D.L. had also sexually assaulted another cousin, C.H., and a neighbor, R.H. All of the alleged victims were under the age of fourteen.

A grand jury certified the State’s third amended petition in which it alleged that D.L. had engaged in delinquent conduct by committing aggravated sexual assault against C.H., S.L., B.S., C.L., and R.H. See Tex. Pen.Code Ann. § 22.021(a)(2)(B) (Vernon Supp.2004-2005) (aggravated sexual assault occurs where sexual assault is committed against a person who is younger than fourteen). The State also alleged that D.L. used or exhibited a deadly weapon, a knife, during the incident involving R.H. The matter proceeded to a jury trial. The jury found D.L. guilty on all counts and made a deadly weapon finding. D.L. was sentenced to probation for ten years and removed from his home. By agreement of the parties, D.L. was placed in the managing conservatorship of the Texas Department of Protective and Regulatory Services, who placed D.L. at a juvenile sex offender treatment facility. He was also required to register as a sex offender. This appeal followed.

Cruel and Unusual Punishment

Chapter 62 of the Texas Code of Criminal Procedure prescribes the registration procedure for persons convicted of sex-related offenses. The requirements of Chapter 62 apply to juveniles. Tex.Code CRiM. Peoc. Ann. art. 62.12(b)(1) (Vernon Supp.2004-2005). In his first issue, D.L. argues that Chapter 62 is unconstitutional on its face as a violation of the Eighth Amendment prohibition against cruel and unusual punishment for a juvenile. See U.S. Const, amend. VIII. The State counters that the reporting requirement is not punitive and therefore cannot constitute cruel and unusual punishment.

Burden in Facial Challenges

A statute is presumptively constitutional. Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex.1996). If possible, we interpret a statute in a manner that renders it constitutional. Id. The burden of proof is on the party challenging the presumption of constitutionality. Gen. Servs. Comm’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 598 (Tex.2001). The party raising a facial challenge must demonstrate that the statute always operates unconstitutionally. Wilson v. Andrews, 10 S.W.3d 663, 670 (Tex.1999). In other words, the party must establish that no set of circumstances exists under which the statute would be valid. In re B.S.W., 87 S.W.3d at 771.

Constitutional Analysis

It is rudimentary that the Chapter 62 reporting requirements cannot be cruel and unusual punishment when applied to juveniles if the requirement is not punishment for constitutional purposes. See Ex parte Robinson, 116 S.W.3d 794, 797 (Tex.Crim.App.2003). Whether the provisions of a particular statute constitute punishment for constitutional purposes can be answered by application of what is known as the “intent-effects” test. Rodriguez v. State, 93 S.W.3d 60, 67 (Tex.Crim.App.2002).

Under the “intent-effects test,” a reviewing court must first ask whether the legislature intended the statute to be a criminal punishment; Id. If that question is answered in the negative, the court must then examine “whether the statutory scheme [is] so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty.” Id. (citing Hudson v. United States, 522 U.S. 93, 99,118 S.Ct. 488, [493], 139 L.Ed.2d 450 (1997)). The manifest intent of a statute will be rejected only where the party challenging the statute provides the “clearest proof’ that the statute is actually criminally punitive in operation. Rodriguez, 93 S.W.3d at 67 (citing Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, [2082], 138 L.Ed.2d 501 (1997)).

To evaluate whether the effects of a statute are criminally punitive, courts generally look to the factors set forth by the Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). Rodriguez, 93 S.W.3d at 68. Those factors include (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has traditionally been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment — retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable to it; and (7) whether it appears excessive in relation to the alternative purpose assigned. Id. (citing Kennedy, 372 U.S. at 168-69, 83 S.Ct. at 567-68).

The court of criminal appeals has twice considered whether certain provisions of Chapter 62 are punitive in effect. In Rodriguez, the court held, after applying the Kennedy factors, that certain 1997 amendments were nonpunitive. Rodriguez, 93 S.W.3d at 67-68. In addressing an Eighth Amendment challenge the following year, the court concluded that “the 1999 version of the [sex offender registration program], like the 1997 version, [was] nonpunitive in both intent and effect” and therefore did not constitute cruel and unusual punishment. Ex parte Robinson, 116 S.W.3d at 797-98 (“We have already thoroughly applied the Kennedy factors to the 1997 version of the [sex offender registration program] and found it nonpunitive in effect.”).

D.L. points out that these cases dealt with adult offenders and whether Chapter 62 constitutes cruel and unusual punishment when applied to juveniles is an open question. D.L. argues that juveniles are often treated differently from adults in our laws. He states that, based upon the differences in the maturity and culpability of juveniles and adults, the practice of “shaming” juvenile sexual offenders by public registration is inconsistent with evolving standards of decency in a civilized society. Consequently, he concludes, when applied to juveniles, Chapter 62 is cruel and unusual punishment.

We recognize that children who violate the law are frequently treated less severely than adults who commit the same violation. See In re M.A.H., 20 S.W.3d 860, 865 (Tex.App.-Fort Worth 2000, no pet.). That policy is especially evident in cases such as the one at hand where, although a juvenile commits a crime that would be a first-degree felony if committed by an adult, the juvenile matter, subject to certain exceptions not applicable here, is adjudicated under the Texas Juvenile Justice Code. See Tex. Fam.Code Ann. §§ 51.01-61.107 (Vernon 2002 & Supp.2004-2005). However, the legislature clearly intended to subject juveniles adjudicated for sexually-related offenses to the mandates of the registration and reporting provisions. See Tex.Code Ceim. PROC. Ann. art. 62.12(b)(1). Therefore, as previously stated, D.L. cannot succeed in his challenge here unless he shows that the public registration requirements of Chapter 62 always constitute cruel and unusual punishment when applied to juveniles. D.L.’s first step in meeting that burden is to show that these requirements are punitive. See Rodriguez, 93 S.W.3d at 67.

In considering D.L.’s issue, we have carefully reviewed the analysis in Rodriguez. We iterate that we must presume the legislature acted in a constitutionally sound fashion when it enacted Chapter 62. Id. at 69. D.L. has not presented any argument to rebut this presumption. Therefore, as to the first prong of our inquiry, legislative intent, we must presume that the legislature intended Chapter 62 to be civil and remedial, and not criminal or punitive, in relation to the claim D.L. asserts here. See id. As to the second prong, punitive effect, D.L. does not challenge the Rodriguez analysis, but merely asserts that Chapter 62 creates a practice of “shaming” juveniles who are required to register as sex offenders. We interpret this statement as a reference to the first Kennedy factor: whether the reporting requirement involves an affirmative disability or restraint.

