author: JANE BLAND, Justice.

text:
    Frederick Simon GRAVES, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-00142-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 14, 2004.

      Jerome Godinich, Jr., Houston, TX, for Appellant.
    Charles A. Rosenthal, Jr., District Attorney-Harris County, Alan Curry, Assistant District Attorney, Houston, TX, for Appellee.
    Panel consists of Justices TAFT, JENNINGS, and BLAND.
   OPINION

JANE BLAND, Justice.

A jury convicted Frederick Simon Graves of aggravated sexual assault of a child, and assessed punishment at eight years’ confinement and a $10,000 fine. On appeal, Graves asserts the following six issues: (1) the trial court erred in admitting the complainant child’s videotaped interview; (2) the trial court erred in overruling Graves’s objection to the State’s jury argument referring to “rabbit trails”; (3) the trial court erred in overruling Graves’s objection to the State’s jury argument referring to extraneous offenses; (4) the trial court erred in not sua sponte including a reasonable-doubt jury instruction for evidence of extraneous offenses admitted during the guilt/innocence phase; (5) the trial court erred in not sua sponte including a reasonable-doubt jury instruction for extraneous offenses during the punishment phase; and (6) trial counsel rendered ineffective assistance. We affirm.

Facts

T.N., the complainant in this case, is an 11-year-old boy. Graves worked for T.N.’s father, R.N., at a car dealership. Graves became a family friend and babysat T.N. At trial, T.N. testified that Graves had fondled his penis on two separate occasions. On the first occasion, Graves and T.N. were alone at R.N.’s house watching a movie. While the two were lying underneath a blanket, Graves touched T.N.’s penis. On the second occasion, Graves touched T.N.’s penis “on top” of T.N.’s clothes while the two were alone in a car. Sometime later, T.N. and Graves went to buy a digital camera. That day, while the two were alone at R.N.’s house lying under a blanket in T.N.’s room, Graves performed oral sex on T.N. On Christmas Eve 2001, T.N. reported to his father that Graves had assaulted him.

A forensic interviewer with the Children’s Assessment Center interviewed T.N. The trial court admitted a videotape of this interview into evidence. Both the videotape and T.N.’s testimony include descriptions of Graves performing oral sex on T.N. more than once on the day they bought the digital camera. At trial, T.N. testified that it happened twice that day, while on the videotape, T.N. stated that it happened three times that day. On the videotape, but not during trial, T.N. described that Graves had commented on T.N.’s physical appearance. Both at trial and on the videotape, T.N. described that Graves moved T.N. “up and down for like a little bit of time.” Both at trial and on the videotape, T.N. described the two prior fondling instances that took place at R.N.’s house and in the car.

Graves did not testify during the guilt/innocence phase. The defense called other teenage boys who had become friends with Graves while racing motor bikes at motorcross events. Billy Perran, a 17-year-old boy, testified on Graves’s behalf, explaining that Graves is like a “father figure” to him. Billy explained that Graves was never sexually inappropriate with him, although Graves had “many chances.”

During the punishment phase, the State introduced evidence of Graves’s prior theft conviction. During closing argument, the State relied on the prior fondling acts committed on T.N. to argue that the jury should enhance punishment.

Admission of the Videotaped Statement

In his first issue, Graves contends that the trial court erred in admitting T.N.’s videotaped interview with a Children’s Assessment Center forensic interviewer detailing his sexual contact with Graves. In addition to the sexual assault, during direct examination, T.N. testified that Graves fondled him on two previous occasions: (1) one evening at R.N.’s house while Graves visited and R.N. slept, and (2) one day while the two were alone in a car. Sometime later, Graves performed oral sex on T.N. at R.N.’s house while the two were alone. T.N. testified that he was lying under a blanket watching television during the first fondling offense and the oral sex offense. During cross-examination, defense counsel impeached T.N. as follows:

Q. And at one point, isn’t it true that Gabby [the interviewer at the Child’s Assessment Center] became concerned because you said this had happened and nobody had removed your clothes. And she said: How did your clothes get off? And you backed up and said Fred took them off; is that right?
A. I — I don’t remember saying that. I just remember saying Fred took them off. I’m not real sure.
Q. In any case, you didn’t mention anything about this occasion that you’re telling us now, this earlier occasion under a blanket, did you?
A. No, I didn’t. No, I didn’t.
Q. Okay. And you didn’t mention that to Gabby and you didn’t mention that to the police officers when they interviewed you, did you?
A. No. I just got interviewed by Gabby.
Q. When you talked to the police officer and when you talked to Gabby, both times you were asked a lot of questions, weren’t you?
A. Yeah. I was asked plenty of questions.
Q. And the questions went on for a long time?
A. The questions — yes sir, it did. Took about 45 minutes.
Q. And when they’re asking those questions, one of the things they kept saying: Every time that you can think of that something nasty or bad happened, please tell us about it. Is that correct?
A. No.
Q. But they made awfully sure you knew you should tell everything?
A. Yeah. They made sure I should tell them what happened.

To rehabilitate T.N.’s testimony, the State offered T.N.’s videotaped interview at the Children’s Assessment Center. The defense objected, contending that the videotape is not admissible under article 38.071, section 1 of the Code of Criminal Procedure. Article 38.071 allows the admission of a videotaped statement of a child witness under certain conditions, but section 1 provides:

This article applies only to a hearing or proceeding in which the court determines that a child younger than 13 years of age would be unavailable to testify in the presence of the defendant about an offense defined by any of the following sections of the Penal Code:
(8) Section 22.021 (Aggravated Sexual Assault).

Tex.Code Crim. Proc. Ann. art. 38.071, § 1(8) (Vernon 2004).

Article 38.071 thus specifically requires that the child be younger than 13 years of age and unavailable to testify. The defense objected to the introduction of the videotape on the basis that the State did not meet the requirements of article 38.071, because T.N. was 13 years old at the time of trial and testified.

Our sister court addressed this issue in Jensen v. State, 66 S.W.3d 528, 535 (Tex.App.-Houston [14th Dist.] 2002, pet. ref’d), in which the trial court admitted the child’s videotape in evidence even though the child testified at trial. The Fourteenth Court of Appeals held that, under the plain-language of article 38.071, the trial court erred in admitting the videotape because the child was available to testify, and in fact, testified at trial. Id. We agree that the State did not satisfy the requirements of article 38.071, because T.N. was 13 years old and testified at trial.

This case is distinguishable, however, from Jensen. Here, the trial court admitted the videotape on a different basis — as a prior consistent statement of the witness, after the witness had been impeached on cross-examination. Although the trial court did not specifically mention Texas Rule of Evidence 801(e)(1)(B), it stated the basis for its ruling as follows:

[T]he complaining witness and all the witnesses have been impeached with regards to their prior consistent and inconsistent statements. I find it ironic that we’ve done that, and now we have a statement that the witness has given. I’ll anticipate the first note from the jury is going to be: Where is the child’s statement?
I’m going to find that since his prior statements and ability to recall are in issue, I’m going to allow the videotape. And there’s no violation of confrontation clause because you had your chance to cross-examine him, as well as and specifically with regard to those statements when he gave them, what he said and to whom.

A prior statement may be admitted if it is “consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.” Tex.R. Evid. 801(e)(1)(B). The defense challenged T.N.’s credibility, raising doubts as to fabrication or improper influence. For example, as set forth above, the defense impeached T.N., questioning him whether he told the Child Assessment Center interviewer or the police about the time Graves fondled him under a blanket. The defense also implied that the interviewer asked leading questions during the entire 45-minute interview, thus implying that T.N.’s testimony was not credible. Additionally, the defense implied that T.N.’s conduct with other children, including his two-year-old brother, were the real issues during T.N.’s therapy sessions, and thus, that T.N. recently had fabricated some of the incidents. The defense also questioned T.N. about his school drama class, implying that T.N. was a good “actor,” and perhaps acting on the witness stand. We hold that the videotape is admissible under rule of evidence 801(e)(1)(B) as a prior consistent statement. See Dowthitt v. State, 931 S.W.2d 244, 264 (Tex.Crim.App.1996) (upholding admission of videotape, in capital murder case, as prior consistent statement under rule 801(e)(1)(B)); see also Wylie v. State, 908 S.W.2d 307, 310 (Tex.App.-San Antonio 1995, pet. ref’d) (holding that videotape was admissible under rule 801(e)(1)(B) as prior consistent statement because defense challenged child’s credibility).

Moreover, defense counsel introduced specifics as to the context of the videotape on cross-examination and questioned the propriety of the interviewer’s technique. Counsel’s global references to the interview raised issues about the nature of the videotape, and opened the door to admission of the tape as evidence. See Delk v. State, 855 S.W.2d 700, 704 (Tex.Crim.App.1993) (noting that a witness “opens the door” to otherwise irrelevant past criminal history if his testimony creates a “false impression” of law-abiding behavior).

