author: BRIAN QUINN, Justice.

text:
    Franklin Scott GODDARD, Appellant, v. The STATE of Texas, Appellee.
    No. 07-04-0329-CR.
    Court of Appeals of Texas, Amarillo.
    Jan. 5, 2005.
    Bob Blinderman, Amarillo, for appellant.
    David M. Green, District Attorney, Dumas, for appellee.
    Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
   Memorandum Opinion

BRIAN QUINN, Justice.

Appellant, Franklin Scott Goddard, appeals his conviction for aggravated assault upon a public servant. His sole issue involves whether the trial court erred in refusing to instruct the jury on self-defense. He contends that he was entitled to such an instruction because evidence appeared of record indicating that appellant defended himself because the arresting officer used excessive force in attempting to arrest him. We overrule the issue and affirm the judgment.

Background

Appellant admitted to depositing a couch belonging to his ex-wife in the street along a curb in front of a house in which she purportedly lived. He did this because she did not come home the night before and despite the fact that they were no longer married. Two officers later encountered him at his mother’s home and directed him to remove the item from the street. After a verbal exchange between appellant and the officers, he agreed to comply with their request. Upon returning to the site, he noticed that his ex-wife and others had already removed the couch from the street and placed it in the bed of a pick-up truck. Informing her that the officers had directed him to remove the couch from the street, he proceeded to extract it from the pick-up. His ex-wife objected, and profane language was uttered. At that point, according to appellant, an officer “[f]or no reason ... grabbed [his] arm.” Purportedly, nothing was said by the officer before he did this.

Appellant also testified that after his arm was grabbed, he “spun” away from the officer’s grasp and informed the officer that he had directed appellant to “get the couch.” The officer replied by directing appellant to “get down on the ground, you’re under arrest.” Appellant admitted that he refused to comply with that directive and continued to refuse because he “had jobs to do.”

The officer had previous knowledge of prior family disputes between appellant and his ex-wife. And, at the time he approached appellant, he had decided to arrest him for disorderly conduct. Yet, appellant refused his directives to lay on the ground or place his hands behind his back. Consequently, the officer’s efforts to effectuate the arrest continued and involved the use of force and mace. Eventually, appellant succeeded in fleeing the scene and proceeding to his mother’s house. At the latter, he obtained a firearm and pointed it at one of the officers who followed him. The officers ultimately succeeded in arresting him at that locale.

Self-Defense

One is not at liberty to use force to resist an arrest, even if the arrest may be considered unlawful. Tex. Pen.Code Ann. § 9.31(b)(2) (Vernon 2003). However, there exists an exception to this rule; it permits the use of force when the officer uses or attempts to use greater force than that necessary to make the arrest and the accused reasonably believes the force is immediately necessary to protect himself. Id. § 9.31(c). More importantly, the officer’s use or attempted use of excessive force must occur “before the [accused] offers any resistance.” Id. § 9.31(c)(1).

Here, appellant argues that he was entitled to the instruction on self-defense because the officer used greater force than necessary when grabbing appellant’s arm. Furthermore, his efforts to resist arose in response to that act. Appellant did not testify that he felt pain or suffered injury when the officer grabbed his arm. Nor does the record reflect that he did. Similarly absent is evidence describing the amount of pressure exerted by the officer while gripping appellant; yet, it is clear that irrespective of whatever it was, the force was not enough to prevent appellant from extricating himself by simply spinning around. In short, the evidence of record merely illustrates that the officer grabbed appellant’s arm without prior warning.

One cannot ignore the fact that the statute permitting an individual to protect himself during an arrest authorizes such conduct when the force exerted by the officer is “greater” than that necessary. In other words, an officer is allowed to use some force, just not excessive force. Furthermore, the mere act of grabbing a suspect’s arm or arms has been held not to constitute excessive force. Szumny v. State, No. 13-97-902-CR, 1999 WL 33757425 at *3 (Tex.App.-Corpus Ghristi, September 30, 1999, pet. ref'd) (not designated for publication); Flores v. State, 942 S.W.2d 735, 737-38 (Tex.App.-Houston [14th Dist.] 1997, no pet.). Given this and the absence of any evidence illustrating that the pressure exerted by the officer was sufficient to cause pain or injury, see Flores v. State, 942 S.W.2d at 737-38 (holding that there existed a fact question entitling the defendant to an instruction because the manner in and force with which the officer grabbed Flores caused Flores to suffer pain and a dislocated shoulder), we cannot say that the trial court erred in refusing to instruct the jury on self-defense. See Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Crim.App.2001) (stating that only when there exists evidence raising the issue of self-defense is the defendant entitled to an instruction).

Accordingly, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: BILL VANCE, Justice. TOM GRAY, Chief Justice,

license: Public Domain

text:
    John LINGAFELTER, et al., Appellants, v. Brent J. SHUPE, JCJ Trucking and Midwest Coast Transport d/b/a MCT, Appellees.
    No. 10-03-00113-CV.
    Court of Appeals of Texas, Waco.
    Jan. 5, 2005.

      Kevin B. Miller, Gerald D. Havemann, Law Office of Miller <& Associates, San Antonio, for appellants.
    Robert L. Ramey, Jack McKinley, Ra-mey, Chandler, McKinley & Zito, P.C., Houston, for appellees.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION DENYING REHEARING

BILL VANCE, Justice.

Brent J. Shupe and Midwest Coast Transport d/b/a MCT (“MCT”) urge in a motion for rehearing that we reconsider our opinion and judgment and affirm rather than reverse the judgment of the trial court. In an opinion dated November 17, 2004, we reversed the judgment and remanded this cause for a new trial because the trial court’s failure to instruct on negligent entrustment, as requested by Appellants, was harmful error. MCT’s motion for rehearing asserts that the negligent entrustment question submitted by Appellants was immaterial to the liability of MCT and Shupe as a matter of law, and that the jury’s finding that Shupe was not negligent renders the failure to instruct on the negligent entrustment cause of action harmless. We reject MCT’s proposal. We take this opportunity, however, to reiterate that in our opinion, had the jury been properly instructed, it would have known how to evaluate the facts presented.

It was not possible for the jury to know how to evaluate the following facts without the negligent entrustment charge: 1) Shupe was employed by JCJ Trucking who had a lease agreement with MCT to lease Shupe and the truck to MCT; 2) MCT was responsible to qualify and approve Shupe to drive; 3) MCT’s qualification department qualified Shupe; 4) MCT’s safety director, who had 37 years of experience at MCT, rejected this qualification due to Shupe’s two prior driver’s license suspensions and five speeding tickets; 5) MCT’s vice president of safety vetoed this rejection; 6) Shupe drove on probation starting in November 1999 and was released to drive on his own on March 3, 2000; 7) Shupe received a speeding ticket on March 9, 2000; and 8) Shupe informed MCT of a ticket at his annual review, but MCT kept him qualified.

In addition, the finding that Shupe was not negligent is reasonably calculated to be different had the jury been instructed on negligent entrustment: 1) The Brazos River bridge is an old, narrow, steel-encased suspension bridge with only two lanes divided by a double yellow stripe, a low clearance, no shoulder, and a small curb only about one foot in width; 2) there is a shoulder before the bridge in the direction Shupe was driving to allow a vehicle to pull over; 3) the highway was busy that day because the Fourth of July holiday was approaching; 4) Shupe was carrying 15,000-20,000 pounds of cargo that day; 5) Shupe had never driven across this bridge before; 6) Shupe did not notice that in the oncoming lane, on the bridge, there was a stopped wide load, which had large “wide load” signs in yellow and black letters; 7) Shupe did not stop or significantly slow down as he approached the bridge, passed the wide load, passed 6-8 vehicles stopped behind the wide load (three of which were farm trucks with tanks); and 8) Father John Anderson (the driver of a vehicle close behind the wide load) testified that he was uncomfortable and scared when Shupe drove by him because of Shupe’s speed and how close he was to his van because of the narrowness of the bridge.

Therefore, had the jury been properly instructed on the evidence presented, it could have found all the elements of negligent entrustment by MCT: 1) MCT entrusted the tractor trailer to Shupe (uncon-troverted), 2) Shupe was a reckless or incompetent driver based on his driving record (substantial evidence supports), 3) MCT knew of Shupe’s driving record (un-controverted), 4) Shupe was negligent in the context of negligent entrustment, and 5) his negligence proximately caused the accident. See Williams v. Steves Indus., Inc., 699 S.W.2d 570, 571 (Tex.1985).

We find that the jury charge error is reasonably calculated to and probably did cause the rendition of an improper judgment. Tex.R.App. P. 44.1(a)(1); see Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass’n, 710 S.W.2d 551, 555 (Tex.1986) (op. on reh’g).

The motion for rehearing is denied.

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice,

dissenting to denial of rehearing.

Absent extraordinary circumstances, I am opposed to writing further on a motion for rehearing without requesting a response. See Tex.R.App. P. 49.2. These are not extraordinary circumstances. The Court simply wants to reassure itself by reciting its mantra. It does. I disagree. So I still dissent.


author: Justice ROSS.

text:
    Quinton Wade WRIGHT, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00008-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Dec. 20, 2004.
    Decided Jan. 6, 2005.

      Mark W. Breding, Crumley and Bred-ing, Quitman, for appellant.
    Christopher Parker, Martin E. Braddy, Asst. Dist. Atty’s, Sulphur Springs, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

Quinton Wade Wright was convicted by a jury of indecency with a child by sexual contact. The jury assessed Wright’s punishment at five years’ imprisonment, and he was sentenced accordingly.

Wright appeals, alleging the trial court erred: 1) in allowing the State to introduce evidence he had taken a polygraph examination, 2) in admitting into evidence a videotaped forensic interview of the victim, and 3) in failing to admit evidence about other allegations of sexual misconduct made by R.C. against other men. We reverse and remand for a new trial based on Wright’s first point of error. We discuss Wright’s second point of error in the interest of justice, and we find that error was not preserved in connection with his third point of error.

