author: Justice LANG-MIERS.

text:
    Theresia GROOMES, Individually and as Next Friend of H.K., a Minor Child, Appellant v. USH OF TIMBERLAWN, INC. f/k/a Timberlawn Mental Health System, Appellee.
    No. 05-04-01264-CV.
    Court of Appeals of Texas, Dallas.
    July 29, 2005.
    Rehearing Overruled Sept. 12, 2005.

      John E. Wall, Jr., Law Offices of John E. Wall, Jr., Dallas, for appellant.
    Sidney L. Murphy, Steed Flagg, L.L.P., Rockwall, for appellee.
    Before Justices WHITTINGTON, MOSELEY and LANG-MIERS.
   OPINION

Opinion by

Justice LANG-MIERS.

This is an appeal from an order holding that plaintiffs claims are “health care liability claims” and dismissing her claims because she did not file an expert report as required by Texas Medical Liability and Insurance Improvement Act, article 4590i (the MLIIA).

Theresia Groomes, individually and as next friend of H.K., her minor son, sued USH of Timberlawn, Inc. fik/a Timberlawn Mental Health System for false imprisonment, intentional infliction of emotional distress, and abuse of process when Tim-berlawn did not discharge H.K. from its facility upon her request. Timberlawn filed a motion to dismiss Groomes’ claims pursuant to the MLIIA, arguing that Groomes’ claims are recast health care liability claims and should be dismissed because she failed to provide an expert report as required by that statute. Tim-berlawn also filed a motion for summary judgment. The trial court granted the motion to dismiss and did not reach the merits of the summary judgment motion. Groomes appeals the trial court’s determination, arguing that her claims are not health care liability claims. We affirm.

I. Background

On August 10, 2001, H.K., age 14, was driving his mother’s car without a license and was stopped by police. While talking to police, H.K. said, “Maybe I just don’t need to live anymore.” The record shows police referred H.K. for observation, but is silent about the details of that referral. That same night, H.K. attempted suicide by overdosing on pills he found at his house and was treated at a local hospital emergency room. Groomes then took H.K. to Timberlawn for observation where a doctor evaluated H.K’s condition, diagnosed symptoms of a mental illness and recommended hospitalization. H.K. was admitted to Timberlawn as a voluntary patient. Another doctor took H.K’s history and performed a physical examination. H.K. told that doctor that he felt like overdosing “a lot” and had increased feelings of depression over the previous two weeks.

Groomes instructed Timberlawn not to give H.K. any medications without her consent. When she learned later that day that a doctor had administered medications without asking her, she signed a letter of release asking Timberlawn to discharge H.K. A third doctor advised Groomes that H.K. should remain at Tim-berlawn for forty-eight hours for observation and to prevent another suicide attempt, but Groomes insisted on H.K’s discharge. That doctor signed an order of discharge against medical advice on August 11, but after consulting with another psychiatrist and reviewing H.K.’s file, decided to discontinue the discharge order and to apply for an order of protective custody. H.K. ultimately was discharged on August 13.

Groomes claims Timberlawn falsely imprisoned her son from August 11 until August 13, causing them emotional distress.

II. Review of SummaRY Judgment

In her first, second, and fourth issues, Groomes argues the trial court erred in granting Timberlawn’s motion to dismiss because “there are genuine issues of material fact” regarding her claims of false imprisonment and infliction of emotional distress and because “the trial court erred in considering the ‘[s]ummary judgment [ejvidence’ in the light most favorable to the moving party as opposed to the non-moving party.” To the extent these issues require us to consider Timberlawn’s motion for summary judgment, we decline to do so because the trial court expressly stated it was not ruling on that motion. See Cummings v. Cire, 74 S.W.3d 920, 923 (Tex.App.-Amarillo 2002) (“court must act upon a motion before its substance can be considered on appeal”), reversed, on other grounds, 134 S.W.3d 835 (Tex.2004); see also Tex.R.App. P. 33.1. We address the trial court’s dismissal of Groomes’ claims under her third issue.

We overrule Groomes’ first, second, and fourth issues.

III. The MLIIA

A. Standard of Review

In her third issue, Groomes argues the trial court erred by dismissing her claims. She argues the standard of review is abuse of discretion. See Am. Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001) (holding a dismissal for failure to file an adequate expert report under section 13.01 of the MLIIA is a sanction and reviewed for abuse of discretion). However, courts have held that when the issue is whether the cause of action is a “health care liability claim” for purposes of the MLIIA, we apply the de novo standard of review. See, e.g., Jones v. Khorsandi, 148 S.W.3d 201, 205 (Tex.App.-Eastland 2004, pet. filed); Buck v. Blum, 130 S.W.3d 285, 290 (Tex.App.-Houston [14th Dist.] 2004, no pet.); Ponce v. El Paso Healthcare System, Ltd., 55 S.W.3d 34, 36 (Tex.App.-El Paso 2001, pet. denied). We conclude that where the issue is one of statutory interpretation, such as here, the de novo standard of review applies and that the trial court properly dismissed Groomes’ cause of action.

B. Health Care Liability Claims

The Legislature passed the MLIIA to “reduce excessive frequency and severity of health care liability claims” and to “make affordable medical and health care more accessible and available to the citizens of Texas.” See MLIIA at

§ 1.02(b)(1), (5); Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex.2004). For those reasons, the MLIIA imposes restrictions on health care liability claims. Rose, 156 S.W.3d at 543. One such restriction is the requirement that a claimant provide each defendant with an expert report within 180 days of filing the claim or risk dismissal of his claim. See MLIIA at § 13.01(d), (e)(3); Murphy v. Russell, 167 S.W.3d 835, 836-37 (Tex.2005). For the MLIIA and its restrictions to apply, the claim must be a “health care liability claim.” Rose, 156 S.W.3d at 543. The MLIIA defined “health care liability claim” as:

a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety which proximately results in injury to or death of the patient, whether the patient’s claim or cause of action sounds in tort or contract.

See MLIIA at § 1.03(a)(4).

If Groomes’ claims are really claims “for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety,” they are governed by the MLIIA. See MLIIA at § 1.03(a)(4). The MLIIA defined “medical care” as

any act defined as practicing medicine in Article 4510, Revised Civil Statutes of Texas, 1925, as amended, performed or furnished, or which should have been performed, by one licensed to practice medicine in Texas for, to, or on behalf of a patient during the patient’s care, treatment, or confinement.

See MLIIA at § 1.03(a)(6). The MLIIA defined “health care” as

any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.

Id. § 1.03(a)(2).

We examine the underlying nature of the claim, and not simply the plaintiffs pleadings, in determining if a cause of action is a “health care liability claim.” See Murphy, 167 S.W.3d at 837; Rose, 156 S.W.3d at 543; Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex.1994). One factor we consider is whether “the acts or omissions alleged in the complaint are an inseparable part of the rendition of health care services.” Rose, 156 S.W.3d at 544; see Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex.1995). We also may consider whether medical expert testimony will be required to prove the claim. See Rose, 156 S.W.3d at 544 (citations omitted).

C. GROOMes’ Claims

Groomes claims that H.K. was falsely imprisoned and that she and H.K. suffered emotional distress because Tim-berlawn conducted a psychological evaluation of H.K. “for alleged suicidal ideation,” “administered medication to [H.K.] without [his] mother’s consent” and “involuntarily committed [H.K.] to its facility for psychological] and psychiatric evaluation knowing full well there was no need and knowing [full] well that [H.K.’s] parents had sought to remove the child from their care.”

In her response to Timberlawn’s motions to dismiss and for summary judgment, Groomes claimed she “did not file a 4590i action,” and that the motion to dismiss should be denied because “it references a cause of action not raised by Plaintiffs pleadings.” On appeal, she argues her claims are not health care liability claims because the administration of medication to H.K. without her consent is not a question of the standard of care, but a question of a breach of the law. She also argues her false imprisonment claim is “nothing but a [claim for] straightforward detention” because H.K’s detention without authority, not his care, is her complaint. We disagree.

For her to prevail on her claim for false imprisonment, Groomes must prove that Timberlawn acted without authority of law. See generally Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640 (Tex.1995) (discussing elements of false imprisonment cause of action). Texas law authorizes physicians who have reasonable cause to believe a patient meets the criteria for court-ordered mental health services to seek court intervention for that patient’s safety. See Tex. Health & Safety Code Ann. § 572.004(d) (Vernon 2003). The doctor’s decision to discontinue H.K’s discharge and to seek court-ordered detention, and whether that decision was appropriate, implicates H.K.’s diagnosis, care, and treatment while at Timberlawn. See Smalling v. Gardner, No. 14-03-01079-CV, 2005 WL 549855, at *6, — S.W.3d —,(Tex.App.-Houston [14th Disk] Mar. 10, 2005, no. pet. h.). This, in turn, implicates the standard of care, because an evaluation of Timberlawn’s decision regarding H.K’s discharge from the hospital requires consideration of the duties owed to H.K. and what an “ordinarily prudent physician or health care provider would do under the circumstances.” Id.; see Rose, 156 S.W.3d at 546. To establish that Timberlawn did not have “authority of law” to detain H.K., Groomes will necessarily have to offer evidence that the doctor departed from an accepted standard of medical care by not authorizing H.K’s discharge and by seeking an order for H.K’s detention. Additionally, there may have been reasons why giving H.K. medication did not breach the standard of care, even without Groomes’ consent, and expert testimony will be required regarding those reasons. See Murphy, 167 S.W.3d at 839. And Groomes’ claim for intentional infliction of emotional distress derives from her claim for false imprisonment.

The underlying nature of all of Groomes’ claims against Timberlawn derive from the doctors’ decisions to administer medication and to discontinue H.K’s discharge. See Murphy, 167 S.W.3d at 839; Rose, 156 S.W.3d at 546. As a result, the hospital’s alleged acts or omissions are inextricably intertwined with the patient’s medical treatment and the hospital’s provision of medical care. Rose, 156 S.W.3d at 546. See Savage v. Psychiatric Inst. of Bedford, Inc., 965 S.W.2d 745, 753 (Tex.App.-Fort Worth 1998, pet. denied) (plaintiffs claims for false imprisonment and emotional distress arise from care received at hospital and are health care liability claims).

