author: JOHN S. ANDERSON, Justice.

text:
    Patsy FRANCO, Individually and as Next Friend of Jesse Ryan Villanueva, Alyssa Villanueva, Victoria Villanueva, and Pete Villanueva, Minors, and Jesse Villanueva, Appellants, v. SLAVONIC MUTUAL FIRE INSURANCE ASSOCIATION, Jed Walzel, Southland Services, Inc., Carl King, and Ernie Afflitto, Appellees.
    No. 14-03-01433-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 16, 2004.

      John Steven Mostyn, Eric Vincent Blanchard, Houston, for appellants.
    H. Dwayne Newton, Houston, Jeffrey Lee Hoffman, Richmond, for appellees.
    Panel consists of Justices ANDERSON, HUDSON, and FROST.
   OPINION

JOHN S. ANDERSON, Justice.

Appellants, Patsy Franco, individually and as next friend of her four children Jesse Ryan, Alyssa, Victoria, and Pete Villanueva, and Jesse Villanueva, her husband, appeal summary judgments granted in favor of appellees. This suit arises from a claim filed by Patsy Franco, the insured, with her insurer seeking coverage under a fire and extended coverage insurance policy for damage caused by a plumbing leak in her home. Appellants, Patsy Franco and her family, filed suit against appellees, the insurer, adjuster, and individuals who handled the insurance claim, alleging breach of contract and extra-contractual causes of action stemming from alleged misrepresentations made concerning the policy and the handling of the claim. We affirm.

Factual and Peocedural BackgRound

On June 18, 2000, Patsy Franco noticed water on her porch. It was discovered that the water was the result of a plumbing leak in her home. She notified her insurer, Slavonic Mutual Fire Insurance Association, of the plumbing leak and sought coverage for the cost of repairing the damage caused by the plumbing leak under a fire and extended coverage insurance policy issued by Slavonic insuring her home from certain losses.

Jed Walzel, secretary of Slavonic, acknowledged Franco’s claim and hired Southland Services, Inc. to inspect the premises at Franco’s residence and adjust the claim. Southland assigned the claim to individual adjustors Ernie Afflitto and Carl King. King contacted Franco about her claim and instructed her to contact a plumber. The section of the pipe that was leaking was located within the wall cavity, and King authorized the kitchen wall to be opened for plumbing repairs. It was discovered that the leak was caused by a hole in a drain pipe connected to the kitchen sink that leaked only when the sink was used. Franco did not know how long the pipe had been leaking.

After the plumbing repairs were made, King returned to Franco’s home, inspected the damage, and prepared an estimate of the repairs. On July 7, 2000, King sent his estimate of the cash value of the repairs to Slavonic. King estimated the amount of the actual cash value of the repairs as $3,930.55, less a $250 deductible, for a total cash value of $3,680.55. On July 18, 2000, Slavonic tendered a check in that amount to Franco. Slavonic also paid an invoice in the amount of $285 for emergency services at the Franco residence related to the plumbing leak. Franco did not cash the check for $3,680.55.

On July 21, 2000, Southland was notified by John Kubala, Franco’s designated appraiser, that Franco was invoking the appraisal provision of the Slavonic policy. On July 31, Walzel received a fax from Southland transmitting Franco’s demand for appraisal. The appraisal provision in the policy provides the following:

Appraisal. In case the insured and this Company shall fail to agree as to the actual cash value or the amount of loss, then, on the written demand of either, each shall select a competent and disinterested appraiser and notify the other of the appraiser selected within twenty days of such demand. The appraisers shall first select a competent and disinterested umpire; and failing for fifteen days to agree upon such umpire, then, on request of the insured or this Company, such umpire shall be selected by a judge of a district court of a judicial district where the loss occurred. The appraisers shall then appraise the loss, stating separately actual cash value and loss to each item; and, failing to agree, shall submit their differences only to the umpire. An award in writing, so itemized, of any two when filed with this Company, shall determine the amount of actual cash value and loss. Each appraiser shall be paid by the party selecting him and the expenses of appraisal and umpire shall be paid by the parties equally.

On August 14, 2000, Afflitto notified Kuba-la that Slavonic designated Sergio Garibay as its appointed appraiser.

In mid-July 2000, prior to Garibay’s appointment as Slavonic’s appraiser, South-land had contacted Garibay to examine the premises of the Franco home and determine the cause of the damage, and Garibay issued a report regarding his examination of the Franco residence and his findings. Franco protested Garibay’s appointment as Slavonic’s appraiser because of his previous investigation of the leak. However, on October 4, 2000, Kubala and Garibay agreed on the appointment of Lynn Taylor as the umpire, and the appraisal process moved forward.

Franco and Kubala claimed mold in Franco’s home was caused by water from the plumbing leak and needed to be tested. Kubala estimated the cost of repair as $12,397.72. Garibay disagreed with Kuba-la’s estimate and, instead, agreed with an estimate prepared by Southland estimating the cost of repair as $4,002.

On December 28, 2000, Taylor sent a proposed appraisal award to Kubala and Garibay proposing $8,273.53 as the cost of repair and $6,863.03 as the amount of the loss with depreciation deducted. Taylor’s proposed award included an allowance for “mold treatment” but not for any special remediation effort because Taylor had “not been presented with any information that the mold condition that presently exists is one that warrants special environmental remediation.”

On January 13, 2001, Taylor submitted a revised, proposed award to Kubala and Garibay. Taylor and Kubala both agreed to the revised proposed award of $8,350.51 for the cost of repair and $6,902.03 for the actual amount of loss, and Slavonic paid Franco $6,652.03 on January 22, which represented the actual value of the loss as determined by the revised, proposed award agreed to by Kubala and Taylor, less the $250 deductible specified in the policy. Franco accepted payment and deposited the check.

In June 2001, appellants filed suit against Slavonic, Walzel, Southland, Afflit-to, and King, alleging violations of Texas Insurance Code articles 21.21 and 21.55 and the Texas Deceptive Trade Practices Act (“DTPA”) and claims of negligent misrepresentation, fraud, breach of contract, breach of the duty of good faith and fair dealing, breaches of warranty, unconscionable conduct, gross negligence, and malice. All of appellants’ claims stem from alleged misrepresentations made by appellees concerning the policy and its coverage and the appellees’ alleged mishandling of Franco’s claim. Appellants sought economic and mental anguish damages, treble damages under the DTPA, exemplary damages, and attorney’s fees.

In April 2003, Slavonic and Walzel filed a joint motion for summary judgment (“Slavonic’s motion”) asserting traditional and no-evidence grounds as follows:

1. The Plaintiffs submitted their contractual claim to binding appraisal under the policy [and the appraisal award] was paid by Defendant Slavonic;
2. The Plaintiffs are estopped to claim additional damages under the policy of insurance since they have retained the benefit of the appraisal award paid by Slavonic;
3. The Plaintiffs’ contractual claims are not covered under the policy because the plumbing leak was not sudden but was a repeated leak over at least a period of weeks;
4. The summary judgment evidence establishes that no misrepresentation/fraud took place, the claims are barred by the applicable statute of limitations, or, in the alternative there is no evidence to support Plaintiffs’ misrepresentation/fraud claims;
5. The summary judgment evidence establishes compliance with the provisions of Art. 21.55 of the Texas Insurance Code as a matter of law;
6. There is no evidence to support Plaintiffs’ claims of violations of Art. 21.21 of the Texas Insurance Code or the Texas DTPA or that Plaintiffs were damaged thereby;
7. There is no evidence to support Plaintiffs’ Art. 21.21, DTPA and misrepresentation/fraud claims against Jed Walzel; and
8. There is no evidence that Slavonic or Walzel prevented Plaintiffs from remediating their premises or intentionally, knowingly, recklessly or negligently caused the minor Plaintiffs any bodily injury.

Appellants filed a response and specially excepted to Slavonic’s motion, contending it is unclear what type of summary judgment motion, traditional or no-evidence, Slavonic filed. The trial court specifically denied Slavonic’s motion for summary judgment with respect to the lack of coverage ground, but granted the motion in all other respects, ordering that appellants take nothing as to Slavonic and Walzel.

