author: ANNE GARDNER, Justice.

text:
    Ex parte Mariann MELTZER.
    No. 2-04-079-CR.
    Court of Appeals of Texas, Fort Worth.
    Nov. 15, 2005.

      Factor, Campbell & Shepherd, LLP, Abe Factor, Fort Worth, for appellant.
    Tim Curry, Criminal Dist. Atty., Charles M. Mallín, Chief Appellate Division and C. James Gibson, Asst. Dist. Attys. for Tar-rant County, Fort Worth, for appellee.

      PANELF: GARDNER,WALKER, and McCOY, JJ.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

ANNE GARDNER, Justice.

INTRODUCTION

Pursuant to rule of appellate procedure 50, we have reconsidered our opinion upon Appellant’s petition for discretionary review. See TexR.App. P. 50. We withdraw our August 11, 2005 opinion and judgment and substitute the following.

Appellant, Mariann Meltzer, was indicted for possession of methamphetamine of four grams or more, but less than two hundred grams, with intent to deliver. On May 30, 2001, pursuant to a plea bargain agreement, Appellant pleaded guilty and was placed on eight years’ deferred adjudication community supervision. On November 19, 2003, the State filed a petition to proceed to adjudication alleging that Appellant had violated conditions of her community supervision.

Prior to the hearing on the State’s petition, Appellant filed an application for writ of habeas corpus. In her application, Appellant alleged ineffective assistance of counsel by her attorney at the original plea hearing because he had a conflict of interest, in that he had previously represented the man with whom Appellant had been arrested. On January 29, 2004, the trial court conducted a hearing on the State’s motion to revoke, but did not make a ruling at that time. On February 5, 2004, the trial court conducted a hearing on Appellant’s application for writ of habeas corpus. At the close of that hearing, the trial court denied Appellant’s requested relief and adjudicated Appellant guilty. The trial court sentenced Appellant to twenty-five years’ confinement. Appellant appeals the trial court’s denial of her habe-as corpus relief.

Factual and PROCEDURAL Background

On May 26, 2000, Appellant was a passenger in a vehicle driven by her boyfriend, Joe Wethington, which was stopped by a Tarrant County Sheriffs Deputy. After being stopped, Wethington was arrested on outstanding warrants, and the vehicle was searched incident to his arrest. Various quantities of methamphetamine and paraphernalia were found inside the vehicle and inside Appellant’s purse, and Appellant was arrested for possession of a controlled substance. After being advised of her Miranda warnings, Appellant told the deputy that as they were being stopped, Wethington told her to hide a baggie, which was later found to contain methamphetamine. Appellant hid the baggie inside the crotch area of her shorts. Appellant subsequently pleaded guilty and was placed on eight years’ deferred adjudication community supervision.

Mootness

In its brief, the State first argues that Appellant’s complaint regarding the trial court’s denial of her habeas corpus relief is moot. The State contends that because Appellant’s writ “essentially sought relief from her probationary status” and because the trial court denied her relief and adjudicated her guilty, her claim is now moot. However, after examining the relevant caselaw, we conclude that we may consider the merits of Appellant’s argument.

Appellant filed her application for writ of habeas corpus pursuant to article 11.08 of the code of criminal procedure, among other provisions. Under article 11.08, a criminal defendant who has been indicted, but not yet convicted, may file an application for writ of habeas corpus, that is returnable to the court in which the defendant stands indicted. Kniatt v. State, 157 S.W.3d 83, 84 (Tex.App.-Waco 2005, pet. granted); see TexCode Ceim. PROC. Ann. art. 11.08 (Vernon 2005). Nothing prevents the probationer from filing an article 11.08 writ application ■ after the State has filed a motion to revoke, and nothing prevents the trial court from considering the application along with the State’s motion to revoke probation. Jordan v. State, 54 S.W.3d 783, 786 (Tex.Crim.App.2001). Because probation is not considered to be a “final” conviction, an application for writ of habeas corpus filed during the pendency of revocation proceedings would be returnable to the trial court, whose ruling would be reviewable by a court of appeals and, ultimately, subject to a petition for discretionary review to the court of criminal appeals. Nix v. State, 65 S.W.3d 664, 669 (Tex.Crim.App.2001).

Because Appellant’s application was a preconviction writ, it is appealable for review to this court. Even though Appellant was also adjudicated guilty, because the code of criminal procedure and the court of criminal appeals allow the trial court’s ruling on Appellant’s writ of habeas corpus to be reviewed by a court of appeals, we will consider the merits of Appellant’s argument. See Kniatt, 157 S.W.3d at 85 (holding that court had jurisdiction to consider appeal from denial of habeas corpus relief even though trial court proceeded to adjudicate appellant guilty before hearing his writ); Gordon v. State, Nos. 11-02-00182-CR, 11-02-00183-CR, 11-02-00184-CR, 11-02-00185-CR, 2003 WL 22838732, at *1, 5 (Tex.App.-Eastland 2003, pet. ref'd) (not designated for publication) (considering the merits of appellant’s appeal from denial of his habeas corpus relief, which was considered in conjunction with State’s motion to revoke, and notwithstanding that trial court found appellant guilty).

Conflict of InteRest

In her application for writ of habeas corpus, Appellant complained that she was denied the effective assistance of counsel at her guilty plea due to a conflict of interest concerning her prior attorney. At the hearing on Appellant’s application, her defense counsel called her prior attorney, who had represented her at her guilty plea, as its only witness. He testified that he had previously represented Wethington on the possession charge that stemmed from the May 26, 2000 traffic stop. Appellant’s prior attorney testified that We-thington’s case had been disposed of on August 25, 2000 and he had not been retained by Appellant until February 13, 2001. He stated that he did not discuss with her any potential conflicts of interest that may have arisen from his previous representation of Wethington.

In her affidavit supporting her application, Appellant averred that at the time of the traffic stop, she was unaware that there were drugs in the vehicle until We-thington asked her to conceal a baggie. Appellant stated in her affidavit that the drugs were not hers, and she also asserted that her prior attorney told her that We-thington had given him a written statement admitting that the drugs belonged to him; however, no such statement was ever introduced into evidence. Appellant also complained that she was never informed of any potential conflict of interest, nor did she realize the effect of such a conflict.

In general, a trial court’s ruling in a habeas proceeding should not be overturned absent a clear abuse of discretion. Ex parte Mann, 34 S.W.3d 716, 718 (Tex.App.-Fort Worth 2000, no pet.). We are to evaluate whether the court abused its discretion by determining whether the court acted without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990); Mann, 34 S.W.3d at 718. However, an abuse of discretion review of trial court decisions is not necessarily appropriate in the context of application of law to facts when the decision does not turn on the credibility or demeanor of witnesses. Ex parte Martin, 6 S.W.3d 524, 526 (Tex.Crim.App.1999); Mann, 34 S.W.3d at 718. Instead, an appellate court must conduct a de novo review when the trial judge is not in an appreciably better position than the reviewing court to make that determination. Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App.1997); Mann, 34 S.W.3d at 718.

In the present case, Appellant’s prior attorney testified at the hearing on Appellant’s application, and the trial judge made findings of fact and conclusions of law. In his conclusions of law, the trial judge indicated that his decision was based upon his “knowledge of the procedural history of the case, the observations of [Appellant] at the time of her plea of guilty, and the testimony adduced at the hearings in this cause.” Therefore, because the trial court’s decision was based at least in part on the credibility and demeanor of the witnesses and Appellant, we will review the trial court’s ruling under the abuse of discretion standard.

Ineffective assistance of counsel may result when an attorney labors under a conflict of interest. Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984); Monreal v. State, 947 S.W.2d 559, 564 (Tex.Crim.App.1997). In such a situation, counsel may breach the duty of loyalty, perhaps the most basic of counsel’s duties. Strickland, 466 U.S. at 692, 104 S.Ct. at 2067; Monreal, 947 S.W.2d at 564. A defendant can demonstrate a violation of his right to the reasonably effective assistance of counsel if he can show (1) that his counsel was burdened by an actual conflict of interest and (2) that the conflict had an adverse effect on specific instances of counsel’s performance. Cuyler v. Sullivan, 446 U.S. 335, 348-50, 100 S.Ct. 1708, 1718-19, 64 L.Ed.2d 333 (1980); Monreal, 947 S.W.2d at 564; see also Strickland, 466 U.S. at 687-94, 104 S.Ct. at 2064-68. An “actual conflict of interest” exists if counsel is required to make a choice between advancing his client’s interest in a fair trial or advancing other interests (perhaps counsel’s own) to the detriment of his client’s interest. Monreal, 947 S.W.2d at 564. The showing of a potential conflict of interest does not constitute an actual conflict of interest. See Routier v. State, 112 S.W.3d 554, 581-82 (Tex.Crim.App.2003), cert. denied, 541 U.S. 1040, 124 S.Ct. 2157, 158 L.Ed.2d 728 (2004).

In the present case, Appellant contends that she established that an actual conflict existed due to her attorney’s prior representation of Wethington because he failed to inform her of the disadvantages of representing both her and We-thington and because he failed to elicit evidence that was beneficial to Appellant but detrimental to Wethington. Therefore, Appellant argues that “a plausible defensive strategy was not pursued because of the conflict.”

As established at the hearing on Appellant’s application, her attorney had concluded his representation of Wethington approximately six months before Appellant retained him. In fact, not only did Appellant retain this attorney, but it is evident from her affidavit that she was aware that he had previously represented Wethington. Furthermore, although Appellant contended in her affidavit that her attorney had told her he had a statement from Wething-ton claiming ownership of the drugs, she failed to ask any questions regarding this possible statement and failed to elicit any testimony that this statement did in fact exist. Additionally, no testimony was elicited from her attorney as to how his prior representation of Wethington had harmed Appellant.

