text:
    The STATE of Texas, Appellant, v. Michael Doyle GRAY, Appellee.
    No. 12-03-00207-CR.
    Court of Appeals of Texas, Tyler.
    Feb. 18, 2004.
    Rehearing Overruled March 12, 2004.
    Discretionary Review Granted Sept. 22, 2004.

      Brian M. Schmidt, for appellant.
    Shawn McDonald, for state.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J. and DeVASTO, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

The State of Texas (the “State”) appeals the trial court’s order granting Michael Doyle Gray’s (“Gray”) motion to suppress 4.63 grams of methamphetamine seized during a strip search at the Henderson County jail. The State contends in one issue that the trial court misapplied the law to its findings of fact and therefore improperly granted the motion to suppress. We reverse and remand.

Factual Background

On April 3, 2003, investigator Jody Mil-, ler (“Miller”) of the Henderson County Sheriffs Department (the “sheriffs department”) received word from a confidential informant, who had a record of reliability, that Gray was in the process of transporting methamphetamine across Henderson County. Miller contacted Sergeant Tony Duncan (“Duncan”) of the sheriffs department with this information and asked him to stake out a position at the corner of Farm-to-Market Road 3704 (“3704”) and Farm-to-Market Road 1803 (“1803”). Shortly after Duncan arrived at his assigned position, Miller notified him by radio that he had spotted Gray turning onto 3704 in a green Chevrolet pickup. Miller also told Duncan that Gray had failed to signal his intention to make a right-hand turn while turning onto 3704. As Gray slowed to make the stop at the intersection of 3704 and 1803, he spotted Duncan and a surprised look came over his face. After making the stop, Gray turned right onto 1803 without signaling. Duncan, who was in a marked sheriff’s vehicle, immediately pulled in behind Gray and turned on his overhead lights. As he did so, Duncan observed Gray raising himself off the pickup seat about three to four inches. Duncan testified that Gray “did a lot of wiggling” before he sat back down and then pulled over. Duncan estimated that Gray’s pickup traveled between four hundred and six hundred feet after he engaged his emergency lights before Gray pulled over to the side of the road.

Duncan approached Gray and asked for his driver’s license. Duncan noted that Gray’s demeanor was different than he had ever seen before. Although Gray normally was arrogant and cocky around law enforcement, he was nervous and fidgety during the stop. Gray gave Duncan his driver’s license as requested. While Duncan was checking Gray’s driver’s license, Miller and Lieutenant Kay Langford (“Langford”) of the sheriffs department arrived on the scene. Gray gave Langford his consent to search his pickup when she asked him. No drugs were found. The police department in Chandler, approximately 16 miles away from this traffic stop, was immediately called to dispatch its drug-sniffing dog to the scene.

Duncan asked Gray to produce his proof of insurance card, which Gray retrieved after two trips to his pickup. While Gray was walking to his pickup, Miller observed that Gray was not walking in his usual manner. According to Miller, Gray was “kind of squinched up” with the tops of his legs together as though he was holding something in his buttocks and trying to prevent it from falling out. At that point, Miller began forming an opinion that Gray had something on his person that he was trying to conceal.

Once the drug dog arrived from Chandler, it alerted to drugs on the driver’s side seat of Gray’s pickup as well as the driver’s side door. The pickup was searched for a second time. Again, no drugs were found. Duncan then advised Gray that he was going to be arrested for failing to signal before turning and would be taken to the Henderson County Jail.

When informed he was actually going to be arrested, Gray began talking to Miller about drugs. He told Miller that there had been an offer made to him earlier at the Cole farm, also in Henderson County, to trade some cyclone fencing for drugs. Gray said that he did not have the drugs with him. Further, Gray told Miller that he would let him know everything he knew about drugs and volunteered to help him arrest and make cases on drug dealers operating in the county if he could be an informant.

As part of the process of booking Gray into the Henderson County Jail, a strip search was performed to determine if deadly weapons or contraband was concealed on Gray’s person. This was standard operating procedure for all individuals booked into the jail. When Gray was strip searched, a clear plastic baggy containing 4.63 grams of methamphetamine fell out from between his buttocks.

Procedural History

Gray was subsequently charged with possession of a controlled substance. A hearing was held on April 11 on the State’s motion for denial of bail. The State presented testimony from Duncan and Miller on the factual background leading to Gray’s arrest and testimony by Ty Choate, Director of the Henderson County Probation Department, that Gray had two previous felonies. The trial judge denied bail. On April 29, Gray filed a motion to suppress the methamphetamine, contending that it was illegally seized. A hearing was held on this motion on May 27, with only Duncan testifying for the State. The trial judge, who had also conducted the bail hearing, took the matter under advisement. On June 18, he sent a letter to the parties granting Gray’s motion to suppress and making the following findings of fact:

1. Based upon a tip that Gray possessed drugs, the Sheriffs Department engineered a pretext detention of Gray.
2. Gray failed to signal at a stop sign.
3. Sheriffs Department made a stop and detained Gray.
4. Gray gave consent to search his vehicle.
5. The vehicle was searched twice.
6. After an hour detention, Sheriffs Department arrested Gray for the traffic violation; but, the reason for the traffic arrest related back to the pretext, namely drug possession. See the Exhibit attached hereto.
7.After Gray’s arrest, drugs were found on his person.

Following the seven findings of fact, the trial judge entered two conclusions of law as follows:

1. There is no evidence in the record to support the “probable cause” of the pretext.
2. There is no evidence in the record to support Gray having committed any offense independent of the pretext that could justify the continued detention.

The State immediately appealed the trial court’s granting of Gray’s motion to suppress. See TexCode Crim. PROC. Ann. art. 44.01(a)(5) (Vernon Supp.2004). In one issue, the State contends that the trial judge misapplied the law to his findings of fact and therefore the order granting Gray’s motion to suppress was error.

Standard of Review

We review a trial court’s ruling on a motion to suppress under a bifurcated standard of review. See Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000). We give almost total deference to the trial court’s determination of historical facts, while conducting a de novo review of the trial court’s application of the law to those facts. Id. In applying this standard, we must examine the record as it existed at the time of the suppression hearing. O’Hara v. State, 27 S.W.3d 548, 551 (Tex.Crim.App.2000).

Reasonableness of Search and Seizure

A traffic stop is a Fourth Amendment seizure resembling an investigative detention. See State v. Daly, 35 S.W.3d 237, 241 (Tex.App.-Austin 2000, no pet.) (citing Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984)). An investigative detention is a seizure. Powell v. State, 5 S.W.3d 369, 375 (Tex.App.-Texarkana 1999, pet. ref'd). Therefore, a traffic stop must be reasonable under the United States and Texas Constitutions. See U.S. Const, amend. IV; Tex. Const, art. I, § 9. Gray contends that his detention, the search, and the eventual seizure of the 4.63 grams of methamphetamine were unreasonable under both the Fourth Amendment and Article I, section 9 of the Texas Constitution.

To determine whether an investigative detention is reasonable under the Fourth Amendment, we make the following two inquiries:

1) Whether the officer’s action was justified at its inception; and
2) Whether it was reasonably related in scope to the circumstances which justified the interference in the first place.

Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1878-79, 20 L.Ed.2d 889 (1968). Reasonableness is measured in objective terms by examining the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996). In applying this test, the Supreme Court has consistently eschewed bright-line rules, and has instead emphasized the fact-specific nature of the reasonableness inquiry. Id. If during the course of a valid investigative detention, the officer develops a reasonable suspicion that the detainee is engaged in or soon will engage in criminal activity, a continued detention is justified. Powell v. State, 5 S.W.3d at 377. After the initial traffic-violation stop, the officer is entitled to rely on all of the information obtained during the course of his contact with the citizen in developing the articulable facts that would justify a continued investigatory detention. Id. (citing Razo v. State, 577 S.W.2d 709, 711 (Tex.Crim.App. [Panel Op.] 1979); Bustamante v. State, 917 S.W.2d 144, 146 (Tex.App.-Waco 1996, no pet.)). Where the initial detention is based on a traffic violation, various combinations of factors will support a reasonable suspicion of criminal activity, sufficient to justify a continued detention or further questioning unrelated to the traffic violation. See id.

Under the first inquiry of the reasonableness test in Terry, we must determine whether the initial stop was justified. See Terry, 392 U.S. at 20, 88 S.Ct. at 1879. The trial judge, in his second finding of fact, states that “Gray failed to signal at a stop sign.” Under Texas law, an operator of a motor vehicle must indicate his intention to turn or he has violated a traffic law of the State of Texas. Tex. TRANSp. Code AnN. § 545.104(a) (Vernon 1999). In Texas, a police officer may lawfully stop and detain a person for a traffic violation. Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App.1992). If probable cause exists for the officer to believe a traffic violation has transpired, the stop is reasonable. Whren v. U.S., 517 U.S. 806, 809-10, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996); Walter v. State, 28 S.W.3d 538, 542 (Tex.Crim.App.2000). The facts in this case show that Duncan had probable cause to stop Gray. Therefore, we answer the first inquiry in the affirmative.

With reference to the second inquiry under Terry, we review the record to determine whether there is sufficient evidence in the record to support Gray’s continued detention. At the motion to suppress hearing, Duncan testified that the way Gray acted after he had been stopped, his unusual movement in the vehicle prior to the stop, the drug dog’s alerting on the driver’s seat and driver’s side door of Gray’s pickup, and the officers’ failure to find drugs after searching Gray’s pickup twice caused him to believe that Gray may have had drugs on his person. Miller also testified to these same facts. Additionally, Miller observed that Gray was walking in a manner that made it appear that he was trying to keep something between his buttocks and that Gray was interested in helping law enforcement officials with other drug investigations. The combination of these six circumstances support a reasonable suspicion of criminal activity that justified a continued detention and further questioning of Gray unrelated to the traffic violation. See Powell, 5 S.W.3d at 377.

