text:
    MERRILL LYNCH TRUST COMPANY FSB, et al., Appellants, v. Juan ALANIZ and Norma Alaniz, Appellees. In re Merrill Lynch Trust Company FSB, Merrill Lynch Life Insurance Company, and Henry Medina, Relators.
    Nos. 13-04-073-CV, 13-04-150-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Aug. 5, 2004.

      Charles A. Gall, Melinda H. Sims, Robert B. Gilbreath, Jeffrey L Crouch, Joel R. Sharp, Jenkens & Gilchrist, Dallas, for appellants.
    J.A. ‘Tony’ Canales, Nancy M. Simon-son, Hector A. Canales, Canales & Simon-son, P.C., Corpus Christi, for appellees.
    Before Chief Justice VALDEZ and Justices HINOJOSA and CASTILLO.
   OPINION

Opinion by

Chief Justice VALDEZ.

In this consolidated accelerated appeal and original proceeding, Merrill Lynch Trust Company FSB, Merrill Lynch Life Insurance Company, and Henry Medina (collectively, relators) seek relief from the trial court’s denial of their motion to compel arbitration. At issue here is whether, under agency principles and the doctrine of equitable estoppel, they can seek enforcement of an arbitration agreement contained in a contract to which they were not signatories. We dismiss the accelerated appeal and deny the petition for writ of mandamus.

I. FACTUAL AND PROCEDURAL HISTORY

A. The Alanizes’ Suit

In April 2003, appellees and real parties in interest, Juan and Norma Alaniz, filed the underlying action against relators. According to their original petition, in 1994, after the Alanizes recovered over two million dollars in an unrelated personal injury suit, relators solicited the Alanizes regarding the creation of an irrevocable trust. The Alanizes, who lacked experience or education in financial matters, trusts, and insurance policies, engaged their services.

Relators arranged for an attorney to draft an irrevocable trust agreement. The trust agreement identified the Alanizes as the settlors and the Merrill Lynch Trust Company as the trustee, owner of any life insurance policies owned by the trust, and beneficiary of each policy. The agreement also authorized the sale and purchase of Merrill Lynch Trust Company’s affiliates’ or subsidiaries’ products and the payment of fees and commissions to these affiliates or subsidiaries.

In reliance on relators’ representations, the Alanizes transferred over $200,000 to the Merrill Lynch Trust Company. As trustee, the company used these funds to purchase life insurance from its affiliate, the Merrill Lynch Life Insurance Company, through Medina as agent for the insurance company. This, the Alanizes contend, is unlawful self-dealing, which the Merrill Lynch Trust Company itself acknowledged in internal documents. The Alanizes allege violations of the property code, the insurance code, the business and commerce code, and the Texas Deceptive Trade Practices Act as well as breach of fiduciary duty, fraudulent conversion, theft, negligent misrepresentation, unjust enrichment, and negligence.

B. Motion to Compel Arbitration

On October 13, 2003, relators filed a motion to compel arbitration and stay proceedings. Neither the trust agreement nor the insurance policy contain an arbitration agreement. Rather, the arbitration agreements relators seek to enforce are contained in contracts to which rela-tors are not signatories. Relators contended in the motion, even though they were not signatories to the contracts containing arbitration agreements, they are entitled to seek arbitration under agency principles and the doctrine of equitable estoppel. In support of these arguments, relators relied on the following facts.

After the Alanizes recovered the money from the judgment in the personal injury suit, their attorney contacted Medina, a financial advisor employed by Merrill Lynch, Pierce, Fenner & Smith (MLPF & S), and asked him to explain the company’s investment services. Following various meetings, the Alanizes opened an account with MLPF & S by executing a Cash Management Account Application and Agreement (CMA agreement). The Alan-izes later opened a second account by executing a similar agreement. These CMA agreements contained ai’bitration agreements stating:

I [the Alanizes] agree that all controversies which may arise between us [the Alanizes and MLPF & S], including but not limited to those involving any transaction or the construction, performance, or breach of this or any other agreement between us, whether entered into prior, on or subsequent to the date hereof, shall be determined by arbitration.

Based on information provided by the Alanizes, MLPF & S generated a financial report for them, which described how they could use life insurance as part of their financial plan. Medina subsequently arranged a meeting between the Alanizes and Nick Harrison, a Merrill Lynch insurance specialist, who suggested the possibility of the Alanizes purchasing a life insurance policy.

The Alanizes decided to form a trust as a vehicle for purchasing the policy and created the trust by executing an irrevocable trust agreement. The Alanizes then authorized the transfer to the trust of money from one of their MLPF & S cash management accounts, which was later used to purchase a life insurance policy from Merrill Lynch Life Insurance Company, an affiliate of both MLPF & S and Merrill Lynch Trust Company. Several subsequent transfers were made from both of the Alanizes’ cash management accounts to the trust for the purposes of paying the annual premiums on the policy.

Relators argued in the motion that, despite “artful” pleading, the Alanizes’ claims against them actually originate with their MLPF & S accounts and the CMA agreements. This, they said, entitles them to enforce the arbitration agreements in the CMA agreements.

The trial court denied the motion to compel and stay the trial proceedings. Relators filed an accelerated appeal seeking relief under the Texas Arbitration Act. See Tex. Civ. PRAC. & Rem.Code Ann. § 171.098(a)(1) (Vernon Supp.2004) (allowing interlocutory appeal from order denying motion to compel arbitration where motion made under Texas Arbitration Act). They also filed a petition for writ of mandamus seeking relief under the Federal Arbitration Act. In both of the proceedings before us, relators contend that agency principles and the doctrine of equitable estoppel entitle them to seek arbitration despite the fact they are not signatories to the CMA agreements containing the arbitration clauses.

II. ANALYSIS

A. Jurisdiction over Appeal

The Alanizes contend, as an initial matter, that we do not have jurisdiction over the accelerated appeal under section 171.098(a)(1) of the civil practice and remedies code because the Texas Arbitration Act does not govern the arbitration agreement at issue. See Tex. Civ. Peac. & Rem. Code Ann. § 171.098(a)(1). Either the Federal Arbitration Act or New York law governs the dispute over the applicability of the arbitration provision, according to the Alanizes. The arbitration agreements do not explicitly invoke either the Federal Arbitration Act or the Texas Arbitration Act, although the CMA agreements contain New York choice-of-law provisions.

A trial court’s order denying a motion to compel arbitration may be reviewed by interlocutory appeal where the motion is brought under the Texas Arbitration Act. Tex. Civ. PRAC. & Rem.Code Ann. § 171.098(a)(1); see In re MONY Sec. Corp., 83 S.W.3d 279, 282 (Tex.App.-Corpus Christi 2002, orig. proceeding). Mandamus is the appropriate remedy, however, when the trial court improperly denies a motion to compel arbitration under the Federal Arbitration Act. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272-73 (Tex. 1992) (orig.proceeding); In re MONY Sec. Corp., 83 S.W.3d at 282.

The Federal Arbitration Act governs an arbitration agreement contained in a contract “evidencing a transaction involving commerce.” 9 U.S.C. § 2 (2003); Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 268, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995); Jack B. Anglin Co., 842 S.W.2d at 269-70. This provision is coextensive with the reach of the Commerce Clause of the United States Constitution. Allied-Bruce Terminix Cos., 513 U.S. at 273-77, 115 S.Ct. 834; In re L & L Kempwood Assocs., 9 S.W.3d 125, 127 (Tex.1999) (orig.proceeding); In re MONY Sec. Corp., 83 S.W.3d at 282. That is, a contract evidences a transaction involving commerce if it involves or affects interstate commerce. Allied-Bruce Terminix Cos., 513 U.S. at 277-81, 115 S.Ct. 834; In re MONY Sec. Corp., 83 S.W.3d at 282.

Here, relators rely on the arbitration agreement contained in the CMA agreements in contending the Alanizes’ claims should be submitted to arbitration. According to Medina’s affidavit, the CMA agreements governed the cash management accounts, which were brokerage accounts through which investments were made in national securities markets, including the purchase of mutual funds that bought and sold stocks traded on the New York Stock Exchange. This establishes that the CMA agreements are contracts “evidencing a transaction involving commerce.” See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Wilson, 805 S.W.2d 38, 39 (Tex.App.-El Paso 1991, no writ) (securities account agreement is contract for purpose of trading securities and clearly involves commerce within scope of Federal Arbitration Act).

