author: JAMES T. WORTHEN, Chief Justice.

text:
    Floyd Edward ROGERS, Jr., Appellant v. The STATE of Texas, Appellee.
    No. 12-04-00094-CR.
    Court of Appeals of Texas, Tyler.
    Dec. 30, 2005.

      Philip N. Smith, for Floyd Edward Rogers.
    Robert F. Vititow, for The State of Texas.
    Panel consisted of WORTHEN, C. J., GRIFFITH, J., and DeVASTO, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

A jury convicted Appellant Floyd Edward Rogers, Jr. of first degree felony murder and assessed punishment at life imprisonment. In three issues, Appellant complains about evidence admitted over his objection, fundamental error on evidence admitted without his objection, and ineffective assistance of counsel. We affirm.

Background

On Monday, May 26, 2003, Appellant borrowed a double barrel shotgun from a neighbor. The next day his wife of seventeen years, Trade Lee Rogers (the “victim”), filed for a divorce. Shortly after midnight on Wednesday, May 28, Appellant fired three shots from the borrowed double barrel shotgun into the victim’s thigh, chest, and face. He then left her to die in a doorway of the couple’s home. After the shooting, Appellant gathered together the couple’s fourteen year old daughter and six year old son, along with a seventeen year old German exchange student living with them at the time, and had them all stay in one of the bedrooms for the remainder of the night. After 8:00 a.m. that same morning, Appellant, along with the exchange student and the couple’s daughter, reported the murder in person to the Rains County Sheriffs Department in Emory.

Appellant was indicted for first degree felony murder. The jury found him guilty and sentenced him to life imprisonment. Appellant timely appealed the conviction and sentence to this court.

Evidentiary Issues

In his first issue, Appellant complains of six offers of evidence, which he contends were improperly admitted by the trial court over his objection. We will discuss each of Appellant’s arguments in turn.

Standard of Review

We review the trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.1996). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action; rather, it is a question of whether the court acted without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991) (op. on reh’g). The mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse. Id. We will not reverse a trial court’s ruling on the admission of evidence as long as the ruling is within the zone of reasonable disagreement. Id.

Proposed Affidavits

The victim worked as a legal assistant for a Greenville attorney, Holly Gotcher, until November 2002. Gotcher testified that the victim maintained her own personal file in an office computer while working in her office. Gotcher testified that after the victim’s death, she went into this personal file and found two documents that were admitted as State’s Exhibits 1A and IB in the trial. Exhibit 1A stated in its entirety as follows:

No_
Tracie Lee Rogers and Floyd Edward Rogers, Jr.
IN THE DISTRICT COURT 354th judicial district Rains County, Texas
Supporting Affidavit
State of Texas
County of Hunt
BEFORE ME, the undersigned Notary Public, on this day personally appeared Tracie Lee Rogers, Affiant, who on her oath deposed and stated as follows:
“My name is Tracie Lee Rogers. I am over the age of eighteen (18) years and capable of making this affidavit.
“I am married to Floyd Edward Rogers, Jr. Floyd Edward Rogers has committed family violence when learning that Affiant had filed for divorce.
“On May 15, 2002 at approximately 12:30 a.m., Floyd Edward Rogers, Jr. physically threw me into the floor, pried my legs apart and sexually forced himself upon me. This event left bruises on my legs arms and chest area. Affiant has photographs which clearly show said bruises and a doctor’s report to corroborate the assault.
“Further, on May 15, 2002, Floyd Edward Rogers, Jr. choked me with his bare hands.
“Additionally, he has threatened to kill our entire family before he would allow us to be separated.
“On May 15, 2002, he was admitted to the hospital with chest pain but refused treatment, pulling the various devices away and signed a release releasing the hospital from further liability because he was acting against medical advice.
“On May 15, 2002, Floyd Edward Rogers, Jr. attempted to commit suicide.
“I am afraid for my life and the life of my children.”
FURTHER Affiant Saith Not.
Trade L. Rogers Affiant
SUBSCRIBED AND SWORN TO BEFORE Me on this the _ day of May 2002 to certify which witness my hand and official seal of office. ;
Notary Public, State of Texas

Exhibit IB stated in its entirety as follows:

No_
Tkacie Lee Rogeks and Floyd Edwakd Rogers, Jr. and In The Interest of Amanda Christine Rogers and Floyd Edward Rogers, III Minor Children
IN THE DISTRICT COURT 8th judicial district Rains County, Texas
Supporting Affidavit
State of Texas
County of Hunt
BEFORE ME, the undersigned Notary Public, on this' day personally appeared Trade Lee Rogers, Affiant, who on her oath deposed and stated as follows:
“My name is Trade Lee Rogers. I am over the age of eighteen (18) years and capable of making this affidavit.
“I am married to Floyd Edward Rogers, Jr. Floyd Edward Rogers, Jr. has committed family violence on several occasions in the past and Affiant fears that when learning that Affiant has filed for a protective order, Floyd Edward Rogers, Jr. will further commit family violence.
“Floyd Edward Rogers, Jr. has a significant history of committing family violence. Further, Floyd Edward Rogers, Jr. reacts emotionally and irrationally when confronted with the issue of possibly being separated from Affiant or his children.
“Specifically, on Wednesday, August 28, 2002, Respondent became enraged and committed family violence against Affiant when confronted with the possibility of being divorced. He pushed Af-fiant and grabbed her about the arms causing pain.
“On Sunday, September 1, 20Ó2, Respondent again became enraged when confronted with the possibility of divorce and pulled an earring out of Affiant’s ear and hit Affiant with his fist on the right buttock. Affiant was sore for several days after the assault was perpetrated.
“Respondent suffers from paranoia and is very controlling. Respondent constantly sleuths around after Affiant, wanting to know Affiant’s whereabouts at all times, he searches through Affi-ant’s vehicle, constantly accuses Affiant of having affairs with various men, and refuses to allow Affiant to leave when an argument ensues over Respondent’s behavior.
. “On Wednesday, September 18, 2002, Respondent was upset and paranoid about Affiant attending a continuing legal education seminar in Dallas. Respondent accused Affiant of not attending the seminar and of meeting a man at a motel. Respondent made several off-color remarks about Affiant and then, after returning home from Church, requested that Affiant come outside to visit with him about the deteriorating marriage because Affiant refused to discuss it in the presence of the children. After going outside, Respondent became enraged when Affiant told him that she didn’t love him or want to be married to him and threw his glass of coke against the house and then threw his glass over the fence. Respondent grabbed Affi-ant’s hair and pulled her neck with all of his strength. Respondent then hit himself in the head repeatedly with his fist. Affiant advised that she was going to call the police and then Respondent called his mother to see if he could come and stay with her for the evening. She refused according to the Respondent. He was then further upset, emotional and out of control and advised that if the police were called, he would relate that Affiant had assaulted the Respondent. Affiant did not, at any time, hit or threaten to hit the Respondent. However, Affiant did not call the police because she was fearful that the police would believe Respondent’s lies and innuendo.
“Subsequently, Affiant took her keys and went out the front door, intending to go into the garage, secure her vehicle and leave the premises. However, Respondent locked the Affiant out of the home in only her nightshirt and underwear. He used the young son of the parties as a tool to get Affiant to return to the home and promised that he would leave Affiant alone for the rest of the evening. Respondent did not keep his word.
“Further, Respondent is obsessed with Affiant’s employment and has demanded, on numerous occasions, that Affiant quit the job with no notice to her employer. Respondent has become obsessed with his religious beliefs and has convinced himself that Affiant should leave her employment because she deals with the subject of divorce. Respondent is irrational with this request because Affiant contributes significantly to the upkeep and maintenance of the community estate and carries insurance on the children the subject of this suit. Respondent constantly berates Affiant regarding her place of employment and insists that “all lawyers are going to hell.”
“Additionally, Respondent has, on several occasions, threatened to kill the entire family before he would allow the family to be separated.
“Further, Affiant believes that Respondent may react in other ways when learning that Affiant has filed an application for a protective order. In May of 2000, Floyd Edward Rogers, Jr. attempted to commit suicide when confronted with Affiant requesting a divorce.
“Affiant believes that Respondent is dangerous, out of control and that his ungovernable temper causes a threat to Affiant as well as the children the subject of this matter. Affiant has no other remedy except to seek a protective order.”
Trade L. Rogers
SUBSCRIBED AND SWORN TO BEFORE ME On this the_day of September, 2002 to certify which witness my had and official seal of office.
Notary Public, State of Texas

Neither of these two documents were ever signed, notarized, or introduced in any prior court proceeding. Appellant objected to the admission of these two documents by first stating they were both hearsay. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex.R. Evid. 801(d).

During the trial and in its brief, the State contended that these two documents were admissible under the “then existing mental, emotional or physical condition” hearsay exception. This exception provides for admission of

[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declar-ant’s will.

Tex.R. Evid. 803(3).

The State also asked the court to consider the following provision of the Texas Code of Criminal Procedure:

In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.

Tex.Code Crim. Proc. Ann. art. 38.36(a) (Vernon 2005). However, this statute “in no way broadens or otherwise affects the rules of evidence which apply, or the way in which they apply in any given homicide case.” Bush v. State, 958 S.W.2d 503, 505 (Tex.App.-Fort Worth 1997, no pet.) (quoting Fielder v. State, 756 S.W.2d 309, 318 (Tex.Crim.App.1988)). The State therefore had the burden to show that these two documents qualified under the state of mind exception to the hearsay rule. A statement of memory or belief does not establish the state of mind exception to the hearsay rule. See Gibbs v. State, 819 S.W.2d 821, 837 (Tex.Crim.App.1991). A statement is inadmissible hearsay when it is not limited to a declarant’s state of mind (fear), but explains the reason for the de-clarant’s alleged fear. See Barnum v. State, 7 S.W.3d 782, 790 (Tex.App.-Amarillo 1999, pet. ref'd). A statement or document that only implies the declarant’s state of mind does not come within the state of mind exception to the hearsay rule. See id.