In response, Gray cites two cases to show that the search of Gray and his vehicle were unreasonable under the Fourth Amendment. However, both cases are distinguishable. The first case Gray cites is McQuarters v. State, 58 S.W.3d 250 (Tex.App.-Fort Worth 2001, pet. ref'd). That case is not applicable because McQuarters refused to give law enforcement officials authority to search his vehicle. Id. at 254. Here, Gray almost immediately gave the Henderson County Sheriffs Department consent to search his pickup. Neither probable cause nor exigent circumstances are required to justify a warrantless search where consent has been validly obtained. See Reasor v. State, 12 S.W.3d 813, 817 (Tex.Crim.App.2000). Gray did not contest the validity of his consent either at trial or on appeal.

The second case Gray cites is Herrera v. State, 80 S.W.3d 283 (Tex.App.-Texarkana 2002, pet. ref'd). In that case, Herrera had been stopped by a police officer for a traffic violation, failure to maintain a single lane, that had been observed by another officer. Id. at 287. Herrera gave the officer his valid Texas driver’s license, and the officer ran a background check on the license number. Id. The officer who stopped Herrera did not issue Herrera a citation because he had not actually seen the traffic violation. Id. However, Herrera did not speak English, and the officer asked Herrera to remain on the scene until a Spanish-speaking officer arrived. Id. The Spanish-speaking officer obtained written consent from Herrera to search his vehicle. During the subsequent search, a controlled substance was found in Herrera’s vehicle. Id. The Texarkana court determined that the State had failed to produce evidence of articulable facts showing a reasonable suspicion of illegal activity which justified detaining Herrera at the scene until the Spanish-speaking officer arrived. Id. at 288-89.

The facts in Herrera are distinguishable from the facts involving Gray’s search and detention. Gray consented to the search of his vehicle about five minutes after Duncan stopped him while Herrera did not consent until some time after his detention should have terminated. Furthermore, the State presented no evidence to warrant detaining Herrera beyond the time needed to effectuate the initial stop. Id. at 289. Any continued detention must be based on articulable facts which, taken together with rational inferences from those, facts, would warrant a person of reasonable caution in the belief that a continued detention was justified. Id. at 288. There were no such articulable facts or circumstances in Herrera, but there are at least six articulable facts and circumstances stated by Duncan and Miller in the record in the instant case. Therefore, we hold that the second inquiry under Te->ry must also be answered in the affirmative.

The trial court’s second conclusion of law states there was no offense independent of Gray’s drug possession to justify his continued detention. Again, we observe that this conclusion fails to comport with the court’s own findings of fact. The court specifically determined that Gray had failed to signal at a stop sign. Any peace officer may arrest without warrant a person found committing a traffic violation. Tex. Transp. Code ANN. § 543.001 (Vernon 1999). When Duncan arrested Gray for failing to signal his turn onto 1803, he did not violate Gray’s Fourth Amendment rights. See Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 1557, 149 L.Ed.2d 549 (2001). We hold there was evidence in the record to support Gray’s arrest and detention. Therefore, the trial judge did not properly apply the law to the facts. The State’s sole issue is sustained.

Conclusion

Having sustained the State’s sole issue, we reverse the trial court’s order granting Gray’s motion to suppress and remand this cause to the trial court for further proceedings consistent with this opinion.

      . Excerpt from Cross-examination by Mr. Brian Schmidt

      Q. And do you see a time of arrest on that?
      A. It says 1359.
      Q. So the 1410 time would be the time—
      A. That he got there.
      Q. That he got to the jail?
      A. Right.

        Excerpts from Direct Examination by Mr. McDonald

      Q. Deputy Duncan, about what time did you stop the vehicle?
      A. I believe it was right at 12:55.
      Q. Based upon the information concerning the drug dog, at some point did you make a decision to arrest the defendant?
      A. Yes, I did.
      Q. What did you base your arrest on?
      A. Due to the way he was acting, the movement in the vehicle prior to the stop, the dog alerting on the vehicle without anything being found, we went ahead and — I went ahead and arrested him for the fail to signal turn.
      Q. And is that legal in the State of Texas?
      A. Yes, it is.
      Q. You can arrest for any traffic stop other than speeding and I believe an open container.
      A. Yes, sir.

      . Gray does not provide separate authority or argument for his state constitutional claims; therefore we decline to address them. See Tex.R.App. P. 38.1; see also Heitman v. State, 815 S.W.2d 681, 690-91 n. 23 (Tex.Crim.App.1991).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Interest of A.C.S. and G.E.S., Children.
    No. 10-03-00392-CV.
    Court of Appeals of Texas, Waco.
    May 4, 2004.
    Robert A. Swearingen, Peterson & Swearingen, College Station, for appellant.
    Scott Wesley Smith, Houston, pro se.

      Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   ORDER GRANTING STAY

PER CURIAM.

We grant Andrea Smith’s motions for an emergency stay.

When Andrea and Scott Smith were divorced on October 10, 2002, the trial court appointed them joint managing conservators of their two children and ordered that Andrea have the right to establish the primary residence of the children “without restriction.” See Tex. Fam.Code Ann. § 153.134(b) (Vernon Supp.2004). After Andrea moved out of state with the children, Scott filed a petition to modify the parent-child relationship. On December 5, 2003, the trial judge signed an order modifying the conservatorship provisions of the earlier decree. The order directed, inter alia, that Andrea continue to have the right to establish the primary residence of the children but restricted her options to a list of specified counties in Texas. She was ordered to relocate the children no later than December 15, 2003, and if she failed to do so, the right to establish the primary residence in one of those counties was automatically transferred to Scott. She asked the trial judge to stay the order while she appealed, without success.

Andrea filed an original proceeding in this court, Cause No. 10-03-00390-CV, seeking a stay of the trial court’s order. On December 10, 2003, we granted a stay of the trial court’s order, with Chief Justice Gray dissenting. On December 24, 2003, after a dispute arose over Scott’s right to exercise his Christmas visitation, with Chief Justice Gray again dissenting, we amended and limited the stay. Andrea’s petition for an injunction was dismissed for want of jurisdiction on February 11, 2004, and the stay was lifted. In re Smith, 2004 WL 254079, at *1-2 (Tex.App.-Waco February 11, 2004, orig. proceeding). Andrea then filed the motion for an emergency stay in this appeal on February 17, 2004.

On March 26, 2004, the trial court signed an “Order Establishing Move Date,” which stated: “However under no circumstances will the child be moved back to Texas any later than May 2, 2004.” On April 16, Andrea filed a supplemental motion with us to stay that order also.

We have decided, in another Smith divorce appeal, that we have the authority to suspend an order like this. See Smith v. Smith, 63 S.W.3d 599, 599 (Tex.App.-Waco 2002, order) (per curiam) (“Finding that Karen Smith has made a ‘proper showing’ ..., the motion ... is granted and enforcement of the decree of divorce ... is hereby suspended pending the issuance of our opinion in said cause or until further order of this court, whichever comes earlier. See Tex. Fam.Code Ann. § 109.002(c) (Vernon Supp.2002).”). Appellate Rule 24.2(a)(4) grants the same authority. Tex. R.App. P. 24.2(a)(4).

Andrea has made “a proper showing” for relief, and we hereby grant her motion and supplemental motion for an emergency stay. Tex. Fam.Code Ann. § 109.002(c) (Vernon 2004); Smith, 63 S.W.3d at 599. Pending final resolution of this appeal or further order of this Court, we hereby stay the following orders of the 272nd District Court of Brazos County:

The “County of Residence” section on page 3 of the December 5, 2003, Order in Suit to Modify Parent-Child Relationship in Cause No. 02-001597-CVD-272, styled In the Interest of Abigail Christine Smith and Grace Elizabeth Smith, Children.
The March 26, 2004, Order Establishing Move Date in Cause No. 02-001597, styled In the Interest of Abigail and Grace Smith.

All other provisions of the trial court’s December 5 order remain in effect, subject to each party’s right of appeal.

Chief Justice GRAY unavailable to participate.

      . On Friday, April 30, 2004, the Texas Supreme Court granted a motion for emergency relief filed by Andrea, which noted that we had not ruled on her pending motions. See In the Interest of A.C.S. and G.E.S., No. 04-0411, - S.W.3d - (Tex. April 30, 2004) (orig.proceeding) (order). We see no conflict with the Supreme Court’s order, which specifically provides that its stay will remain in effect "until the Tenth Court of Appeals rules on the motions for emergency stay pending in that court.”


author: FELIPE REYNA, Justice.

text:
    In the Interest of A.C.S. and G.E.S., Children.
    No. 10-03-00392-CV.
    Court of Appeals of Texas, Waco.
    Dec. 15, 2004.

      Robert A. Swearingen, Peterson & Swearingen, College Station, for appellant.
    Scott Wesley Smith, Houston, pro se.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

Andrea Gayle Smith appeals an order modifying the child custody provisions of her divorce decree by requiring her children to return to Texas from South Carolina. Because the trial court abused its discretion by determining that the children’s return to Texas would be in their best interest, we will reverse and remand.

Background

Andrea and her former husband Scott were divorced in October 2002. The agreed decree designated the Smiths as joint managing conservators of their two daughters but designated Andrea as the person having the exclusive right to determine the children’s primary residence. This designation imposed no geographical restriction on the children’s residence. The decree did not contain a standard possession order but contained (1) specific possessory provisions in the event the parties resided more than 100 miles apart and (2) a provision requiring the parties to “share equally the travel expenses related to transferring possession of the children” if the children resided in a different state than Scott.

Andrea and the children moved to South Carolina shortly after the decree was signed. Scott filed a motion to modify the child support provisions of the decree in December 2002. Andrea responded with a motion to modify the custody provisions of the decree in April 2003. Scott amended his motion three days later to include a request that the court modify the custody provisions of the decree and in particular that the court impose a requirement that the children reside in Brazos County or an adjoining county.