Improper Jury Argument During Guilt/Innocence

In his second issue, Graves contends the trial court erred in overruling his objection to the State’s closing argument during the guilt/innocence phase. Graves argues that the State’s comments about a “rabbit trail” struck at Graves over the shoulders of his counsel. The State argued:

[The State]: [The defense] can trash us all day long. Don’t get thrown down a rabbit trail. Don’t follow the defense’s distractions. They want to put up all the smoke and mirrors so you do not see the truth.
[Defense counsel]: Your Honor, I have to object to this argument. We’ve let it go on a while, but it’s inviting the jury to strike the defendant over the shoulder of the defense counsel.
The Court: That will be overruled.

The State may not use closing argument to strike at a defendant over the shoulders of his counsel or accuse that counsel of bad faith. Fuentes v. State, 664 S.W.2d 333, 335 (Tex.Crim.App.1984). The State responds that its jury argument answered the argument of opposing counsel, who had argued to the jury that the prosecutor had not offered other witnesses to show that Graves is “bad,” and that the State “had an answer for everything.”

The Court of Criminal Appeals analyzed a similar jury argument in Mosley v. State, 983 S.W.2d 249, 258-59 (Tex.Crim.App.1998). The prosecutor in Mosley indicated that the defense counsel was asking the jury to “take a side road, a series of side roads, rabbit trails, and a rabbit trail that will lead ... to a dead-end.” Id. at 258. The court held that such “mildly inappropriate” comments, strikingly similar to the comments in this case, constituted harmless error. Id. at 260. The court cautioned that defense counsel’s “legitimate arguments” cannot serve as a basis for permitting prosecutorial comments that “cast aspersion on defense counsel’s veracity.” Id. at 259 (citing Dinkins v. State, 894 S.W.2d 330, 357 (Tex.Crim.App.1995)). Although the rule is not precise, the court explained that “a prosecutor runs a risk of improperly striking at a defendant over the shoulder of counsel when the argument is made in terms of defense counsel personally and when the argument explicitly impugns defense counsel’s character.” Id. Mosley requires that we review claims of harm arising from improper jury argument under the following three-part test: (1) the severity of the misconduct; (2) the measures adopted to cure the misconduct; and (3) the certainty of conviction without the misconduct. Id.

In applying the first factor, the severity of the misconduct here, as in Mosley, is small, or “mildly inappropriate.” See id. at 260. The comments did not accuse the defense counsel of lying or suggest that any evidence was manufactured. See id. Rather, they responded to opposing counsel’s argument that the State had acted inappropriately. Accordingly, the severity of the misconduct does not weigh heavily in Graves’s favor.

In applying the second factor, we consider the measures adopted to cure the misconduct. As in Mosley, the trial court here did not take any curative action. As the Mosley court noted, however, the jury is in a position to evaluate the truthfulness of the prosecutor’s assertion, and such comments could backfire if the jury disagrees with them. Id. Regarding the third factor, we look at the certainty of conviction absent the misconduct. The case lacked physical evidence of a sexual assault, and only the complainant actually witnessed the sexual assault. T.N. testified at trial, however, and his statements are consistent with R.N.’s testimony as the outcry witness. The jury found T.N.’s testimony to be credible. In the larger context of the State’s entire argument, the statements about “rabbit trails” did not inject new facts. In a case such as this one that largely turns on credibility, this argument could not have caused a different result. Given the evidence and the mild nature of the inappropriate comments, we conclude that the comments do not cause uncertainty in the jury’s conviction. After examining the argument in light of the Mosely factors, we hold that the prosecutor’s comments were mildly inappropriate, and insufficient to warrant a new trial.

Improper Jury Argument During Punishment

In his third issue, Graves contends the trial court erred in overruling his objection to the State’s jury argument, during the punishment phase, regarding “implied” extraneous offenses.

During the guilt/innocence phase, Billy Perran testified on Graves’s behalf. Billy testified that he met Graves while racing motor bikes at a motorcross event. He explained that Graves is a “really good friend,” like a “father figure.” Graves took Billy and other young boys to Europe to watch racing events. He paid for the apartment where Billy and his mom previously had lived, and bought Billy’s furniture, which Graves now keeps at his house. He also paid for Billy’s racing lessons and offered to pay for Billy to go college in England to learn about the motor sport industry. Billy spent the night at Graves’s house “about ten to twelve times.” During those overnight visits, Billy slept on the bed and Graves slept on the floor. Billy testified that Graves was never sexually inappropriate with him, although Graves “had many chances.”

During closing argument at the punishment phase, the prosecutor argued as follows:

[The State]: [Graves] is a 37-year-old man who took advantage of an 11-year-old and tested the waters and took it one step further and one step further. Who knows where he would have gotten if [T.N.] wasn’t brave enough to come forward. If [T.N.] had the same structure he had and his parents had — these boys don’t have that kind of family. They don’t have that kind of support. Who is Billy Perran going to tell what happened to him? He has a free ticket out of town. A free ticket to college. A free ticket to a dream to be a famous racer.
[Defense counsel]: Objection to that being outside the evidence. Mr. Perran denied it ever happened.
The Court: That will be overruled.
[The State]: Why would Billy Perran ever tell you, so that he can five in the situation he’s in now? He’s got a lot to lose by telling. All those kids do.

One permissible area of jury argument is to make reasonable deductions from the evidence. Campbell v. State, 610 S.W.2d 754, 756 (Tex.Crim.App.1980). Counsel is allowed wide latitude in drawing inferences from the evidence, so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith. Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App.1988). The purpose of closing argument is to assimilate the evidence to assist the fact-finder in drawing proper conclusions from the evidence. Id. at 400. The jury is then free to accept or reject such conclusions and inferences. Id.

“A prosecutor is allowed to argue that the witnesses for the defense are not worthy of belief.” Satterwhite v. State, 858 S.W.2d 412, 425 (Tex.Crim.App.1993). Jury argument that vouches for or questions the credibility of a witness is proper if it involves a reasonable deduction from the evidence. George v. State, 117 S.W.3d 285, 288 (Tex.App.-Texarkana 2003, pet. ref’d).

Billy Perran testified on Graves’s behalf. Having done so, his credibility as a witness became an issue and was the proper subject of comment by the prosecutor. See Satterwhite, 858 S.W.2d at 425. The prosecutor reasonably could have deduced that Billy had a financial incentive to lie-if Graves went to jail, he would no longer pay for Billy’s housing, motorcross races, trips to Europe, and his college education. We conclude that it was not improper during closing argument for the prosecution to contend that Billy could have a financial incentive to testify favorably for Graves. Accordingly, the trial court did not err in overruling Graves’s objection.

Reasonable-Doubt Instruction During Guilt/Innocence

In his fourth issue, Graves contends the trial court erred in not instructing the jury during the guilt/innocence phase that the State must prove extraneous offenses beyond a reasonable doubt. In support of this contention, Graves asserts that the State introduced evidence that he committed extraneous offenses not alleged in the indictment, including the two fondling offenses against T.N. and “inappropriate” relationships with other young boys. Graves asserts that the trial court sua sponte should have included a reasonable-doubt instruction for any extraneous offense evidence admitted during the guilt/innocence phase, even though Graves’s counsel admittedly did not make such a request.

In cases of sexual assault of minors, article 38.37, section 2 of the Code of Criminal Procedure provides:

Notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including:
(1) the state of mind of the defendant and the child; and
(2) the previous and subsequent relationship between the defendant and the child.

Tex.Code Crim. Proc. Ann. art. 38.37, § 2 (Vernon Supp.2004).

In support of his position, Graves cites Huizar v. State, 12 S.W.3d 479, 483-85 (Tex.Crim.App.2000), in which the Court of Criminal Appeals holds that, in the punishment phase of non-capital cases, a trial court is statutorily required under Code of Criminal. Procedure article 37.07, section 3(a), but not constitutionally required, to instruct a jury sua sponte that it may not consider extraneous-offense evidence, in assessing punishment, unless it finds the extraneous offenses have been proven beyond a reasonable doubt. Id.; see also Bolden v. State, 73 S.W.3d 428, 431 (Tex.App.-Houston [1st Dist.] 2002, pet. ref’d).