After reviewing the record of Appellant’s application for writ of habeas corpus, we cannot conclude that the trial court abused its discretion in denying Appellant’s habeas corpus relief. We overrule Appellant’s sole point.

Conclusion

Having overruled Appellant’s sole point, we affirm the trial court’s denial of her habeas corpus relief.

      . Appellant appealed the trial court’s adjudication of her guilt and we dismissed. Meltzer v. State, No. 02-04-00080-CR, 2005 WL 626793 (Tex.App.-Fort Worth Mar. 17, 2005, no pet.).


source: Caselaw Access Project

author: W. KENNETH LAW, Chief Justice.

license: Public Domain

text:
    Ex parte Dennis CHAFIN.
    No. 03-04-00210-CR.
    Court of Appeals of Texas, Austin.
    Nov. 17, 2005.

      Stephen Robert Baxley, Houston, for appellant.
    Michael S. Wenk, Criminal District Attorney, Peter C. Speers, III, Assistant Criminal District Attorney, San Marcos, for appellee.
    Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
   OPINION

W. KENNETH LAW, Chief Justice.

This is a pretrial habeas corpus proceeding in which Dennis Chafin seeks to bar his pending prosecution in Hays County cause number CR-03-153 on double jeopardy grounds. See U.S. Const, amend. V; Tex. Const, art. I, § 14; see also Ex parte Robinson, 641 S.W.2d 552, 554-55 (Tex.Crim.App.1982). Chafin appeals the district court’s order denying relief. We will affirm the order.

In 2001, in Hays County cause number CR-00-014, a jury found Chafin guilty of one count of aggravated sexual assault of a child (count one) and four counts of indecency with a child by contact (counts two through five). The sexual assault count alleged that Chafin caused his sexual organ to contact the complainant’s mouth on or about July 1,1996. Counts two through five alleged that Chafin touched the complainant’s breasts on four dates in 1993, 1995, 1996, and 1998. Before the punishment stage of the trial began, the district court realized that the conduct alleged in count one and shown by the evidence did not constitute aggravated sexual assault as that offense was defined in 1996. See Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 7,1995 Tex. Gen. Laws 2734, 2737 (since amended) (current version at Tex. Pen. Code Ann. § 22.021(a)(1)(B) (West Supp. 2005)). On its own motion, the court reformed the jury’s verdict on count one to reflect a conviction for indecency with a child by contact. As instructed by the court, the jury then assessed punishment for five counts of indecency with a child by contact.

On appeal, this Court held that the jury’s verdict convicting Chafin of aggravated sexual assault was void, and that the district court was not authorized to reform that verdict to reflect a conviction for indecency with a child by contact. Chafin v. State, 95 S.W.3d 549, 555 (Tex.App.-Austin 2002, no pet.). The conviction on count one was reversed, and that count of the indictment was dismissed. Id. at 560. We also found that the evidence was legally insufficient to support the jury’s guilty verdicts on counts two through five. Id. Accordingly, the Court reversed those convictions and rendered acquittals. Id.

The new indictment was filed soon after Chafin’s original convictions were reversed. As filed, the indictment contained two counts. Count one alleged that on or about June 3, 1996, Chafin committed indecency with a child by causing the complainant’s mouth to contact his sexual organ. This count was abandoned by the State at the habeas corpus hearing. See supra, note 2. The remaining count alleges that on or about June 3, 1996, Chafin committed indecency with a child by exposing his genitals knowing that the complainant was present. This is the only count now at issue.

In his habeas corpus petition and in his brief to this Court, Chafin argues that his acquittals on counts two through five in cause number CR-00-014 constitute a double jeopardy bar to prosecution on the present indictment. See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (guarantee against double jeopardy bars retrial for same offense following acquittal). He asserts that in the earlier prosecution, he was placed in jeopardy for and acquitted of all acts of indecency with a child against the complainant committed before the presentment of that indictment and within the period of limitations. He urges that the State cannot avoid the double jeopardy bar by alleging a different manner and means of committing the same offense.

Chafin’s argument fails under the authority of Vick v. State, 991 S.W.2d 830 (Tex.Crim.App.1999). In that case, the defendant was tried and acquitted of aggravated sexual assault under an indictment alleging that he penetrated a child’s sexual organ with his sexual organ. Id. at 831. He was then reindicted for aggravated sexual assault based on the same transaction, but this time it was alleged that he caused the child’s sexual organ to contact his mouth. Id. The trial court granted Vick’s motion to dismiss the new indictment on the ground that he had been previously tried and acquitted of the same offense. Id. The court of appeals affirmed the dismissal, but the court of criminal appeals reversed. Id. at 834. The court held that each subsection of section 22.021(a)(1)(B) describes conduct constituting a separate statutory offense. Id. at 833. Because the two indictments alleged two different statutory offenses based on two different acts, albeit committed during the same criminal transaction, the acquittal on the first indictment did not bar prosecution on the second. Id.

Like aggravated sexual assault, indecency with a child is a conduct-oriented offense. At the relevant time, section 21.11 criminalized two distinct types of conduct requiring different acts to commit: (1) any touching of the anus, breast, or any part of the genitals of a child; or (2) exposure of the defendant’s anus or genitals knowing that a child is present. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, secs. 21.01(2), 21.11(a), 1993 Tex. Gen. Laws 3586, 3615-16 (since amended) (current version at Tex. Pen. Code Ann. § 21.11(a), (c) (West 2003)). The word “or” was used by the legislature to distinguish and separate the proscribed conducts. Indecency with a child by contact was and is a second degree felony, while indecency with a child by exposure was and is a third degree felony. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 21.11(c), 1993 Tex. Gen. Laws 3586, 3616 (since amended) (current version at Tex. Pen.Code Ann. § 21.11(d) (West 2003)). We conclude that the legislature intended the two separately described conducts to constitute separate statutory offenses.

In cause number CR-00-014, Chafin was tried and ultimately acquitted of indecency with a child by contact based on the allegation that he touched the complainant’s breasts. In the present indictment, Chafin is accused of indecency with a child by exposure based on the alleged act of exposing his sexual organ knowing that the complainant was present. Contrary to Chafin’s argument, the new indictment does not merely substitute a different manner or means of committing the same offense alleged in the previous indictment. Instead, the act alleged in the new indictment is separate and distinct from the acts alleged in counts two through five of the earlier indictment, and it constitutes a separate and distinct statutory offense. We therefore hold that the previous acquittals do not constitute a double jeopardy bar to prosecution on the current indictment. See Vick, 991 S.W.2d at 833.

Alternatively, Chafin argues that his prosecution under the new indictment is barred by Fifth Amendment collateral estoppel. Under this doctrine, “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). This means that once a jury determines a discrete fact in favor of a criminal defendant, the State cannot contest the jury’s finding in a subsequent proceeding. Ex parte Watkins, 73 S.W.3d 264, 268 (Tex.Crim.App.2002).

At Chafin’s first trial, the State failed to prove that appellant touched the complainant’s breasts. The State is not seeking to relitigate that fact. The collateral estoppel component of Fifth Amendment double jeopardy is not implicated in this cause.

For the reasons stated, we affirm the district court’s order denying habeas corpus relief.

      . Chafin does not contend that the Texas Constitution’s double jeopardy guarantee is any broader than the United States Constitution’s in the context of this case.

      . In fact, the conduct alleged and proved also did not constitute indecency with a child by contact as that offense was defined in 1996. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, secs. 21.01(2), 21.11(a)(1), 1993 Tex. Gen. Laws 3586, 3615-16 (since amended) (current versions at Tex. Pen.Code Ann. §§ 21.01(2), 21.11(a)(1), (c) (West 2003)).

      . Chafin does not contend that double jeopardy principles bar the State from using conduct proved at his trial on the first indictment — his touching of the complainant's mouth with his penis — to prove the offense alleged in the new indictment. See United States v. Dixon, 509 U.S. 688, 712, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (overruling Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990)).


author: JOHN CAYCE, Chief Justice.

text:
    Michael David ALLEN, Appellant, v. The STATE of Texas, State.
    No. 2-03-404-CR.
    Court of Appeals of Texas, Fort Worth.
    Nov. 17, 2005.

      The Dunham Law Firm, John L. Fritz, Fort Worth, for appellant.
    Tim Curry, Criminal Dist. Atty., Charles M. Mallin, Asst. Criminal Dist. Atty. and Chief of the Appellate Section, Curtis Jenkins, Miles Brissette and Timothy Bed-narz, Asst. Criminal Dist. Attys., Fort Worth, for appellee.
    PANEL A: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.
   OPINION

JOHN CAYCE, Chief Justice.

Introduction

Appellant Michael David Allen appeals his convictions for aggravated sexual assault of a child under fourteen years of age and indecency with a child. In three points, appellant contends that the evidence is factually insufficient to support his convictions and that the trial court erred in failing to limit the jury’s consideration of extraneous offense evidence during the guilt-innocence phase of the trial and allowing the jury to deliberate with fewer than twelve jurors present. We affirm.

Background Facts and Procedural History

In May 2001, when A.J. was about twelve years old, he moved into a house in White Settlement, Texas with his mother, one of his younger brothers, appellant, appellant’s twenty-year-old daughter, and the daughter’s boyfriend. Appellant was A.J.’s mother’s boyfriend. Over the next few months, A.J.’s mother and appellant’s daughter observed several instances of suspicious activity between appellant and A.J.