In June 2003, Southland, Afflitto, and King jointly moved for summary judgment (“Southland’s motion”) on both traditional and no-evidence grounds. Southland’s motion alleged summary judgment was proper based on the following: (1) because appellants’ claims against Slavonic failed, their claims against Slavonic’s agents, Southland, King, and Afflitto, also must fail; (2) appellants’ acceptance of the appraisal award waives appellants’ claim for insurance benefits; (3) the summary judgment evidence shows Slavonic paid Franco’s plumbing-leak claim in its entirety as determined by appraisal, thus Southland, King, and Afflitto are entitled to summary judgment on appellants’ DTPA and insurance code claims premised upon the contention that the claim was denied; and (4) appellants have no evidence to support certain elements of their article 21.21, DTPA, and negligence/gross negligence claims. In August 2003, the trial court signed a “Final Judgment of Dismissal” granting Southland’s summary judgment motion.

Discussion

Appellants challenge the summary judgments rendered in favor of appellees Slavonic, Walzel, Southland, King, and Afflitto in five issues, arguing: (1) the trial court abused its discretion in overruling their special exception to Slavonic’s motion; (2) Slavonic’s payment of the appraisal award does not dispose of appellants’ breach of contract claim; (3) Slavonic’s motion fails to show there are no fact issues as to any elements of appellants’ extra-contractual causes of action; (4) Southland’s motion does not establish that there are no fact issues as to any elements of appellants’ extra-contractual causes of action; and (5) fact issues preclude no-evidence summary judgment in favor of Southland, Afflitto, and King.

Standard of Review

The movant for summary judgment has the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). We review the summary judgment evidence using familiar standards of review. See Dolcefino v. Randolph, 19 S.W.3d 906, 916-17 (Tex.App.-Houston [14th Dist.] 2000, pet. denied).

A defendant moving for traditional summary judgment assumes the burden of showing as a matter of law the plaintiff has no cause of action against him. Levesque v. Wilkens, 57 S.W.3d 499, 503 (Tex.App.Houston [14th Dist.] 2001, no pet.). Traditional summary judgment for a defendant is proper only when the defendant negates at least one element of each of the plaintiffs theories of recovery, or pleads and conclusively establishes each element of an affirmative defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). A defendant may file a “no evidence” motion for summary judgment, after sufficient time for discovery has passed, if there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. See Tex.R. Civ. P. 166a(i). As with the traditional summary judgment, in reviewing a “no evidence” summary judgment, we review the evidence in the light most favorable to the non-movant and disregard all evidence and inferences to the contrary. Coastal Conduit & Ditching, Inc. v. Noram Energy Corp., 29 S.W.3d 282, 284 (Tex.App.-Houston [14th Dist.] 2000, no pet.).

Because the propriety of summary judgment is a question of law, we review the trial court’s decision de novo. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). In an appeal from a summary judgment, issues an appellate court may review are those the movant actually presented to the trial court. Travis v. City of Mesquite, 830 S.W.2d 94, 100 (Tex.1992). When the trial court grants summary judgment specifically on fewer than all grounds asserted, Rule 166a does not prevent an appellate court from affirming the judgment on other grounds the parties properly raised before the trial court. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996). If the trial court grants a motion for summary judgment without stating the grounds on which it relied, we must affirm the summary judgment if any ground argued in the motion was sufficient. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995); Blan v. Ali, 7 S.W.3d 741, 747-48 (Tex.App.-Houston [14th Dist.] 1999, no pet.).

I. Slavonic’s Motion for Summary Judgment

A. The Special Exception to Slavonic’s Motion for Summary Judgment

In issue one, appellants challenge the trial court’s denial of their special exception to Slavonic’s motion. In their response to Slavonic’s motion, appellants complained by special exception that Slavonic’s motion was vague and unclear in that they were unable to tell whether the motion was a traditional, no-evidence, or a hybrid motion for summary judgment. Appellants requested that Slavonic be required to replead the motion for summary judgment with more specificity “so as to identify what type of motion it is and clearly distinguish between traditional grounds and any no-evidence grounds asserted.”

When a summary judgment is attacked on specificity grounds, a special exception is required. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex.1993) (“An exception is required should a non-movant wish to complain on appeal that the grounds relied on by the movant were unclear or ambiguous.”). The excepting party must obtain a ruling on the special exception to preserve the issue for appeal. McConnell, 858 S.W.2d 337, 343 n. 7; Dolcefino, 19 S.W.3d at 925-26; see also Rosas v. Hatz, 147 S.W.3d 560, 562 (Tex.App.-Waco, 2004, no pet. h.) (refusing to infer a ruling on a special exception based only upon the trial court’s disposition of the summary judgment motion standing alone); Well Solutions, Inc., v. Stafford, 32 S.W.3d 313, 316-17 (Tex.App.-San Antonio 2000, no pet.) (holding “a trial court’s ruling on an objection to summary judgment evidence is not implicit in its ruling on the motion for summary judgment; a ruling on the objection is simply not ‘capable of being understood’ from the ruling on the motion for summary judgment”). As a general rule, a complaint is preserved for appellate review only if the record establishes the complaint was made known to the trial court in a timely manner, and the trial court ruled on the complaint. See Tex. R.App. P. 33.1(a).

Appellants concede that the trial court did not explicitly rule on their special exception. Instead, appellants contend that the trial court implicitly overruled their special exception pursuant to Rule 33.1 by (1) granting Slavonic’s motion and not requiring Slavonic to replead its summary judgment grounds, and (2) refusing to sign an order setting forth its denial of the special exception or the bases for granting Slavonic’s motion for summary judgment when appellants reurged the special exception in their motion for reconsideration. See Tex.R.App. P. 33.1(a)(2)(A). Slavonic and Walzel contend that appellants have waived appellate review of this issue by not obtaining a ruling on their special exception in the court below.

We examine the record to determine whether or not appellants obtained a ruling on the special exception. First, with regard to appellants’ arguments pertaining to their motion for reconsideration, despite their assertions to the contrary, nowhere in the motion for reconsideration do appellants request the trial court to reconsider or rule on the special exception. Thus, the trial court’s denial of the motion for reconsideration is not an implicit ruling on their special exception. See Alejandro v. Bell, 84 S.W.3d 383, 388 (Tex.App.Corpus Christi 2002, no pet.) (holding trial court implicitly ruled on objections to summary judgment evidence where the appellant complained in his motion for new trial of the trial court’s refusal to rule on his objections).

Second, we address appellants’ contention that the trial court’s order granting summary judgment in favor of Slavonic constitutes an implicit denial of appellants’ special exception. Appellants contend a denial is implied because the trial court did not order Slavonic to replead its motion for summary judgment. Slavonic and Walzel counter that the entry of summary judgment could just as easily evidence an abandonment of the issue in the trial court by appellants and, in addition, holding the entry of a summary judgment constitutes an implicit denial of a special exception would render the refusal to rale provision of Rule 33.1(a) meaningless.

In light of the relevant rules and case-law, we simply are unable to infer from the record in this case that the trial court implicitly overruled or implicitly made any ruling regarding appellants’ special exception. See Dolcefino, 19 S.W.3d at 926-27. The summary judgment order does not mention the special exception, and a ruling on the special exception cannot be inferred based solely upon the disposition of Slavonic’s summary judgment motion. Appellants were required to obtain a ruling, and they failed to do so. Having failed to preserve the issue for review, we overrule appellants’ first issue.

B. The Appraisal Award

In issue two, appellants assert (1) the appraisal award should be set aside because the appraisal was not conducted in substantial compliance with the insurance policy, and (2) even if the appraisal award is valid, Slavonic’s payment of the appraisal award is not dispositive of the breach of contract action alleged against Slavonic and Walzel.

Appellants contend the appraisal award should be set aside because Garibay was an interested, prejudiced, and biased appraiser, due to his status as an investigating engineer for Southland and the fact that he already had issued a report containing his opinions regarding the scope of appellants’ damages and coverage prior to his appointment as appraiser. Additionally, for the first time on appeal, appellants contend that the award should be set aside because Garibay did not follow the procedure for the appraisal process because he did not submit an appraisal for consideration by Kubala or Taylor in accordance with the appraisal provision of the policy.

Because appellants did not raise the second asserted basis for setting aside the appraisal award in their response to Slavonic’s motion in the trial court, we may only examine whether the summary judgment evidence raised a fact issue as to whether Garibay was biased and, if so, whether evidence of such bias raises a fact issue as to the appraisal award’s validity. See Tex.R.App. P. 33.1(a); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979).