Article 37.07, section 3(a), entitled, “Evidence of Prior Criminal Record in all Criminal Cases After a Finding of Guilty,” governs the admissibility of evidence at punishment in all non-capital cases. See Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App.1999) (“[i]n addition to the Rules of Evidence, Article 37.07 Section 3(a) governs the admissibility of evidence during the punishment stage”); see also Kutzner v. State, 994 S.W.2d 180, 188 (Tex.Crim.App.1999) (“non-capital cases are governed by Article 37.07, which requires that extraneous offenses be proven beyond a reasonable doubt”); Sonnier v. State, 913 S.W.2d 511, 521 n. 5 (Tex.Crim.App.1995) (noting that Article 37.07 “governs the punishment charge in non-capital trials”). Extraneous offenses thus get a limiting instruction under article 38.37 during the guilt/innocence phase. A reasonable-doubt instruction under article 37.07 applies to punishment because it is the only time those offenses can be used to enhance the punishment of the charged offense.

Graves urges this court to extend the duty discussed in Huizar to the guilt-innocence phase of trial. We declined to do so in Rodriguez v. State, 137 S.W.3d 228, 231 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (holding that trial court did not err). Following our court’s decision in Rodriguez, and noting that article 37.07 expressly relates only to the punishment phase of a trial, we hold that the trial court in this case did not err in failing to give, sua sponte, a reasonable-doubt instruction for extraneous offenses during the guilt-innocence phase.

Reasonable-Doubt Instruction During Punishment

In his fifth issue, Graves contends the trial court erred in failing to instruct the jury, sua sponte, during the punishment phase, that the State must prove extraneous offenses beyond a reasonable doubt in order to consider such offenses in assessing punishment, even though Graves’s counsel admittedly did not make such a request.

In Huizar, the Court of Criminal Appeals held that a trial court must include a reasonable-doubt instruction regarding extraneous offenses during the punishment phase, even if the defense does not request it. Huizar, 12 S.W.3d at 483-85. Graves contends that, during the punishment phase, the State introduced extraneous offense evidence, in particular: (1) T.N.’s testimony that Graves fondled him on two previous occasions, (2) R.N.’s testimony implying that Graves had “inappropriate” relationships with other young boys, including Billy Perran, and (3) jail cards, judgments, and sentences showing Graves’s prior convictions.

Fondling

Graves contends that the trial court sua sponte should have included a beyond a reasonable doubt jury instruction, because at the guilt/innocence phase, T.N. testified that Graves fondled him in addition to committing the sexual assault of oral sex, as alleged in the indictment. During the guilt/innocence phase, T.N. testified that Graves touched “his private parts” with his hands on two different occasions before he performed oral sex on T.N. T.N. made similar statements during his videotaped interview.

Fondling falls within the category of indecency with a child under Penal Code section 21.11(c). Tex. Pen.Code Ann. § 21.11(c) (Vernon 2003). Oral sex is an aggravated sexual assault under Penal Code section 22.021. Tex. Pen.Code Ann. § 22.021 (Vernon Supp.2004). Separate instances of fondling are different offenses under the penal code, not merely multiple occasions of the same offense. See Brown v. State, 6 S.W.3d 571, 575-76 (Tex.App.-Tyler 1999, pet. ref’d).

The State responds that the trial court did not err, because the State introduced no new extraneous offense evidence during the punishment phase. Unlike the Huizar case, the State here introduced the fondling offenses through T.N.’s testimony during the guilt-innocence phase. Compare Huizar v. State, 966 S.W.2d 702, 705 (Tex.App.-San Antonio 1998), rev’d, 12 S.W.3d 479 (Tex.Crim.App.2000) (noting that State introduced new evidence of extraneous sexual assault offenses during punishment). Courts have required the reasonable-doubt instruction, however, regardless of whether the evidence of extraneous acts had been introduced during the guilt-innocence or the punishment phase of the trial. See Allen v. State, 47 S.W.3d 47, 50 (Tex.App.-Fort Worth 2001, pet. ref’d); see also Guzman v. State, No. 04-02-00198-CR, 2003 WL 22336052, *4 (Tex.App.-San Antonio Oct.15, 2003, pet. ref’d) (not designated for publication).

Moreover, the State referred to the extraneous offense evidence on cross-examination during the punishment phase, and suggested that these extraneous offenses merited a heavier sentence. The State cross-examined Graves’s stepmother during the following exchange:

Q. Are you aware there’s three incidents?
A. Three incidents of oral sex?
Q. Of improper behavior of a child of a sexual-
A. I was talking about the main charge, which is oral sex.
Q. You knew there was three then?
A. I do now.

In addition, the State argued during closing argument to the jury:

Remember how it started? Remember how the predator set this up? First, he just tries on the outside of the clothing and touches him in the car. That was the start. Then this predator, in his mind, goes one step further. He touches [T.N.] underneath his clothes as they’re laying down watching a Halloween movie. Then the predator takes it one step further and performs oral sex on [T.N.].

The State thus relied upon extraneous offense evidence to argue that the jury should enhance punishment. We hold that, under Huizar, the trial court should have instructed the jury pursuant to article 37.07 during the punishment phase.

Under Huizar, we next determine whether the error was harmful under the standard set forth in Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985). See Huizar, 12 S.W.3d at 483-85; see also Ellison v. State, 86 S.W.3d 226, 227-28 (Tex.Crim.App.2002) (remanding cause to court of appeals for harm analysis of trial court’s failure sua sponte to give reasonable-doubt instruction). Jury charge error does not require reversal unless it is so egregious that the defendant is denied a fair and impartial trial. Almanza, 686 S.W.2d at 171. “Errors which result in egregious harm are those which affect ‘the very basis of the case,’ deprive the defendant of a ‘valuable right,’ or ‘vitally affect a defensive theory.’” Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996) (quoting Almanza, 686 S.W.2d at 172). “[T]he actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at 171.

The State introduced no physical evidence of a sexual assault, nor did anyone other than the complainant witness the sexual assault. T.N., however, testified at trial, and his statements are consistent with R.N.’s testimony as the outcry -witness. The jury found T.N.’s testimony to be credible. Moreover, the range of punishment in this case was 5 to 99 years or life. Although the prosecutor discussed the extraneous offenses during closing argument, he did not seek the maximum punishment available. The jury assessed punishment at eight years’ confinement, far below the maximum, and only three years above the minimum. See Jones v. State, 111 S.W.3d 600, 609-10 (Tex.App.-Dallas 2003, pet. ref’d) (holding that trial court’s failure to give reasonable-doubt instruction sua sponte during punishment phase for extraneous offenses offered during punishment was harmless error in part because the jury assessed punishment far below maximum available, despite State’s plea for maximum); Tabor v. State, 88 S.W.3d 783, 788-89 (Tex.App.-Tyler 2002, no pet.) (holding that trial court’s failure sua sponte to give reasonable-doubt instruction during punishment phase about “pen packets” offered during punishment was harmless error because sentence imposed was well within punishment range and prosecutor had asked for greater sentence). Graves contends that, had the trial court properly instructed the jury, Graves might have received community supervision. Graves’s motion for new trial, however, fails to adduce evidence as to how the failure to instruct the jury resulted in harmful error. After reviewing the record in this ease in its totality, we cannot conclude that the trial court’s failure to give an article 37.07 reasonable-doubt instruction deprived Graves of a fair and impartial punishment hearing.

Inappropriate Relationships With Other Boys

Graves also contends that the State introduced evidence “implying” that Graves had inappropriate relationships with other young boys, including Billy Per-ran. These boys testified on behalf of Graves, explaining that Graves had never been sexually inappropriate with them, nor had they witnessed Graves engaging in any, inappropriate sexual behavior. Billy specifically testified that Graves was never sexually inappropriate with him, although Graves “had many chances.” R.N., T.N.’s father, testified that Graves’s behavior with Billy was “very peculiar,” such as “riding around the countryside when he should be in school. Putting him up in an apartment. And telling other people that that’s his son.” R.N. further testified that he was “not alleging” that Graves used Billy for “sexual reasons.” None of these statements constitutes evidence of an extraneous offense. Rather, each of the witnesses denied knowledge of any improper conduct with other boys. Accordingly, with respect to Graves’s relationships with other boys, the trial court did not err in failing to instruct the jury, sua sponte, that the State must prove extraneous offenses beyond a reasonable doubt. See Bluitt v. State, 137 S.W.3d 51, 54 (Tex.Crim.App.2004) (holding that “such an instruction is a useless act if no unadjudicated offenses have been introduced”).