On one occasion, when A.J.’s mother was out of town, appellant’s daughter noticed that A.J. was not sleeping in the room he shared with his brother. When she went to appellant’s bedroom to ask where A.J. was, she found the door locked. Without opening the door, appellant told his daughter that A.J. was in the room with him watching television. The next morning, she saw that A.J. had not returned to his own bedroom to sleep. When she confronted appellant, he explained that A.J. had fallen asleep in his room.

Another time, appellant’s daughter came home to find the front door locked — which was uncommon when someone was home— and A.J.’s brother playing next door. After using her'key to enter the house, she observed appellant, who was not wearing a shirt and whose hair was wet, exiting the bathroom where A.J. was taking a shower.

A third incident occurred when appellant’s daughter returned home early from the laundromat. Once again, she had to unlock the front door with her key. As she walked past appellant’s bedroom, he opened the bedroom door and she could see A.J. standing behind him, buttoning his pants.

When appellant’s daughter shared her concerns with AJ.’s mother, AJ.’s mother admitted that she had witnessed a similar incident. A. J.’s mother testified that, upon returning home from driving one of her children to Midlothian, she found A.J.’s brother taking a bath in the hallway bathroom and appellant in his bedroom with the door locked. She knocked on the bedroom door for about five minutes before appellant opened it. When he did, she saw A.J. in the master bathroom pulling up his pants.

Shortly after appellant’s daughter discussed the situation with A.J.’s mother, a friend in whom appellant’s daughter had confided reported the suspected abuse to Child Protective Services (CPS). When questioned, A.J. gave the police a written statement indicating that appellant had tried to perform oral sex on him one time when his mother was at the laundromat. Similarly, he told the doctor who performed the sexual abuse examination that he had avoided appellant’s attempt to have anal and oral sex with him one time when his mother was at the laundromat. He also indicated that appellant had abused him on other occasions, attempted to have anal sex with him once in a motel, and masturbated in front of him.

Appellant was indicted for the first-degree felony offense of aggravated sexual assault of a child under fourteen years of age and the third-degree felony offense of indecency with a child-exposure. He pleaded not guilty to the charges and was tried before a jury.

During the guilt-innocence phase of trial, A.J.’s mother and appellant’s daughter testified about the incidents described above. A.J.’s mother also testified that A.J. had previously reported being sexually abused by appellant when the family lived in Henderson County, Texas. She explained that A.J.’s outcry to a camp counselor was investigated by the police and CPS, but resulted in a no-bill from a Henderson County grand jury. She further testified that appellant quit his job of twenty years and moved from Texas to Washington state when CPS began investigating the report that led to the current charges. A.J. testified that appellant performed oral sex on him at least four times, offered A.J. money to perform oral sex on him-, and exposed himself to A.J. when they lived in White Settlement. Further, he testified that appellant attempted to have anal sex with him in either White Settlement or their previous home in Henderson County. He also recalled numerous instances of abuse that took place in Henderson County. The doctor who examined A.J. also testified to the statements A. J. made to her.

The jury found appellant guilty of the charged offenses and assessed his punishment at forty-six years’ incarceration for aggravated sexual assault and ten years’ incarceration for indecency with a child.

Factual Sufficiency of the Evidence

In his first point, appellant contends that the State failed to provide factually sufficient evidence to support his conviction for aggravated sexual assault of a child because A.J.’s testimony was vague, it conflicted with a statement he had given to police, and it was contradicted by other evidence in the record. Appellant further argues that the evidence is factually insufficient to prove indecency with a child because the State relied on AJ.’s testimony together with circumstantial and inconclusive evidence from appellant’s wife and daughter. We disagree.

In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. There are two ways evidence may be factually insufficient: (1) the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) when there is evidence both supporting and contradicting the verdict or judgment, weighing all of the evidence, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. “This standard acknowledges that evidence of guilt can ‘preponderate’ in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt.” In other words, evidence supporting a guilty finding can outweigh the contrary proof but still be insufficient to prove the elements of an offense beyond a reasonable doubt.

In performing a factual sufficiency review, we are to give deference to the fact finder’s determinations, including determinations involving the credibility and demeanor of witnesses. We may not substitute our judgment for that of the fact finder’s. A factual sufficiency review of circumstantial evidence is the same as a review of direct evidence.

A person commits the offense of aggravated sexual assault if he intentionally or knowingly causes the sexual organ of a child to contact or penetrate the actor’s mouth. A person commits the offense of indecency with a child-exposure if, with a child younger than seventeen years and not the person’s spouse, the person exposes the person’s anus or any part of the person’s genitals, knowing the child is present, with the intent to arouse or gratify the sexual desire of any person. When the evidence in this case is viewed in a neutral light, it rationally justifies the jury’s findings that appellant sexually assaulted and exposed himself to A.J. The evidence supporting each element of the charged offenses is strong enough to support a finding of appellant’s guilt beyond a reasonable doubt and the supposedly contradictory evidence cited by appellant is not strong enough to negate that finding.

Standing alone, A. J.’s testimony that appellant performed oral sex on him at least four times when they lived in White Settlement is sufficient to sustain appellant’s conviction for aggravated sexual assault, and his testimony that appellant exposed himself to him supports appellant’s conviction for indecency with a child. Appellant’s convictions are further supported by the doctor’s testimony and the testimony of A.J.’s mother and appellant’s daughter. The doctor’s testimony that A.J. told her about appellant masturbating in front of A.J. supports the indecency with a child charge, and her testimony that A.J. said appellant abused him before the laundromat incident supports the aggravated sexual assault charge. AJ.’s mother’s and appellant’s daughter’s testimony, though circumstantial, supports both charges by showing that appellant and A. J. spent time alone together in closed rooms in various states of undress.

Appellant cites inconsistent testimony from A.J. and evidence of A.J.’s motivation to fabricate the allegations against him as contradictory evidence. Although A. J. testified about numerous incidents of abuse, his written statement mentions only one of appellant’s attempts to perform oral sex on him. Nothing in the written statement, however, indicates that A.J. intended it to be a complete account of his sexual abuse history. Rather than contradict his written statement, A.J.’s testimony simply revealed more of the abuse.

Other alleged inconsistencies pointed out by appellant are the different answers given by A.J. when he was asked whether appellant had exposed himself to him. When A.J. was questioned about appellant giving him oral sex, he said that appellant did not expose himself. Later, when A.J. was asked whether appellant exposed himself when he offered A.J. money to perform oral sex on him, A. J. said that he had. A.J.’s answers are not clearly contradictory because the exposure questions were asked in different contexts. It is entirely possible that appellant exposed himself when he was trying to persuade A.J. to give him oral sex, but not when he was performing oral sex on A. J.

Appellant also contends that the evidence of A.J.’s motivation to fabricate the allegations against him was strong enough to negate the jury’s findings of guilt. Appellant attacked AJ.’s credibility by alleging that A.J. lied about the abuse because he wanted his mother and father to reunite. A.J.’s mother testified that A. J. loved his father and wanted her to get back together with him. She testified that the children’s babysitter reported overhearing A.J. tell a friend that “CPS was going to believe him because Mommy and Daddy are going to get back together.” A.J.’s mother also testified, however, that A.J. loved appellant. The jury was the factfinder in this case and, as such, it was the jury’s responsibility to resolve any conflicts in the testimony. Moreover, we may not substitute our judgment for that of the jury on the issue of witness credibility.

Because the evidence supporting each element of the offenses charged is strong enough to support a finding of appellant’s guilt beyond a reasonable doubt and there is no contradictory evidence strong enough to negate that finding, we hold that the evidence is factually sufficient to support both of appellant’s convictions. We overrule appellant’s first point.

Extraneous Offense Reasonable Doubt Instruction

In his second point, appellant complains that the trial court erred by failing to include a reasonable doubt instruction regarding extraneous offense evidence in the jury charge at guilt-innocence. It is undisputed that appellant never requested such an instruction. It is also undisputed that appellant never objected to the admission of the extraneous offenses he allegedly committed in Henderson County or requested a limiting instruction when the evidence was admitted or at the charge conference. Appellant contends, however, that the trial court was required to instruct the jury sua sponte not to consider evidence of extraneous offenses he committed against A.J. unless his commission of those offenses was proven beyond a reasonable doubt.

Article 38.37 of the code of criminal procedure provides that, in a sexual assault of a child case, evidence of extraneous offenses committed by the defendant against the child is admissible to show the state of mind of the defendant and child and then-previous and subsequent relationship. Because all of the extraneous offense evidence in this case pertains to offenses that appellant committed against A.J., it was admissible under article 38.37. Further, because appellant failed to request a limiting instruction at the time the extraneous offense evidence was admitted, it was admitted for all purposes.

In Huizar v. State, the court of criminal appeals held that the reasonable doubt instruction mandated by article 37.07, section 3(a) is statutorily prescribed law applicable to the case at the punishment phase of a noncapital trial. Therefore, the Hui-zar court held a trial court must sua sponte include a reasonable doubt instruction regarding extraneous offense evidence at the punishment phase of trial.

Article 37.07, section 3(a) is not, however, the law applicable to the case at the guilt-innocence phase of trial; the statutory language specifically restricts its application to the punishment phase. Moreover, appellant has not cited any case, and our research has revealed none, in which the court of criminal appeals has held that a sua sponte reasonable doubt instruction regarding extraneous offenses is required at guilt-innocence. Accordingly, we decline to extend Huizar to hold that a sua sponte reasonable doubt instruction regarding the extraneous offense evidence was required at the guilt-innocence phase of appellant’s trial. We overrule appellant’s second point.