Texas courts have long held that appraisal awards made pursuant to the provisions of an insurance contract are binding and enforceable, and every reasonable presumption will be indulged to sustain an appraisal award. Providence Lloyds Ins. Co. v. Crystal City Indep. Sch. Dist., 877 S.W.2d 872, 875 (Tex.App.-San Antonio 1994, no writ). The effect of an appraisal provision is to estop one party from contesting the issue of damages in a suit on the insurance contract, leaving only the question of liability for the court. Wells v. American States Preferred Ins. Co., 919 S.W.2d 679, 683-85 (Tex.App.-Dallas 1996, writ denied) (analyzing similar appraisal provision and concluding authority of appraisal panel limited to determining only the amount of loss). Because every reasonable presumption will be indulged to sustain an appraisal award, the burden of proof is on the party seeking to avoid the award. Barnes v. Western Alliance Ins. Co., 844 S.W.2d 264, 267 (Tex.App.-Fort Worth 1992, writ dism’d by agr.). Texas courts recognize three situations in which the results of an otherwise binding appraisal may be disregarded: (1) when the award was made without authority; (2) when the award was made as a result of fraud, accident, or mistake; or (3) when the award was not in compliance with the requirements of the policy. Wells, 919 S.W.2d at 683; Providence Lloyds Ins. Co., 877 S.W.2d at 875.

Appellants argue that exception (1) applies; specifically, that “Garibay had a predetermined opinion as to what the scope of his appraisal would be and was, therefore, bias[ed] against the Franco family.” We are required to view the summary judgment proof in the light most favorable to appellants and to resolve against Slavonic any doubt as to the existence of a genuine issue of material fact. The evidence relied upon by appellants to support their claim of bias consists of (1) Franco’s statement in a deposition excerpt that Garibay was an engineer hired by Southland to inspect their home and that he was appointed as an appraiser, and (2) Garibay’s affidavit in which he acknowledges being hired by Southland in mid-July 2002 to conduct an examination of appellants’ house in order to determine the cause of the damage from a plumbing leak and discusses his observations and conclusions concerning the leak.

Upon reviewing the record before us, we find appellants have not presented summary judgment proof of Garibay’s bias against the Franco family, thus no fact issue was presented. The showing of a pre-existing relationship, without more, does not support a finding of bias. See Allison v. Fire Ins. Exchange, 98 S.W.3d 227, 255 (Tex.App.-Austin 2002, pet. granted, judgm’t vacated w.r.m.); Gardner v. State Farm Lloyds, 76 S.W.3d 140, 143-44 (Tex.App.-Houston [1st Dist.] 2002, no pet.). Here, the summary judgment evidence shows that Garibay was hired by Southland “to examine the premises” and “determine the cause of the damage, possibly from a reported sink drain line leak.” Garibay was not an employee of Slavonic, and Garibay’s report and conclusions regarding the cause of the plumbing leak were his own. There is no evidence suggesting that Slavonic influenced or exercised control over Garibay, that Garibay had a financial interest in Franco’s claim, or that Garibay’s previous inspection of the premises somehow factored into his damages valuation. Moreover, the final appraisal award was entered into by Kubala, Franco’s appraiser, and the umpire. Viewing the evidence in the light most favorable to appellants, the evidence does not raise a fact issue as to Garibay being biased against appellants.

Appellants further allege that “payment of an appraisal award is not dispositive of the Franco Family’s entire breach of contract cause of action against Slavonic Mutual.” Slavonic counters that the appraisal award is binding and enforceable. The summary judgment record reveals that Slavonic did not deny Franco’s claim. Rather, Slavonic paid the full amount of the appraisal award to Franco, and Franco accepted payment of the award. The award is binding and enforceable. Under these circumstances, appellants are estopped by the appraisal award from maintaining a breach of contract claim against Slavonic. See Gardner, 76 S.W.3d at 143-44 (affirming summary judgment where there was no evidence raising a fact issue about whether the insurer’s appraiser lacked independence). We hold summary judgment was proper in favor of Slavonic on appellants’ breach of contract claim.

We overrule appellants’ second issue.

C. Appellants’ Extra-Contractual Claims Against Slavonic and Walzel

In issue three, appellants contend Slavonic’s motion for summary judgment did not conclusively establish that there are no genuine issues of material fact as to any element of appellants’ extra-contractual causes of action. Specifically, appellants argue that Franco and Villanueva’s lack of knowledge regarding the breaches and/or violations is not dispositive of the merits of their extra-contractual causes of action.

With regard to appellants’ extra-contractual claims, Slavonic and Walzel moved for summary judgment based on the following grounds: (1) there is no evidence that Slavonic or Walzel misrepresented the terms of the policy or made any false representations, statements, or advertisements concerning coverage afforded by the policy; (2) the summaiy judgment evidence shows there was no false advertisement or misleading or false statement or representation made to Franco in the sale of the insurance policy; (3) any misrepresentations or fraud regarding the policy’s coverage when it was purchased would have occurred, if at all, in February 1996 and are barred by limitations; (4) any misrepresentations made concerning the policy or appellants’ claim were not the producing cause of any damages to appellants because Slavonic paid the amount of the loss as determined by the appraisal; (5) even if Slavonic denied appellants’ claim, the damage resulting from the plumbing leak was not a covered loss or was specifically excluded from coverage by the policy; (6) there is no evidence Slavonic failed to meet the time deadlines imposed by article 21.55, or, alternatively, the summary judgment evidence conclusively established Slavonic met the time deadlines of article 21.55; and (7) there is no evidence that appellants sustained bodily injury or that Slavonic or Walzel acted criminally, negligently, recklessly, intentionally, or knowingly to cause any bodily injury.

In response, appellants cite to the following evidence as raising a fact issue with regard to Slavonic’s alleged violations of article 21.21 of the Texas Insurance Code and the DTPA in the sale of the policy: (1) Villanueva’s deposition testimony that he was told the policy “was a standard policy that homeowners have” and that he was led to believe that they “had the max[imum]” coverage; and (2) Franco’s deposition testimony that she thought the Slavonic policy was the same as any other insurance policy, and that this evidences an omission of fact regarding the policy by Slavonic’s representative. Appellants further contend the following evidence shows Slavonic and Walzel violated the Insurance Code and the DTPA during the claim-handling process: (1) Franco’s deposition testimony that King told her that the policy covers damage from plumbing leaks so long as the plumbing leak is above the foundation slab; and (2) Villanueva’s testimony, in response to being asked what was the first conversation he recalled having with Walzel, that “I don’t recall the first one. I know a conversation was related to the — where we weren’t happy about what was going to be done to the house and we had — God, I can’t recall, but I know his response was, Well, you hired an appraiser. He needs to represent ya’ll now.’” Additionally, appellants cite the following evidence as proof showing they were met with resistance and delay: (1) Franco’s testimony that Slavonic “took forever” to name their appraiser, and that when she disputed Garibay as the appraiser, that it took another 20 to 30 days, “somewhere around there,” to rename Garibay; and (2) Villanueva’s testimony that he felt “nothing was getting resolved.” Finally, appellants cite to Walzel’s deposition testimony in which he states that he does not know the provisions of article 21.21 “off the top of [his] head” as evidence that Walzel “has a complete lack of understanding with regard to the provisions and requirements of [the] Texas Insurance Code.”

1. Walzel’s No-Evidence Motion for Summary Judgment

The only evidence appellants cite in support of their extra-contractual claims asserted against Walzel are (1) Walzel’s statement that he did not know the specific provisions of article 21.21 of the Texas Insurance Code off the top of his head, and (2) Villanueva’s statement that Walzel told them to contact their appraiser during the appraisal process. Appellants do not explain how these statements raise a fact issue on their article 21.21, DTPA, and negligence claims alleged against Walzel. We conclude the two cited statements do not raise a fact issue on appellants’ extra-contractual claims alleged against Walzel. Additionally, the record shows appellants did not present any evidence of bodily injury or any evidence that Walzel acted criminally, negligently, intentionally, or knowingly to cause any bodily injury. Accordingly, we overrule appellants’ issue three as to Walzel.