In Rodriguez, the court of criminal appeals stated that when applying this factor, the question is whether the provisions of the statute itself, as opposed to the speculative response of the community, work an affirmative disability or restraint. Id. at 71. Any “shaming” that occurs from registration as a sex offender is the result of community response and not Chapter 62 itself. Therefore, any potential public embarrassment of juvenile registrants cannot be considered an affirmative disability or restraint. Moreover, we conclude that the Rodriguez analysis and application of the remaining Kennedy factors would not differ in the case at hand. Therefore, we hold that, as applied to juveniles, Chapter 62 is nonpunitive in both intent and effect. Because Chapter 62 is not punitive, it cannot constitute cruel and unusual punishment. D.L.’s first issue is overruled.

Motion to Sever

In his second issue, D.L. urges that the trial court erred in denying his motion to sever the six counts of aggravated sexual assault for separate trials. Citing Texas Penal Code section 3.04, D.L. acknowledges that he has no right to mandatory severance. See Tex. Pen.Code Ann. § 3.04(c) (Vernon 2003) (no right to severance for aggravated sexual assault committed against a victim younger than 17 years of age at time offense committed). However, he points out that the trial court has the discretion to grant a severance if the court determines that the defendant or the State would be unfairly prejudiced by the joinder of offenses. See id.

We first note that D.L.’s reliance on section 3.04 is misplaced. The Texas Rules of Civil Procedure govern juvenile proceedings unless otherwise provided. See Tex. Fam.Code Ann. § 51.17(a); In re J.K.R., 986 S.W.2d 278, 285 (Tex.App.-Eastland 1998, pet. denied). The Juvenile Justice Code contemplates liberal joinder of offenses, but no specific provision addresses joinder and consolidation of actions. Because no specific provision exists, the Texas Rules of Civil Procedure apply as directed by section 51.17. Id.

Texas Rule of Civil Procedure 41 permits the consolidation of suits filed separately and the severance and docketing as separate suits of actions that have been improperly joined. Tex.R. Civ. P. 41. Moreover, actions that involve common questions of law or fact may be consolidated by the trial court. Tex.R. Civ. P. 174(a). A trial court has broad discretion in the matter of severance and consolidation of actions. Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 629 (Tex.1996). Therefore, a trial court’s decision to deny a severance will not be reversed unless it has abused its discretion. See id. at 630. When all the facts and circumstances of the case require separate trials in order to prevent manifest injustice, when there is no fact or circumstance that supports or tends to support a contrary conclusion, and when the legal rights of the parties will not be prejudiced thereby, then there is no room for the exercise of discretion. In re C.P., 998 S.W.2d 703, 710 (Tex.App.-Waco 1999, no pet.) (citations omitted). In that instance, a trial court has a duty to order separate trials. Id.

Here, D.L. was alleged to have committed aggravated sexual assault against five victims. Thus, the legal elements of proof were similar for each count of the State’s petition. With one exception, the alleged victims were D.L.’s cousins and had at one time lived in the same home with him. Each offense was alleged to have occurred in the family residence or in a “club house” that the children frequented. The cases share common witnesses, particularly since one or more of the alleged victims stated that he had seen D.L. sexually assault other victims named in the State’s petition. The cases also share common fact patterns in that the alleged sexual assaults were similar and occurred under similar circumstances. Finally, D.L. has made no showing that evidence of the extraneous offenses would not have been admissible in severed cases. See Tex.R. Evtd. 404(b) (evidence of other crimes, wrongs, or acts may be admissible for purposes of showing motive, opportunity, intent, preparation, plan knowledge, identity, or absence of mistake or accident); see also In re C.P., 998 S.W.2d at 711 (likely that trial court’s refusal to sever was not an abuse of discretion where evidence of extraneous acts was admissible). Consequently, we hold that the trial court did not abuse its discretion in denying D.L.’s motion for severance. D.L.’s second issue is overruled.

Mention of Polygraph Test

In his third issue, D.L. complains that the trial court erred in denying his motion for mistrial after Detective Bryan testified that D.L.’s sister, J.L., had taken a polygraph test. The State argues that the curative instruction was sufficient because the test results were not revealed or, alternatively, that any error is harmless.

Standard of Review and Applicable Law

The overruling of a motion for mistrial should not be disturbed absent an abuse of discretion. See In re M.R., 846 S.W.2d 97, 103 (Tex.App.-Fort Worth 1992), writ denied, 858 S.W.2d 365 (Tex.1993). A court abuses its discretion if it acts without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).

The existence and results of a polygraph examination are inadmissible for all purposes on proper objection. Tennard v. State, 802 S.W.2d 678, 683 (Tex.Crim.App.1990). When, in the course of a trial, reference to a polygraph test is made, the court’s analysis focuses on whether the results were revealed to the jury. Id. Where the defense moves for a mistrial, the sufficiency of an instruction to disregard polygraph evidence usually depends on whether the results of the exam were revealed to the jury. Id. Generally, when the results are not revealed, an instruction to disregard is sufficient to cure the error. Id. at 683-84. However, the mere mention of a polygraph examination does not automatically constitute reversible error even if the results of the exam are revealed. See id. at 684.

When polygraph results are revealed to the jury, an instruction to disregard is insufficient, and the reviewing court must conduct a harm analysis to determine whether the error merits reversal of the trial court’s judgment. Id. In examining whether the trial court erroneously failed to grant a mistrial, the reviewing court may consider, among other factors, (1) whether the questioning party exhibited bad faith by asking a question designed to elicit polygraph evidence and (2) whether the evidence impeached the defendant’s testimony or defensive theory or bolstered the State’s case. See, e.g., id. at 684; Sparks v. State, 820 S.W.2d 924, 927-30 (Tex.App.-Austin 1991, no pet.); Stewart v. State, 705 S.W.2d 232, 234 (Tex.App.-Texarkana 1986, pet. ref d).

The Record

The record shows that Sheriffs Detective Tim Bryan conducted the initial interview of D.L.’s grandmother, who reported the alleged sexual abuse. During the investigation, three of the alleged victims reported that D.L.’s sister, J.L., had participated in some of the sexual assaults. J.L.’s accusers were her cousins and also M.L.’s grandchildren.