Groomes cannot avoid the requirements of the MLIIA by recasting her claims as non-medical negligence claims. See Murphy, 167 S.W.3d at 839; Rose, 156 S.W.3d at 543. Consequently, the trial court properly determined that Groomes’ claims were health care liability claims controlled by the MLIIA because they arose “from health care provided to H.K. [and] that his admission, discharge, and discontinuance of discharge order were decisions made by physicians exercising their medical judgment.”

Additionally, the trial court dismissed Groomes’ claims because she failed to comply with section 13.01 of the MLIIA requiring her to take certain actions, including furnishing Timberlawn an expert report within a specified period of time. See MLIIA at § 13.01(a), (d)(l)(2). It is undisputed that subsection (e) requires the court to dismiss the action with prejudice if a claimant fails to comply with that section and that Groomes did not furnish the required expert report. Accordingly, we conclude the trial court properly dismissed Groomes’ claims.

We overrule Groomes’ third issue.

IV. Conclusion

We conclude the trial court correctly held that Groomes’ claims were health care liability claims and properly dismissed her cause of action with prejudice for failure to comply with the provisions of the MLIIA. For these reasons, we affirm the trial court’s judgment.

      . See Act of May 30, 1977, 65th Leg., R.S., ch. 817, §§ 1.01-41.05, 1977 Tex. Gen. Laws 2039-64 (subsequent amendments omitted) (former Tex.Rev.Civ. Stat. Ann. art. 4590i (Vernon Supp.2003)), repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 864, 884 (current version at Tex. Civ. Prac. & Rem.Code Ann. §§ 74.001-74.507 (Vernon Supp.2005)) (hereafter MLI-IA). Groomes filed this lawsuit before the repeal of article 4590i therefore this case is governed by the provisions of article 4590i in effect at that time. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 23.02(d), 2003 Tex. Gen. Laws 864, 899.

        . The record does not reveal whether Kram actually applied for an order or what, if any, determination was made by the court on the application.


source: Caselaw Access Project

author: JAMES T. WORTHEN, Chief Justice.

license: Public Domain

text:
    Marlos STOKER, Appellant, v. The STATE of Texas, Appellee.
    No. 12-04-00062-CR.
    Court of Appeals of Texas, Tyler.
    Aug. 3, 2005.

      Clement Dunn, for appellant.
    Michael Sandlin, for The State of Texas.
    Panel consisted of WORTHEN, C. J., GRIFFITH, J. and DeVASTO, J.
   MEMORANDUM OPINION

JAMES T. WORTHEN, Chief Justice.

Appellant Marios Stoker was convicted of possession of a controlled substance and was sentenced to eight years of imprisonment and assessed a $5,000.00 fine. In two issues, he contends that the trial court erred by overruling his motion to suppress. We affirm.

Background

On August 7, 2003, Appellant was indicted for possessing a controlled substance, namely cocaine, “in an amount of one (1) gram or more but less than four (4) grams, including any adulterants and dilutants.” On November 11, Appellant filed a “Motion to Suppress Physical Evidence (Search Without a Warrant),” contending that the evidence seized on May 5 was obtained as a result of a “warrantless stop and/or search” of Appellant “without probable cause and without adequate reasonable suspicion” in violation of Appellant’s constitutional rights under the 1) Fourth and Fourteenth Amendments to the United States Constitution, 2) Article I, Section 9 of the Texas Constitution, and 3) Article 38.23 of the Texas Code of Criminal Procedure. Appellant further argued that the evidence should be excluded because the search

was not the result of voluntary consent by the Defendant or of valid, voluntary consent by a person with authority to give consent to search the person and/or automobile. Further, said detention and search exceeded the scope of the consent, if any. The search also exceeded any scope reasonably related to the object of the search. The detention was prolonged beyond any reasonable time that could be justified. The detention and frisk were unreasonable; any request or command by law enforcement for the suspect to remove items from his pocket was unreasonable....

Appellant waived his right to a trial by jury on January 20, 2004. On January 26, Appellant pleaded “not guilty” to the offense charged and his case proceeded to trial without a jury. Ricardo Fabbiani, a Trooper with the Texas Department of Public Safety, testified that on May 5, 2003, he was working a routine patrol on Interstate 20. The portion of the interstate where Fabbiani was working was a construction zone, and he had received multiple complaints of people traveling at high rates of speed through the zone.

Fabbiani stated that although he “wasn’t able to get him on radar,” he noticed that Appellant was “traveling at a high rate of speed.” According to Fabbiani, Appellant was “right up on another car,” so he stopped Appellant for following too closely. The speed limit in the construction zone was 60 miles per hour, and Fabbiani thought that Appellant was driving his car over that limit. Fabbiani also testified that “following too closely” was a violation of section 545.062 of the Texas Transportation Code. In Fabbiani’s opinion, Appellant would not have been able to safely stop his vehicle without colliding with the vehicle he was traveling behind if that vehicle had stopped or slowed down.

After he stopped Appellant and approached his vehicle, Fabbiani noticed that Appellant was “very nervous, very shaky” because his hands were trembling. When he asked Appellant about where he was going, Appellant stated that he had been visiting his girlfriend and that she was going to school; however, Appellant could not remember what kind of school she attended or the name of the school. Appellant was also talking on his cell phone “the majority of the time,” and in Fabbia-ni’s experience, people that deal with drugs “try to distance themselves by being on the phone so [Fabbiani] won’t ask that many questions.”

Fabbiani asked Appellant to step out of his vehicle and walk to the back of the vehicle. He informed Appellant why he was being stopped and that he would be receiving a warning for “following too closely.” Fabbiani then received a “return” on Appellant’s driver’s license that showed Appellant had previous drug charges on his record. Fabbiani then asked Appellant for his consent to search the vehicle, and Appellant gave him the consent to search.

When Appellant gave Fabbiani the consent to search the vehicle, Fabbiani asked him if he had any weapons or drugs on his person. Appellant stated that he did not, and Fabbiani started “patting him around, walking around him, and checking his pockets.” Fabbiani testified that once he receives consent to search a person’s vehicle, it is “normal course” to “pat down” a person “for [his] safety to make sure the suspect doesn’t do anything to harm [him] possibly while [he is] in the vehicle checking it out.” Fabbiani was also concerned for his safety because of Appellant’s nervousness, previous criminal history, and his own belief that something illegal might be on Appellant’s person or in his vehicle.

As Fabbiani conducted his “pat-down” search of Appellant, he felt something hard in his front left pocket that felt like a box. Appellant told Fabbiani that the box contained his cigarettes, but Fabbiani was concerned about the contents of the box because he had found a small knife inside a cigarette box during a previous unrelated search. Appellant set the cigarette box on the hood of Fabbiani’s car, and Fabbiani looked inside the cigarette box in order to make sure that it did not contain a weapon. When he looked in the box, Fabbiani found five crack rocks and a small brown vial that was later identified as POP.

On cross-examination, Fabbiani stated twice that his basis for stopping Appellant was for the traffic offense of “following too closely.” He further explained that section 545.062 gives an officer the discretion to determine whether a vehicle is following too closely to another vehicle. In his opinion, Appellant’s vehicle was following too closely to the vehicle in front of Appellant’s, because if the vehicle in front of Appellant’s had to “lock up the brakes for whatever reason,” Appellant’s vehicle would have rear-ended the other vehicle.

When asked if he could have merely squeezed the cigarette box to determine its contents while in Appellant’s pocket, Fab-biani stated that such a maneuver was possible, but if a razor blade was present, he would have sliced his finger.

At the conclusion of the trial, and before closing arguments, Appellant argued that his motion to suppress the cocaine seized by Fabbiani should be granted because 1) the criteria for the reason Appellant was stopped, “following too closely,” could not be articulated and was “not a sufficient objective basis for the stop,” thereby rendering section 545.062 of the Texas Transportation Code an unconstitutional basis for the stop and 2) Fabbiani’s search of Appellant’s cigarette pack was unreasonable. The trial court subsequently overruled Appellant’s motion to suppress, and after closing arguments, found Appellant guilty of the offense of possession of cocaine.

On February 3, the trial court held a hearing to determine Appellant’s punishment. After hearing arguments from counsel, the trial court sentenced Appellant to eight years of imprisonment and assessed a $5,000.00 fine. Appellant timely filed a notice of appeal.

In two issues, Appellant contends that the trial court erred by overruling his motion to suppress. The State argues that the trial court properly overruled the motion.

Did the Trial Court Err by Overruling the Motion to Suppress?

In his first issue, Appellant argues that his motion to suppress should have been granted because the initial stop was invalid due to the fact that 1) section 545.062 of the Texas Transportation Code is not specific enough to define prohibited conduct, thus rendering it unconstitutional under the United States Constitution, and 2) Fabbiani failed to articulate objective facts showing how Appellant violated the statute. Appellant also argues that the seizure of the cigarette pack was unreasonable. The State argues that Appellant did not properly preserve this argument. Alternatively, the State contends that 1) section 545.062 provides proper notice of an offense and 2) Appellant was also stopped for speeding.

Standard of Review

A bifurcated standard of review is applied to a trial court’s ruling on a motion to suppress evidence. An appellate court gives almost total deference to a trial court’s determination of historical facts and reviews de novo a trial court’s application of the law to those facts. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). A trial court is the sole trier of fact, the judge of witness credibility, and the determiner of the weight given to witness testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000). When a trial court rules on a motion to suppress evidence, its application of the law of search and seizure, namely, the determinations of reasonable suspicion and probable cause, are reviewed de novo. Walter v. State, 28 S.W.3d 538, 540 (Tex.Crim.App.2000); Guzman, 955 S.W.2d at 87.

Although we review the issue of reasonable suspicion de novo, the ruling on a motion to suppress lies within the sound discretion of the trial court. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). At the suppression hearing, the trial court observes the testimony and is in a better position than the appellate court to judge the credibility of the witnesses. Id. Therefore, we do not engage in our own factual review. Instead, we view the evidence and all reasonable inferences therefrom in the fight most favorable to the trial court’s ruling and sustain the ruling if it is sufficiently supported by the evidence and is correct on any theory of law applicable to the case. Id.