2. Article 21.55 Violations

We next address appellants’ article 21.55 claims against Slavonic. Appellants do not complain on appeal of the summary judgment in favor of Slavonic on their article 21.55 claims. Furthermore, viewing the evidence in the light most favorable to appellants, there is no evidence raising a fact issue about Slavonic’s compliance with the time deadlines imposed by article 21.55. Accordingly, summary judgment in favor of Slavonic was proper on appellants’ article 21.55 claims.

3. Statutes of Limitations

Slavonic asserted in its motion for summary judgment that appellants’ misrepresentation, fraud, DTPA, and article 21.21 claims stemming from alleged misrepresentations made by Slavonic in the sale of the policy are barred by statutes of limitations.

A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense and must conclusively prove when the cause of action accrued. KPMG Peat Marwick v. Harrison County Housing Finance Corp., 988 S.W.2d 746, 748 (Tex.1999). Additionally, a defendant must negate the discovery rule, if it applies and has -been pleaded or otherwise raised, by proving as a matter of law that there is no genuine issue of material fact about when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered, the nature of its injury. If the movant establishes that the statute of limitations bars the action, the nonmovant must then adduce summary judgment proof raising a fact issue in avoidance of the statute of limitations. Id.

Generally, a cause of action accrues when a wrongful act causes an injury, regardless of when the plaintiff learns of the injury. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990). We note that appellants did not respond to Slavonic’s statute of limitations summary judgment ground in the trial court or on appeal. Because appellants did not raise the discovery rule, Slavonic is not required to negate the applicability of the discovery rule by proving as a matter of law that there is no genuine issue of fact concerning the date when the Franco’s discovered or should have discovered the injury. Here, the summary judgment evidence shows that Slavonic sold Franco the policy in February 1996, and that this suit was filed June 14, 2001, over five year’s later.

We conclude Slavonic proved as a matter of law that the statutes of limitations bar appellants’ fraud, negligent misrepresentation, DTPA, and article 21.21 claims stemming from alleged misrepresentations Slavonic made when the policy was purchased in 1996. See Tex Bus. & Com.Code Ann. § 17.565 (Vernon 2002) (providing two-year statute of limitations for claims filed under the DTPA); Tex. Civ. Pkac. & Rem.Code Ann. §§ 16.003, 16.004 (Vernon 2002) (providing two and four-year statute of limitations, respectively, applicable to causes of action for negligent misrepresentation and fraud); Tex. Ins.Code Ann. art. 21.21, § 16(d) (Vernon Supp.2004) (providing two-year statute of limitations applicable to actions brought under article 21.21). We affirm the summary judgment in favor of Slavonic on appellants’ extra-contractual claims stemming from the sale of the policy-

4. Article 21.21 and DTPA Violations

Slavonic moved for summary judgment on the ground that there is no evidence that appellants suffered any damages from the alleged violations of article 21.21 and the DTPA. Appellants did not produce any summary judgment evidence of damages in their response. Accordingly, we conclude that summary judgment in favor of Slavonic on these claims was proper.

5. Other Claims

Slavonic also moved for summary judgment on the ground that there is no evidence that it prevented Franco from remediating the damage to her home or caused the minor appellants any injury. Appellants did not introduce any evidence in response to these grounds, nor do appellants contest these grounds on appeal. Accordingly, we affirm the summary judgment on these grounds.

We overrule appellants’ third issue.

II. Southland’s Motion for Summary Judgment

In issues four and five, appellants argue summary judgment was improper for Southland because (1) Southland did not conclusively disprove appellants’ “extra-contractual” causes of action; (2) South-lands’ no-evidence motion was legally insufficient; and (3) fact issues precluded no-evidence summary judgment in favor of Southland. We first address appellants’ complaints regarding Southland’s no-evidence motion.

Appellants argue that the no-evidenee motion is legally insufficient because it does not identify the elements that are being challenged. However, contrary to appellants’ assertions, Southland’s no-evidence motion adequately sets forth the elements as to which there is no evidence, and we overrule this subissue.

In fact, Southland’s no-evidence summary judgment motion specifically alleges that there is no evidence of damages with regard to appellants’ claims that Southland violated article 21.21 by: wrongfully denying Franco’s claim; falsely stating the policy does not cover the claim; not attempting in good faith to effectuate a prompt, fair, and equitable settlement of the claim; not promptly providing Franco a reasonable explanation of the basis for denial of the claim; not affirming or denying coverage or submitting a reservation of rights; refusing to pay the claim; and making untrue statements of material fact concerning the policy’s coverage. Southland’s motion further alleges that there is no evidence of a knowing violation of article 21.21.

With regard to appellants’ DTPA claims, Southland’s motion alleges there is no evidence of damages or of unconscionable conduct. As pertaining to appellants’ negligence and gross negligence claims, South-land’s motion argues there is no evidence of bodily injury, no evidence of the breach of any legal duty, no evidence that South-land’s conduct was the proximate cause of bodily injury to appellants, no evidence that Southland refused to allow appellants to repair their home, and no evidence of exemplary damages. The motion further asserts there is no evidence Southland committed a felony under Texas Penal Code section 22.04 in the work on Franco’s home.

Appellants, as the non-movants, had the burden to raise a genuine issue of material fact as to the elements challenged in Southland’s motion. See Tex.R. Civ. P. 166a(i). In their response to Southland’s motion, appellants only addressed the no-evidence grounds pertaining to then' alleged article 21.21 violations. Because appellants did not present any evidence in response to Southland’s no-evidence grounds pertaining to appellants’ DTPA, negligence, and gross negligence claims, we affirm the summary judgment in favor of Southland, King, and Afflitto on these claims. See Dolcefino, 19 S.W.3d 906, 917.

We are left to examine whether summary judgment was proper on appellants’ article 21.21 claims. The evidence appellants cite in support of their claims under article 21.21 consists of the following: (1) Franco’s deposition testimony that King told her the policy covers damage from plumbing leaks so long as the plumbing leak is above the foundation slab; (2) Franco’s testimony that she took out a loan with her attorney and hired a company to come out and prepare a scope of remediation with regard to mold in her home; (3) a letter dated October 26, 2000, from Afflitto to Kubala discussing the relevant policy provisions and notifying appellants that Slavonic’s offer of $4,002.42 would be left on the table for an additional thirty days; and (4) a fax cover sheet dated October 24, 2000, from Afflitto to Walzel, concerning records from Garibay.

One of the grounds in Southland’s motion is that there is no evidence of damages caused by the alleged article 21.21 violations. Section 16(a) of article 21.21 provides:

Any person who has sustained actual damages caused by another’s engaging in an act or practice declared in Section 4 of this Article to be ... unfair or deceptive acts or practices in the business of insurance ... may maintain an action against the person or persons engaging in such acts or practices.

Tex. Ins.Code Ann. art. 21.21, § 16(a) (Vernon Supp.2004). Here, appellants offer Franco’s statement that she obtained a loan from her attorney for scope of remediation work conducted at her home as evidence of damages. However, this evidence is not connected to the article 21.21 claims (or any other claim for that matter) and, therefore, does not raise a fact issue as to whether appellants sustained damages attributable to their alleged article 21.21 claims. Because appellants did not present evidence raising a genuine issue of material fact as to damages, we conclude summary judgment in favor of Southland, King, and Afflitto was proper on appellants’ article 21.21 claims.

Because we conclude that no-evidence summary judgment was proper in favor Southland, King, and Afflitto on all of appellants’ causes of action, we do not address the remaining summary judgment grounds. Accordingly, we overrule appellants’ fourth and fifth issues and affirm the summary judgment in favor of Southland, King, and Afflitto.

We affirm the judgment of the trial court.

      . In 1996, Franco purchased a fire and extended coverage insurance policy from Slavonic to insure her home, and this same policy had been renewed each year and was in effect in June 2000.

      . During the appraisal process, Slavonic offered Franco $4,002.52 to compromise the claim, but this offer was not accepted.

      . Appellants did not seek in their petition to set aside the appraisal award.

      . Slavonic asserted the plumbing leak claim was not covered by the policy because of a specific provision in the policy governing coverage for accidental water damage:
      ACCIDENTAL WATER DAMAGE — Water damage is limited to a loss of a sudden nature or circumstance.... Water damage covers loss above foundation from accidental discharge, leakage, or overflow of water or steam from within a plumbing, heating or air-conditioning system or domestic appliance....
      This Association shall not be liable for loss caused directly or indirectly by ... (4) by continuous or repeated seepage or leakage over a period of weeks, months, years[.]