As a result of the accusations, J.L. was detained, but was released after the children admitted they had fabricated their stories. During his cross examination of Bryan, D.L.’s attorney asked Bryan about the children’s recantation of their allegations against J.L. Bryan replied that he did not know about it. D.L.’s counsel again broached the subject later in the cross examination, and the following colloquy occurred:

Q. Now, are you aware that the children recanted and took back the allegations against the sister [J.L.] back in June of this year?
A. I did not know that. I mean, I’ve heard — I’ve heard that some of the stories have changed, but I have not heard the specifics about their stories, no, sir.
Q. So you don’t have any knowledge of [J.L.] whatsoever?
A. I know that she was arrested and detained for this offense, but I know that she took a polygraph or—
[DEFENSE COUNSEL]: Objection, Your Honor. May we approach the bench?
(Discussion off the record.)
THE COURT: Ladies and gentlemen, I’m going to instruct you to disregard the answer to the last question and not consider it for any purpose. Continue on, [Counsel],
Q. Mr. Bryan, you stated a minute ago that you also had heard that the children had changed their story regarding [D.L.] as well, correct?
A. Yes, sir, I have heard that.
Q. But you have no notice or knowledge of that either?
A. I don’t know the specifics of their story, no, sir.

At the conclusion of Bryan’s testimony, and outside the presence of the jury, D.L.’s counsel moved for a mistrial. The trial court denied the motion.

Analysis

D.L. argues that Bryan’s testimony revealed the results of the polygraph test administered to J.L. We agree that the jury reasonably could have inferred from Bryan’s answer that J.L. passed a polygraph test. Therefore, we must perform a harm analysis to determine whether reversal is required.

D.L. contends that revealing a potential defendant took a polygraph “can only mislead a jury into the speculation that such a test and its results are routinely available, useful and conclusive.” Thus, D.L. concludes the testimony was harmful, arguing, in effect, that under the facts presented here, an instruction to disregard can never cure the harm. We decline to adopt such a rule. Instead, we look to the record to assess the effect of Bryan’s testimony.

D.L.’s defense strategy consisted, in part, of an attempt to persuade the jury that the victims fabricated their allegations against him. When D.L.’s counsel cross examined Bryan, who was the State’s first witness, he asked Bryan about the recantation of the allegations against J.L. Bryan responded that he did not know about that. Bryan mentioned the polygraph only after being asked whether he had knew anything “whatsoever” about J.L. Although Bryan’s answer may not have been anticipated by D.L.’s counsel, his answer was nonetheless responsive to the question. Therefore, we cannot attribute any bad faith to Bryan.

The State did not call J.L. as a witness. Therefore, the polygraph results did not bolster the State’s case because J.L.’s credibility was not an issue. See Tennard, 802 S.W.2d at 684 (error harmless where witness whose polygraph results became apparent was neither the sole witness nor even a crucial witness). However, the credibility of the complaining witnesses was a critical issue at trial.

By the trial date, B.S. had changed his story and testified that D.L. did not sexually assault him. B.S.’s mother testified that B.S. told her he lied about the sexual assaults. M.L. testified that she no longer believed the children’s stories about D.L., although she admitted she had believed them at first. D.L. testified and denied the allegations. If anything, the polygraph results bolstered all of this testimony and supported D.L.’s defensive theory that the allegations against him were fabricated.

Based upon our review of the record, we hold that the error was harmless. Thus, the trial court did not abuse its discretion in denying D.L.’s motion for mistrial. D.L.’s third issue is overruled.

Deadly Weapon Finding

In his fourth issue, D.L. argues that the evidence is both legally and factually insufficient to support the jury’s affirmative finding that D.L. used or exhibited a deadly weapon (a knife) during the aggravated sexual assault of R.H.

Standard of Review

In a juvenile case, we review the legal sufficiency of the evidence by considering only the evidence and inferences tending to support the findings of the juvenile court. In re Garza, 984 S.W.2d 344, 346 (Tex.App.-Amarillo 1998, no pet.). Evidence and inferences tending to contradict those findings are disregarded. Id. In assessing factual sufficiency, however, our focus is not so restricted. Id. In that instance, the question is whether the record, considered as a whole, shows that the State sustained its burden to prove beyond a reasonable doubt that the accused engaged in delinquent conduct. Id.

Deadly Weapon

A deadly weapon is a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Pen.Code Ann. § 1.07(a)(17)(A), (B) (Vernon Supp.2004-2005). “Serious bodily injury” means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Tex. Pen.Code Ann. § 1.07(a)(46) (Vernon Supp.2004-2005).

A knife does not qualify as a deadly weapon under subsection (17)(A). McCain v. State, 22 S.W.3d 497, 502-03 (Tex.Crim.App.2000). Therefore, in the case at hand the State had the burden to prove that D.L. (1) used or exhibited a knife (2) that in the manner of its use or intended use was capable of causing death or serious bodily injury. See Tex. Pen. Code Ann. §§ 1.07(a)(17)(B), 22.021(a)(2)(A)(iv) (Vernon Supp.2004-2005). D.L.’s evidentiary challenge relates to the second prong: whether the knife was a deadly weapon.

Whether a particular knife is a deadly weapon depends upon the evidence presented. Thomas v. State, 821 S.W.2d 616, 620 (Tex.Crim.App.1991). Expert testimony is not required to determine the nature of a weapon. Brown v. State, 716 S.W.2d 939, 946 (Tex.Crim.App.1986). Nor is it necessary that the weapon be introduced into evidence. See Morales v. State, 633 S.W.2d 866, 868 (Tex.Crim.App.1982); Gorham v. State, 985 S.W.2d 694, 697 (Tex.App.-Fort Worth 1999, pet. refd). Also, it is unnecessary to show that any wounds were inflicted. Davidson v. State, 602 S.W.2d 272, 273 (Tex.Crim.App. [Panel Op.] 1980).

Where no actual injury is sustained, the State must present evidence of other factors to establish that a knife is a deadly weapon. Victor v. State, 874 S.W.2d 748, 751 (Tex.App.-Houston [1st Dist.] 1994, pet. refd). Factors to consider in that determination include (1) the physical proximity between the alleged victim and the object; (2) any threats or words used by the accused; (3) the size, shape, and sharpness of the knife; (4) the potential of the object to inflict death or serious bodily injury; and (5) the manner in which the accused allegedly used the object. Brown v. State, 716 S.W.2d 939, 946-47 (Tex.Crim.App.1986); In re KB., 143 S.W.3d 194, 200 (Tex.App.-Waco 2004, no pet.) (citations omitted); see also Adame v. State, 69 S.W.3d 581, 584 (Tex.Crim.App.2002) (Meyers, J., concurring). No one factor is determinative, and each case must be examined on its own facts. Bailey v. State, 46 S.W.3d 487, 491-92 (Tex.App.-Corpus Christi 2001, pet. refd) (citing Brown, 716 S.W.2d at 946-47).