Background Facts

The sufficiency of the evidence is not challenged. Briefly, Wright’s stepdaughter, R.C., testified Wright molested her on two occasions: once in the car when he reached through either her shirt sleeve or a hole in her shirt and touched her breast; and in their home while she sat on a couch and Wright sat on the floor, and he reached beneath her shorts and underwear and touched her vagina.

Standard of Review for Admission of Evidence

The admission of evidence is a matter within the discretion of the trial court. Avila v. State, 18 S.W.3d 736, 739 (Tex.App.-San Antonio 2000, no pet.). Accordingly, the trial court’s admission of evidence is reviewed under an abuse of discretion standard. See Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex.Crim.App.1990). A trial court abuses its discretion when it acts without reference to proper guiding rules or principles, and therefore acts arbitrarily and unreasonably. See In re B.N.F., 120 S.W.3d 873, 877 (Tex.App.-Fort Worth 2003, no pet.).

Evidence of Polygraph Examination

The State told the jury in its opening statement that the investigator in this case offered Wright the opportunity to take a polygraph examination. Wright objected, and a bench conference was held. Wright argued that the prejudice of any mention of a polygraph examination outweighed its probative value and that, if the jury was not told Wright had passed the examination, it would assume he had failed it. After being assured by the State that the results of the examination would not be disclosed to the jury, the trial court overruled Wright’s objection. The State resumed its opening statement, telling the jury, “by the way, polygraph examination results are not admissible in any courtroom in the State of Texas. The results will not [be] admitted today. Okay? And that needs to be clear. That’s not something that’s going to be evidence.”

Burt Golden testified he administered a polygraph examination to Wright. Wright objected to Golden’s testimony and to the State’s reference to the polygraph examination. In a hearing outside the presence of the jury, the trial court overruled Wright’s objection, but admonished the State that the results of the polygraph examination were not to be divulged. The court then granted Wright’s request for a “running objection regarding anything about the polygraph examination.” Golden then testified in the presence of the jury that, as part of his testing procedure, he generally asks the person to whom the examination is being administered a series of “pre-test” questions. During the pretest interview of Wright, Wright told Golden he had once reached through R.C.’s shirt and touched her skin, but not her breast.

Gerry Allen, an investigator for the sheriffs office, testified that he was the one who offered Wright the opportunity to take a polygraph examination and that he transported Wright to and from the examination site. He testified that, on the way back from this examination, Wright talked about R.C. and her sister walking around the house without shirts on and with their shorts pulled up in a provocative way.

A trial court may not admit polygraph examination evidence or consider it for any purpose. Buckley v. State, 46 S.W.3d 333, 336 (Tex.App.-Texarkana 2001, pet. dism’d, untimely filed). The United States Supreme Court has written, “there is simply no consensus that polygraph evidence is reliable.” United States v. Scheffer, 523 U.S. 303, 309, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). However, the Texas Court of Criminal Appeals has held that, where a witness gives an unresponsive answer which mentions a polygraph test but does not mention the results of such test, there is no error in failing to grant a mistrial where the objection has been sustained and the jury instructed to disregard. Richardson v. State, 624 S.W.2d 912, 914-15 (Tex.Crim.App. [Panel Op.] 1981).

In Buckley, we described a two-step analysis in considering the propriety of questions eliciting testimony concerning a polygraph examination: “(1) whether the question exhibited bad faith by being designed to elicit that a polygraph was taken or what the results of that polygraph were; and (2) whether the effect of the evidence is to impeach the defendant’s defensive theory or to bolster the state’s case.” Buckley, 46 S.W.3d at 337. The girlfriend of the defendant in that case testified, in relating things Buckley had said to her, that Buckley accused her of telling people he had failed a polygraph test. The trial court overruled the defense’s motion for mistrial and instructed the jury to disregard the statement. Finding that the “statement d[id] not reflect the results of such a test or even whether Buckley took such a test,” we held the witness’ inadvertent statement was properly cured by the trial courts instruction to disregard and overruled the point of error. Id.

Where the defense insists on a mistrial, the sufficiency of an instruction to disregard polygraph evidence generally depends on whether the results of the examination were revealed to the jury. In Sparks, the state called a rebuttal witness, who had been accused by Sparks of committing the burglary for which Sparks was on trial. Sparks v. State, 820 S.W.2d 924, 927 (Tex.App.-Austin 1991, no pet.). In Stewart, the court noted that a reviewing court shall consider the circumstances in which the polygraph evidence is admitted. “[I]t is improper to allow evidence even implying that such a test was taken if the effect of such evidence is to implicitly impeach the defendant’s testimony or defensive theory, or to bolster the State’s case.” Stewart v. State, 705 S.W.2d 232, 234 (Tex.App.-Texarkana 1986, pet. ref'd). In Stewart, the state was allowed to introduce an investigator’s testimony that an individual other than Stewart had submitted to a polygraph examination, and as a result, that person “was cleared and charges were not filed” against him. Id. at 233.

The instant case is markedly different from those described above. Here, the State was allowed, over Wright’s objections, to specifically point out that Wright had taken a polygraph examination. The cases cited above address situations where a witness inadvertently mentions that a polygraph test was administered. The issue here is not whether the results of the polygraph test were made known to the jury, or whether Buckley’s “two-step” analysis should even be applied. Rather, the issue is whether evidence was presented that Wright took a polygraph examination and whether such evidence operated to prejudice his right to a fair trial. Whether the State acted in “bad faith” is not an adequate analysis in light of the circumstances of this case. Letting a jury know that Wright submitted to a polygraph examination, then leaving the jurors to their own conclusions on whether he was shown to be deceptive or truthful in that examination, is not acceptable. In light of the consistent holdings addressing the inadmissibility of polygraph evidence, we hold that the affirmative and intentional presentation of polygraph evidence that was permitted in this case was error.

This holding does not mean the statements made by Wright to the polygraph examiner during the pretest interview and to the investigator on the way home were not admissible. Statements made during a polygraph pretest interview, during the polygraph examination itself, or during an interview after the examination, may be admissible evidence, but the proper procedure for introducing such evidence before the jury is to redact from such evidence all references to the polygraph examination. This was the course taken and approved in Hoppes. There, the state sought to impeach Hoppes with statements made to the polygraph examiner. During the examination, Hop-pes told the examiner the lights of a car at the murder scene were pointed one way; at trial, Hoppes said the car and its lights faced another direction. The trial court allowed the state to introduce the inconsistent statement made by Hoppes during the polygraph examination, but redacted all references to the polygraph examination itself and specifically admonished the parties not to discuss the polygraph examination itself. Hoppes, 725 S.W.2d at 536. By following this procedure in the instant case, Wright’s statements to Golden and Allen could have been admitted without disclosing the fact that a polygraph examination was taken.

We now turn to a harm analysis. In our review of nonconstitutional error, we are to disregard errors, defects, irregularities, or variances that do not affect substantial rights of the accused. Tex. R.App. P. 44.2(b). A “substantial right” is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997); see Tex.R.App. P. 44.2(b). If, on the record as a whole, it appears the error “did not influence the jury, or had but a slight effect,” we must conclude the error was not harmful and allow the conviction to stand. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998).

We cannot say, with confidence, that the State’s discussion of the polygraph examination, and having two witnesses testify about that examination, did not influence the jury or had but a slight effect. Much has been made of the inherent unreliability of polygraph examinations, and hence their inadmissibility in criminal trials in Texas. Despite the cautions of both the trial court and the attorney for the State, we find that broadcasting to the jury that Wright was given a polygraph examination presented too great a danger that the jury speculated on the examination’s outcome. Such speculation is especially likely in a case like this one where there is no scientific evidence substantiating the conviction and where the validity of that conviction is largely dependent on the credibility of the witnesses. Under these circumstances, our confidence in the outcome of this trial is undermined. Finding harm, we sustain Wright’s first point of error and reverse the judgment and remand this case for a new trial.

Evidence of the Videotaped Interview

In his second point of error, Wright complains the trial court erred when it allowed the State to introduce a videotaped interview of the child victim. Kathy Smedley testified for the State. She runs the Northeast Texas Children’s Advocacy Center and is trained and certified to conduct forensic interviews with children. Smedley testified she is a licensed professional counselor and certified marriage and family counselor. She testified that the forensic interview she conducts is used to preserve evidence, reduce the number of times a child must be interviewed about potentially traumatic abuse, and is also used to determine whether to refer the child to mental health services or for medical treatment, such as a sexual assault nurse examination. In this case, R.C. was referred for psychological counseling. Specifically, Smedley said she consulted with Tamika Hughes, one of the local Child Protective Services caseworkers, about arranging counseling services for R.C. Smedley said she specifically ruled out having R.C. submit to a sexual assault nurse examination because nothing in the child’s interview suggested penetration or anything which would lead to discernible evidence being discovered in such an examination.

The State answered Wright’s trial objections by arguing that the videotape was admissible under the hearsay exception noted in Texas Rule of Evidence 803(4), where statements made for purposes of medical diagnosis are excepted from the rule precluding the admission of hearsay. The trial court overruled Wright’s objections and allowed Smedley to discuss the videotape and allowed the State to play the videotape for the jury.

The medical treatment exception to the hearsay rule (i.e., Tex.R. Evid. 803(4)) is based on the assumption that the patient appreciates that the effectiveness of the treatment may depend on the accuracy of the information provided to the physician. Fleming v. State, 819 S.W.2d 237, 247 (Tex.App.-Austin 1991, pet. ref'd). There is no requirement that a witness expressly state that the hearsay declarant recognized the need to be truthful in her statements for the medical treatment exception to apply. Instead, “the reviewing court must look to the record to see if it supports a conclusion that the young child understood why she needed to be honest when speaking to the caregiver.” Beheler v. State, 3 S.W.3d 182, 188-89 (Tex.App.Fort Worth 1999, pet. ref'd).