All of the statements in the above two documents are either a statement of memory or belief by the victim. Consequently, the documents do not fall within the state of mind exception to the hearsay rule and were erroneously admitted into evidence. However, our review of the hearsay issue does not end here. A non-constitutional error that does not affect substantial rights must be disregarded. Tex.R.App. P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect. Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App.2001). For example, if the same or similar evidence was introduced through other witnesses or documents, we may determine that the erroneously admitted evidence did not have a substantial or injurious effect on the jury’s verdict and did not affect Appellant’s substantial rights. See Franks v. State, 90 S.W.3d 771, 805-06 (Tex.App.-Fort Worth 2002, no pet.); Couchman v. State, 3 S.W.3d 155, 161 (Tex.App.-Fort Worth 1999, pet. ref'd). Therefore, we will review the other evidence properly admitted by the trial court regarding these facts.

The purpose of these two documents was to establish the victim’s ongoing relationship with Appellant and why she was “afraid for my life and the life of my children.” Gotcher testified that Appellant had threatened to kill the victim and had hit her, causing bruises on numerous occasions. She also testified that during her career practicing law, she had represented hundreds of spouses in family violence situations. She described the relationship between Appellant and victim as one of love/hate. She testified that when then-relationship was bad, it was very, very bad. In explaining further, she said she knew that when the victim wore certain articles of clothing to the office, she was hiding bruises that were the result of Appellant’s violent acts.

Sylvia Ishmael worked for Gotcher at the same time the victim did. She described the relationship between the victim and Appellant as one of love and war. Ishmael stated that during the war (or hate) part of the relationship, the victim acted as though she felt she was being hunted by Appellant. Ishmael further stated that one time Appellant came into their office and began arguing with the victim. Ishmael described Appellant as very upset and testified that he said he “could take care of everything and that he would just take care of the whole office with his Smith & Wesson.” She also testified that the victim would wear specific items of clothing in order to hide bruises that she had received from Appellant.

Steve Watkins, the attorney for whom the victim was working at the time of her death, stated that the victim was stressed because of problems with her marriage. Watkins testified that Appellant was very controlling in his relationship with the victim. Watkins also testified that, just before her death, he loaned the victim money to spend two nights away from Appellant with their children because of her fear for their safety. The victim told Watkins how quiet and peaceful it was when she was away from Appellant.

Other evidence that was before the jury and similar to the evidence in State’s Exhibits 1A and IB includes applications for protective orders filed in 1992 and 1998. In the 1992 application, the victim stated the following:

Respondent [Appellant] has engaged in conduct that constitutes family violence, as follows:
On or about December 2, 1992, Respondent threatened to kill Applicant [Victim] with a knife. Respondent threatened to go buy a Smith & Wesson and kill everyone at Applicant’s place of employment located at 2610 Stonewall Street, Greenville, Hunt County, Texas. Respondent grabbed Applicant by the hair of Applicant’s head and pushed Applicant down onto the floor and attempted to strangle Applicant. Respondent knocked several holes in the wall of Respondent and Applicant’s house. Further, Respondent has previously threatened to kill Applicant on numerous occasions.
These acts were intended to result in physical harm, bodily injury, or assault or were threats that reasonably placed TRACIE LEE ROGERS in fear of imminent physical harm, bodily injury, or assault and therefore constitute family violence.

In supporting documentation filed with an application for a protective order in 1998, the victim submitted the following affidavit with her application for a protective order:

(Style Omitted)
SUPPORTING AFFIDAVIT
STATE OF TEXAS
COUNTY OF HUNT
BEFORE ME, the undersigned Notary Public, on this day personally appeared Tracie Lee Rogers, Affiant, who on her oath deposed and stated as follows:
“My name is Tracie Lee Rogers. I am over the age of eighteen (18) years and capable of making this affidavit.
“I am married to Floyd Edward Rogers, Jr. Floyd Edward Rogers, Jr. has committed family violence. '
“On Sunday, November 4, 1998 at approximately 12:30 a.m., Floyd Edward Rogers, Jr. physically threw me into the floor pried my legs apart and sexually forced himself upon me. This event left bruises on my legs, arms and chest area.
“Further, on ■ Sunday, November 4, 1998, Floyd Edward Rogers, Jr. choked me with his bare hands.
“Additionally, he has threatened to kill our entire family before he would allow us to be separated.
“On November 5, 1998, he was admitted to the hospital with chest pain but refused treatment, pulling the various devices away and signed a release releasing the hospital from further liability because he was acting against medical advice.
“On November 6, 1998, Floyd Edward Rogers, Jr. committed [sic] suicide.
“I am afraid for my life and life [sic] of my children.”
FURTHER AFFIANT SAITH NOT.
/a/_-
Tracie L. Rogers
Affiant

The above-described testimony and documents are the same as or similar to State’s Exhibits 1A and IB. Based upon our examination of this same or similar evidence, we can have a reasonable assurance that the two documents at issue either did not influence the jury or had but a slight effect. See Franks, 90 S.W.3d at 805-06.

Appellant further contends that these two documents should have been excluded under Texas Rule of Evidence 403. Pursuant to Rule 403, extraneous offense evidence that is relevant beyond character conformity is presumed admissible, but is subject to exclusion if the opponent of the evidence timely objects on the basis that the danger of unfair prejudice substantially outweighs its probative value. Montgomery, 810 S.W.2d at 389. There must be a marked disparity between the degree of prejudice of the evidence and its probative value before the Rule 403 balancing test requires exclusion. Jones v. State, 944 S.W.2d 642, 652 (Tex.Crim.App.1996).

We must measure the trial court’s ruling against the relevant criteria by which a Rule 403 decision is to be made. Montgomery, 810 S.W.2d at 392. A Rule 403 analysis by the trial court should in-elude, but is not limited to, the following factors: (1) the probative value of the evidence; (2) the potential of the evidence to impress the jury in some irrational but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent’s need for the evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex.Crim.App.2004) (citing Montgomery, 810 S.W.2d at 389-90).

In reviewing the evidence in these two documents, we see the issue of intent, which was raised by Appellant, addressed in a compelling way making it highly probative for the jury. In its indictment, the State accused Appellant of “intentionally or knowingly causing the death” of the victim. A person commits the offense of murder if he intentionally or knowingly causes the death of an individual or, with the intent to cause serious bodily harm, he commits an act clearly dangerous to human life that causes the death of an individual. Tex. Pen.Code Ann. § 19.02(b) (Vernon 2003). In his opening argument and in evidence that he presented, Appellant raised the issue of accident stating that he and the victim were struggling over the shotgun when it went off. Amanda Rogers, the fourteen year old daughter of Appellant and the victim, also testified about a struggle between the two that led to the unintentional discharge of the shotgun.

This evidence also illustrates the ongoing relationship between Appellant and the victim. It shows the relationship was spiraling downward in the year before the shooting. These are relevant facts needed by the jury to assess the condition of Appellant’s mind and his actions that led to the victim’s death. See Tex.Code Crim. Proc. Ann. art. 38.36(a).

We have set out above the testimony of three witnesses who described the nature of the relationship between Appellant and the victim. The exchange student living in the Rogers’s home also testified about the nature of that relationship. Additionally, other documents before the jury contain facts similar to those in State’s Exhibits 1A and IB. The potential for State’s Exhibits 1A and IB to impress the jury in some irrational way is minimal.

The portion of the reporter’s record containing testimony by the State’s witnesses in the guilt/innocence phase is under 400 pages in length. The State presented sixty-two exhibits during this phase. Gotcher read the two affidavits to the jury during her testimony. The State spent a short amount of time presenting this evidence and its presentation did not divert the jury from consideration of the indicted offense.

Appellant wanted the jury to believe the shooting was an accident. The State needed this evidence to show the State’s allegation of murder is a credible one in light of Appellant’s history. It shows Appellant was unstable and violent and that he had threatened to kill his entire family rather than get a divorce. This makes Appellant’s accident theory less likely.

We cannot say that the court’s determination that the evidence was more probative than prejudicial is outside the zone of reasonable disagreement. See Erazo, 144 S.W.3d at 489. Therefore, we cannot conclude that the trial judge abused his discretion in admitting State’s Exhibits 1A and IB into evidence.

“If I can’t have you, no one can.”

Next, Appellant complains of Gotcher’s testimony that the victim had told her that Appellant had said “If I can’t have you, no one can.” Appellant raised a hearsay objection to this statement. The court admitted the evidence under the state of mind exception. In a prosecution for murder, evidence of prior assaults on and threats toward the victim by the defendant is relevant to show the defendant’s previous relationship with the victim as well as the defendant’s state of mind at the time of the offense. Pena v. State, 864 S.W.2d 147, 150 (Tex.App.-Waco 1993, no pet.). The trial court did not abuse its discretion in allowing this statement by Gotcher into evidence.

“He doesn’t believe me.”

Appellant next contends that a tape recorded phone message made by the victim was inadmissible hearsay. Shortly before her death, the victim had attempted to call Judy Tarpley, the administrator of a retirement plan in which the victim participated. Because Tarpley was on vacation, she left a message. Tarpley did not return to her office until after the victim’s death. Tarpley described the victim’s voice in the phone message as being “very pleading” and “very upset.” In the message, the victim asked Tarpley at least twice to please call her husband and explain to him that she would eventually become entitled to the money in her retirement plan because “he doesn’t believe me.” When a statement shows the declarant’s existing state of mind, such as fear, it falls within the Rule 803(3) hearsay exception. See Martinez v. State, 17 S.W.3d 677, 689 (Tex.Crim.App.2000). This statement not only shows the victim’s state of mind, but also establishes Appellant’s state of mind, indicating that he was suspicious of the victim’s motives regarding the divorce proceeding. It was therefore admissible evidence.