Because the Federal Arbitration Act governs the CMA. agreement and the issue of whether the arbitration agreements contained therein apply to the Alanizes’ claims, mandamus is the appropriate vehicle for relief. That the CMA agreements had a New York choice-of-law provision does not bar application of the Federal Arbitration Act because the choice-of-law provision did not explicitly exclude the application of federal law. See In re L & L Kempwood Assocs., 9 S.W.3d at 127-28; In Re Valle Redondo, S.A. De C.V., 47 S.W.3d 655, 661 (Tex.App.-Corpus Christi 2001, orig. proceeding). Accordingly, we dismiss the interlocutory appeal for lack of jurisdiction and proceed to the merits of the petition for writ of mandamus. See In re MONY Sec. Corp., 83 S.W.3d at 283 (dismissing interlocutory appeal and addressing mandamus action where arbitration agreement governed by Federal Arbitration Agreement).

B. Petition for Writ of Mandamus

Mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law where there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig.proceeding). Relators must establish that either the trial court could reasonably have reached only one decision concerning the resolution of certain factual issues or matters committed to its discretion or the trial court failed to analyze or apply the law correctly to the facts. Id. at 839-40.

The party seeking to compel arbitration must first establish the existence of an arbitration agreement and that the claims asserted fall within the scope of the agreement. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.2003); In re MONY Sec. Corp., 83 S.W.3d at 283. The initial burden of establishing the existence of an arbitration agreement includes proving that the party seeking to enforce the agreement was a party to the agreement or otherwise had the right to enforce it. Mohamed v. Auto Nation USA Corp., 89 S.W.3d 830, 836 (Tex.App.-Houston [1st Dist.] 2002, orig. proceeding). A party that is not a signatory to an arbitration agreement may enforce it if the party falls into a recognized exception under general equitable or contract law that would allow such enforcement. Id. at 836.

Here, relators acknowledge they are not signatories to the agreements they seek to enforce. The question becomes whether relators have carried their burden to establish that they are entitled to enforce the arbitration agreements under general equitable or contract law.

1. Agency

Relators contend they are entitled to enforce the arbitration provision in the CMA agreements based on agency principles. In particular, they say Medina is entitled to arbitration as an employee of MLPF & S, and Merrill Lynch Trust Company and Merrill Lynch Life Insurance Company are entitled to arbitration as affiliates of MLPF & S.

Under ordinary contract and agency principles, nonsignatories of an arbitration agreement may be bound by the agreement and entitled to enforce it. In re Merrill Lynch Trust Co. FSB, 123 S.W.3d 549, 557 (Tex.App.-San Antonio 2003, orig. proceeding); McMillan v. Computer Translation Sys. & Support, Inc., 66 S.W.3d 477, 481 (Tex.App.-Dallas 2001, orig. proceeding); Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 7 F.3d 1110, 1121 (3d Cir.1993); Arnold v. Arnold Corp., 920 F.2d 1269, 1281-82 (6th Cir.1990). When the principal is bound by a valid arbitration agreement, “its agents, employees, and representatives are covered by that agreement.” McMillan, 66 S.W.3d at 481. An agent may enforce an arbitration agreement to which his principal was a signatory “when all the agent[’s] allegedly wrongful acts relate to [his] behavior as agent[ ] of the principal signatory company, and those acts were within the scope of the claims covered by the arbitration provisions for which the principal would be liable.” In re Merrill Lynch Trust Co. FSB, 123 S.W.3d at 557.

Relators contend this case is analogous to Pritzker v. Merrill Lynch, Pierce, Fen-ner & Smith, Inc., in which the court found agency principles entitled an employee and an affiliate of MLPF & S to enforce the arbitration agreement contained in a Cash Management Account for Retirement Plans Agreement. Pritzker, 7 F.3d at 1112. In Pritzker, the plaintiffs, trustees of a pension plan with MLPF & S cash management accounts, sued MLPF & S; a financial consultant employed by MLPF & S; and an affiliate of MLPF & S, Merrill Lynch Asset Management, Inc. (MLAM). Id. MLPF & S, MLAM, and the consultant sought to enforce the arbitration agreement contained in the cash management agreement. Id. at 1113. One of the issues on appeal was whether MLAM and the consultant could rely on agency principles in seeking arbitration because neither MLAM nor the consultant was a signatory to the contract containing the arbitration provision. Id. at 1121-22.

The court of appeals concluded the consultant was covered under the arbitration agreement under “traditional agency theory.” Id. at 1121. The court relied on case law applying agency theory where the non-signatory employees were integral to and responsible for the alleged wrongful acts of the signatory principal. Id. at 1121-22 (citing Letizia v. Prudential Bache Sec., 802 F.2d 1185, 1188 (9th Cir.1986); Trott v. Paciolla, 748 F.Supp. 305, 309 (E.D.Pa.1990)). The court found MLAM likewise fell within the scope of the arbitration agreement because it was clear from the record that MLAM was obligated to perform certain services with the cash management accounts opened by the trustees, and may have been an alter ego of MLPF & S. Id. at 1122. The court relied heavily on the plaintiffs’ theory of liability demonstrating that MLAM’s interests were directly related to, if not predicated upon, MLPF & S’s conduct. Id.

The case before us is factually distinct. Unlike the plaintiffs in Pñtzker, the Alan-izes raised no claims against MLPF & S. Their petition does not allege any misconduct by MLPF & S. The petition also contains no allegations of misconduct by Medina in his capacity as financial advisor for MLPF & S. That is, none of the allegations mention any of the financial advice Medina, as an employee of MLPF & S, gave the Alanizes. Notably, the Alanizes’ petition explicitly states that their claims against Medina are based solely on his role as insurance agent for Merrill Lynch Life Insurance Company in the sale of the insurance policy.

Relators contend Medina was compensated for the sale of the insurance policy by MLPF & S in support of their position and direct our attention to an affidavit signed by Medina in which he states he received his commission from MLPF & S. However, during oral arguments, relators conceded that Merrill Lynch Life Insurance Company paid MLPF & S for Medina’s sale of the policy and that MLPF & S in turn paid Medina. Thus, although Medina received the money from MLPF & S, the funds for Medina’s compensation were provided by Merrill Lynch Life Insurance Company.

With respect to Merrill Lynch Life Insurance Company and Merrill Lynch Trust Company, the record does not show they were compelled to provide services to the Alanizes under the cash management accounts the Alanizes held with MLPF & S or that these affiliates were merely acting as alter egos of MLPF & S in the services they provided to the Alanizes. We cannot say here that the theory of liability against these two affiliates is predicated upon any misconduct by MLPF & S, particularly because none of the claims against these affiliates involves allegations of misconduct by MLPF & S.

The misconduct alleged in the Alanizes’ petition is that the Merrill Lynch Trust Company, as trustee, engaged in improper self-dealing by purchasing for the trust a life insurance policy from its affiliate and that relators later attempted to conceal the wrongdoing. Neither the petition nor the record shows that MLPF & S had any role in that transaction or that the Alanizes’ complaints in actuality are based on services rendered by MLPF & S through Medina. Accordingly, the trial court did not abuse its discretion in failing to apply agency theory in this instance. See In re Merrill Lynch Trust Co. FSB, 128 S.W.3d at 557 (finding no abuse of discretion in denying motion to arbitrate made by Medina and Merrill Lynch Trust Company as purported agents of MLPF & S where no claims were made against MLPF & S and there was no evidence they were working on behalf of MLPF & S on matters covered by CMA agreement).

2. Equitable Estoppel

Relators also contend they are entitled to enforcement of the arbitration agreements under the doctrine of equitable estoppel. In particular, they contend the misconduct the Alanizes complained of presumes the existence of the CMA agreements and that their petition raises allegations of substantially interdependent and concerted misconduct by relators and MLPF & S.

The doctrine of equitable es-toppel allows a nonsignatory party to compel arbitration in two situations. Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524, 527 (5th Cir.2000); In re Merrill Lynch Trust Co. FSB, 123 S.W.3d at 555.

First, equitable estoppel applies when the signatory to a written agreement containing an arbitration clause must rely on the terms of the written agreement in asserting its claims against the nonsignatory. When each of a signatory’s claims against a nonsignatory makes reference to or presumes the existence of the written agreement, the signatory’s claims arise out of and relate directly to the written agreement, and arbitration is appropriate. Second, application of equitable estoppel is warranted when the signatory to the contract containing an arbitration clause raises allegations of substantially interdependent and concerted misconduct by both the nonsignatory and one or more of the signatories to the contract.

MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir.1999) (internal quotations and citations omitted); see also Grigson, 210 F.3d at 527; In re Merrill Lynch Trust Co. FSB, 123 S.W.3d at 555. The application of this doctrine falls within the trial court’s discretion. In re Merrill Lynch Trust Co. FSB, 123 S.W.3d at 555.

The Alanizes’ did not make reference to or otherwise rely on the terms of the CMA agreement in asserting any of their claims against the relators. No mention in the petition is made of the CMA agreements. Their claims are based on the purchase by the Merrill Lynch Trust Company as trustee of a life insurance policy from the Merrill Lynch Life Insurance Company through Medina. These claims do not raise or rely on the transaction between the Alanizes and MLPF & S governed by the CMA agreement.

Relators direct our attention to the fact that the funds used to purchase the life insurance policy were at some point in the cash management accounts the Alanizes had with MLPF & S. However, whether the funds were ever in the cash management accounts with MLPF & S has no bearing on the question of whether the trust company’s purchase of a life insurance policy from its affiliate was improper.

Relators also contend the creation of the trust, and hence the relationship between the Alanizes and the Merrill Lynch Trust Company, was dependent on their status as customers of MLPF & S. This statement is supported by the record. However, the deposition testimony of Richard Morris, vice president of the Merrill Lynch Trust Company, establishes, although the trust company does not accept a life insurance trust unless there is a relationship with MLPF & S, that an actual cash management account (and, hence, a CMA. agreement) is not necessarily required. That is, the Merrill Lynch Trust Company would accept funds from sources other than cash management accounts with MLPF & S to purchase life insurance policies. Although the Alanizes’ relationship with the Merrill Lynch Trust Company may have been initiated as a result of their relationship with MLPF & S, the relationship with the trust company was not dependent on the establishment of or transfers of money from the cash management accounts. Thus, the Alanizes’ claims do not presume the existence of the CMA agreement.

Similarly, the Alanizes have not alleged claims of misconduct by MLPF & S, much less substantially interdependent and concerted misconduct by MLPF & S and rela-tors. The record does not support the conclusion that either the Merrill Lynch Trust Company or the Merrill Lynch Life Insurance Company had any duties or responsibilities to the Alanizes under the CMA agreements. The trust agreement does not show that MLPF & S had any duties or responsibilities in the management of the trust. Although Medina gave the Alanizes’ financial advice and even suggested the purchase of a life insurance policy as an investment option, his conduct as an employee of MLPF & S is not the subject of the Alanizes’ claims. Their complaint is not that the advice to invest in a life insurance policy was improper. Rather, they allege that the Merrill Lynch Trust Company’s choice in purchasing a policy from its affiliate through Medina solely in his capacity as an insurance agent resulted in unlawful self-dealing by the trustee.

Relators also allege, although Medina may have been acting as an insurance agent, he had not abandoned his role as financial advisor employed by MLPF & S when he handled the purchase of the insurance policy for the trust company. However, the record does not support this conclusion. Nothing in the record shows that MLPF & S is in the business of selling insurance policies or serving as agent for insurance companies.

Relators have failed to establish that the Alanizes relied on the terms of the CMA agreement in asserting their claims against relators or that the Alanizes raise claims of substantially interdependent and concerted misconduct by MLPF & S and relators. Accordingly, the trial court did not abuse its discretion in refusing to apply the doctrine of equitable estoppel.

III. CONCLUSION

Relators bore the initial burden of establishing before the trial court that they had the right to enforce the arbitration agreements contained in the CMA agreements. See Mohamed, 89 S.W.3d at 836. The trial court did not abuse its discretion in determining relators failed to meet this initial burden. Accordingly, we deny the petition for writ of mandamus.

Concurring opinion by Justice CASTILLO.

CASTILLO, Justice,

concurring.

I concur in the result only.

      . Tex. Civ. Prac. & Rem.Code Ann. §§ 171.001-171.098 (Vernon Supp.2004).

      . 9 U.S.C. §§ 1-16 (2004).

      . The Alanizes note the Fifth Circuit Court of Appeals has recognized a "tension" in decisions analyzing the application of agency principles to determine whether agents of signatories are entitled to enforce arbitration agreements. Westmoreland v. Sadoux, 299 F.3d 462, 466 (5th Cir.2002). That court stated that, despite the Third Circuit’s position in Pritzker that mere agency principles suffice:
      a nonsignatory cannot compel arbitration merely because he is an agent of one of the signatories. An agent is not ordinarily liable under the contract he executes on behalf of his principal, so long as his agency is disclosed, but he is personally liable if his acts breach an independent duty. If he seeks to compel arbitration, he is subject to the same equitable estoppel framework left to other nonsignatories.

        Westmoreland, 299 F.3d at 466-67 (criticizing agency analysis performed in Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 7 F.3d 1110 (3d Cir.1993)). We need not and do not address this "tension” because we conclude, even under Pritzker, that relators are not entitled to enforce the arbitration agreements contained in the CMA agreements.


source: Caselaw Access Project

author: Justice BAIRD.

license: Public Domain

text:
    Richard VELA, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 13-03-102-CR.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    Aug. 12, 2004.
    Rehearing Overruled Oct. 12, 2004.

      James R. Lawrence, Corpus Christi, for appellant.
    Richard Vela Jr., Sugar Land, pro se.
    Joe C. Lockhart, Asst. Dist. Atty., Carlos Valdez, Nueces County Dist. Atty., Corpus Christi, for state.
    Before Chief Justice VALDEZ and Justices CASTILLO and BAIRD.

      . Former Texas Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to the government code. See Tex. Gov’t Code Ann. § 74.003 (Vernon Supp. 2004)

   OPINION

Opinion by

Justice BAIRD.

Appellant was charged by indictment with three counts of sexual assault and one count of aggravated assault. A jury acquitted appellant of the sexual assault offenses alleged in counts I and II but convicted appellant of the sexual assault alleged in count III and the aggravated assault alleged in count IV. The jury assessed punishment at twelve years confinement and a fine of $5,000 on count III, and fourteen years confinement and a fine of $5,000 on count IV. We reverse and remand the judgment of the trial court as to count III and affirm the judgment as to count IV.

I. Ineffective Assistance of Counsel.

Points of error one, two, and three contend defense counsel was ineffective. The right to the effective assistance of counsel is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, section 10 of the Texas Constitution. The well-known two-prong standard of Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is utilized when reviewing ineffective assistance of counsel claims. The reviewing court must first decide whether trial counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. Id. at 684, 104 S.Ct. 2052. If counsel’s performance was deficient, the reviewing court must decide whether there is a “reasonable probability” the result of the trial would have been different but for counsel’s deficient performance. Id. A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Id. Absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. at 687, 104 S.Ct. 2052; Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex.Crim.App.1993); Boyd v. State, 811 S.W.2d 105, 109 (Tex.Crim.App.1991).

The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App.1998). Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded and affirmatively demonstrated in the appellate record. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996). When determining the validity of an ineffective assistance of counsel claim, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App.1984). This deferential review begins with the strong presumption that counsel’s actions and decisions were reasonably professional and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). Appellant has the burden of rebutting this presumption, and generally 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); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App.1999) (trial record generally not sufficient to establish an ineffective assistance of counsel claim).

In the instant case, no motion for rehearing was filed. Consequently, no record has been developed to support the claims raised in these three points of error. The record, therefore, does not rebut the strong presumption that counsel’s actions and decisions were reasonably professional and were motivated by sound trial strategy. Jackson, 877 S.W.2d at 771. Consequently, the first prong of Strickland has not been met.

Additionally, appellate counsel does not argue that any of the alleged deficient conduct was “sufficient to undermine confidence in the outcome” of appellant’s trial. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Consequently, the second prong of Strickland has not been met. Accordingly, the first, second, and third points of error are overruled.

II. EXCLUSION OF EXPERT TESTIMONY.

The fourth point of error contends the trial judge erred by not permitting the testimony of Cheryl Hartzendorf, appellant’s proffered expert witness.

A. Factual Summary.

During its case-in-chief, the State called Sonia Eddleman as an expert witness. Eddleman was the director of the Sexual Assault Nurse Examiner (S.A.N.E.) Program at Doctor’s Regional Medical Center. She had been a registered nurse for eighteen years and was certified as a S.A.N.E. with the Texas Attorney General’s office. She had been recognized as an expert and testified many times prior to appellant’s trial. Eddleman testified that she examined the complainant and prepared a report that the complainant had been orally, sexually, and anally assaulted by appellant. Eddleman stated the complainant had a one-and-a-half centimeter “oozing tear” to her anus. The complainant did not exhibit any other genital injuries. However, according to Eddleman this did not indicate that the complainant had not been sexually assaulted because “92 to 95 percent of the time patients that are either eonsensually sexually active or have been sexually assaulted do not have genital injuries.”

