author: HOLCOMB J.,

text:
    Lon Kieferdorf LANE, Appellant, v. The STATE of Texas.
    No. PD-1122-03.
    Court of Criminal Appeals of Texas.
    Dec. 8, 2004.

      John D. Nation, Dallas, for Appellant.
    Laura Anne Coats, DA, Dallas, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

HOLCOMB J.,

delivered the opinion of the Court,

in which KELLER, P.J., and MEYERS, PRICE, WOMACK, KEASLER, HERVEY, and COCHRAN, JJ., joined.

This case presents two questions: (1) whether the court of appeals erred in holding that the evidence presented at appellant’s trial was legally sufficient to prove that he used a deadly weapon during the commission of his offense, and (2) whether the court of appeals erred in holding that the trial court did not err in admitting into evidence certain out-of-court statements of the victim. We answer both questions in the negative and affirm the judgment of the court of appeals.

I

On February 21, 2001, a Dallas County grand jury presented an indictment that charged appellant with aggravated assault under Texas Penal Code § 22.02(a)(1) and (2). The indictment also charged, for punishment enhancement purposes, that appellant had two previous felony convictions. See Tex. Pen.Code § 12.42(d).

On August 14, 2001, the State brought appellant to trial under the indictment. At the guilf/innoeence stage of trial, the State presented five witnesses and numerous exhibits in an attempt to prove its case, and appellant presented two witnesses in his defense. The heart of the State’s case was certain out-of-court statements of the victim, in which statements the victim claimed appellant assaulted her. Those out-of-court statements came into evidence, sometimes over appellant’s objection and sometimes not, through the testimony of a paramedic, a nurse, and two police officers as well as through the victim’s hospital records.

Viewed in the light most favorable to the State, the evidence presented at appellant’s trial established the following: On January 20, 2001, at approximately 12:30 a.m., appellant and his wife, Cindy Lane, argued at their home over his alleged marital infidelity. In the course of the argument, appellant struck Ms. Lane in the head several times with his closed fist, causing her to fall from a chair, in which she had been sitting, onto the floor. After Ms. Lane fell to the floor, appellant kicked her in the lower back and chest. As a result of appellant’s assault, Ms. Lane suffered a concussion to the brain and temporarily lost consciousness. She further suffered bruising to her scalp, right temple, chest, and hand. Appellant summoned emergency medical personnel, who examined Ms. Lane at the scene and then transported her by ambulance to a nearby hospital for further examination. In the hours that followed the assault, Ms. Lane suffered from nausea, vomiting, dizziness, and considerable pain in her head, neck, chest, and back.

The evidence presented at trial — specifically, the testimony of the paramedic, the nurse, and the two police officers — also established that a closed fist striking a person’s head, or a foot striking a person’s back or chest, could cause serious physical injury.

After the presentation of the evidence, the trial court instructed the jury, in accordance with the indictment, that it (i.e., the jury) could convict appellant of aggravated assault if it found beyond a reasonable doubt either (1) that appellant intentionally, knowingly, or recklessly caused bodily injury to the victim by striking her with his hand or by kicking her with his foot, and that in doing so appellant either used or exhibited a deadly weapon, to wit: his hand or his foot, or (2) that appellant intentionally, knowingly, or recklessly caused serious bodily injury to the victim by striking her with his hand or by kicking her with his foot, and that in doing so appellant either used or exhibited a deadly weapon, to wit: his hand or his foot. The trial court also instructed the jury as to the statutory definitions of “bodily injury,” “serious bodily injury,” and “deadly weapon.” See footnote two, supra.

The jury, after deliberating, found appellant guilty “as alleged in the indictment.” The trial court later assessed appellant’s punishment, enhanced by the two prior felony convictions, at imprisonment for 35 years.

On direct appeal, appellant brought two points of error. In his first point of error, he argued that the evidence presented at his trial was “legally insufficient ... to prove beyond a reasonable doubt [either that he] caused bodily injury to the complainant while using or exhibiting a deadly weapon [or that he] caused serious bodily injury to the complainant by hitting and kicking.” In particular, appellant argued that, “[i]f the State’s evidence [was] deemed [legally] sufficient, then every misdemeanor assault could be prosecuted as a felony, since in every case where a defendant physically assaults another person, his hands could be considered deadly weapons.” In his second point of error, appellant argued that the trial court erred in admitting the victim’s out-of-court statements into evidence through the testimony of the paramedic, the nurse, and the two police officers.

On June 5, 2003, the Eleventh Court of Appeals overruled both of appellant’s points of error and affirmed the judgment of the trial court. Lane v. State, 111 S.W.3d 203 (Tex.App.-Eastland 2003). With respect to appellant’s first point of error, the court of appeals agreed with him that the evidence presented at trial was legally insufficient to prove that he caused serious bodily injury to the victim, but the court held nonetheless that the evidence was legally sufficient to prove that he caused bodily injury to the victim and that in doing so he used a deadly weapon, to wit: his hand or his foot. Id. at 210. With respect to appellant’s second point of error, the court of appeals upheld the trial court’s admission of the victim’s out-of-court statements through the testimony of the paramedic, the nurse, and the two police officers, because, according to the court of appeals, the testimony in question was admissible under the “excited utterance” exception to the hearsay rule. Id. at 211. See Tex.R. Evid. 803(2). The court of appeals also held that the testimony in question of the paramedic and the nurse was admissible under the “medical diagnosis” exception to the hearsay rule. Lane v. State, 111 S.W.3d at 211. See Tex.R. Evid. 803(4).

Appellant subsequently filed a petition for discretionary review raising two grounds for review. In his first ground, appellant argued that the court of appeals erred in holding that the evidence presented at trial was legally sufficient to prove that he used a deadly weapon during the commission of his offense. In his second ground, appellant argued that the court of appeals erred in upholding, under the “excited utterance” exception to the hearsay rule, the trial court’s admission of the victim’s out-of-court statements through the testimony of the paramedic, the nurse, and the two police officers. Significantly, appellant did not challenge the court of appeals’ holding that, under the “medical diagnosis” exception to the hearsay rule, the trial court did not err in admitting the out-of-court statements of the victim through the testimony of the paramedic and the nurse.

On January 28, 2004, we granted appellant’s petition for discretionary review in order to determine whether either of his grounds for review has any merit. See Tex.R.App. Proc. 66.3(c) & (d).

II

We turn now to appellant’s first ground for review. As we noted in footnote two, supra, Texas Penal Code § 1.07(a)(17) provides, in relevant part, that a “deadly weapon” is “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” As we also noted in footnote two, Texas Penal Code § 1.07(a)(46) provides that “ ‘serious bodily injury’ means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” We have recognized before that a hand or a foot may be a deadly weapon within the meaning of § 1.07(a)(17) “depending upon the evidence shown.” Turner v. State, 664 S.W.2d 86, 90 (Tex.Crim.App.1983). We have also recognized that the injuries, if any, inflicted on the victim are factors to be considered in determining whether a hand or a foot was used as a deadly weapon. Ibid. The question we must answer now is whether the court of appeals erred in holding that the evidence presented at appellant’s trial was legally sufficient to prove that, during the commission of his offense, he used his hand or his foot as a deadly weapon.