After a hearing in April 2003, the court referred the parties to mediation. During the mediation, the parties agreed to temporary orders granting Scott more access to the children. However, mediation failed. At the conclusion of a second hearing in August, the court announced that it was partially granting Scott’s motion to modify the decree. In particular, the court ordered that the children reside in Texas within a triangular area from Collin County to Bexar County to Galveston County.

After the August hearing, Andrea retained new counsel. Counsel filed a motion to stay the court’s decision and a motion to dismiss the case with prejudice because of Scott’s failure to comply with a local rule requiring that the prevailing party tender a proposed judgment to the court within thirty days after rendition. At a hearing on these motions, Andrea’s counsel raised for the first time the question of whether the trial court had exclusive, continuing jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”). The court concluded that Andrea had waived her right to raise this complaint because she had not raised it sooner. The court signed an order in accordance with its previous oral rendition.

About seven months after signing the modification order and about two months after the appellee’s brief was filed in this Court, the trial court signed and filed findings of fact and conclusions of law.

Andrea contends in four issues that the court abused its discretion by granting a modification of the custody provisions of the divorce decree because: (l)(a) Scott failed to file the affidavit required by section 156.102 for a motion to modify the designation of the person entitled to determine the primary residence of the children filed within one year after rendition of the order sought to be modified; and (b) the court failed to make a preliminary finding under the statute that the children’s present environment may endanger them or significantly impair their emotional development; (2) the court failed to conduct a preliminary hearing to determine whether it still had continuing, exclusive jurisdiction under the UCCJEA; (3) there has been no material and substantial change of circumstances; and (4) the net effect of the decree will be to award Scott custody of the children (assuming Andrea’s noncompliance) without any evidence that this is in the children’s best interest.

In a supplemental brief, Andrea addresses the trial court’s findings of fact and conclusions of law. Andrea contends that: (1) there is no evidence or factually insufficient evidence to support certain findings; (2) the findings do not explain or justify the court’s failure to comply with section 156.102; (3) the findings do not explain or justify the court’s failure to make a preliminary determination regarding its jurisdiction under the UCCJEA; (4) the court abused its discretion by finding that Andrea’s and the children’s relocation to South Carolina was a material and substantial change of circumstances; and (5) the court abused its discretion by finding that the children’s return to Texas would be in their best interest.

The Trial Court’s Belated Findings And Conclusions Will Be Considered By This Court Because Andrea Does Not Contend That She Has Been Harmed By Them And She Has Not Requested That The Appeal Be Abated

Andrea made a timely request for findings of fact and conclusions of law. Rule of Civil Procedure 297 requires a trial court to file its findings of fact and conclusions of law within twenty days after a timely request. Andrea also filed a notice of past due findings and conclusions. Nevertheless, the trial court’s findings and conclusions are plainly untimely. See Tex.R. Civ. P. 297.

However, the rules of procedure do not expressly prohibit a court from issuing belated findings. Silbaugh v. Ramirez, 126 S.W.3d 88, 91 (Tex.App.-Houston [1st Dist.] 2002, no pet.); Jefferson County Drainage Dist. No. 6 v. Lower Neches Valley Auth., 876 S.W.2d 940, 959-60 (Tex.App.-Beaumont 1994, writ denied); Morrison v. Morrison, 713 S.W.2d 377, 380 (Tex.App.-Dallas 1986, writ dism’d). If an appellant can show harm from untimely findings, the appeal may be abated so the appellant can request amended or additional findings. Silbaugh, 126 S.W.3d at 91; Jefferson County Drainage Dist., 876 S.W.2d at 960; Morrison, 713 S.W.2d at 380-81.

Here, although Andrea filed objections to the belated findings and a request for amended or additional findings with the trial court, she has not asked this Court to abate the appeal for further hearings on this matter. In addition, she has filed a supplemental brief in response to the court’s findings. Because Andrea does not contend that she has been harmed by the belated findings and because she has not requested an abatement, we will give the findings due consideration. See Silbaugh, 126 S.W.3d at 91-92; Jefferson County Drainage Dist., 876 S.W.2d at 959-60; Morrison, 713 S.W.2d at 380-81.

The Trial Court Has Exclusive, Continuing Jurisdiction Under The UCCJEA

Andrea contends in her second issue that the court abused its discretion by failing to hold a preliminary hearing to determine whether Texas retained exclusive, continuing jurisdiction under the UC-CJEA to modify the custody provisions of the divorce decree. She contends in her supplemental brief that the court’s findings do not explain or justify the court’s failure to make a preliminary determination regarding its jurisdiction under the UCCJEA.

Subject Matter Jurisdiction Cannot Be Waived Or Conferred By Agreement Or Estoppel

Scott responds that Andrea waived this contention by failing to raise it until after trial. However, subject matter jurisdiction under the UCCJEA cannot be waived and may be raised for the first time on appeal. See In re Barnes, 127 S.W.3d 843, 846 (Tex.App.-San Antonio 2003, orig. proceeding); In re Jeffries, 979 S.W.2d 429, 435 (Tex.App.-Waco 1998, orig. proceeding); accord Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex.2000).

Because Andrea herself filed a motion to modify, alleging in pertinent part, “[t]his Court has continuing, exclusive jurisdiction of this suit,” it could be argued that she made a judicial admission that the trial court has subject matter jurisdiction or is estopped to deny the court’s jurisdiction. However, subject matter jurisdiction cannot be conferred by agreement. Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, 649 (1933); J.M. Davidson, Inc. v. Webster, 49 S.W.3d 507, 515 (Tex.App.-Corpus Christi 2001, no pet.); Kanz v. Hood, 17 S.W.3d 311, 318 (Tex.App.-Waco 2000, pet. denied). Nor can it be conferred by estoppel. Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293, 294 (Tex.2001) (per curiam). If subject-matter jurisdiction cannot be conferred by agreement or estoppel, then it cannot be conferred by judicial admission.

The Children Must Have A Significant Connection With Texas Or Substantial Evidence Must Exist In Texas Regarding The Children’s Welfare For Texas To Retain Exclusive, Continuing Jurisdiction Under The UCCJEA

Under section 152.202 of the UCCJEA, Texas retains “exclusive continuing jurisdiction” until:

(1) a court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent, have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
(2) a court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.

Tex. Fam.Code Ann. § 152.202(a) (Vernon 2002). If either a “significant connection” exists or “substantial evidence” is present, then Texas retains jurisdiction. In re Forlenza, 140 S.W.3d 373, 379 (Tex.2004) (orig.proceeding).

Visitation within the state is generally considered as evidence of a significant connection, particularly when the children maintain a relationship with relatives in the state other than the noncustodial parent. Id. at 377.

The Question Of Jurisdiction Must Be Examined According To The Facts In Existence When The First Motion To Modify The Custody Provisions Of The Decree Was Filed

The pertinent time frame for this determination is when the motion to modify the prior custody order is filed. Id. at 376. The parties focus on the date Scott filed his “First Amended Petition to Modify” as the date at which jurisdiction should be determined. However, the parties filed three different motions to modify the divorce decree, and any one of these may be the one which establishes the date at which the determination of the trial court’s jurisdiction must be made. Those motions are: (1) Scott’s December 2002 motion to modify the child support provisions of the decree; (2) Andrea’s April 2003 motion to modify the custody provisions of the decree; and (3) Scott’s April 2003 amended motion to modify the custody and support provisions of the decree.

The important question here is whether Scott’s amended motion relates back in time to his original motion. See In re B.O.G., 48 S.W.3d 312, 315-16 (Tex.App.-Waco 2001, pet. denied). The amended motion relates back to the original if it does not allege “a wholly new, distinct, or different matter.” Id. (citing Ex parte Goad, 690 S.W.2d 894, 896 (Tex.1985) (orig.proceeding)). The original motion sought only a reduction in child support. The amended motion added a request for modification of the custody provisions of the decree in addition to the request for a reduction in child support. Because Scott first sought a modification of the custody provisions of the decree in the amended motion, we conclude that it alleges a “wholly new, distinct, [and] different matter.” Cf. id. (amended motion to modify custody and support provisions related back to prior motion to modify custody and support provisions). Thus, we conclude that the amended motion does not relate back to the date of the original motion.

Accordingly, the pertinent inquiry is whether, at the time Andrea filed her motion to modify, the children had a “significant connection” with Texas or “substantial evidence” was available in Texas “concerning [their] care, protection, training, and personal relationships.” Tex. Fam.Code Ann. § 152.202(a)(1); Forlenza, 140 S.W.3d at 379.

Because Of The Children’s Visitation With Scott And Their Relationship With Members Of His Family, The Children Retained A Significant Connection With Texas When Andrea Filed Her Motion To Modify

The parties attach some significance to the fact that South Carolina had not yet become the children’s “home state” when the motion to modify was filed. Under the terms of the Parental Kidnapping Prevention Act (the “PKPA”) and under the former Uniform Child Custody Jurisdiction Act, this fact would be significant. See Tex. Fam.Code Ann. § 155.003 (Vernon 2002); Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, sec. 152.003(a)(1) 1995 Tex. Gen. Laws 113, 141 (amended 1999) (current version at Tex. Fam.Code Ann. §§ 152.201, 152.202 (Vernon 2002)). However, section 155.003(b)(2) of the PKPA expressly recognizes that the terms of the UCCJEA control over the terms of the PKPA. Id. § 155.003(b)(2); accord id. § 152.002 (Vernon 2002); In re McCormick, 87 S.W.3d 746, 750 (Tex.App.-Amarillo 2002, orig. proceeding); B.O.G., 48 S.W.3d at 318.

Scott contends that the court’s exercise of jurisdiction is justified regardless of whether the court should have held a preliminary hearing because he presented evidence “that the children’s present environment, which is being so far from their father, does significantly impair the children’s emotional development.” He also contends that the Texas court will maintain “continuous, exclusive jurisdiction over this case as long as [the] children are of the age of minority.”