Prior Convictions

During punishment, the State introduced evidence of Graves’s prior theft conviction. Article 37.07, section 3, of the Code of Criminal Procedure provides that, after a finding of guilt, evidence may be offered by either party as to any matter that the court deems relevant to sentencing, including: (1) the prior criminal record of the defendant; (2) the general reputation of the defendant; (3) the character of the defendant; (4) an opinion regarding the reputation of the defendant; (5) the circumstances of the offense on trial; and (6) extraneous offenses and bad acts that are shown beyond a reasonable doubt to have been committed by the defendant or for which he could be held criminally responsible. Tex.Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp.2004). In Bluitt, the Court of Criminal Appeals held that a trial court does not err in refusing to give a beyond a reasonable-doubt instruction if, as here, the defendant’s criminal behavior “was in the form of prior offenses which had been subjected to judicial testing under the proper burden and the burden had been met.” 137 S.W.3d at 54. The court explained:

The criminal record of the defendant is not grouped with extraneous offenses, and therefore we presume that the legislature did not intend to require the same burden of proof that it attached to extraneous, unadjudicated offenses. While the prior convictions must be properly proved, to require that prior convictions be re-proved beyond a reasonable doubt would be an absurd result, as the very fact of conviction is evidence that the burden of proving guilt beyond a reasonable doubt has already been met in a prior proceeding. The critical issue is that testing of the proof. If an offense has been subject to such scrutiny and the burden of proof has been met, regardless of whether the judicial proceeding concluded with a final conviction, it is part of a defendant’s criminal record, and Art. 37.03, § 3, does not require further proof of guilt beyond a reasonable doubt.

Id.; see also Willover v. State, 84 S.W.3d 751, 753 (Tex.App.-Houston [1st Dist.] 2002, pet. ref’d). We hold that the trial court did not err in failing to give a reasonable-doubt instruction for Graves’s pri- or convictions.

Ineffective Assistance of Counsel

In his sixth issue, Graves contends his trial counsel was ineffective because counsel failed to request a reasonable doubt extraneous offense jury instruction during the guilt/innocence and punishment phases.

To establish ineffective assistance of counsel, an appellant must show that (1) trial counsel’s representation was so deficient that it fell below the objective standard of professional norms and (2) but for counsel’s error, there is a reasonable probability that the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 2064-69, 80 L.Ed.2d 674 (1984). Graves has the burden to prove ineffective assistance of counsel and to rebut the presumption that counsel was acting according to sound trial strategy. Id. at 466 U.S. at 689, 104 S.Ct. at 2065.

Guilt/Innocence Phase

Following our court’s decision in Rodriguez, we hold that the trial court did not err in fading to give, sua sponte, a reasonable-doubt instruction for extraneous offenses during the guilt-innocence phase. See Rodriguez, 137 S.W.3d at 231. Graves was not entitled to the instruction; therefore, his counsel was not ineffective for failing to request it. See Hardin v. State, 951 S.W.2d 208, 211 (Tex.App.-Houston [14th Dist.] 1997, no pet.) (holding that failure to request jury instruction about manner in which evidence was obtained was not error and thus did not constitute ineffective assistance because defendant was not entitled to instruction).

Punishment Phase

With regard to the punishment phase, we hold that, under Huizar, the trial court should have instructed the jury pursuant to article 37.07 during the punishment phase about the prior fondling offenses. See Huizar, 12 S.W.3d at 483-85. Graves was therefore entitled to a reasonable-doubt instruction during the punishment phase.

As set forth above in issue five, we hold that the absence of a reasonable-doubt instruction during the punishment phase did not deprive Grave of a fair and impartial trial. See Almanza, 686 S.W.2d at 171. Graves therefore fails to satisfy the second prong of Strickland—that the result of the proceedings would have been different had counsel requested the instruction. See Allen v. State, 47 S.W.3d 47, 54-55 (Tex.App.-Fort Worth 2001, pet. ref’d) (holding that defendant did not satisfy second prong of Strickland because court analyzed that error was harmless under Al-manza ). Graves does not show how the results of his proceedings would have been different if counsel would have objected to the jury charge and the trial court had given the reasonable-doubt instruction for extraneous offenses. See id. We hold that Graves fails to show he received ineffective assistance of counsel.

Conclusion

We affirm the judgment of the trial court.

      . T.N. testified that they bought the camera "around October of 2000,” but he was not sure of the exact day. During an earlier videotaped interview, however, he could not remember the month or year.

      . The Jensen court held that the error was harmless because the child’s live testimony did not differ substantially from the facts revealed in the videotape. Jensen v. State, 66 S.W.3d at 535-36 (noting the well-established rule that "the improper admission of evidence does not constitute reversible error if other properly admitted evidence proves the same facts”); see also Matz v. State, 21 S.W.3d 911, 912-13 (Tex.App.-Fort Worth 2000, pet. ref’d) (holding that error in admission of videotape was harmless because it was cumulative of child’s properly admitted live testimony).

      . Dowthitt was a capital murder case, not a sexual assault of a child case. Since Dowthitt, two unpublished appellate court opinions regarding sexual assault of a child relied on Dowthitt to admit videotaped testimony as prior consistent statements under rule 801(e)(1)(B), when the child-victim testified at trial and the videotaped statement was offered to rebut an express or implied charge of recent fabrication or improper motive. See Box v. State, No. 14-02001217-CR, 2004 WL 1091891, at *2 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (not designated for publication); Sanchez v. State, No. 05-00-01680, 2002 WL 338770, at *2 (Tex.App.-Dallas 2002, pet. ref’d) (not designated for publication).

      . See Tex.Code Crim. Proc Ann. art. 38.072 (Vernon Supp.2004) (providing for the admissibility of certain hearsay statements made by victimized child in a prosecution for various sexual or assaultive offenses).

      . The following is an example of an article-38.37 jury charge instruction:
      You are instructed that if there is any testimony before you in this case regarding the Defendant’s having committed offenses against the alleged victim other than the offense alleged against him in the Indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the Defendant committed such other offenses, if any were committed, and even then you may only consider the same in determining the state of mind of the Defendant and the child and the previous and subsequent relationship between the Defendant and the child.

        Ware v. State, 62 S.W.3d 344, 352 (Tex.App.-Fort Worth 2001, pet. ref’d).
      Graves did not ask for a limiting instruction when the extraneous offenses were introduced, nor did he object. Furthermore, he does not complain on appeal about the lack of an article 38.37 limiting instruction, but rather asserts that the trial court should have given a reasonable-doubt instruction pursuant to article 37.07. With regard to a limiting instruction, a trial court is not required to give a limiting instruction if a defendant fails to request a limiting instruction at the first opportunity, or "contemporaneous with the admission of the evidence.” Hammock v. State, 46 S.W.3d 889, 895 (Tex.Crim.App.2001) (holding that trial court is not required to give limiting instruction when defendant did not object at first opportunity because evidence admitted "for all purposes”).

      . The following is an example of an article 37.07, section 3(a) instruction:
      The State has introduced evidence of extraneous crimes or bad acts other than the one charged in the indictment in this case. This evidence was admitted only for the purpose of assisting you, if it does, in determining the proper punishment for the offense for which you have found the defendant guilty. You cannot consider the testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other acts, if any, [sic] were committed.

        Green v. State, 72 S.W.3d 420, 425-26 (Tex.App.-Texarkana 2002, pet. ref’d).

      . We note that the intermediate appellate courts are split on this issue. The Amarillo and Fourteenth Courts of Appeals agree with our court. See Gilbert v. State, No. 14-02-00727-CR, 2003 WL 22176625 at * 4 (Tex.App.-Houston [14th Dist.] Sept. 23, 2003, no pet.) (not designated for publication) (holding that trial court did not err because statutory duty under article 37.07 § 3(a) does not apply to guilt-innocence phase, and finding no error, the court did not conduct harm analysis); Salazar v. State, No. 07-01-0389-CR, 2002 WL 246642 at *3 (Tex.App.-Amarillo Feb.21, 2002, pet. ref’d) (not designated for publication) (holding that trial court did not err in failing to sua sponte provide instruction regarding extraneous offenses during guilt-innocence).
      In contrast, the San Antonio and Dallas Courts of Appeals in unpublished opinions have extended Huizar’s holding to require the trial court to give the reasonable-doubt instruction for extraneous offenses during the guilt-innocence phase. See Chapa v. State, No. 04-02-00346-CR, 2003 WL 1025148 at *1-*2 (Tex.App.-San Antonio March 12, 2003, pet. ref’d) (not designated for publication) (holding that Chapa did not suffer egregious harm from trial court’s failure to provide reasonable-doubt instruction because Chapa admitted to prior offenses; therefore, there were no contested issues regarding Capa’s prior criminal record or bad acts); Arnold, v. State, No. 05-01-01733-CR, 2002 WL 31569537 at *1 (Tex.App.-Dallas Nov.20, 2002, no pet.) (not designated for publication) (holding that trial court’s error in failing to sua sponte give instruction was harmless because State did not emphasize this evidence in closing argument and evidence of appellant’s guilt was otherwise overwhelming).