In assessing the legal sufficiency of the evidence, under the Due Process Clause of the Fourteenth Amendment, to support a conviction, an appellate court must consider all the record evidence in the light most favorable to the prosecution and determine whether, based on that evidence and reasonable inferences therefrom, any rational trier of fact could have found the defendant guilty of all the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Griffin v. State, 614 S.W.2d 155, 158-159 (Tex.Crim.App.1981). “In carrying out our task, we remain cognizant that ‘proof beyond a reasonable doubt’ means proof to a high degree of certainty.” Urbano v. State, 837 S.W.2d 114, 116 (Tex.Crim.App.1992).

As we noted previously, the evidence presented at appellant’s trial, viewed in the light most favorable to the prosecution, established that he struck the victim in the head several times with his closed fist, knocking her to the floor, and that he then kicked her in the lower back and chest. As a result of appellant’s assault, the victim suffered a concussion to the brain, bruising, and temporary loss of consciousness. Furthermore, in the hours after the assault, the victim suffered from nausea, vomiting, dizziness, and considerable pain in several parts of her body. There was also evidence presented at trial — from a paramedic, a nurse, and two police officers — that a closed fist striking a person’s head, or a foot striking a person’s back or chest, could cause serious physical injury. After due consideration and taking into account all of the specific acts and injuries, we find that the evidence presented at appellant’s trial was sufficient to persuade a rational trier of fact beyond a reasonable doubt that appellant used both his hand and his foot as “deadly weapons” within the meaning of that phrase as defined by the Penal Code. Thus, the court of appeals did not err. We overrule appellant’s first ground for review.

Ill

We turn next to appellant’s second ground for review. As we noted previously, appellant argued, in his petition for discretionary review, that the court of appeals erred in upholding, under the “excited utterance” exception to the hearsay rule, the trial court’s admission of the victim’s out-of-court statements through the testimony of the paramedic, the nurse, and the two police officers. As we also noted previously, appellant, in his petition, did not challenge the court of appeals’ other holding that, under the “medical diagnosis” exception to the hearsay rule, the trial court did not err in admitting the victim’s out-of-court statements through the testimony of the paramedic and the nurse. In these circumstances, the question of whether the court of appeals erred in holding that the trial court did not err in admitting the victim’s out-of-court statements through the testimony of the paramedic and the nurse is not before us. Sims v. State, 792 S.W.2d 81, 82 (Tex.Crim.App.1990). As Professors Dix and Dawson have explained,

[i]f the court of appeals set out alternative grounds for its result, discretionary review does not lie to review less than all of those grounds. A conclusion by the Court of Criminal Appeals on less than all such grounds would not affect the outcome because the judgment of the court of appeals would remain supported by the alternative ground.

G. Dix & R. Dawson, Texas Criminal Practice and Procedure § 44.30 at 869 (2nd ed.2001).

The question remaining is whether the court of appeals erred in upholding, under the “excited utterance” exception to the hearsay rule, the trial court’s admission of the victim’s out-of-court statements through the testimony of the two police officers. The record reflects that on eight separate occasions during the guilt/innocence stage — twice during the paramedic’s testimony, twice during the nurse’s testimony, twice during the first police officer’s testimony, and twice in the victim’s hospital records — the victim’s out-of-court statements came into evidence without appellant’s objection. In these circumstances, no reversible error is presented. As we explained in Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App.2008),

[t]o preserve error in admitting evidence, a party must make a proper objection and get a ruling on that objection. In addition, a party must object each time the inadmissible evidence is offered or obtain a running objection. An error [if any] in the admission of evidence is cured where the same evidence comes in elsewhere without objection.

See also Leday v. State, 988 S.W.2d 713, 718 (Tex.Crim.App.1998) (“Our rule ... is that overruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling.”). Thus, the court of appeals did not err in upholding the trial court’s admission of the victim’s out-of-court statements. We overrule appellant’s second ground for review.

We affirm the judgment of the court of appeals.

JOHNSON, J., concurred as to Part II and joined Part III.

      . Texas Penal Code § 22.02(a) provides that "[a] person commits [aggravated assault] if the person commits assault as defined in Section 22.01 and the person: (1) causes serious bodily injury to another, including the person’s spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault.” Texas Penal Code § 22.01(a) provides, in relevant part, that "[a] person commits [assault] if the person intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse.” Texas Penal Code § 1.07(a)(8) provides that " '[bjodily injury’ means physical pain, illness, or any impairment of physical condition.” Texas Penal Code § 1.07(a)(46) provides that " '[s]erious bodily injury’ means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Finally, Texas Penal Code § 1.07(a)(17) provides, in relevant part, that " '[d]eadly weapon' means anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”

      . The victim did not testify for the State at the guilt/innocence stage; in fact, the victim testified for the defense.

      . This is the required standard of appellate evidentiary review. See discussion, infra.

      . Indeed, almost anything can be a deadly weapon "depending upon the evidence shown.” See Coleman v. State, 145 S.W.3d 649 (Tex.Crim.App., 2004) (Cochran, J., concurring).


source: Caselaw Access Project

author: KELLER, P.J.,

license: Public Domain

text:
    Keithen Oneal JOHNSON, Appellant, v. The STATE of Texas.
    Nos. PD-894-03, PD-895-03, PD-896-03.
    Court of Criminal Appeals of Texas.
    Dec. 8, 2004.

      Deborah Ellison Farris, Dallas, for Appellant.
    Johanna H. Kubalak, Asst. DA, Dallas, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

KELLER, P.J.,

delivered the opinion of the unanimous Court.

When a court reporter fails or refuses to comply with the deadlines for filing the reporter’s record, does an appellate court properly conclude that the appellate record is “lost or destroyed” for the purpose of Texas Rule of Appellate Procedure 34.6(f)? The answer is “no.” Consequently, we will reverse the judgment of the Court of Appeals.

I. BACKGROUND

Appellant was convicted of various offenses and placed on probation. His pro-bations were later revoked, and he appealed. Although appellant timely requested the preparation of the record, the court reporter failed to prepare and file the record in a timely fashion. The record was originally due on December 18, 2001. Three months later, on February 22, 2002, the Court of Appeals abated the appeals and ordered the trial court to make findings on whether appellant desired to prosecute an appeal and whether he had been deprived of the reporter’s record because of ineffective assistance of counsel, indigence, or any other reason. The trial court made the following findings: (1) appellant desires to prosecute the appeals, (2) appellant is indigent and entitled to proceed without payment of the appellate record, (3) appellant requested preparation of the record, (4) a number of court reporters recorded the proceedings, (5) Mary Belton will take responsibility for seeing that a complete record is filed, and (6) Belton will make every attempt to file the record by April 15, 2002. On March 26, 2002, the Court of Appeals adopted these findings and reinstated the appeals.