      . Slavonic's motion raises both traditional and no-evidence grounds, and appellants concede the rules do not prohibit a hybrid summary judgment motion such as Slavonic’s.

      . Appellants did not identify in their special exception (or on appeal) the particular grounds in Slavonic’s motion that lack specificity. We recognize that Slavonic’s motion is not a model of clarity — the motion does not set forth the applicable standards of review under Rule 166a(c) and (i) and does not segregate the traditional from the no-evidence grounds; however, the motion does comply with Rule 166a in stating the grounds and sufficiently puts appellants on notice of the claims and causes of action being challenged by appellees. The better practice is to file two separate motions or to file one document containing both motions but with the arguments and authorities for each clearly delineated and separated from one another. For example, Southland’s motion also was a hybrid, but it clearly segregated the traditional from the no-evidence grounds.

      . Notably, appellants do not allege a cause of action to set aside the appraisal award in their petition. The claims and facts alleged in appellants’ live petition focus on alleged misrepresentations made by appellees concerning the policy and the alleged mishandling of Franco’s claim. However, despite not having alleged a cause of action to set aside the award, appellants are not barred from raising the issue of the appraisal award's validity for the first time in their summary judgment response, and this issue was properly before the trial court and is subject to review by this court. See Womack v. Allstate Ins. Co., 156 Tex. 467, 473, 296 S.W.2d 233, 237 (1956) (holding when summary judgment proof discloses facts rendering summary judgment untenable for the moving party, summary judgment should be denied regardless of defects in the pleading of the non-movant); Patterson v. First Nat. Bank of Lake Jackson, 921 S.W.2d 240, 244 (Tex.App.-Houston [14th Dist.] 1996, no writ) (holding same).

      . In the last section of their summary judgment response entitled, "Jed Walzel’s deposition reveals a total lack of adherence to the Insurance Code,” appellants allege that Slavonic allowed Garibay "to avoid actually participating in the process and to completely neglect even submitting an appraisal for either Plaintiffs' appraiser's consideration or the umpire’s consideration” and that this "reveals a total lack of adherence to the Insurance Code, as well as a lack of adherence to the insurance contract at issue.” Appellants do not allege anywhere in their response to Slavonic’s motion that the appraisal award should be set aside because Garibay allegedly did not substantially comply with the procedure for the appraisal process.

      . References in this section to "Southland” also include King and Afflitto.


source: Caselaw Access Project

author: ANN CRAWFORD McCLURE, Justice.

license: Public Domain

text:
    In re James CHO, M.D., Relator.
    No. 08-04-00257-CV.
    Court of Appeals of Texas, El Paso.
    Dec. 16, 2004.

      Robert E. Valdez, Ray, Valdez, McChristian & Jeans, P.C., San Antonio, for relator.
    Carlos Villa, respondent-trial court judge.
    Walter L. BoyaM, Miranda & Boyaki, El Paso, for interested party.
    Before Panel No. 5 BARAJAS, C.J., McCLURE, J., and HILL, C.J. (Ret.).

       Hill, C J. (Ret.) (Sitting by assignment).

   OPINION ON PETITION FOR WRIT OF MANDAMUS

ANN CRAWFORD McCLURE, Justice.

Relator, James Cho, M.D., filed a petition for writ of mandamus. For the reasons stated below, we deny the petition.

STANDARD OF REVIEW

Mandamus will lie only to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding). Moreover, there must be no other adequate remedy at law. Id.

1. Clear abuse of discretion

An appellate court rarely interferes with a trial court’s exercise of discretion. A clear abuse of discretion warranting correction by mandamus occurs when a court issues a decision which is without basis or guiding principles of law. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (orig. proceeding). With respect to resolution of factual issues or matters committed to the trial court’s discretion, the reviewing court may not substitute its judgment for that of the trial court. Walker, 827 S.W.2d at 839-40. The relator must therefore establish that the trial court could reasonably have reached only one decision. Id. Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court’s decision unless it is shown to be arbitrary and unreasonable. Id. With respect to a trial court’s determination of the legal principles controlling its ruling, the standard is much less deferential. A trial court has no “discretion” in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. Walker, 827 S.W.2d at 840.

2.No adequate remedy by appeal

An appellate court will deny mandamus relief if another remedy, usually appeal, is available and adequate. Street v. Second Court of Appeals, 715 S.W.2d 638, 639-40 (Tex.1986) (orig. proceeding). Mandamus will not issue where there is “a clear and adequate remedy at law, such as a normal appeal.” Walker, 827 S.W.2d at 840, quoting State v. Walker, 679 S.W.2d 484, 485 (Tex.1984). Mandamus is intended to be an extraordinary remedy, available only in limited circumstances. The writ will issue “only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies.” Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex.1989), quoting James Sales, Original Jurisdiction of the Supreme CouH and the CouHs of Civil Appeals of Texas, in Appellate Procedure in Texas, § 1.4(l)(b) at 47 (2d Ed.1979).

APPLICATION OF THE LAW TO THE FACTS BEFORE THE COURT

The record before us does not reflect that the trial court clearly abused its discretion by denying Dr. Cho’s motion to dismiss. Therefore, we need not address the real party in interest’s argument that Dr. Cho has an adequate remedy by appeal. Accordingly, we deny the relief requested in the petition for mandamus and the motion for emergency relief.


text:
    In re James CHO, M.D., Relator.
    No. 08-04-00278-CV.
    Court of Appeals of Texas, El Paso.
    Dec. 16, 2004.

      Robert E. Valdez, Ray, Valdez, McChristian & Jeans, P.C., San Antonio, for Relator.
    Javier Alvarez, El Paso, for respondent.
    Walter L. Boyaki, Miranda & Boyaki, El Paso, for Interested Party.
    Before Panel No. 5 BARAJAS, C.J., McCLURE, J., and HILL, C.J. (Ret.).
   OPINION ON PETITION FOR WRIT OF MANDAMUS

ANN CRAWFORD McCLURE, Justice.

Relator, James Cho, M.D., filed a petition for writ of mandamus. For the reasons stated below, we deny the petition.

STANDARD OF REVIEW

Mandamus will lie only to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992)(orig.proceeding). Moreover, there must be no other adequate remedy at law. Id.

1. Clear abuse of discretion

An appellate court rarely interferes with a trial court’s exercise of discretion. A clear abuse of discretion warranting correction by mandamus occurs when a court issues a decision which is without basis or guiding principles of law. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985)(orig.proceed-ing). With respect to resolution of factual issues or matters committed to the trial court’s discretion, the reviewing court may not substitute its judgment for that of the trial court. Walker, 827 S.W.2d at 839-40. The relator must therefore establish that the trial court could reasonably have reached only one decision. Id. Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court’s decision unless it is shown to be arbitrary and unreasonable. Id. With respect to a trial court’s determination of the legal principles controlling its ruling, the standard is much less deferential. A trial court has no “discretion” in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. Walker, 827 S.W.2d at 840.

2. No adequate remedy by appeal

An appellate court will deny mandamus relief if another remedy, usually appeal, is available and adequate. Street v. Second Court of Appeals, 715 S.W.2d 638, 639-40 (Tex.1986)(orig.pro-ceeding). Mandamus will not issue where there is “a clear and adequate remedy at law, such as a normal appeal.” Walker, 827 S.W.2d at 840, quoting State v. Walker, 679 S.W.2d 484, 485 (Tex.1984). Mandamus is intended to be an extraordinary remedy, available only in limited circumstances. The writ will issue “only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies.” Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex.1989), quoting James Sales, Original Jurisdiction of the Supreme Court and the Courts of Civil Appeals of Texas, in Appellate Procedure in Texas, § 1.4(l)(b) at 47 (2d Ed.1979).

APPLICATION OF THE LAW TO THE FACTS BEFORE THE COURT

The record before us does not reflect that the trial court clearly abused its discretion by denying Dr. Cho’s motion to dismiss. Therefore, we need not address the real party in interest’s argument that Dr. Cho has an adequate remedy by appeal. Accordingly, we deny the relief requested in the petition for mandamus.