Jury Misconduct

In his final point, appellant complains that some jurors engaged in misconduct by deliberating before all twelve jurors were present and by conducting independent research on the recidivism rate of child molesters. To preserve a complaint for our review, a party must make a timely, specific objection and must obtain an adverse ruling from the trial court. Because appellant raised his juror misconduct complaint for the first time on appeal, he failed to preserve it. We overrule appellant’s third point.

Conclusion

Having overruled all of appellant’s points, we affirm the trial court’s judgment.

      . See Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App.2004).

      . Id. at 484.

      . Id. at 484-85.

      . Id. at 485.

      . Id.

      . Id. at 481; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997).

      . Zuniga, 144 S.W.3d at 482.

      . King v. State, 29 S.W.3d 556, 565 (Tex.Crim.App.2000); Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App.1999).

      . Tex. Penal Code Ann. § 22.021(a)(l)(B)(iii) (Vernon Supp.2005).

      . Id. § 21.11 (Vernon 2003).

      . See West v. State, 121 S.W.3d 95, 111 (Tex.App.-Fort Worth 2003, pet. ref'd); Empty v. State, 972 S.W.2d 194, 196 (Tex.App.-Dallas 1998, pet. ref’d) (both holding that a child’s uncorroborated testimony is sufficient to support a sexual assault conviction).

      . See Dumas v. State, 812 S.W.2d 611, 615 (Tex.App.-Dallas 1991, pet. ref’d).

      . Empty, 972 S.W.2d at 196-97.

      . TexCode Crim. Proc. Ann. art. 38.37, §§ 1-2 (Vernon Supp.2005); see also Tex.R. Evid. 404(b).

      . The extraneous offense evidence consisted of A.J.’s mother’s testimony about A.J.’s outcry to a camp counselor when they lived in Henderson County; A.J.’s testimony that appellant masturbated in front of him, made A. J. rub appellant’s genitals, and sucked on A.J.’s toes in Henderson County, and that appellant attempted to have anal sex with him in Henderson County or White Settlement; and the doctor’s testimony that A.J. told her appellant had attempted to have anal sex with him.

      . Tex.R. Evid. 105(a); Hammock v. State, 46 S.W.3d 889, 895 (Tex.Crim.App.2001).

      . 12 S.W.3d 479, 483 (Tex.Crim.App.2000); see TexCode Crim. Proc. Ann. art. 36.14 (Vernon Supp.2005).

      . Huizar, 12 S.W.3d at 484. Appellant received such an instruction at punishment in this case.

      . See TexCode Crim. Proc. Ann. art. 37.07, § 3(a).

      . The court of criminal appeals has held only that such an instruction is required if the defendant requests one. See, e.g., Ex parte Varelas, 45 S.W.3d 627, 631 (Tex.Crim.App.2001) (citing Mitchell v. State, 931 S.W.2d 950, 954 (Tex.Crim.App.1996) (plurality op.) and Harrell v. State, 884 S.W.2d 154, 157 (Tex.Crim.App.1994)).

      . The intermediate courts of appeals are split over whether Huizar should be extended to require a sua sponte reasonable doubt instruction for extraneous offense evidence at guilt-innocence. See Rodriguez v. State, 137 S.W.3d 228, 231 (Tex.App.-Houston [1st Dist.] 2004, no pet.); Gilbert v. State, No. 14-02-00727-CR, 2003 WL 22176625, at *4 (Tex.App.-Houston [14th Dist.] Sept. 23, 2003, no pet.) (mem.op.) (not designated for publication); Salazar v. State, No. 07-01-00389-CR, 2002 WL 246642, at *3 (Tex.App.-Amarillo Feb. 21, 2002, pet. ref'd) (not designated for publication) (all refusing to extend Huizar to guilt-innocence phase jury charge). But see Rodgers v. State, Nos. 10-04-00280-CR, 10-04-00281-CR, 180 S.W.3d 716, 723-24, 2005 WL 2787566, at *5-6 (Tex.App.-Waco Oct. 26, 2005, no pet.) (holding that sua sponte reasonable doubt instruction regarding extraneous offenses is required at guilt-innocence because it is “law applicable to the case”); Chapa v. State, No. 04-02-00346-CR, 2003 WL 1025148, at *1 (Tex.App.-San Antonio Mar. 12, 2003, pet. ref’d) (mem.op.) (not designated for publication); Arnold v. State, No. 05-01-01733-CR, 2002 WL 31565937, at *1 (Tex.App.-Dallas Nov. 20, 2002, no pet.) (not designated for publication) (both assuming that Huizar applies to extraneous offense evidence admitted at guilt-innocence).

      . Tex.R.App. P. 33.1(a).


author: Opinion by Justice MORRIS.

text:
    DALLAS CENTRAL APPRAISAL DISTRICT, Appellant, v. 1420 VICEROY LIMITED PARTNERSHIP, Appellee.
    No. 05-05-00270-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 18, 2005.
    Rehearing Overruled Jan. 20, 2006.

      Michael Allan Lang, Peter G. Smith, Nichols, Jackson, Dillard, Hager & Smith, L.L.P., Dallas, for Appellant.
    Miles Bradley Haberer, Hunton & Williams, L.L.P., Dallas, for Appellee.
    Before Justices MORRIS, WRIGHT, and RICHTER.
   OPINION

Opinion by Justice MORRIS.

In this interlocutory appeal, Dallas Central Appraisal District challenges the trial court’s denial of its plea to the jurisdiction. In two issues, the appraisal district contends the trial court lacked subject matter jurisdiction over the lawsuit filed by 1420 Viceroy Limited Partnership because Viceroy’s claims fall outside the purview of the Texas Property Tax Code’s exclusive remedies and it failed to exhaust its administrative remedies. For the reasons that follow, we affirm the trial court’s order denying the appraisal district’s plea to the jurisdiction.

1420 Viceroy Limited Partnership sued the appraisal district seeking to recover a refund of penalties, fees, and interest allegedly imposed on its property without proper notice and in violation of due process of law. According to its live pleading, Viceroy did not receive notice that taxes, penalties, fees, and interest were owed on the property until August 2003. It then requested a waiver of penalties, fees, and interest pursuant to section 33.011 of the property tax code, which was denied. Viceroy filed a notice of protest with the appraisal review board challenging the valuation of its property and requesting a refund of penalties, fees, and interest because the tax office never sent it proper notice of these charges. After a hearing, the review board issued an order that “the appraisal roll is correct and that the motion be denied and the applicable appraisal roll not be changed.” Viceroy then filed this lawsuit in district court. The appraisal district filed a plea to the jurisdiction, which the trial court denied. This appeal ensued.

In its first issue, the appraisal district contends the trial court lacked subject matter jurisdiction in this case because the property tax code does not permit Viceroy to protest to the' appraisal board the failure of the tax office to provide proper notice of accruing penalties, fees, and interest due to delinquent property tax payments.

A plea to the jurisdiction is a dilatory plea by which a party challenges a court’s authority to determine the subject matter of an action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). We review the denial of a plea to the jurisdiction de novo. See Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). And we lib erally construe the pleadings in favor of jurisdiction, focusing on the pleader’s intent. Tex. Dep’t of Parks & Wildlife v. Miranda, 138 S.W.3d 217, 226 (Tex.2004). To prevail on its plea to the jurisdiction, the appraisal district must demonstrate an incurable jurisdictional defect apparent from the face of the pleadings making it impossible for Viceroy’s petition to confer jurisdiction in district court. See Dillard Tex. Operating Ltd. P’ship, L.P. v. City of Mesquite, 168 S.W.3d 211, 214 (Tex.App.-Dallas 2005, pet. filed).

Section 41.41 of the property tax code sets forth the actions a property owner may protest before the appraisal review board. Tex. tax Code Ann. § 41.41 (Vernon 2001). In addition to several actions not relevant here, section 41.41 includes a general right of protest for “any other action of the chief appraiser, appraisal district, or appraisal review board that applies to and adversely affects the property owner.” Id. (emphasis added). Likewise, section 41.411 of the property tax code permits property owners to protest “the failure of the chief appraiser or the appraisal review board to provide or deliver any notice to which the property owner is entitled.” Tex. tax Code Ann. § 41.411 (Vernon 2001) (emphasis added). Under the plain words of the statute, neither of these sections authorizes or contemplates a protest based upon a taxing office’s failure to provide a required notice. We therefore agree with the appraisal district to the extent it asserts Viceroy’s protest to the appraisal review board based upon lack of notice from a taxing office was not authorized by the property tax code.

In reaching this conclusion, we necessarily reject Viceroy’s assertion that an overwhelming amount of Texas authority supports its contention that a protest based upon the failure of the taxing office to provide proper notice is authorized pursuant to chapter 41. To support its position, Viceroy relies on the following cases: MAG-T, L.P. v. Travis Central Appraisal District, 161 S.W.3d 617 (Tex.App.-Austin 2005, pet. denied); ABT Galveston Ltd. Partnership v. Galveston Central Appraisal District, 137 S.W.3d 146 (Tex.App.-Houston [1st Dist.] 2004, no pet.); Harris County Appraisal District v. Dincans, 882 S.W.2d 75 (Tex.App.-Houston [14th Dist.] 1994, writ denied); Cockerell v. Taylor County, 814 S.W.2d 892 (Tex.App.-East-land 1991, writ denied); and Matagorda County Appraisal District v. Conquest Exploration Co., 788 S.W.2d 687 (Tex.App.-Corpus Christi 1990, no pet.). None of these cases, however, persuades us that our construction of sections 41.41 and 41.411 is incorrect.