Claiming that she was attempting to locate the notes for certain hearings, Bel-ton later requested that the time to file the record be extended to May 13, 2002. The Court of Appeals granted this request, but the record was not filed by the new deadline. On July 29, 2002, the Court of Appeals again abated the appeal and remanded the case to the trial court for findings. The trial court made the following findings: (1) appellant desires to prosecute the appeals, (2) appellant is indigent and entitled to proceed without payment of the record, (3) appellant requested preparation of the record on October 31, 2001, (4) Belton is the court reporter who recorded all of the proceedings except a 1995 suppression hearing, (5) Belton’s notes are available and can be transcribed, (6) Bel-ton has located the notes for the suppression hearing and believes she can transcribe them, (7) Belton’s explanation for her delay in filing the record is the volume of her caseload, and (8) the record can be filed by August 26, 2002. On August 23, 2002, the Court of Appeals adopted the trial court’s findings and reinstated the appeals. The Court of Appeals ordered Belton to file the record in fifteen days and warned that no extensions of time would be granted. The record was not filed by this deadline.

On September 26, 2002, the Court of Appeals ordered Belton to file the record by October 7, 2002. The court further ordered Belton not to sit as a court reporter until the record was filed. The court warned that, if the record were not filed by the new deadline, the court might employ the remedies available under the rules of appellate procedure. On October 15, 2002, the Court of Appeals noted that the record still had not been filed, concluded that the record was “not available due to no fault of appellant,” and ordered the parties to file a letter stating whether they could agree on a complete record.

On May 1, 2003, the Court of Appeals handed down an opinion reversing the probation revocations and remanding the cases for a new hearing. The court concluded that its disposition was required by Rule 34.6(f), which permits a new trial in some situations when the reporter’s record is lost or destroyed. On May 22, 2003, the State filed a motion for rehearing and a motion for extension of time to file the motion for rehearing. The motion for rehearing asserted that the reporter’s record had finally been filed. A letter in the appellate file from the clerk of the Court of Appeals indicates that the reporter’s record was filed on May 21, 2003. On May 30, 2003, the Court of Appeals denied the State’s motion for extension of time to file a motion for rehearing on the ground that the reporter’s record was not available before the fifteen day period for filing a motion for rehearing had expired. The State filed its petition, and we granted review.

II. ANALYSIS

We have previously confronted situations in which a court reporter has failed (repeatedly) to timely prepare and file the record. In Routier v. State, a death penalty appeal, we used our contempt power to compel the court reporter into preparing and filing the record after she had repeatedly failed to do so on time. The defendant then raised questions about the accuracy of that record, and we remanded the case to the trial court to investigate the matter. After a hearing, the trial court ordered the court reporter to cease any proceedings regarding the record. The trial court later appointed a different court reporter to review the original court reporter’s notes and transcribe and certify a record, if possible. The new court reporter eventually filed a revised record, and we determined that the record was sufficient to continue with the appeal.

In Payne v. State, we were also presented with a court reporter who repeatedly failed to prepare and file the record. In that case, we held the court reporter in contempt and ordered him incarcerated in the Harris County Jail until the record was completed. The court reporter was later released upon a representation that the record was finished, but the trial court found that the record was incomplete because the testimony of at least three witnesses had been “irretrievably lost.” In connection with this conclusion, the trial court found that the court reporter “had done all he could do to perfect the transcription.” In light of the trial court’s findings, we reversed the defendant’s conviction and remanded the case for a new trial.

Rule 34.6(f) entitles an appellant to a new trial under certain conditions, one of which is that “without appellant’s fault, a significant exhibit or a significant portion of the court reporter’s notes and records has been lost or destroyed.” As can be seen from Routier and Payne, the court reporter’s repeated failure to file the record does not, by itself, provide a sufficient basis for concluding that the court reporter’s notes and records have been “lost or destroyed,” so as to justify granting a new trial. An appellate court can and should exercise its contempt power to compel an errant court reporter to prepare and file the record. The Rules of Appellate Procedure also give appellate courts the power to take other actions designed to ensure the preparation and filing of the record, including the appointment of a substitute court reporter to prepare and file the record from the original court reporter’s notes. A court reporter’s notes and records, or portions thereof, can be considered “lost” only if the missing portions of the appellate record are irretrievable.

Even without considering the State’s motion for rehearing, we conclude that the Court of Appeals erred in the present case. The Court of Appeals had no evidence that the court reporter’s notes and records were actually “lost or destroyed.” It therefore erred in ordering a new revocation hearing.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

      . Johnson v. State, No. 05-01-01760-CR, et. seq., slip op., 2003 WL 1993758 (Tex.App.Dallas, May 1, 2003)(not designated for publication).

      . Id. at 2, 3-4.

      . See TEX. R. APP. P. 49.1 (motion for rehearing due within 15 days after appellate court judgment), 49.8 (appellate court may extend time for filing motion for rehearing if motion for extension of time is filed within 15 days after due date of motion for rehearing).

      . 112 S.W.3d 554, 557 (Tex.Crim.App.2003).

      . Id. at 557-558.

      . Id. at 559.

      . Id.

      . Id. at 559-567.

      . 802 S.W.2d 686 (Tex.Crim.App.1990).

      . Id. at 687.

      . Id.

      . Id.

      . Id. at 687-688.

      . Id. at 688.

      . Rule 34.6(f)(2).

      . See Routier and Payne, supra; TEX. GOV’T CODE § 21.002.

      . TEX. R. APP. P. 35.3(c), 37.3(a)(2).

      . Routier, supra.


author: HERVEY, J., PRICE, J.,

text:
    Tracy Glenn GALLUPS, Appellant, v. The STATE of Texas.
    No. PD-897-03.
    Court of Criminal Appeals of Texas.
    Dec. 8, 2004.

      Lorin M. Subar, Dallas, for Appellant.
    Manuel Gonzalez, Asst. District Atty., McKinney, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

HERVEY, J.,

delivered the opinion of the Court in which

WOMACK, KEASLER, HOLCOMB and COCHRAN, JJ., joined.

In this case, appellant was convicted of a felony driving while intoxicated offense. He challenges the legality of his warrant-less home arrest. We decide that this arrest did not violate state law.

The record reflects that appellant filed a motion to suppress, challenging the legality of his warrantless home arrest. Appellant claimed in his motion to suppress that this arrest was illegal under state law solely because it did not meet the exception to the warrant requirement set out in Article 14.04, Tex.Code CRiMs. Proo., which provides:

Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.

Appellant claimed at the beginning of the suppression hearing, however, that the police “entry into [appellant’s] home, is what’s at question, and the subsequent arrest that took place there.” The issue of whether appellant consented to the police entry into his home (and not whether he was about to escape) was the main issue litigated at the suppression hearing.

The evidence presented at the suppression hearing shows that the police had probable cause to believe that appellant was intoxicated when in the middle of the afternoon appellant wrecked his truck, abandoned it, and “bleeding from the mouth” walked home, which was a short distance away. See Gallups v. State, 104 S.W.3d 361, 363-65 (Tex.App.-Dallas 2003). Very soon thereafter, a police officer went to appellant’s home to investigate. See id. This officer testified that, while outside, he saw appellant with blood around his mouth standing behind a full-length glass storm door and that appellant eventually motioned for the officer to come inside. See id.