Constitutionality of Section 545.062 of the Texas Transportation Code

Appellant argues that section 545.062 is not specific enough to provide notice of the conduct it prohibits. A statute is void for vagueness if it does not give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. Papachristou v. City of Jacksonville, 405 U.S. 156, 163, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972). A party challenging a statute’s constitutionality bears the burden of establishing its uncon-stitutionafity. Baker v. Carr, 369 U.S. 186, 266, 82 S.Ct. 691, 737, 7 L.Ed.2d 663 (1962); Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978). To successfully mount such a challenge requires a party to establish that there is no set of circumstances under which the act would be valid. Briggs v. State, 789 S.W.2d 918, 923 (Tex.Crim.App.1990). Section 545.062(a) of the Texas Transportation Code provides as follows:

An operator shall, if following another vehicle, maintain an assured clear distance between the two vehicles so that, considering the speed of the vehicles, traffic, and the conditions of the highway, the operator can safely stop without colliding with the preceding vehicle or veering into another vehicle, object, or person on the highway.

Tex. Teansp. Code Ann. § 545.062(a) (Vernon 1999).

Although Appellant argues that there are no circumstances under which the statute would be valid, his argument is without merit. Appellant has not established that a person of reasonable intelligence is not given fair notice of the statute’s requirements. Compliance with the statute requires only one thing: to maintain an assured clear distance while following another vehicle in order to safely stop and avoid a collision with the preceding vehicle. Thus, section 545.062 is not unconstitutionally vague. See United States v. Inocencio, 40 F.3d 716, 728 (5th Cir.1994) (holding that section 61(a) of Article 6701(d) of the Texas Revised Civil Statutes, the predecessor to section 545.062, was not unconstitutionally vague); Ford v. State, 158 S.W.3d 488, 494 (Tex.Crim.App.2005) (holding that a stop based on section 545.062 must be based on specific, articula-ble facts for reasonable suspicion). Appellant’s first sub-issue is overruled.

Reasonable Suspicion for the Stop

Appellant further argues that the traffic stop was unconstitutional because Fabbiani failed to articulate objective facts showing how he violated section 545.062 by “following too closely.” It is well settled that a traffic violation committed in an officer’s presence authorizes an initial stop. Armitage v. State, 637 S.W.2d 936, 939 (Tex.Crim.App.1982). A violation of section 545.062 constitutes a traffic violation. Ford, 158 S.W.3d at 493.

The court of criminal appeals recently addressed this issue in the Ford case, where Ford was stopped by a Texas Department of Public Safety Trooper for following another car too closely in violation of section 545.062. Id. at 490. When Ford lowered his window, the trooper noticed a strong odor of marijuana. Ford later consented to a search of his vehicle, which yielded 55 grams of marijuana and 400 grams of codeine. Id. at 491. Ford was subsequently indicted for felony possession of codeine.

Prior to trial, Ford filed a motion to suppress evidence, challenging the trooper’s reasonable suspicion for the initial detention. The only evidence to support the trooper’s reasonable suspicion that Ford had committed a traffic violation was his testimony that he had pulled Ford over for “following too close.” No other testimony regarding Ford’s driving was offered. Id. The trial judge denied Ford’s motion to suppress, and Ford pleaded guilty to a reduced second-degree felony possession of a controlled substance charge. Ford subsequently appealed the trial court’s denial of his motion to suppress. Id.

On appeal, the court of appeals overruled Ford’s issues regarding the motion to suppress and found that the trial court did not err by denying the motion to suppress. The court stated that based on the trooper’s training and experience, he was qualified to make a judgment on whether Ford had violated section 545.062 by following another vehicle too closely. Id. at 491-92. Ford appealed this decision to the court of criminal appeals.

The court of criminal appeals first noted that an officer conducts a lawful temporary detention when he has reasonable suspicion to believe that an individual is violating the law. Id. at 492. Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. Id. (citing Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App.2001)).

The court analyzed the trooper’s testimony and stated that the phrase “following too close,” without more, was merely “a conclusory statement that Ford was violating a traffic law.” Id. at 493. Because the record failed to reveal any objective, specific, articulable facts, the court held that the trial court erred in denying Ford’s motion to suppress. Id. at 493-94.

In the instant case, Fabbiani stated that Appellant was “traveling at a high rate of speed” and was “right up on another car,” so he stopped Appellant for following too closely. The speed limit in the construction zone was 60 miles per hour, and Fab-biani thought that Appellant was driving his car over that limit. Fabbiani further testified that in his opinion, Appellant would not have been able to safely stop his vehicle without colliding with the vehicle he was traveling behind if that vehicle had stopped or slowed down. The facts elicited during the hearing on the motion to suppress are more than the mere “following too close” testimony in Ford. Because Fabbiani testified that he saw Appellant’s vehicle “right up on another” vehicle while “traveling at a high rate of speed” such that Appellant would not have been able to safely stop his vehicle, we hold that the trooper gave specific, articulable facts to support the reasonable suspicion that Appellant had committed a traffic violation. Appellant’s second sub-issue is overruled.

Seizure of the Cigarette Pack

In his second and final issue, Appellant contends that Fabbiani’s seizure of the cigarette pack that contained the contraband was unreasonable. The State urges that Appellant’s argument is merit-less because the search was reasonable.

It is undisputed that Fabbiani performed a pat-down search on Appellant. The purpose of a pat-down search is officer safety. O’Hara v. State, 27 S.W.3d 548, 555 (Tex.Crim.App.2000). A pat-down search is substantially less intrusive than a standard search requiring probable cause. Id. at 550-51. Such searches will be justified only where the officer can point to specific and articulable facts that reasonably lead him to conclude that the suspect might possess a weapon. See Carmouche v. State, 10 S.W.3d 323, 329 (Tex.Crim.App.2000). Fabbiani testified that once he receives consent to search a person’s vehicle, it is “normal course” to “pat down” a person “for [his] safety to make sure the suspect doesn’t do anything to harm [him] possibly while [he is] in the vehicle checking it out.” Fabbiani was also concerned for his safety because of Appellant’s nervousness, previous criminal history, and his own belief that something illegal might be on Appellant’s person or in his vehicle. Fabbiani was concerned about the contents of the cigarette box because he had found a small knife inside a cigarette box during a previous unrelated search. Appellant set the cigarette box on the hood of Fab-biani’s car, and Fabbiani looked inside the cigarette box in order to make sure that it did not contain a weapon.

Given these facts, we hold that Fabbiani was justified in performing a pat-down search of Appellant for weapons during the investigative detention. The same is true for the search of the cigarette box. Once an officer conducting a pat-down search satisfies himself that a suspect has no weapons, and the officer has no valid reason to further invade the suspect’s personal security, then the corollary must be time also that until the officer is satisfied the suspect has no weapons, he may continue the search. See Worthey v. State, 805 S.W.2d 435, 438-39 (Tex.Crim.App.1991). Fabbiani was justified in looking in the cigarette box in order to determine whether it contained a knife or other weapon before he searched Appellant’s car. Appellant’s second issue is overruled.

Conclusion

Appellant has not directed us to anything in the record to demonstrate that section 545.062 of the Texas Transportation Code is unconstitutional under either the United States or Texas constitutions because it is “void for vagueness.” We also hold that Fabbiani was justified in 1) detaining Appellant after observing him violate section 545.062 and 2) searching the cigarette pack for any possible knives, blades, or other weapons.

The judgment of the trial court is affirmed.

      . Section 545.062(a) of the Texas Transportation Code states that a driver shall, if following another vehicle, keep an assured clear distance between the two so that, considering the speed of the vehicles, traffic, and the conditions of the highway, the driver can safely stop without colliding with the preceding vehicle or veering into another vehicle, object, or person on or near the highway. Tex Transp. Code Ann. § 545.062 (Vernon 1999).

      . Appellant properly preserved his "void for vagueness” argument by raising it in his motion to suppress and during the argument portion of the hearing on the motion. See Tex.R.App. P. 33.1; Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App.2000).


author: Justice CASTILLO.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. MARKETING ON HOLD, INC. d/b/a Southwest Tariff Analyst, Appellee.
    No. 13-03-287-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Aug. 4, 2005.

      Christopher D. Kratovil, Robert E. Davis, Weston Clark Loegering, Hughes & Luce, LLP, Kirsten M. Castaneda, Locke, Liddell & Sapp, Dallas, Javier Aguilar, Geoffrey Amsel, Cynthia F. Malone, San Antonio, Mike A. Hatchell, Molly H. Hate-hell, Christopher Dove, Locke, Liddell & Sapp, LLP, Austin, Tracey Ellison, John W. Kelly, Jr., Bellaire, Ruben R. Pena, Law Office of Ruben R. Pena, P.C., Har-lingen, for appellant.
    J. Marcus Hill, Hill & Hill, Thomas Bray, Russell T. Lloyd, John M. O’quinn, O’quinn & Laminack, Houston, Manuel M. Vela, Vela & Vela, Harlingen, Ernesto Ga-mez, Jr., Law Office of Ernesto Gamez, Jr., Brownsville, for appellee.
    Before Justices YANEZ, CASTILLO and GARZA.
   OPINION

Opinion by

Justice CASTILLO.

This interlocutory appeal is brought, pursuant to Texas Civil Practice and Remedies Code section § 51.014(a)(3), from the trial court’s order of May 6, 2003, certifying a class. We affirm.

I. Background

The underlying class action is brought on behalf of customers of Southwestern Bell Telephone, L.P. (“Southwestern Bell”) for improper pass-through and collection of certain fees. The fees are initially assessed against Southwestern Bell under various city ordinances to compensate the cities for costs of administering public rights-of-way. The ordinances recognize Southwestern Bell’s authority to pass the fees through to its telephone subscribers, but provide that Southwestern Bell is neither to profit nor to sustain any loss therefrom. The class charges that some fees were improperly “passed through” or charged to subscribers of certain services, specifically SmartTrunk, Digital Loop, and Hotel/Motel measured service (all designed for different classes of business customers).

Marketing on Hold, Inc., d/b/a Southwestern Tariff Analyst (“STA”) is a company that audits its customers’ telephone bills and represents them in seeking refunds from the service provider. In the course of those audits, STA discovered the improper charges. Some of STA’s customers assigned their claims to STA, and STA then brought the underlying suit in its own name, seeking to be identified as class representative for nearly 7,000 customers. STA itself was never a subscriber to the services in issue and never paid any of the disputed fees.