Analysis

R.H. was approximately ten years old at the time of the incident in question. At trial, R.H. did not testify that D.L. had a knife, but stated only that he “might have.” R.H. was unsure about other details of the incident and admitted that he was trying to block the details from his mind. However, Detective Tim Bryan,, who took R.H.’s statement concerning the incident, read the following portion into evidence:

We went down to the clubhouse. [D.L.] pushed me around and then he held me. He got some rope and tied me to a chair. Then he pulled out his dick and made me suck it. He had a knife. He told me that if I didn’t suck it that I would get cut.

D.L. complains that the State introduced no evidence regarding the size, shape, or sharpness of the knife. Nor did it introduce evidence that showed the potential of the knife to inflict death or serious bodily injury. The State contends, however, that other evidence in the record, combined with reasonable inferences from that evidence, is legally sufficient to support the jury’s finding. We agree.

The record reflects that R.H. was approximately ten years old at the time of the incident. D.L. was approximately fifteen. D.L. tied R.H. to a chair and then exhibited a knife, threatening to “cut” R.H. At the time of the threat, D.L. was standing in close proximity to R.H., who was unable to defend himself or escape. R.H. complied with D.L.’s demand. This evidence is legally sufficient to show that D.L. used the knife in such a manner as to convey a threat of serious bodily injury if R.H. did not do as he was told. See Billey v. State, 895 S.W.2d 417, 422 (Tex.App.-Amarillo 1995, pet. refd) (evidence sufficient if knife is displayed in a manner conveying an express or implied threat that serious bodily injury or death will be inflicted if the desire of the person displaying the knife is not satisfied). D.L.’s fourth issue is overruled.

Conditions of Probation

In his fifth and final issue, D.L. points out that the trial court announced certain conditions of D.L.’s probation in open court, but also stated that “I’m going to require as conditions of probation the standard conditions of juvenile probation.” D.L. argues that since no standard conditions of juvenile probation exist, any conditions of D.L.’s probation not announced in open court were imposed by the probation officer. This, he concludes, constitutes an improper delegation of the trial court’s authority to impose probation conditions. The State disagrees, citing Linton v. State, No. 12-01-00128-CR, 2002 WL 335288 (Tex.App.-Tyler 2002, pet. ref d) (not designated for publication).

In Linton, the trial judge pronounced the sentence, explaining the jail time would be probated “for a period of two years under standard conditions of probation and additional conditions.” Defense counsel asked, “How many hours of community service, 32?” The court responded, “Whatever the standard — you’re going to have to get with the probation officer as soon as they get here and make sure these conditions are gone over....” Id., at *1. The appellant contended the trial court erred in delegating determination of the specific terms of community supervision to a probation officer. We held that although the trial judge did not, in open court, orally list all conditions of probation to be incorporated into the order of probation, she did not delegate to the probation officer the duty of determining the probation conditions. Id. She merely made a ruling and required one of the parties to draft an appropriate order or judgment, which she would sign if it accurately reflected her ruling. The trial judge indicated by signing the document that those were the terms she intended to impose on Appellant. Id. The same scenario exists in the instant case. Therefore, the trial court’s reliance on the probation department to prepare an order reflecting what it referred to as the “standard” conditions of probation, in addition to the conditions announced in open court, did not constitute an improper delegation of authority. D.L.’s fifth issue is overruled.

Disposition

Having overruled D.L.’s first, second, third, fourth, and fifth issues, the judgment of the trial court is affirmed.

      . D.L. did not raise this issue in the trial court. However, a facial challenge to the constitutionality of a statute may be raised for the first time on appeal. In re B.S.W., 87 S.W.3d 766, 771 (Tex.App.-Texarkana 2002, pet. denied).


author: Justice FITZGERALD.

text:
    Marie Joseph Franco BOULLE and Lesa Schmidt, Appellants, v. Jean-Raymond BOULLE, Appellee.
    No. 05-03-00417-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 25, 2005.
    Rehearing Overruled April 26, 2005.

      Justin McKenzie Waggoner, Larry R. Yeselka, Smyser, Kaplan & Veselka, L.L.P., Houston, Rod Phelan, Baker & Botts, L.L.P., Dallas, for appellants.
    Joel J. Steed, Steed Flagg, LLP, Rock-wall, Edward Wayne Malouf, Law Office of Edward Wayne Malouf, P.C., Dallas, for appellee.
    Before Justices MORRIS, FITZGERALD, and FRANCIS.
   OPINION

Opinion by

Justice FITZGERALD.

Appellant Marie Joseph Franco Boulle (“Franco”) brings five issues, challenging the summary judgment entered against him and in favor of his brother, appellee Jean-Raymond Boulle (“Jean”). We conclude the trial court incorrectly granted summary judgment on Franco’s breach of contract, fraud, and rescission claims. Accordingly, we reverse the trial court’s judgment on those claims and remand them for further proceedings. In all other respects, we affirm the trial court’s judgment.

Background

Franco and Jean carried on related and independent business dealings — largely in the diamond mining industry — for a number of years. Their business relationship included activities conducted by the Boulle Group and the Boulle Partnership. The Boulle Partnership, in turn, carried on some of its activities through a corporation, Exdiam, which the Boulle Partnership formed with other investors. Exdiam entered into a joint venture named Arkansas Diamond Development Corporation (“ADDC”), which held bidding rights on the Crater of Diamonds State Park in Arkansas in the event the park was ever opened for commercial development. One of Exdiam’s joint venturers was a subsidiary of Sunshine Mining Company (“Sunshine”). During the same time period, the Boulle Group entered into a different joint venture with Sunshine itself; this venture attempted to acquire a diamond mine in Sierra Leone, Africa. A dispute arose between the Boulles and Sunshine, and litigation ensued. The Boulles received a favorable judgment and settled the case. The parties’ settlement included Sunshine’s conveying its interest in ADDC to the Boulle Group.

During the course of the Sunshine litigation,. the Boulle brothers experienced a falling out. Jean sent Franco a letter dated August 20, 1991, confirming that “any existing partnership” between the brothers had been “dissolved” on January 1, 1991. Because of the pending litigation, it was not until April 1992 that the brothers turned in earnest to winding up the partnership. During that month, they entered into a series of agreements that purported to divide debts, indemnify each other, and create a plan for the payment and division of the settlement they had jointly received following the Sunshine litigation.