Victim’s phone message for attorney

The State offered as evidence the following phone message left by the victim for her attorney and boss, Steve Watkins, on the Saturday (May 24) before her death:

TRACIE ROGERS: Steve, this is Tracie. It is about 12:48 on Saturday. I am at the office. I need to run something by you and see if you think this is good or bad, and then just give me a call and let me know. Things have escalated between Eddie and myself to a point where last evening he threatened to kill himself, or kill me and himself, and at one point he was even going to kill you.
And so I came up here to the office today under a guise just to get away— he’s at work — and to let our kids kind of cool off because he’s doing all this in front of them. He hit himself in the head with a dumbbell.
It is not my intention to have ever done anything this way, but now when confronted with the paperwork, he — he threatened suicide. And, you know, he tried in 2000. And I contacted Glen Oaks and asked them what to do. I asked him to go there and get some help, but he won’t go.
And they suggested that I go down to the police station and ask for an emergency involuntary commitment and let them come pick him up and assess him. Since it is a holiday weekend, he would be in until Tuesday before he could get out. I know that before when they did this to him, they let him out, and then he tried to commit suicide in a couple of days. And so I don’t know if that’s a viable thing to do or not.
He’s at work, so he’d be picked up by the Greenville police. It wouldn’t have to happen at the house. He’s there till 4:00 o’clock. I don’t want to do anything like that without talking to you first. So if you’re comfortable talking to me about it, just leave me a voice mail, and I’ll check it. I’m going to be here for just a little bit, and then I’m going to go home to my kids.
Thank you. Bye-bye.

Appellant lodged a Rule 403 objection to this evidence. The victim left this message four days before the murder took place. It helps the jury understand Appellant’s state of mind as well as the deteriorating relationship between Appellant and the victim. Because of the insight this evidence provided into the ongoing relationship and Appellant’s intentions, the evidence was more probative than prejudicial, and the trial court did not abuse its discretion in admitting it into evidence. See Montgomery, 810 S.W.2d at 392-93.

Appellant also contends that the introduction of this phone message into evidence violated his right to confront the witnesses against him as guaranteed by the Sixth Amendment of the United States Constitution and article I, section 10 of the Texas Constitution.

The United States Supreme Court addressed the confrontation issue last year in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Crawford, Justice Antonin Scalia wrote “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” Id., 541 U.S. at 68-69, 124 S.Ct. at 1374. While declining to provide a comprehensive definition of “testimonial,” the Court held that the term applies, at a minimum, to prior testimony at a preliminary hearing, before a grand jury, or at a formal trial and to police interrogations. Id., 541 U.S. at 68, 124 S.Ct. at 1374. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed. Id. These examples all involve state action. It is clear to us that a tape recorded message left by a client for her attorney (or an employee for her employer) regarding a civil suit does not fit into any of these categories, is not testimonial, and does not involve state action. Therefore, this taped phone message does not implicate Appellant’s Sixth Amendment right to confrontation of a witness.

This leaves us with Appellant’s hearsay objection to this taped phone message. The State again responded to the hearsay objection arguing that it should be admitted under the Rule 803(3) exception in that it showed the victim’s state of mind four days prior to her murder. We agree that the first two paragraphs describe the victim’s state of mind and are therefore admissible evidence. See Pena, 864 S.W.2d at 150. They are also admissible because they show Appellant’s state of mind as to the deteriorating relationship leading up to the murder. See Tex.Code Crim. Proc. Ann. art. 38.36(a).

We agree with Appellant’s contention that the remainder of the phone message was inadmissible hearsay because it did not involve the state of mind of either the victim or Appellant. However, when an exhibit contains both admissible and inadmissible material, the objection must specifically refer to the material that is objectionable. Williams v. State, 927 S.W.2d 752, 760 (Tex.App.-El Paso 1996, pet. ref'd). If the party who objects to an exhibit does not specify which part of the exhibit is not admissible, any error in admitting the exhibit is not preserved for review. Id. (citing Brown v. State, 692 S.W.2d 497, 501 (Tex.Crim.App.1985)). Here, the Appellant did not specify for the trial court which portions of the taped telephone message made by the victim were inadmissible and has therefore waived this complaint on appeal. See Tex. R.App. P. 33.1.

Statement of Relief by Victim

Appellant next complains of a portion of Steve Watkins’s testimony. Watkins testified that on Tuesday, the day the victim filed for divorce from Appellant, “she was relieved because she had talked with Eddie and they had reached an agreement.” Appellant contends that this is a hearsay statement and cannot be admitted. The State again asserts that the statement can be admitted because it shows the victim’s state of mind as to her relationship with Appellant less than twenty-four hours before he murdered her. We agree with the State. Evidence of the previous relationship between the victim and Appellant and the state of. mind of each at the time of the offense may be admitted under the state of mind exception to the hearsay rule. See Pena, 864 S.W.2d at 150; see also Tex.Code Crim. Proc. Ann. art. 38.36(a). This statement of relief shows why the victim would have agreed to spend the night in the same house with Appellant less than twenty-four hours after filing for divorce.

Having concluded that the six objected-to pieces of evidence are either admissible, that the error in admitting them was harmless, or that Appellant waived his complaint, we overrule Appellant’s issue one.

Admission of Evidence as Fundamental Error

In his second issue, Appellant complains of the admission of a 1992 application for a protective order and a temporary ex parte protective order signed by the trial court. Appellant contends that even though he did not object to this evidence, its admission was fundamental error in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the due course of law provision of the Texas Constitution. Appellant contends that he was not represented by an attorney or present to defend himself when the 1992 temporary restraining order was entered. Further, he argues that the order had become void by its own terms fourteen days after its entry by the court since no hearing was held, and the State cannot use a void judgment against him.

In support of this contention, Appellant cites the opinion of the United States Supreme Court in Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972). In Loper, the Supreme Court determined that convictions obtained when the defendant was not represented by counsel were void, and use of those convictions for impeachment purposes would deprive a defendant of due process. Id., 405 U.S. at 483, 92 S.Ct. at 1019. Appellant argues that the use of the sworn pleadings and temporary restraining order here amounts to the same as the use of a void conviction in Loper.

Title 4 of the Family Code was enacted as an attempt to address the problem of family violence. The law gives a prompt, efficient way to obtain a court order prohibiting violence in a family setting without the necessity of instituting divorce proceedings. Striedel v. Striedel, 15 S.W.3d 163, 165 (Tex.App.-Corpus Christi 2000, no pet.). A court may issue a temporary ex parte order if it finds a clear and present danger of family violence evidenced in the application. Tex. Fam.Code Ann. § 83.001 (Vernon 2002). A temporary ex parte order is valid for up to twenty days. Tex.Fam.Code Ann. § 83.002 (Vernon 2002).

Ordinarily, general principles of due process dictate that a litigant has a right to be heard and that the court must protect that right. Striedel, 15 S.W.3d at 166. Emergency situations present an exception. See Ex parte Flores, 130 S.W.3d 100, 106-07 (Tex.App.-El Paso 2003, pet. ref'd). The temporary and emergency nature of emergency protective orders allows them to pass constitutional muster. Page v. Sherrill, 415 S.W.2d 642, 646 (Tex.1967) (orig. proceeding); Ex parte Flores, 130 S.W.3d at 107. See also Smith v. Texas Discount Co., 408 S.W.2d 804, 806 (Tex.Civ.App.-Austin 1966, no writ) (There is no right of cross-examination involved in an ex parte proceeding.). The 1992 order provided that it would be in effect for twenty days at most and set a date for a hearing to determine whether a protective order should issue. Further, the Texas Supreme Court has never held that a civil litigant must be represented by counsel in order for a court to conduct its fundamental, constitutional function. Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 594 (Tex.1996) (orig. proceeding).

We further note in the instant case that the victim obtained a temporary restraining order in 1991 and another in 1998. Appellant did not'have legal counsel when either of these orders were entered. These two restraining orders, along with the victim’s applications for these restraining orders, contain allegations similar to those supporting the 1992 temporary restraining order complained of by Appellant under this issue. We fail to see how the admission of the 1992 application for temporary restraining order and temporary restraining order could have been fundamental error when other restraining order evidence with similar facts was before the jury and not complained about on appeal. See Tex.R.App. P. 33.1(a). Appellant’s issue two is overruled.

Ineffective Assistance of Counsel

In his third issue, Appellant contends he was denied effective assistance of counsel. He contends that his attorney was ineffective because he did not object to the introduction of results of a psychological test which his psychologist, Dr. Thomas Allen, administered to him or to the prosecutor’s jury argument based on that evidence. Secondly, he contends that his counsel was ineffective when he did not object to the testimony of Watkins, who had been a law partner of Appellant’s 1991 divorce attorney.

In order to prevail on an ineffective assistance of counsel claim, Appellant must show that the performance of his attorney fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). He must also show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., 466 U.S. at 694, 104 S.Ct. at 2068. A “reasonable probability” is a probability, sufficient to undermine confidence in the outcome of the proceeding. Id.; Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App.1986). In evaluating the effectiveness of counsel, the reviewing court looks to the totality of the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). The appellant has the burden of proving, ineffective assistance of counsel by a preponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App.1985). The record must affirmatively demonstrate the alleged ineffective assistance. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996). Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel’s conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002).