Q. [PROSECUTION]: Officer, after you exited the vehicle and started walking up to the house and saw [appellant], what happened next?
A. [OFFICER]: As I approached the door, I asked him if he’d step outside the door. And instead he motioned for me to come forward, and I pushed the door open.
Q. How did he do it? Can you describe for the court how he did it?
A. To the best of my recollection, I was standing to the left side of the doorway, and I asked him. And I just reached out and opened the door, and I had to step around and walk around the door as it opened up.
Q. Did he ever tell you you couldn’t come in?
A. No.
Q. How did he motion for you to come in?
A. He just kind of indicated (demonstrating).
Q. That meant open the door?
For purposes of the record, you have your hand being extended out and coming back toward you.
A. Yes.

The officer went inside appellant’s home and arrested him shortly after corroborating other information he had that appellant was intoxicated and was the driver of the wrecked truck. See id. Appellant testified at the suppression hearing and denied that he invited the officer to come inside his home. See id. Appellant claimed on direct examination that the officer just walked inside his home and asked him if he had been driving his truck to which appellant replied that he had not.

Q. [DEFENSE]: Were you present when Officer Perkins arrived at your home?
A. [APPELLANT]: Yes.
Q. Where were you in the home?
A. I was sitting on the couch next to my mother.
Q. All right. Sitting on the couch. Could you see the front door where you were seated?
A. I could see the wooden door.
Q. But could someone on the outside of that door necessarily see you?
A. No.
Q. All right. When Officer Perkins arrived, were you standing in that glass doorway?
A. No, sir.
Q. Did you open the door for Officer Perkins?
A. No, sir.
Q. Did you make any motions towards Officer Perkins to invite him into your home?
A. No, sir.
Q. When was the first time that you physically saw Officer Perkins at your house?
A. He stepped into the doorway, and when he did, he seen me and asked me to come outside and I refused.
Q. You told him no?
A. Yes.
Q. All right. Did you have any other conversations with Officer Perkins?
A. Yes. He walked over to me where I was at and asked me if I was driving a vehicle up the street, and I told him, no, I wasn’t; that she might have been, and he asked my mother if she was driving.

Appellant later contradicted himself on cross-examination when he testified that it took him five minutes to walk from his wrecked truck to his home.

Q. [PROSECUTION]: Now, one of the questions [defense counsel] asked you was whether or not you think the Officer had time to go-talk to the constable or talk to a magistrate before coming to your house, and you said, well, I had enough time. How long did it take you to get from the truck to your house?
[APPELLANT]: Do I have to answer that?
[DEFENSE COUNSEL]: Answer his question.
A. [APPELLANT]: Probably five minutes.
Q. [PROSECUTION]: It takes you five minutes to go from your truck over on College Street to your house on Leland; is that right?
A. Yes.

Immediately following the suppression hearing, the trial court denied appellant’s motion to suppress without specifying its reasons for doing so. On direct appeal, appellant claimed that his warrantless home arrest was “tainted” because the police entry into his home was illegal under state law. See Gallups, 104 S.W.3d at 363. In a 2-1 decision, the Court of Appeals rejected this claim. See id. Apparently applying the well-settled rule that an appellate court can affirm a trial court’s decision if it is correct on any theory of law applicable to the case, the Court of Appeals decided that appellant’s warrantless home arrest met the exceptions to the warrant requirement set out in Article 14.05(1) and Article 14.03(a)(1), Tex.Code Crim. Proc. See Gallups, 104 S.W.3d at 368 n. 8.

We exercised our discretionary authority to review this decision. On discretionary review, appellant claims that his war-rantless home arrest violated state and federal constitutional law and was also not authorized by any provision in Chapter 14 of the Texas Code of Criminal Procedure. The grounds upon which we granted discretionary review state:

1) Petitioner’s arrest in his residence was in violation of the Tex.Code Crim. Proc. Art. 14.01-14.05.
2) Petitioner’s arrest in his residence was in violation of Tex. Const, art. I, § 9.
8) Petitioner’s arrest in his residence was in violation of U.S. Const., Amend. IV.
4) The error committed by the trial court contributed to Petitioner’s conviction.

Appellant’s constitutional claims (grounds two and three) were not raised in the trial court or in the Court of Appeals which did not address these claims either. We, therefore, exercise our discretion to dismiss them as improvidently granted. See Leday v. State, 988 S.W.2d 713, 714, 725 (Tex.Cr.App.1998) (significant decision addressing issue not raised by either party on discretionary review) and at 730 (McCormick, P.J., dissenting) (this Court has discretion to address issues not raised on discretionary review); but see Arline, 721 S.W.2d at 353.

We decide that appellant’s warrant-less home arrest was authorized by Article 14.05(1) which provides:

In each case enumerated where arrests may be lawfully made without warrant, the officer or person making the arrest is justified in adopting all measures which he might adopt in cases of arrest under warrant, except that an officer making an arrest without a warrant may not enter a residence to make the ar-reste ] unless:
(1) a person who resides in the residence consents to the entry ...

First we address whether the record supports a finding that appellant consented to the police entry into his home. See Reyes v. State, 741 S.W.2d 414, 430 (Tex.Cr.App.1987) (issue of whether consent to search was valid is “a question of fact to be determined from the totality of the circumstances”); see also Guzman v. State, 955 S.W.2d 85, 87-89 (Tex.Cr.App.1997) (setting out appellate standards of review of trial court’s rulings on questions of fact and questions of law). The dissenting opinion in the Court of Appeals asserts that the prosecution did not meet its burden to prove by clear and convincing evidence that appellant consented to the police entry into his home. See Gallups, 104 S.W.3d at 371 (Bridges, J., dissenting). This dissenting opinion asserts that the prosecution did not meet this burden with the officer's testimony that appellant “motioned for [the officer] to come forward” and “just kind of indicated” and with the other evidence that the dissenting opinion characterized as “some unspecified hand gesture” by appellant. See id.

This, however, does not take into account the other evidence from the officer demonstrating how appellant motioned for him not only to “come forward” but also to “come in.” And, the evidence does not show just “some unspecified hand gesture.” The evidence shows appellant’s “hand being extended out and coming back toward him.” These facts also distinguish this case from the cases cited in the dissenting opinion. See id On this record, the trial court was in the best position to decide whether appellant consented to the police entry into his home. See Guzman, 955 S.W.2d at 87 (standard of appellate review often is determined by which judicial actor is in a better position to decide the issue).

Having determined that the record supports a finding that appellant consented to the police entry into his home, the next issue under Article 14.05 is whether appellant’s warrantless arrest falls within another provision in Chapter 14 of the Texas Code of Criminal Procedure “enumerating] where arrests may be lawfully made without a warrant.” And, we decide that appellant’s warrantless arrest falls within Article 14.03(a)(1) which, in relevant part, provides:

(a) Any peace officer may arrest, without warrant:
(1) persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some ... breach of the peace ...