On June 22, 1992, the brothers executed the agreement (the “Agreement”) that forms the basis of this lawsuit and appeal. The Agreement stated its purpose as “the separation of the interests in projects in which [the brothers] have been jointly involved as members of the former Boulle Group and as partners in the former Boulle Partnership, both of which have been dissolved.” Pursuant to the Agreement, Franco promised to convey any interest he might have in (1) Boulle Partnership projects, (2) some twelve specifically listed “projects,” and (3) any other entity he owned jointly with Jean. The specific list of projects included both Exdiam and ADDC. Jean promised in return to pay Franco $45,000 and to assume all of Franco’s liabilities related to these various projects. The Agreement included a number of specific provisions related to various creditors, a non-compete provision, and a confidentiality agreement. The provision central to this case reads:

5. Jean Boulle will assign to Franco Boulle a five percent (5%) interest in the net revenues received by Jean Boulle from the projects in which Franco Boulle transfers his interest to Jean Boulle under this agreement, with a maximum of $5,000,000 to be paid pursuant to this provision.

Jean paid Franco the $45,000 and assumed Franco’s liabilities; Jean never assigned Franco any interest under paragraph 5 (the “five-percent provision”).

After execution of the Agreement, Jean transferred approximately 85% of the partnership’s former interest in ADDC to a corporation he owned named Diamond Mining Company of America (“DMCA”). Another company Jean owned, Maria Investment Limited (“MIL”) held the stock of DMCA.

Then, in February 1993, MIL conveyed its DMCA stock to a publicly traded Canadian company named Rutherford Ventures, Inc., which was later re-named Diamond Fields Resources, Inc. (“DFR”). Jean and a colleague named Robert Fried-land had acquired DFR earlier in 1993. Jean and DFR entered into a written agreement on February 18, 1993, whereby Jean effectively conveyed DMCA, three Arkansas mining leases, and a Minnesota mining lease to DFR in return for shares of DFR. In the same year, DFR purchased a diamond lease in Africa named the Luderitz Sea Diamond Concession. DFR raised money and continued acquiring new mining interests. One of these interests was a Canadian property named Voisey’s Bay, where developers found not diamonds, but a significant deposit of the mineral nickel. Through these years, the value of DFR’s stock increased as its assets became more valuable. In 1996, Jean and Friedland arranged a conveyance of the nickel deposit to a large Canadian mining company for approximately $3.7 billion. Jean received stock in the mining company valued at more than $250 million.

On February 18, 1998, Franco brought this suit seeking what he claimed was his percentage of Jean’s net revenues from that conveyance. Franco pleaded claims for breach of contract, fraud, rescission, breach of fiduciary duty, and a partnership accounting. Jean filed a motion for summary judgment and — after Franco re-pleaded — a Supplemental Motion for Summary Judgment (together, the “Motion”). The trial court granted the Motion and rendered judgment that Franco take nothing by his claims.

Franco raises five issues on appeal. The first two issues ask whether the summary judgment record raises a fact issue as to Franco’s claims of breach of contract and fraud. The third issue asks whether Franco sued for breach of contract, fraud, and an accounting within the four-year limitations period for each of those claims. The fourth issue asks whether Franco is entitled to elect the remedy of rescission. And the fifth issue asks whether the trial court properly granted summary judgment in the face of Jean’s purported discovery abuse. Given this formulation of the issues, our review of the summary judgment proceeding will address only the three substantive claims identified above: breach of contract, fraud, and accounting. Finally, we address Jean’s attempt to raise as a cross point the trial court’s refusal to disqualify one of Franco’s law firms.

SummaRY Judgment Standards of Review

A defendant moving for summary judgment must either (1) disprove at least one element of the plaintiffs theory of recovery, or (2) plead and conclusively establish each essential element of an affirmative defense. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979); Zep Mfg. Co. v. Harthcock, 824 S.W.2d 654, 657 (Tex.App.-Dallas 1992, no writ). Jean’s Motion attempted to meet both standards by attacking elements of Franco’s claims and by attempting to establish the bar of limitations.

Jean’s Motion also included both traditional grounds and no-evidence grounds. We review both types of motion under well-settled standards. In a traditional motion, the party moving for summary judgment has the burden of showing there is no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). A traditional movant has the burden of proving all essential elements of its cause of action or defense as a matter of law. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex.1990). By contrast, when a party moves for summary judgment under rule 166a(i), asserting that no evidence exists as to one or more elements of a claim on which the nonmovant would have the burden of proof at trial, the burden is on the nonmovant to present enough evidence to raise a genuine issue of material fact on each of the challenged elements. Tex.R. Civ. P. 166a(i); Gen. Mills Rest., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex.App.-Dallas 2000, no pet.). If the nonmovant fails to do so, the trial judge must grant the motion. Id.

When, as in this case, the trial judge grants summary judgment without speeify-ing the basis for his ruling, we affirm the judgment if any of the movant’s theories are meritorious. Rogers v. Ricane Enter., Inc., 772 S.W.2d 76, 79 (Tex.1989).

BREACH of Contract

The Motion sought summary judgment on Franco’s breach of contract claim on a number of grounds. First, Jean challenged various elements of Franco’s claim. Jean argued that Franco never owned— and hence could not transfer — an interest in most of the projects at issue. Moreover, according to Jean, the single project Franco did have an interest in, i.e., ADDC, never generated any “net revenue” within the meaning of the five-percent provision. Indeed, Jean argued none of the projects had created net revenue so as to trigger a duty to pay Franco, so Jean could not have breached the Agreement. Second, Jean’s Motion set forth the defensive argument of limitations. Jean argued that, if the five-percent provision were intended to include receipts realized from the sale or other transfer of a project, then Franco’s claim was barred by limitations because Jean had transferred his interest in the relevant projects more than four years before this lawsuit was filed.

The resolution of each of these issues begins with the same overarching question: what were the parties’ rights and obligations under the five-percent provision of their Agreement?