HILL, C. J. (Ret.)(Sitting by assignment).


author: ADELE HEDGES, Chief Justice.

text:
    Eladio Camacho NAVARRO, Appellant, v. The STATE of Texas, Appellee.
    No. 14-03-01378-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 21, 2004.

      James M. Leitner, Houston, for appellant.
    Bridget Holloway, Houston, for appellee.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and SEYMORE.
   OPINION

ADELE HEDGES, Chief Justice.

Appellant Eladio Camacho Navarro brings this appeal from his conviction for the capital murder of his eight-month-old daughter, Nayeli Navarro. Appellant brings two points of error for our review: whether the trial court erred in admitting extraneous acts in violation of Rules of Evidence 403 and 404(b) and whether appellant received ineffective assistance of counsel. We affirm.

Background

Late in the evening on Christmas Eve of 2002, appellant returned home after a night of drinking to find his common-law wife, Alma Mosqueda, asleep at her house with their eight-month-old daughter, Nayeli Navarro. Suspicious that his wife was having an affair with his brother, appellant screamed at her, pulling her hair and throwing her on the bed. Mosqueda told appellant to leave the house, which he did. Mosqueda then threw appellant’s clothes on the front porch. Early Christmas morning, appellant returned, still drunk and belligerent. Again, he screamed at her and pulled her by the ham, yelling at her to pick up his clothes. She did, but refused to put them back on hangers. Appellant then told her, “You have to do it, even if I have to kill you. I’ll take the baby to Mexico.” Appellant continued to threaten Mosqueda, drawing his gun and pointing it at her. Mosqueda picked up her baby to shield her from appellant, who feed the gun. A single bullet struck Nayeli, traveling through her left arm, one of her lungs, and her heart. She died instantly.

Realizing that the shot had struck his daughter, appellant yelled, “No, not my baby,” and took her body from Mosqueda, who dialed 911. Appellant then fled the scene. He was later arrested and charged with Nayeli’s death.

Extraneous Offenses

In his first point of error, appellant contends the trial court erred in allowing the State to introduce evidence of his prior verbal and physical abuse of Mosqueda. Appellant argues that the evidence is inadmissible under Rules 403 and 404(b) of the Texas Rules of Evidence in that the admission of this evidence was for no other purpose than to prove action in conformity with bad character. We disagree.

In prosecutions for murder, Article 38.36 of the Code of Criminal Procedure provides in relevant part as follows:

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

TexCode CRiM. PROC. Ann. art. 38.36(a) (Vernon 2003). In Smith v. State, the Court of Criminal Appeals held that evidence admissible under Article 38.36 must still meet the requirements of Rules 403 and 404(b). 5 S.W.3d 673, 679 (Tex.Crim.App.1999).

Evidence of an extraneous offense may be admitted if it has relevance apart from its tendency to prove the character of a person in order to show that he acted in conformity therewith. See Tex.R. Evid. 404(b). Such evidence has relevance apart from character conformity when it tends to establish some elemental fact, such as proof of motive, intent, plan, or absence of mistake or accident. Id.; see also Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex.Crim.App.1990); Aitch v. State, 879 S.W.2d 167, 174 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd). Although relevant, such evidence may be excluded under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice. See Tex.R. Evid. 403. This analysis is to be conducted by the trial judge in light of the unique facts and circumstances of each case, and will not be disturbed on appeal unless it is outside the zone of reasonable disagreement. See Montgomery, 810 S.W.2d at 391.

The State pursued a capital murder prosecution against appellant under the theory of transferred intent, in which a person can be criminally responsible for his action if the only difference between what he desired and what actually occurred was that a different person 'was injured, harmed, or otherwise affected. Tex. Pen.Code Ann. § 6.04(b)(2) (Vernon 2003). Prior to trial and pursuant to the requirements of Rule 404(b), the State notified appellant that it intended to use extraneous offenses committed by appellant against Mosqueda. These extraneous offenses were instances in which appellant hit, choked, or otherwise physically abused Mosqueda, including one in September of 2002 in which appellant pulled a gun on Mosqueda, shoved the gun into her stomach with enough force to bruise her, and threatened to kill her. At trial, the court allowed direct testimony regarding the September incident and other general questions about times when appellant threatened to kill Mosqueda if she called the police. In the jury charge, the court instructed the jury that it could consider the admitted evidence only to determine “the motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment and for no other purpose.” During closing arguments, appellant’s attorney argued the killing was unintentional and asked the jury for a conviction on the lesser crime of manslaughter.

Appellant argues that 38.36 should not apply in this case since the evidence regarded his relationship with Mosqueda and not Nayeli, his victim. Appellant also argues that the evidence showed only that appellant was a “bad person” or a “mean drunk” and had no relevance apart from proving his bad character. With this argument we do not agree.

In Dixon v. State, the defendant, arguing self-defense, offered evidence regarding his altercation with his intended victim. 634 S.W.2d 855 (Tex.Crim.App.1982). The trial court excluded the evidence on the grounds that former Penal Code Section 19.06 applied only to the relationship between the accused and the deceased. In its reversal of the trial court’s ruling, the Court of Criminal Appeals said that “[w]e perceive no reason why the foregoing rule does not apply to acts of the intended victim as well as to the deceased.” 634 S.W.2d at 857. Although the decision in Dixon referred to evidence offered by the defendant, we believe Article 38.36 applies to evidence offered by the State as well. Given the fact that the. State pursued a capital murder conviction based on the theory of transferred intent, the evidence of the previous bad acts was therefore admissible under Article 38.36.

We also find the evidence admissible under Rule 404(b) to prove both appellant’s intent to kill and absence of mistake in attempting to kill Mosqueda, his intended victim. Because appellant’s intent was at issue, the probative value of appellant’s prior bad acts thus outweighs the danger of unfair prejudice. The evidence therefore meets the requirements of Rule 403. Appellant’s first point of error is overruled.

Ineffective Assistance of Counsel

In his second point of error, appellant argues that the actions of his counsel, specifically, his counsel’s failure to cross examine certain witnesses, to cross-examine other witnesses more in-depth, to bring witnesses in appellant’s defense or to present any defensive theory at all, and to object to inadmissible hearsay all constituted ineffective assistance of counsel. We disagree.

The Sixth Amendment to the United States Constitution guarantees the right to reasonably effective assistance of counsel in criminal prosecutions. U.S. CONST. amend. VI; McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). To prove a claim of ineffective assistance, an appellant must prove, by a preponderance of the evidence, that his attorney’s representation was deficient in that it fell below the objective standard of professional norms; furthermore, an appellant must prove that a reasonable probability exists that, but for the counsel’s deficiency, the outcome of the trial would have differed. Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999).

Our review of defense counsel’s representation must be highly deferential, presuming that appellant’s counsel’s actions fell within the wide range of reasonable and professional assistance. Bone, 77 S.W.3d at 833; Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App.2000). Accordingly, to establish deficient performance, a defendant must not only show that his trial counsel’s performance fell below an objective standard of reasonableness but also must rebut the presumption that his trial counsel’s decisions were based on sound trial strategy. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052. A finding of ineffectiveness cannot be supported by second-guessing the strategy of trial counsel through hindsight or by the fact that another attorney might have pursued a different course. Blott v. State, 588 S.W.2d 588, 592 (Tex.Crim.App.1979); see also Sessums v. State, 129 S.W.3d 242, 246 (Tex.App.-Texarkana 2004, pet ref'd).

As to appellant’s allegations that the failure of his counsel to cross-examine witnesses or present a defensive theory constituted ineffective assistance of counsel, we find that the attorney’s conduct did not fall below an objective standard of professional norms. Given an emotional and tragic case such as this, it is entirely reasonable or foreseeable that a defense attorney would limit his cross-examination out of fear of alienating a jury or coming across as too aggressive. We decline to second-guess appellant’s trial counsel’s strategy or inquire as to whether another attorney would have pursued a different course. Blott, 588 S.W.2d at 592. Appellant therefore fails to meet Strickland’s first prong in his argument concerning his attorney’s failure to cross-examine or mount a defensive strategy. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

Appellant’s allegations that his attorney’s failure to object to inadmissible hearsay constitutes ineffective assistance also fail to meet the Strickland test. Appellant argues that testimony offered by one of the officers at the scene of the murder and by Mosqueda contained several instances of unobjected-to hearsay. An examination of the record raises a serious doubt as to whether the testimony constitutes objectionable hearsay at all under Texas Rules of Evidence 801 and 803. Even if the testimony did constitute hearsay, and appellant’s trial counsel’s failure to object to the testimony did meet the first prong of Strickland, appellant cannot show that this failure to object raises the reasonable probability that, had the attorney objected, the outcome would have differed. Id. Appellant’s second point of error is therefore overruled.