The trial court held a four-day hearing on the issue of class certification. All parties were represented at the hearing and significant volumes of evidence were introduced and reviewed. The parties were given the opportunity to file additional and supplemental briefs, which the trial court reviewed and considered. The court issued a 28-page order on May 6, 2003, certifying the class. The class was defined to include subscribers to the services identified above, who “made payment(s) to Southwestern Bell....” The trial court found that the requisites of rule 42(a), numerosity, commonality, typicality and adequacy of representation, were satisfied. Tex. R. Civ. P. 42(a). Extensive discussion in the order is directed to the suitability of STA as a class representative. The court found STA to be a proper representative by virtue of its ownership of the assigned claims. The court found no conflicts of interest between the representative and the class, or between sub-classes.

The court also reviewed evidence and found that, under rule 42(b)(4) (Tex. R. Civ. P. 42(b)), questions of law and fact common to the members of the class predominated over any questions affecting only individual members, and that the class action was superior to other available methods to adjudicate the controversy. The trial court noted damages derived solely from economic injury, and found that evidence of those damages is susceptible to class-wide proof because billing practices of Southwestern Bell are consistent from customer to customer. The trial court further noted:

Plaintiff [STA] is not seeking either consequential damages or punitive damages but is seeking economic damages in the form of a refund of the alleged overcharge. The collection of an overcharge, if any, can be determined by reference to the billing records ...

With respect to the claim of unjust enrichment, the trial court observed that a party must demonstrate that another obtained a benefit through fraud, duress or the taking of an undue advantage, but that plaintiff did not allege any fraud or duress. Therefore, the question of the taking of an undue advantage is a common issue which can be answered the same for all members of the class. The trial court also addressed the claim of breach of express warranty, finding that (1) Southwestern Bell presents its bills for services in substantially the same form to all its customers, including class members; (2) each bill contains a separate charge for municipal charges; (3) the bills, on their face, constitute representations that the bills are true and accurate; and (4) no independent inquiry is required into what representations were relied upon by each class member because the representation is uniform to all members of the class. The trial court proceeded to review in detail its rationale for concluding that class certification was proper in the face of the challenges raised in this appeal.

II. Issues on Appeal

Southwestern Bell urges that the certification of the class was improper because the prerequisites of rule 42 of the Texas Rules of Civil Procedure have not been satisfied. Southwestern Bell (1) challenges the class representative’s standing as well as its ability to adequately represent the class; (2) challenges the predominance of common questions where (a) causes of action include the element of reliance, and (b) assessment of damages will require individualized review of customer bills and other records; and (3) contends that inherent conflicts of interest exist between (a) the class representative and class members, and (b) sub-groups of the class.

III. Standard of Review

Our review of an interlocutory appeal from a class certification order is limited to determining whether the trial court’s order constituted an abuse of discretion. Ford Motor Co. v. Ocanas, 138 S.W.3d 447, 451 (Tex.App.-Corpus Christi 2004, no pet.); see also Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 690-91 (Tex.2002). In reviewing a trial court’s decision under an abuse of discretion standard, we must determine whether the trial court acted without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). The exercise of discretion is within the sole province of the trial court, and an appellate court may not substitute its discretion for that of the trial judge. Johnson v. Fourth Ct.App., 700 5.W.2d 916, 918 (Tex.1985). Rather, an abuse of discretion occurs only when the trial court reaches a decision that is “so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Id. at 917.

Although we discuss the propriety of the class certification in light of the claims asserted by the named plaintiffs, we in no way evaluate the merits of these claims. See Intratex Gas Co. v. Beeson, 22 S.W.3d 398, 404 (Tex.2000) (“Deciding the merits of the suit in order to determine its maintainability as a class action is not appropriate.”).

The trial court must conduct a “rigorous analysis” to determine whether certification requirements have been met. Southwestern Ref. Co. v. Bernal, 22 S.W.3d 425, 435 (Tex.2000). This rigorous analysis includes indicating how the claims will likely be tried so that conformity with rule 42 can be meaningfully evaluated. Schein, 102 S.W.3d at 690. Courts are to “go beyond the pleadings” and understand the “claims, defenses, relevant facts, and applicable substantive law” when determining whether the requirements of certification should be met. Bernal, 22 S.W.3d at 435.

Typically, under this standard of review, the appellate court must indulge every presumption favorable to the trial court’s ruling. Fidelity and Guar. Life Ins. Co. v. Pina, 165 S.W.3d 416, 422 (Tex.App.-Corpus Christi 2005, no pet. h.) (citing Graebel/Houston Movers, Inc. v. Chastain, 26 S.W.3d 24, 29 (Tex.App.-Houston [1st Dist.] 2000, pet dism’d w.o.j.)). On certification issues, however, the appellate court is not bound by this presumption and must independently determine whether the requirements of rule 42 have been fully satisfied. Pina, 165 S.W.3d at 422; Ocanas, 138 S.W.3d at 451; see also Schein, 102 S.W.3d at 691; Bernal, 22 S.W.3d at 435 (determining that actual compliance with rule 42 “must be demonstrated; it cannot be presumed”).

IV. Rule 42

Under rule 42(a), every class action must satisfy four threshold requirements: numerosity, commonality, typicality, and adequacy of representation. See Tex.R. Civ. P. 42(a). In addition, a proposed class action must also satisfy at least one of the subparts of rule 42(b). See Tex. R. Civ. P. 42(b). The trial court certified the class under rule 42(b)(4), which permits class actions to be maintained when common questions of law or fact predominate and a class action is superior to other forms of adjudication. See id.

V. Analysis

After reviewing the record, we conclude that the trial court conducted the requisite “rigorous analysis,” demonstrated in the detailed order which included its findings of fact and conclusions of law. We now review the challenged issues, applying the abuse of discretion standard, to independently determine whether the requirements of rule 42 have been fully satisfied, i.e., demonstrated and not presumed. See Ocanas, 138 S.W.3d at 451; see also Schein, 102 S.W.3d at 691; Bernal, 22 S.W.3d at 435.

A. The Class Representative

Southwestern Bell challenges the typicality of STA as class representative, and its standing to represent the class. STA acquired ownership of causes of action by virtue of assignments and is not, independent of those assignments, a member of the class. The assignments are from businesses falling within two of the three sub-classes, and pre-date the commencement of this litigation.

Southwestern Bell contends that (1) STA lacks standing because it is not, independent of the assignments, a member of the class and has sustained no class injury; (2) the assignments are (a) void under the municipal ordinances permitting the pass-through of charges, (b) unenforceable under section 12.014(a) of the Texas Property Code (Tex. PROP. Code Ann. § 12.014(a) (Vernon 2004)), and (c) void as against public policy. Southwestern Bell also challenges the adequacy of representation by STA, in light of asserted conflicts of interest.

1. Typicality or Standing

Typicality requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Bernal, 22 S.W.3d at 433. A class representative must possess the same interests and suffer the same injury as unnamed or absent class members. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982); State Farm Mut. Auto. Ins. Co. v. Lopez, 45 S.W.3d 182, 191 (Tex.App.-Corpus Christi 2001), rev’d, on other grounds, 156 S.W.3d 550 (Tex.2004). To be typical, class representatives’ claims need not be identical, but must arise from the same event or course of conduct giving rise to the claims of other class members and must also be based on the same legal theories. Weatherly v. Deloitte & Touche, 905 S.W.2d 642, 653 (Tex.App.-Houston [14th Dist.] 1995, writ dism’d w.o.j.). Other courts have described this as a requisite “nexus between the injury suffered by the representative and the injuries suffered by other members of the class.” Dresser Indus., Inc. v. Snell, 847 S.W.2d 367, 372 (Tex.App.-El Paso 1993, no writ).

Southwestern Bell argues that STA’s status is not only atypical, but that STA lacks standing, inasmuch as STA was never a member of the class in its own right, and thus never sustained any of the injuries for which the suit is brought. STA counters that, by virtue of the assignments, it “stands in the shoes” of the assignors and has every entitlement to pursue the interests it now owns.

The court, in State Farm Fire & Cas. Co. v. Gandy, 925 S.W.2d 696, 705-08 (Tex.1996), extensively explored the as-signability of causes of action. While causes of action may be generally assignable, with notable exceptions, the Gandy court nevertheless observed:

Practicalities of the modern world have made free alienation of choses in action the general rule, but they have not entirely dispelled the common law’s reservations to alienability, or displaced the role of equity or policy in shaping the rule. Even today, the general rule is that a contractual assignment may be “inoperative on grounds of public policy.”

Gandy, 925 S.W.2d at 707 (citing Restatement (Second) Of Contracts § 317(2)(b) (1981). The Gandy court, noting that the Restatement identifies numerous limitations on alienation of choses in action, continued:

The increase in litigation caused by assignments remains a matter of concern. So does the effect of alienability on the parties and circumstances in the original transaction or occurrence. As Holmes succinctly summarized, “the history of early law everywhere shows that the difficulty of transferring a mere right was greatly felt when the situation of fact from which it sprung could not also be transferred. Analysis shows that the difficulty is real.”

Id. (citing Oliver W. Holmes, Jr., The Common Law 340, 409 (Boston; Little, Brown, and Company 1881)).

Texas courts recognize that many causes of action are property rights which may be assigned. Pineda v. PMI Mortgage Ins. Co., 843 S.W.2d 660, 675 (Tex.App.-Corpus Christi 1992, writ denied). However, as-signability as a general proposition is not in contention with respect to this issue as raised by Southwestern Bell. Rather, it is the ability of the assignee STA to represent an entire class in an action where it has not personally sustained any injury, and in which it would not participate at all but for the assignments.

STA cites to federal cases from Indiana, Michigan, and various other jurisdictions for the proposition that an assignee may properly stand in the shoes of the assignor and represent the interests of the class.

We note that application of Texas Rule of Civil Procedure 42, dealing with class actions, has been modeled after Federal Rule of Procedure 23, and “federal decisions and authorities interpreting current federal class action requirements are persuasive in Texas actions.” Ford Motor Co. v. Sheldon, 22 S.W.3d 444, 452 (Tex.2000). STA directs us to several federal cases which support that an assignee may serve as a class representative.