The Breach of Contract Claim

When we construe a written contract, our primary concern is to ascertain the intentions of the parties as expressed in the instrument. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003). As we approach the five-percent provision, however, those intentions are less than clear. At the outset, the parties disagree as to the meaning of the fundamental term “revenue.” Jean equates “revenue” with production. He takes the position that his obligation under the five-percent provision was to pay Franco a share of any actual production from the projects transferred and, because there had been no actual production from any of the projects, he never incurred a duty to pay. Franco argues that the five-percent provision contemplates not only funds generated by actual production, but also receipts generated by the sale or other transfer of a project. We cannot say — when we look at the provision and the Agreement as a whole — that either of these interpretations of the meaning of “revenue” is unreasonable. Indeed, Franco argues in the alternative that the Agreement may be ambiguous.

The meaning of the term “revenue” is further complicated by the fact that the provision is triggered by Jean’s receipt of “net revenue.” Does this provision require Jean to make a profit on the transfer of Franco’s interest in a project? Or does “net” in this context mean whatever remains after reconciling costs? The former (a profit) is always a positive number, but the latter (a post-reconciliation remainder) could be a positive or negative number, as in an individual’s “net worth.” Again, we cannot say that either meaning is unreasonable.

Finally, the parties proffer significantly different views of when, if ever, Jean “received” net revenue, triggering a corresponding obligation to pay Franco’s percentage. Jean argues that the partnership projects were transferred for value on February 18,1993, when he initially traded them for shares of DFR. Franco posits that, because Jean exercised significant control over DFR, the transfer of partnership assets for shares of DFR was not a revenue-generating transfer within the meaning of the Agreement. Indeed, Franco argues the initial DFR transfer “was analogous to Jean moving money from one pocket to another.” Franco, for his part, argues no income was realized until Jean sold his DFR stock for $250 million dollars in 1996. This conclusion is supported by Franco’s expert’s opinion that Jean’s obligation to pay was not triggered until Jean received “cash or cash equivalent” for the projects transferred by Franco pursuant to the Agreement.

Each of these terms of the provision is critical to discerning the parties’ rights and obligations under the Agreement. If we can assign the terms of an agreement “a definite or certain legal meaning,” then the agreement is unambiguous. J.M. Davidson, 128 S.W.3d at 229. However, if the terms of an agreement are subject to two or more reasonable interpretations, then the agreement is ambiguous, and a fact issue is created as to the parties’ intent. Id. Determining whether a contract is ambiguous is a question of law for the court. Coker v. Coker, 650 S.W.2d 391, 394 (Tex.1983). We conclude that the terms “revenue,” “net revenue,” and “received” as used in the Agreement are subject to more than one reasonable interpretations. The five-percent provision as a whole is subject to a number of different reasonable interpretations, depending on the meaning assigned to those terms. Accordingly, we are unable to discern, as a matter of law, what the parties intended their respective rights and obligations to be under the five-percent provision. The five-percent provision of the Agreement is ambiguous. See J.M. Davidson, 128 S.W.3d at 229.

We conclude that fact issues are raised as to the rights and obligations of the parties pursuant to the five-percent provision of their Agreement. Accordingly, we resolve Franco’s first issue in his favor.

Limitations as Defense to Breach of Contract Claim

Jean also moved for summary judgment on Franco’s breach of contract claim on limitations grounds, and Franco’s third issue asks whether he has raised a fact issue as to whether he sued on that claim within four years of Jean’s breach. A defendant moving for summary judgment on the affirmative defense of limitations has the burden to establish that defense conclusively. Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex.1997). Here, Jean had the burden to es tablish that Franco’s breach of contract claim accrued more than four years before Franco filed suit on February 18, 1998. See Tex. Crv. Prac. & Rem.Code Ann. § 16.004(a)(3). Generally, a cause of action accrues when a wrongful act causes some legal injury, even if the fact of injury is not discovered until later, and even if all resulting damages have not yet occurred. Murphy v. Campbell, 964 S.W.2d 265, 270 (Tex.1997). According to this general rule, Franco’s breach of contract claim accrued when Jean first failed to pay him five percent of the net revenue from a relevant project. But as we discussed above, the terms of the five-percent provision are ambiguous as to whether and when Franco was entitled to payment and whether and when Jean was obligated to pay.

When a cause of action accrues is generally a question of law, not fact. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 567 (Tex.2001). But we cannot resolve the question of accrual when Franco’s rights and Jean’s obligations under the five-percent provision are ambiguous. Accordingly, Jean cannot prevail on his summary judgment motion on the breach of contract claim on limitations grounds. We decide the portion of Franco’s third issue that relates to his breach of contract claim in his favor as well.

We conclude the trial court erroneously granted summary judgment that Franco take nothing on his breach of contract claim. We reverse that portion of the court’s judgment and remand the contract claim for further proceedings.

FRAUD

The Motion sought summary judgment on Franco’s claim that Jean fraudulently induced Franco to enter into the Agreement when he (Jean) had no intention of performing under the five-percent provision. Generally, a fraud cause of action requires: (1) a material misrepresentation, (2) that was either known to be false when made or was asserted without knowledge of its truth, (3) which was intended to be acted upon, (4) which was relied upon, and (5) which caused injury. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001) (per cu-riam). The no-evidence portion of the Motion challenged Franco to come forward with evidence on each of these elements except reliance. The traditional portion of the Motion argued the fraud claim was inappropriate because it was based “solely on and dependent upon proof of the breach of contract claim.” Finally, Jean argued the fraud claim was also barred by the statute of limitations.

The Fraud Claim

Franco’s brief identifies the allegedly false statement on which he relies for his fraud claim: “Jean’s promise to pay Franco 5% of the profit he made on account of the partnership assets Franco transferred to him pursuant to the Agreement.” Thus, Franco’s fraud claim is limited — just as his breach-of-contract claim is limited — to the five-percent paragraph of the Agreement. We have concluded this provision is ambiguous and that we cannot define the parties’ rights and obligations under the provision as a matter of law. Accordingly, we cannot begin to determine the most fundamental question in the fraud case: whether a false statement was made in reference to the provision. The fraud claim cannot be resolved as a matter of law at this time. We decide Franco’s second issue in his favor.

Limitations as Defense to Fraud Claim

Actions for fraud must be brought within four years of the injury. Tex. Civ. PRAC. & RemlCode Ann. § 16.004(a)(4). We conclude Franco’s fraud claim accrued, as his breach of contract claim did, when Jean first failed to pay him five percent of the net revenue that may have been due from a relevant project. However, as we concluded in the breach-of-contract discussion above, ambiguity in the five-percent provision of the Agreement prevents our determining whether and when such an obligation arose. We conclude, therefore, that the trial court erroneously granted summary judgment on Franco’s fraud claim on limitations grounds. We decide Franco’s third issue, insofar as it related to his fraud claim, in his favor.