We have held that driving while intoxicated is a breach of the peace. See Romo v. State, 577 S.W.2d 251, 253 (Tex.Cr.App.1979). And, in Dyar v. State, we held that a hospital, where the defendant was arrested for driving while intoxicated soon after he was transported there after an accident, was a “suspicious place” under Article 14.03(a)(1). See Dyar v. State, 125 S.W.3d 460, 468 (Tex.Cr.App.2003). Similarly, under the facts of this case, appellant’s home, where he was arrested for driving while intoxicated soon after he walked there after abandoning his wrecked truck at the scene of an accident, was a “suspicious place” under Article 14.03(a)(1) and under this Court’s reasoning in Dyar.

Article 14.03(a)(l)’s additional requirement of the existence of circumstances showing that persons like appellant have been guilty of some breach of the peace, and Article 14.05(a)(l)’s requirement that someone who lives in the home consent to the police entry into the home, which also must be satisfied for an arrest to be valid under state law, are more protective than the heightened protections that the Fourth Amendment already provides against physical entry into a person’s home. See generally Welsh, v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). Thus, deciding, under these circumstances, that a home can meet the “suspicious place” requirement of Article 14.03(a)(1) is not inconsistent with these heightened privacy protections under state and federal constitutional law. In other words, the circumstances surrounding appellant’s warrantless home arrest raised a reasonable belief that appellant had committed a breach of the peace and that exigent circumstances (the need to ascertain appellant’s blood-alcohol level) existed to justify appellant’s immediate arrest. See Dyar, 125 S.W.3d at 468-71 (Cochran, J., concurring) (“suspicious place” provision in Article 14.03(a)(1) should be analyzed under the organizational principle of exigent circumstances and any “place” may become suspicious when a person at that location and the accompanying circumstances raise a reasonable belief that the person has committed a crime and exigent circumstances call for immediate action or detention by the police); cf. Welsh, 466 U.S. at 753-54, 104 S.Ct. 2091 (exigent circumstance of need to ascertain the defendant’s blood-alcohol level not sufficient to justify the defendant’s warrantless home arrest for drunk driving because state law defined this offense as a “noncriminal, civil forfeiture offense for which no imprisonment [was] possible”).

Our decision in this case does not give the police carte blanche authority to unilaterally make warrantless home arrests. Our state statutes strike a proper balance between the competing interests of privacy and legitimate police investigation of crimes that constitute a breach of the peace.

Our disposition of ground one makes it unnecessary to address ground four, which we also dismiss. The judgment of the Court of Appeals is affirmed.

PRICE, J., filed a concurring opinion.

MEYERS and JOHNSON, JJ., concurred.

KELLER, PJ., dissented.

PRICE, J.,

concurring.

The majority addresses two questions in this case: The first is whether the police had consent to enter the appellant’s home to investigate a one-car accident that occurred a few blocks from the home. The second is whether the officer had the authority, under an exception to the warrant requirement under the Code of Criminal Procedure, to arrest the appellant in the absence of a warrant. Because the appellant did not preserve the first question for appellate review, I would not address it.

The appellant filed a motion to suppress in which he claimed that his arrest was illegal because “it was conducted without a valid warrant and no exception to the warrant requirement applied.” He went on to discuss Code of Criminal Procedure Article 14.04 and case law interpreting it. He then argued that the illegally obtained evidence was not admissible under Code of Criminal Procedure Article 38.23 and that the evidence was the fruit of the poisonous tree. The appellant never mentioned Article 14.05, and he did not claim that the officer’s entry into his home was illegal.

The trial court held a hearing on the appellant’s motion. During the hearing, two officers who had been involved in the investigation and arrest testified.

During his opening statement, defense counsel summarized the facts of the case and then said “The police sometime thereafter, found an insurance card in the vehicle and went into the home, to the address that was on the insurance card, and then made entry into the home, is what’s at question, and the subsequent arrest that took place there.” The State made a short statement, summarizing the facts that defense counsel had not covered. The trial court swore the witnesses and heard testimony.

Officer Robbie Butler testified that he arrived on the scene of a one-vehicle accident on a December afternoon. A Dodge Ram Charger had crashed into a utility pole, and wires lay on the ground across the road. The driver of the Dodge was missing. A man who had seen the accident and who was waiting in his car for police to arrive spoke with Butler about the accident and described the driver of the Dodge.

The witness described the driver as a white male who was wearing a gray sweat shirt and blue jeans. The driver had a white spot in his hair and blood near his mouth. The witness said that he could smell alcohol on the driver and showed Butler the direction in which the driver had walked when he left the scene.

Butler checked the Dodge to make sure that no one was inside. Then he checked the insurance card in the glove box. The card gave the appellant’s name and address, which was about three blocks from the scene of the accident and in the direction that the "witness said the driver had gone. Butler contacted Corporal Bill Perkins, who was en route. He gave Perkins a description of the driver and the address listed on the insurance card.

Perkins testified that he drove to the address, and as he walked up to the glass storm-door, he saw the appellant, who matched the physical description of the driver that he had received from Butler. Perkins asked the appellant to step outside to talk to him. Instead of answering or coming out, the appellant motioned Perkins forward. Perkins opened the door and walked into the house.

Perkins asked the appellant if he had been involved in an accident. The appellant claimed that he had let his mother, who was present in the room, drive the Dodge. The appellant’s mother denied driving the Dodge, however. Perkins noticed that the appellant’s speech was slurred and that he had trouble pronouncing some of his words. Perkins asked the appellant if he had anything in his pocket. The appellant started walking toward Perkins “in a defensive stance” and said that he had a gun and a knife. When the appellant approached Perkins, the officer could smell alcohol on him. The appellant reached for Perkins, after which Perkins physically restrained him. Perkins radioed dispatch and had a unit sent to the appellant’s address to pick him up.

The appellant needed assistance to walk. He was attended by a medical unit, and Perkins returned him to the scene of the accident before he was transported to the jail.

The appellant’s mother testified that she had been sitting in a recliner and that the appellant had been at home sitting on the couch for about twenty-five minutes when Perkins came to the door. She said that, without knocking, Perkins opened the door and entered her home. She said that Perkins questioned the appellant. During the questioning, she said that she left the room for a few minutes. When she returned her son was on the floor and Perkins was handcuffing him. She also said that, although her son was living in the home, he did not have the authority to consent to allow someone enter her home.

The appellant testified that he had been sitting on the couch when Perkins arrived at the door. He said that Perkins stepped into the doorway and asked him to come outside. The appellant declined, and Perkins came inside and questioned him. The appellant said that he asked Perkins if he had a warrant, and Perkins did not respond. After questioning the appellant, Perkins arrested him and took him outside.

While the State was cross-examining the appellant, the trial judge interrupted the testimony and told the parties that he had a plea agreement to preside over.

[Court]: Say, listen, I’m about to start trying another case. How much time do you need?
[State]: Well, Your Honor, about five minutes.
[Court]: This case is in recess, and I’ll call you guys back.
All right. Let’s go — let’s do this plea.
[Defense]: Judge, are you calling us back today?
[Court]: I’ll call you back today. But let me tell you something, I already know what I’m going to do here. So if you guys want me to tell you what I’m going to do, or come back, what would you rather do?
[State]: Well, if it’s the court’s position that the decision has already been made at this point in time, the State would pass the witness.
[Defense]: We rest.
[Court]: Both sides rest and close. Would you like to be heard?
[Defense]: I’m asking you to suppress anything gained after the officer entered the home.
[Court]: The Motion to Suppress is denied.