McDaniel v. N. Am. Indemnity, 2003 WL 260704, 2003 U.S. Dist. LEXIS 1663 (S.D.Ind. Jan. 27, 2003) involved a class action brought by participants or beneficiaries of welfare benefit plans. Id. 2003 WL 260704 at *2, *2-*3. Claims included breach of fiduciary duties and other ERISA violations. Id. 2003 WL 260704 at *2, *5. Pedcor, one of the identified class representatives and an assignee of claims for benefits, brought the same claims as other members of the class. Id. 2003 WL 260704 at *3-*4, *10-*11. “Each of Plaintiffs’ claims arises from Defendants’ alleged course of conduct toward the class, and each of Plaintiffs’ claims is based upon the same legal theory as the class members. Plaintiffs’ claims are typical of the class, and the typicality requirement of Rule 23(a) is satisfied.” Id. 2003 WL 260704 at *4, *11. The court found no problem with Pedcor serving as a class representative, despite argument that it was not typical by virtue of the assignments. Id. 2003 WL 260704 at *3-*4, *10-*11.

In re Cardizem CD Antitrust Litigation, 200 F.R.D. 297 (E.D.Mich.2001) dealt with antitrust claims under the Sherman Antitrust Act. Id. at 300. Plaintiffs seeking certification of the class were either direct purchasers, or their assignees. Id. The court focused not on the characteristics of the class representative, but on the claims asserted to assess typicality:

Typicality refers to the nature of the claims of the representative, not the individual characteristics of the plaintiff. ... As one court noted: ‘there is nothing in Rule 23(a)(3) which requires named plaintiffs to be clones of each other or clones of other class members.’
The assignment issue Defendants raise presents a question of law that can readily be resolved by the Court without skewing the focus of the litigation or creating a significant danger of distracting [the identified class representative’s] ability to pursue the interests of the absent class members. Contrary to Defendants’ arguments, it does not present a unique defense that will consume the merits of this litigation.

Id., 200 F.R.D. at 304-05 (citations omitted). Because the class representative stood in the shoes of the absent class members, and its claims arose from the same agreement that gave rise to the other class members’ claims, Id. at 305, typicality was satisfied and the class was certified.

In Hobbs v. Blue Cross Blue Shield of Alabama, 276 F.3d 1236 (11th Cir.2001), physicians’ assistants brought state insurance violation claims for failure to pay for services. Id. at 1239. The matter was transferred to federal court under the ERISA preemption provisions, Id. at 1239-40, where it was contended that preemption did not apply because this was not an ERISA claim — the physicians assistants lacked standing to proceed under ERISA as they were not participants or beneficiaries of an employee health benefit plan. Id. at 1240. The eleventh circuit noted it had previously held that nothing in the federal statutes prohibited the assignment of these types of rights, which provided a plaintiff with derivative standing. Id. at 1241. However, in Hobbs, the court faced a situation which was the opposite of the situation presented here: because there was no evidence of assignments to the physicians assistants, the class action could not proceed. Id. at 1241.

We conclude that the result reached in Hobbs does not support an argument that assignees may not act as class representatives. Id. As the courts did in these federal class actions, we have focused on the nature of the claims brought, rather than the characteristics of the class representative. In light of the deference we accord to the trial court’s “rigorous analysis” and decision, and in light of our own analysis, we are in accord with the trial court that (1) the claims brought are typical and substantially similar to claims advanced on behalf of all class members, and (2) STA has standing, by virtue of the assignments, to bring those claims.

2. Applicability of the Ordinances to the Class Representative

Southwestern Bell contends that language contained in the municipal ordinances, which authorize Southwestern Bell’s pass-through of the various fees to its customers, invalidates the assignments to STA. Language in the ordinance included in the record, tendered as typical of the various applicable ordinances, provides: “This Ordinance and any rights or privileges hereunder shall not be assignable to any other entity without the express consent of the CITY.” Southwestern Bell argues that because the class members’ claims derive from and depend on the criteria in each ordinance, the assignments are barred by those ordinances.

The pleadings allege that Southwestern Bell has improperly “passed-through” various charges to its customers. We reject the contention that a customer’s right to challenge the methodology applied in implementing the “pass-through” is derivative of the contract or ordinance limiting the ability of either Southwestern Bell or the City to make any assignment of its rights or privileges.

We are required to discern and give effect to the intent of the enacting body. To achieve this goal, we must first attempt to discern that intent must come [sic] from the plain language of the ordinance. Our obligation, however, to enforce the plain language of the ordinance does not authorize us to employ a “bloodless literalism in which text is viewed as if it had no context.” We are required to consider the context and the consequences that would follow from a particular interpretation, and we must avoid interpretations that would produce absurd results or render other language mere surplusage.

City of Pearland v. Reliant Energy Entex, 62 S.W.3d 253, 255 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (citations omitted).

The fact that the ordinance permits a “pass through” of the fees does not subject all customers of Southwestern Bell who are subsequently billed for the “pass-through” fees to the restrictive terms of the ordinance that are binding upon either Southwestern Bell or the City.

3. The Texas Property Code

Southwestern Bell urges that section 12.014 of the property code precludes the assignment of a cause of action prior to the date on which suit is filed. See Tex. PROP. Code Ajnn. § 12.014(a) (Vernon 2004). The statute provides that “a judgment or part of a judgment of a court of record or an interest in a cause of action on which suit has been filed may be sold, regardless of whether the judgment or cause of action is assignable in law or equity if the transfer is in writing.” Id.

Southwestern Bell contends that this statute is an express effort by the legislature to limit assignability of causes of action to only after a suit is filed. The case relied upon by Southwestern Bell, McLaury v. Watelsky, 39 Tex.Civ.App. 394, 87 S.W. 1045 (1905, no writ), clearly dealt with the assignment of a cause of action on which suit had already been brought. Id. at 1046. Our sister court observed that under the old common law, causes of action for personal injuries were not assignable at all. Id. at 1049. “It has been held that under said article [the new statute] such an assignment to attorneys as compensation for prosecuting the suit, is valid as against those having notice, though made before a suit was commenced, and not filed or noted on the docket.” Id.

We do not find that the statute in issue here was a direct effort by the legislature to limit assignability of causes of action to only those situations where suit has already been filed, but, rather, that its purpose was to require adequate notice of any such assignment:

In the meantime the Legislature, in 1889, had enacted article 6833, which provided that the sale of any cause of action or interest therein after suit had been filed should be evidenced by written transfer filed among the papers of the cause, and that said article should apply to all suits, claims, and causes of action, whether assignable in law and equity, or not. This statute is one of notice, and is also legislative recognition of the right to barter and sell interests in ... suits.

McCloskey v. San Antonio Traction Co., 192 S.W. 1116, 1119 (Tex.Civ.App.-San Antonio 1917, writ ref'd) (citing Gulf, Colorado & Santa Fe Ry. Co. v. Wooten, 10 Tex.Civ.App. 54, 30 S.W. 684 (1895, writ dism’d) (“the Texas statute regulating the transfer of judgments, causes of action, and interests therein, is merely one of notice”)).

We conclude that nothing in the statute cited by Southwestern Bell precludes or invalidates the assignments at issue in this matter simply because they were made prior to the filing of suit.

4. Public Policy

Southwestern Bell argues that permitting an assignee to function as the class representative in the circumstances of this case will open the floodgates to improper solicitation of causes of action and “entrepreneurial” class actions. We note the trial court examined this issue at length, finding that (1) STA only took assignments from pre-existing customers, (2) those customers were all previously members of the Míreles class action from which the claims in this case were carved, and (3) STA did not improperly solicit the customers. The trial court concluded, in detailed findings reflecting a considered and rigorous analysis, that “under the facts of this case, the dangers asserted by the Defendant are unfounded.” The Texas Supreme Court has identified limited situations in which an assignment should be declared void as against public policy. None of those situations are presented under the facts of this case. We decline to overrule the trial court’s findings on the basis of Southwestern Bell’s public policy arguments.

5. Adequacy of Representation

Southwestern Bell argues that STA is inadequate as a class representative for several reasons. First, it argues there is inherent antagonism between STA’s representation of all the various class members, because payment or credit to one group will necessarily entail additional charges to other portions of the group when any charges found to have been improper are reallocated amongst the customers. Southwestern Bell also argues that inherent conflicts exist because (1) STA has only a financial motivation to pursue the class action and, therefore, will not be amenable to alternative non-monetary remedies; (2) assignments given to STA do not include the group of business interests who paid for the Hotel/Motel measured service, and STA therefore cannot be relied upon to adequately represent that sub-class; and (3) a corporate class representative is inappropriate.

Adequacy of representation is a question of fact left to the sound discretion of the trial court, and the trial court does not abuse its discretion in finding adequacy if there is evidence to support the finding. Farmers Ins. Exch. v. Leonard, 125 S.W.3d 55, 66 (Tex.App.-Austin 2003, pet. denied) (citing Glassell v. Ellis, 956 S.W.2d 676, 681-82 (Tex.App.-Texarkana 1997, pet. dism’d w.o.j.). Only a conflict that goes to the very subject matter of the litigation will defeat a finding of adequacy. Id. (citing Nissan Motor Co., Ltd. v. Fry, 27 S.W.3d 573, 583 (Tex.App.-Corpus Christi 2000, pet. denied)).

The trial court, after a rigorous analysis and four days of hearing and testimony, made several express findings, including that:

(1) Evidence of STA’s knowledge and expertise about the billing procedures and information retrieval systems of Southwestern Bell gives STA a superior ability to pursue this litigation and supervise activities of class counsel;
(2) STA has taken assignments of claims ranging from small to large, STA therefore has an interest in asserting the rights of all members of the putative class, and “there is sufficient evidence to rule that the interests of STA are aligned with and not antagonistic to unnamed putative class members;”
(3) Claims related to the Hotel/Motel business subclass arise out of the same unauthorized charge of municipal fees for services as the claims advanced for the rest of the class, are substantially similar to the claims of the putative classes as a whole, there is no evidence of any conflict between the subclasses, and the claims are not competing;
(4) There is no basis for allegations of impropriety or barratry on the part of individual employees/experts of STA, including Mr. Wilder, Mr. Shelton, and Mr. Clapsaddle, these individuals can adequately speak for STA as representative of the class, and defenses of Southwestern Bell can be resolved without skewing the focus of the litigation or degrading STA’s ability to pursue interests of the absent class members;
(5) There is no basis for finding a conflict or antagonism between STA and the rest of the class, and any alleged intra-class conflict is too speculative and hypothetical to bar class certification;
(6) Sufficient evidence was presented to find that “STA will vigorously prosecute this cause of action on behalf of the putative class as class representative,” and that, but for the efforts of STA, the class members’ claims would have been included in the Míreles settlement which would have paid them nothing.