At the time of her direct examination, Eddleman had reviewed only the medical report she prepared following her examination of the complainant. However, during Eddleman’s cross-examination, defense counsel admitted into evidence the complainant’s prior medical records from Christus Spohn Hospital indicating she had rectal pain and tenderness. Eddle-man testified the rectal tear was possibly caused by constipation, but was “not something ... commonly seen with diarrhea or constipation.”

At the conclusion of the cross-examination, Eddleman was asked to refer to the Physician’s Desk Reference and tell the jury what conditions Klonopin and Yaltrex, two medications prescribed for the complainant, were used to treat. The State objected and a discussion was held outside the jury’s presence. During this discussion, defense counsel stated he wanted to ask Eddleman if Yaltrex was prescribed for venereal diseases that cause rectal tears. At this time the following exchange occurred:

TRIAL JUDGE: Well, [Eddleman] just stated to me that as far as she knows there’s no connection between a tear and the medication that may be given to a person. Until you have someone who can make that connection, I will sustain the objection.
Do you have anything else.
DEFENSE COUNSEL: May I call an expert witness, Judge?
TRIAL JUDGE: Well, we’re here with this witness right now.
DEFENSE COUNSEL: Well, can I call an expert to rebut what she’s telling you?
TRIAL JUDGE: You can call any witness that you want, but right now we’re with this witness.
Do you have anything else of this witness?
DEFENSE COUNSEL: No, Judge.

To rebut Eddleman’s testimony, defense counsel called Cheryl Hartzendorf. Pursuant to Texas Rule of Evidence 705(b), the State requested a hearing outside the jury’s presence. Tex.R. Evid. 705(b). At that hearing, Hartzendorf testified she was an R.N., Certified Legal Nurse Consultant. Hartzendorf owned an independent legal nurse consulting business and had spent 400 hours at the Medical Legal Nurse Institute in Houston to be a Certified Legal Nurse Consultant. She had participated in twenty-five to thirty cases, both criminal and civil. She had testified three times previously in civil trials and once in a criminal trial alleging sexual assault and involving DNA evidence. Pri- or to her testimony Hartzendorf reviewed the medical records of the complainant from both Corpus Christi Medical Center and Christus Spohn Memorial Medical Center, and the D.P.S. analysis of the swabs and hair combing taken by Eddle-man from the complainant.

On cross-examination, Hartzendorf stated she volunteered to testify for appellant because “[t]here’s no evidence to indicate that this particular person, no sperm, no head hair combings, no vaginal swabs, fingernail swabs, oral smears, vaginal smears, anal smears that — there’s no DNA evidence linking this particular — [appellant] to the alleged rape of [the complainant].” Hartzendorf relied upon her general nursing experience to form her opinion. Hartzendorf conceded she had not -written any articles for peer review and was not aware of any published articles holding the view that if there is not DNA or physical evidence there is no rape.

During the Rule 705(b) hearing, the State was permitted to recall Eddleman to “challenge” Hartzendorfs qualifications. When asked if she was “aware of any scientific theory that holds to the principle if there is no DNA evidence, if there is no hair evidence, then there is no rape?” Ed-dleman responded in the negative. At the conclusion of this testimony, the State argued Hartzendorfs testimony should be excluded. Defense counsel argued the testimony was necessary to rebut Eddleman’s testimony and to establish there was no link between the complainant’s sexual assault, if any, and appellant. The trial judge sustained the objection, and Hart-zendorf was not permitted to testify before the jury.

B. Argument and Analysis.

To be admissible, expert testimony must assist the trier of fact in understanding the evidence or determining a fact in issue. Tex.R. Evid. 702. The expert may testify in the form of opinion or inference. Tex.R. Evid. 703. We review the decision of the trial judge to admit or exclude expert testimony for an abuse of discretion. Sexton v. State, 93 S.W.3d 96, 99 (Tex.Crim.App.2002). Trial judges abuse their discretion by acting without reference to any guiding rules and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990).

Once a particular type of scientific evidence is well established as reliable, a court may take judicial notice of that fact, thereby relieving the proponent of the burden of producing evidence on that question. Emerson v. State, 880 S.W.2d 759, 764 (Tex.Crim.App.1994). Clearly, medical testimony in sexual assault cases, whether by a nurse, sexual assault examiner, or physician, is the type of scientific evidence that is well established as reliable. Gregory v. State, 56 S.W.3d 164, 179 (Tex.App.Houston [14th Dist.] 2001 pet. dism’d) (holding that nurse was qualified to testify as expert) (and cases cited therein).

As we read the record and the State’s brief, the contention at trial, and again on appeal, and the reason for the trial judge’s decision, is that the testimony was not reliable primarily because Hart-zendorf had no valid scientific theory to support her opinion, and therefore, was not qualified. Special knowledge which qualifies a witness to give an expert opinion may be derived from specialized education, practical experience, a study of technical works, or a combination thereof. Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App.2000). In fact, a witness may be qualified solely on the basis of practical experience. Carter v. State, 5 S.W.3d 316, 319-20 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd) (citing Lauria v. Nat’l R.R. Passenger Corp., 145 F.3d 593, 598 (3d Cir.1998) (stating witnesses can qualify as experts under Rule 702 on the basis of practical experience alone, and a formal degree, title, or educational speciality is not required)).

In the instant case, Hartzendorf had the requisite training, background and education to qualify as an expert witness. Further, as noted above, she stated she relied upon her general nursing experience to form her opinion. Consequently, we hold she was qualified to testify as an expert witness in the instant case. Carter, 5 S.W.3d at 319-20.

The trial judge erred in sustaining the State’s “challenge” to Hartzendorf s qualifications in at least three respects. First, since practical experience alone is sufficient to qualify one as an expert, there is necessarily no requirement that the witness have written or read any articles subject to peer review before stating an opinion. Pipitone v. Biomatrix, Inc., 288 F.3d 239, 245-46 (5th Cir.2002) (holding lack of literature on subject did not undermine expert’s qualifications because trial judge could rely on first-hand observations and professional experience to assess expert’s reliability) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 151, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (“It might not be surprising in a particular case, for example, that a claim made by a scientific witness has never been the subject of peer review, for the particular application at issue may never previously have interested any scientist.”)). In other words, simply because there is no published article on a particular subject does not mean there is insufficient practical experience to support an opinion on the subject. Common sense tells us this would be particularly true when the expert testifies regarding a negative finding.

Second, we are not aware of any authority permitting the party against whom the expert testimony is offered to use its own expert to challenge the qualifications of the opponent’s expert. Were this the rule, the proponent could never establish an expert’s qualifications because the opposing expert who had previously testified would necessarily opine that the expert was not qualified — were the proponent’s expert qualified, the witnesses would have come to the same conclusion. Rule 705 provides the opponent an opportunity to determine the foundation of the expert’s opinion. Alba v. State, 905 S.W.2d 581, 588 (Tex.Crim.App.1995). Specifically, Rule 705(b) limits the voir dire of the expert to “the underlying facts or data upon which the opinion is based.” See Tex.R. Evid. 705(b). Under subsection (c), if the judge determines the “underlying facts or data do not provide a sufficient basis for the expert’s opinion under Rule 702 or 703, the opinion is inadmissible.” See Tf,x.R. Evid. 705(c). In the instant case, Hartzendorf based her opinion on the medical records of the complainant, both before and after the alleged assault, and the DPS analysis of the swabs submitted to its lab. Obviously, this is the type of record relied upon by experts to form an opinion.

Third, to the extent the trial judge based his decision to exclude Hart-zendorfs testimony on the basis that he. personally did not agree with her opinion or did not find her credible was an abuse of discretion. The trial judge as gatekeeper is to deterihine the reliability, relevancy, and admissibility of scientific evidence. Hartman v. State, 946 S.W.2d 60, 63 (Tex.Crim.App.1997). However, the trial judge does not pass on the credibility of the witness or her ultimate opinion. Whether the expert’s testimony and/or opinion is credible is the function of the jury. Tex. Code Ckim. PROC. Ann. art. 38.04 (Vernon 1979) (jury exclusive judge of weight to be given testimony). The State’s criticism of Hartzendorfs qualifications did not justify the trial court in excluding the testimony. Muhammad, v. State, 46 S.W.3d 493, 510 (Tex.App.-El Paso 2001, no pet.). In the instant case, as in Muhammad, the State’s criticisms of Hartzendorf “should have been explored on cross-examination, as affecting the weight to be given [her testimony], not its admissibility.” Id.