Here, however, there is no evidence that R.C., who was thirteen years old at the time of her interview, understood that the effectiveness of any counseling she might receive from Smedley depended on the accuracy of the information she provided. Smedley discussed with R.C. the difference between telling the truth and telling a he, but only in the context of gathering accurate information. At no time was R.C. made aware of the importance of this difference in Smedley being able to effectively counsel, diagnose, or assess her. As for R.C.’s understanding of the purpose of the interview, Smedley testified she did not know what R.C. thought about why she was at the forensic interview. While there is evidence Smedley considered that the interview was for assessment and possibly diagnostic purposes, such intent on the part of the interviewer does not provide the guarantees of trustworthiness required when dealing with hearsay. Without anything to indicate that R.C. understood the purpose of the interview, and that the importance of being truthful was so Smed-ley could effectively assess or diagnose her, it was error to admit the videotaped statements.

Evidence of Other Allegations of Sexual Misconduct

In his final point, Wright complains the trial court stopped him from questioning the State’s witnesses about other allegations of sexual misconduct R.C. made against other individuals. Wright objected to this limitation under Texas Rules of Evidence 403, 404(b), 412, and 608.

On appeal, Wright contends the trial court’s limitation deprived him of his Confrontation Clause rights guaranteed by the Sixth Amendment to the United States Constitution. Wright did not make a Sixth Amendment objection at trial. The point of error on appeal must correspond or comport with the objection made at trial. Dixon v. State, 2 S.W.3d 263, 273 (Tex.Crim.App.1998); Thomas v. State, 723 S.W.2d 696, 700 (Tex.Crim.App.1986). Where a trial objection does not comport with the issue raised on appeal, the appellant has preserved nothing for review. Tex.R.App. P. 33.1(a); Ibarra v. State, 11 S.W.3d 189, 197 (Tex.Crim.App.1999). Wright did not fairly and specifically object to the exclusion of this evidence on the constitutional due process basis he now urges on appeal. He has not preserved error. His third point of error is overruled. See Gutierrez v. State, 71 S.W.3d 372, 378-79 (Tex.App.-Amarillo 2001, pet. ref'd).

Conclusion

Because we hold the admission of polygraph examination evidence was harmful error, we reverse the judgment and remand the case for a new trial.

      . Tex. Pen.Code Ann. § 21.11(a)(1) (Vernon 2003).

      . Hoppes v. State, 725 S.W.2d 532, 536 (Tex.App.-Houston [1st Dist.] 1987, no pet.).

      . Rule 803(4) excepts from the rule disallowing hearsay statements into evidence "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”


author: Chief Justice MORRISS.

text:
    In re The ESTATE OF Nadine CAPPS, Deceased.
    No. 06-03-00151-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Nov. 16, 2004.
    Decided Jan. 6, 2005.

      Vincent L. Dulweber, Vincent L. Dulwe-ber, PC, Longview, for Appellant.
    Bill Youngkin, Bryan, for Appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

The trial court found that, though Nadine Capps’ will was gone, her determination had remained that her property be distributed as directed by her will. The court therefore admitted it to probate as a valid holographic will and appointed Devon Roberts as administrator of Capps’ estate.

Urging eleven points of error, Truman Bishop, as temporary administrator of Capps’ estate, and Hulene B. Parvar, in her own right, jointly appeal. The first six points of error all spring from the fact the original will was not found: they assert the evidence was insufficient to show either the cause for nonproduction of the original will or that the will had not been revoked. Points seven through ten all relate to the preparation or execution of the mil: they assert the evidence is insufficient to show either the will’s proper execution or that it was wholly in Capps’ hand. Point eleven asserts that, because admitting the will to probate was error, appointing Roberts, rather than Bishop, as personal representative of the estate was also error.

We affirm the judgment of the trial court because we hold (1) the material evidence was sufficient to overcome the absence of the original will, since the material evidence sufficiently (A) showed the cause of nonproduction and (B) showed the will was not revoked (and rebutted the presumption that it was), (2) the evidence was sufficient to show the will was wholly in Capps’ handwriting, and (3) the selection of personal representative was correct.

1. The Material Evidence Was Sufficient To Overcome the Absence of the Original Will

To probate a will that cannot be produced in court, the proponent must prove the same things required for an attested or a holographic will by Section 84 of the Texas Probate Code, discussed later in this opinion, and must also prove (1) that the will was duly executed, (2) why the original will was not produced and that the proponent could not produce it by reasonable diligence, and (3) the contents of the will. Tex. PROb.Code Ann. § 85 (Vernon 2003); Coulson v. Sheppard, 700 S.W.2d 336, 337 (Tex.App.-Corpus Christi 1985, no writ).

A There Was Sufficient Evidence of the Cause of Nonproduction

Bishop’s and Parvar’s initial contention is that the evidence does not support the court’s findings on the cause of nonproduetion of the original document. The trial court’s findings of fact after a bench trial are reviewable for legal and factual sufficiency by the same standards applied in reviewing the evidence supporting a jury’s answer. Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex.App.-Waco 1997, writ denied). When a party challenges the legal sufficiency of the evidence to support a finding favoring the party who had the burden of proof on that finding, we must overrule the challenge if, considering only the evidence and inferences which support the finding in the light most favorable to the finding and disregarding evidence and inferences to the contrary, any probative evidence supports it. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993).

Two separate photocopies of the purported will were referred to at trial. Sue Roberts testified (1) that several weeks after the will was prepared and signed, Capps gave her what Mrs. Roberts during her direct testimony called “the will,” trial exhibit P-1; (2) that, at Capps’ direction, Mrs. Roberts made a photocopy of that document and placed the photocopy in the church’s records; and (3) that, also at Capps’ direction to put it where it would be safe, Mrs. Roberts locked “the will” in a file cabinet, where it stayed until Capps’ death. On cross-examination, Mrs. Roberts agreed that exhibit P-1 — the document Mrs. Roberts received from Capps and locked in the file cabinet — appeared to be, not “the will,” but a photocopy of the original will. There was testimony that Capps apparently kept the original and that, despite a thorough search of the house, the original had not been located. The evidence showed Capps kept in the house a metal box that typically contained her important records and, though that box was found and searched, the will was not found there, either. The evidence is sufficient to show that the document produced was an accurate photocopy of the will written and signed by Capps and that, despite a diligent search, the original was not found. That is a sufficient explanation of the cause of the nonproduction of the original will, and the court’s findings of fact and conclusions of law on that matter are supported by the evidence.

B. There Was Sufficient Evidence To Show Nonrevocation and To Rebut the Presumption of Revocation of a Lost Will

A central question to this case is whether the failure to locate the original, which was last seen in the possession of Capps, requires the conclusion she revoked the will by destroying it. The proponent of the will is required to meet his or her burden of proving the will has not been revoked. See Tex. PROB.Code Ann. § 88(b)(3) (Vernon 2003) (to obtain probate of will, proponent must satisfy court that will was not revoked).

Bishop and Parvar argue that, because there was no proof that Capps did not revoke the will by destruction, the presumption should stand. True, an original will’s absence creates a rebuttable presumption of revocation; but that presumption can be overcome by proof and circumstances contrary to the presumption or that it was fraudulently destroyed by some other person. Bailey v. Bailey, 171 S.W.2d 162, 165 (Tex.Civ.App.-Amarillo 1943, no writ).

Under the standard sufficiency analysis rule, which applies now in Texas, we look to see whether the evidence was sufficient to “prove to the satisfaction of the court” that the will was not revoked. See Tex. Peob.Code Ann. § 88(b) (Vernon 2003). The testimony of a witness that, to her knowledge or belief, the testator did not revoke the will has been held sufficient evidence of nonrevocation to support probate of the will. See Cason v. Taylor, 51 S.W.3d 397, 407 (Tex.App.-Waco 2001, no pet.); Bryant v. Hamlin, 373 S.W.2d 837, 840 (Tex.Civ.App.-Dallas 1963, writ ref'd n.r.e.). Evidence that a decedent, after execution, recognized the will’s continued validity and had continued affection for the chief beneficiary thereunder, without evidence tending to show the decedent’s dissatisfaction with the will or any desire to cancel or change the will, has been held sufficient to rebut the presumption of revocation of a missing original will. See Sparkman v. Massey’s Estate, 297 S.W.2d 308 (Tex.Civ.App.-Dallas 1956, writ ref'd n.r.e.).

The record in this case contains no evidence of revocation or destruction of the will. In that respect, the evidence shows nothing more than the fact that, despite a search, the original document was not found. Thus, the presumption of revocation exists and must be overcome by a preponderance of the evidence. Glover, 744 S.W.2d at 940.

In this case, while there is no direct evidence Capps did not revoke the will, there was sufficient evidence to rebut the presumption of its revocation. The evidence showed that Capps arranged for copies of the will, as executed, to be placed with major devisees referenced in the will, the church and Sue Roberts; that Capps, at a church business meeting, had publically announced her intentions of leaving her property essentially as set out in the will; that she had also told others, including Jo Nell Ford and Sue Roberts, of her intent to leave her property essentially as set out in the will; that she set up certificates of deposit at the bank consistent with her statements in the will, and those dispositions were carried out, apparently unchanged, after her death; that she continued to have affection for the devisees named in the will with no “falling out”; that she subsequently did not express or intimate any contrary intention regarding her testamentary intent or regarding the disposition of her property; and that she was the type of person who would have informed others had she decided to revoke or change her will.

Bishop and Parvar contend this evidence is not sufficient to support the court’s decision. In their argument, they rely in part on language in Bailey stating that evidence of continued affection of a testator was not of any “material significance” to prove that he did not destroy his will, which had disappeared. See Berry v. Griffin, 531 S.W.2d 394, 397 (Tex.Civ.App-Houston [14th Dist.] 1975, writ ref'd n.r.e.) (evidence of continued affection, standing alone, insufficient and of no material significance, citing Bailey as authority, but also applying the clear and convincing evidence standard). The evidence of Capps’ continued affection for the Robertses and her church most certainly did not stand alone, and the standard of proof is now preponderance of the evidence, not clear and convincing evidence. See Glover, 744 S.W.2d at 940.

Under these facts, there is sufficient material evidence to support the trial court’s findings of the reason for nonpro-duction and that the will had not been revoked. We overrule points of error one through six.

2. The Evidence Was Sufficient To Show the Will Was Wholly in Capps’ Handwriting

The document at bar is handwritten and is dated July 10,1996. It purports to devise property, not of one, but of two people, Ola Maye Capps and Nadine Capps. The handwriting is consistent with the signature of Nadine Capps, and the document was signed by both Nadine and Ola Maye and contains an acknowledgment of a notary public.