The record contains evidence, including hearing and deposition testimony, to support the trial court’s findings as to adequacy. We conclude there is no conflict going “to the very subject matter of the litigation,” see Leonard, 125 S.W.3d at 66, and we will not, on this basis, disturb the conclusion of the trial court that STA can adequately represent the interests of absent class members as class representative.

B. Predominance Issues

Even if all requisites of rule 42(a) are satisfied, STA is required to demonstrate that a class action is maintainable because it satisfies one of the requisites of rule 42(b). See Tex. R. Civ. P. 42(a); 42(b)(3). In this suit, STA has argued, and the trial court concluded, that a class action is appropriate because common issues of fact and law predominate. Southwestern Bell argues, to the contrary, that the litigation effort will be predominated by individualized rather than common inquiries and analyses, both as to liability and as to damages. It argues that (1) causes of action for breach of express warranty and fraud (as part of the unjust enrichment claim) include the element of reliance which militates against a class action, and (2) damages cannot be determined absent an individualized review and analysis of each class member’s own billings and payments.

We note that predominance is one of the most stringent requirements to be satisfied. Bernal, 22 S.W.3d at 433-35. The test for establishing predominance of common issues is whether those issues will be the object of most of the efforts of the parties and the court, not whether common issues outnumber individual issues. Id. at 434.

1. The Element of Reliance

Southwestern Bell argues that the existence of reliance as an element precludes a finding of predominance of common issues. Several causes of action are identified in the live pleadings, including unjust enrichment and breach of express warranty.

Reliance may be a requisite element of a claim for breach of express warranty.

While ‘particular’ reliance may not be necessary, we have held several times that something rather like it is. The basis-of-the-bargain requirement ‘loosely reflects the common-law express warranty requirement of reliance,’ and ‘reb-anee is also not only relevant to, but an element of proof of, plaintiffs’ claims of breach of express warranty (to a certain extent).

PPG Indus., Inc. v. JMB/Houston Centers Partners, Ltd., 146 S.W.3d 79, 99 (Tex.2004).

Southwestern Bell also asserts that reliance is a requisite element of the cause of action for unjust enrichment. We agree that a person may recover under an unjust enrichment theory when one person has obtained a benefit from another by fraud, duress, or the taking of an undue advantage. Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex.1992). Fraud is not a requisite component for such a recovery. Indeed, unjust enrichment is not a distinct independent cause of action, but a theory of recovery. Mowbray v. Avery, 76 S.W.3d 663, 679 (Tex.App.-Corpus Christi 2002, pet. denied). Unjust enrichment is based on the equitable principle that one who receives benefits unjustly should make restitution for those benefits. Villarreal v. Grant Geophysical, Inc., 136 S.W.3d 265, 270 (Tex.App.-San Antonio 2004, pet denied); Mowbray, 76 S.W.3d at 679; Bransom v. Standard Hardware, Inc., 874 S.W.2d 919, 927 (Tex.App.-Fort Worth 1994, writ denied). To be entitled to restitution under a theory of unjust enrichment, the plaintiff must show the party sought to be charged had wrongfully secured a benefit or had passively received one which would be unconscionable for that party to retain. Villarreal, 136 S.W.3d at 270; Matagorda County v. Texas Ass’n of Counties County Gov’t Risk Mgmt. Pool, 975 S.W.2d 782, 785 (Tex.App.-Corpus Christi 1998), aff'd, 52 S.W.3d 128 (Tex.2000). The taking of an undue advantage does not necessarily encompass the element of reliance.

Even if we assume, without deciding, that reliance is a requisite element of one of these claims, a class action is not necessarily defeated. The issue is whether that element will become the focus of the litigation, consuming the attention of the parties and the court and thereby defeating the predominance of common issues. Bernal, 22 S.W.3d at 434. Here, Southwestern Bell asserts that presentation of its bills to customers, which include a charge for franchise or municipal fees, is a representation that the charge is due and owing, and one upon which customers necessarily relied. Even if true, it is clear that such reliance would have been class-wide, not individualized. We agree with the trial court that any such reliance would have affected each class member in the same manner, and we therefore conclude that neither the cause of action for breach of express warranty nor the theory of unjust enrichment is a bar to certification of the class.

2. Assessment of Damages

Southwestern Bell also urges that, in the event of a finding of liability, any calculation of damages will require such an individualized analysis of each customer’s bill and payment schedule that any predominance of common issues will be defeated. A long list of potential individualized inquiries is suggested by Southwestern Bell. However, those contentions were directly addressed at the certification hearings. Testimony was presented that a computer program can be constructed to review the bills and payments and perform the requisite mathematical calculations to determine damages and their allocation to class members. Southwestern Bell rejects that testimony and contends it is entitled to a fair opportunity to individual determination of damages for each of the claims. Southwestern Bell certainly retains the right to dispute accuracy of calculations generated by a computer model. Nevertheless, the trial court concluded that:

[Ijnformation required for the identification of class members, the determination of the amount of unauthorized municipal charges, if any, collected by Defendant from each class member, and the calculation of damages, is available in electronically or visually recoverable form from SWBT [Southwestern Bell] records. Extensive testimony was introduced on the subject of the information which might not be available through defendants’ records in electronic format. ... After evaluating the testimony presented by both sides, the Court finds that the accumulation of evidence from Defendants’ records is manageable and can be accomplished without undue delay. The Court finds that the records of Defendant can be used to identify members of the class and calculate damages should that become necessary.

We remain mindful that our role is to indulge every presumption favorable to the trial court’s ruling. Pina, 165 S.W.3d at 422 (citing Graebel/Houston Movers, Inc. v. Chastain, 26 S.W.3d 24, 29 (Tex.App.Houston [1st Dist.] 2000, pet. dism’d w.o.j.)), and then not to be bound by that presumption, but to independently determine whether the requirements of rule 42 have been fully satisfied. Id.; Ocanas, 138 S.W.3d at 451; see also Schein, 102 S.W.3d at 691; Bernal, 22 S.W.3d at 435 (determining that actual compliance with rule 42 “must be demonstrated; it cannot be presumed”).

We conclude, based upon our independent review, that the trial court performed a rigorous analysis of the various aspects that must be satisfied before a class action can be certified under rule 42, that the trial court found a basis in the evidence for its conclusions and findings, that the trial court did not err as a matter of law in reaching its conclusions, and that the class was properly certified. We make no conclusions as to the merits of any of the claims presented.

VI. Conclusion

We affirm the order of the court certifying the underlying matter as a class action and remand for further proceedings on the merits.

      . Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(3) (Vernon Supp.2004-05).

      . STA owns 100% of the claims, but the customers retain an overriding interest in 70% of any recovery realized by STA.

      . Claims brought by STA included breach of contract, unjust enrichment, breach of express warranty for services, and negligence per se.

      . The trial court noted numerous depositions and testimony, none of which supported allegations of barratry or impropriety in securing the assignments.

      . The trial court further noted that "[t]he question of whether or not the bills themselves, and the individual items in them, constitute representations that the bills are accurate and can be relied on is a question that is common to all members of the class.... The legal effect of the representation on the bill that certain charges are due and owing is a question the Court will address at the appropriate time. The Court's ruling will affect all members of the class equally.... If the Court determines that the bill is not a written representation of its accuracy and does not constitute an express warranty, then that ruling will apply equally to all members of the class.... The questions involved in this legal theory are class wide questions susceptible to class wide proof.”

      . Fidelity and Guar. Life Ins. Co. v. Pina, 165 S.W.3d 416 (Tex.App.-Corpus Christi 2005, no pet. h.) has been designated as an opinion.

      . At the time this class was certified, rule 42 contained four subdivisions. On January 1, 2004, the amendments to Rule 42(b), which now contains only three subdivisions, became effective. See Tex. R. Civ. P. 42(b). At the time of certification, rule 42(b)(4) read as follows:
      (4) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
      TEX. R. CIV. P. 42(b)(4) (1977, amended 2004).

      . Prior to this litigation, there was a separate case involving virtually the same facts and circumstances, Míreles v. Southwestern Bell Tel. Co., Cause No. 98-07-3003-E, in the 357th Judicial District Court, Cameron County, Texas. The putative class in Míreles included both residential and business customers of Southwestern Bell. STA was identified as a class member in that matter. (STA's brief states only that STA was a class member, "as were all of the businesses which assigned causes of action to STA.”) The settlement in Míreles involved an agreement which did not encompass either distributed cash or service credits to class members, but which did encompass a broad release. STA formally objected to the settlement because it would eliminate claims of the business customers, filed a petition in intervention seeking to represent that group, and contacted business customers of STA who were members of that group. Five of those customers, for whom STA provided auditing services, gave STA an assignment of their claims. Prior to entry of the settlement, the parties in that suit agreed to modify the release so that it would not affect the business customers’ claims, which were then "carved out” and brought separately in this litigation.

      . Assignment of certain causes of action are per se void, as against public policy. See State Farm Fire & Cas. Co. v. Gandy, 925 S.W.2d 696, 707-11 (Tex.1996).

      . See Jackson v. Thweatt, 883 S.W.2d 171, 174 (Tex.1994) (cert. denied sub nom.) (concluding that assignees, as the FDIC’s successors in interest, were "entitled to the benefits of section 1821(d)(14) pursuant to the common law maxim that 'an assignee stands in the shoes of his assignor.’ ").

      . STA also cites Pavano v. Shalala, 95 F.3d 147 (2d Cir.1996), out of New York, in which plaintiffs included Medicare beneficiaries “and their assignees.” Id. at 148. Typicality of the class representative was not raised as an issue; the class was certified.

      . We note the trial court further expressly found "nothing improper about the methods by which Plaintiff acquired the assignments.”

      .Relevant claims include that Southwestern Bell "is charging so-called ‘municipal charges’ on certain customer services charges ... when such customer services charges do not satisfy all of the required conditions under the applicable ordinances or franchise agreements.”