There can be no doubt that the subject of Hartzendorfs opinion was relevant. Just as Eddleman was permitted to testify that the lack of genital injuries did not indicate that the complainant had not been sexually assaulted because “92 to 95 percent of the time patients that are either consensually sexually active or have been sexually assaulted do not have genital injuries,” Hartzendorf should have been permitted to testify that no sexual assault occurred. One party cannot proffer expert testimony and subsequently argue successfully that the testimony was not relevant when -the opposing party seeks to offer expert testimony on the same subject which reaches a different conclusion.

For these reasons, we find the trial judge, in excluding Hartzendorfs testimony, acted without reference to any guiding rules and principles. Montgomery, 810 S.W.2d at 380. Accordingly, we hold the trial judge abused his discretion in excluding Hartzendorfs testimony.

C. Harm Analysis.

Having determined the trial judge erred in excluding Hartzendorfs testimony, we must now determine if appellant was harmed. As a general rule, Rule 44.2(b) of the Texas Rules of Appellate Procedure prescribes the harm analysis for error stemming from the erroneous admission or exclusion of evidence. Tex. R.App. P. 44.2(b); Muhammad, 46 S.W.3d at 509. Under that rule, error that does not affect a substantial right must be disregarded. A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) (citing Kotteakos v. U.S., 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). An error that has no influence or only a slight influence on the verdict is harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998). However, if the reviewing court is unsure whether the error affected the outcome, the court should treat the error as harmful, i.e., as having a substantial and injurious effect or influence in determining the jury’s verdict. Webb, 36 S.W.3d at 182. Neither party has the burden of proof under Rule 44.2(b). Id. Rather, the appellate court will examine the record for purposes of determining harm. Id.

When examining the appellate record, we should consider the following factors: (1) the evidence admitted, (2) the nature of the evidence supporting the verdict, including whether this evidence was overwhelming; (3) the character of the alleged error and how it might be considered in connection with other evidence in the case; (4) the jury instructions; (5) the State’s theory and any defensive theories; (6) closing arguments; (7) voir dire; and, (8) whether the State emphasized the error. Motilla v. State, 78 S.W.3d 352, 355-56 (Tex.Crim.App.2002). We will consider each of these factors in connection with the instant case.

First, we review the evidence admitted at trial. The complainant testified that she was sexually assaulted by appellant orally, vaginally, and anally. Eddleman corroborated the vaginal penetration despite the lack of genital injuries because “92 to 95 percent of the time patients that are either consensually sexually active or have been sexually assaulted do not have genital injuries.” Eddleman’s testimony regarding the oozing tear supported the State’s theory of anal penetration.

Second, we review the nature of the evidence supporting the verdict, including whether this evidence was overwhelming. The jury acquitted appellant of the allegations in count I and count II which alleged appellant sexually assaulted the complainant orally and vaginally. However, the jury convicted appellant of sexual assault by anal penetration. Therefore, we cannot say the evidence was overwhelming.

Third, we analyze the character of the alleged error and how it might be considered in connection with other evidence in the case. This we feel is the critical factor in our analysis. As stated above, Hartzen-dorf s testimony was both reliable and relevant. Her testimony contradicted the complainant and Eddleman’s testimony, and corroborated appellant’s testimony. Hartzendorf s testimony, therefore, was of great potential benefit to appellant. Consequently, this factor militates heavily in favor of finding harm.

Fourth, we consider the jury instructions. The jury instructions do not mention expert testimony. Accordingly, this is not a factor in our analysis.

Fifth, we review the State’s theory and any defensive theories. As can be seen above, the theories were totally opposite of one another. Eddleman was used convincingly to support the State’s theory while Hartzendorf was not permitted to testify and undermine that theory. Consequently, this factor militates heavily in favor of finding harm.

Sixth, we analyze the closing arguments. Defense counsel argued there was no evidence of oral or vaginal penetration. He did not mention Eddleman or the oozing tear. The State stressed the testimony of Eddleman and the oozing tear to corroborate the complainant’s testimony and each theory of sexual assault. Consequently, this factor militates in favor of finding harm.

Seventh, we consider the voir dire. The trial judge identified Eddleman as a witness and introduced her to the venire. During the State’s voir dire, the prosecutor mentioned that Eddleman would be testifying to “medical evidence.” No veniremember indicated a problem considering medical evidence as credible. From this exchange, we conclude each venire-member actually selected to serve on the jury was capable of giving weight to Ed-delman’s testimony. Similarly, we con-elude those jurors would have probably given some weight to Hartzendorf s testimony had they been permitted to hear it. Consequently, this factor militates in favor of finding harm.

Eighth, we consider whether the State emphasized the error. The error was not emphasized by the State.

When the Motilla factors are considered, we cannot say the error in excluding Hartzendorfs testimony had no influence or only a slight influence on the verdict related to count III of the indictment alleging sexual assault by anal penetration. Johnson, 967 S.W.2d at 417. Consequently, we must treat the error as harmful. Webb, 36 S.W.3d at 182. However, this finding of harm is limited to count III which alleged sexual assault by anal penetration. The error was harmless as to count IV which alleged aggravated assault. There is no indication in the record that Hartzendorf would have testified about the neck injuries. Consequently, we hold the error had no or only slight influence on the allegations of aggravated assault in count IV of the indictment. Accordingly, the error was harmless in relation to count IV. We overrule appellant’s fourth issue.

III. Aggravated Assault.

The fifth and final point of error contends the evidence is legally insufficient to support the jury’s verdict. To evaluate the legal sufficiency of the evidence, we view all the record evidence and reasonable inferences therefrom in the light most favorable to the prosecution to determine whether a rational jury could have made the challenged finding beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Teer v. State, 923 S.W.2d 11, 17 (Tex.Crim.App.1996). The jury is entitled to resolve any conflicts in the evidence, to evaluate the credibility of witnesses, and to determine the weight of particular evidence. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996).

A person commits simple assault by intentionally, knowingly, or recklessly causing bodily injury to another. Tex. Pen.Code Ann. § 22.01(a)(1) (Vernon Supp.2004). A person commits aggravated assault by committing assault and using or exhibiting a deadly weapon during the commission of the assault. Id. § 22.02(a)(2). Count IV of the indictment alleged appellant’s hands constituted a deadly weapon. Body parts, such as hands and knees, may be deadly weapons based on their manner of use or intended use and their capacity to produce death or serious bodily injury. Turner v. State, 664 S.W.2d 86, 90 (Tex.Crim.App. [Panel Op.] 1983); Gillum v. State, 888 S.W.2d 281, 288 (Tex.App.-El Paso 1994, pet. ref'd). To determine whether something is a deadly weapon, the jury may consider all the surrounding facts, including the defendant’s words and whether the victim feared death or serious bodily injury. Blain v. State, 647 S.W.2d 293, 294 (Tex.Crim.App.1983); English v. State, 647 S.W.2d 667, 669 (Tex.Crim.App.1983); Denham v. State, 574 S.W.2d 129, 131 (Tex.Crim.App.1978); Hernandez v. State, 649 S.W.2d 720, 722 (Tex.App.-Amarillo 1983, no pet.). The State does not have to prove that the complainant actually sustained serious bodily injuries. Jefferson v. State, 974 S.W.2d 887, 892 (Tex.App.-Austin 1998, no pet.); Clark v. State, 886 S.W.2d 844, 845 (Tex.App.-Eastland 1994, no pet.). The State must only prove that the hands were capable of causing serious bodily injury in the way they were used or intended to be used. Hill v. State, 913 S.W.2d 581, 584 (Tex.Crim.App.1996); Jefferson, 974 S.W.2d at 892; Gillum, 888 S.W.2d at 288.

The complainant testified appellant choked her several times during the criminal episode, and at one point “I started blacking out and couldn’t breathe and thought ‘My God, he’s going to kill me.’ ” Peace Officer Nancy Lee testified that the use of hands around a person’s neck to choke that person constitutes the use of a deadly weapon. Based upon this testimony, we hold the jury could have rationally concluded that appellant’s hands, in the manner of their use or intended use were capable of causing serious bodily injury. The fifth point of error is overruled.