We affirm the judgment of the trial court.

      . Except for the fact that former Texas Penal Code Section 19.06 applied to prosecutions for manslaughter as well as murder, the rule was identical to its current form as Article 38.36. See Smith, 5 S.W.3d at 677.


author: WANDA McKEE FOWLER, Justice.

text:
    Wendell Woodrow WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 14-04-00139-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 21, 2004.

      Jerald Kaplan Graber, Houston, for appellant.
    Lori DeAngelo Fix, Houston, for appel-lee.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and SEYMORE.
   OPINION

WANDA McKEE FOWLER, Justice.

A jury convicted appellant of sexual assault of a child; he received a twenty-year sentence in the Texas Department of Criminal Justice, Institutional Division, and was assessed a $10,000.00 fine. On appeal, appellant first contends that the trial court erred by denying defense counsel’s motion to withdraw because of a personal conflict and, second, that he received ineffective assistance of counsel when his attorney continued to represent him in the punishment phase of the trial. Because appellant has not shown his attorney had an actual conflict of interest and has not shown that anything she did prejudiced him, we affirm.

I. Factual and Procedural Background

Appellant is the complainant’s uncle. When the complainant’s mother asked her to move out of the home, the 16-year old went to live with appellant. About six weeks after the complainant moved into appellant’s home, he raped her. The complainant told her family what had happened and, with her aunt’s assistance, helped the State press charges against appellant. Appellant pleaded not guilty and the case proceeded to a jury trial.

A. Appellant’s Counsel’s Motion to Withdraw

On the first day of trial, February 5, 2004, the prosecuting attorney informed the court of a newly-discovered witness who was expected to testify in the punishment phase of appellant’s trial. When the prosecuting attorney announced the new witness’s name, appellant’s counsel objected to the admission of any extraneous offense evidence and pointed out that a Motion in Limine had been filed prior to the case. Appellant’s counsel made no further objections to calling the witness.

The following day, February 6, 2004, appellant’s counsel made an oral motion to withdraw as appellant’s counsel. Appellant’s counsel stated that the new punishment witness’s testimony would “deeply affect me further representing [appellant] in this case ... [and] I would like to recuse myself.” In support thereof, appellant’s counsel stated that, if she remained the attorney of record for appellant, she would be required to cross-examine the witness. Appellant’s counsel informed the court that the witness was “a personal friend” and that she was certain that it would “affect [the] relationship.” For those reasons, appellant’s counsel told the court she could not continue to represent the appellant. The trial judge denied the request to withdraw.

B. Punishment Phase Testimony

After the jury found appellant guilty, the punishment phase of his trial began. The State called the newly-found witness as its only punishment witness. The witness testified that appellant was her uncle and that he had also raped her, over twenty years ago, when she was fifteen years old. Like the complainant; with the assistance of her family, the witness spoke with police and helped the District Attorney’s office file charges against appellant. The case was reduced to a misdemeanor (assault) and appellant received probation. The State introduced the judgment for this offense during the punishment phase of appellant’s trial.

During the witness’s direct examination, appellant’s counsel objected twice. Following the witness’s testimony on direct examination, and despite her previously stated objection, appellant’s counsel cross-examined the witness. Appellant’s counsel’s cross-examination focused on the fact that, despite the witness’s allegations, “it was never proven that [appellant] actually molested [her].” Appellant’s counsel stressed that the judgment the State introduced was for assault and not for sexual assault or rape. Finally, appellant’s counsel suggested the possibility that Ms. Sanders had lied about appellant raping her because she was “pregnant and [ ] had to blame it on someone.”

Appellant then testified on his own behalf. Appellant’s counsel verified appellant had heard the witness’s testimony and then asked if appellant had sexual intercourse with her. Appellant responded that he had consensual intercourse with her during the course of a relationship that lasted for seven to eight months. Appellant went on to state, in response to his counsel’s questioning, that he was never convicted for rape because, he believed, the witness was already pregnant by another man at the time of the alleged rape. No other defenses witnesses were called during the punishment phase.

The State recalled the witness, and appellant’s counsel again objected during her direct examination and cross-examined her. At the conclusion of the punishment phase, the jury gave appellant a twenty-year sentence and assessed a substantial fine.

II. The Trial Court Properly Overruled The Motion to Withdraw

We review a trial court’s decision to overrule an attorney’s motion to withdraw for an abuse of discretion. See Green v. State, 840 S.W.2d 394, 407-08 (Tex.Crim.App.1992) (en banc), overruled on other grounds by Trevino v. State, 991 S.W.2d 849, 853 (Tex.Crim.App.1999) (analyzing whether trial court erred by refusing trial counsel’s motion to withdraw under an abuse of discretion standard). We will uphold the ruling if it is within the zone of reasonable disagreement or if the trial court acted in accordance with applicable guiding legal principles. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000). We make this determination based upon what was before the trial court when it made its decision. Montgomery v. State, 810 S.W.2d 372, 380, 391 (Tex.Crim.App.1990).

In her motion to withdraw, appellant’s counsel asserted that she was such a close friend of the state’s punishment witness that she did not feel able to continue adequately representing appellant. However, counsel clarified this allegation when the punishment phase of the trial was about to begin; counsel stated the witness was a “personal friend” but “not a close friend.” And, although appellant’s counsel was concerned that cross-examining the witness would affect their relationship, she did not articulate how that would bear upon her ability to continue to advocate zealously on appellant’s behalf. In light of these facts, we cannot say the trial judge abused his discretion in denying counsel’s motion to withdraw and we overrule appellant’s first point of error.

III. Appellant Did Not Receive Ineffective Assistance of Counsel

In his second point of error, appellant contends his counsel’s irreconcilable personal conflict denied him the effective assistance of counsel that the Sixth Amendment guarantees to an accused in a criminal trial. We evaluate appellant’s contention — that his counsel’s personal conflict deprived him of effective assistance of counsel — under the familiar standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App.1999) (en banc) (holding Strickland standard applies to ineffective assistance claims alleging a deficiency in attorney performance at noncapital sentencing proceedings); see also Banda v. State, 890 S.W.2d 42, 59 (Tex.Crim.App.1994) (en banc) (applying Strickland standard to appellant’s claim that his trial counsel was ineffective because of counsel’s conflict of interest); Thompson v. State, 94 S.W.3d 11, 19 (Tex.App.-Houston [14th Dist.] 2002, pet. refd) (same).

We engage in a highly deferential review of defense counsel’s representation at trial. Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App.2000) (en banc). Strickland requires an appellant alleging ineffective assistance of counsel to satisfy a two-pronged test. First, an appellant must show that counsel’s representation or advice fell below objective standards of reasonableness. Second, an appellant must show the proceeding’s result would have been different but for trial counsel’s deficient performance. Strickland, 466 U.S. at 688-92, 104 S.Ct. 2052; Thompson, 94 S.W.3d at 15 (Tex.App.-Houston [14th Dist.] 2002, pet ref'd). When an attorney’s representation is alleged to be deficient because of the attorney’s conflict of interest, an appellant satisfies Strickland’s first prong by showing that (1) “his counsel was burdened by an actual conflict of interest” and (2) “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, 64 L.Ed.2d 333 (1980); Monreal v. State, 947 S.W.2d 559, 564 (Tex.Crim.App.1997) (en banc).

A. Appellant Cannot Satisfy Strickland’s First Prong

Appellant relies upon his counsel’s statements in her motion to withdraw to establish his counsel was burdened by an actual conflict of interest. And, to establish the adverse effect this conflict had on counsel’s performance, appellant points to the brevity of his counsel’s cross-examination of the witness. We reject these contentions for the reasons that follow.