However, the latter statement is simply incorrect under the UCCJEA, and the evidence referred to in the former statement does not present a valid basis for a Texas court to exercise jurisdiction. Cf. Tex. Fam. Code Ann. § 152.204(a) (Vernon 2002) (Texas court may exercise “temporary emergency jurisdiction” over a child who has been abandoned in the state or if a child, sibling, or parent “is subjected to or threatened with mistreatment or abuse”).

The trial court erred by failing to examine its own subject matter jurisdiction under the UCCJEA. See id. § 152.107 (Vernon 2002). We now examine whether this error was harmful. See Tex.R.App. P. 44.1(a).

Scott testified that he had five visits with the children over an eight-month period. To exercise his possessory rights, he traveled to South Carolina twice to be with them. Scott also testified that his daughters enjoy playing with their cousins in Houston (his sister’s children), who are close in age to the Smith children.

From this evidence, the trial court would have been justified in concluding that the children retained a “significant connection” with Texas when Andrea filed the motion to modify. See Forlenza, 140 S.W.3d at 376-77. Accordingly, the trial court’s failure to examine its own subject matter jurisdiction under the UCCJEA did not result in the rendition of an improper judgment. See TexRApp. P. 44.1(a). Thus, we overrule Andrea’s second issue.

Scott’s Failure To File The Affidavit Required By Section 156.102 Was Not Harmful

Andrea contends in her first issue that the court abused its discretion by ordering a modification of the designation of which parent has the exclusive right to determine the children’s primary residence because Scott failed to file the affidavit required by section 156.102 and because the court failed to make a preliminary finding under the statute that the children’s present environment may endanger them or significantly impair their emotional development. She contends in her supplemental brief that the court’s findings do not explain or justify the failure to comply with section 156.102.

Scott responds that: (1) Andrea failed to preserve this issue for review because she did not bring this requirement to the court’s attention until after trial; (2) the best interest of the children is the paramount consideration in such cases and necessarily trumps the “technical” requirement of the statute; (8) any error was rendered harmless by trial testimony establishing the information required in the affidavit; and (4) section 156.102 does not apply because he did not seek to modify Andrea’s status as the parent with the exclusive right to determine the children’s primary residence.

To preserve a complaint regarding the adequacy of pleadings in a non-jury case, an objection must be made in writing and presented to the trial court before the judgment is signed. Tex.R. Civ. P. 90; but cf. Camp v. Camp, 591 S.W.2d 578, 582-83 (Tex.Civ.App.-Fort Worth 1979, no writ) (suggesting similar complaint was waived because respondent failed to object “prior to or upon trial”). Andrea presented this complaint to the trial court in a motion to stay which she filed after the trial was concluded but before the judgment was signed. Accordingly, she has preserved this issue for review. See Tex.R. Civ. P. 90.

Section 156.102(a) provides:

If a suit seeking to modify the designation of the person having the exclusive right to designate the primary residence of a child is filed not later than one year after the earlier of the date of the rendition of the order or the date of the signing of a mediated or collaborative law settlement agreement on which the order is based, the person filing the suit shall execute and attach an affidavit as provided by Subsection (b).

Tex. Fam.Code Ann. § 156.102(a) (Vernon Supp.2004-2005).

The divorce decree granted Andrea “the right to establish the primary residence (domicile) of the children without restriction.” (emphasis added). Scott’s amended petition to modify asked that this designation be modified so that Andrea had the right to establish the children’s primary residence “within Brazos County, Texas or counties contiguous thereto.” (emphasis added).

Because Scott sought a significant geographical narrowing of the terms under ■ which Andrea could designate the children’s primary residence, we conclude that he sought a modification of the designation. Cf. In re Ostrofsky, 112 S.W.2d 925, 929 (Tex. App.-Houston [14th Dist.] 2003, orig. proceeding) (temporary order requiring children to leave home of parent with right to designate primary residence and live at boarding school “effectively deprive[d] relator of the right to determine the children’s primary residence”). Thus, section 156.102 applies.

It is undisputed that Scott did not file the affidavit required by section 156.102. Section 156.102(c) requires a court to deny a motion to modify governed by the statute and refuse to schedule a hearing on its merits if the affidavit is not filed. See Burkhart v. Burkhart, 960 S.W.2d 321, 323-24 (Tex.App.-Houston [1st Dist.] 1997, pet. denied). The court failed to comply with this requirement. We now examine whether this error was harmful. See Tex.R.App. P. 44.1(a).

Scott testified in some detail that Andrea was limiting his access to the children. He described a particular visit in South Carolina during which one of his daughters cried because she was not going to be able to see her paternal grandmother and cousins. Thus, he presented evidence which would support an allegation that the children’s environment may “significantly impair [their] emotional development.” See Mobley v. Mobley, 684 S.W.2d 226, 229-30 (Tex.App.-Fort Worth 1985, writ dism’d); cf. Burkhart, 960 S.W.2d at 323-24 (bare allegation that respondent was “in essence denying [petitioner’s] rightful visitation” did not suffice to show substantial impairment). Thus, any error in the court’s decision to conduct a hearing on Scott’s petition to modify without the required affidavit was rendered harmless by Scott’s testimony. See Camp, 591 S.W.2d at 582-83 (statutory provisions satisfied by evidence despite lack of affidavit).

Accordingly, we overrule Andrea’s first issue.

Andrea’s Relocation to South Carolina Was A Material Change Of Circumstances

Andrea contends in her third issue that the court abused its discretion by modifying the custody provisions of the decree because Scott presented factually insufficient evidence to prove that her move to South Carolina constituted a material and substantial change of circumstances. She contends in her supplemental brief that there is no evidence or factually insufficient evidence to support the following findings:

2. [Andrea] moved to South Carolina after the divorce to live nearer or closer to her parents. Her initial unemployment after the move is considered by the court to be a voluntary unemployment. Prior to the final decree being entered (on or about October 10, 2002), [Andrea] and [Scott] had previously contemplated a decree that had a geographic restriction restricting the residence of the children to the vicinity of Brazos County. This was contemplated when Mr. Jack Dillard was employed as Scott’s attorney. At the time that the final decree was entered, however, Mr. Smith was unrepresented by counsel and was representing himself pro se.
3. The court accepts as true [Scott’s] testimony that he did not know that the geographic restriction had been removed from the final Agreed Decree of Divorce (although, in balance, he did sign it).
4. [Scott] did not consent to [Andrea’s] moving the children to South Carolina. [Andrea’s] moving the children to South Carolina was done completely without consulting with [Scott].
5. [Andrea], over the course of many months since the divorce, has impeded the communications between the children and their father, [Scott]. [Andrea] has also engaged in a pattern of parental alienation. That is, she has sought to minimize or thwart both verbal communications between the children and their father and physical visits during what would be normal periods of possession under the Court’s orders.
7. [Andrea’s] unilateral decision to move the children to South Carolina has resulted in a substantial increase in costs of transporting the children to and from [Scott] during his periods of possession of the children. That inerease[ ] in costs is nearly prohibitive, and substantially impairs [Scott’s] ability to have substantial meaningful possession of and access to the children. The Court further concludes that [Andrea’s] relocation of the children to South Carolina is a ‘substantial and material change of circumstances.’
8. It is preferable that the time the children spend in travel getting to and from their father for periods of access for the children be shortened than what is presently required given their present temporary residence in South Carolina. Further, the Court concludes, as a factual matter, that, a reduction of time and distance required for the children to travel to see their father (or for him to see them) is in the children’s best interest.
9. The multi-county region in Texas to which the court has restricted the children’s residence is vast and encompasses the majority of this great State’s metropolitan areas. The costs of transporting the children between any two major metropolitan areas within the aforesaid multi-county region in Texas is substantially less than travel costs between Texas and South Carolina, and such intra-state travel costs are not prohibitive.
10. [Andrea] has substantial skills and ability in the marketplace and has substantial employability in her chosen profession. Accordingly, and the court finds she could easily find employment in the aforesaid vast multi-county region in the State of Texas with reasonable effort.

A trial court has broad discretion in child custody matters. Pena v. Pena, 8 S.W.3d 639, 639 (Tex.1999) (per curiam); In re J.R.P., 55 S.W.3d 147, 151 (Tex.App.-Corpus Christi 2001, pet. denied). Thus, we review child custody orders under an abuse-of-discretion standard. See In re T.J.S., 71 S.W.3d 452, 458 (Tex.App.-Waco 2002, pet. denied); J.R.P., 55 S.W.3d at 151.

We do not conduct an independent review of findings of fact in a child custody case under traditional legal and factual sufficiency standards. See In re J.C.K., 143 S.W.3d 131, 135 (Tex.App.-Waco 2004, no pet.); London v. London, 94 S.W.3d 139, 143-44 (Tex.App.-Houston [14th Dist.] 2002, no pet.); cf. Norris v. Norris, 56 S.W.3d 333, 338 (Tex.App.-El Paso 2001, no pet.). Rather, legal and factual sufficiency are factors which can be considered in determining whether an abuse of discretion has occurred. J.C.K., 143 S.W.3d at 135; London, 94 S.W.3d at 143-44; accord Beaumont Bank, N.A. v. Butter, 806 S.W.2d 223, 226 (Tex.1991).

The Evidence Does Not Support Some Of The Challenged Findings

Andrea contends that there is no evidence or factually insufficient evidence to support Findings of Fact Nos. 2 through 5 and 7 through 10, both inclusive. Restated, the pertinent parts of these findings which she challenges are that:

(1) the parties had previously contemplated that the divorce decree would restrict the residence of the children to the Brazos County vicinity;
(2) Scott did not consent to Andrea and the children moving to South Carolina;
(3) Andrea has impeded communications between Scott and the children and has interfered with Scott’s exercise of his visitation rights;
(4) the move to South Carolina has substantially increased the cost of transportation for Scott’s exercise of his visitation rights to the point that the costs are “nearly prohibitive”;
(5) the move to South Carolina is a material and substantial change of circumstances;
(6) transportation costs and travel time for visitation will be “substantially less” if Andrea and the children return to Texas; and
(7) Andrea can “easily” find suitable employment in Texas “with reasonable effort.”