Appellant contends that the “L” part of the psychological examination which he was given by Dr. Allen correlated to a polygraph test and therefore his attorney should have objected to its admission into evidence. Dr. Allen specifically testified that the psychological test he administered to Appellant was the Minnesota Multipha-sic Personality Inventory II (“MMPI II”). Dr. Allen testified that the MMPI II, which he administered to Appellant, was not the same as the previous MMPI I. He said that although the letter “L” stands for “lie” and its use was continued under the MMPI II, it did not mean the same thing that it had meant under the MMPI I. He said that the “L” part of the MMPI II did not involve whether Appellant was telling the truth or not, but whether Appellant was defensive or not. He specifically stated that “it cannot be characterized as a polygraph examination.” The record therefore does not support the allegation upon which Appellant bases this portion of his ineffective assistance claim.

In jury argument, it is permissible for the prosecutor to make reasonable deductions from the' evidence. Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App.1988). Counsel is allowed wide latitude in drawing inferences from the evidence so long as they are fair, legitimate, and offered in good faith. Id. Counsel may infer from the evidence that a defendant has lied. Juhasz v. State, 827 S.W.2d 397, 404 (Tex.App.-Corpus Christi 1992, pet. ref d). Because the complained-of argument was not improper, defense counsel could not have been ineffective for failing to object to it.

Appellant’s claim that counsel was ineffective because Watkins was a law partner of Appellant’s divorce attorney in 1991 is not supported by the record. In cases where the appellant is claiming ineffective assistance due to a conflict of interest,, an actual conflict must be shown. Talbott v. State, 93 S.W.3d 521, 524 (Tex.App.-Houston [14th Dist.] 2002, no pet.). Here, Appellant did not establish on the record that there was any conflict between Watkins and Appellant’s former attorney. An appearance of a conflict involving the Texas Disciplinary Rules of Professional Conduct is not enough to establish attorney misconduct. See Keen v. State, 85 S.W.3d 405, 411 (Tex.App.-Tyler 2002, pet. ref'd). Further, there is nothing in the record showing that Appellant raised Watkins’s possible conflict with his trial counsel, thus putting trial counsel on notice of an alleged conflict.

Appellant has failed to show that his claims of ineffective assistance of counsel are supported by the record before us. Appellant’s issue three is overruled.

Disposition

Having overruled Appellant’s three issues, we affirm the judgment of the trial court.

      . We note that Appellant does not separately argue his state and federal constitutional claims or argue that the Texas constitutional protections differ in any significant way from those protections or rights in the United States Constitution. To adequately brief a state constitutional issue, Appellant must proffer specific arguments and authorities supporting his contentions under the state constitution. Moore v. State, 935 S.W.2d 124, 128 (Tex.Crim.App.1996); Lawton v. State, 913 S.W.2d 542, 558 (Tex.Crim.App.1995). Because Appellant failed to do so, we consider Appellant's confrontation issue as a federal constitutional claim only. See Jackson v. State, 992 S.W.2d 469, 475 n. 8 (Tex.Crim.App.1999); Johnson v. State, 853 S.W.2d 527, 533 (Tex.Crim.App.1992).

      . The order states it is effective for twenty days unless terminated sooner by order of the court.


source: Caselaw Access Project

author: Chief Justice MORRISS.

license: Public Domain

text:
    James Cory HICKS, Appellant, v. The STATE of Texas, Appellee.
    No. 06-05-00109-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Dec. 14, 2005.
    Decided Jan. 6, 2006.

      Troy A. Hornsby, Miller, James, Miller & Hornsby, LLP, Texarkana, for appellant.
    Tina Richardson, Asst. Dist. Atty., Linden, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

Billy Ray Johnson, a forty-two year-old, mentally retarded black man, had been invited to a late-September drinking party in rural Cass County, ostensibly to provide the youthful, white revelers some “entertainment” with his dancing. But Johnson became a problem when, after a dispute arose over a change in the type of music being played, Colt Amox punched Johnson once in the face, knocking him unconscious. The rest of the night, the question was what to do with the unconscious Johnson.

James Cory Hicks, one of the revelers, was, at the age of twenty-three or twenty-four, the eldest person present, except for Johnson. Hicks had arrived at the party after midnight, after finishing his shift as a Cass County jailer. When most of those present suggested taking the unconscious Johnson to either the hospital or the police, Hicks nixed the idea, saying he was worried about losing his job or his children, or getting in trouble for drinking alcohol with underage persons.

After lying on the ground for approximately an hour, the still unconscious Johnson was put in the back of Amox’s truck, and a convoy formed. At least two witnesses testified Hicks led the convoy. Dallas Stone and Wes Owens said Hicks told them that, when Hicks stopped his vehicle, they should put Johnson on the side of the road. At a county road leading to a local dump, in the early morning hours of September 28, 2003, Johnson was removed from Amox’s truck and placed in a small sandy area approximately eight to ten feet from the roadway. Owens said he suggested the road because he thought Johnson’s family lived in the area.

About 5:00 a.m., Hicks contacted local law enforcement and told them he and Owens had been driving around and came across Johnson’s body lying on the side of the road. Hicks subsequently changed his story, saying Amox had hit Johnson and acted alone in moving the victim.

Johnson was finally taken to the Linden Hospital the morning of September 28. He was subsequently diagnosed with a subarachnoid hemorrhage, consistent with a blow to the head. Johnson did not fully regain consciousness for two or three days.

Hicks was charged with (a) intentionally or knowingly causing serious bodily injury to a disabled person; (b) intentionally, knowingly, or recklessly causing serious bodily injury to a disabled person, having chosen the victim based on his race or mental disability; and (c) intentionally or knowingly causing bodily injury to Johnson by omission. The jury acquitted Hicks on the first two counts, and found him guilty on the third. As required by law based on the jury’s assessment, the trial court sentenced Hicks to three years’ confinement and probated the sentence. The trial court ordered Hicks’ community supervision to be for a term of ten years.

On appeal, Hicks challenges the legal and factual sufficiency of the evidence to prove either that Hicks caused bodily injury to Johnson or that Hicks had assumed Johnson’s care, custody, or control. We affirm because (1) the evidence is sufficient to prove that Hicks caused bodily injury by omission, and (2) the evidence is sufficient to prove that Hicks had assumed Johnson’s care, custody, or control.

In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This calls on the reviewing court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). In our review, we must evaluate all the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999).

In a factual sufficiency review, the appellate court views all the evidence in a neutral light and determines whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex.Crim.App.2004) (citing Zuniga v. State, 144 S.W.3d 477, 486 (Tex.Crim.App.2004)).

(1) The Evidence Is Sufficient To Prove That Hicks Caused Bodily Injury by Omission

In challenging the legal and factual sufficiency of the evidence to show injury by omission, Hicks argues that the delay in getting Johnson any medical attention made no difference in Johnson’s condition resulting from his closed head injury. Hicks also attempts to make a distinction between failing to get Johnson prompt medical care and leaving his unconscious body lying on the side of the road for a period of time.

Section 22.04 requires that, after an initial injury, the victim must sustain further bodily injury because of the actor’s omission. See Dusek v. State, 978 S.W.2d 129, 133 (Tex.App.-Austin 1998, pet. ref'd). “Bodily injury” is defined as “physical pain, illness, or any impairment of physical condition.” Tex. Pen.Code Ann. § 1.07(a)(8) (Vernon Supp.2005).

While there is evidence Johnson’s brain injury was not exacerbated by the delay in getting him medical care, there was evidence the delay caused him further physical pain or physical impairment. John Elder, the deputy who first saw Johnson on the side of the road, after Hicks called the sheriffs office, said it was a cool September morning, and Johnson, wearing only jeans and a T-shirt, was curled up in a fetal position as if cold. Johnson was making a gurgling sound as he breathed; Dallas Stone said he had to put Johnson on his side, as opposed to his back, so he could breathe. When Owens and Hicks returned to the place Johnson had been dumped, about twenty to thirty minutes after leaving him, Johnson was still making the gurgling sounds. The nurse who first saw Johnson at the hospital said Johnson was cold and shivering, had aspiration pneumonia, and was covered head to toe with ant bites. At the very least, Johnson suffered bodily injury, as contemplated in the Texas Penal Code, from the ant bites and the cold. That he vomited while unconscious and was therefore having difficulty breathing showed an impairment of his physical condition. The evidence was legally sufficient to support the finding of bodily injury by omission.

Likewise, the above evidence is not too weak to support the finding of guilt beyond a reasonable doubt, nor is there evidence contrary to the verdict strong enough that the beyond-a-reasonable-doubt standard could not have been met. The evidence was factually sufficient to support the jury’s finding of bodily injury by omission.

(2) The Evidence Is Sufficient To Prove That Hicks Had Assumed Johnson’s Care, Custody, or Control

Hicks’ third and fourth points of error claim, respectively, the evidence was legally and factually insufficient to prove he assumed care, custody, or control of the unconscious Johnson on the night in question. Hicks argues that no care, custody, or control has been assumed within the meaning of the statute unless the actor has accepted responsibility for the victim’s protection, food, shelter, and medical care. We disagree.

A person commits an offense if he or she “by omission causes to a ... disabled individual ... bodily injury.” Tex. Pen.Code Ann. § 22.04(a)(3). An omission constitutes the offense if “the actor has assumed care, custody, or control of a ... disabled individual.” Tex. Pen.Code Ann. § 22.04(b)(2).

[Tjhe actor has assumed care, custody, or control [of the victim] if he has by act, words, or course of conduct acted so as to cause a reasonable person to conclude that he has accepted responsibility for protection, food, shelter, and medical care for a child, elderly individual, or disabled individual.

Tex. Pen.Code Ann. § 22.04(d).

To properly understand these provisions, one must realize the statutory scheme is intended to protect three classes of vulnerable individuals: children, the elderly, and the disabled. Subsection (d) appears intended to protect those vulnerable individuals at least when they are part of a specific, statistically significant situation: the nontraditional domestic arrangement, such as the live-in boyfriend or girlfriend. See Hawkins v. State, 891 S.W.2d 257 (Tex.Crim.App.1994) (under amended Section 22.04, conviction affirmed for live-in boyfriend who failed to protect child of his partner); Florio v. State, 784 S.W.2d 415 (Tex.Crim.App.1990) (under former Section 22.04, conviction reversed for live-in boyfriend who failed to protect child of his partner); Prescott v. State, 123 S.W.3d 506 (Tex.App.-San Antonio 2003, no pet.) (parent has duty to protect child, independent of any assumption of care).