On direct appeal, the appellant claimed, among other things, that the motion to suppress should have been granted on the basis of Article 14.05. But this claim was not preserved for review.

Not long ago, in a unanimous opinion, we noted that to preserve a claim for review, the defendant must make a timely and specific objection. “ ‘except for complaints involving fundamental constitutional systemic requirements ..., all other complaints ... are waived by failure to comply with Rule [of Appellate Procedure] 33.1.’ ” And even more recently, regarding preservation of error, the Court said,

Texas Rule of Appellate Procedure 33.1(a)(1)(A) provides, in relevant part, that for a complaint to be presented on appeal, a timely request, objection, or motion must have been made to the trial court, which “states the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.” Texas Rule[] of Evidence 103(a)(1) contains similar guidelines, providing that “a timely objection or motion to strike [must appear] on the record, stating the specific ground of objection, if the specific ground was not apparent from the context.” Additionally, it is well settled that the legal basis of a complaint raised on appeal cannot vary from that raised at trial.

I see no reason that these principles should not be applied in this case.

The appellant did not mention Article 14.05 in his motion to suppress. He did not mention Article 14.05 during the hearing on his motion to suppress. The appellant was given an opportunity to be heard at the end of the hearing. Instead of saying that he wished to add Article 14.05 as a basis for the motion to suppress, defense counsel said, “I’m asking you to suppress anything gained after the officer entered the home.”

During his opening remarks, defense counsel said that there was some question about the entry into the home. Also, there was some evidence admitted during the motion to suppress hearing that could have been relevant to a claim under Article 14.05, it was not sufficient to preserve review. But the same statement and evidence could be relevant to the issue of consent under the Fourth Amendment to the United States Constitution or Article 1, Section 9 of the Texas Constitution. Did the appellant intend to preserve a claim under Article 14.05; Article 1, Section 9; or the Fourth Amendment? All of them? We cannot tell. More importantly, neither the trial court, nor opposing counsel, could tell.

We do not look at the evidence admitted during a suppression hearing to discern what the parties claims were. Trial courts, opposing counsel, and reviewing courts should not have to guess about what a defendant is claiming. In this case, the appellant made no mention that he wanted to invoke Article 14.05. As a result, I would conclude that the appellant has not preserved the claim for appellate review, and I would not review the merits of the claim.

III. Conclusion

I agree with the majority that the appellant’s arrest was authorized under Article 14.03(a)(1). I would not address the appellant’s claims under Article 14.05. I concur in the judgment.

      . It is, therefore, clear that whether appellant consented to the police entry into his home was raised and preserved in the trial court. See Article 14.05(1), Tex.Code Crim. Proc., (police may not enter home to make warrantless home arrest unless a person who resides in the home consents to the entry). The concurring opinion claims that the evidence presented at the suppression hearing could have been relevant to other claims under the federal and state constitutions. Appellant, however, raised no constitutional claims in the trial court. The only claim raised and litigated at the suppression hearing was whether appellant consented to the police entry into his home. And, no authority exists to support the proposition that we may not look to the issue actually litigated at a suppression hearing to determine what issues and claims were preserved.

      . See State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Cr.App.2000).

      . With respect to the issue of whether this Court should address the Article 14.05(1) issue, it is not dispositive that appellant may not have preserved this issue in the trial court (but see footnote 1) since the Court of Appeals properly addressed it under Ross, 32 S.W.3d at 855-56, and we granted discretionary review on it. See Arline v. State, 721 S.W.2d 348, 353 (Tex.Cr.App.1986) (this Court’s "review is limited to those points of error decided by the courts of appeals, included in petitions for discretionary review and granted as grounds for review"). In addition, the legality of appellant's warrantless home arrest cannot be intelligently resolved without addressing Article 14.05(1) which expressly applies to home arrests. See State v. Brabson, 976 S.W.2d 182, 200 (Tex.Cr.App.1998) (McCormick, P.J., concurring) (discretionary review courts may appropriately decide all questions of law predicate to an intelligent resolution of the issue upon which discretionary review is granted); see also Cuyler v. Sullivan, 446 U.S. 335, 342 n. 6, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Vance v. Terrazas, 444 U.S. 252, 258, 100 S.Ct. 540, 62 L.Ed.2d 461 (1980). Deciding that appellant’s warrantless home arrest is legal solely because it meets the Article 14.03(a)(1) exception to the warrant requirement could leave the police with the impression that warrantless home arrests are legal under state law even though these arrests do not comply with Article 14.05’s heightened privacy protections.

      . In this case, the record does not clearly reflect whether the arresting officer entered appellant’s home “to malee the arrest.” It appears that the officer may have entered the home for investigative purposes after which the decision "to make the arrest” was made. We will assume, however, that the officer entered appellant’s home "to make the arrest.”

      . Q. [PROSECUTION]: How did [appellant] motion for you to come in?
      A. [OFFICER]: He just kind of indicated (demonstrating).
      Q. That meant open the door?
      For purposes of the record, you have your hand being extended out and coming back toward you.

      . See Roth v. State, 917 S.W.2d 292, 300 (Tex.App.-Austin 1995, no pet.) (no clear and convincing evidence of consent where the defendant "looked as though” he wanted the police to follow him into his residence); Green v. State, 666 S.W.2d 291, 293 (Tex.App.-Houston [14th Dist.] 1984, no pet.) (no consent from singular act of the defendant opening her front door).

      . Welsh decided that a nighttime, warrantless home arrest of a defendant for drunk driving shortly after he ran his car off the road and walked home violated the Fourth Amendment because Wisconsin law defined a first drunk-driving offense as a minor, nonjailable civil violation. See Welsh, 466 U.S. at 743-48, 753-55, 104 S.Ct. 2091. Our state law, however, defines a first drunk driving offense as a jailable criminal offense. See § 49.04(b), Tex. Pen.Code. (first DWI offense is Class B misdemeanor with a minimum term of confinement of 72 hours); § 12.22, Tex.Pen.Code (maximum punishment for Class B misdemeanor is 180 days in jail and a $2,000 fine). Therefore, to the extent that Welsh has any bearing on what constitutes exigent circumstances under state law, it would not foreclose deciding that the need to ascertain appellant’s blood-alcohol level was an exigent circumstance justifying his warrantless home arrest. Of course, we express no opinion on whether appellant’s warrantless home arrest violated the Fourth Amendment.

      .Article 14.04 states the following:
      Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.

      . Sic passim.

      . During the hearing on the motion to suppress Perkins demonstrated the gesture. His hand was extended, and then he moved his hand back toward himself.

      . Mendez v. State, 138 S.W.3d 334, 339 (Tex.Crim.App.2004) (quoting Ibarra v. State, 11 S.W.3d 189, 197 (Tex.Crim.App.1999)).

      . Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App.2004) (Meyers, J., joined by Keller, P.J., and Womack, Keasler, Hervey, and Cochran, JJ.) (citations omitted) (emphasis added in opinion quoted).


author: JAMES T. WORTHEN, Chief Justice.

text:
    Buddy KINDLE, Appellant, v. WOOD COUNTY ELECTRIC CO-OP, INC., Appellee.
    No. 12-02-00378-CV.
    Court of Appeals of Texas, Tyler.
    Feb. 4, 2004.

      Buddy Kindle, pro se.
    Jessica Stettler, Austin, for appellee.
    Panel consisted of JAMES T. WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

Buddy Kindle (“Kindle”) appeals the trial court’s summary judgment in favor of Wood County Electric Co-Op, Inc. (‘WCEC”). In five issues on appeal, Kindle contends that the trial court erred in granting the summary judgment. We affirm the trial court’s judgment.

Background

Kindle owns sixty-three acres in Wood County. On October 27, 1998, WCEC trimmed and cut trees along its three power lines located on Kindle’s sixty-three acre tract of land. These three power lines were located at the extreme northwest, southwest, and southeast corners of Kindle’s land. On October 27, 2000, Kindle filed suit against WCEC alleging causes of action based on trespass, fraud, tortious interference with business activities, and tortious interference with a contract. Kindle sought actual damages against WCEC “in an amount in excess of $500,000.00.” He further sought exemplary and punitive damages against WCEC “in an amount in exceeding [sic] $2,500,000.00.” Kindle then failed to pay the Wood County district clerk to issue citation until February 8, 2001. The citation was not delivered to the Wood County sheriff until February 9, 2001, and it was finally served on WCEC February 14, 2001.

WCEC filed a general denial and alleged that it had the authority to trim and cut the trees along its three power lines on the corners of Kindle’s property under a prescriptive easement. Eventually, WCEC filed a traditional motion for summary judgment establishing that it had not been served until February 14, 2001. WCEC alleged that Kindle had failed to exercise due diligence in serving it and that as a result, the statute of limitations had run before WCEC had been served. See Tex. PRAC. & Rem.Code Ann. § 16.003(a) (Vernon 2002). The trial court set a hearing on WCEC’s motion for summary judgment for November 21, 2002, which was almost three months after it had been filed. On the date of the summary judgment hearing, Kindle appeared and attempted to file a written response to the motion for summary judgment with an attached affidavit. The trial court refused to allow Kindle leave to file his written response. See Tex.R. Civ. P. 166(a)(c). The trial court then granted WCEC’s motion for summary judgment and dismissed Kindle’s suit. Kindle timely perfected this appeal.

Standard of Review

In a traditional motion for summary judgment, the movant has the burden to show that there exists no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). A court properly grants summary judgment in favor of a defendant if the defendant establishes all elements of an affirmative defense. American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). If the non-movant fails to timely respond to the motion for summary judgment, as occurred in this case, the non-movant can only attack the legal sufficiency of the movant’s summary judgment proof on appeal. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979).

Dub Diligence in Serving WCEC

In his fourth issue, which we will consider first, Kindle contends that the trial court erred in determining that he had not used due diligence in serving WCEC after limitations had run. See Tex. PRAC. & Rem.Code Ann. § 16.003(a).

Mere filing of suit will not interrupt the running of limitations unless due diligence is exercised in the issuance and service of citation. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex.1990). Due diligence is lacking as a matter of law when uncontroverted summary judgment evidence shows an extended period of time in which no attempt at service of process is made. See Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex.1990). An unexplained delay constitutes a lack of due diligence as a matter of law. Id. Therefore, we need not determine that three and one-half months delay is a lack of due diligence as a matter of law to uphold the summary judgment. Id.; see also Holt v. D’Hanis State Bank, 993 S.W.2d 237, 241 (Tex.App.-San Antonio 1999, no pet.); $6,453.00 v. State, 63 S.W.3d 533, 536 (Tex.App.-Waco 2001, no pet.) (extended periods of time in which no attempts at service of process are made — which are unexplained — as a matter of law show lack of due diligence). Because Kindle did not produce any summary judgment evidence to explain his delay in serving WCEC after the limitations period had run, we overrule his issue four.

Use of Affirmative Defense

In his first issue, Kindle contends that the trial court erred in granting the motion for summary judgment because WCEC had not pleaded the statute of limitations defense in either its original or first original answers filed in the proceeding. See Tex.R. Civ. P. 94. WCEC responds that even if not pleaded prior to a summary judgment motion, an affirmative defense may serve as the basis for a summary judgment if there is uncontroverted summary judgment evidence. We agree with WCEC.

An unpleaded affirmative defense may serve as the basis for a summary judgment when it is raised in the summary-judgment motion, and the opposing party does not object to the lack of a Rule 94 pleading in either its written response or before the rendition of judgment. Roark v. Stallworth Oil and Gas, Inc., 813 S.W.2d 492, 494 (Tex.1991); see also Texas Gen. Indem. v. Worker’s Comp. Comm’n., 36 S.W.3d 635, 639 (Tex.App.-Austin 2000, no pet). In the case before us there were no written objections to WCEC’s summary judgment motion, and Kindle did not raise this objection during the summary judgment hearing. We therefore overrule Kindle’s first issue.

Authority of WCEC Attorney

In his second issue, Kindle contends that the trial court erred by allowing Coy Johnson (“Johnson”) to appear at the summary judgment hearing to argue WCEC’s motion for summary judgment. In his fifth issue, Kindle contends that the trial court erred by communicating with Johnson because he was not an attorney of record and had not been properly substituted as WCEC’s attorney of record. We will consider Kindle’s issues two and five together.

Johnson had not previously appeared in this ease until the filing of the motion for summary judgment on August 26, 2002. He signed that summary judgment motion which showed him appearing with WCEC’s attorney of record, Jessica Stettler of Dallas. The record before us indicates that Kindle was aware that Johnson, whose office is in Sulphur Springs, commonly represented WCEC in its proceedings in the region. Any party to a suit may appear and prosecute or defend his rights therein either in person or by an attorney of the court. Tex.R. Crv. P. 7. The right of a litigant to be represented by the attorney of his choice is a significant one. Keller Industries, Inc. v. Blanton, 804 S.W.2d 182, 185 (Tex.App.-Houston [14th Dist.] 1991 orig. proceeding). When it is established that a licensed attorney complies with the rules and regulations of a state and court, the party choosing the attorney as a representative in court should not be denied that choice by the courts except for compelling reasons. See id.

If Kindle believed that Johnson did not have the authority to represent WCEC, he was required to file a sworn written motion stating that belief ten days prior to a hearing on the motion. Tex.R. Civ. P. 12. Rule 12 is the exclusive method for questioning the authority of an attorney to represent a party in any court proceeding. Fulcher v. Texas State Board of Public Accountancy, 571 S.W.2d 366, 371 (Tex.App.-Corpus Christi 1978, writ ref d n.r.e). The record indicates that Kindle failed to follow this exclusive method to challenge Johnson’s authority to represent WCEC. Therefore, we overrule Kindle’s issues two and five.