Andrea challenges the court’s finding that the parties had initially contemplated a provision in the divorce decree restricting the children’s residence to the Brazos County vicinity. Scott testified that he thought Andrea intended to move to the Austin area after the divorce. Andrea testified that Scott knew of her plan to move to South Carolina when the decree was signed. The record contains no evidence of the content of prior drafts of the decree or of negotiations between the parties about the contents of the decree. Although Travis County is arguably in the “vicinity” of Brazos County, the record contains no evidence that the parties ever contemplated the imposition of a geographical restriction on the children’s residence. Thus, the court abused its discretion by so finding.

Andrea challenges the court’s finding that Scott did not consent to her move with the children to South Carolina. She points to specific provisions of the agreed decree regarding visitation if the parents lived more than 100 miles apart and the sharing of expenses if the parents lived in different states as evidence that Scott knew of and consented to her move to South Carolina.

However, Scott testified that he did not know she was moving to South Carolina until after the fact. Andrea disputed this testimony and testified that she told Scott of her intentions the weekend before she moved. Although Scott was represented by counsel during the early stages of the divorce proceeding, he did not have counsel when the decree was signed. Thus, he contends that he was not completely familiar with the terms of the decree which had been negotiated by his attorney.

Because of the disputed testimony and because the move to South Carolina did not occur until after the divorce decree, we cannot say that the court abused its discretion by finding that the Scott did not consent to Andrea’s moving to South Carolina.

Andrea challenges the court’s finding that she impeded communications between Scott and the children and interfered with his exercise of visitation rights. The record contains conflicting evidence regarding whether Andrea prevented Scott from talking to his children on the telephone at times and whether she made it difficult for him to exercise his visitation rights. Thus, we cannot say that the court abused its discretion by finding that she had done so.

Andrea challenges the court’s finding that her move to South Carolina substantially increased the cost of transportation to the point that those costs are “nearly prohibitive” and that transportation costs and travel time would be “substantially less” if the children and she returned to Texas.

Scott testified that he could purchase a round-trip plane ticket to Atlanta for $225. The parties agree that it takes approximately four hours to travel from Green-ville, South Carolina to Houston if they fly out of Atlanta. Most of that travel time comes from a two and one-half hour drive from Greenville to Atlanta. Scott also testified that there are one or two direct flights from Houston to Greenville each day, but that they generally cost significantly more than tickets to Atlanta.

Scott testified in the March hearing that he was temporarily having difficulty meeting his monthly expenses because he was unemployed. However, he never characterized the travel expenses for visitation as “prohibitive.”

The trial judge advised the parties at the conclusion of the August hearing, “I happen to know that you can get a flight ticket from Houston to Dallas for about $100 if you get it two months out; from San Antonio to Dallas, for about $100 if you get it two months out; or from San Antonio to Houston for about $150. And the flight times are about an hour on each leg of the triangle.”

A trial court may take judicial notice of a fact which is “not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination By resort to sources whose accuracy cannot reasonably be questioned.” Tex.R. Evid. 201(b). However, “personal knowledge is not judicial knowledge, and a judge may personally know a fact of which he cannot take judicial knowledge.” Eagle Trucking Co. v. Tex. Bitulithic Co., 612 S.W.2d 503, 506 (Tex.1981); 1.70 Acres of Real Prop. v. State, 935 S.W.2d 480, 489 (Tex.App.-Beaumont 1996, no writ); accord Levit v. Adams, 841 S.W.2d 478, 485 (Tex.App.Houston [1st Dist.] 1992), rev’d on other grounds, 850 S.W.2d 469 (Tex.1993) (per curiam).

The trial judge’s personal knowledge about flight prices and flight times within Texas is knowledge of facts of which the judge cannot take judicial knowledge. See id.; see also Havins v. First Natl. Bank of Paducah, 919 S.W.2d 177, 184 (Tex.App.Amarillo 1996, no writ) (trial court cannot take judicial notice of “circumstances surrounding and market factors influencing a local cattle auction”). Thus, the court abused its discretion by finding that the increase in transportation costs after the move to South Carolina was “nearly prohibitive” and by finding that transportation costs and travel times would be “substantially less” if Andrea and the children returned to Texas.

Andrea challenges the court’s finding that she could “easily” find suitable employment in Texas “with reasonable effort.” Scott testified that he had had a difficult time finding a mid-level management position after he left his position in Brazos County shortly before the divorce. Andrea testified that she searched for administrative positions in her field in the major metropolitan areas of Texas without success before she moved to South Carolina. The record is devoid of evidence to support the court’s finding. Thus, the court abused its discretion by finding that Andrea could “easily” find suitable employment in Texas “with reasonable effort.”

The Findings With Support In The Record Support The Court’s Finding Of Changed Circumstances

Andrea cites the decision of the El Paso Court in Bates v. Tesar for the proposition that “relocation, regardless of distance, will not alone suffice to establish a material and substantial change in circumstances.” 81 S.W.3d 411, 430 (Tex.App.-El Paso 2002, no pet.). However, that court stated the proposition somewhat differently-

[W]e do not hold that relocation, regardless of distance, will suffice to establish a material and substantial change in circumstances. But if the custodial parent moves a significant distance, a finding of changed circumstances may be appropriate. Such a decision is necessarily fact intensive but we can glean from the case law certain factors which the court should consider:
• the distance involved;
• the quality of the relationship between the non-custodial parent and the child;
• the nature and quantity of the child’s contacts with the non-custodial parent, both de jure and defacto;
• whether the relocation would deprive the non-custodial parent of regular and meaningful access to the children;
• the impact of the move on the quantity and quality of the child’s contact with the non-custodial parent;
• the motive for the move;
• the motive for opposing the move;
• the feasibility of preserving the relationship between the non-custodial parent and the child through suitable visitation arrangements; and
• the proximity, availability, and safety of travel arrangements.

Id.; accord Knopp v. Knopp, No. 14-02-00285-CV, 2003 WL 21025527, at *3, 2003 Tex.App. LEXIS 3950, at *8-9 (Tex.App.-Houston [14th Dist.] May 8, 2003, no pet.) (mem.op.). We consider the court’s decision with these factors in mind.

Andrea testified that it is approximately 900 miles from Texas to her home in South Carolina. Thus, the distance of the move tends to support the court’s finding.

Under the terms of the divorce decree, Scott was to have visits with his daughters on the first, third, and fifth weekends of each month and on Wednesday evenings so long as Andrea and he lived within 100 miles of each other. Scott testified that he visited his daughters “quite a bit” during the pendency of the divorce and before he moved to the Houston area. He stated that he visited them “a couple of times a week” after he moved. Andrea disputed this testimony and testified that Scott did not visit the children after he moved to Houston.

Assuming that the court chose to believe Scott’s testimony over Andrea’s on this issue, the divorce decree provided Scott only one weekend visit per month or one week-long visit every two months after Andrea and the children moved to South Carolina. Thus, the children had fewer de jure and de facto contacts with Scott after moving than before under the terms of the decree.

In addition, Scott presented evidence (disputed by Andrea) that Andrea made his visits difficult, thus reducing the quality of his contacts with the children.

The children’s move to South Carolina has affected Scott’s regular and meaningful access to the children. However, the same would have been true if Andrea had moved anywhere in Texas more than 100 miles from Houston. Thus, this factor does not add much impetus to Scott’s contention that the move was a material and substantial change of circumstances.

Andrea testified that she moved to South Carolina because of her desire to leave an embarrassing work environment and to be closer to her immediate family. However, the record also contains evidence that she interfered with Scott’ access to the children, which tends to support an inference that she moved to restrict Scott’s visits with the children. In a similar fashion, Scott’s opposition to the children remaining in South Carolina appears to be based solely on his desire to have more contact with his children. Thus, the evidence relevant to the parties’ respective motivations for or against the move to South Carolina tend to support the court’s finding.

As evidenced by the temporary orders agreed to by the parties after the initial hearing in April, it was feasible to contrive appropriate visitation arrangements which would serve to preserve Scott’s relationship with his children. Both parties testified in the August hearing that the visits made under the terms of the temporary orders went well, and the relationships of all involved and corresponding communication likewise improved. Thus, the success of the visitation arrangements under the temporary orders tends to contradict the court’s finding.

The success of these visits likewise demonstrates the proximity, availability, and safety of travel arrangements. Thus, the availability of adequate travel arrangements tends to contradict the court’s finding.

Having considered the evidence relevant to the Bates factors, we conclude that the court did not abuse its discretion by finding that Andrea’s move with the children to South Carolina was a material and substantial change of circumstances. See Knopp, 2003 WL 21025527, at *5, 2003 Tex.App. LEXIS 3950, at *9-12; Bates, 81 S.W.3d at 430-32.

Accordingly, we overrule Andrea’s third issue.

It Is Not In The Best Interest Of The Children To Return To Texas

Andrea contends in her fourth issue, as clarified in her supplemental brief, that the court abused its discretion by finding that it would be in the best interest of the children to return to Texas.

In Lenz v. Lenz, the Supreme Court conducted a review of what factors other states consider in determining what is in the best interest of the children in the relocation context. 79 S.W.3d 10, 14-16 (Tex.2002). The Amarillo court has encapsulated these factors as follows:

• reasons for and against the move; education, health, and leisure opportunities; accommodation of special needs or talents of the children; effect on extended family relationships; effect on visitation and communication with the noncustodial parent; the noncustodial parent’s ability to relocate; Baures v. Lewis, 167 N.J. 91, 770 A.2d 214, 229-30 (N.J.2001);
• parent’s good faith in requesting the move; continuation of a meaningful relationship with the noncustodial parent; economic, emotional, and education enhancement for the children and the custodial parent; effect on extended family relationships; Tropea v. Tropea, 87 N.Y.2d 727, 665 N.E.2d 145, 149-51, 642 N.Y.S.2d 575 (N.Y.1996); and
• employment and education opportunities of the parents; the ages of the children; community ties; health and educational needs of the children; In re Marriage of Burgess, 13 Cal.4th 25, 51 Cal.Rptr.2d 444, 913 P.2d 473 (Cal.1996).