      . During the closing argument at punishment, the prosecutor argued as follows:
      How do you place a number of years on something like this? It's difficult, I know. You get to pick a number between 5 and 99. Remember what T.N. has gone through.... One thing is very important, is that you come back with a verdict. And if the 12 of
      you have to agree on probation, ... you have to assess 5 years to 10 years. Because those are the minimum and maximum for probation.... If you have to assess probation, do at least 10. Probation is the minimum. Maximum is life. This is not a minimum case.


source: Caselaw Access Project

author: ELSA ALCALA, Justice.

license: Public Domain

text:
    Stacey Lynn SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00283-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 21, 2004.
    Paul Decuir, Jr., Houston, for Appellant.
    Eric Kugler, Asst. District Atty. of Harris County, Charles A. Rosenthal, Jr., District Attorney-Harris County, Houston, for Appellee.
    Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
   OPINION

ELSA ALCALA, Justice.

Appellant, Stacey Lynn Smith, was charged with the state-jail felony offense of prostitution, alleged to have occurred on January 31, 2002, enhanced by three prior convictions for prostitution. Appellant filed a motion to quash the indictment, which the trial court overruled. Appellant then pleaded guilty to the charge and was sentenced to confinement for one year in state jail. Appellant did not waive her right to appeal the trial court’s ruling on the motion to quash, and the trial court certified appellant’s right to appeal.

In her sole point of error, appellant argues that the trial court erred by denying her motion to quash because the State failed to allege a cause of action. Specifically, appellant contends that the Penal Code, as amended, required the State to prove that all prior prostitution convictions alleged to elevate appellant’s prostitution offense from a misdemeanor to a felony occurred after September 1, 2001, the effective date of the statute that permitted her state-jail felony conviction. We affirm.

Background

Appellant’s indictment alleged that she committed prostitution on or about January 31, 2002 and that she had previously been convicted of the same offense on April 20, 1989, January 3, 1990, and January 8, 2002. Until September 1, 2001, prostitution was a misdemeanor offense regardless of the number of convictions. See former Tex. Pen.Code Ann. § 43.02(c) (Act of Jan. 1, 1974, 63rd Leg., R.S., ch. 399, § 43.02(c), 1973 Tex. Gen. Laws 883, 959, amended by Act of June 15, 2001, 77th Leg., R.S., ch. 987, § 2, 2001 Tex. Gen. Laws 2153-54). Effective September 1, 2001, however, prostitution became a felony offense upon conviction of a fourth offense of prostitution. Tex. Pen.Code Ann. § 43.02(c) (Vernon 2003). Section 43.02(c) of the Penal Code states as follows:

An offense under this section is a Class B misdemeanor, unless the actor has previously been convicted one or two times of an offense under this section, in which event it is a Class A misdemean- or. If the actor has previously been convicted three or more times of an offense under this section, the offense will be a state jail felony.

Id.

Standards of Review

This court reviews a challenge to a trial court’s ruling on a motion to quash an indictment under the abuse-of-discretion standard. See Thomas v. State, 621 S.W.2d 158, 163 (Tex.Crim.App.1981) (op. on reh’g). In interpreting a statute, we follow the plain meaning of its language unless the language is ambiguous or the plain meaning leads to absurd results that the Legislature could not possibly have intended. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991).

Discussion

Appellant contends that, because the State must establish at least three prior convictions to obtain a felony conviction, and because two of her prior convictions occurred before the effective date of amended section 43.02(c), the felony-prostitution statute, the State could properly rely on only one of her previous convictions and therefore could not charge her with a felony.

Under section 2 of the enabling legislation for section 43.02, the statute became effective on September 1, 2001 and “applies only to an offense committed on or after that date.” Act of June 15, 2001, 77th Leg., R.S., ch. 987, § 2, 2001 Tex. Gen. Laws 2153, 2154. An offense committed before the effective date of section 43.02 would be “covered by the law in effect when the offense was committed,” which continued in effect for that purpose. Id. The enabling legislation further states that, “an offense was committed before the effective date of this Act if any element of the offense occurred before that date. ” Id. (Emphasis added). The dispositive issue, therefore, is whether the date of a prior conviction alleged as enhancement is “an element of the offense” that the State must prove under section 43.02. See id.

As defined by the Penal Code, the “elements” of an offense are the forbidden conduct, the required culpability, any required result, and the negation of any exception to the offense. Tex. Pen.Code Ann. § 1.07(a)(22) (Vernon 2003). Although appellant presents a case of first impression under section 43.02(c), courts have rejected similar attempts to impose a requirement, not expressly imposed by the particular statute in question, that the State must prove, as an element of the offense, the date of a prior conviction alleged as enhancement.

In State v. Mason, the Court of Criminal Appeals concluded that, despite similar language in the enacting legislation for section 46.04, which prohibits possession of a firearm by a convicted felon, the State was not required to prove, an aelement of the offense, that a defendant’s prior conviction occurred after section 46.04 was enacted. 980 S.W.2d 635, 639-41 (Tex.Crim.App.1998) (construing Tex. Pen.Code Ann. § 46.04 (Vernon 2003)). As the court explained, although the fact of the prior offenses is an element of the offense, the dates of those convictions are not. Id. at 640. In State v. Nelms, 775 S.W.2d 25, 26 (Tex.App.-Houston [1st Dist.] 1989, pet. ref’d), this Court eonclud-ed that the State was not required to prove, as elements of the offense of felony theft, the dates of prior theft convictions alleged to elevate the offense of. theft of property to a felony. See also Sheppard v. State, 5 S.W.3d 338, 340 (Tex.App.-Texarkana 1999, no pet.) (holding same under felony assault, family-violence statute); Vanderhorst v. State, 52 S.W.3d 237, 242 (Tex.App.-Eastland 2001, no pet.) (holding same under felony-DWI statute).

To elevate appellant’s prostitution offense to a felony, the State had to prove that appellant had at least three prior convictions for prostitution. Section 43.02(c) places no limitations on the dates of the prior convictions. Accordingly, the dates of the previous convictions are not elements of the offense of felony prostitution. It is the fact of three prior convictions, rather than their dates, that controls.

We overrule appellant’s sole point of error.

Conclusion

We affirm the judgment of the trial court.

      . Appellant emphasizes that section 49.09 of the Penal Code, which concerns enhancement information for driving while intoxicated (DWI), precludes reliance on final convictions that took place more than ten years before the DWI offense at issue to enhance a misdemeanor offense to the felony level. See Tex. Pen.Code Ann. § 49.09(e)(3) (Vernon Supp. 2004-2005). We decline to apply the prohibitions against relying on certain convictions under section 49.09 of the Penal Code, which are specifically stated in the statute itself, because there are no corresponding, specifically stated prohibitions in section 43.02(c), which is at issue here. We also note that Robles v. State 85 S.W.3d 211, 213-14 (Tex.Crim.App.2002), and Tamez v. State, 11 S.W.3d 198, 201 (Tex.Crim.App.2000), on which appellant also relies, address only whether a defendant’s stipulation of evidence concerning DWI prior convictions used for jurisdictional enhancement prohibits the State from introducing evidence of the prior convictions during trial. Because neither case addresses whether the dates of prior offenses are elements of the offense, neither applies in this appeal.


author: TIM TAFT, Justice.

text:
    Emmanuel CASAS, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-00857-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 21, 2004.
    Blaise J. Heaney, Houston, TX, for Appellant.
    Charles A. Rosenthal, Jr., District Attorney-Harris County, Carol M. Cameron, Assistant District Attorney, Houston, TX, for Appellee.
    Panel consists of Justices TAFT, JENNINGS, and BLAND.
   OPINION

TIM TAFT, Justice.

Appellant, Emmanuel Casas, was convicted in a trial de novo in the County Court of the offense of possession of drug paraphernalia. Pursuant to a plea-bargain agreement, the trial court assessed a $180 fine. We determine whether the trial court abused its discretion in denying appellant’s motion to quash. We affirm.

Background

On December 11, 2002, appellant was charged by written citation with the misdemeanor offense of possession of drug paraphernalia. Appellant waived his right to a jury trial and entered a plea of not guilty in the Justice of the Peace Court. The Justice of the Peace court found appellant guilty on May 27, 2003. Appellant appealed to the County Court. On June 23, 2003, appellant filed a written motion to quash, which the trial court denied. Appellant pleaded guilty to the offense of possession of drug paraphernalia, and the trial court assessed a fine of $180 on August 14, 2003.

Motion to Quash

In his sole issue, appellant contends that the trial court erred in denying his motion to quash because neither the ticket, nor the affidavit on the back of the ticket, stated an offense. Here, the notice of violation served as the charging instrument. When the plea upon trial de novo in the trial court is “guilty,” the duplicate copy of the notice of violation upon which the conviction was based in the inferior court may serve as the complaint. Op. Atty. Gen.1988, No. JM-869. Specifically, appellant contends that, because the word paraphernalia was misspelled as “phera-phalia” on the ticket and improperly abbreviated as “phera” on the accompanying affidavit, the complaint did not state an offense for which appellant could prepare a defense.