The only taxing entities involved in Din-cans and Conquest Exploration were the appraisal districts and appraisal review boards, and neither case involved notices sent by an entity other than the chief appraiser. See Dincans, 882 S.W.2d at 76-77; Conquest Exploration, 788 S.W.2d at 689. Cockerell involved the question of whether the trial court erred in dismissing for want of jurisdiction a taxpayer’s suit for a refund for overpayment of taxes under section 31.11 of the property tax code. Cockerell, 814 S.W.2d at 893. The East-land Court of Appeals determined the taxpayers’ case should have been decided on its merits because the judicial review provisions of section 42.01 et seq. apply only to disputed appraisals and assessments and not to overpayments or erroneous payments. Id. at 894.

Only two of the cases cited by Viceroy involved a taxing unit’s failure to give notice. In ABT Galveston, the taxpayers complained of the appraisal district’s failure to provide notice of appraised value and the removal of a property tax exemption, as well as the taxing units’ failure to deliver notices of an alleged default of tax abatement agreements. ABT Galveston, 137 S.W.3d at 152. The court held that both the taxing units and the appraisal district were entitled to summary judgment because the taxpayer did not timely exhaust its administrative remedies. Id. at 158. In reaching its conclusion, however, the court focused primarily on the fact that the taxpayers could have protested the failure of the appraisal district to provide any required notice under section 41.411. Likewise, in MAG-T, the taxpayers sued the appraisal district, the appraisal review board, and the tax assessor-collector complaining their taxes were raised after the appraisal roll was certified. MAG-T, 161 S.W.3d at 621. The taxpayers alleged they did not have to exhaust administrative remedies because the chief appraiser did not send them proper notices under sections 25.19 and 25.23(c) and their supplemental tax bill did not contain a reason for the correction under 26.15(d). Id. at 630. The court concluded the taxpayers were not exempted from exhausting their administrative remedies because section 41.411 specifically authorizes an administrative protest on this basis. Id. at 630-31. To the extent ABT and MAG-T can be read to suggest the property tax code authorizes a protest to the appraisal review board based on a taxing unit’s failure to provide notice, they provide no analysis or support for such a conclusion. Moreover, this conclusion conflicts with the plain language of sections 41.41 and 41.411 of the property tax code. We therefore decline to follow them on this issue.

Although we agree with the appraisal district’s assertion that the property tax code does not authorize a protest to the appraisal review board based on a taxing unit’s failure to provide notice, we nevertheless conclude that the trial court did not err in denying its plea to the jurisdiction. A district court is a court of general jurisdiction that may hear and determine any cause ■ that is cognizable by courts of law or equity and may grant any relief that could be granted by either courts of law or equity, unless a contrary showing is made. Tex. Gov’t Code Ann. § 24.008 (Vernon 2004); Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex.2002). Citing section 42.09, the appraisal district argues that because the property tax code remedies are exclusive, the lack of an administrative remedy for a tax office’s failure to provide a required notice necessarily precludes the trial court from exercising subject matter jurisdiction in this case. We disagree.

Section 42.09(a)(2) provides, in relevant part, that “procedures prescribed by this title for adjudication of the grounds of protest authorized by this title are exclusive, and a property owner may not raise any of those grounds as a basis of a claim for relief in a suit by the property owner to ... obtain a refund of taxes paid.” Tex. Tax Code Ann. § 42.09(a)(2). The basis of Viceroy’s complaint in the trial court, however, is not a ground of protest contained in the property tax code. Therefore, section 42.09’s exclusivity provision is not applicable and does not preclude the trial court from exercising subject matter jurisdiction over Viceroy’s lawsuit. We resolve the appraisal district’s first issue against it. In light of our determination that Viceroy's trial court complaint is not a ground of protest under the property tax code, we necessarily reject the contentions raised in the appraisal district’s second issue involving the exhaustion of administrative remedies.

We affirm the trial court’s judgment.

      . Although Viceroy filed a protest under section 41 of the property tax code, the order issued by the appraisal review board was enti-tied "Order determining motion under section 25.25(d).”


author: Opinion by Justice CORNELIUS.

text:
    TITUS REGIONAL MEDICAL CENTER and Steve Jacobson, Individually, Appellants, v. Joseph T. TRETTA, D.O., Appellee.
    No. 06-05-00060-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 19, 2005.
    Decided Nov. 21, 2005.

      A. Craig Carter, Davis & Davis, PC, Austin, for appellants.
    Donald H. Flanary, Jr., Ricardo Ortiz, The Flanary Group, Dallas, for appellee.
    Before ROSS, CARTER, and CORNELIUS, JJ.

       William J. Cornelius, C.J., Retired, Sitting by Assignment

   OPINION

Opinion by Justice CORNELIUS.

This is a suit by Joseph T. Tretta, D.O., against Titus Regional Medical Center and Steve Jacobson, individually. In his amended petition, Tretta raised numerous claims sounding in tort, breach of contract, defamation, conspiracy, and statutory violations that allegedly damaged his professional and personal reputation, his business, and his prospects for future employment. The principal basis for Tretta’s suit was his allegation that, when one of his patients died after he performed endoscopic sinus surgery on her, Jacobson and the Hospital set out to damage Tretta’s professional practice and reputation and force him to leave the hospital through a conspiracy to improperly investigate him for professional incompetence, and falsely report to the National Practitioner Data Bank (NPDB) that he resigned from the Hospital while he was being investigated.

Jacobson and the Hospital filed motions to dismiss and a motion for summary judgment based on claims that Jacobson was entitled to official immunity as to all claims against him, and the Hospital was entitled to sovereign immunity from both suit and liability as to contractual claims against it. The trial court granted the motion for summary judgment and plea to dismiss sustaining Jacobson’s claim of official immunity as to the tort claims, but denied the motion and plea as to all other claims. The trial court denied the Hospital’s motion for summary judgment for sovereign immunity on the contract, declaratory, and injunctive relief claims. Both Jacobson and the Hospital appeal pursuant to Tex. Civ. Peac. & Rem.Code Ann. § 51.014(a)(5), (8) (Vernon Supp.2005).

We reverse the trial court’s order denying Jacobson’s motion for summary judgment as to all claims other than tort claims, and affirm the trial court’s judgment insofar as it grants Jacobson judgment on the tort claims, and we affirm the trial court’s denial of the Hospital’s motion for summary judgment on the contract, declaratory, and injunctive relief claims.

When a defendant moves for summary judgment on the basis of an affirmative defense such as immunity, the defendant must prove by competent summary judgment evidence each element of the defense as a matter of law. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984).

Official immunity is an affirmative defense that protects an officer or employee of a governmental entity from liability when that officer or employee (1) acts in the scope of his employment, (2) performs discretionary duties, and (3) acts in good faith. Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex.2000); Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex.1997); Johnson v. Campbell, 142 S.W.3d 592, 594 (Tex.App.-Texarkana 2004, pet. denied). If the officer or employee acts within the scope of his authority in the performance of discretionary duties and acts in good faith, he is entitled to official immunity even though his acts are negligent or against the governmental entity’s regulations or policy. City of Lancaster v. Chambers, 883 S.W.2d at 655; Johnson v. Campbell, 142 S.W.3d at 594.

Sovereign immunity has two components: (1) immunity from suit, and (2) immunity from liability. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853-54 (Tex.2002); Longview Indep. Sch. Dist. v. Vibra-Whirl, Ltd., 169 S.W.3d 511, 513 (Tex.App.-Texarkana 2005, no pet.). Generally, the State’s immunity from liability is waived when the State enters into a contract with a private party or entity. Federal Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex.1997). The State is amenable to suit if it waives its immunity from suit by giving express consent to the suit. Longview Indep. Sch. Dist. v. Vibra-Whirl, Ltd., 169 S.W.3d at 513.

In considering whether Jacobson’s summary judgment evidence conclusively proved he is entitled to official immunity, we first determine if he, as chief executive officer (CEO) and administrator of the Hospital, is entitled to official immunity if he is otherwise qualified. The summary judgment evidence shows that the Hospital is a governmental entity, but it also shows that Jacobson was not an employee of the Hospital. Instead, he was an employee of Quorum, a hospital staffing company that by contract provided him to the Hospital as CEO and administrator. Tretta contends that, because Jacobson was not an employee of the Hospital, he is not entitled to official immunity. We disagree. The majority rule, and we think the better rule, is that official immunity does extend to a private party acting pursuant to a contract with a governmental entity as an official fulfilling statutorily mandated functions. Guerrero v. Tarrant County Mortician Servs., 977 S.W.2d 829, 832 (Tex.App.-Fort Worth 1998, pet. denied); Knowles v. City of Granbury, 953 S.W.2d 19, 24 (Tex.App.Fort Worth 1997, writ denied); Putthoff v. Ancrum, 934 S.W.2d 164, 169-73 (Tex.App.-Fort Worth 1996, writ denied). To deny official immunity to a person in such circumstances would, in the words of the court in De Vargas v. Mason & Hanger-Silas Mason Co., 844 F.2d 714, 722 (10th Cir.1988), place defendants “between Scylla and Charybdis — potentially liable either to plaintiffs for obeying the contract, or to governmental bodies for breaching it.” Other federal cases support this majority rule. See Eagon v. City of Elk City, Okla., 72 F.3d 1480, 1489-90 (10th Cir.1996); Williams v. O’Leary, 55 F.3d 320, 323-24 (7th Cir.1995); Sherman v. Four County Counseling Ctr., 987 F.2d 397 (7th Cir. 1993); Frazier v. Bailey, 957 F.2d 920, 928-29 (1st Cir.1992); Citrano v. Allen Correctional Ctr., 891 F.Supp. 312, 315-20 (W.D.La.1995). Tretta relies on our case of GAB Bus. Servs. v. Moore, 829 S.W.2d 345 (Tex.App.-Texarkana 1992, no writ), for a contrary holding. That case, however, is distinguishable. As we noted in our opinion in that case, GAB was a private company providing insurance adjusting services to the State Risk Pool. We noted that GAB was not the agent of the Risk Pool; GAB was not performing uniquely governmental services, but was merely acting as a private adjuster would; and GAB did not act in good faith. The summary judgment evidence here conclusively shows that Jacobson, as the duly appointed CEO and administrator for the Hospital, is entitled to official immunity if his acts meet the other criteria for official immunity-

We now determine if the summary judgment evidence conclusively shows that Jacobson was acting within the scope of his authority and performing discretionary duties in good faith.