In re C.R.O., 96 S.W.3d 442, 449 (Tex.App.-Amarillo 2002, pet. denied); see also Knopp, 2003 WL 21025527, at *5-6, 2003 Tex.App. LEXIS 3950, at *13-14; Echols v. Olivarez, 85 S.W.3d 475, 481-82 (Tex.App.-Austin 2002, no pet.). We agree that this listing fairly encapsulates the factors considered by the Supreme Court in Lenz. Cf. Lenz, 79 S.W.3d at 14—16.

To the extent applicable, the Holley factors may also be considered in this analysis. C.R.O., 96 S.W.3d at 451; Knopp, 2003 WL 21025527, at *6, 2003 Tex.App. LEXIS 3950, at *16-18; Bates, 81 S.W.3d at 433-34. Those factors include: (1) the desires of the children, (2) the emotional and physical needs of the children now and in the future, (3) the emotional and physical danger to the children now and in the future, (4) the parental abilities of the individuals involved, (5) the programs available to those individuals to promote the best interest of the children, (6) the plans for the children by these individuals, (7) the stability of the home, (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not proper, and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976); C.R.O., 96 S.W.3d at 451; Bates, 81 S.W.3d at 434.

A child’s best interest cannot be determined in a vacuum. Although consideration of the visitation rights of the noncustodial parent is important, we must primarily concentrate on the general quality of life for both the child and the custodial parent in assessing whether a change is positive and in the child’s best interest.

Echols, 85 S.W.3d at 482.

Here, it is undisputed that requiring the Smiths’ children to return to Texas would result in the loss by Andrea of a good-paying job, a rent-free home, and the day-to-day relationships she has established with Mends, co-workers, and her own family in South Carolina. The contemplated relocation would also diminish the children’s relationship with Andrea’s family.

Conversely, a relocation to Texas would arguably improve the children’s relationship with Scott and his extended family.

There is no clear indication in the record that Andrea would be able to “easily” locate suitable employment or housing in Texas. Thus, the contemplated relocation would, at a minimum, place the children in a position of uncertainty for an unknown period of time.

Texas courts have considered the economic status of the custodial parent and the proximity of family and Mends as important factors in determining whether a relocation is in the children’s best interest. See Lenz, 79 S.W.3d at 17-19; Hoffman v. Hoffman, No. 03-03-00062-CV, 2003 WL 22669032, at *3, 2003 Tex.App. LEXIS 9584, at *19-20 (Tex.App.-Austin Nov.13, 2003, no pet.) (mem.op.); Knopp, 2003 WL 21025527, at *6, 2003 Tex.App. LEXIS 3950, at *15-21; C.R.O., 96 S.W.3d at 450-51; Echols, 85 S.W.3d at 481-83; cf. Bates, 81 S.W.3d at 433-35 (focusing more on impact of relocation on children’s relationship with father).

Because the children were relatively young when they moved to South Carolina, they had not had the opportunity to establish lasting personal relationships in Brazos County outside of family. During their time in South Carolina, they have presumably formed such relationships. It is undisputed that they have grown closer to their maternal grandparents and others in Andrea’s extended family. Andrea has likewise found support from Mends and family in South Carolina. She has secured a good-paying job, and her parents have provided a suitable home for her children and she.

Conversely, the children’s relationship with Scott has been strained by their move. A return to Texas would no doubt improve that relationship as well as the relationship between the children and Scott’s extended family. However, those improvements would come at the expense of the positive situation which Andrea and the children have in South Carolina. Although Andrea could conceivably establish herself in Texas in due time, there is no certainty as to how long that would take to accomplish.

In addition, as a result of the mediated temporary orders, visitation has improved dramatically since the initiation of this litigation without the necessity of the children relocating to Texas.

Having reviewed the evidence pertinent to the court’s best-interest finding, we conclude that the court abused its discretion by finding that requiring the children to return to Texas is in their best interest. See Echols, 85 S.W.3d at 481-83 (“[W]e must primarily concentrate on the general quality of life for both the child and the custodial parent in assessing whether a change is positive and in the child’s best interest.”); cf. Bates, 81 S.W.3d at 434 (“lifestyle” considerations advanced by mother in favor of relocation “were outweighed by the importance of the children having frequent and continuing contact with their father”).

Accordingly, we sustain Andrea’s fourth issue.

We reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion.

Chief Justice GRAY concurs in the judgment but not the analysis reflected in the opinion.

      . Scott was represented by counsel at the April hearing. However, he appeared pro se at the August hearing and has represented himself ever since.

      . Scott has not filed a supplemental brief in response to the findings of fact and conclusions of law or in response to Andrea's supplemental brief.

      . As used in this discussion of the timeliness of the trial court’s findings of fact and conclusions of law, the term "findings” refers to both the findings of fact and the conclusions of law.

      . Scott testified that he has seen tickets from Houston to Greenville sell for only $50 or $60 more, but generally such tickets cost between 2- and 5-times more than tickets to Atlanta.

      . Holley v. Adams, 544 S.W.2d 367 (Tex.1976).


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

text:
    Eusebio LOREDO, Appellant, v. STATE of Texas, Appellee.
    No. 10-01-00078-CR.
    Court of Appeals of Texas, Waco.
    Dec. 8, 2004.
    Rehearing Overruled March 8, 2005.

      Stan Schwieger, Waco, for appellant. John W. Segrest, McLennan County Dist. Atty., Waco, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

Appellant, Eusebio Loredo (Loredo), was charged by indictment with three counts of felony Aggravated Sexual Assault of a Child. Loredo pled not guilty, but a jury found him guilty on all three counts. Punishment was assessed by the jury at 30 years’ imprisonment for each count. The judge ordered the sentences be served consecutively. Loredo appealed on three issues, and this court reversed the judgment on the first issue and remanded the cause for a new trial. The State sought discretionary review. The Court of Criminal Appeals reversed our judgment and remanded the cause to this Court to address Loredo’s two remaining issues. Loredo v. State, 107 S.W.3d 36 (Tex.App.-Waco 2003), rev’d, 159 S.W.3d 920, 2004 WL 743833, 2004 Tex.Crim.App. LEXIS 635 (Tex.Crim.App. April 7, 2004). Loredo’s two remaining issues are: 1) trial counsel was ineffective for failing to file a request for notice under article 37.07 section 3(g) of the Code of Criminal Procedure; and 2) Texas Code of Criminal Procedure article 42.08 is violative of the delegation doctrine and therefore unconstitutional under article II, section one of the Texas Constitution.

We will affirm the judgment.

INEFFECTIVE ASSISTANCE OF COUNSEL

Loredo argues that his trial counsel was ineffective in failing to file a request for notice under article 37.07 section 3(g) of the Code of Criminal Procedure. See Tex. Code CRIM. PROC. Ann. art. 37.07 § 3(g) (Vernon Supp 2004-2005). Counsel failed to request that the State give notice of its intent to offer evidence of extraneous offenses or bad acts, and Loredo argues that this failure fell below the “objective standard of reasonableness.”

The State argues that this court should not establish a bright-line rule that it is a mandatory duty of defense counsel to request notice under article 37.07 section 3(g), particularly when the State had an open-file policy and without knowing Loredo’s counsel’s punishment-phase strategy.

We must adhere to the United States Supreme Court’s two-pronged Strickland test to determine whether counsel’s representation was so inadequate as to violate a defendant’s Sixth Amendment right to counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999). The Strickland test applies to the punishment phase of a noncapital case. Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App.1999).

Strickland, requires a defendant to show that: (1) counsel’s representation fell below an objective standard of reasonableness and (2) counsel’s deficient performance prejudiced the defendant. Roe v. Flores-Ortega, 528 U.S. 470, 476-77, 120 S.Ct. 1029, 1034, 145 L.Ed.2d 985 (2000); Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The assessment of whether a defendant received ineffective assistance of counsel must be made according to the facts of each case. Thompson, 9 S.W.3d at 813. The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id. A single error can be so substantial that it causes the attorney’s assistance to fall below the Sixth Amendment standard. Id.

Entitled to Notice

Because Loredo is arguing that his counsel was deficient in failing to request notice of the State’s intent to use extraneous bad acts, we first ask whether he was entitled to the notice. Jaubert v. State, 74 S.W.3d 1, 2 (Tex.Crim.App.), cert. denied, 537 U.S. 1005, 123 S.Ct. 495, 154 L.Ed.2d 403 (2002). Because the State offered the evidence of extraneous bad acts in its casein-chief in the punishment phase, not during cross-examination or rebuttal, Loredo was entitled to notice of these acts. Id. at 4.

Objective Standard of Reasonableness

When reviewing a claim of ineffective assistance of counsel under the first prong of Strickland, there is a strong presumption that defense counsel’s conduct was reasonable and constituted sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. We evaluate the totality of the representation from counsel’s perspective at trial, rather than counsel’s isolated acts or omissions in hindsight. Gutierrez v. State, 8 S.W.3d 739, 749 (Tex.App.-Austin 1999, no pet.). Appellant has the ultimate burden to overcome this presumption and demonstrate not only that counsel’s performance was unreasonable under the prevailing professional norms, but that the challenged action was not sound trial strategy. Id.