We interpret Section 22.04(d) to establish a bright-line rule that, once someone has become a caretaker — even informally — for a vulnerable individual, he or she cannot then escape responsibility for the individual by arguing he or she has not assumed that individual’s care, custody, or control. We do not believe the converse is true, however. If one were required to become a full-service caretaker to have assumed “care, custody, or control” of a vulnerable person, such a requirement would render meaningless the word “or” in the phrase “care, custody, or control.” We hold that the phrase “care, custody, or control” has more breadth than subsection (d) and that Hicks is covered by that additional breadth.

Under the Texas Penal Code, “ ‘[possession’ means actual care, custody, control, or management.” Tex. Pen.Code Ann. § 1.07(a)(39) (Vernon Supp.2005). An identical definition of possession applies to controlled substances. See Tex. Health & Safety Code Ann. § 481.002(38) (Vernon Supp.2005). While the general definition of possession ordinarily is, and the controlled substances definition exclusively is, concerned with possession of property rather than people, there is no limitation in the general definition making it nonappli-eable here. An implicit finding of the jury was that Hicks had effective care, custody, or control of Johnson after Johnson’s initial injury. The evidence is sufficient to support that finding.

After Johnson’s injury, the majority of those present expressed a desire to get Johnson to a hospital or other aid, but Hicks squelched that idea by expressing concerns about his own personal risks posed by this situation. Hicks was the oldest of the group; was, because of his employment as a Cass County jailer, apparently cloaked with a certain air of authority — in the minds of this group of revelers, at least; and actually exerted direction and control over the group. Hicks testified on cross-examination that Johnson should have been taken to a hospital. Hicks was aware that Johnson was in need of medical attention. Hicks led the convoy of vehicles taking Johnson from the scene, and Hicks directed the others in what to do when Hicks stopped, that is, to lay Johnson on the side of the road. Instead of taking Johnson to a hospital- — approximately a mile from the party’s location — Hicks and company took Johnson about four miles away from the local hospital and dumped him on the side of a county road. Hicks testified he and Owens had planned to go back to get Johnson after the rest of the group disbanded. The evidence is sufficient to show that Hicks effectively assumed care, custody, or control of Johnson and became instrumental in delaying Johnson s medical care, thus exposing him to the cold, the ants, and the aspiration of his own vomit. The evidence was legally sufficient for the jury to find that Hicks assumed care, custody, or control of Johnson.

Considering the evidence summarized above, we cannot say such evidence was too weak to support the jury’s finding, beyond a reasonable doubt, that Hicks assumed care, custody, or control of Johnson. The evidence was factually sufficient.

We affirm the trial court’s judgment.

      . The party-goers ranged from their late teens to their early twenties.

      . Hicks was present when the disagreement between Amox and Johnson occurred. Two witnesses testified that Hicks had said someone should hit Johnson.

      . The jury’s assessment of punishment included suspension of the sentence of confinement, requiring the trial court to order community supervision. See Tex.Code Crim. Proc. Ann. art. 42.12, § 4(a) (Vernon Supp.2005). The trial court ordered the maximum available term of community supervision, ten years. See Tex. Code Crim. Proc. Ann. art. 42.12, §§ 3(b), 4(b) (Vernon Supp.2005). Though not required to do so, the trial court ordered as a sanction that Hicks serve a period of confinement as a condition to receiving community supervision. See Tex.Code Crim. Proc. Ann. art. 42.12, § 12(a), (c) (Vernon Supp.2005).

      . In his brief, Hicks argued the evidence was insufficient to prove serious bodily injury. The indictment, in count three, charged Hicks with causing bodily injury by omission. The court’s charge to the jury, in describing count three, authorized a finding of guilt on count three if the jury found Hicks had caused serious bodily injury by omission. Section 22.04 of the Texas Penal Code criminalizes conduct which amounts to either serious bodily injury or bodily injury. Tex. Pen.Code Ann. § 22.04 (Vernon Supp.2005). The State did not object. The sufficiency of the evidence will be measured by applying a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). At oral argument, Hicks conceded the State had to prove only bodily injury.

      . Don Simmons, M.D., said that, as of the time of trial, Johnson’s brain, an organ, was still recovering, and the presence of the sub-arachnoid hemorrhage does "predispose” him to a substantial risk of death. However, Simmons also testified it was likely that, even if Johnson had been brought to the hospital immediately after the assault, the treatment and prognosis would have been the same, to-wit, "supportive care,” basically monitoring the patient, and waiting for a change in condition. Johnson was comatose, or in a coma or near comatose state, for almost three days. Johnson’s brother, Curtis Stephenson, testified that, after the injury, Johnson could not use a telephone book as he used to, and his hands shook too much to draw, where he had formerly been adept at drawing. Johnson had no recall of the injury; he only recalled going to the party, then being in the hospital.

      . Aspiration pneumonia occurs when an unconscious person vomits and continues to breathe, thus aspirating fluids.

      . Cf. Robinson v. State, 174 S.W.3d 320, 326 n. 4 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (State not required to prove defendant exercised “care, custody, and management” over cocaine; sufficient to prove "care, custody, control, or management” of the contraband).


author: TERRY McCALL, Justice.

text:
    FIRST NATIONAL BANK IN MUNDAY, Appellant, v. LUBBOCK FEEDERS, L.P., Appellee.
    No. 11-04-00190-CV.
    Court of Appeals of Texas, Eastland.
    Jan. 12, 2006.

      Kevin G. Herd, Raymond B. Albertson, Goodrich, Postnikoff & Albertson, Fort Worth, for appellant.
    Steven C. Haley, Moorman, Tate, Moor-man, Urquhart & Haley, L.L.P., Brenham, Richard S. Hubbert, Sims, Hubbert & Wilson, Lubbock, Burt L. Burnett, Burnett & Burke, LLP, William M. Ucherek, II, Ucherek Law Firm, P.C., Abilene, for ap-pellee.
    Panel consists of: WRIGHT, C.J., and McCALL, J., and STRANGE, J.
   OPINION

TERRY McCALL, Justice.

In this appeal, First National Bank in Munday and Lubbock Feeders, L.P., claim competing security interests in the same cattle. The trial court granted summary judgment to Lubbock Feeders, holding that it had a purchase money security interest in the cattle and the proceeds from the sales of the cattle with priority over the Bank’s security interest in the cattle. In three appellate issues, the Bank argues that the trial court erred in granting summary judgment. Because Lubbock Feeders met its summary judgment burden of establishing that it had a perfected purchase money security interest in the cattle, we affirm the judgment of the trial court.

Background Fads

The Bank sued Briscoe Cattle Exchange Corp. and John William Cox for sums due and owing on various notes. The Bank alleged that Cox had defaulted on nine notes and that he had guarantor liability on two Briscoe Cattle Exchange notes. The Bank alleged that it had a security interest in all livestock owned by Cox, wherever located and whenever acquired. The Bank sought a writ of sequestration for all of Cox’s livestock, including any livestock located in Lubbock County, Texas. Lubbock Feeders intervened in the suit, alleging claims against Cox for sums due and owing on various loans. Lubbock Feeders also sought a declaratory judgment that it had a superior purchase money security interest in Cox’s Lubbock County cattle.

The Bank and Lubbock Feeders moved for summary judgment. Both parties claimed a superior security interest in Cox’s Lubbock County cattle. The Bank did not claim that it had a purchase money security interest in Cox’s Lubbock County cattle. Lubbock Feeders argued that the summary judgment evidence established the following: (1) that it had a purchase money security interest in the cattle under Section 9.103(a) of the Uniform Commercial Code (UCC) because its loans to Cox enabled him to acquire his interests in the cattle; (2) that it perfected its security interest in the cattle under Sections 9.310 and 9.313 of the UCC by taking possession of the cattle and by filing financing statements covering the cattle; (3) that it was not required to give the Bank notice of its security interest under Section 9.324(d) of the UCC to obtain priority status; and (4) that, even though it was not required to give the Bank notice of its security interest, it gave the Bank notice of its security interest complying with Section 9.324(d). In response, the Bank asserted the following: (1) that Lubbock Feeders failed to perfect its security interest and (2) that Lubbock Feeders failed to give the Bank the required notice of its security interest under Section 9.324(d) of the UCC. Therefore, the Bank argued that it had the superior security interest in the cattle.

The trial court granted summary judgment to Lubbock Feeders. The trial court also entered an order severing the claims between the Bank and Lubbock Feeders from the remainder of the action. Therefore, the summary judgment became final and appealable.

Issues Presented

The Bank attacks the trial court’s granting of summary judgment in three appellate issues. In its first issue, the Bank argues that the trial court applied the wrong summary judgment standard in making an “implied finding of fact” that Lubbock Feeders had a superior right and interest in the cattle. In its second issue, the Bank asserts that the summary judgment evidence created a fact issue as to (1) whether Lubbock Feeders had a perfected purchase money security interest in the cattle and (2) whether Lubbock Feeders complied with requirements for priority of a purchase money security interest in livestock. In its third issue, the Bank contends that Lubbock Feeders’s summary judgment evidence — the affidavit of Kyle Williams — failed to meet its summary judgment burden of establishing that no genuine issue of material fact existed.

Standard of Review

This case involves the review of a traditional motion for summary judgment. We will apply the well-recognized standard of review for traditional summary judgments. We must consider the summary judgment evidence in the fight most favorable to the non-movant, indulging all reasonable inferences in favor of the non-movant, and determine whether the movant proved that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex.1985); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex.1979).