A person acts within the scope of his authority if he is discharging the duties assigned to him. The fact that an act that forms the basis of a suit was performed improperly or negligently does not take it outside the actor’s scope of authority. City of Lancaster v. Chambers, 883 S.W.2d at 658 & n. 9.

If a duty involves personal deliberation, decision, and judgment, it is a discretionary duty. Acts that require specific obedience to orders that must be performed with such precision and certainty that nothing is left to the exercise of discretion or judgment, are ministerial. Kassen v. Hatley, 887 S.W.2d 4, 9 (Tex.1994); City of Lancaster v. Chambers, 883 S.W.2d at 653-54; Putthoff v. Ancrum, 934 S.W.2d at 170. Mandatory language in a statute or policy does not, of itself, make an act ministerial. Eakle v. Tex. Dep’t of Human Servs., 815 S.W.2d 869, 876 (Tex.App.-Austin 1991, writ denied); Austin v. Hale, 711 S.W.2d 64 (Tex.App.-Waco 1986, no pet.). Executives and supervisors of State entities have uniquely discretionary authority. Lowrey v. Univ. of Tex. Med. Branch, 837 S.W.2d 171, 176 (Tex.App.-El Paso 1992, writ denied); Lazaro v. Univ. of Tex. Health Sci. Ctr., 830 S.W.2d 330, 332 (Tex.App.-Houston [14th Dist.] 1992, writ de nied). Professionals who conduct or supervise investigations for State entities are performing discretionary acts. Heikkila v. Harris County, 973 S.W.2d 333, 336 (Tex.App.-Tyler 1998, pet. denied).

Jacobson was the CEO and administrator of the Hospital. The Texas Legislature’s Act creating the Titus Regional Hospital District provides that the CEO and administrator shall perform all duties required of him by the Board and “shall supervise all of the work and activities of the district, and have general direction of the affairs of the District, within such limitations as may be prescribed by the Board.” The Board of Managers’ ByLaws contain exactly the same language defining the CEO’s authority. The CEO is an ex-officio member of all medical committees of the Hospital. He is responsible for preparing the agenda for the committee meetings, giving notice to all persons who may be asked or permitted to appear at such meetings, and providing the committee members with whatever evidence and records they may need in their meetings. The CEO attends most committee meetings, but does not vote. He makes periodic reports to the Board and prepares the budget for the District. He is the supervisor of all of the Hospital’s employees, and has the authority to hire and terminate any employee for good cause, reporting such action to the Board. Jacobson had the authority and duty to make, and did make, all reports to federal and state authorities, including the NPDB, about the medical services and affairs of the Hospital, and was the Hospital’s official representative for that purpose. Tret-ta testified in his deposition that “everything” had to “go through” Jacobson, and that Jacobson sat in on every committee meeting and he made all the decisions. The By-Laws of the Board of Managers provides that no information relating to a “sentinel event” may be released by anyone except the CEO following consultation with the Board. One of Jacobson’s acts that Tretta alleges as a part of Jacobson’s conspiracy to damage him is Jacobson’s unilateral action in suspending all endoscopic sinus surgeries at the Hospital after Ms. Mary Woods died following surgery performed by Tretta. Jacobson, in his deposition, stated he made the decision to suspend all of those surgeries in order to ensure patient safety until a thorough investigation could be made. This decision by Jacobson obviously was a discretionary act in connection with his general supervisory authority over all of the operations and activities of the Hospital.

The summary judgment evidence conclusively proves that Jacobson was acting in the scope of his authority and was performing discretionary duties at the time and on the occasions relevant to this action.

The summary judgment evidence also conclusively proves that Jacobson was acting in good faith when he took the actions on which this suit is based. There is competent summary judgment evidence that other reasonable hospital administrators in Jacobson’s position could have reasonably believed that the actions, reports, and statements made by Jacobson were justified. That is the test for good faith in the context of an official immunity claim. City of Lancaster v. Chambers, 883 S.W.2d at 657; Johnson v. Campbell, 142 S.W.3d at 594. The test is an objective one. To avoid summary judgment on the issue of good faith, Tretta must have produced objective summary judgment evidence from a qualified witness who, after reviewing the facts, concludes that no reasonable person in Jacobson’s position could have believed Jacobson’s actions were justified. There is no summary judgment evidence to that effect in this record.

Tretta argues there is summary judgment evidence that Jacobson disliked him and deliberately tried to prejudice his position and future at the Hospital. But probative evidence on good faith is limited to objective evidence. Good faith in official immunity cases must be measured against a standard of objective legal reasonableness, without regard to the official’s subjective state of mind. Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 427 (Tex.2004); Wadewitz v. Montgomery, 951 S.W.2d at 466.

The trial court properly denied the Hospital’s motion for summary judgment on the basis of sovereign immunity. When a governmental entity enters into a contract with a private person or private entity, it waives its immunity from liability as to claims arising under or pertaining to that contract. Fed. Sign v. Tex. S. Univ., 951 S.W.2d at 405. The Hospital here contracted with Tretta with respect to his services at the Hospital, so it has no sovereign immunity from claims pertaining to that contract. See Longview Indep. Sch. Dist. v. Vibra-Whirl, Ltd., 169 S.W.3d at 513. The Hospital is not entitled to immunity from suit, because the Legislature’s Act creating the Hospital District provides that the Hospital’s Board of Managers shall have the power and authority to “sue and be sued.” Immunity from suit against a State entity may be waived only if the State has expressly given its consent to be sued. The Texas Supreme Court held in Missouri Pac. R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813 (Tex.1970), that statutory language providing that a State entity may “sue and be sued” gives consent to suit and expressly waives the State’s immunity from suit. We have followed the Missouri Pacific case in Longview Indep. Sch. Dist. v. Vibra-Whirl, Ltd., 169 S.W.3d 511; Southern Disposal, Inc. v. City of Blossom, 165 S.W.3d 887, 892 n. 4 (Tex.App.-Texarkana 2005, no pet.); and City of Texarkana v. City of New Boston, 141 S.W.Sd 778, 786-87 (Tex.App.-Texarkana 2004, pet. filed). Some courts have held otherwise, but we choose to continue to follow the Texas Supreme Court decision in Missouri Pacific. We therefore conclude that the summary judgment evidence here shows that the Hospital is not entitled to sovereign immunity either from suit or liability as to claims pertaining to its contract with Tret-ta.

Jacobson and the Hospital also contend the trial court erred in overruling their objections numbers 12 and 13 to Tretta’s summary judgment evidence. The objections were to allegedly hearsay statements made by Carol Ann Robinson that were repeated by Tretta in his deposition. Robinson was Chief of Medical Records at the Hospital. Consequently, her statements were not hearsay. Tex.R. Evm. 801(e)(2)(D).

For the reasons stated, we affirm the trial court’s order granting Jacobson and the Hospital’s motion for summary judgment as to Tretta’s tort claims, and we affirm the trial court’s order denying the Hospital’s motion for summary judgment as to contract, declaratory, and injunctive relief. We reverse the trial court’s order denying Jacobson and the Hospital’s motion for summary judgment on all remaining claims, and here render summary judgment for Jacobson and the Hospital on all claims based on Jacobson’s individual liability.

      . A "sentinel event” is the death of a patient.

      . Tretta's contract with the Hospital was dated before August 30, 1999, so Tex. Gov't Code Ann. § 2260.005 (Vernon Supp.2005) does not apply.


author: Opinion by Justice ROSS.

text:
    Terrell Kinyon DAVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 06-05-00001-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Sept. 27, 2005.
    Decided Nov. 21, 2005.

      Chris Castanon, Mesquite, for appellant.
    Steve Tittle, Asst. Dist. Atty., F. Duncan Thomas, Hunt County Dist. Atty., Green-ville, for appellee.
    Before MORRISS, C. J., ROSS and CARTER, JJ.
   OPINION

Opinion by Justice ROSS.

Terrell Kinyon Davis appeals from his convictions by a jury for five separate offenses arising from two transactions. All five cases were tried together, and the appeals are brought on a single record. The appeals in our cause numbers 06-05-00001-CR and 06-05-00002-CR are from Davis’ convictions for aggravated kidnapping and aggravated robbery, respectively, alleged to have been committed during the first transaction. The remaining three appeals are from Davis’ convictions for offenses alleged to have been committed during the second transaction: aggravated assault with a deadly weapon in each of the causes numbered 06-05-00003-CR and 06-05-00004-CR, and felon in possession of a firearm in cause number 06-05-00005-CR. Each of the five indictments alleged one prior felony conviction for enhancement purposes. Davis pled not guilty to each indictment, and pursuant to his election, the trial court assessed punishment in each case. The court sentenced Davis to forty-five years’ imprisonment in each of the first four cases and twenty years’ imprisonment in the fifth case. The jury made an express finding in each of the first four cases “that a deadly weapon, to wit: a firearm, was used or exhibited in the commission of the offense ... or the immediate flight therefrom.” The trial court made a similar deadly weapon finding in the fifth case. The- punishments in all five eases run concurrently. Each appeal is disposed by a separate opinion issued of even date.