A trial court’s ruling on a motion to quash is reviewed for an abuse of discretion. Thomas v. State, 621 S.W.2d 158, 163 (Tex.Crim.App.1980); State v. Goldsberry, 14 S.W.3d 770, 772 (Tex.App.-Houston [1st Dist.] 2000, pet. ref’d). A court conducting a trial de novo based on an appeal from a justice court may dismiss the cause because of a defect in the complaint only if the defendant objected to the defect before the trial began in the justice court. Tex.Code Crim. Proc. Ann. art. 44.181 (Vernon Supp.2004-2005); Motherwell v. State, No. 05-99-00649-CR, 2000 WL 1240005 (Tex.App.-Dallas, Aug.31, 2000, no pet.)(not designated for publication). The record here does not reflect that appellant objected to the complaint’s defect until after the trial in the Justice Court had already concluded and the cause was on appeal in the County Court. Accordingly, the trial court did not abuse its discretion in denying the motion to quash. See Tex.Code Crim. Proc. Ann. art. 44.181.

We overrule appellant’s sole point of error.

Conclusion

We affirm the judgment of the trial court.

      . See Tex.Code Crim. Proc. Ann. art. 4.08 (Vernon 1977) (providing County Courts with appellate jurisdiction over criminal cases decided in Justice Courts); Id. art. 45.042 (Vernon Supp.2004-2005) (stating that County Court should review the Justice Court’s decision de novo).


author: SHERRY RADACK, Chief Justice.

text:
    Melquiades FLORES, Sr., Individually and as Representative of the Estate of his Son, Melquiades Flores, Jr., and Mary Flores, Appellants, v. NORTH AMERICAN TECHNOLOGIES GROUP, INC.; Tietek, Inc.; and Skillmaster Staffing Services, Inc., Appellees.
    No. 01-03-00419-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 28, 2004.
    Rehearing Overruled March 1, 2005.

      Donald Hamilton Kidd, Jeffrey L. Raiz-ner, Michael P. Doyle, Doyle Raizner, L.L.P., Houston, for Appellants.
    Margaret M. Munnelly, Christy A. Hext, Hext & Munnelly, L.L.P., Donald W. Gould, II, Johnson, Finkel, DeLuca & Kennedy, Houston, for Appellees.
    Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
   OPINION

SHERRY RADACK, Chief Justice.

This is an appeal from a summary judgment rendered in favor of appellees, TieTek, Inc., its parent company North American Technologies Group, Inc. (collectively “TieTek”), and Skillmaster Staffing Services, Inc. (“Skillmaster”). Appellants, Melquiades Flores, Sr. and Mary Flores (“the Floreses”), filed a wrongful death action for the death of their son, Melquiades Flores, Jr.’s (“Mike Flores”), from injuries he sustained while working on TieTek’s premises. On appeal, the issue is whether TieTek was Mike Flores’s employer, thereby entitling TieTek to application of the exclusive remedy provision of the Texas Workers’ Compensation Act (“TWCA”). We affirm.

BACKGROUND

Skillmaster, a temporary employment agency that supplies labor to clients, hired Mike Flores. On June 6, 2001, Skillmaster assigned Mike Flores to work at the Tie-Tek plastics manufacturing plant. TieTek is in the business of producing and marketing railroad ties made from recycled materials. On August 6, 2001, TieTek entered into a master vendor agreement (“the contract”) with Skillmaster for the placement of additional laborers at the Tie-Tek facility. The contract expressly required that Skillmaster maintain workers’ compensation insurance for personnel provided by Skillmaster to TieTek’s facility, but passed the cost on to TieTek. On October 24, 2001, Mike Flores was fatally injured while working on a plastics molding machine at the TieTek facility. Appellants, Melquíades Flores, Sr. and Mary Flores, sued TieTek and Skillmaster for the wrongful death of their son, Mike Flores, resulting from on-the-job injuries. North American Technologies Group, Inc. and Tietek, Inc. are jointly represented and have filed all pleadings and motions together.

TieTek filed a motion for summary judgment contending that Mike Flores was its borrowed servant or, alternatively, that both TieTek and Skillmaster were co-employers of Mike Flores and that Flores’s exclusive remedy against TieTek was limited to workers’ compensation benefits given the statutory immunity provided by the TWCA. Tex. Lab.Code Ann. § 408.001 (Vernon 1996). Skillmaster filed a no-evidence motion for summary judgment contending that it was Mike Flores’s employer under the TWCA and thus protected by the exclusive remedy provision of TWCA. TieTek joined in Skillmaster’s motion pursuant to Rule 58. Tex.R. Civ. P. 58. The trial court granted defendant Skillmaster’s no-evidence motion for summary judgment as well as TieTek’s traditional motion for summary judgment. Appellants filed a motion for new trial and/or to reconsider the summary judgments, but the trial court denied the motion after a hearing.

The Floreses appeal from the grant of summary judgment in favor of TieTek on three grounds. First, appellants contend that the trial court used the wrong test to determine whether TieTek was the employer of Mike Flores under TWCA and, thereby, whether it was entitled to summary judgment. Second, appellants contend that, even if the trial court used the proper test, TieTek was not Mike Flores’s employer under the common-law right-to-control test. Third, appellants contend that TieTek was not Mike Flores’s employer under the TWCA’s definition of “employer.”

On appeal, the Floreses concede that their exclusive remedy against Skillmaster is the recovery of workers’ compensation benefits and that the trial court’s grant of summary judgment in Skillmaster’s favor “may not have been in error.” However, appellants complain that TieTek was not Mike Flores’s employer, and thus, they may maintain a common-law wrongful death action against TieTek. TieTek argues that it was a borrowing employer or, alternatively, it was a co-employer with Skillmaster, and urged that the exclusive remedy provision in the TWCA applied to both TieTek and Skillmaster.

DISCUSSION

In reviewing a summary judgment, an appellate court must consider whether the successful movant at the trial level carried its burden of showing that there was no genuine issue of material fact and that judgment should be rendered as a matter of law. Tex.R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). We assume all of the non-movant’s evidence is true and indulge every reasonable inference in favor of the non-movant. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). If the movant can show it is entitled to judgment as a matter of law, the burden shifts to the non-movant to present .evidence raising a fact issue to defeat the motion for summary judgment. Haight v. Savoy Apartments, 814 S.W.2d 849, 851 (Tex.App.-Houston [1st Dist.] 1991, writ denied). When the trial court’s order does not specify the grounds on which a motion for summary judgment was granted, we will affirm the summary judgment if any of the theories advanced in the motion is meritorious. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996).

A. Status as an Employer

In their first point of error, appellants contend that the trial court erred in granting TieTek’s motion for summary judgment because the trial court improperly employed the right-to-control test to determine whether TieTek was an employer for the purpose of workers’ compensation law. An employer under the TWCA is protected by the exclusive remedy provision, which bars common-law causes of action claims by its injured employees. See Tex. Lab.Code Ann. § 408.001 (Vernon 1996). Specifically, appellants argue that the Texas Supreme Court has rejected the right-to-control test in favor of the TWCA’s statutory definition of “employer,” thereby requiring remand to the trial court. For their authority, appellants rely on Wingfoot Enterprises v. Alvarado, 111 S.W.3d 134 (Tex.2003).

Conversely, TieTek contends that the appellants’ reliance on Alvarado is misplaced and that the trial court applied the proper standard for determining whether TieTek had employer status. TieTek claims that the Alvarado decision supports the trial court’s grant of summary judgment in favor of both TieTek and Skillmaster because the Texas Supreme Court— notwithstanding a suggestion to the contrary in Justice Enoch’s concurring opinion — did not eliminate the right-to-control test for determining whether an entity that controls the work of a borrowed employee is an employer for purposes of the TWCA. See Alvarado, 111 S.W.3d at 149, 150 (Enoch, J., concurring) (stating that “though rejecting the test, the Court appears to rely on that test”). Rather, Tie-Tek claims that the Court “expressly recognized that the right of control test is still applicable.”