IV. Pro Se Appellate Brief.

Appellant has filed a pro se brief alleging three supplemental points of error. Appellants are not allowed “hybrid representation” on appeal. In other words, an appellant and his appellate counsel cannot present independent points of error to an appellate court. Patrick v. State, 906 S.W.2d 481, 498 (Tex.Crim.App.1995) (appellant’s supplemental brief presented nothing for review). Accordingly, these supplemental points are overruled.

The judgment of the trial court as to count III is reversed and remanded, and the judgment of the trial court as to count IV is affirmed.

        . An exception to "sound trial strategy” presumption exists when the record clearly confirms that no reasonable trial counsel would have engaged in the complained of conduct or omission. Vasquez v. State, 830 S.W.2d 948, 951 (Tex.Crim.App.1992); Chavez v. State, 6 S.W.3d 66, 71 (Tex.App.-San Antonio 1999, pet. ref’d); Weeks v. State, 894 S.W.2d 390, 392 (Tex.App.-Dallas 1994, no pet.).

      . Eddleman described an oozing tear as "a break in the skin, and oozing gives you the description that it was still bleeding, it was still fresh. It hadn’t healed or began that healing process yet.”

      . In a single sentence, the State further argues: "Moreover, under the criteria applicable to expert testimony based on ‘soft’ science, the field of expertise must be ‘legitimate,’ and Appellant failed to demonstrate that the proposed testimony was relevant and reliable.” We summarily reject this argument because the testimony of Eddleman and Hartzendorf dealt with a "hard” as opposed to "soft” science. The Court of Criminal Appeals in Weatherred v. State, 15 S.W.3d 540 (Tex.Crim.App.2000), noted the distinction as follows: "The 'hard' sciences, areas in which precise measurement, calculation, and prediction are generally possible, include mathematics, physical science, earth science, and life science. The 'soft' sciences, in contrast, are generally thought to include such fields as psychology, economics, political science, anthropology, and sociology. See The New Columbia Encyclopedia 2450 (1975).” See id. 15 S.W.3d at 542 n. 5.

      . As noted above, at the time of her testimony on direct examination, Hartzendorf had seen the report prepared by Eddelman at the Corpus Christi Medical Center, the complainant’s medical records from Christus Spohn Memorial Medical Center, and the D.P.S. analysis. In contrast, at the time of her direct examination, Eddelman had only reviewed her report. This is not to suggest that Eddelman was not qualified, but only to note that Hartzendorf had relied upon more data in forming her opinion.

      . Although Eddelman briefly mentioned the abrasions to the complainant’s neck, the subject was first broached by defense counsel on cross-examination and was negligible.


author: ANN CRAWFORD McCLURE, Justice.

text:
    9029 GATEWAY SOUTH JOINT VENTURE, Appellant, v. ELLER MEDIA COMPANY, Appellee.
    No. 08-03-00397-CV.
    Court of Appeals of Texas, El Paso.
    Dec. 9, 2004.

      Mark Berry, El Paso, for Appellant.
    Robert R. Feuille, El Paso, for Appellee.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPIN/OJV

ANN CRAWFORD McCLURE, Justice.

9029 Gateway South Joint Venture appeals from a summary judgment granted in favor of Eller Media Company. At issue is whether Eller Media properly amended its original answer to assert an affirmative defense which formed the basis of its motion for summary judgment. We affirm.

FACTUAL SUMMARY

On May 30, 2000, the Joint Venture entered into a written lease agreement with Laizure/Cooney of Texas, L.L.C. for the erection and maintenance of an outdoor advertising structure on its property. Laizure/Cooney was responsible for obtaining all necessary permits for the erection of the billboard. Subsequent to the execution of the lease, Eller Media became the successor in interest to Laizure/Coo-ney and was bound to perform the terms of the lease.

As it turned out, the billboard could not be legally constructed on the property. El Paso Municipal Ordinance Section 20.66.210(B) prohibits erection of billboards within 200 feet of the property line of R-4 zoned property when on the same side of the street. The leased property lies within 200 feet of Tract 503, located on the same side of the street and zoned R-4. Consequently, Eller Media attempted to have rental payments under the lease reduced. When the Joint Venture refused, Eller Media gave notice of termination pursuant to a lease provision allowing cancellation of the contract if the billboard could not be constructed unobstructed or if its erection would be illegal. The Joint Venture then sued Eller Media for breach of contract.

Because the time line is pertinent to our analysis, we will offer some detail of the procedural history.

• February 8, 2001 — Eller Media files a general denial.
• November 2, 2001 — Eller Media files a motion for summary judgment contending that it was entitled to cancellation of the lease as a matter of law. A hearing is set for December 3, and then re-set to December 31.
• December 21, 2001 — The Joint Venture files its response, claiming that Eller Media was seeking summary judgment based on an affirmative defense which it had failed to plead.
• December 26, 2001 — Eller Media files an amended answer pleading the affirmative defense of cancellation. Contemporaneously, it files a motion for leave to file its amended answer.
• December 31, 2001 — No hearing is actually conducted. The Honorable Sam Paxson does not issue a ruling on the motion for summary judgment before he retires from the bench.
• December 19, 2002 — The newly elected judge, the Honorable Gonzalo Garcia, issues a notice of intent to dismiss for want of prosecution.
• April 7, 2003 — Eller Media re-files its amended answer pleading cancellation as an affirmative defense.
• April 9, 2003 — The trial court, sua sponte, sets a summary judgment hearing for May 1, 2003.
• April 30, 2003 — The Joint Venture files an objection to Eller Media’s motion for leave to amend its answer.
• May 5, 2003 — The summary judgment hearing is re-set for May 21, 2003.
• May 22, 2003 — The trial court grants Eller Media’s request for leave to file its first amended answer.
• July 16, 2003 — The trial court grants summary judgment in favor of Eller Media.

MOTION FOR SUMMARY JUDGMENT

In its sole point of error on appeal, the Joint Venture challenges the summary judgment, contending that Eller Media had failed to plead its affirmative defense at the time of the summary judgment hearing. It argues that it was forced to respond to the case as it existed on December 21, 2001 while the court ruled on the case as it existed on May 22, 2003. Simply stated, the Joint Venture complains that it was never given an opportunity to respond to the affirmative defense. It also maintains that the trial court had no authority to reschedule the date of the hearing. For the reasons that follow, we disagree.

Standard of Review

In a traditional summary judgment proceeding, the standárd of review on appeal is whether the successful movant at the trial level carried the burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Duran v. Furr’s Supermarkets, Inc., 921 S.W.2d 778, 784 (Tex.App.-El Paso 1996, writ denied). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant’s cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant’s cause or claim. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Duran, 921 S.W.2d at 784. In resolving the issue of whether the movant has carried this burden, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-mov-ant’s favor. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985); Duran, 921 S.W.2d at 784. A defendant who conclusively negates at least one essential element of each theory pled by the plaintiff is entitled to summary judgment. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993); see Camacho v. Samaniego, 954 S.W.2d 811, 817 (Tex.App.-El Paso 1997, pet. denied). A defendant can also prevail by pleading and conclusively establishing every element of an affirmative defense. Holguin v. Ysleta Del Sur Pueblo, 954 S.W.2d 843, 846 (Tex.App.-El Paso 1997, pet. denied). Such is the issue here.

The Affirmative Defense

The terms “rescission” and “cancellation” are virtually synonymous. Ferguson v. DRG/Colony North, Ltd., 764 S.W.2d 874, 887 (Tex.App.-Austin,1989, writ denied). If there is a distinction, it is only that rescission is a general undoing of an agreement while cancellation is a more formal annulment or rendering of an instrument ineffective as a legal obligation. Id., citing Cheek v. Metzer, 116 Tex. 356, 291 S.W. 860 (1927), Hickox v. Hickox, 151 S.W.2d 913 (Tex.Civ.App.-El Paso 1941, no writ). Rescission and cancellation are affirmative defenses that must be specifically pled. Tex.R.Civ.P. 94; Wilson v. Remmel Cattle Co., Inc., 542 S.W.2d 938, 942 (Tex.Civ.App.-Amarillo 1976, writ refd n.r.e.). An affirmative defense must be asserted by way of written pleading or it is waived. Bracton Corp. v. Evans Construction Co., 784 S.W.2d 708, 710 (Tex.App.-Houston [14th Dist.] 1990, no writ); Tex.R. Civ. P. 94.