In the present appeal, Davis was convicted for the aggravated kidnapping of Thera Phelps. In the companion to this appeal (06-05-00002-CR), he was convicted of aggravated robbery of the same person. Davis contends that the trial court erred by denying his motion to suppress evidence of his identification as the actor and that the evidence of his identity is legally and factually insufficient to support the verdict. The same issues are raised in the companion case in which he was also convicted of aggravated robbery.

Because all five cases were tried together and the evidence concerning both transactions was presented to the same jury, we summarize that evidence before addressing Davis’ contentions of error.

THE FIRST TRANSACTION

(Aggravated Kidnapping and Aggravated Robbery)

The kidnapping and robbery occurred June 15, 2003, at about 12:30 a.m. The evidence shows that a man dressed in all black clothing, including a mask, accosted Thera Phelps, a Burger King employee, after she had closed the business and gone home. As she was getting out of her car, this person dressed in black appeared, held Phelps at gunpoint, got into her car, and ordered her to return to the store for the money. On arrival at the store, he ordered Phelps to turn off the alarm, open the safe, and give him the money, which she did. The two re-entered Phelps’ car and she drove, at his directions, to a particular location not far from her home, where he got out of the car and ran away. The encounter lasted fifteen to twenty minutes. Phelps testified she could not identify her assailant, not even his racial group, from his appearance.

After Davis was arrested three months later, officers recorded his voice and played the recording for Phelps without comment or explanation. Detective Warren Mitchell testified that, without any hesitation or doubt, Phelps identified the voice as belonging to the person who had kidnapped her and robbed her business. Phelps testified at trial she had no doubt the voice on the recording was that of her assailant.

THE SECOND TRANSACTION

(Aggravated Assaults and Unlawful Possession of a Firearm by a Felon)

The aggravated assaults occurred September 15, 2003, at about 12:50 a.m. The evidence shows that a man dressed in all black clothing, including a black ski mask and black gloves, and carrying a gun, accosted Tevas Jackson, a Church’s Chicken store manager, after she had closed the business and gone home. He met Tevas at her car and ordered her back in. She declined and screamed. He hit her with the gun while she continued to scream. Her daughter, LaKendra Jackson, came out of the house and also saw the assailant. At that point, the assailant pointed the gun at LaKendra and either told her “shut up” or “don’t move.” LaKendra retreated inside the house, and the assailant ran away.

Two officers, who were already responding to a different call in the immediate area, heard Tevas screaming and reached her immediately after the assault. Two other officers arrived promptly, and they all set up a perimeter around the immediate area and began searching for the assailant. Officer Adrian Guzman heard a car alarm activate in a carport located in close proximity, and he saw a person, dressed in all black clothing, running in front of the car parked in the carport. Guzman gave chase and caught the person, who was immediately identified by a fellow officer — and who was identified in court by Guzman — as Davis. Davis had gloves and a black shirt in his hand that he dropped to the ground when Guzman caught him. Officers searched the carport where the car alarm activated and found a loaded pistol tucked behind a refrigerator on top of its motor. Guzman testified that the persons who lived at the residence told him the weapon did not belong to them.

BOTH TRANSACTIONS

The evidence shows that, when Davis got out of Phelps’ car to run away following his abduction and robbery of her, he was within only a few yards of the place where he was caught by Guzman after his assaults on Tevas and her daughter. Phelps and Tevas lived within a block of each other, and the record indicates Davis lived near both of them.

VOICE IDENTIFICATION

Davis’ points of error focus exclusively on the evidence identifying him as the actor in this prosecution. He first contends the court erred by denying his motion to suppress Phelps’ identification of his voice. Davis casts his argument as an identification issue, seeking to have it analyzed in the same way as a photographic lineup, complaining about the procedure followed by the police in playing a tape for Phelps with only his voice on it. The State has not addressed the issue as presented, but treats the admissibility of the identification as any other piece of evidence.

The authorities controlling an identification analysis typically involve photographic lineups, occasionally with a vocal component — as in requiring the members of the lineup to repeat some key phrase. There is no Fifth Amendment question raised in this case, and counsel has correctly acknowledged that a defendant may be required to speak words uttered by a robber as part of the identification process.

Davis contends the pretrial identification procedure was so tainted as to make the identification unreliable, and thus the court should not have admitted the evidence. He argues that the procedure and resulting identification were unreliable because the victim was not able to describe and give characteristics of the voice at trial, because it was over three months between the attack and the time she heard the audiotape, and because no other voices were presented to her in a type of vocal lineup. Based on these grounds, Davis asks us to conclude that, because the pretrial identification was impermissibly suggestive, it should have been suppressed.

The general rule is that the Due Process Clause of the Fourteenth Amendment prohibits the use of identification testimony from a witness who was subjected to an impermissibly suggestive pretrial identification procedure. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The reason for the rule is the substantial likelihood of misidentification that suggestive procedures may engender. Webb v. State, 760 S.W.2d 263, 269 (Tex.Crim.App.1988); Roberts v. State, 923 S.W.2d 141, 144 (Tex.App.-Texarkana 1996, pet. ref'd). If the totality of the circumstances reveals no substantial likelihood of misidentification, even though the procedure was impermissibly suggestive, the court will consider the identification testimony rehable. Reliability is the linchpin in determining the identification testimony’s admissibility. Webb, 760 S.W.2d at 269; Roberts, 923 S.W.2d at 144.

Further, the analysis requires an examination of the totality of the circumstances surrounding the identification. Barley v. State, 906 S.W.2d 27, 33-34 (Tex.Crim.App.1995). Suggestiveness may arise from the manner in which a pretrial identification procedure is conducted. Id. For example, a police officer may point out the suspect or suggest that a suspect is included in a lineup or photographic array. Id. Also, the content of a lineup or photographic array itself may be suggestive if the suspect is the only individual who closely resembles the description given by the witness. Id. Also, an individual procedure may be suggestive or the cumulative effect of procedures may be suggestive. Id.; Page v. State, 125 S.W.3d 640, 647 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd).

Although (as mentioned above) there are a number of cases involving both visual and vocal identifications of a defendant, counsel has directed us to no specific authority discussing this situation — where only a vocal identification is made — and we are aware of none. Because the sole purpose of the use of the tape recording of Davis’ voice was the same as a photograph of Davis would have been had Phelps been able to attempt identification from appearance, we will apply the same types of strictures as are used in the more typical situation.

Initially, we recognize that a single photograph “lineup” is considered improperly suggestive and is to be viewed with suspicion. Manson v. Brathwaite, 432 U.S. 98, 109, 117, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Delk v. State, 855 S.W.2d 700, 706 (Tex.Crim.App.1993). A suggestive identification scenario, such as a single photograph lineup, is disapproved because the suggestive lineup increases the likelihood of misidentification. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). A two-step analysis is used to determine the admissibility of an in-court identification. First, the photographic display cannot be impermissibly suggestive. Second, based on the totality of the circumstances, the suggestive display cannot give rise to a “substantial likelihood of irreparable misidentification.” Delk, 855 S.W.2d at 706; see Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The core issue is “whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.” Neil, 409 U.S. at 200, 93 S.Ct. 375.

Although we recognize that analysis of an identification of a voice differs from that of an identification by sight, the standards used to validate a visual identification provide considerable guidance. In evaluating the likelihood of misidentification caused by the corrupting effect of any suggestive identification procedure, we are to consider (1) the witness’ opportunity to view the assailant at the time of the crime; (2) how much attention the witness was paying to the assailant; (3) the accuracy of the witness’ description of the assailant; (4) the level of certainty the witness demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Webb, 760 S.W.2d at 269; see Neil, 409 U.S. at 199-200, 93 S.Ct. 375; Johnigan v. State, 69 S.W.3d 749, 752 (Tex.App.Tyler 2002, pet. ref'd). Although not preferred, single person identification lineups have been held constitutionally admissible. Neil, 409 U.S. at 195, 93 S.Ct. 375.

In this case, Phelps was in the immediate presence of her assailant for approximately fifteen to twenty minutes. She testified that she heard him speak quite a bit while giving her instructions and that he was immediately beside her the entire time. Because the victim had ample opportunity to hear the assailant and because her attention was focused on him during the encounter, the first two considerations are satisfied.

The third factor, the accuracy of the prior description of the voice of her assailant, fails completely. Phelps had provided the police with no prior description of Davis’ voice and, at the pretrial suppression hearing, was unable to articulate any particular identifiable factors concerning his voice.

In the fourth consideration, the evidence shows that, when Phelps heard the voice, she exhibited a high level of certainty the voice she heard was that of her assailant. The officer who had played the audiotaped conversation for Phelps testified that, when he played the tape:

A. She listened, looking at me. She looked down, she — her hands began to shake, she tried to speak but her voice was just — she couldn’t talk. Tears come [sic] from her eyes, ran down her cheeks. And I asked her what was wrong. She said, that’s him. And I asked, that’s who? She said, that’s the guy that made me go back to the store.
Q. Did she seem uncertain at all?
A. No.
Q. And you’d call it a very strong emotional reaction she had to the sound of his voice?
A. Probably the strongest I’ve seen.

At trial, Phelps was emphatic both on direct and cross-examination that she had immediately recognized the voice on the tape as that of her assailant and that she was certain it was the same voice.

The final factor, the length of time that had elapsed, is weaker. Three months had elapsed between the date of the kidnapping and robbery and the date when Phelps heard the audiotape. There had been some time for her memory to fade. Her testimony, and that of the officer, about Phelps’ instantaneous recognition of the voice, however, was absolutely unequivocal.