Agreement Not to Pursue Limitations Defense

In his third issue, Kindle contends that the trial court erred by allowing WCEC to prosecute its motion for summary judgment based on his lack of due diligence in effecting service of process until after limitations had run because it had made an agreement with him that it would not pursue that defense in his case. However, Kindle cites no authority for this proposition. An appellant’s failure to cite authority in support of a point may constitute waiver. McFarland v. Sanders, 932 S.W.2d 640, 647 (Tex.App.Tyler 1996, no writ).

Furthermore, as a requirement to present a complaint for appellate review, the record must show that the argument was timely presented to the trial court. See Tex.R.App. P. 33.1(a)(1). To preserve a complaint for appellate review, a party must present to the trial court a timely request, motion or objection, state the specific grounds therein, and obtain a ruling. Wal-Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex.1999). The purpose of this requirement is that a specific objection be lodged in the trial court to ensure that the trial court has the opportunity to rule on the issue. In the Interest of Shaw, 966 S.W.2d 174, 182 (Tex.App.-El Paso 1998, no pet.). Kindle failed to preserve a complaint regarding any agreement he may have had with WCEC regarding its limitations defense when he did not bring this argument to the court’s attention. Kindle’s third issue is overruled.

Conclusion

Having overruled Kindle’s five issues, we affirm the judgment of the trial court.


author: Justice O’NEILL. Justice WHITTINGTON,

text:
    In re Joyce Elizabeth SANDERS, Relator.
    No. 05-03-01678-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 13, 2004.
    Julie H. Quaid, Charles Joseph Quaid, Quaid & Quaid LLC, Dallas, for relator.
    Mary D. McKnight, Law Office of Mary D. McKnight, Dallas, for real party of interest.
    Before Justices WHITTINGTON, O’NEILL, and LANG.
   MEMORANDUM OPINION

Opinion by

Justice O’NEILL.

In her petition for writ of mandamus, relator contends the trial court abused its discretion in denying her motion to disqualify opposing counsel because opposing counsel is a material fact witness. We agree and conditionally grant the writ.

Joyce Sanders and Bill Sanders are parties to a pending divorce and child custody suit. Bill Sanders works evenings and some weekends as a carpenter for his counsel in the divorce proceeding, Mary McKnight, to pay his legal fees. Joyce moved to disqualify McKnight from representing Bill alleging McKnight is a material fact witness for Bill in the custody case because she is his employer. After a hearing, the associate judge recommended the motion be denied. The parties agreed to allow the trial court to decide the matter de novo based on the record of the hearing before the associate judge. The trial court denied the motion to disqualify. Joyce then filed this original proceeding asserting McKnight is a fact witness on the contested issues of child custody and support. Bill responds that Joyce’s motion is untimely, is a tactical weapon, and counsel’s testimony does not go to an essential fact in the case.

In order to obtain a writ of mandamus, a relator must establish (1) that she does not have an adequate remedy at law and (2) the trial court clearly abused its discretion in denying the motion to disqualify. Walker v. Packer, 827 S.W.2d 833, 839-44 (Tex.1992) (orig.proceeding). There is no adequate remedy at law for an order on a motion to disqualify counsel and relief by mandamus is an available remedy. In re Epic Holdings, Inc., 985 S.W.2d 41, 54 (Tex.1998) (orig.proceeding). We review the record presented to determine if the trial court clearly abused its discretion in denying the motion to disqualify.

We look to disciplinary rule of professional conduct 3.08 for guidance in determining disqualification of counsel. Anderson Producing, Inc. v. Koch Oil Co., 929 S.W.2d 416, 421-22 (Tex.1996) (citing Ayres v. Canales, 790 S.W.2d 554, 556 n. 2 (Tex.1990) and Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex.1990)). Rule 3.08 provides that

(a) A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s client, unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony;
(3) the testimony relates to the nature and value of legal services rendered in the case;
(4) the lawyer is a party to the action and is appearing pro se;
(5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work a substantial hardship on the client.

Tex. DisciplinaRY R. Prof’l Conduct 3.08 reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (Tex. State Bar R art. X § 9).

After reviewing the record, we conclude the trial court abused its discretion in denying the motion to disqualify McKnight from acting as trial counsel for Bill. McKnight’s testimony as an employer relating to Bill’s abilities to care for the minor child or pay child support, and her possibly adverse testimony about when the employment began leads us to conclude a fact finder may be confused or mislead by McKnight’s dual roles. McKnight may continue to act as counsel for Bill on pretrial matters and, if the requirements of 3.08(c) are met, other attorneys with McKnight’s firm may act as advocate for Bill in any adjudicatory proceeding in this case. Anderson, 929 S.W.2d at 422-23; In re Bahn, 13 S.W.3d 865, 873; Tex. Disciplinary R. Prof’l Conduct 3.08(c).

Accordingly, the Court conditionally GRANTS the writ of mandamus. The trial court is ORDERED to vacate its order denying relator’s motion to disqualify counsel and to enter an order disqualifying Mary McKnight from acting as an advocate for Bill Sanders before any tribunal in the case styled In the matter of the marriage of Joyce Elizabeth Sanders and Bill Martin Sanders and in the interest of Grade Claire Sanders, a minor child, number 02-15189, within thirty days of the date of this opinion and judgment. Should the trial court fail to do so, the writ will issue. The trial court is ORDERED to file a certified copy of its order in compliance with this opinion and judgment with this Court within thirty days of the date of this opinion and judgment.

WHITTINGTON, J., dissenting.

Justice WHITTINGTON,

dissenting.

I respectfully dissent from the majority’s decision to conditionally grant the 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 when there is no adequate remedy at law. Republican Party of Tex. v. Dietz, 940 S.W.2d 86, 88 (Tex.1997) (orig.proceeding). With respect to the resolution of factual issues or matters committed to the trial judge’s discretion, we may not substitute our judgment for that of the trial judge unless the relator establishes that the trial judge’s decision is arbitrary and unreasonable. Walker v. Packer, 827 S.W.2d 838, 889-40 (Tex.1992) (orig.proceeding). The “employment” referred to by the majority is the performance of handyman jobs that Bill Sanders did for Mary McKnight after hours to help defray the cost of attorney’s fees. The record before us supports the trial judge’s determination that any confusion caused by McKnight’s testimony regarding Bill’s completion of the jobs for her would be de minimis.

Additionally, disciplinary rule of professional conduct 3.08 should not be used as a tactical weapon to deprive the opposing party of the right to be represented by the lawyer of his or her choice because reducing the rule to such a use would subvert its purpose. Tex. DisciplinaRY R. PROf’l Conduct 3.08 cmt. 10, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (Tex. State Bar R. art. X, § 9). That is precisely what happened in this case. Relator’s attorney was aware of issues regarding the handyman work for at least nine months prior to the priority jury trial setting in this case. Counsel waited until two months before trial to designate McKnight as a witness that he would call and move to disqualify her from representing her client.

In this bitterly contested divorce and custody case, the trial judge was in a much better position than the appellate court to evaluate the evidence, balance the competing interests, apply the law, and reach a decision. She did not reach a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error as a matter of law. Because the majority concludes the trial judge abused her discretion, I respectfully dissent. I would deny relator’s petition writ of mandamus.