Requirements of Rule 166a

Rule 166a(c) provides that the trial court should render summary judgment based on the pleadings on file at the time of the hearing. Tex.R.Civ.P. 166a(c). A party may file an amended pleading after it files its motion or response. Cluett v. Medical Protective Co., 829 S.W.2d 822, 825-26 (TexApp.-Dallas 1992, writ denied). A party should file an amended answer as soon as possible and no later than seven days before the hearing. Tex.R.Civ.P. 63; Sosa v. Central Power & Light, 909 S.W.2d 893, 895 (Tex.1995). In computing the seven-day period, the day the party files the amended pleading is not counted, but the day of the hearing on the motion for summary judgment is counted. Sosa, 909 S.W.2d at 895. If the party realizes it must amend after the seven-day deadline, it should file its amended pleading before the hearing without asking the court for leave to file. Tex.R.Civ.P. 166a(c). Unless the record reflects that the court denied leave to amend, we are to assume the trial court considered the amended pleading. Goswami v. Metropolitan Sav. And Loan Ass’n, 751 S.W.2d 487, 490-91 (Tex.1988). We presume leave to amend was granted if the motion for leave is filed within seven days of the hearing and (1) the summary judgment states that all pleadings were considered, (2) the record does not indicate that an amended pleading was not considered, and (3) the opposing party does not show surprise. Continental Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 276 (Tex.1996).

Once the hearing date on the motion for summary judgment has passed, a party may file an amended pleading before the court signs a judgment only if it secures a written order granting leave to file. Tex.R.Civ.P. 166a(c); Hussong v. Schwan’s Sales Enterprises, Inc., 896 S.W.2d 320, 323 (Tex.App.-Houston [1st Dist.] 1995, no writ), Leinen v. Buffington’s Bayou City Service Co., 824 S.W.2d 682, 685 (Tex.App.-Houston [14th Dist.] 1992, no writ). In this circumstance, we assume leave has been denied unless the record affirmatively reflects that the court granted leave. Leinen, 824 S.W.2d at 685.

Analysis

We reiterate that we presume leave to amend was granted if the motion for leave is filed within seven days of the hearing and (1) the summary judgment states that all pleadings were considered, (2) the record does not indicate that an amended pleading was not considered, and (3) the opposing party does not show surprise. Continental Airlines, 920 S.W.2d at 276. Eller Media filed its first amended answer on December 26, 2001, five days before the December 31 hearing and more than a year before the May 2003 hearing. See Tex.R.Civ.P. 63, 166a(c); Sosa, 909 S.W.2d at 895. For whatever reason, Judge Paxson did not rule on the merits before he left the bench. The successor judge granted leave to file the amended answer before the summary judgment was granted. See Goswami 751 S.W.2d at 490-91. The summary judgment itself states that the pleadings were considered, and nothing in the record suggests the amended pleading was not considered. See Continental, 920 S.W.2d at 276. Thus, we assume the trial court considered the amended pleading. Goswami 751 S.W.2d at 490-91. The last question is whether the Joint Venture showed surprise. See id. It did not. It knew what affirmative defense Eller Media was asserting when the motion for summary judgment was filed. It knew before suit was filed that Eller Media contended it was entitled to cancel the lease. Its own petition alleges that “Defendant gave notice of its intent to terminate the lease ... and ... the Defendant was allegedly entitled to cancel the agreement.”

We conclude that Eller Media properly pleaded the affirmative defense of cancellation in its amended pleading and that the trial court considered the amended pleading in granting summary judgment in favor of Eller Media. We overrule the sole point of error and affirm the judgment of the trial court.


text:
    TEXAS DEPARTMENT OF TRANSPORTATION, Appellant, v. Librado ARZATE, et al., Appellees.
    No. 08-03-00425-CV.
    Court of Appeals of Texas, El Paso.
    Dec. 16, 2004.

      Richard Mason, Assistant Attorney General, Austin, for appellant.
    Ruggero S. Provenghi, El Paso, for ap-pellee.
    Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

The Texas Department of Transportation appeals the trial court’s denial of its plea to the jurisdiction pursuant to Section 51.014(a)(8) of the Texas Civil Practices and Remedies Code. See Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999) (holding that a governmental defendant may contest in a plea to the jurisdiction whether the State has waived immunity from suit). For the reasons that follow, we reverse and render.

FACTUAL SUMMARY

This case involves a horrific and tragic accident which occurred on a stretch of roadway well known to daily commuters for its high death toll. On the morning of February 27, 2002, Estella Martinez was driving a vehicle westbound in the 1700 block of West Paisano, a state highway, in El Paso, Texas. She carried four passengers in her car. The plaintiffs below claimed that a dump truck clipped the rear of the car causing Martinez to lose control of the vehicle. Her car then traveled across the low and narrow median into the eastbound lane of Paisano, where it collided head-on with another vehicle, killing its driver. The crash also resulted in the death of Martinez and three of her passengers.

PROCEDURAL SUMMARY

The survivors of Martinez and the passengers killed in the crash, together with the one surviving passenger, brought suit against TxDOT. After filing their original petition and their first amended petition, the plaintiffs filed a notice of nonsuit without prejudice as to TxDOT, which the trial court granted. In their second amended petition, however, the plaintiffs again sued TxDOT, the driver of the dump truck, the business that owned the dump truck, and its owner. Pertinent to this appeal, they alleged that:

• TxDOT negligently maintained the stretch of road by failing to place jersey barricades in the median on a one-half mile stretch in the 1700 block of Paisano when barricades were placed on the outer lanes and at other locations along the street;
• TxDOT had a duty under the Uniform Manual on Traffic Devices to properly maintain that stretch of Paisano by placing a median barricade at that location;
• TxDOT’s failure to place a median barricade created a dangerous condition; and
• TxDOT’s conduct was grossly negligent due to negligent maintenance, the high rates of speed allowed on this stretch of roadway, and the narrow two to three inch median.

TxDOT filed a plea to the jurisdiction asking that the suit be dismissed, contending that the plaintiffs’ claims fell outside the Texas Tort Claims Act because there had been no waiver of sovereign immunity. It also claimed that while the plaintiffs’ framed their cause of action as a case of negligent maintenance, in substance the suit merely criticized a discretionary road design. Finally, TxDOT contested the allegation that the Texas Manual on Uniform Traffic Control Devices created a legal duty to place a barricade in that location because the manual constitutes only a guideline, not a standard for liability.

The plaintiffs responded that TxDOT had a duty to maintain state highways and to warn about dangerous conditions posing an unreasonable risk of harm. They also argued that these maintenance activities were at the operational level, were not discretionary, and were not immune from liability. In addition, they maintained that this was a premises defect case, not a suit addressing discretionary design. The trial court denied the plea to the jurisdiction, and this appeal follows. Plaintiffs below are referred to collectively herein as Ap-pellees.

PLEA TO THE JURISDICTION

A plea to the jurisdiction is a dilatory plea by which a party contests the trial court’s authority to determine the subject matter of the cause of action. City of Saginaw v. Carter, 996 S.W.2d 1, 2 (Tex.App.-Fort Worth 1999, pet. dism’d w.o.j.); State v. Benavides, 772 S.W.2d 271, 273 (Tex.App.-Corpus Christi 1989, writ denied). The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject matter jurisdiction. Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993); City of Saginaw, 996 S.W.2d at 2. In the context of suit against a governmental unit, the plaintiff must allege consent to suit either by reference to statute or express legislative permission. Jones, 8 S.W.3d at 638; Missouri Pac. R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813 (Tex.1970); Texas Parks & Wildlife Dep’t v. Garrett Place, Inc., 972 S.W.2d 140, 143 (TexApp.-Dallas 1998, no pet.).

Standard of Review

Subject matter jurisdiction is a legal question which we review de novo. City of Saginaw, 996 S.W.2d at 2; Texas Dep’t of Health v. Doe, 994 S.W.2d 890, 892 (Tex.App.-Austin 1999, pet. dism’d by agr.). We look solely to the allegations in the petition and accept them as true. See City of Saginaw, 996 S.W.2d at 2-3; Firemen’s Ins. Co. of Newark, N.J. v. Board of Regents of University, of Texas System, 909 S.W.2d 540, 541 (Tex.App.-Austin 1995, writ denied). We do not examine the merits of the case. See City of Saginato, 996 S.W.2d at 3. If the petition does not allege jurisdictional facts, the plaintiffs suit is subject to dismissal only when it is impossible to amend the pleadings to confer jurisdiction. City of Saginaw, 996 S.W.2d at 3; see Texas Ass’n of Bus., 852 S.W.2d at 446; Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex.App.-Austin 1994, writ denied).