Bishop and Parvar attack the probate of the will by asserting, in points of error seven and eight, that it was not properly executed as a witnessed will, and in points nine and ten, that the evidence was not sufficient that the will was wholly in Capps’ hand. We address the will, not as a witnessed will, but as a holograph since the trial court found it to be a holograph and we deem that issue dispositive here.

To show a valid holographic will, the proponent has the burden of proving that the instrument is wholly in the testator’s handwriting. Trim v. Daniels, 862 S.W.2d 8, 10 (Tex.App.-Houston [1st Dist.] 1992, writ denied). “If not self proved ... a will wholly in the handwriting of the testator may be proved by two witnesses to his handwriting, which evidence may be by sworn testimony or affidavit taken in open court.” Lopez v. Hansen, 947 S.W.2d 587, 589 (Tex.App.-Houston [1st Dist.] 1997, no writ).

A testamentary instrument, intended by the testator as holographic, will be enforced as such, although it contains words not in the handwriting of the testator, if such other words are not necessary to complete the instrument and do not affect its meaning. Maul v. Williams, 69 S.W.2d 1107, 1109-110 (Tex. Comm’n App. 1934, holding approved); Watkins v. Boykin, 536 S.W.2d 400 (Tex.Civ.App.-El Paso 1976, writ ref'd n.r.e.); Kramer v. Crout, 279 S.W.2d 932 (Tex.Civ.App.-Waco 1955, writ ref'd n.r.e.). See generally In re Estate of Jansa, 670 S.W.2d 767, 768 (Tex.App.-Amarillo 1984, no writ). For our purposes, the document’s material which is in other than Capps’ handwriting consists of Ola Maye’s signature, the acknowledgment, and the notary public’s signature; those are surplusage to a valid holograph.

In this case, a number of witnesses examined the photocopy of the will in evidence, testified as to their familiarity with Capps’ handwriting, and identified the handwriting of the will as hers. Their testimony, in sum, was that all the disposi-tive portions of the document were written in Capps’ hand, and it was signed by her. This is sufficient to support probate as a holographic will, and there is no evidence to the contrary. We overrule points of error seven through ten.

3. The Selection of Personal Representative Is Correct

In the eleventh and final point of error, Bishop and Parvar allege the court erred by appointing Devon Roberts as the administrator pursuant to the will. Because we have concluded the will was properly probated, this point also fails, because it is based on the assertion that the will was improperly probated.

We affirm the judgment.

      . Before Roberts’ appointment as administrator, Bishop had qualified and served as temporary administrator. Though it is not raised by a party and is not determinative to this appeal, we note that Bishop’s authority as temporary administrator was limited by time ("until the final hearing on the Application to Probate Will and the Contest thereto”) and subject matter ("[cjollecting Certificates of Deposit ... [(Insuring the residence ... and ... [fliling an Income Tax Return”) in the trial court’s order of April 1, 2003, so the record before us does not reflect that Bishop has any authority to pursue this appeal in the capacity he purports to use, temporary administrator. On the other hand, there is nothing to indicate his coappellant, Hulene B. Parvar, lacks power to appeal in her own right.

      . The Bailey opinion required that the proof be by clear and convincing evidence. That standard was disavowed in In re Estate of Glover, 744 S.W.2d 939, 940 (Tex.1988), which used preponderance of the evidence as the standard.

      . The two-page writing states that the house and land go to the church and Devon and Sue Roberts, that the house’s contents are “given first choice to Devon & Sue especially my medical books — the rest to the poor and needy.” The document then gives "my” jewelry and colonial lamps to a different person, and states that "my” Certificate of Deposit goes to the person who is named on the certificate as a joint partner. It then reiterates that the house and land, within specified boundaries, go to the church and that the rest of the land goes to Devon and Sue Roberts.

      . Whether the document is proper as the will of 01 a Maye Capps is not an issue.

      . Section 59 of the Texas Probate Code requires that an attested will be witnessed by at least two witnesses over the age of fourteen. But was the will proved as required by Texas law? Although a will must be witnessed by at least two witnesses, only one subscribing witness must testify. Tex. Prob.Code Ann. § 84(b)(1) (Vernon Supp.2004-2005); In re Estate of Teal, 135 S.W.3d 87, 92 (Tex.App.-Corpus Christi 2002, no pet.).
      One purported witness, Ola Maye Capps, predeceased Nadine Capps. However, the notary public before whom Nadine and Ola Maye signed the document, Peggy Adams, did testify that both Capps sisters signed the document in her presence and that Nadine stated that the document was to serve as her will. A notary can serve as a witness to a will. See Teal, 135 S.W.3d at 90; Reagan v. Bailey, 626 S.W.2d 141 (Tex.Civ.App.-Fort Worth 1981, writ ref'd n.r.e.). The trier of fact is the sole judge of the witnesses' credibility and the weight to be given their testimony. Mohnke v. Greenwood, 915 S.W.2d 585, 589-90 (Tex.App.-Houston [14th Dist.] 1996, no writ). The trial court implicitly found the witnesses’ testimony to be credible. There is evidence to support the court’s finding on this issue, and no evidence to the contrary appears in this record.


author: TERRY McCALL, Justice.

text:
    STATE of Texas, Appellant, v. James S. MASONHEIMER, Appellee.
    No. 11-03-00234-CR.
    Court of Appeals of Texas, Eastland.
    Jan. 6, 2005.
    Rehearing Overruled Feb. 17, 2005.

      James Eidson, District Attorney, Patricia Dyer, Assistant Criminal Dist. Atty’s Office, Abilene, for appellant.
    Burt Lee Burnett, Burnett & Burke, W.L. (Tres) Burke, III, Burke & Burke, Britt H. Lindsey, Abilene, Robert T. Sher-win, Coby D. Smith, Brackett & Ellis, P.C., Fort Worth, for appellee.
    Panel consists of: ARNOT, C.J., and WRIGHT, J„ and McCALL, J.
   Opinion

TERRY McCALL, Justice.

James S. Masonheimer shot Gilbert “bo” Sanchez five times in the back with a .38 revolver, killing Sanchez outside the home of Masonheimer’s daughter, Lucy Williams. The shooting occurred early one morning after the two were seen conversing. Masonheimer’s first murder trial before a jury ended in a mistrial. He pleaded nolo contendere and waived a jury in his second trial. The second trial court also declared a mistrial and found that the State had acted recklessly in withholding Brady material. We reverse the trial court’s grant of a writ of habeas corpus because the court erred in granting the writ based on the double jeopardy rationale of Bauder v. State, 921 S.W.2d 696 (Tex.Cr.App.1996)(Bauder I), and we remand for a retrial.

Background, Facts

During a pretrial hearing before the first trial, Masonheimer’s attorneys advised the court and the prosecution that they planned to show that Masonheimer shot Sanchez in self-defense and in defense of Lucy. TEX. PEN. CODE ANN. § 9.32 (Vernon 2003). Defense counsel argued that he was entitled to show past bad acts of Sanchez as evidence of why Lucy was “terrified” of Sanchez and why Mason-heimer had a reasonable belief that use of deadly force was necessary that day. Defense counsel told the trial court that he planned to show that Lucy wanted to end her relationship with Sanchez; that Sanchez’s behavior had grown increasingly aggressive toward Lucy due to his use of anabolic steroids; that Sanchez had grown increasingly jealous; that Sanchez had choked Lucy; that Sanchez had wiretapped her telephone; that Sanchez had made threats to kill Lucy and her family if she left him; and that Lucy had asked Masonheimer and his wife to stay with her the night before the shooting because Lucy was afraid of Sanchez.

Both trials were brief: the initial jury trial ended in a mistrial “in the interest of justice” after four witnesses; and the one-day second trial following Masonheimer’s nolo contendere plea also ended in a mistrial. The second trial court declared a mistrial because the prosecution had withheld three pieces of exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The three pieces of exculpatory evidence will be referred to as the Marshall statement, the Williams statement, and the Upchurch statement.

The second trial court found that the prosecution knew about the three pieces of exculpatory evidence before the first trial began and that all three should have been disclosed before the first trial. The Marshall statement was discovered by the defense during the first trial. The Williams statement was given to the defense during a pretrial conference prior to the second trial. Only the Upchurch oral statement was disclosed during the nolo contendere trial. Because the prosecution had engaged in a pattern of misconduct of withholding Brady material, the second trial court found that the conduct of the “State ... constituted reckless conduct.” See Bauder, I, supra.

Masonheimer filed an application for writ of habeas corpus, contending that a retrial was barred by double jeopardy under Bauder I because of the prosecution’s reckless conduct. The trial court agreed. The State’s appeal from the granting of the writ of habeas corpus is now before us. We will uphold the trial court’s decision unless it committed an abuse of discretion. State v. DeLeon, 971 S.W.2d 701 (Tex.App.-Amarillo 1998, pet’n ref'd).

Masonheimer received the Marshall and Williams statements in time to put them to effective use in the second trial. The second trial court should have been concerned with only the effect of the Up-church oral statement on the nolo conten-dere trial and the mens rea of the prosecutor in that trial. The Upchurch oral statement was made to the first prosecutor prior to the first trial; however, there is no evidence that the new lead prosecutor knew about the Upchurch statement and related information until he interviewed Johnny Lee Upchurch just prior to Upchurch’s proposed testimony in the nolo contendere trial.

We hold that the trial court abused its discretion in granting the writ of habeas corpus. There was no evidence that the new lead prosecutor in the second trial acted intentionally, a critical mens rea under Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), or recklessly, a critical mens rea under Bander I, to cause the trial court to declare the mistrial. Masonheimer could have withdrawn his “no contest” plea, entered a not guilty plea, and then tried his theory of self-defense before either the trial court or a jury. See Mendez v. State, 138 S.W.3d 334 (Tex.Cr.App.2004). He freely chose to ask for a mistrial. Ex parte Bauder, 974 S.W.2d 729 (Tex.Cr.App.1998)(Bauder II). A retrial of Masonheimer is not barred by double jeopardy. Therefore, we reverse and remand for a new trial.