We conclude the trial court erroneously granted summary judgment that Franco take nothing on his fraud claim. We reverse that portion of the court’s judgment and remand the fraud claim for further proceedings as well.

Partnership Accounting

Franco’s third issue also challenges the judgment insofar as it concludes that his claim for a partnership accounting is barred by limitations. Any partner has the right to a formal accounting as to partnership affairs when the circumstances render it just and reasonable. TUPA § 22(d), 1961 Tex. Gen. Laws at 295. The right to an accounting accrues to a partner as against the winding up partner at the date of dissolution if there is no agreement to the contrary. Id. § 43, 1961 Tex. Gen. Laws at 303. Franco argues the June 22, 1992 Agreement is “clearly an agreement to the contrary,” within the meaning of the statute. We disagree. The Agreement neither mentions nor implies an agreement concerning accounting. We will not imply an agreement to allow an accounting for an indefinite period of time when the record contains no evidence of such an agreement.

A defendant moving for summary judgment on the affirmative defense of limitations has the burden to establish that defense conclusively. Velsicol Chem. Corp., 956 S.W.2d at 530. The statute of limitations for a partnership accounting is four years. Tex. Crv. PRAC. & Rem.Code § 16.004(c). Franco’s right to an accounting from Jean accrued on January 1, 1991. Accordingly, Franco’s claim for an accounting is time-barred. The trial court correctly granted summary judgment on this ground.

Franco’s third issue, insofar as it relates to his accounting claim, is not well taken, and we decide it against him.

Rescission

Franco sought rescission as a remedy for Jean’s alleged breach of contract and tortious conduct. His fourth appellate issue asks whether he is entitled to elect that remedy. Rescission of a contract is available as an alternative to damages in cases in which one contracting party is induced to contract by the fraud of the other. Bank One, Tex. N.A. v. Stewart, 967 S.W.2d 419, 455 (Tex.App.-Houston [14th Dist.] 1998, pet. denied); But we have concluded that Franco’s fraud claim cannot be resolved as a matter of law at this time. Likewise, a proposed remedy for that claim cannot be resolved in this appeal. Accordingly, we remand this question to the trial court as well.

DiscoveRY Abuse

Franco details allegations of discovery abuse by Jean and, in his fifth issue, declares that the trial court should not have granted summary judgment in Jean’s favor in the face of this abuse. Franco cites to no authority supporting this proposition. Consequently, his argument is inadequately briefed and presents nothing for review. Tex.R.App. P. 38.1(h); see also McIntyre v. Wilson, 50 S.W.3d 674, 682 (Tex.App.-Dallas 2001, pet. de nied). We decide Franco’s fifth issue against him.

Jean’s Cross-Point

Finally, Jean attempts to bring a cross-point before this Court. He complains of the trial court’s denial of his motion to disqualify one law firm representing Franco in this case. However, Jean did not file a notice of appeal or attempt to make a showing of “just cause” that would excuse his failure to do so. Jean has waived this complaint. See Richardson Indep. Sch. Dist. v. GE Capital Corp., 58 S.W.3d 290, 292 (Tex.App.-Dallas 2001, no pet.). We cannot grant him any relief greater than the relief the trial court granted him. See Tex.R.App. P. 25.1(c). We dismiss Jean’s cross-point.

Conclusion

We reverse the trial court’s summary judgment on Franco’s breach of contract and fraud claims, including his request for the remedy of rescission. We remand those claims for further proceedings. In all other respects, we affirm the judgment of the trial court.

      . Appellant Lesa Schmidt is Franco's assign-ee. Accordingly,- her rights are derivative of his and will not be discussed separately in this opinion.

      . Because this appeal involves a summary judgment, our recitation of the facts includes undisputed facts and the nonmovant’s version of the disputed facts.

      . This provision continues: “Jean Boulle confirms that he will execute a more formal assignment agreement with terms and provisions reflecting this agreement if requested by either party to this Agreement.” We find no such request for a second assignment agreement in the record.

      . The brothers disagree concerning how many DFR shares Jean received as a result of the February 1993 agreement, but there is no question he received at least 200 shares as consideration for his interest in the former partnership assets.

      . Because the summary judgment on Franco’s breach of fiduciary duty claim was not appealed, that judgment is final.

      . Franco’s First Supplemental Petition set forth these alternative theories of interpretation of the Agreement: either the parties intended Franco’s understanding of the five-percent provision or the provision is ambiguous and Franco’s understanding is one reasonable interpretation of the provision.

      . Jean also complains of, but does not brief, the trial court's denial of his objection to some of Franco's summary judgment evi-deuce. This unbriefed issue is not before us for consideration.

      . Franco has filed a Motion to Dismiss the Cross-Appeal in this Court. By order issued this day, we deny the motion as moot.


author: Chief Justice MORRISS.

text:
    Christopher Dean COGGINS, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00044-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Jan. 10, 2005.
    Decided March 3, 2005.

      Dianne M. Sprague, Clarksville, for appellant.
    Deborah Moore, Red River Asst. County Atty., Yal Varley, Red River County Atty., Clarksville, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

From his jury conviction for misdemean- or driving while intoxicated, Christopher Dean Coggins appeals with two points of error, (1) that he was denied due process because he was not allowed to take a breathalyzer test and because there was no videotape of his arrest or intake, any one of which, he says, would have demonstrated to the jury he was not intoxicated and (2) that the evidence was legally and factually insufficient to support the verdict of guilt. We affirm the judgment because we find neither point of error meritorious.

1. Coggins Did Not Preserve His Due Process Complaint for Review and Was Not Entitled to a Breathalyzer Test or a Videotape of His Arrest or Intake

In the reverse of the typical argument raised on appeal, Coggins first complains because he was not given a breathalyzer test. He argues that his due-process rights were violated because the arresting officer did not allow him to take a breathalyzer test — which he argues would have shown that he was not intoxicated. He also says no videotape was made of his arrest or intake at the jail, which would have disproved the State’s case, and that he was confined in a “detox” tank overnight, thus preventing him from attempting to obtain an independent test. All of these acts by the State, he argues, resulted in his inability to prove his innocence, thus denying him the due process of law.

In order to preserve error for appellate review, an appellant must make a timely complaint to the trial court by a timely request, objection, or motion, state the grounds for the complaint, and secure a ruling on the record from the trial court. Tex.R.App. P. 33.1; Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App.2002); Gill v. State, 111 S.W.3d 211, 214 (Tex.App.-Texarkana 2003, no pet.). Coggins does not point out where he raised this issue with the trial court, and we can find no such action in the record. Therefore, Cog-gins has failed to preserve this point for appellate review.