The Alvarado court did not reject the right-to-control test used to determine an entity’s status as an employer for purposes of the applicability of the TWCA, including its exclusive remedy provision. Id. at 141. In Alvarado, the Court held that an employee can have more than one employer for the purposes of the TWCA and its exclusive remedy provision. Id. at 144. The facts of Alvarado were similar, but the inverse of those presented here, as Alvarado concerned the employer status of a temporary staffing company. Tandem, a temporary staffing provider, employed Alvarado, who was assigned to Web to do manual assembly work pursuant to an agreement between Tandem and Web. Id. at 135. After she sustained injuries while operating a machine at Web’s manufacturing facility, Alvarado sued both Tandem and Web. Id. At the time of the injury, Tandem maintained workers’ compensation insurance coverage for Alvarado, and Web also had workers’ compensation insurance coverage for its employees. However, no agreement between the two companies stated which workers’ compensation insurance policy would cover the Tandem-assigned workers at Web’s facility. Id. Tandem’s motion for summary judgment was granted, while the suit against Web proceeded to trial. Id. at 136. After a jury finding that Alvarado was Web’s borrowed servant, the trial court rendered final judgment in Web’s favor based on the exclusive remedy provision. Id. Alvarado appealed the summary judgment in favor of Tandem.

The Texas courts have long recognized that courts determine whether a workers’ compensation insurance policy covers a worker’s injury by determining whether the subscribing company is the worker’s employer under the right-to-control test. Texas Workers’ Comp. Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591, 595 (Tex.2000) (citing Thompson v. Travelers Indem. Co., 789 S.W.2d 277, 278 (Tex.1990)). In fact, in Alvarado the supreme court implicitly recognized that a legitimate way for one to become an employer for TWCA purposes is through control: “The question we must decide is ... whether the exclusive remedy provision can apply to both the general employer and one who has become an employer by controlling the details of a worker’s work at the time of injury.” Alvarado, 111 S.W.3d at 139. If the court had “rejected the ‘right to control’ test to determine ‘employer’ status in the workers’ compensation context,” as appellants contend, there would be no reason to resolve the issue taken up by the Alvarado court. Instead, the court’s ruling left the right-to-control test unaffected as the court concluded, “The fact that Web actually controlled the details of Alvarado’s work at the time she was injured, and thus was also an employer within the meaning of the Act, does not preclude the applicability of the Act’s provisions, including the exclusive remedy, to both Tandem and Web.” Id. at 149 (emphasis added).

The Alvarado court stressed, however, that it was deciding “only whether there may be two employers for workers’ compensation purposes when a provider of temporary workers furnishes a worker to a client that controlled the details of the work at the time the worker was injured and there was no agreement between the provider of temporary workers and the client regarding workers’ compensation coverage.” 111 S.W.3d at 144 (emphasis added). The court expressly recognized, however, that some Texas courts of appeals have held that where there was a contract between a staffing company and its client regarding workers’ compensation, “the client company is considered to be the employer for purposes of the exclusive remedy provision of the workers’ compensation law....” Id. One of the courts of appeals so holding and cited by the supreme court in Alvarado was this Court. Garza v. Excel Logistics, Inc., 100 S.W.3d 280, 287-88 (Tex.App.-Houston [1st Dist.] 2002, pet. granted January 30, 2004) (holding that, where contract between staffing company and client company did not directly address right to control employee, but did provide that cost of workers’ compensation insurance would be borne by client company, right-to-control doctrine, rather than contract, controlled disposition of issue).

Here, as in Garza, there is an agreement between SkillMaster, the provider of temporary workers, and TieTek, its client, which expressly provides that “SkillMaster shall maintain at its expense: (a) Workers’ Compensation and Employer’s Liability Insurance.... ” The agreement also provides, however, that the rates for the performance of the services provided by Skill-master employees will be billed to TieTek at a given markup, including a 3% mark-up for worker’s compensation, and that, if Skillmaster’s costs increase for those services, specifically including costs for workman’s compensation insurance, the agreed upon mark-up will be raised to cover the increased costs. Thus, TieTek is in the same position in this case as the client company, Excel, in Garza. Therefore, just as Web could be found by a factfinder to be an “employer” for the purpose of the TWCA’s exclusive remedy provision based on its control over Alvarado in the absence of a contract regarding workers’ compensation, and Excel could be found to be an employer for workers’ compensation purposes based on its control over Garza despite the provision of worker’s compensation by the staffing company, so too could TieTek be an “employer” if it exercised sufficient control over the details of the work performed by Mike Flores, even though workers’ compensation insurance was procured for Flores by Skillmaster.

Accordingly, we overrule appellants’ first point of error.

B. Right-to-Control Test

In their second point of error, appellants contend that the trial court erred in granting TieTek’s motion for summary judgment because they properly pleaded and offered evidence to show the existence of a material fact on TieTek’s status as a “borrowing employer” under the right-to-control test. Specifically, appellants argue that TieTek, pursuant to the contract between TieTek and Skillmaster, did not provide sufficient control over Mike Flores for him to be classified as TieTek’s borrowed servant. Rather, because the contract states that workers assigned to TieTek were “solely the employees of Skillmas-ter,” it establishes that Skillmaster had control over all its employees that were assigned to TieTek, including Mike Flores.

In response, TieTek contends that it was entitled to summary judgment as a matter of law as either a borrowing employer of Mike Flores or, alternatively, a joint employer with Skillmaster. TieTek argues that, because the contract did not contain express language addressing who had the right to control, the contract is not controlling. Rather, the facts and circumstances of Mike Flores’s employment should determine if TieTek qualifies as an employer under the common-law right-to-control test. TieTek argues that Mike Flores was supervised on a day-to-day basis by Tie-Tek and specially trained for the work he was to perform by TieTek, not Skillmaster.

Texas has long recognized that a general employee of one employer may become the borrowed servant of another, special employer. Sparger v. Worley Hosp., Inc., 547 S.W.2d 582, 583 (Tex.1977); Garza, 100 S.W.3d at 284. The borrowed servant doctrine is implicated when the general employer loans or supplies an employee to another, who is then termed the special or borrowing employer. Rodriguez v. Martin Landscape Mgmt., Inc., 882 S.W.2d 602, 604 (Tex.App.-Houston [1st Dist.] 1994, no writ). Whether a general employee of one employer has become the borrowed employee of another “employer” hinges on whether the other special employer has the right to direct and control the employee with respect to the details of the particular work at issue. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 537 (Tex.2002) (plurality opinion). The test is whether the borrowing employer has the right to control the progress, details, and methods of operations of the work. Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex.2002); Farrell v. Greater Houston Transp. Co., 908 S.W.2d 1, 3 (Tex.App.-Houston [1st Dist.] 1995, writ denied). The borrowing employer must control not merely the end sought to be accomplished, but also the means and details of its accomplishment. Thompson v. Travelers Indem. Co., 789 S.W.2d 277, 278 (Tex.1990). A contract between two employers providing that one shall have the right to control certain employees is a factor to be considered, but is not controlling, in determination of whether employee of one employer had become the borrowed servant of another employer. Exxon Corp. v. Perez, 842 S.W.2d 629, 630 (Tex.1992); see Garza, 100 S.W.3d at 285; cf. Hoffman v. Trinity Indus., Inc., 979 S.W.2d 88, 90 (Tex.App.-Beaumont 1998, pet. dism’d by agr.) (fact issue raised by conflict between contract between staffing company and client company, which provided that staffing company would have “complete and sole control” over its employees and actual control exercised by client company precluded summary judgment in favor of client company on applicability of dual-employer theory for purposes of workers’ compensation).

Here, the contract does not establish expressly who has the right to control workers assigned by Skillmaster to Tie-Tek. The contract does indicate that Skill-master maintained many responsibilities toward its employees even after they are assigned to TieTek:

When requested, Skillmaster shall recruit, interview, evaluate, test, select, hire and train the persons who shall provide Services hereunder.... Skill-master shall have sole responsibility to counsel, discipline, review, evaluate, set the pay rates of, and terminate its employees assigned to TieTek. Skillmaster assumes full responsibility for all contributions, taxes and assessments with respect to its employees under all applicable federal, state and local laws (including withholding from employees wages where required). Skillmaster further agrees that it will comply with all other applicable federal, state or local laws or regulations applicable to Skillmaster as an employer regarding compensation, hours of work or other conditions of employment.

Although TieTek had workers’ compensation insurance for its own employees, Skill-master paid for the workers’ compensation insurance that covered employees even after they were assigned to TieTek “at its own expense,” although it passed those costs on to TieTek. Skillmaster also enforced a code of conduct that covered employees even after they were assigned to work at its clients’ facilities like TieTek’s. In addition, Skillmaster performed ongoing safety services to its clients pursuant to the contract, which included an initial site inspection, walk-throughs and hazard assessments of the facilities, OSHA compliance inspections at the client’s premises, and preliminary safety training before the employees report to the client’s premises. Nevertheless, the performance of these tasks by Skillmaster does not demonstrate Skillmaster’s control over the workers assigned to TieTek so much as Skillmaster’s exercise of responsibilities owed to its client, TieTek under the contract.