The Initial Jury Trial

The first jury trial had barely begun when the defense discovered the first exculpatory evidence. The first witness, a neighbor, testified that he had seen Ma-sonheimer and Sanchez sitting on the tailgate of Sanchez’s truck as he drove by around 7:30 a.m. on his way to work. Timothy Dean Marshall, another neighbor, testified that he was working in his back yard, that he saw the first neighbor drive by Lucy’s house, and that within five minutes he heard five shots that were not in rapid succession. When Marshall went into his front yard, he saw Sanchez going down by his track. Marshall went inside, called 911, and then walked over to where Sanchez lay.

During cross-examination, defense counsel learned that Marshall had given a statement to the police which stated in part that “[Masonheimer] told me that the other man had threatened his daughter and it was either him or her.” Because the prosecutor had not given the defense this exculpatory statement, defense counsel moved for a mistrial. The trial court denied the defense’s motion, but gave the defense a continuance.

After granting the continuance, the trial court ordered the State to reexamine its file for exculpatory evidence. The court emphasized that, if the State had any doubts about whether evidence was exculpatory or not, then the State should submit it to the court in camera.

The trial court extended the continuance because of a death in the family of one of the prosecutors. The defense subsequently requested a mistrial, contending that the lengthy interruption of the trial (one week) might be prejudicial to Masonheimer’s right to a fair trial. The State did not object, and the trial court declared a mistrial “[i]n the interest of justice.” Because both Masonheimer and the State wanted a retrial as promptly as possible, the trial court had another judge appointed to hear the second trial.

Shortly after the first trial, the lead prosecutor left the district attorney’s office to become a county court at law judge. His assistant during the first trial then became the lead prosecutor for the second trial.

At a pretrial conference prior to the second trial, defense counsel expressed his concern that all exculpatory evidence had not been provided by the State. Although the new lead prosecutor represented to the trial court that all exculpatory evidence had been provided, he agreed to provide defense counsel with a statement given by Billy Glenn Williams, Lucy’s ex-husband. In that statement, Billy Williams related that Lucy had asked him to keep their children during the afternoon of the day before Sanchez was shot; that, when he called Lucy around 6 p.m., she “broke down and told me about the trouble she had been having with Bo”; that Billy told her to go to the police and get a restraining order; that Lucy told him that she thought Bo had put dirt in her car’s gas tank; and that Lucy was upset when they finished the telephone conversation.

Masonheimer’s counsel argues that this evidence should have been disclosed before the first trial for two reasons: (1) this evidence would help rebut any prosecution evidence showing that Sanchez was a peaceful man and (2) this evidence would help rebut any contention by the prosecution that Lucy’s testimony concerning Sanchez’s stalking behavior was recently fabricated to help her father develop a theory of self-defense. We agree that the Williams statement should have been disclosed to the defense before the first trial.

The Second Trial

In the second trial before another judge, Masonheimer pleaded nolo contendere to “intentionally and knowingly causing the death of Sanchez by shooting him with a handgun.” See TEX. PEN. CODE ANN. § 19.02(b)(1) (Vernon 2003). The State waived the remaining paragraphs of the indictment. The trial court then carefully admonished Masonheimer of the consequences of his plea and his waiver of a jury. See TEX. CODE CRIM. PRO. ANN. art. 26.13 (Vernon 1989 & Supp. 2004-2005). The record reflects that Masonheimer voluntarily waived his right to plead “not guilty.” See Mendez v. State, supra at 350. The legal effect of a nolo contendere plea is the same as that of a plea of guilty. TEX. CODE CRIM. PRO. ANN. art. 27.02 (Vernon 1989).

Masonheimer did not stipulate to any evidence. Therefore, the State was required to introduce evidence into the record showing the guilt of the defendant. TEX. CODE CRIM. PRO. ANN. art. 1.15 (Vernon Supp.2004-2005). But self-defense is a defense to prosecution for an offense. TEX. PEN. CODE ANN. §§ 2.03, 9.02, & 9.32 (Vernon 2003). By pleading “no contest,” Masonheimer indicated that he did not plan to try to contest the charged offense by trying to establish a defense or justification. The State only had to introduce sufficient evidence to prove that Masonheimer intentionally and knowingly caused the death of Sanchez by shooting him with a handgun.

Had Masonheimer pleaded not guilty, he could have contested the charged offense by introducing evidence of self-defense. The State would not have been required to produce evidence to refute that self-defense testimony. It is the defendant who has the initial burden of producing evidence to raise self-defense. Then the State has the final burden of persuasion to disprove it. Saxton v. State, 804 S.W.2d 910, 914 (Tex.Cr.App.1991).

During the morning of the first day of trial, the new lead prosecutor told the defense about a witness named Johnny Lee Upchurch. The next morning, the defense moved for a mistrial based on the prosecution’s third failure to disclose Brady material despite being ordered to provide the defense with all exculpatory evidence in an order before the first trial, being again ordered to do so after the first trial court declared a mistrial “in the interest of justice,” and being ordered to submit any questionable material to the court in camera.

Hearing on the Mistrial Motion

Upchurch was the first witness called by the defense in support of its motion. Up-church, a friend of Sanchez, testified that he had helped remove Sanchez’s belongings from the apartment after Sanchez’s death. Upchurch took five old Coke machines to a store in Baird to be sold on consignment. The owners of the store, Mark and Tricia Duque, had known Sanchez and had sold Coke memorabilia for him in the past. Upchurch said that he, Mark, and Tricia had opened one of the Coke boxes and discovered several “syringes with orange caps” and small cardboard boxes. Upchurch asked Tricia, a practicing nurse, what the boxes were, “and she said steroids.” Upchurch told Tricia to throw the syringes and boxes away because he did not want Sanchez’s ex-wife to know that Sanchez had kept steroids.

Prior to the first trial, Upchurch met with Robert Harper, the lead prosecutor in the first case, and Steve Clappart, Harper’s investigator. Upchurch told them about finding the bag with syringes and what he thought were steroids in cardboard boxes. Upchurch mentioned Tricia Duque’s comment and his instruction to her to throw the items away. After the meeting, Upchurch went to Clappart’s office and gave him Tricia’s cell phone number. Upchurch said that Clappart immediately called the number and spoke with Mark, telling him that Clappart needed to find out from Tricia if the boxes contained steroids.

Clappart testified that Tricia told him that, although the labels on the boxes were in Spanish, she thought “they might be steroids.” Clappart said that the Duques both told him that they had disposed of the syringes and boxes. Clappart testified that he told Harper about his conversations with the Duques and that he believed that he gave his notes to Harper. On the mens rea of the second prosecutor, Dan Joiner, Clappart testified that he did not believe that Joiner knew about the Up-church oral statement.

There was no mention of the Upchurch oral statement or the Duques’ statements to Clappart in the prosecution’s file. Although Clappart believed that he gave his notes to Harper, Clappart’s notes were not in the file. Harper testified that he did not remember the meeting with Upchurch and Clappart and that he did not remember Clappart telling him about Tricia’s comment.

Joiner testified that he first became aware that steroids may have been in the Coke machines when he interviewed Up-church the day the second trial started. Joiner said that he immediately called defense counsel and told him about the Up-church information. To his credit, Joiner admitted that all three statements should have been disclosed as Brady material pri- or to the first trial.

In support of the motion for mistrial, defense counsel pointed out that the Du-ques had moved from Baird to Arizona and that he did not know how to locate them. Defense counsel acknowledged that Joiner had advised him about the Upchurch oral statement “[a]s soon as [Joiner] found out.” Defense counsel argued that Tricia’s statement provided the only direct evidence that Sanchez had used steroids and that Masonheimer had pleaded “no contest” because of the lack of such direct evidence. Joiner offered to stipulate that the items in the Coke machine were steroids. The trial court found that the prosecution should have disclosed the three Brady statements prior to the first trial. The court declared a mistrial and also found that “the State” had acted recklessly in withholding the Brady material.

Mens Rea of the Prosecutor

The suppression by the prosecution of evidence favorable to and requested by an accused violates due process where the evidence is material either to guilt or to punishment; the good faith or bad faith of the prosecution is immaterial. Brady v. Maryland, supra. But the prosecutor’s mens rea is important when determining whether retrial is barred by double jeopardy. Ex parte Peterson, 117 S.W.3d 804, 816 (Tex.Cr.App.2003).

In Oregon v. Kennedy, the Supreme Court held that the double jeopardy clause of the Fifth Amendment of the United States Constitution was not offended by a second prosecution for the same offense where the earlier trial was terminated as a result of the defendant’s motion for mistrial. But, if the State intentionally and deliberately set out to provoke the mistrial, then the defendant’s right under the double jeopardy clause to have his trial decided by the first tribunal was violated. Oregon v. Kennedy, supra.

When Texas courts determined double jeopardy claims under the Texas Constitution, they followed the federal double jeopardy standard set out in Kennedy until Bauder I. In Bauder I, however, the Court of Criminal Appeals found that the Texas Constitution confers more protection than the federal constitution. The Bauder I court extended the double jeopardy bar to include those situations in which the “prosecutor was aware [of] but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant’s request’ Bauder I, supra at 699. Here the objectionable event was the withholding of Brady material.

A prosecutor is deemed to have knowledge of information readily available to the prosecutor. Williams v. Whitley, 940 F.2d 132, 133 (5th Cir.1991); Ex parte Mitchell, 853 S.W.2d 1, 4 (Tex.Cr.App.), cert. den’d, 510 U.S. 864, 114 S.Ct. 183, 126 L.Ed.2d 142 (1993)(exculpatory statements in possession of sheriffs office); O’Rarden v. State, 777 S.W.2d 455, 458 (Tex.App.Dallas 1989, pet’n ref'd). But Ex parte Peterson emphasized that, for double jeopardy to apply, “under Bauder I, Bauder II, and Lee, the prosecutor’s mens rea is pivotal, just as it is under Kennedy.” Ex parte Peterson, supra at 816. Thus, we must determine the mens rea of Joiner, the prosecutor in Masonheimer’s second trial.