We have previously held that there could be no strategic basis for not requesting notice under article 37.07 section 3(g). Jaubert v. State, 65 S.W.3d 73, 81-82 (Tex.App.-Waco 2000), rev’d on other grounds by 74 S.W.3d 1 (Tex.Crim. App.), cert. denied, 537 U.S. 1005, 123 S.Ct. 495, 154 L.Ed.2d 403 (2002). “The purpose of article 37.07 § 3(g) is to avoid unfair surprise, that is trial by ambush.” Chimney v. State, 6 S.W.3d 681, 697 (Tex.App.-Waco 1999, no pet.). “[T]he purpose is to allow the defendant adequate time to prepare for the State’s introduction of the [evidence] at trial.” Id. at 693-94. Because Loredo’s counsel should not want to be ambushed with extraneous bad acts introduced by the State at the punishment hearing, we find this failure to request notice unreasonable and not justifiable by sound trial strategy. See Ex Parte Menchaca, 854 S.W.2d 128, 129 (Tex.Crim.App.1993) (finding counsel was ineffective in failing to file a motion in limine to prohibit the introduction of a prior rape conviction in a trial for delivery of a controlled substance); see also Autry v. State, 27 S.W.3d 177, 182 (Tex.App.-San Antonio 2000, pet. ref'd) (“[P]urposefully deciding not to request disclosure by the State of its intent to introduce evidence of extraneous offenses may amount to questionable trial strategy ... ”). Loredo has met his burden to show that his counsel’s representation fell below an “objective standard of reasonableness.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Jaubert, 65 S.W.3d at 82-83.

Prejudice

The second prong of Strickland requires a showing that counsel’s errors were so serious that they deprived the defendant of a fair trial, i.e., a trial whose result is reliable. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Mallet v. State, 9 S.W.3d 856, 866 (Tex.App.-Fort Worth 2000, no pet.). The appellant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id., at 669, 104 S.Ct. at 2056.

During the State’s case-in-chief in the punishment phase, the State introduced testimony of eight witnesses. Three were law enforcement officers who testified they were familiar with Loredo’s bad reputation with regard to being peaceful and law-abiding.

Another witness, Melissa Pick, the mother of two of Loredo’s children, testified that Appellant was not peaceful and law-abiding. She testified that Loredo is a drug user. She described one incident where he stole money from her for drugs and she confronted him, which lead to a fight with him “pushing and slinging” her and then he held a knife to her throat and threatened to kill her. She also testified that he punched her in the eye during labor with their second child. She testified that he threw his dad over the dining room table after one of their fights. She explained an incident where he punched her in the eye one night and that she reported to the police. Finally, she stated she left him because of his violence and he no longer visited his children. The police officer, who took the report from Melissa about being punched in the eye, testified consistently with Melissa’s testimony.

Sabrina, the mother of Loredo’s third child, also testified that Loredo was not peaceful or law-abiding. She testified that Loredo was a drug user. Sabrina described an incident where Loredo punched her in the face and attempted to choke her when she was eight months pregnant. She testified about another incident where Loredo pointed an AK-47 at her head while she was holding their son and then started shooting the gun all around the room and then punched her in the face. She also testified that Loredo grabbed her by the neck and hair at a dance and police officers had to get Loredo off of her. Two detectives testified about this incident at the dance and stated that they arrested Loredo for assault that night. Additionally, Sabrina described an assault on her and a sexual assault on Sally (a friend of theirs) one evening when they were partying. She stated that she eventually left him.

On cross-examination, Appellant’s counsel did not ask any questions to four of the State’s witnesses and asked a few questions to the other State’s witnesses. During rebuttal, Appellant’s counsel called Sally, and she testified that Loredo did not sexually assault her. Loredo’s counsel also called Loredo’s mother who testified that Loredo did not own an AK-47, and Loredo did not throw his father (her husband) across a dining room table. She also testified that Sabrina would have reason to lie because she resented Loredo for having sole possession of them son for an extensive period of time after she left him.

During rebuttal by the State, an officer testified that he responded to the call where Loredo allegedly assaulted Sabrina and sexually assaulted Sally. He testified consistently with the description provided by Sabrina. On further rebuttal, Appellant’s counsel called Alicia (a friend who was present the night of the assaults), and she testified that Sabrina and Loredo were consuming cocaine that night and Loredo did not try to “mess with” Sally. Alicia stated that she did not speak to the police that night regarding what had happened. The State then recalled the officer who responded the night of the alleged sexual assault and testified that Alicia did tell him that Loredo wanted to f_Sally and had been trying to get her all day, which he documented in his report.

After hearing this testimony, the jury assessed punishment at 30 years’ imprisonment and no fine for each of the three counts. The maximum punishment for each count was life imprisonment and a $10,000.00 fine. Our review of the punishment phase of the trial shows that Lore-do’s counsel appeared to have been prepared to rebut the State’s evidence of the extraneous bad acts based on his immediate rebuttal with Sally and Loredo’s mother and later rebuttal with Alicia. Loredo’s counsel did not seem surprised by any of the State’s witnesses. There is nothing in the record to indicate and Loredo does not argue that his counsel would have taken different steps to rebut or object to the State’s evidence had he received written notice of these extraneous bad acts. See Autry v. State, 27 S.W.3d 177, 182 (Tex.App.-San Antonio 2000, pet. ref'd) (“[Appellant] has not stated what steps he would have taken if he had received written notice of the State’s intent to introduce extraneous evidence.”). There is also nothing in the record to indicate that the jury might have assessed less than 30 years for each count — based on the record, it is not reasonably probable that Loredo’s sentence would have been any less. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Therefore, we do not find that counsel’s error was so serious that it deprived Loredo of a fair trial. Id., at 687, 104 S.Ct. at 2064. This error was not of a magnitude significant enough to render Loredo’s counsel ineffective. Thompson, 9 S.W.3d at 813. We overrule issue one.

UNCONSTITUTIONALITY OF TEXAS CODE OF CRIMINAL PROCEDURE ART. 42.08(A)

Loredo argues that article 42.08(a) violates the constitutional delegation doctrine (principle of separation of powers) because there are not sufficient or adequate guidelines for the trial court’s exercise of its discretion in determining whether the sentences should be cumulated or run concurrently. See TexCode CRiM. PROC. Ann. art. 42.08(a) (Vernon Supp. 2004-2005). Appellant properly preserved this issue in his motion for new trial. Tex. RApp. P. 33.1(a)(1).

When reviewing an attack on the constitutionality of a statute, the appellate court begins with a presumption that the statute is valid and the Legislature has not acted unreasonably or arbitrarily. Luquis v. State, 72 S.W.3d 355, 365 n. 25 (Tex.Crim.App.2002). This presumption stands until the contrary is shown beyond a reasonable doubt. Williams v. State, 514 S.W.2d 772, 773 (Tex.Civ.App.-Beaumont 1974, writ ref'd n.r.e.) (citing Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424 (1946)). The burden is on the party challenging the statute to establish its unconstitutionality. Ex parte Ports, 21 S.W.3d 444, 446 (Tex.App.-San Antonio 2000, pet. ref'd).

Loredo acknowledges that the Court of Criminal Appeals has ruled that this statute is not an unconstitutional delegation of authority. See Johnson v. State, 492 S.W.2d 505, 506 (Tex.Crim.App.1973); Hammond v. State, 465 S.W.2d 748, 752 (Tex.Crim.App.1971). But he argues that Johnson has been impliedly overruled by Ex parte Granviel, 561 S.W.2d 503 (Tex.Crim.App.1978) (en banc) (regarding the constitutionality of Tex.Code CRiM. PROC. Ann. art. 43.14 (1977)), and In re Johnson, 554 S.W.2d 775, 780-81 (Tex.Civ.App.-Corpus Christi 1977), writ ref'd n.r.e. per curiam, 569 S.W.2d 882 (Tex.1978) (regarding the constitutionality of Tex.Rev.Civ. Stat. Ann. art. 2324 (1976)). Neither Ex parte Granviel or In re Johnson deal with the constitutionality of article 42.08; therefore we disagree with Loredo that Johnson and Hammond have been impliedly overruled. Since there has been no change in article 42.08 that is material to this appeal since Johnson and Hammond were decided, we are bound by the Court of Criminal Appeals’ holdings regarding its constitutionality. We overrule issue two.

CONCLUSION

We overrule both of Loredo’s issues. Therefore, we affirm the judgment.

Chief Justice GRAY concurs.

TOM GRAY, Chief Justice,

concurring.

Seems to me we’ve been down this road before. And no matter how the Court characterizes it, we were reversed. Jaubert v. State, 65 S.W.3d 73 (Tex.App.-Waco 2000), rev’d, 74 S.W.3d 1 (Tex.Crim.App.2002). This Court either cannot, or does not want to, follow the procedures set forth by the Court of Criminal Appeals. What may save this Court from embarrassment in this case is that after its discussion of why Loredo met the first prong of ineffective assistance of counsel, the Court concludes he was not prejudiced and affirms the judgment. I agree with that ultimate conclusion, but I cannot agree to the route the Court takes to get there.