Texas Tort Claims Act

In Point of Error One, TxDOT argues that Appellees’ claims are not within the scope of the Texas Tort Claims Act and that there has been no waiver of sovereign immunity under Section 101.056 of the Texas Civil Practice and Remedies Code. In Point of Error Two, the Department contends that discretionary acts of the sovereign remain immune. We will address these issues together.

TxDOT, as a state agency, is immune from suit unless that immunity is waived. Tex. Dep’t of Transp. v. City of Floresville Elec. Power & Light Sys., 53 S.W.3d 447, 455 (Tex.App.-San Antonio 2001, no pet.), citing Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 611 (Tex.2000). The Act provides 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.CivPRAc. & Rem.Code Ann. § 101.021 (Vernon 1997). The Act does not apply to:

(1) the failure of a governmental unit to perform an act that the unit is not required by law to perform; or
(2) a governmental unit’s decision not to perform an act or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit.

Tex.Civ.PRAc. & Rem.Code Ann. § 101.056.

The installation of roadway safety devices is discretionary. See Stanford v. State, 635 S.W.2d 581, 582 (Tex.App.-Dallas 1982, writ refd n.r.e.). Sovereign immunity precludes a plaintiff from alleging misfeasance on the part of the government by failing to install certain safety features, such as guard rails and stop signs. See id; Miller v. City of Fort Worth, 893 S.W.2d 27, 33 (Tex.App.-Fort Worth 1994, writ dism’d by agr.). The Act does not waive sovereign immunity for roadway design, which is a discretionary act. Texas Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex.2002) (finding that the design of highway and lack of barrier in median between north and southbound lanes reflected discretionary decisions for which TxDOT retained immunity); see State v. Miguel, 2 S.W.3d 249, 251 (Tex.1999) (holding that decisions about highway design and about what type of safety features to install are discretionary policy decisions that are protected by sovereign immunity).

Whether a condition on state property is a premises defect or a special defect is a question of law. Tex.Civ.Prac. & Rem.Code Ann. § 101.021. As to premises and special defects:

(a) If a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.
(b) The limitation of duty in this section does not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads, or streets or to the duty to warn of the absence, condition, or malfunction of traffic signs, signals, or warning devices as is required by Section 101.060.

Tex.Civ.PRAc. & Rem.Code Ann. § 101.022. To establish governmental liability for premises defects, a plaintiff must plead and prove that: (1) the condition is unreasonably dangerous; (2) the government had knowledge of the defect and did not repair or warn of the defect after a reasonable amount of time; (3) the injured party did not have prior knowledge of the defect; and (4) the defect was the proximate cause of the injured party’s harm. See State Dep’t of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex.1992). We look to the plaintiffs’ petition to determine if it sufficiently pleads facts which, if taken as true, will support jurisdiction. Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993).

Appellees’ Arguments

The pleadings alleged that TxDOT negligently maintained the 1700 block of West Paisano and that the Department had a duty by virtue of the Manual of Uniform Traffic Control Devices to place jersey barricades in the median. They further contended that since TxDOT had notice of the roadway’s dangerous nature, it had breached its duty by failing to place median barricades. In their response to the plea to the jurisdiction, Appellees argued that where an act is clearly mandated by law, the discretionary exemption does not apply. These arguments were premised on the fact that TxDOT has a duty to properly maintain state' highways and Ap-pellees’ belief that the Manual of Uniform Traffic Control Devices imposes a duty to properly implement and maintain barricades. They also contended that Section 101.022 of the Texas Civil Practice & Remedies Code placed a duty on TxDOT to repair dangerous conditions posing an unreasonable risk to the traveling public and that immunity was waived where maintenance was necessary to keep the roads free of unreasonably dangerous conditions. Finally, Appellees claimed that the lack of a median barricade was a premises defect under Section 101.022.

Negligent Maintenance

We agree with Appellees that TxDOT has a duty to properly maintain state highways. See Tex.TRAnsp.Code Ann. § 224.031, 224.032 (Vernon 1999). We also agree that maintenance is clearly distinguishable from design in that maintenance refers to the preservation of existing conditions. Stated differently, maintenance is the continuing implementation of a previous policy decision. See City of Fort Worth v. Gay, 977 S.W.2d 814, 817 (Tex.App.-Fort Worth 1998, no pet.); Brown v. Texas Dep’t of Transportation, 80 S.W.3d 594, 598 (Tex.App.-Corpus Christi 2000), aff'd by County of Cameron v. Brown, 80 S.W.3d 549 (Tex.2002). Maintenance is the preservation of existing infrastructure. See Garza v. State, 878 S.W.2d 671, 675 (Tex.App.-Corpus Christi 1994, no writ) (finding that maintenance involves the preservation of existing conditions); see also Siders v. State, 970 S.W.2d 189, 193 (Tex.App.-Dallas 1998, pet. denied) (finding a duty to maintain highway as designed).

Appellees cite Brown in support of their claim that the failure to install barricades along the 1700 block of Paisano was a premises defect. See Brown, 80 S.W.3d at 594. Brown involved lighting along the Queen Isabella Causeway. Id. At the time of the accident, forty-five of the one-hundred lights on the causeway were not functioning. Id. The court noted that the absence of lighting resulted from non-functioning lights on the existing roadway lamps. Id. at 598. This was not the result of faulty design but of a failure to maintain the existing lights. Id.

Reliance upon Brown for negligent maintenance is misplaced because this case does not involve failure to maintain an existing barrier. Appellees merely contend that TxDOT should have installed a barrier. If a barrier did not exist, it could not be maintained. Therefore, the case at bar involves a discretionary design decision and thus does not fall under the Act. See Tex.Civ.PRAC. & Rem.Code AnN. § 101.056; Stanford, 685 S.W.2d at 582; Miller, 893 S.W.2d at 33.

Premises Defect

Alternatively, Appellees alleged that the failure to install a barricade was a premises defect. In Brown, after the court determined that there was a failure to maintain the lights, it examined whether the failure to maintain constituted a premises defect. Id. “Premises” includes the structure, parts, and appurtenances. Billstrom v. Memorial Med. Ctr., 598 S.W.2d 642, 646 (Tex.App.-Corpus Christi 1980, no writ). “Defect” means an imperfection, shortcoming or want of something necessary for completion. See id. at 646. Ap-pellees asserted in their petition that the premises defect on the highway created an unreasonably dangerous condition of which TxDOT was aware, that the condition proximately caused the death of Martinez and her passengers, and that the deaths resulted from the Department’s gross negligence.

The lack of safety features, such as barriers or guardrails, reflect discretionary decisions for which TxDOT retains immunity under the Act’s discretionary function exception. See Tex.Civ.Prac. & Rem.Code Ann. § 101.056; Ramirez, 74 S.W.3d at 864; Miguel, 2 S.W.3d at 251; State v. Rodriguez, 985 S.W.2d 83, 85 (Tex.1999); Maxwell v. Texas Dep’t of Transp., 880 S.W.2d 461, 463-64 (Tex.App.-Austin 1994, writ denied). Appellees do not have a cognizable premises defect claim under the Act since the act was discretionary. Consequently, their petition does not state a cause of action falling within the Act.

Conclusion

We conclude that the trial court improperly denied the plea to the jurisdiction based on sovereign immunity. Appellees failed to properly plead jurisdictional facts which conferred proper subject matter jurisdiction as the acts complained of were discretionary and did not fall within the Act. Generally, litigants are permitted to amend to cure pleading defects when the pleadings do not allege sufficient jurisdictional facts. See Texas Ass’n of Bus., 852 S.W.2d at 446; City of Midland v. Sullivan, 33 S.W.3d 1, 7 (Tex.App.-El Paso 2000, pet. denied). Here, there is no pleading defect; the pleadings and the evidence affirmatively show that all complaints concern discretionary decisions for which the State retains immunity from suit under Section 101.056 of the Act. See Tex.Civ.PRAc. & Rem.Code Ann. § 101.056(2); Miguel, 2 S.W.3d at 251; Rodriguez, 985 S.W.2d at 85; Maxwell, 880 S.W.2d at 463-64. Because it is impossible for Appellees to amend their pleadings to invoke jurisdiction, their suit must be dismissed. See Sullivan, 33 S.W.3d at 7. We sustain Points of Error One and Two. Because of our disposition, it is unnecessary for us to address Point of Error Three. The judgment of the trial court is reversed and rendered.

      . Contrary to the petition, the police report states that Rosario Flores was driving the vehicle at the time of the accident.

      . The police report differs here as well, indicating that the driver made an improper lane change, which caused her to strike the dump truck and lose control of the vehicle.

      .The driver of the dump truck left the scene of the accident.