A Bench Trial with a Nolo Contendere Plea

Trial and appellate courts are to focus primarily upon the objective facts and circumstances surrounding the events which led to the mistrial in deciding whether the prosecutor’s alleged mis-con-duct was committed with the requisite intent or recklessness. Ex parte Peterson, supra at 819. The fact that this was a trial before the court on a nolo contendere plea bears on our determination of Joiner’s mens rea. It also bears on whether Ma-sonheimer freely chose to request a mistrial as required by Bauder II. Bauder II, supra at 732.

The State’s burden of producing evidence and persuading the fact finder was substantially less in Masonheimer’s second trial than it would have been in a jury trial with a not guilty plea. The appellate standards of review announced in Jackson v. Virginia and Clewis v. State are not applicable where the defendant enters a plea of nolo contendere or guilty. Ex parte Martin, 747 S.W.2d 789, 791 (Tex.Cr.App.1988). An appellate court will affirm the trial court’s judgment under Article 1.15 if the State introduced evidence that embraces every essential element of the offense charged and that is sufficient to establish the defendant’s guilt. Wright v. State, 930 S.W.2d 131, 132 (Tex.App.-Dallas 1996, no pet’n).

A prosecutor does have a duty to disclose Brady material even in a bench trial on a guilty plea. Ex parte Lewis, 587 S.W.2d 697 (Tex.Cr.App.1979). After Joiner’s interview with Upchurch, Joiner immediately disclosed the information to defense counsel. Joiner discharged his duty.

The trial below was a unitary trial, not a bifurcated jury trial where the guilt and penalty stages are conducted separately. In a trial before the court, a defendant may withdraw his guilty plea, as a matter of right and without any reason, at any time before judgment is pronounced or until the trial court has taken the case under advisement. Mendez v. State, supra at 345 n. 55; Jackson v. State, 590 5.W.2d 514 (Tex.Cr.App.1979). By withdrawing his guilty plea, a defendant “un-waives” his waiver of his right to plead “not guilty.” Mendez v. State, supra at 350.

Even though Mendez involved a jury trial with a guilty plea, Mendez also provided a procedural guide where exculpatory evidence comes in, or is discovered, during a bench trial with a guilty plea:

We think that the rule was better stated in Taylor [v. State, 88 Tex.Crim. 470, 227 S.W. 679 (Tex.Cr.App.1921)] when we spoke in terms of the familiar rule that a defendant has the right to withdraw a plea of guilty (or nolo con-tendere) in a timely fashion, whether the trial be with or without a jury.... [A]f-ter ... a defendant has made a valid waiver of those rights [to a jury or to a not guilty plea], it is appropriate that the defendant be required to take some affirmative action to don the armor again.

Mendez v. State, supra at 350.

Masonheimer had the right to withdraw his guilty plea, plead not guilty, and then continue his trial before the court. Or, after changing his plea to not guilty, he could have moved for a mistrial and insisted upon a jury trial. Masonheimer freely chose to ask solely for a mistrial instead.

Double Jeopardy and Prosecutorial Misconduct

The double jeopardy clauses of the Fifth Amendment and of Article 1, section 14 of the Texas Constitution protect a defendant from repeated prosecutions for the same offense. A defendant has a “valued right to have his trial completed by a particular tribunal.” Oregon v. Kennedy, supra; Ex parte Peterson, supra at 810-11. Bauder I, Bauder II, Lee, and Ex parte Peterson, as well as Kennedy, focused on the right of a defendant to complete his jury trial without being forced to move for a mistrial because of prosecutorial misconduct.

If the right of a defendant to complete his trial before the jury of his choice is satisfied, then the double jeopardy rationale of Bauder I does not apply. In Ex parte Davis, 957 S.W.2d 9 (Tex.Cr.App.1997), the court held that the rationale of Bauder I does not apply where a criminal trial goes to a verdict and is then reversed on appeal due, at least in part, to prosecutorial misconduct. Bauder I applies only where a mistrial has been granted due to reckless or intentional prosecuto-rial misconduct. The double jeopardy clause of the United States Constitution also does not bar the retrial of a defendant following reversal on appeal due to prose-cutorial misconduct. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976).

Masonheimer’s second trial was before the court; it was not a jury trial. The three-part analysis in Ex parte Peterson for the application of Bauder I is useful where the trial court declares a mistrial during a jury trial. Ex parte Peterson, supra at 816-18. But, it is not applicable to a bench trial where the defendant pleaded guilty or nolo contendere.

The trial court below appears to have been referring to the first prosecutor when it held that “the State” engaged in reckless conduct. The court found that it was a violation of due process for the information not to have been provided before the first trial. The court stated that it believed the testimony of Clappart. We agree that the first prosecutor should have disclosed all three pieces of Brady material before the first trial began. But, even assuming that the first prosecutor was reckless, it does not follow that Masonheimer is entitled to a double jeopardy bar under Bauder I and its progeny.

The first trial ended in a mistrial “in the interest of justice” that was requested by Masonheimer. To contemplate what might have happened if the first trial had continued would be sheer speculation. The defense might, or might not, have been provided the three statements in time to use them in putting on its evidence of self-defense. The record also reflects that defense counsel moved for a mistrial five times before he moved for a mistrial based on the prosecutor’s withholding of the Marshall statement. All those motions were denied. Two of the motions were based on an allegation that there was a systematic allegiance between the prosecutor and the court to prevent a proper defense. The record does not support that allegation by defense counsel. A reasonable inference from the numerous motions is that defense counsel wanted Mason-heimer’s first trial to end in a mistrial.

Defense counsel argues that the damage cannot be undone because he does not know how to locate Trida Duque. Cook v. State, 940 S.W.2d 623 (Tex.Cr.App.1996), presented the question of:

[Wjhether prosecutorial misconduct, magnified by the passage of over fourteen years and the death of a key witness,' can so degrade the normal workings of justice that a fair trial becomes impossible and thus retrial is forbidden under due process and due course principles.

Id. at 625. The prosecutor in Cook had withheld exculpatory information, withheld the existence of another suspect, misrepresented deals made with witnesses to the jury, and pressured a State’s witness to present false and misleading evidence. The Court of Criminal Appeals held that retrial was not barred even though the defendant had been through three trials and the prosecutor had engaged in egregious misconduct. Id.

A retrial of Masonheimer is not barred because of the passage of time and the uncertain location of Trida Duque. First, Trida Duque probably can be located. Joiner stated to the court that, after the mistrial was granted, he had spoken to Trida Duque and she was still in Baird. Second, the prosecutor offered to stipulate that the boxes contained steroids. The prosecutor could also agree to allow Up-church to testify regarding Trida Duque’s statement. As in Cook, the record does not support defense counsel’s claim that he cannot mount a viable defense because of the pattern of misconduct.

Mistrials are an extreme remedy for prejudicial events occurring during the trial process. Bauder I, supra at 698. The traditional remedy for prosecutorial misconduct is a retrial. In this case, any additional remedy for the prosecutorial misconduct should be left to the legislative and political processes. See Ex parte Davis, supra at 16 (McCormick, P.J., concurring).

We hold that a retrial of Masonheimer is not barred by double jeopardy.

This Court’s Ruling

The judgment of the trial court granting the writ of habeas corpus is reversed, and the cause is remanded for a new trial.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . State v. DeLeon, 971 S.W.2d 701, 706 (Tex.App.-Amarillo 1998, pet’n ref'd); Palmer v. State, 902 S.W.2d 561, 565 (Tex.App.-Houston [1st Dist.] 1995, no pet’n); Givens v. State, 749 S.W.2d 954, 957 (Tex.App.-Fort Worth 1988, pet’n ref'd).

      . The granting of a motion for mistrial terminates the proceeding, and the defendant's subsequent prosecution is a new proceeding. A retrial following a reversal is one uninterrupted proceeding. Ex parte Mitchell, 977 S.W.2d 575, 579 (Tex.Cr.App.1997). Thus, Masonheimer had to enter a new plea.

      . This definition of “recklessness” is according to the usual Penal Code definition of the culpable mental state of recklessness. Ex parte Peterson, supra at 814 n. 39; see TEX. PEN. CODE ANN. § 6.03(c) (Vernon 2003).

      . State v. Lee, 15 S.W.3d 921 (Tex.Cr.App.2000).

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).


text:
    Lawanda WOOLRIDGE, Individually and as Representative of the Estate of Jordan Centrell Woolridge, Appellant, v. EAST TEXAS BAPTIST UNIVERSITY, Appellee.
    No. 06-04-00048-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Aug. 23, 2004.
    Decided Jan. 12, 2005.
    Rehearing Overruled Feb. 1, 2005.

      Blake Bailey, Bailey Law Firm, Tyler, for appellant.
    Brian Bunt, Catherine Cralle Jones, Bunt, Wright & Stevens, PLLC, Long-view, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

Tragically, four-year-old Jordan Centrell Woolridge drowned. The summary judgment evidence shows the accident occurred while Jordan, his ten-year-old sister, and her thirteen-year-old friend were playing, unsupervised, in and about a creek on unimproved land owned by East Texas Baptist University (ETBU) located approximately a half mile from the Wool-ridge home.

Lawanda Woolridge, individually and as representative of Jordan’s estate, sued ETBU over Jordan’s death. The trial court granted ETBU’s motion for summary judgment, and Woolridge appeals. This appeal turns on whether the creek was an attractive nuisance either because ETBU had altered its property, thus creating a dangerous condition, or because others created a dangerous condition on the property through off-premises development. The summary judgment evidence demonstrates that ETBU has not altered this property, and Texas law does not recognize a condition as an attractive nuisance if it was created by off-premises alterations by others. Therefore, we affirm the summary judgment in favor of ETBU because the summary judgment evidence demonstrates the creek was not an attractive nuisance under Texas law.

Reviewing Summary Judgments

To prevail on a motion for summary judgment, a movant must establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). Summary judgment for a defendant is proper when the defendant negates at least one element essential to each of the plaintiffs theories of recovery or pleads and conclusively establishes each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993). The mov-ant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985).