      . We further note that a suit brought against Southwestern Bell for improper levying of charges is not a “right or benefit” of Southwestern Bell under the ordinance.

      . We note that Texas revised civil statute article 4647 (enacted in 1895) and article 6833 (enacted in 1911) are both predecessor statutes to Tex. Prop. Code Ann. § 12.014(a) (Vernon 2004).

      . The McCloskey court continued:
      From the foregoing, there can be no doubt that causes of action for personal injuries are property subject to sale, barter, contract, or gift as any other property, and that the common and civil law inhibition and condemnation of dealing in causes of action is obsolete in Texas. Since a claimant has the right to assign all or any part of his cause of action, and all persons have the right to buy or acquire the same or any part thereof, it is not unlawful for the appellant to acquire an interest in any claim or claims.

        McCloskey v. San Antonio Traction Co., 192 S.W. 1116, 1120 (Tex.Civ.App.-San Antonio 1917, writ ref’d); see also Hunter v. B.E. Porter, Inc., 81 S.W.2d 774, 775 (Tex.Civ.App.-Dallas 1935, no writ).

      . See Gandy, 925 S.W.2d at 707-11; see also PPG Indus., Inc. v. JMB/Centers Partners, Ltd., 146 S.W.3d 79, 87 n. 31 (Tex.2004) (noting the distinction between DTPA claims, which are personal and punitive, and warranty claims, which are property-based).

      . Southwestern Bell made no attack on the credibility of Mr. Shelton, STA’s president, as a witness.

      . The trial court found "no evidence that these issues [suitability of Mr. Wilder and Mr. Clapsaddle] are relevant to the claims of the litigation such that they could become the focus of the litigation to the detriment of the actual class claims.”

      . We note Southwestern Bell’s arguments that the persons who represent STA are "fa-daily inadequate” to represent the interests of the dass and control the litigation. The trial court squarely addressed these contentions and in its order made specific and extensive findings that dispensed with objections pertaining to Wilder, Shelton and Clapsaddle, finding no impropriety or barratry, that Shelton has been an active and credible participant, and that STA has and will continue to vigorously pursue the interests of the class.

      . In addition, we find no basis for the contention that a corporation may not serve as a class representative.

      . See n. 5 above.

      . We note Southwestern Bell also argues that core liability issues "will most likely be a question of law for the court, or at least a mixed question of law and fact, that can be resolved with a minimum of proof and effort. The bulk of the litigation effort will be devoted to determining and assessing damages, if any.”

      .In PPG, the majority noted the distinctions between DTPA claims, which are personal and punitive, and warranty claims, which are property-based and therefore assignable. PPG Indus., Inc. v. JMB/Houston Centers Partners, Ltd., 146 S.W.3d 79, 87-92 (Tex.2004).

      . The trial court extensively analyzed and made findings with respect to these reliance issues, including the following: (1) billing procedures are uniform for each member of the class; (2) whether or not Southwestern Bell took an undue advantage is a common issue to be answered the same for all members of the class; (3) Southwestern Bell presents bills for services in substantially the same form to all its customers; (4) any representation based on those bills is a written representation which is uniform to all members of the class; and (5) if the charges were unauthorized for one member, they were unauthorized for all. In short, the trial court found these to be common issues to be resolved by the trier of fact.

      . We also note the trial court’s attention to how the matter would be tried and find that it adequately presented a viable trial plan.


author: Justice BAIRD.

text:
    Charlie Melvin PAGE, Appellant, v. The STATE of Texas, Appellee.
    Nos. 13-00-035-CR, 13-00-042-CR.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Aug. 4, 2005.
    Rehearing Overruled Sept. 29, 2005.

      Mark J. Kelly, Texas City, for appellant.

      B. Warren Goodson, Asst. Criminal Dist. Atty., Michael J. Guarino, Criminal Dist. Atty., Galveston, for state.
    Before Chief Justice VALDEZ and Justices RODRIGUEZ and BAIRD
      .

      . Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas. See Tex. Gov’T CODE ANN. § 74.003 (Vernon 2005).

   OPINION ON REMAND

Opinion by

Justice BAIRD.

Appellant was charged in separate indictments with the offenses of sexual assault and impersonating a peace officer. The cases were combined into a single trial where a jury convicted appellant of both offenses and assessed punishment at seven years and five years confinement, respectively, in the Texas Department of Criminal Justice — Institutional Division. We reversed the judgment of the trial court. See Page v. State, 88 S.W.3d 755 (Tex.App.-Corpus Christi 2002), rev’d, 137 S.W.3d 75, 79 (Tex.Crim.App.2004). The Texas Court of Criminal Appeals, in turn, reversed our judgment and remanded the case to us for reconsideration. Page v. State, 137 S.W.3d 75, 79 (Tex.Crim.App.2004). We again reverse the judgment of the trial court.

I. The Scope of The Remand

On direct appeal, appellant contended the trial court violated Texas Rules of Evidence Rules 403 and 404(b) in admitting extraneous offense evidence. See Tex.R. Evid. 403, 404(b). Although both arguments were preserved for appellate review, we found it necessary to address only the Rule 404(b) argument and determined the trial court abused its discretion in admitting the complained-of evidence. This determination was based upon two independent holdings. First, the extraneous offense evidence was not admissible because the complainant was not impeached on cross-examination regarding her identification of appellant. Second, assuming the complainant had been impeached, the impeachment was not related to a “material detail” of her identification of appellant.

The court of criminal appeals disagreed with both of our holdings. Regarding the impeachment of the complainant the Court stated:

[Djefense counsel’s cross-examination of the victim suggested that his 265 pound client was not her 200 pound assailant. Whether the challenge was to her capacity to observe (i.e., she was mistaken) or her truthfulness (i.e., she was lying), or both, the questions implied that the identification of appellant was not trustworthy. The question of whether defense counsel’s cross-examination of the victim raised the issue of identity may best be answered with another question: If it was not about identity, what was it about? Defense counsel did not offer the trial court an alternative explanation for his line of questioning, and none is apparent. Counsel simply denied making identity an issue.

See Page, 137 S.W.3d at 78-79 (footnote omitted). On this basis, the court of criminal appeals held the complainant had been impeached. See id.

Regarding our “material detail” holding, the court of criminal appeals stated:

The Court of Appeals has also read too much into our past pronouncements regarding impeachment relating to a “material detail” of identification. By “material,” we have simply meant that the detail must be relevant to the reliability of the identification. In minimizing the impact of the weight discrepancy and in pointing to the strength of the State’s other evidence, the Court of Appeals has confused the relevance of the evidence with its strength. That the impeachment was not particularly damaging or effective in light of all the evidence presented is not the question. The question is whether impeachment occurred that raised the issue of identity. If so, Rule 404(b) permits the introduction of extraneous offenses that are relevant to the issue of identity.

Id. at 79. Therefore, the court held the impeachment of the complainant related to a “material detail.” Id.

Rather than simply remand the case to us at this point, the court of criminal appeals provided us with further guidance in the form of footnote 14 which states: “Whether the extraneous offenses were in fact sufficiently similar to show identity was not addressed by the Court of Appeals, and we do not address that question here.” See Lane v. State], 933 S.W.2d [504] at 519 [ (Tex.Crim.App.1996) ] (“an extraneous offense must be so similar to the offense charged that the offenses are marked as the accused’s handiwork”). See id. at 79 n. 14

Under Carroll v. State, 101 S.W.3d 454 (Tex.Crim.App.2003), courts of appeals are not limited on remand to deciding the pertinent point of error based solely on the explicit basis set out by the court of criminal appeals in its remand order. See id. at 459. However, in light of footnote 14, and the fact that the briefs of the State and appellant begin with the issue suggested in footnote 14, namely “whether the extraneous offenses were in fact sufficiently similar to show identity,” we will begin our analysis of this case with that issue.

II. Rule 404(b) and Signature Offenses

Under Rule 404(b), extraneous offense evidence may be admissible on the issue of identity. See Tex.R. Evid. 404(b). However, the simple fact that identity is at issue does not mean that extraneous offense evidence is per se admissible. Avila v. State, 18 S.W.3d 736, 740-42 (Tex.App.San Antonio 2000, no pet.) When an extraneous offense is offered to prove identity, the common characteristics of each offense must be so unusual and distinctive as to constitute the defendant’s “signature.” Taylor v. State, 920 S.W.2d 319, 322 (Tex.Crim.App.1996); Lane, 933 S.W.2d at 519.

In Reyes v. State, 69 S.W.3d 725 (Tex.App.-Corpus Christi 2002, pet. ref'd), our most recent pronouncement on the subject, we found guidance in Ford v. State, 484 S.W.2d 727 (Tex.Crim.App.1972), where the court of criminal appeals recognized that, to some extent, the commission of any particular offense will have some generic qualities. Reyes, 69 S.W.3d at 728; see Ford, 484 S.W.2d at 730-31. In Ford, the court of criminal appeals stated that:

[T]here will always be similarities in the commission of the same type of crime. That is, any case of robbery by firearms is quite likely to have been committed in much the same way as any other. What must be shown to make the evidence of the extraneous crime admissible is something that sets it apart from its class or type of crime in general, and marks it distinctively in the same manner as the principal crime.

484 S.W.2d at 730-31. Therefore, we concluded that “each case must be measured on its own merits. This measurement must reveal some connective similarity, either in the singular or plural, that rises to the level of a distinguishing characteristic common to both the extraneous offense and the offense charged.” Reyes, 69 S.W.3d at 738. To make this measurement, we will review the testimony of the complainant and the individuals involved in the two extraneous offenses, and then analyze that testimony to determine if it rises to the level required for admission under Rule 404(b).

A. The Complainant

In the winter of 1997, the complainant was working as a prostitute in Galveston when appellant pulled up beside her driving a maroon vehicle. When the complainant approached, appellant flashed a badge, said he was a police officer, and instructed the complainant to get into the vehicle. The complainant complied, appellant placed the badge above the sun visor, and the two drove away. Appellant stopped the vehicle, got a police radio from the trunk, and placed it in the back seat. The complainant heard voices from a police radio. Appellant told complainant that it was almost time for his shift change, and he did not want to take the complainant to jail because of the paperwork. Appellant stopped his vehicle a second time and told the complainant she would either have to perform oral sex on appellant or go to jail. Appellant pulled the complainant’s head to his exposed penis. The complainant initially performed oral sex on appellant, but stopped and said she would not continue and appellant could take her to jail if he wished. Appellant started his vehicle and returned to the area where he met the complainant. Appellant let the complainant out of the vehicle and told her that she should stay off the streets or she would be arrested by appellant’s partners whom he had notified of the complainant.