Affidavit of Kyle Williams

Lubbock Feeders presented an affidavit from its yard manager, Kyle Williams, in support of its motion for summary judgment. Williams stated that he had familiarity with Lubbock Feeders’s financed accounts with its customers and that his job duties required him to stay familiar with the accounts.

Williams explained that Lubbock Feeders operates a commercial feed yard and offers its customers feeding programs with several different payment options, including a cattle and feed financed option. Under the cattle and feed financed option, Lubbock Feeders advances a fine of credit to its customer to finance the customer’s purchase of cattle and makes subsequent periodic loan advances for financing feed costs and yardage. Customers choosing the cattle and feed financed option execute a loan and security agreement granting Lubbock Feeders a security interest in the customer’s cattle. Lubbock Feeders documents each money advance to its customers with a loan certificate.

Williams explained in detail Cox’s relationship with Lubbock Feeders. Cox fed cattle at Lubbock Feeders’s feedlot under the cattle and feed financed option. If Cox wanted to purchase cattle and place those cattle with Lubbock Feeders, then Lubbock Feeders would finance 80% of the purchase price of Cox’s interest in the cattle and reasonable feeding costs.

In 2002 and 2003, Cox fed cattle on the following lots, among others, at Lubbock Feeders’s feed yard: Lot 101, Lot 151, Lot 277, and Lot 282. Cox and Lubbock Feeders executed feeding agreements covering all four lots. Cox had a revolving fine of credit with Lubbock Feeders enabling him to borrow the money necessary to purchase his interests in the cattle. Cox signed loan and security agreements evidencing the loans. The security agreements gave Lubbock Feeders a security interest in Cox’s cattle then owned or thereafter acquired.

Cox purchased all of the cattle from third party vendors at sale barn auctions. When Cox wanted to purchase a group of cattle, he submitted an invoice to Lubbock Feeders identifying the cattle by a specific head number, sex, pay weight, and price. As Cox purchased each set of cattle, Lubbock Feeders prepared a loan certificate relating to that set of cattle and showing the amount of the loan advance. All of the cattle were delivered directly to Lubbock Feeders. Cox never had possession of the cattle. After Cox and Lubbock Feeders signed a loan certificate relating to a set of cattle and Lubbock Feeders received the set of cattle, Lubbock Feeders made an advance to Cox enabling him to complete the purchase of the cattle from the third party vendor. Lubbock Feeders made 20 loan advances to Cox on the four lots. Each advance related to a specific set of cattle.

Lot 101

Lubbock Feeders and Cox, each as 50% owners, placed 102 heifers with Lubbock Feeders for feeding and growing. Lubbock Feeders received and placed the 102 heifers at its feedlot as follows: (1) 70 head on June 28, 2002, and (2) 32 head on July 1, 2002. Lubbock Feeders made money advances to Cox on June 19, 2002 and July 9, 2002. The advances totaled $16,680.94. All of the cattle in Lot 101 were sold to packers.

Lot 151

Flintrock Cattle Company as a 50% owner, Harve Williams as a 25% owner, and Cox as a 25% owner placed 107 steers with Lubbock Feeders for feeding and growing. Lubbock Feeders received and placed the 107 steers at its feedlot as follows: (1) 21 head on September 30, 2002; (2) 28 head on October 3, 2002; (3) 21 head on October 7, 2002; (4) 3 head on October 9, 2002; (5) 6 head on October 10, 2002; and (6) 28 head on October 14, 2002. Lubbock Feeders made money advances to Cox on October 8, 2002; October 9, 2002; October 14, 2002; and October 18, 2002. The advances totaled $12,418.36. All of the Lot 151 cattle were sold to packers.

Lot 277

Flintrock Cattle Company and Cox, each as 50% owners, placed 86 steers with Lubbock Feeders for feeding and growing. Lubbock Feeders received and placed the 86 steers at its feedlot as follows: (1) 6 head on January 9, 2003; (2) 29 head on January 16, 2003; (3) 2 head on January 20, 2003; (4) 4 head on January 24, 2003; and (5) 45 head on January 30, 2003. With respect to the Lot 277 cattle, Lubbock Feeders made money advances to Cox on January 27, 2003, and January 31, 2003. The advances totaled $22,625.77. All of the Lot 277 cattle were sold to packers.

Lot 282

Flintrock Cattle Company and Cox, each as 50% owners, placed 94 heifers with Lubbock Feeders for feeding and growing. Lubbock Feeders received and placed the 94 heifers at its feedlot as follows: (1) 43 head on January 15, 2003; (2) 25 head on January 20, 2003; (3) 4 head on January 24, 2003; and (4) 22 head on January 30, 2003. With respect to the Lot 282 cattle, Lubbock Feeders made money advances to Cox on January 27, 2003, and January 31, 2003. The advances totaled $21,691.62. All of the Lot 282 cattle were sold to packers.

Loan Documents

Williams attached copies of documents detailing Lubbock Feeders’s loans to Cox as exhibits to his affidavit, including the feeding agreements, loan and security agreements, loan certificates, and checks showing money advances to Cox. The documents detailed each transaction in which Lubbock Feeders advanced money to Cox for his purchase of cattle from the sale barns. Williams’s affidavit, along with the attached documents, traced Cox’s purchase of each set of cattle that Lubbock Feeders placed into Lots 101, 151, 277, and 282.

The Bank’s Objections to Williams’s Affidavit

The Bank argues that Williams’s affidavit failed to provide competent summary judgment proof on the purchase money security interest issues. First, the Bank asserts that the affidavit failed to demonstrate Williams was qualified or competent to testify on the security interest issues. Summary judgment affidavits must set forth facts and show affirmatively how the affiant obtained personal knowledge of those facts. Radio Station KSCS v. Jennings, 750 S.W.2d 760, 761-62 (Tex.1988). Williams’s affidavit addressed Lubbock Feeders’s relationship with its customer, Cox, and the loans Lubbock Feeders made to Cox. In the affidavit, Williams stated that he was the yard manager for Lubbock Feeders; that he was familiar with Lubbock Feeders’s customer accounts; and that the performance of his job required him to be familiar with the accounts. A person’s position or job responsibilities can peculiarly qualify him to have personal knowledge of facts and establish how he learned of the facts. Boswell v. Farm & Home Sav. Ass’n, 894 S.W.2d 761, 768 (Tex.App.-Fort Worth 1994, writ denied). Williams’s position and job responsibilities with Lubbock Feeders particularly qualified him to have personal knowledge of the facts relating to the loans to Cox, and the affidavit established how he learned of those facts. The affidavit demonstrated that Williams had personal knowledge of Lubbock Feeders’s transactions with Cox. Williams was competent and qualified to testify about those transactions and the documents related to those transactions.

Second, the Bank asserts that Williams’s affidavit contained conclusory statements. Affidavits consisting of nothing more than conclusions or expressions of subjective belief are not competent summary judgment proof. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984). The Bank objects to a number of Williams’s statements, including statements that Lubbock Feeders had- “a purchase-money lien and security interest” and that “Lubbock Feeders perfected its purchase-money security interest.” Standing alone, these statements are con-clusory. However, as set forth above, Williams provided detailed facts about the loan transactions in question, and the documents relating to those transactions were attached as exhibits to the affidavit. The affidavit provided specific facts tracing loan proceeds to Cox’s specific purchases of cattle. An affidavit containing concluso-ry and subjective determinations of fact may support á motion for summary judgment' if the remaining statements contain sufficient factual information to sustain the movant’s burden of proof. Marshall v. Sackett, 907 S.W.2d 925, 933 (Tex.App.-Houston [1st Dist.] 1995, no writ); General Prod. Co. v. Black Coral Invs., 715 S.W.2d 121, 123 (Tex.App.-Houston [14th Dist.] 1986, writ refd n.r.e.). Although Williams’s affidavit contained some conclu-sory statements, those statements were supported by facts, and the remaining statements in the affidavit contained sufficient factual information to sustain Lubbock Feeders’s burden of proof.

Third, the Bank apparently asserts that, because Williams was an interested witness, his affidavit will not support the granting of a summary judgment. Summary judgment based on the uncon-troverted affidavit of an interested witness is proper if the evidence is clear, positive, direct, otherwise credible, free firom contradictions and inconsistencies, and could have been readily controverted. Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex.1997); Republic Nat’l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex.1986). “Could have been readily controverted” does not mean that the summary judgment evidence could have been easily and conveniently rebutted but, rather, indicates that the testimony could have been effectively countered by opposing affidavit. Trico Techs. Corp., 949 S.W.2d at 310 (citing Casso v. Brand, 776 S.W.2d 551, 558 (Tex.1989)).

Williams provided specific and detailed facts about the loan transactions in his affidavit. The affidavit was clear, positive, direct, otherwise credible, and free from contradictions and inconsistencies. The affidavit contained the type of information — specific factual information about loans, including dates and amounts of loans — that is readily controvertible. Trico Techs. Corp., 949 S.W.2d at 310. Therefore, the affidavit could support the granting of summary judgment.

The trial court did not err in considering Williams’s affidavit as summary judgment evidence. We overrule the Bank’s third issue.

Security Interest Issues

Lubbock Feeders had the summary judgment burden of establishing each of the following: (1) that it had a purchase money security interest in the subject cattle, (2) that it perfected its security interest in the cattle, and (3) that its security interest in the cattle had priority over the Bank’s security interest. Lubbock Feeders argues that it had a purchase money security interest in the cattle under Section 9.103 of the UCC. Section 9.103 defines purchase money security interest in part as follows:

(a) In this section:
(1) “Purchase-money collateral” means goods or software that secures a purchase-money obligation incurred with respect to that collateral.
(2) “Purchase-money obligation” means an obligation of an obligor incurred as all or part of the price of the collateral or for value given to enable the debtor to acquire rights in or the use of the collateral if the value is in fact so used.
(b) A security interest in goods is a purchase-money security interest:
(1) to the extent that the goods are purchase-money collateral with respect to that security interest.