In reviewing a summary judgment, we accept all the nonmovanf s summary judgment evidence as true and indulge every reasonable inference in the nonmovant’s favor. Martinez, 941 S.W.2d at 911. All doubts about the existence of a genuine issue of a material fact must be resolved against the movant. Johnson County Sheriff’s Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex.1996).

ETBU contends that the attractive nuisance doctrine does not apply and that the trial court’s granting of ETBU’s summary judgment was therefore proper. The trial court’s order granting summary judgment does not specify the ground or grounds on which the motion was granted. Thus, the summary judgment will be affirmed on appeal if any of the theories advanced by the movant are meritorious. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex.1989).

Premises Liability and the Attractive-Nuisance Doctrine

The only duty a premises owner or occupier owes a trespasser is not to injure him or her willfully, wantonly, or through gross negligence. Tex. Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex.1997); Restatement (Second) of Torts § 333 (1965). However, “when children of tender years come upon the premises by virtue of their unusual attractiveness, the legal effect is that of an implied invitation to do so. Such child is regarded, not as a trespasser, but as being rightfully on the premises.” Timmons, 947 S.W.2d at 193 (citing Banker v. McLaughlin, 146 Tex. 434, 208 S.W.2d 843, 847 (1948)).

The theory of liability under the attractive-nuisance doctrine is that,

where the owner maintains a device or machinery on his premises of such an unusually attractive nature as to be especially alluring to children of tender years, he thereby impliedly invites such children to come upon his premises, and by reason of such invitation, they are relieved from being classed as trespassers, but are in the attitude of being rightfully on the premises. Under such circumstances, the law places upon the owner of such machinery or device the duty of exercising ordinary care to keep such machinery in reasonably safe condition for their protection!)]

Banker, 208 S.W.2d at 847-48. In Banker, the Texas Supreme Court adopted the statement of the attractive-nuisance doctrine found in Section 339 of the Restatement, which, among other things, requires an “artificial condition” on the land. Banker, 208 S.W.2d at 847-48; see Restatement (Second) of ToRts § 339 (1965).

The attractive-nuisance doctrine applies not to natural conditions, but only to things or conditions artificially created and maintained. Hooper v. M M Cattle Co., 278 S.W.2d 170, 172 (Tex.Civ.App.-Amarillo 1955, writ ref'd n.r.e.). The owner is not required to fence or prevent injury from naturally occurring things, such as lakes, rivers, trees, or creeks. Maruska v. Mo., K. & T.R. Co., 10 S.W.2d 211 (Tex.Civ.App.-Austin 1928, writ ref'd). “Although, a property owner may know of the habit of children to visit waters upon his premises, he is as a rule under no obligation to erect barriers or take other measures to prevent them being injured thereby.” Id. at 212; see Dobbins v. Mo., K & T.R. Co., 91 Tex. 60, 41 S.W. 62 (1897).

The Creek Was Not an Attractive Nuisance

ETBU argues that the creek and the pond within it are naturally occurring conditions and that the attractive-nuisance doctrine thus does not apply. Woolridge argues the creek has been artificially altered due to the construction of pavements, parking lots, drainage ditches, houses, and buildings around the property where the accident occurred. Yet Dan Mueller, Woolridge’s engineer, stated that “[t]he pond that is present in the creek was formed over time from the eroding of the creek bed.” Storm water flows into the pond, and that has increased due to development in the creek’s watershed and the resulting reduction of the absorption of surface water in the watershed.

Woolridge’s expert engineer, Robin Roberts, stated in his affidavit that “[t]he location of the drowning is on unimproved property owned by” ETBU. Roberts stated that the creek, not ETBU or its predecessor in title, dug out a deep hole with steep, slippery sides. There is no evidence that ETBU did anything to create or modify the creek, the pool within it, or its environs.

Hooper is on point. In Hooper, suit was brought for the death of a nine year old who drowned in a pool of surface water impounded by Borger Properties, Inc., when the latter, while building a housing project, obstructed natural drainage. Hooper, 278 S.W.2d at 171. Borger Properties filled in part of a canyon or ravine on its own land up to its property line with the defendant, M M Cattle Company, creating a relative depression on M M Cattle Company’s land, which collected rainfall and drainage water in which the nine year old drowned. Id. The court, holding in favor of M M Cattle Company, opined that

[i]t was not shown there was ever a hole where the child drowned until the [sic] Borger Properties, Inc., filled in where the natural drainage of the flood waters escaped. None of the defendants did anything to create the pool. The hole or pond was created by a dam built by Borger Properties, Inc., on its land and the dam was maintained by it on its own property. If the defendants could be held liable in the present case, they would also be held liable if the fill or dam had been placed a mile down the draw and the water caused to back up on the defendant’s property.

Id. at 172. Similarly, ETBU is not liable under the attractive-nuisance doctrine, since it does not have control over the residential and commercial development around its property and it has not modified the creek or its environs. See id. Sam Fogle, vice president of administration and finance, who has ultimate responsibility ovér the real properties owned by ETBU, stated in his affidavit that the property where the creek is located was acquired through donation in 1952, and ETBU has never developed the property. He further stated the property as of today has remained an undeveloped, wooded tract of land. Fogle also stated in his deposition that ETBU has not used the property in question for any reason. The record is devoid of evidence of any changes or improvement to the property.

Eric Wilburn, the director of ETBU’s physical facilities, who directly oversees ETBU’s real property, stated in his affidavit that the property where the creek is located has never been used by ETBU for development. Wilburn stated that the property “remains in a raw, undeveloped, and heavily wooded state.” Those assertions of fact are not contradicted in the evidence.

Woolf is also on point. In Woolf, four-year-old Jackie Woolf drowned in a pool of water in a creek located on property owned by Luella Carver. Woolf v. City of Dallas, 311 S.W.2d 78 (Tex.Civ.App.-Dallas 1958). The trial court granted the defendant’s summary judgment, and the court of appeals affirmed the judgment. Id. The court of appeals reviewed numerous affidavits from the owner of the property and the neighbors, and concluded the testimony and affidavits show without dispute that

the waterway involved was a natural creek or stream formed as a natural part of such stream by forces of nature and that it had existed in its present condition, size and depth for about fifty years without change which would alter the course of the stream or the size or depth of the pool.

Id. at 87. Similarly, in this case, the summary judgment evidence from Mueller, Roberts, Fogle, and Wilburn show without dispute that ETBU’s creek has remained without change for over fifty years.

ETBU has successfully negated the artificial condition requirement required by the attractive-nuisance doctrine. Wool-ridge has not provided any evidence that ETBU altered the creek or its environs and thus has not raised a genuine issue of material fact. Because there was no attractive nuisance, any knowledge by ETBU of the creek’s dangerousness, or of children playing around the creek, is irrelevant. Therefore, the trial court did not err in granting ETBU summary judgment.

We affirm the trial court’s judgment.


author: COMBS, Judge.

text:
    CALLOWAY COUNTY FISCAL COURT, Appellant, v. MURRAY-CALLOWAY COUNTY PUBLIC HOSPITAL CORPORATION and Community Healthcare Foundation, Inc., Appellees.
    No. 2002-CA-002421-MR.
    Court of Appeals of Kentucky.
    Nov. 7, 2003.
    Rehearing Denied Jan. 9, 2004.
    Discretionary Review Denied by Supreme Court Feb. 9, 2005.
    Randall A. Hutchens, Calloway County Attorney, Murray, KY, for appellant.
    Carole D. Christian, Louisville, KY, for appellees.
    Before COMBS and TACKETT, Judges; and MILLER, Senior Judge.

      . Senior Judge John D. Miller sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

COMBS, Judge.

The Calloway County Fiscal Court (Fiscal Court) appeals from an Order and Judgment of the Calloway Circuit Court denying its complaint for declaratory and injunctive relief. The Fiscal Court challenged the acts of the Board of Commissioners of the Murray-Calloway County Public Hospital (the Hospital), in creating and appropriating funds for Community Healthcare Foundation, Inc. (the Foundation), as violating § 179 of the Kentucky Constitution. Reviewing cross-motions for summary judgment, the circuit court found no constitutional violation in the Hospital’s creation and funding of the private corporation. We conclude that the court erred in determining that the Hospital was authorized to delegate its public duties to a private entity or to transfer public funds to the Foundation without the approval of the Fiscal Court. Therefore, we vacate and remand.

The facts relevant to this controversy are not in dispute. The Hospital is a public, non-profit corporation, created in the 1960’s by joint action of the City of Murray and the Calloway County Fiscal Court with public funds pursuant to KRS Chapter 273. The Hospital’s Bylaws provide that its affairs shall be managed by a Board comprised of the following members: the County Judge/Executive of Cal-loway County; the Mayor of Murray; the Chief of the Hospital’s medical staff; and eight citizens with staggered four-year terms, nominated by a committee of city and county officials.

The Hospital now sustains itself by revenues from its internal operations. However, the Fiscal Court and City of Murray initially raised monies for the acquisition of the Hospital through revenue bonds funded by local taxes. Furthermore, the Hospital acknowledges that both the city and county have lent their credit to support the issuance of revenue bonds (which remain outstanding) for making improvements to the Hospital.

In 1997, after exploring various alternatives for its corporate organization, the Hospital created the Foundation. The boards of the two entities have only two members in common. Thus, although the City of Murray and the Fiscal Court control the membership of the Hospital’s board, they do not retain such control over the Foundation.

The record does not disclose the reason for the Hospital’s re-structuring of its corporate organization or why it delegated certain of its activities to the Foundation. In its brief, the Hospital states that:

the Foundation was established to solicit and receive donated money and property for the Hospital and to conduct related healthcare-oriented activities.

(Appellee’s brief at p. 3). The Fiscal Court contends that the Hospital in reality sought to avoid public accountability and to circumvent the application of Kentucky’s Open Meetings and Open Records Laws.

Regardless of its motives, the Hospital initially funded the Foundation with more than $1.35 million derived from various sources — including a testamentary bequest to the Hospital. In 1998, the Hospital voted to give 5% of its net profits to the Foundation. In 2000, the Hospital again transferred significant other monies to the Foundation. In all, more than $3,000,000 in public funds have been transferred to the Foundation.