As appellants concede, the contract between Skillmaster and TieTek is not specific as to who shall control the day-to-day activities of Skillmaster employees assigned to TieTek. When the contract between the employers contains no provision for right to control, right to control is “necessarily determined as an inference from such facts and circumstances as the nature of the general project, the nature of the work to be performed by the machinery and employees furnished, length of the special employment, the type of machinery furnished, acts representing an exercise of actual control, the right to substitute another operator of the machine, etc.” Producers Chem. Co. v. McKay, 366 S.W.2d 220, 226 (Tex.1963).

TieTek’s deposition testimony demonstrates that TieTek exercised control over Mike Flores’s actions. The deposition of Henry Sullivan, TieTek’s president, indicates that two TieTek employees, foreman Mike Cline and plant manager Kreg In-man, were personally responsible for providing hands-on training to Mike Flores and for ensuring he could properly operate each piece of machinery to which he was assigned, including the molding machine upon which he worked on the date of the accident. Sullivan further noted that, although Skillmaster’s employees came to TieTek with general safety training, Tie-Tek assumed that the employees came not knowing anything about the machines actually used in the plant. In an affidavit given after his deposition, Sullivan wrote that Mike Flores “was directly supervised by TieTek employees,” as were all Skill-master employees assigned to TieTek.

Similarly, a former safety consultant for Skillmaster, Jewell English, who worked at Skillmaster at the time of Mike Flores’s death, discussed Skillmaster’s control over employees in his deposition testimony:

As far as ... his [a Skillmaster employee assigned to work for a client] day-today activity, the client is responsible for his day-to-day activities. Skillmaster payrolls, you know, we’ll actually — the check will say Skillmaster, but his day-to-day activities are monitored by the clients. Skillmaster really doesn’t have a say in what the employee is doing on a minute-to-minute or hour-to-hour basis.

English also revealed that, although Skill-master technically had the authority to fire the employees it assigned to TieTek, the authority was not used unless a client requested that Skillmaster fire an employee based on the employee’s performance at the client’s facility or an employee violated a Skillmaster policy. English testified that TieTek employees and Skillmaster-assigned workers “worked together” side by side, but it was up to the client, TieTek, to determine which employees were to be assigned to do what work at the facility.

Furthermore, Michael Cline, a shift supervisor for TieTek, provided deposition testimony that Skillmaster did not have any management personnel on-site at the TieTek facility on a day-to-day basis. Cline answered that providing such management personnel was TieTek’s responsibility, not Skillmaster’s. In fact, part of Cline’s job was to provide adequate training, ensure awareness of safety procedures, and to provide tools for the proper operation of machinery at the TieTek plant. Although TieTek did not pay the wages of Skillmaster-assigned workers, Cline dealt with issues of vacation, time off, attendance, and discipline for all workers on his shift, regardless of whether they were assigned by Skillmaster or not. Tie-Tek’s plant manager, Kreg Inman, agreed that “TieTek’s was responsible for assigning [Skillmaster-assigned workers] to their particular jobs, for training those individuals in operational training as well as safety training, and for discipline and terminating those individuals.”

Indulging every reasonable inference in appellants’ favor, the evidence demonstrates no genuine issue as to the fact that TieTek controlled the details of Mike Flores’s work and thus satisfied, as a matter of law, the requirement to prove that Mike Flores was the borrowed servant of TieTek. Hence, Tie Tek is an employer for purposes of asserting the exclusive remedy provision of the TWCA. Accordingly, we overrule appellants’ second point of error.

C. Statutory Definition of Employer

In their final point of error, appellants contend that the trial court erred in granting TieTek’s motion for summary judgment because they properly pleaded and offered evidence to show the existence of a material fact on TieTek’s “employer” status under the TWCA statutory definition. Because we have determined that Flores was a borrowed servant of TieTek under the right-to-control test, we need not reach this remaining point of error.

CONCLUSION

Because the trial court did not err in granting summary judgment, we affirm the trial court’s judgment.

      . Tex. Lab.Code Ann. § 408.001(a) (Vernon 1996).

      . Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee. Tex Lab. Code Ann. § 408.001(a).

      . Skillmaster submitted a brief “in the abundance of caution and in anticipation of the arguments to be brought by Appellee NATG/TieTek.” Neither appellee, NATG/TieTek, nor appellants raise any challenges on appeal of the trial court’s judgment in favor of appellee Skillmaster. Therefore, we do not address the merits of the trial court’s rendition of summary judgment in favor of Skillmaster. See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.1993) (stating that an appellate court may not reverse the judgment of a trial court for a reason not raised in a point of error).

      . The TWCA defines "employer” as "unless otherwise specified, a person who makes a contract of hire, employs one or more employees, and has workers’ compensation insurance coverage.” Tex. Labor Code Ann. § 401.011(18) (Vernon 1996).

      . Numerous courts have upheld a trial court's grant of summary judgment in favor of an employer when it has been found that there is no genuine issue as to the movant’s right to control the plaintiff. See, e.g., Garza, 100 S.W.3d at 287 (affirming trial court’s summary judgment in favor of employer Excel after review of summary judgment evidence indicated that Excel had right to control plaintiff-employee Garza); Rodriguez, 882 S.W.2d at 604 (upholding summary judgment in favor of Martin Landscape Management where summary judgment evidence established it had right to control plaintiff-employee Rodriguez); Gibson v. Grocers Supply Co., Inc., 866 S.W.2d 757, 760 (Tex.App.-Houston [14th Dist.] 1993, no writ) (upholding summary judgment of employer, Grocers Supply, where evidence established it had right to control details and manner in which employee performed his job); Marshall v. Toys-R-Us Nytex, Inc., 825 S.W.2d 193, 196-97 (Tex.App.-Houston [14th Dist.] 1992, writ denied) (upholding summary judgment in favor of temporary employer, Toys-R-Us, where evidence established as a matter of law that it had right to control employee Marshall at time of accident); Chapa v. Koch Refining Co., 985 S.W.2d 158, 161 (Tex.App.-Corpus Christi 1998), rev’d on other grounds, 11 S.W.3d 153 (Tex.1999) (court of appeals upholding summary judgment in favor of employer H & S because plaintiff-employee Chapa served as H & S’s borrowed servant). See also Producers Chem. Co. v. McKay, 366 S.W.2d 220, 226 (Tex.1963) (explaining that:
      When a contract, written or oral, between two employers expressly provides that one or the other shall have right of control, solution of the question [of determining who has right to control an employee] is relatively simple.... It is when the contract between the employers is only implied or contains no provision for right of control that the problem becomes difficult. In such cases right of control is necessarily determined as an inference from such facts and circumstances as the nature of the general project, the nature of the work to be performed by the machinery and employees furnished, length of the special employment, the type of machinery furnished, acts representing an exercise of actual control, the right to substitute another operator of the machine, etc.) (citations omitted).


author: PER CURIAM.

text:
    In re Ya C. CHANG, Brinson D. Coffman, Joyce K. Hill, Tiffany M. Johnson, and Hope M. Hindt, Relators.
    No. 01-04-01002-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 10, 2004.

      Christopher Michael Villasana, Houston, TX, for Appellant.
    Horace Teague, Assistant City Attorney, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK, and Justices KEYES and ALCALA.
   OPINION

PER CURIAM.

Relators, Ya C. Chang, Brinson D. Coff-man, Joyce K. Hill, Tiffany M. Johnson, and Hope M. Hindt, filed a petition for writ of mandamus in this Court complaining of respondent, the Honorable Fad Wilson, Jr., Judge, Municipal Court No. 2, Houston, Harris County. Relators request that we order respondent to:

remove each defendant’s case from the jury trial docket, provide each defendant with a copy of the complaint, and reschedule each case to a pre-trial hearing not less than seventeen (17) days to, at the very least, arraign each defendant and to allow each defendant to file pleadings and raise exceptions to the form or substance of the complaint;....

This Court’s mandamus jurisdiction is governed by section 22.221 of the Texas Government Code. Section 22.221 expressly limits the mandamus jurisdiction of the courts of appeals to: (1) writs against a district court judge or county court judge in the court of appeals’ district, and (2) all writs necessary to enforce the court of appeals’ jurisdiction. Tex. Gov’t Code Ann. § 22.221 (Vernon 2004). We have no authority to issue a writ of mandamus against a municipal court judge unless it is necessary to enforce our jurisdiction. See Easton v. Franks, 842 S.W.2d 772, 773 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding) (holding this Court lacked jurisdiction under statute to issue writ of mandamus against justice of the peace). Relators do not argue that issuance of the writ is necessary to enforce this Court’s jurisdiction.

The petition for writ of mandamus is dismissed for lack of jurisdiction.