Thus, when a creditor makes a loan enabling a debtor to acquire an interest in goods, the creditor may obtain a purchase money security interest in the goods. Section 9.103(a)(2).

Lubbock Feeders asserts that it had a purchase money security interest in the cattle because its loans to Cox enabled him to acquire his interests in the cattle. The summary judgment evidence established that Lubbock Feeders made 20 money advances to Cox with respect to the cattle involved in the four lots. Williams’s affidavit and the loan certificates demonstrated that each money advance related to a specific set of cattle. Cox purchased the cattle from third party vendors at sple barn auctions before receiving loan proceeds from Lubbock Feeders. Based on the timing of the loans, the Bank asserts that Cox acquired interests in the cattle before receiving the loan proceeds from Lubbock Feeders. Therefore, the Bank argues that the loans from Lubbock Feeders did not enable Cox to acquire interests in the cattle.

Section 9.103 of the UCC does not contain a requirement that the debtor receive the loan proceeds before purchasing the collateral. Instead, Section 9.103(a)(2) requires that the loan “enable the debtor to acquire rights in or the use of the collateral.” Although the Texas courts have not addressed this issue, courts from other jurisdictions have held that a creditor may obtain a purchase money security interest when the debtor receives the loan proceeds after purchasing the collateral. In re Enter. Indus., Inc., 259 B.R. 163, 169 (Bankr.N.D.Cal.2001); In re McHenry, 71 B.R. 60, 62-64 (Bankr.N.D.Ohio 1987); In re Sherwood, 79 B.R. 399, 400 (Bankr.W.D.Wis.1986); In the Matter of Hooks, 40 B.R. 715, 721 (Bankr.M.D.Ga.1984); De Kalb Bank v. Purdy, 205 Ill.App.3d 62, 150 Ill.Dec. 420, 562 N.E.2d 1223, 1226-27 (1990); DeKalb Bank v. Klotz, 151 Ill.App.3d 638, 104 Ill.Dec. 596, 502 N.E.2d 1256, 1258-59 (1986); Gen. Elec. Capital Commercial Auto. Fin., Inc. v. Spartan Motors, Ltd., 246 A.D.2d 41, 675 N.Y.S.2d 626, 630-32 (1998). Thus, the timing of the loan does not determine whether the creditor receives a purchase money security interest in the collateral. Rather, the key consideration is whether the loan enables the debtor to acquire rights in the collateral. Gen. Elec. Capital Commercial Auto. Fin., Inc., 675 N.Y.S.2d at 631-32; In re McHenry, 71 B.R. at 64. A creditor receives a purchase money security interest when the loan advance is “closely allied” with the debtor’s purchase of the collateral at issue. Gen. Elec. Capital Commercial Auto. Fin., Inc., 675 N.Y.S.2d at 631-33; In re Enter. Indus., Inc., 259 B.R. at 167-70.

The summary judgment evidence established that Lubbock Feeders’s loans to Cox enabled him to purchase the cattle. Each loan advance related to a specific set of cattle. Lubbock Feeders made each of the 20 loan advances to Cox within a short time after receiving the related set of cattle at its feed yard. This time period ranged from the day Lubbock Feeders received a set of cattle until 18 days after receiving a set of cattle. Cox signed a loan certificate with respect to each set of cattle. The loan certificates showed the loan advance amount and the specific cattle relating to the loan advance. The loans were “closely allied” to Cox’s purchase transactions. Gen. Elec. Capital Commercial Auto. Fin., Inc., 675 N.Y.S.2d at 631-33; In re Enter. Indus., Inc., 259 B.R. at 167-70. Lubbock Feeders met its summary judgment burden of establishing that it had a purchase money security interest in the cattle.

Lubbock Feeders argues that it perfected its purchase money security interest in the cattle by taking possession of the cattle and by filing financing statements covering the cattle. A secured party may perfect a security interest in goods by taking possession of the goods or by filing a financing statement. Sections 9.310(a), (b)(6), 9.313(a); see also Kunkel v. Sprague Nat’l Bank, 128 F.3d 636, 644 (8th Cir.1997)(Feed yard perfected its purchase money security interest in cattle by taking possession of the cattle); MBank Abilene, N.A. v. Westwood Energy, Inc., 723 S.W.2d 246 (Tex.App.-Eastland 1986, no writ).

Cox purchased all of the subject cattle from third party vendors at sale barn auctions. Lubbock Feeders received delivery of the cattle at its feed yard. Cox never had possession of the cattle. Thus, the summary judgment evidence established that Lubbock Feeders perfected its security interest in the cattle by taking possession of the cattle. Sections 9.310(b)(6) and 9.313(a); Kunkel, 128 F.3d at 644. Therefore, we need not address Lubbock Feed ers’s contention that it also perfected its security interest by filing financing statements nor the Bank’s contention that the financing statements filed by Lubbock Feeders were insufficient to perfect its security interest.

The Bank argues that Lubbock Feeders’s security interest did not have priority over its security interest because Lubbock Feeders failed to comply with the notice requirements set forth in Section 9.324(d) of the UCC. In response, Lubbock Feeders argues that, because Cox never had possession of the cattle, Section 9.324(d) of the UCC did not require it to give the Bank notice of its security interest to maintain priority status. Section 9.324(d) provides as follows:

Subject to Subsection (e) and except as otherwise provided in Subsection (g), a perfected purchase-money security interest in livestock that are farm products has priority over a conflicting security interest in the same livestock, and, except as otherwise provided in Section 9.327, a perfected security interest in their identifiable proceeds and identifiable products in their unmanufactured states also has priority, if:
(1) the purchase-money security interest is perfected when the debtor receives possession of the livestock;
(2) the purchase-money secured party sends an authenticated notification to the holder of the conflicting security interest;
(3) the holder of the conflicting security interest receives the notification within six months before the debtor receives possession of the livestock; and
(4) the notification states that the person sending the notification has or expects to acquire a purchase-money security interest in livestock of the debtor and describes the livestock.

The issue is whether the notification requirement in Section 9.324(d) applies when the creditor maintains possession of the livestock. While Texas courts have not decided this issue, the Eighth Circuit Court of Appeals decided it in the Kunkel case. Kunkel involved facts similar to the facts in this case. A feedlot perfected a purchase money security interest in cattle by taking possession of the cattle. Kunkel, 128 F.3d at 644. The issue was whether the feedlot’s purchase money security interest in the cattle had priority over a bank’s security interest in the same cattle. Kunkel, 128 F.3d at 641. The Kansas UCC applied in Kunkel. Under the Kansas UCC, the subject cattle were classified as “inventory.” Kunkel, 128 F.3d at 639. A creditor with a purchase money security interest in inventory could acquire priority lien status by sending notice of its security interest to holders of competing security interests within five years before the debt- or received possession of the inventory. Kunkel, 128 F.3d at 644.

In Kunkel, the feedlot argued that the UCC’s notice provision did not apply to its purchase money security interest because the debtor never received possession of the collateral. Therefore, the feedlot asserted that it could maintain priority status without providing notice of its security interest to holders of competing security interests. The Eighth Circuit Court of Appeals interpreted the UCC’s notification requirement “to be triggered by actual possession of the inventory by the debtor.” Kunkel, 128 F.3d at 645. Because the Kunkel debtor never obtained possession of the cattle, the feedlot could maintain its priority status without notifying the bank of its security interest. Kunkel, 128 F.3d at 645-46.

We agree with the reasoning of the Kunkel court. Section 9.324(d)(3) provides that the holder of the conflicting security interest must receive the notice of the purchase money security interest within six months before the debtor receives possession of the livestock. Cox never possessed the cattle. Because Cox never received possession of the cattle, the notification requirement in Section 9.324 was not triggered. Therefore, Lubbock Feeders was not required to give the Bank notice of its security interest to maintain priority status.

Based on our holding, we need not address Lubbock Feeders’s alternative contention that it provided the Bank notice of its security interest complying with Section 9.324(d).

Lubbock Feeders met its summary judgment burden of establishing a superior purchase money security interest in the cattle and in the proceeds from the sales of the cattle. The trial court properly granted summary judgment to Lubbock Feeders. We overrule the Bank’s first and second issues.

This Court’s Ruling

The judgment of the trial court is affirmed.

      . Lubbock Feeders had possession of Cox’s Lubbock County cattle on its feedlot. Pursuant to an agreed order, Lubbock Feeders sold the cattle and deposited the sales proceeds, less feeding costs and yardage costs due to Lubbock Feeders, into the registry of the court. That amount totaled $104,886.43.

      . Tex. Bus. & Com.Code Ann. § 9.103(a), (b) (Vernon 2002).

      . Tex. Bus. & Com.Code Ann. §§ 9.310, 9.313 (Vernon Supp.2005).

      . Tex. Bus. & Com.Code Ann. § 9.324 (Vernon 2002).


author: GEORGE C. HANKS, JR., Justice.

text:
    Octavish FREEMAN, Appellant, v. HARRIS COUNTY, Texas, Appellee.
    No. 01-04-00148-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 12, 2006.

      Mark A. Rubai, Houston, TX, for Appellant.
    Michael R. Hull, Assistant County Attorney, Michael A. Stafford, Harris County Attorney, Houston, TX, for Appellee.
    Panel consists of Justices JENNINGS, HANKS, and MIRABAL.

      . The Honorable Margaret G. Mirabal, Retired Senior Justice, Court of Appeals, First District of Texas at Houston, sitting by assignment.

   OPINION ON REHEARING

GEORGE C. HANKS, JR., Justice.

We withdraw our opinion of August 31, 2005 and issue the following opinion in its stead. We deny Harris County’s motion for rehearing.