Even had he raised it, the point is not meritorious.

The State’s burden was to prove that Coggins was operating his vehicle in a public place while intoxicated. See Tex. Pen.Code Ann. § 49.04 (Vernon 2003). Intoxication can be proven in a number of different ways, and the statutes do not require that breath or blood tests be offered or administered by the State. Section 724.011 of the Texas Transportation Code provides (among other things) that a driver is deemed to have consented to the taking of a specimen of breath or blood for analysis to determine alcohol concentration or presence of a controlled substance. See Tex. TRAnsp. Code Ann. § 724.011 (Vernon 1999). It does not require an officer to allow the person to choose which method he or she wants to use. In fact, Section 724.012(c) provides that the officer is to decide what specimen is to be taken. Tex. Transp. Code Ann. § 724.012(c) (Vernon Supp.2004-2005).

In this case, there is nothing in this record that shows that, at any relevant point, Coggins attempted to obtain an independent test of his blood or breath. Thus, there is nothing to show that an agent of the State acted in a fashion that prevented Coggins from pursuing any remedy. All the record reflects is that Coggins refused a blood test. He has been denied no right under this record.

We overrule Coggins’ first point of error.

2. The Evidence Is Legally and Factually Sufficient

Coggins next contends the evidence is legally and factually insufficient to support his conviction. In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). In a factual sufficiency review, the appellate court views all the evidence in a neutral light and determines whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex.Crim.App.2004) (citing Zuniga v. State, 144 S.W.3d 477, 486 (Tex.Crim.App.2004)).

According to the testimony of the officer who stopped the car, Coggins rolled through a stop sign, displayed erratic driving in his speed and in crossing the center line of the road, had bloodshot eyes, was shaky when he stepped out of the car, could not form a complete sentence when talking, could not stand still when asked, refused to perform field sobriety tests, refused to submit to a blood test, and stated that he had been smoking marihuana and had consumed “a couple of beers” earlier at home, so there was no any sense in him taking any blood test or field sobriety test. The officer also testified that the interior of the vehicle Coggins was driving smelled like alcohol and marihuana, and that there were “rolling papers” visible in the front seat. Finally, Officer Groves testified that, in his opinion, Coggins was intoxicated on a mixture of marihuana and alcohol.

This evidence is legally sufficient to support the verdict.

In addition to the evidence set out above, a passenger, Jeffrey Williams, testified that Coggins had not drunk alcohol or smoked marihuana in the vehicle. Williams also testified that he had been smoking marihuana and that the front-seat passenger, Trey Madden, had been drinking. Williams also testified that, although they said something about field sobriety tests, he saw none, and that he heard Coggins request a breathalyzer test and heard Officer Groves respond that Groves wanted a blood test done.

Coggins testified that Madden had been drinking and that both Madden and Williams had been smoking marihuana. He believed that the officer had concocted the story and that, if a videotape had been made, it would show his innocence.

This is a classic situation where the fact-finder was confronted with different versions of the same event. There is evidence that, if believed, would show guilt, and other evidence that, if believed, would show innocence. It is the purview of the fact-finder to determine which witnesses are credible and to attempt to ferret out the truth. The evidence against the verdict is not so strong as to permit us to determine that the fact-finder could not reasonably find Coggins guilty. We overrule this contention of error.

We affirm the judgment.

      . Coggins was sentenced to 180 days in jail— which was probated for two years, except that he was to serve six days in jail as a condition of community supervision — and a $1,000.00 fine.

      . This is a different argument than would be made in a Brady context, where the issue is the preservation of evidence by the State. The State is required to provide potentially exculpatory information to the defense. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Thomas v. State, 841 S.W.2d 399 (Tex.Crim.App.1992).

      . With one exception that does not apply in this case, Section 724.013 of the Texas Transportation Code provides that a specimen cannot be taken if the person refuses permission. See Tex. Transp. Code Ann. § 724.013 (Vernon 1999). Further, evidence that a person refused a request is admissible. Tex. Transp. Code Ann. § 724.061 (Vernon 1999).

      . Coggins refers this Court to several cases from other jurisdictions, several of which have noted in this context that a criminal accused has a constitutional right to attempt to obtain exculpatory evidence by obtaining a sobriety test independent of that offered by the arresting officer. McNutt v. Ariz., 133 Ariz. 7, 648 P.2d 122 (1982); State v. Woolery, 116 Idaho 368, 775 P.2d 1210, 1214 (1989); State v. Beanblossom, 313 Mont. 394, 61 P.3d 165, 169 (2002); State v. Swanson, 222 Mont. 357, 722 P.2d 1155 (1986); State v. Choate, 667 S.W.2d 111 (Tenn.Crim.App.1983). The concept is based on the right of an accused in a criminal trial to due process, which is defined as, “in essence, the right to a fair opportunity to defend against the State’s accusations.” Chambers v. Miss., 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). This is a logical application of the general concept— but such a right has not been recognized in Texas.
      Many states have held that due process requires that a defendant accused of driving while intoxicated be afforded a reasonable opportunity to obtain an independent test because such a test assures the defendant’s right to gather exculpatory evidence. See Bilbrey v. Ala., 531 So.2d 27 (Ala.Crim.App.1987); Snyder v. State, 930 P.2d 1274, 1277 (Alaska 1996); McNutt v. Superior Court of State, 133 Ariz. 7, 648 P.2d 122 (1982); Jones v. State, 200 Ga.App. 666, 409 S.E.2d 251, 253 (1991); State v. Carr, 128 Idaho 181, 911 P.2d 774 (App.1995); Commonwealth of Ky. v. Long, 118 S.W.3d 178, 183 (Ky.Ct.App.2003); Scarborough v. Miss., 261 So.2d 475 (Miss.1972); Swanson, 222 Mont. 357, 722 P.2d 1155; State v. Bumgarner, 97 N.C.App. 567, 389 S.E.2d 425 (1990); City of Lakewood v. Waselenchuk, 94 Ohio App.3d 684, 641 N.E.2d 767 (1994); Choate, 667 S.W.2d 111; State v.Walstad, 119 Wis.2d 483, 351 N.W.2d 469, 491 (1984); John Ludington, Annotation, Drunk Driving: Motorist's Right to Private Sobriety Test, 45 A.L.R.4th 11 (1986). A number of these states have incorporated that right into statute.