We also note that, in this instance, the officer carefully did not tell Phelps what recording he was playing for her, or why. He testified, as did she, that she was unaware of the possibility that she might hear the voice of the kidnapper, and that her reaction was immediate and powerful. This is a consideration that would not easily arise in a case involving a photograph, simply because of the nature of the media. The recording itself was not part of an interrogation and was of a casual conversation between the officer and Davis; thus, it would not have provided any hint of its purpose.

It can be argued Phelps might assume the reason she was asked to come to the police station was because the police had some lead in connection with her abduction and robbery, but in light of the officer’s reticence, it does not necessarily follow that' Phelps was expecting to hear the voice of her assailant on the audiotape. This differs from the more typical situation where an officer hands a photograph to a victim combined with a query as to whether it was a photograph of the actor.

The standard of review requires a reviewing court to consider the factors, which are all issues of historical fact, deferentially in a light favorable to the trial court’s ruling. “The factors, viewed in this light, should then be weighed de novo against ‘the corrupting effect’ of the suggestive pretrial identification procedure.” Loserth v. State, 963 S.W.2d 770, 773-74 (Tex.Crim.App.1998). The reviewing court must view the historical facts in a light most favorable to the court’s ruling if the trial court does not make express findings of historical facts. Id. at 774. The trial court did not make any express findings of historical facts, so we view the historical facts in a light most favorable to the court’s ruling.

A defendant bears the burden of establishing by clear and convincing evidence that the pretrial identification procedure was impermissibly suggestive. Barley, 906 S.W.2d at 33-34. The analysis requires an examination of the totality of the circumstances surrounding the identification. Id. at 33; Mayfield v. State, 162 S.W.3d 829, 832 (Tex.App.-Texarkana 2005, pet. ref'd); Morrow v. State, 139 S.W.3d 736, 741 (Tex.App.-Texarkana 2004, no pet.).

Although we believe the better practice would be to provide several similar voices in the identification procedure, considering the totality of the circumstances in the light most favorable to the court’s determination, we do not find the procedure followed here to be impermissibly suggestive. We also note there were actually two voices on the recording (Davis and the police officer), neither .of which was identified to Phelps before the tape was played. We cannot say, based on the standard set out above, the court’s determination that the procedure was not impermissibly suggestive was reversible error. The contention of error is overruled.

LEGAL AND FACTUAL SUFFICIENCY

Davis also contends the evidence is legally and factually insufficient to support the verdict. In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). In reviewing the factual sufficiency of the evidence, we are required to determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App.2004).

Davis contends the evidence is insufficient because his identity was proven only by Phelps’ testimony that she recognized his voice. The weight of that testimony, however, was for the jury to assess. There are cases holding that identifications by voice are sufficient to support a verdict. Locke v. State, 453 S.W.2d 484, 485 (Tex.Crim.App.1970); see McInturf v. State, 544 S.W.2d 417, 419 (Tex.Crim.App.1976). Further, in this case, the evidence of the second transaction, in light of the identical methods used, dates of the month, times of the night, clothing worn, proximity of the victims to each other and to the defendant’s residence, provide some evidence to support the verdict.

Both transactions were prosecuted in the same trial. Evidence of both transactions was admitted without objection. The State offered the evidence of the assaults in the second transaction to prove identity based on a similar modus operandi. For such evidence to be admissible, identity must be an issue in the case. Johnson v. State, 68 S.W.3d 644, 650-51 (Tex.Crim.App.2002). When an extraneous offense is offered to prove identity, the common characteristics or the device used in each offense must be so unusual and distinctive as to be like a “signature.” Collazo v. State, 623 S.W.2d 647, 648 (Tex.Crim.App. [Panel Op.] 1981). Signature features must consist of more than mere repeated commissions of the same class of crimes such as burglaries or robberies. Owens v. State, 827 S.W.2d 911, 915 (Tex.Crim.App.1992); Pena v. State, 867 S.W.2d 97, 99 (Tex.App.-Corpus Christi 1993, pet. ref'd). In this case, as previously set out, the modus operandi was identical, down to the time of night of the attacks, the location of both attacks were within a block of each other, and even the clothing worn was precisely the same type in both instances. Thus, the evidence was relevant and could be admitted because the sufficiently distinctive common characteristics between the extraneous offense and the charged offense earmarked both as the accused’s handiwork. Owens, 827 S.W.2d at 914-15.

The evidence is probative on the issue of identity, which was the key issue in the prosecution based on the first transaction. See Taylor v. State, 920 S.W.2d 319, 322 (Tex.Crim.App.1996) (relying in part on evidence that defendant had committed a near-identical earlier crime as evidence of identity); Bryant v. State, 656 S.W.2d 513, 517 (Tex.App.-Beaumont 1983, pet. ref'd) (relying on distinctive modus operandi of rapist in other attacks as evidence of identity). Based on this evidence, and on the identification by the victim of the voice of her assailant, and the complete lack of evidence to the contrary, we conclude the evidence is both legally and factually sufficient to support the verdict.

DEADLY WEAPON FINDING

Davis also contends the evidence is insufficient to support the jury’s deadly weapon findings in its verdicts finding him guilty of aggravated kidnapping, aggravated robbery, and the two aggravated assaults. He does not challenge the deadly weapon finding made by the trial court in its judgment in the felon in possession of a firearm case.

Davis challenges the deadly weapon finding in the first four cases because no weapon was recovered and there was no specific evidence provided to the jury adequately describing the type of weapon. Davis focuses on the lack of any evidence that the gun was actually a firearm (or if it was a toy or air pistol), and if it was a firearm, whether it was loaded or capable of being fired.

The allegation in this case was that a firearm was used. By definition, that is a deadly weapon. Tex. Pen.Code Ann. § 1.07(17) (Vernon Supp.2005). The only information about the item is found in Phelps’ testimony. In connection with the gun, she testified that, when she started to get out of her car at home, the gun was “just right there” and that she was fixated on it from that point. She testified that the gun was pointed at her and that she was afraid she was going to die that night. No further questions were asked. She was not asked to identify the type of weapon, and the record contains no other relevant evidence on that point.

In summary, we have evidence before us that the victim believed the item was a gun and that she feared for her life. This case was tried on the theory that a firearm was used in the crime. When the State alleges and proves that a weapon falls within this category, it is not necessary to verify that the object was really capable of causing death. Thomas v. State, 821 S.W.2d 616, 620 (Tex.Crim.App.1991); see also Grant v. State, 33 S.W.3d 875, 881 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (no requirement that firearm be loaded to support deadly weapon finding).

We recognize that the term “gun” may be a much broader term than “firearm” when taken out of context and may include such nonlethal instruments as BB guns, blow guns, pop guns, and grease guns. See O’Briant v. State, 556 S.W.2d 333, 335-36 (Tex.Crim.App.1977). Courts have also recognized, however, that the fact-finder may draw reasonable inferences and make reasonable deductions from the evidence as presented to it within the context of the crime. See Goodin v. State, 750 S.W.2d 857, 859 (Tex.App.-Corpus Christi 1988, pet. ref'd). Absent any specific indication to the contrary at trial, the jury may make the reasonable inference, from the victim’s testimony, that a “gun” was used in the commission of a crime and that the gun was a firearm. See Wright v. State, 591 S.W.2d 458 (Tex.Crim.App. [Panel Op.] 1979); Joseph v. State, 681 S.W.2d 738, 739 (Tex.App.-Houston [14th Dist.] 1984, no pet.). Davis’ threats against Phelps with the gun suggest it was a firearm rather than merely a gun of the nonlethal variety. See Edwards v. State, 10 S.W.3d 699, 701 (Tex.App.-Houston [14th Dist.] 1999), pet. ref'd, improvidently granted, 67 S.W.3d 228 (Tex.Crim.App.2002); Benavides v. State, 768 S.W.2d 587, 589 (Tex.App.-Corpus Christi 1988, pet. ref'd).

Further, the evidence that Davis committed the assaults in the second transaction, and that he did so with a firearm, provides support for the inference that the device he carried during his kidnapping and robbery of Phelps was also a firearm.

Applying the evidentiary review standards set out above, we also find there is legally and factually sufficient evidence to allow the jury to conclude Davis used a firearm in the commission of these crimes, and there is nothing beyond supposition or guesswork to suggest the contrary.

CONCLUSION

In summary, we hold that no error has been shown in the trial court’s failure to suppress Phelps’ identification of Davis’ voice, that the evidence of his identification is legally and factually sufficient, and that the evidence supporting the jury’s deadly weapon findings is sufficient.

Accordingly, we affirm the judgment.

      . First names are used to distinguish between persons with the same surname.

      . See Williams v. State, 116 S.W.3d 788, 792 (Tex.Crim.App.2003) (a voice or handwriting exemplar is an identifying physical characteristic, not testimony, and therefore outside Fifth Amendment’s protection).

      . See generally Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933, 934-35 (1983) (discussion of voice identification by aural lineup in conjunction with failed visual lineup where victim was unable to identify by sight, having been blindfolded during attack).

      . In Neil, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401, the Court listed these five nonexclusive factors to assess reliability.

      . In Neil, the Court upheld a conviction where the police, who had shown the victim numerous photographs of possible suspects, apprehended the accused, and, unable to find similar persons with whom to construct a lineup, took only the accused to the victim, who identified him as the rapist.

      . Even had Phelps clearly realized that a voice on the tape was that of a suspect, such knowledge alone does not create a tainted identification. See Clay v. State, 518 S.W.2d 550, 554 (Tex.Crim.App.1975).

      . See generally Clarke v. State, 813 S.W.2d 654, 657 (Tex.App.-Fort Worth 1991), aff'd, 839 S.W.2d 92 (Tex.Crim.App.1992) (involving a voice lineup).