The Fiscal Court raised and formally registered objections as to the Hospital’s re-structuring efforts — especially with respect to its divestiture and re-allocation of public funds. On May 3, 2000, the Callo-way County Attorney advised the Fiscal Court that he believed that the Hospital’s actions were illegal. On July 24, 2000, after a public hearing, the Fiscal Court adopted a resolution that provides in relevant part as follows:

WHEREAS, the Hospital’s Board has created a private 501(c)(3) corporation known as the Community Healthcare Foundation; and
WHEREAS, the Board of Commissioners of the Murray-Calloway County Public Hospital has transferred or has set aside for transfer over $1,350,000 of its assets to the Community Healthcare Foundation; and
WHEREAS, it appears that the intent of the Hospital Board is to transfer other assets and monies of the Hospital to said private Foundation; and
WHEREAS, it is the finding of the Cal-loway County Fiscal Court that the transfer of said assets is not in the public interest and does not serve a public purpose in violation of Section 179 of the Kentucky Constitution.

The adoption of the resolution did not end the controversy. The Hospital responded by voting to “request” that the Fiscal Court file suit against it. Consequently, the Fiscal Court accepted the invitation and commenced the underlying action on May 16, 2001.

After the pleadings were closed, both the Fiscal Court and the Hospital moved for summary judgment. In ruling in favor of the Hospital, the Calloway Circuit Court determined that its actions in creating and funding the Foundation were authorized by KRS Chapter 273.

Because the Hospital is a non-stock, non-profit corporation established under KRS Chapter 273, it is governed by the provisions of KRS Chapter 273, which authorizes non-profit corporations to “use and deal in and with ... interests in ... other domestic or foreign corporations,” “to make donations for the public welfare or for charitable purposes” and “to have and exercise all powers necessary or convenient to effect any or all of the purposes for which the corporation is organized.” KRS 273.171. These provisions authorize the Hospital’s actions.

The Fiscal Court had argued that the Hospital’s transfer of public funds to the Foundation offended Section 179 of the Kentucky Constitution. In addressing that argument, the trial court cited numerous cases in which the transfer of public funds to private corporations had been upheld. It relied upon the Kentucky Supreme Court cases, Hayes v. State Property and Buildings Comm., Ky., 731 S.W.2d 797 (1987) and Dannheiser v. City of Henderson, Ky., 4 S.W.3d 542, 545 (1999), for the proposition that as long as public money is being spent for a “valid public purpose,” Section 179 of the Constitution is not violated.

The circuit court also determined that the resolution of the Fiscal Court condemning the transfer of public funds to the Foundation was of no significance. Instead, it concluded as a matter of law that the Foundation serves a public purpose, attributing the public purpose clearly underlying the Hospital to extend by analogy to its corporate creation:

[I]f the Hospital was established to serve public purposes (which appears indisputable since it was established by the City and County pursuant to KRS chapter 58, which relates to public projects sponsored by local governments), then the Foundation itself serves the same public purpose.
There are few activities that have a clearer link to public welfare than health care facilities.

In its appeal, the Fiscal Court contends that the trial court misinterpreted the body of case law involved in its analysis of § 179 of the Kentucky Constitution, which provides:

The General Assembly shall not authorize any county, or subdivision thereof, city, town, or incorporated district to become a stockholder in any company, association or corporation, or to obtain or appropriate money for, or to loan its credit to, any corporation, association or individual.

The purpose of this constitutional provision was articulated in City of Louisville Municipal Housing Commission v. Public Housing Administration, Ky., 261 S.W.2d 286, 288 (1953), as follows:

It is apparent that section 179 was enacted in order to place upon local governmental units the same general restrictions imposed upon the Commonwealth itself by section 177. The purpose behind both sections was to prevent local and state tax revenues from, being diverted from normal governmental channels. (Emphasis added.)

The Fiscal Court argues that the cases cited by the appellees and relied upon by the trial court involve circumstances where a legislative body has appropriated public funds and has associated itself with a private entity having a public purpose. It does not disagree with the court’s general observation that § 179 is not violated by the transfer of public funds to a private entity if a public purpose is to be accomplished. However, in its resolution, the Fiscal Court had made a formal pronouncement and finding that the Foundation did not serve a valid public purpose. It contends that it has the exclusive authority to make such a determination as a legislative body.

The Hospital counters by arguing that § 179 is not an impediment to its proposal to transfer funds and to delegate some of its duties to the Foundation. Because the Foundation was designed to assist the Hospital in its mission of providing health care, the Hospital contends that the Foundation (by definition and as a matter of law) qualifies as having a public purpose and is thereby entitled to receive public funds. It also argues that it is well established that a hospital “may use a separate, private corporation as a vehicle for the accomplishment of its public purpose.” (Appellee’s brief, at p. 8.) In support of its argument that the Foundation constitutes a legitimate public purpose, the Hospital emphasizes the fact that the Foundation has been recognized by the Internal Revenue Service as a charitable corporation.

Nonetheless, we are not persuaded that the process employed by the Hospital is constitutional. The Fiscal Court is correct in arguing that the Hospital is not vested with the authority to determine what constitutes a “public purpose” with respect to the proper use of public funds. It relies on the venerable old case of Hager v. Kentucky Children’s Home Society, 119 Ky. 235, 83 S.W. 605 (1904):

These authorities clearly settle that the vital point in all such appropriations is whether the purpose is public; and that, if it is, it does not matter whether the agency through which it is dispensed is public or is not; that the appropriation is not made for the agency, but for the object which it serves; the test is in the end, not in the means. The limitation put upon the state government by the people is as to what things it may collect taxes from them for, to which it may apply their property through taxation; not upon the means by which or through which it will do it. It may well and wisely be left to the Legislature to say how it will dispense the state’s charities. Varying conditions, improved methods of treatment, changing circumstances affecting the ability of the people to provide for such charges, all bear upon the legislative discretion, and doubtless find a proper application in the measures finally adopted by that body. Yet back of all that must exist the power to do the thing in question — the power to make the provision. It is this power alone that the courts can deal with, and then only to the extent of determining whether it exists. Whether it is exercised, and how exercised, are manifestly matters of exclusive legislative discretion.

Id., 83 S.W. at 608-09. (Emphasis added.)

Hager holds that local governments may dispense funds through a municipal corporation such as the Hospital. However, a consistent thread running through Hager and its progeny is that all of these cases involve legislative appropriations for private endeavors. The power to “dispense the state’s charities” is one “of exclusive legislative discretion.” Id. (Emphasis added.)

Although the courts have the final word on what constitutes a “valid public purpose,” that issue does not become ripe for a court’s adjudication until there first has been a legislative decision to undertake the expenditure. See also, Industrial Development Authority v. Eastern Kentucky Regional Planning Commission, Ky., 332 S.W.2d 274, 276 (1960), quoting Shean v. Edmonds, 89 Cal.App.2d 315, 200 P.2d 879, 885 (1948), for the proposition that “[t]he determination of what constitutes a public purpose is primarily a matter for legislative discretion.... ” Consequently, we hold that the trial court erred in failing to recognize the binding legal effect of the Fiscal Court’s resolution and in failing to defer to its determination (as the only legislative body involved) that funding the Foundation did not constitute a public purpose.

The Hospital was created by the City of Murray and Calloway County to provide health care, and it functions as their agent in providing that service. For nearly forty years, those two governmental entities had little or no objection to the Hospital’s management of its affairs. However, that lengthy period of harmonious supervision does not vitiate the reality of governmental control of the Hospital and its assets. The Hospital argues otherwise, however, citing Knox County Fiscal Court v. Knox County General Hospital, Inc., Ky.App., 528 S.W.2d 672, 675 (1975), for the proposition that it is a “separate legal entity” from the county and that its powers are “derived from its articles of incorporation and the general statutes (principally KRS Ch. 273) applicable to nonprofit corporations.”

We have examined both the Hospital’s Articles of Incorporation and KRS Chapter 273. We find no indication in either source that the Hospital is empowered to form and fund a separate corporation — nor it is authorized to divest itself of public funds in order to place them in the repository of a private corporation. The Hospital also recites the omission of the Fiscal Court to insert its veto power into the Hospital’s Articles of Incorporation. However, Knox provides no comfort or support on that point:

A fiscal court may sell or lease property for the purpose of being operated as a hospital, but if it is to be a county hospital it must remain under control of the governing body directly responsible to the county electorate, which is the fiscal court.... To the extent that it cannot override the governing body of the hospital it has given away its power, and that is what it cannot legally do. (Emphasis added.)

Id. at 674. Knox essentially finds the veto power both implied and inherent in the nature of the relationship between the Fiscal Court and the Hospital. It specifically finds that the governmental entity creating the Hospital cannot abdicate its veto power over the Hospital’s managerial functions.

As in the case before us, the Knox County Hospital, a nonprofit corporation created during the same era as the Murray-Calloway County Hospital, was managed for many years by a board appointed by the Knox County Fiscal Court. When a dispute arose some time later, the Knox County Hospital argued that the fiscal court did not have veto power over its management decisions. Like the appellee in this case, the Knox County Hospital initially prevailed over the fiscal court in circuit court. However, this Court held in Knox that the fiscal court was entitled to assume the management of the hospital and to “terminate its control by [the] directors ....” Id. at 672. Thus, the Hospital in this case has wholly misconstrued its entitlement to rely on Knox. Knox instead reinforces our holding that the ultimate control of the public Hospital remains subject to the Fiscal Court and that the Hospital’s action in forming the Foundation was an ultra vires usurpation of the authority of the Calloway County Fiscal Court.

The judgment of the Calloway Circuit Court is vacated, and this matter is remanded for further proceedings consistent with this opinion.

ALL CONCUR.

      . Kentucky Revised Statutes.

      . In their answer to the complaint, the Hospital and Foundation admitted that the Foundation was not subject to the Kentucky Open Records and Open Meetings Laws. However, they denied that avoidance of those laws was the “sole purpose in establishing the Foundation.” (Emphasis added.)