First, the Court concludes that, as a matter of law, there cannot be a reason why defense counsel would not make an extraneous offense/bad acts request. Hmmm, I thought I gave them ample reasoning four years ago why an attorney may not formally request notice of extraneous offenses. If no one remembers, here is my analysis:

From the record discussed above, there is no per-se evidence of ineffective assistance. The majority concludes that the Jaubert’s counsel was ineffective because he did not file a request pursuant to Article 37.07. (Footnote omitted). However, to conclude that this was ineffective assistance of counsel, the majority has to make a number of presumptions that are not supported by the record. By doing this, the majority changes the presumption the Court of Criminal Appeals has directed that we are bound to apply-to “strongly presume” that counsel was effective. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996). Reversing this presumption allows the majority to conclude that Jaubert’s trial counsel’s failure to request notice under Article 37.07 § 3(g) “... was unreasonable and is not justified by ‘trial strategy.’ ”
Rather than presume effective assistance of counsel, they have presumed ineffective assistance and searched the record for an explanation to justify why counsel would not have made the request. Even in this search, they ignore the statements in the record that indicate a perfectly reasonable explanation for not wasting resources by filing a request for the Article 37.07 disclosure. The Tarrant County District Attorney has an open file policy. While an open file policy will not suffice if a formal Article 37.07 request is made, Jaubert’s attorney could have examined the DA’s file and determined that the jail offense reports were present. In this very efficient manner, counsel could have learned what information the DA’s office had and could prepare to respond to it. This could be done without the need for a formal request and a formal response. Jaubert loses no statutory rights and does not receive any less effective representation. In fact, this may work to Jaubert’s benefit by not forcing the State to focus on the other-bad-aet evidence by having to prepare a written response as is required if the defendant files a formal written request.
Further, there is no prohibition from obtaining this information by way of an oral request. The majority ignores this possible explanation and thus presumes there was no oral request. Of course, there is no documentation to prove that an oral request was made. But the statute does not require a written request before the State can provide the responsive information. By allowing for the possibility of an oral request and informal response, the lawyers are left to work out the discovery in the most efficient manner with the least amount of time and paper wasted. It seems that we should do everything we can to facilitate this type of cooperation rather than destroy it.
As indicated, there is no evidence in the record of an oral request and nothing in the record that affirmatively shows that the State provided the information in response to an oral request or simply volunteered the information, knowing that if requested that they would have to produce it. This brings me back to the presumptions. The majority has presumed that there was no oral request and no voluntary cooperation, again presuming ineffectiveness. Whereas, I presume this could be a perfectly reasonable explanation for the absence of a written request. This becomes an evi-dentiary issue that could be resolved at a fact hearing.
I believe that the Court of Criminal Appeals has clearly articulated the effect of the rules applicable to evaluating claims of ineffective assistance of counsel. The clear result of the applicable presumptions is that if any set of facts that is not contrary to the existing record could exist that would allow the conclusion to be reached that counsel was effective, the judgment must be affirmed.
As it has been repeatedly discussed in prior cases, because of the inability to resolve potential factual disputes or issues, direct appeal of ineffective assistance of counsel claims is particularly difficult. Without a record to develop the factual underpinnings of a claim, a cold record is seldom adequate to prove ineffectiveness of counsel. See Gonzalez v. State, 994 S.W.2d 369 (Tex.App.-Waco 1999, no pet.); Foster v. State, 8 S.W.3d 445 (Tex.App.-Waco 1999, no pet.). The defendant is not without relief. The defendant’s relief is by a post trial writ of habeas corpus to show that the state of facts which could exist does not in fact exist.
Of course there is a much more pragmatic explanation for not making the Article 37.07 request. It is a problem trial lawyers face all the time. “Do I make the request and cause the opposition to focus on the issue, and possibly cause them to discover previously unknown bad acts, or do I trust my client to tell me what is out there in the way of other bad acts and simply prepare to meet it if the State is aware of it and decides to use it?” Even civil practitioners are faced with this dilemma when requesting discovery of whether their opponent intends to use any final convictions to impeach any of their witnesses. TEX. R. EVID. 609(f). This is a variant of the doctrine-of-negative-surveillance-“Do I ask for something that may work to my benefit but also has the very real risk of causing me to come under greater scrutiny?”
Another possible explanation, given the excellent manner in which defense counsel conducted Jaubert’s case, is that having nothing to counter this evidence with, the defense “put their best foot forward” and hoped for the best. Jau-bert may have been fully aware of the State’s intended use of the information but had no other evidence to counter it with. Even on appeal, Jaubert has not claimed that he would have done a single thing differently had he known the State possessed and intended to use this information. I would say this trial strategy worked pretty well for Jaubert. His sentence for killing one person and attempting to kill four others was a maximum time in prison of only 60 years.

Jaubert, 65 S.W.3d at 95-97 (Gray, J., dissenting).

I believe these arguments from Jaubert apply to this case as well. And one statement bears repeating. “The clear result of the applicable presumptions is that if any set of facts that is not contrary to the existing record could exist that would allow the conclusion to be reached that counsel was effective, the judgment must be affirmed.” Id. at 96-97.

Second, to come to this “matter of law” conclusion, the Court relies on its previous determination of that issue from Jaubert. But just because the Court of Criminal Appeals did not reach that issue and reverse the Court on that holding does not mean what this Court further decided in Jaubert was right. The Court of Criminal Appeals determined that this Court was wrong in its decision that the notice requirements applied to rebuttal evidence. Once the Court of Criminal Appeals made their decision, it did not matter what other errors this Court had made in reversing the conviction. It became unimportant. Indeed, it rendered everything else this Court said in that opinion dicta because any other discussion was not necessary to a proper disposition of the appeal, just prattle. For the same reason, the Court of Criminal Appeals properly did not address this Court’s faulty holding that as a matter of law there could be no reasonable explanation for failing to make the request. Any comment by the Court of Criminal Appeals addressing that issue would have been dicta because it was not essential to the disposition of the case as presented.

Third, as in Jaubert, this Court ignores Court of Criminal Appeals’ precedent that counsel should ordinarily be afforded an opportunity to explain the actions taken or not taken, as the case may be, before being condemned as unprofessional and incompetent. Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App.2002). This Court does not even mention counsel’s lack of any opportunity to explain his actions or inactions. “Ineffective assistance of counsel claims are not [supposed to be] built on retrospective speculation; they must ‘be firmly founded in the record.’ ” Id. at 835. The record must itself affirmatively demonstrate the alleged ineffectiveness. Id.; Thompson, 9 S.W.3d at 813-14. A record, "... silent as to why appellant’s trial counsel took or failed to take ...” certain actions, is not adequate to establish ineffective assistance of counsel. Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App.2003). Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel’s conduct was reasonable and professional. Bone, 77 S.W.3d at 833. The more appropriate vehicle to raise ineffective assistance of counsel claims is an application for writ of habeas corpus. Rylander, 101 S.W.3d at 110.

But this Court rejects the presumption to make a hard and fast rule that a defendant need not do anything to establish the first prong of ineffective assistance except show that counsel did not make an extraneous offense request. Period. End of Discussion. Proceed to the second prong without any further analysis.

That’s not looking at the totality of the representation.

That’s not affording counsel an opportunity to explain.

And that’s not the law except temporarily in 16 counties in Central Texas and in any case that happens to be transferred to us.

Fourth, we all agree that Loredo failed to establish that he was prejudiced by his counsel’s inaction. Wouldn’t it be more appropriate to avoid the first prong fiasco when we agree on the disposition of the second prong? Yes. Is the object of an ineffectiveness claim to grade counsel’s performance? No. Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.” Id. And it has. The Court of Criminal Appeals has said that the failure to make either of the required showings defeats an ineffective assistance of counsel claim. Rylander, 101 S.W.3d at 110. Moreover, if an appellant fails to meet the prejudice prong, the reviewing court need not address the question of counsel’s performance. Boyd v. State, 811 S.W.2d 105, 109 (Tex.Crim.App.1991). But that would prevent the Court from making the hard and fast rule it wants to make, that the failure to make the request is, per se, failure to perform as reasonably competent counsel. A rule that I am positive will come back to haunt us if not promptly rejected by a higher authority-

Musing with Defense Counsel

With this holding on the books, would it be ineffective assistance of counsel to make an extraneous offense request? Let us assume you have been a diligent attorney, fully researched your Ghent’s criminal history, carefully interviewed your client and your client’s associates and reviewed the D.A.’s file pursuant to an open file policy. Now it comes time to work a little strategy. If you make the request in wilting, you have affirmatively negated an argument that you were ineffective for that failure. But by making the request, you have also negated one half of the necessary equation for getting your client’s punishment phase reversed. All appellate counsel needs to show is that you did not make a written request and your client is half way home to success on an ineffective assistance of counsel claim. The first prong is easily established as a matter of law. Have you thus been ineffective for not preserving this benefit for your client by having made the request when it serves no useful purpose for your client?

Musing with the District Attorney

Welcome to the world of implied motions. Your only safe harbor to hold onto a conviction in which you intend to use extraneous offenses in your case-in-chief is to act as if defense counsel has filed a written request. This is like an implied motion, and you should file a formal written response whether a written motion is filed or not. Now I know this seems contrary to the requirement of the Code that the request be in writing. But while you may not have to file a response unless the request is in writing, by filing a written “response” you may have defeated the defendant’s ability to meet the first prong of the test for ineffective assistance of counsel, and definitely defeated the second prong.

Musing with the CommissioneR’s CoüRt

Has a commissioner’s court considered a suit for a refund of attorney’s fees paid to counsel whose conduct fell so far below an objective standard of reasonableness that you have to pay another attorney to pursue an appeal to establish that failure and then pay another attorney to retry the defendant? Is there no bottom to this pit into which taxpayer money is thrown?

For these reasons, I concur only in the judgment of this Court.

      . The remaining two issues were not decided.

      . Section 3(a) of article 37.07 permits the court to admit evidence at punishment of extraneous offenses or bad acts. Tex.Code Crim. Proc. Ann. art. 37.07 § 3(a) (Vernon Supp 2004-2005). However, through section 3(g), a defendant can discover if the State intends to offer this type of evidence. Tex. Code Crim. Proc. Ann. art. 37.07 § 3(g) (Vernon Supp.2004-2005).

      . We reject this argument because an "open file” policy cannot substitute for an article 37.07 section 3(g) request. See Jaubert v. State, 65 S.W.3d 73, 81-82 (Tex.App.-Waco 2000), rev'd on other grounds by 74 S.W.3d 1 (Tex.Crim.App.), cert. denied, 537 U.S. 1005, 123 S.Ct. 495, 154 L.Ed.2d 403 (2002) (finding the difference between "open file" policy and the notice request under article 37.07 section 3(g) is that under article 37.07 section 3(g), there is a continuing duty on the State to notify defendant of all extraneous offense evidence it intends to introduce).

      . The Texas Court of Criminal Appeals reversed our Jaubert decision finding ineffective assistance of counsel because the extraneous offenses were only presented in cross-examination/rebuttal, not in the State’s case-in-chief. Jaubert v. State, 74 S.W.3d 1, 4 (Tex.Crim.App.2002). Here, the State introduced the extraneous offenses in its case-in-chief.