B. Erica Cavender

Erica Cavender testified that in the spring of 1997, she was working as a prostitute in Galveston when she was approached by appellant who was driving a maroon vehicle. Appellant identified himself as a police officer, but never exhibited a badge, and asked Cavender to perform oral sex. Cavender heard a “police type radio” in the car. When Cavender asked how much money appellant was willing to pay, he stated that he would pay her six or seven dollars. Cavender refused to perform the sex act for that amount and walked away. Appellant left, only to return and have another conversation with Cavender. At this point, appellant said he would not arrest Cavender if she would go with appellant. Cavender told appellant that she would take her chances, and appellant left.

C.Angelina Edenfield

Around Labor Day of 1997, Angelina Edenfield was working as a prostitute in Galveston when she was approached by appellant in a maroon vehicle. Appellant asked Edenfield how much she would charge to perform oral sex. Edenfield asked appellant if he was a police officer and appellant answered “No.” After the two fondled each other, Edenfield got into appellant’s car and they drove to East Beach. Once there, appellant pulled out a badge from the sun visor of his car, and told Edenfield that he was a Texas City police officer working a sting operation in Galveston. Appellant stated that he would not arrest Edenfield if she performed sexual acts for him. Edenfield told appellant to either arrest her or pay her. Appellant became irate and struck Edenfield. At that point, Edenfield became fearful and engaged in oral and vaginal intercourse with appellant. Appellant then returned Edenfield to the area where they met.

D. Analysis

Each of the offenses have the following generic qualities: the females were working as prostitutes in Galveston in 1997, and they involve a male seeking performance of a sex act. The offenses also have several specific qualities. In each instance, appellant identified himself as a peace officer and drove a maroon vehicle. Each time appellant requested oral sex, and threatened to arrest each female if they refused. However, there are many differences which cannot be ignored. For example, in the charged offense appellant did not mention money in exchange for the sex act, but in the offenses involving Cavender and Edenfield, money was discussed.

Additional differences are found when the extraneous offenses are considered individually. The most obvious difference in the Cavender incident and the charged offense is that no sex act was involved. This is a striking dissimilarity when the Cavender extraneous offense evidence was offered, at least in part, to prove the identity of the person who committed a sex act against the complainant. Additionally, with Cavender, appellant identified himself as a peace officer, but he did not display a badge as with the complainant and Eden-field. Cavender did not enter appellant’s vehicle. Appellant returned to solicit Ca-vender a second time, but she again rejected his entreaties. The only similarity the State advances is that both the complainant and Cavender “heard a police radio in the appellant’s car.” The Cavender incident is so dissimilar to the charged offense that, on this basis alone, we hold the trial judge erred in admitting this extraneous offense evidence.

However, we will continue our analysis, and now consider the Edenfield incident. The State argues this incident is similar to the charged offense because appellant displayed a badge and took both women to “the Seawall area.” The first factor is a two-edged sword — while it shows a similarity with the charged offense, it distinguishes the Edenfield incident from the Cavender incident. Regarding the second factor, we do not give weight to the fact that the complainant and Edenfield were taken to “the Seawall area.” This, we believe, is a generic quality of prostitution; it is customary after soliciting a prostitute in a public area, for the couple to drive to an isolated area to complete the sex act.

There are additional differences between the Edenfield incident, the charged offense, and the Cavender incident. With Edenfield, appellant initially denied being a peace officer, whereas with the complainant and Cavender, he immediately identified himself as such. Appellant and Edenfield fondled one another prior to her getting into the vehicle. However, there was no fondling in either the charged offense or the Cavender incident. Appellant struck Edenfield, but did not harm or threaten to harm the complainant or Ca-vender when they rejected him. Finally, unlike the other two situations, there was no police radio in the Edenfield incident. While the facts of the Edenfield incident are closer to the charged offense than the Cavender incident, the decisional authority of this state clearly confirms that close is simply not enough. Owens v. State, 827 S.W.2d 911, 915 (Tex.Crim.App.1992). The similarities between the extraneous offense and the charged offense must be so “unusual or idiosyncratic as to signal conclusively that the two offenses were the handiwork of the same individual.” See id. To hold otherwise would give too much weight to the generic qualities inherent in the same type of offense, and too little weight to the requirement that the offenses be committed in such a unique and distinctive fashion as to constitute the signature of the defendant. Ford, 484 S.W.2d at 730-81.

After carefully analyzing both the similarities and differences between the charged offenses and the two extraneous offenses, we hold the extraneous offenses are not sufficiently similar to identify either of them as the “signature” of appellant. Reyes, 69 S.W.3d at 738; Avila, 18 S.W.3d at 740-42. Accordingly, the evidence of the Cavender and Edenfield incidents was not admissible under Rule 404(b), and therefore, the trial court abused its discretion in admitting this evidence.

III. Harm and the Law of the Case

On direct appeal, we held that the error in admitting the extraneous offense evidence had a substantial and injurious effect or influence on the jury’s verdict under Texas Rule of Appellate Procedure 44.2(b). Page, 88 S.W.3d at 766. The State did not petition the court of criminal appeals for review of our decision on the question of harm, and the court of criminal appeals did not address our treatment of the issue of harm on its own motion.

The law of the case doctrine provides that an appellate court’s resolution of a question of law in a previous appeal of the same case will govern the disposition of the same issue should there be another appeal. Ware v. State, 736 S.W.2d 700, 701 (Tex.Crim.App.1987). This is a flexible, court-made doctrine “intended to achieve uniformity of decision as well as judicial economy and efficiency.” Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex.1986). We hold the law of the case doctrine applies to cases on remand when a question of law has previously been settled on direct appeal, unless that question of law has become unsettled by the court’s reconsideration on remand.

Assume a court of appeals found an issue was not preserved for appellate review, and the court of criminal appeals subsequently remanded that case to the court of appeals to reconsider the preservation determination. If on remand, the court of appeals determined the issue was preserved, the logical and necessary consequence of that determination would be to address the merits of that argument. However, if on remand the court of appeals reaffirmed its earlier determination that the issue was not preserved for appellate review, that court would not be required to address the merits of a non-preserved point of error. Our holding will achieve the goals of Hudson, that is, uniformity of decision and judicial economy and efficiency.

We now apply this holding to the instant case. On direct appeal we held the trial judge erred in admitting the extraneous offense evidence. The court of criminal appeals remanded the case for reconsideration of that holding only. We have done so, and reach the same conclusion. Consequently, we need not reconsider our previous determination of harm.

Having fully complied with the remand order of the court of criminal appeals, we again reverse the judgment of the trial court in cause numbers 98CR0911 and 98CR0913 and remand for further proceedings consistent with this opinion.

      . It is the author’s policy to not refer to complainants by name. However, because of the circumstances presented in this case that policy was not followed on direct appeal and cannot be followed now.

      . Appellant also engaged in sexual intercourse with Edenfield.

      . In this context, abuse of discretion does not imply intentional wrong or bad faith, or misconduct, but means only an erroneous conclusion. Hebert v. State, 836 S.W.2d 252, 255 (Tex.App.-Houston [1st Dist.] 1992, pet. ref’d) (citing Webb v. State, 684 S.W.2d 800, 802 (Tex.App.-Fort Worth 1985, no pet.)).

      . Having determined the extraneous offense evidence was not admissible under Rule 404(b), we need not address appellant Rule 403 argument.


author: Justice RODRIGUEZ.

text:
    Edward Ray FULGHAM, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 13-04-250-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Aug. 4, 2005.
    Michael C. Lowe, Dallas, for appellant.
    George P. Morrill II, Dist. Atty., Bee-ville, for state.
    Before Chief Justice VALDEZ and Justices HINOJOSA and RODRIGUEZ.
   OPINION

Opinion by

Justice RODRIGUEZ.

Pursuant to Texas Government Code section 411.081, appellant, Edward Ray Fulgham, Jr., petitioned the 156th Judicial District Court of Bee County, Texas, to seal his criminal record relating to a prior felony theft charge. See Tex. Gov’t Code Ann. § 411.081(d) (Vernon 2005). After a hearing, the trial judge denied appellant’s petition. By two issues, appellant contends (1) the trial court erred by not conducting a hearing on the issue of whether it is in the best interest of justice to grant the petition, and (2) the evidence is insufficient to support the trial court’s decision that it is not in the best interest of justice to grant his petition. We reverse and remand.

I. BACKGROUND

In 1980, appellant entered a plea of guilty or nolo contendere to the felony offense of theft and was placed on deferred adjudication community supervision. Ten years later, at the end of the period of supervision, the trial court dismissed the proceedings against appellant and discharged him from further community supervision. After waiting ten years, as mandated by statute, appellant filed a petition for non-disclosure in an attempt to prohibit criminal justice agencies from disclosing information related to his deferred adjudication. See id. A hearing was held on appellant’s petition. The trial court denied the petition finding that such nondisclosure was not in the best interest of justice. This appeal ensued.

II. ANALYSIS

By his first issue, appellant argues the trial court erred by not conducting a hearing on the issue of whether it was in the best interest of justice to grant the petition.

Under section 411.081 of the government code, after a person files a petition for non-disclosure, the trial court is to conduct a hearing on (1) whether the person is entitled to file the petition and (2) whether issuance of the order is in the best interest of justice. Id. In this case, the trial court convened a hearing. However, at the hearing, the trial court heard only testimony addressing the issue of whether appellant met the statutory requirements for filing his petition. See id. The hearing did not address whether issuance of the order for non-disclosure would be in the best interest of justice. See id. We conclude that the trial court erred in making its ruling without addressing the issue of whether granting the order would be in the best interest of justice at the hearing. Appellant’s first issue is sustained.

III. CONCLUSION

Accordingly, we reverse the decision of the trial court and remand this case for further proceedings consistent with this opinion.

      . After the hearing, the trial court found that all statutory requirements for review of the case were met.

      . Given our disposition of this issue, we need not address appellant's remaining issue. See TexR.App. P. 47.1.