Appellant, Octavish Freeman, appeals the trial court’s order dismissing his negligence claim against appellee, Harris County, Texas (“the County”), for lack of subject-matter jurisdiction. In three separate, issues, Freeman contends that the trial court erred in granting the County’s plea to jurisdiction because (1) Freeman alleged sufficient facts to show that the County had waived its immunity under the Texas Tort Claims Act (“the Act”), (2) Freeman is entitled to recover damages for his mental anguish and property loss, and (3) the County waived its governmental immunity when it committed an unauthorized and or unlawful act. We reverse and remand.

Background

The Harris County Medical Examiner’s Office (“the Office”) performed an autopsy on the body of Freeman’s 27-day-old baby. The autopsy was required by law pursuant to article 49.25, section 6(a)(7) of the Texas Code of Criminal Procedure. After the autopsy, the Office informed Freeman that it had lost the baby’s body. To date, the body has not been located.

Katrina Jones and Freeman were the child’s biological parents. Jones filed a civil suit against the County seeking damages for the loss of the baby’s body, and Freeman intervened. In response to the intervention, the County filed a plea to the jurisdiction. Following a hearing, the trial court granted the County’s plea to the jurisdiction and dismissed the case. Freeman challenges the trial court’s order of dismissal.

Governmental Immunity

A plea to the jurisdiction is a dilatory plea challenging a trial court’s authority to determine the subject matter of the cause of action without defeating the merits of the case. City of Houston v. Northwood Mun. Util. Dist. No. 1, 73 S.W.3d 304, 308 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (citing Bland I.S.D. v. Blue, 34 S.W.3d 547, 554 (Tex.2000)). While the underlying claims may form the context in which a plea to the jurisdiction is raised, the purpose of the plea is not to preview or delve into the merits of the case, but to establish the reason why the merits of the underlying claims should never be reached. Id. To defeat a plea to the jurisdiction, “the [plaintiff] must allege facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.” City of Houston v. Rushing, 7 S.W.3d 909, 914 (Tex.App.-Houston [1st Dist.] 1999, no pet.). In determining whether jurisdiction exists, we accept allegations in the plaintiffs pleadings as true and construe them liberally in favor of the plaintiff. Texas Dep’t Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004); Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). A trial court’s ruling on a plea to the jurisdiction presents a question of law which is reviewed de novo. Texas Nat'l Res. Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002).

In his pleadings, Freeman alleges that the County has waived its governmental immunity to this suit because it was negligent in (1) using its tangible personal and real property, which included certain motor-driven equipment and (2) in failing to warn or make reasonably safe, a premise defect at its premises. Freeman also argued that the County’s conduct constituted criminal negligence under section 42.08 of the Texas Penal Code. See Tex. Pen.Code Ann. § 42.08(a)(1) (Vernon 2003) (providing that a person commits an offense if he intentionally or knowingly disinters, disturbs, removes, dissects, in whole or in part, carries away, or treats in a seriously offensive manner a human corpse). In response, the County argued that its immunity from suit was not waived because Freeman did not allege facts which would result in the waiver of its immunity. Moreover, the County asserted that a mental anguish claim and a violation of a criminal statute do not waive its governmental immunity.

Under the doctrine of governmental immunity, a governmental entity is not liable for the negligence of employees absent a constitutional or statutory provision for liability. Univ. of Texas Med. Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex.1994). Section 101.021 of the Texas Torts Claims Act (the “Act”) sets out a limited waiver of immunity for certain types of claims against the State and its subdivisions, including claims involving the use of motor-driven equipment. Thus, the County remains immune from suit un-less the plaintiff pleads a claim within the scope of waiver under section 101.021 of the Act. See Tex. Civ. Prac. & Rem.Code Ann. § 101.021(1-2) (Vernon 2005).

Operation or Use of Motor-Driven Equipment

In his first issue, Freeman argues that the County has waived its immunity under section 101.021(1) because it was negligent in using its tangible personal and real property, including an incinerator that is motor-driven, and this negligence resulted in the loss of his baby’s body. The County concedes that the incinerator is motor driven. The County argues, however, that it has not waived its immunity under section 101.021(1) because, even if this equipment was used after the autopsy, the equipment operated as designed to dispose of the baby’s body. Thus, the County argues that any damages suffered by Freeman were caused by the negligent acts of an individual employee and not by the negligent use of the incinerator, itself. We disagree.

In this case, Freeman has alleged sufficient facts that, if true, waive the County’s immunity from Freeman’s negligence claims under the Act. Section 101.021 provides that immunity is waived if the negligence of an employee acting within the scope of his employment proximately causes damages and the damages arise from the use or operation of the motor-driven equipment. Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(A-B) (Vernon 2005). This section does not require that, for the County’s immunity to be waived, the motor-driven equipment must be used for something other than its intended purpose. See City of El Paso v. W.E.B. Invs., 950 S.W.2d 166, 170 (Tex.App.-El Paso 1997, writ denied) (holding that negligence of a City employee in ordering the motor-driven equipment to demolish the wrong building waived the City’s immunity). The section merely requires that, for immunity to be waived, the damages must “arise” from the employee’s use of motor-driven equipment and that there be proximate causation between the employee’s alleged negligence and the injury sustained. Id.

Here, Freeman has alleged facts supporting his claim that his damages arise from a County employee’s use of motor-driven equipment, i.e., an incinerator, and that there is proximate causation between the employee’s alleged negligence and the loss of his baby’s body. Freeman alleges, among other things, that the County’s employees failed to follow County policy regarding the proper procedures for handling the baby’s body and that this failure resulted in the use of the incinerator to negligently dispose of the baby’s body following his autopsy. Accordingly, we hold that the trial court erred in dismissing Freeman’s case for lack of subject-matter jurisdiction. See id.

We sustain Freeman’s first issue.

Damages

In issue two, Freeman argues that the trial court erred in granting the plea to the jurisdiction because he is entitled to recover damages for his personal injury, property loss, or both.

Here, Freeman seeks recovery of damages for his mental anguish and emotional distress resulting from the loss of his baby’s body. Texas courts generally do not recognize a legal duty to avoid negligently inflicting mental anguish. City of Tyler v. Likes, 962 S.W.2d 489, 494 (Tex.1997); Boyles v. Kerr, 855 S.W.2d 593, 597 (Tex.1993). However, the Supreme Court of Texas has noted that mental anguish damages may be compensable when they are a foreseeable result of a breach of a duty arising out of certain “special relationships,” including “a very limited number of contracts dealing with intensely emotional noncommercial subjects such as preparing a corpse for burial.” Likes, 962 S.W.2d at 496; see St. Elizabeth Hosp. v. Garrard, 730 S.W.2d 649, 654 (Tex.1987) (holding mental anguish damages allowed when stillborn’s body was disposed in unmarked, common grave without knowledge or consent of parents); Pat H. Foley & Co. v. Wyatt, 442 S.W.2d 904, 906 (Tex.Civ.App.-Houston [14th Dist.] 1969, writ refd n.r.e.) (holding mental anguish damages allowed when strong odor emanated from son’s casket at funeral). Special relationship cases generally have three common elements: (1) a contractual relationship between the parties, (2) a particular susceptibility to emotional distress on the part of the plaintiff, and (3) the defendant’s knowledge of the plaintiffs particular susceptibility to the emotional distress, based on the circumstances. Lions Eye Bank v. Perry, 56 S.W.3d 872, 877 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).

While there was no “contract” per se, the autopsy of Freeman’s baby was statutorily-mandated pursuant to article 49.25, section 6(a)(7) of the Texas Code of Criminal Procedure. See Tex.Code Crim. Proc. Ann. art. 49.25 § 6(a)(7). Freeman would be particularly susceptible to emotional distress faced with the autopsy of his 27-day-old baby, and Harris County should have known of Freeman’s particular susceptibility to the emotional distress, based on the circumstances. See Lions Eye Bank, 56 S.W.3d at 877.

Accordingly, we hold that the County’s relationship with Freeman constituted a “special relationship” under which mental anguish damages were allowable in the absence of physical injury. '

We sustain issue two.

Conclusion

Having held that Freeman has alleged sufficient facts to affirmatively show the trial court’s subject-matter jurisdiction and that the County’s relationship with Freeman constituted a “special relationship” allowing for mental anguish damages, we need not address Freeman’s third issue regarding the County’s alleged unauthorized and or unlawful acts.

We reverse the order of the trial court dismissing Freeman’s case for lack of subject-matter jurisdiction and remand the cause to the trial court.

      . Section 6(a)(7) provides in pertinent part that any medical examiner, or his duly authorized deputy, shall be authorized, and it shall be his duty, to hold inquests with or without a jury within his county, when the person is a child who is younger than six years of age and the death is reported under Chapter 264 of the Family Code. Tex.Code Crim. Proc. Ann. art. 49.25 § 6(a)(7) (Vernon Supp.2005).

      . Jones is not a party to this appeal.

      . Freeman stated that such tangible personal and real property included, but was not limited to, the County's "trash receptacles, incinerator, linens, gurneys, metal trays, morgue refrigerator units, corpse preservation units and any other equipment related to the performance of an autopsy, including the body of [the baby] entrusted to its care.”

      . Freeman noted that the alleged premises defect included, but was not limited to, "overly full corpse refrigeration units, gurneys, and trays, and untidy and/or disorganized autopsy rooms.”

      . The Act provides in pertinent part that,
      A governmental unit in the state is liable for:

      (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
      (A) the property damage, personal injury, or death arises from the operation or use of a

        motor-driven vehicle or motor-driven equipment; and
      (B) the employee would be personally liable to the claimant according to Texas law; and
      (2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.
      Tex. Civ. Prac. & Rem.Code Ann. § 101.021(1-2) (Vernon 2005) (emphasis added).