1. Actual conflict of interest

First, an “actual conflict of interest” exists only if “counsel is required to make a choice between - advancing his chent’s interest in a fair trial or advancing other interests to the detriment of his client’s interest.” Monreal, 947 S.W.2d at 564. It is not sufficient for appellant to show a possible conflict of interest. Pollan v. State, 612 S.W.2d 594, 596 (Tex.Crim.App.1981). While appellant’s counsel indicated she felt her personal relationship with the State’s witness would be affected, she never indicated whether, or how, her ability to advance appellant’s interests would be affected. Highlighting the possibility that counsel was operating under a conflict of interest is insufficient to prove an actual conflict of interest. See Thompson, 94 S.W.3d at 21 (declining to find counsel was ineffective because “[a]t best, the record raises a concern of a possible conflict of interest but not an actual conflict of interest”). Appellant fails to demonstrate his counsel was forced to choose between advancing his interest in a fair trial and advancing other interests to his detriment.

2. Adverse effect on performance

Second, even if appellant had demonstrated an actual conflict of interest, we cannot conclude, on this record, that the alleged conflict had an adverse effect on the cross-examination of the witness. “In order to determine whether appellant’s attorney refrained from cross-examination in certain areas and whether her supposed inability to cross-examine more thoroughly could be considered detrimental to appellant, we must be able to discern from the record the nature of the information that could have been developed by counsel.” Id. The record reveals that appellant’s counsel objected repeatedly during direct and redirect examinations and twice cross-examined the witness. The cross-examinations tested the witness’s credibility and offered other explanations to the jury. On this record, we cannot say her performance was deficient; nor does appellant identify “useful information” that could have been uncovered or utilized “through more effective cross-examination.” Id. Appellant fails to show “how or whether counsel was impaired in her representation of appellant.” See id. at 22. We overrule appellant’s second point of error because he has not satisfied Strickland’s first prong.

Because the trial court acted within its discretion in overruling the motion to withdraw and because appellant has failed to show he received ineffective assistance of counsel, we affirm his conviction.


author: CHARLES W. SEYMORE, Justice.

text:
    Michael Cleon ROSS, Appellant, v. The STATE of Texas, Appellee.
    No. 14-03-00713-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 21, 2004.
    Rehearing Overruled Jan. 20, 2005.

      John J. Davis, Angleton, for appellant.
    Jeffrey Douglas Kyle, Angleton, for ap-pellee.
    Panel consists of Justices FOWLER, EDELMAN, and SEYMORE.
   OPINION

CHARLES W. SEYMORE, Justice.

Appellant, Michael Cleon Ross, appeals a conviction for murder. In four issues, he contends the trial court erred by (1) allowing the State to ask an improper commitment question during voir dire, (2) admitting hearsay testimony, (3) allowing witnesses to refer to him by a derogatory nickname, and (4) admitting two videotaped interviews. We affirm.

BACKGROUND

According to the State’s evidence, appellant shot and killed Randy Robertson while Robertson was in his car attempting to buy drugs. Timothy Higgins testified he was passed out in appellant’s van the night of the offense after drinking alcohol, taking codeine, and smoking marijuana. He testified appellant woke him up and told him he had shot someone who tried to “jack” him. Higgins further testified appellant then drove down a back road, wiped off a gun, and threw it off a bridge. A jury found appellant guilty of murder and sentenced him to forty years’ confinement.

Commitment Question

In his first issue, appellant claims the trial court erred by allowing the State to ask an improper commitment question during voir dire. However, we find appellant failed to preserve this complaint for our review. See Tex.R.App. P. 33.1(a). To preserve error regarding improper voir dire questions, a party must make a timely, specific objection at the earliest possible opportunity. Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App.1991). The State asked the jury panel members whether they would require more evidence than one witness if they found the witness to be credible and believed the State proved all the elements of the offense beyond a reasonable doubt through that witness. Appellant did not object until after the State had directed the question to two panel members, and one of those potential jurors had further dialogue with the State about the question. Accordingly, appellant did not object at the earliest possible opportunity and waived the issue for our review. See Thrift v. State, 134 S.W.3d 475, 477 (Tex.App.-Waco 2004, no pet. granted) (holding error was not preserved where matter was explored with jury panel before defendant objected). Appellant’s first issue is overruled.

Admission of Hearsay

In his second issue, appellant contends the trial court erred by allowing witness Nicole Cabbie to testify regarding a statement that Cleo Anderson, appellant’s cousin, made to her. Anderson was living with Cabbie at the time of the offense. On the night of the shooting, appellant picked up Anderson from their home in Houston. When Anderson returned home shortly after the shooting, he was excited, nervous, and scared. Anderson told Cabbie, “I can’t believe my cousin had shot somebody.” He made no other statements about what had occurred.

Before Cabbie testified, the trial court conducted a hearing outside the presence of the jury to determine whether she could testify to the out-of-court statement made by Anderson. After hearing arguments by both sides, the trial court determined Anderson’s statement qualified as an excited utterance and permitted Cabbie to testify regarding the statement.

We review the trial court’s ruling on the admission of evidence for an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000). Our role is limited to determining whether the record supports the trial court’s ruling. Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App.1994). Therefore, we must reverse only when “the trial judge’s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree.” Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App.2003) (quoting Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App.1992)).

An excited utterance, which is a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition,” is not excluded by the hearsay rule. Id. To qualify as an excited utterance, the following criteria must be met: (1) the statement is the product of a startling event; (2) the declar-ant is dominated by the emotion, excitement, fear or pain of the event; and (3) the statement relates to the circumstances of the startling event. See Jackson v. State, 110 S.W.3d 626, 633 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (citing McFarland v. State, 845 S.W.2d 824, 846 (Tex.Crim.App.1992)).

Appellant contends that the trial court abused its discretion by admitting Anderson’s statement because the State offered no evidence of the circumstances surrounding Anderson’s statement, other than the statement itself, to prove it was an excited utterance. Specifically, appellant contends that the State failed to show (1) that Anderson experienced an exciting event or witnessed the shooting, (2) Anderson’s source of knowledge of the shooting, (3) how much time elapsed, or what occurred, between the exciting event and Anderson’s statement, and (4) whether the term “cousin” used by Anderson actually referred to appellant.

Exciting Event

Appellant first contends Anderson’s statement did not qualify as an excited utterance because the evidence did not establish that Anderson had experienced an exciting event that produced his statement. See id. (holding that statement must be product of a startling event). Appellant directs us to Cabbie’s trial testimony where she acknowledged that when Anderson returned home, he did not specifically state that he saw the shooting. However, we must review the trial court’s decision on the admission of evidence in light of what was before the trial court at the time the ruling was made. Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App.2003); Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App.2002). Because Cabbie’s trial testimony was not in evidence when the trial court ruled, we may not consider it.

At the time of its ruling, the evidence before the trial court regarding Anderson’s observation of the shooting showed that Anderson left with appellant, and when Anderson returned shortly after the shooting, he stated, “I can’t believe my cousin had shot somebody.” In general, the contents of the statement itself, along with the declarant’s appearance, behavior, and condition, may be relied upon to establish the occurrence of an exciting event, and the declarant’s personal perception of it. See McLaughlin v. Vinzant, 522 F.2d 448, 451 (1st Cir.1975). Anderson’s condition at the time of the statement was described as excited, nervous and scared, and he appeared as if “he did not know what to do.” Moreover, his statement directly related to an exciting event, the shooting. Thus, based on the evidence and circumstances known at the time of its ruling, the trial court could have reasonably concluded that the exciting event witnessed by Anderson was the shooting itself. Accordingly, to the extent the trial court based its ruling on the fact that Anderson personally perceived the shooting, we find no abuse of discretion.

We further note that the startling occurrence that triggers the excited utterance need not necessarily be the crime itself. See Salazar v. State, 38 S.W.3d 141, 154-55 (Tex.Crim.App.2001) (holding trial court could have found startling event or condition was declarant’s sustaining an injury or the pain she later experienced); Couchman v. State, 3 S.W.3d 155, 159 (Tex.App.-Fort Worth 1999, pet. ref'd). Assuming that Anderson learned of the shooting by a source, other than first-hand knowledge, the trial court could have reasonably found that Anderson’s statement to Cabbie “related to a startling event,” that event being acquiring knowledge that appellant killed someone, and that Anderson was still under the “emotional stress of the excitement caused by the event or condition.” See Salazar, 38 S.W.3d at 154-55.

Anderson’s Source of Knowledge

Appellant argues that Anderson’s source of knowledge of the shooting is critical because Anderson may have been told about the shooting by someone else; in such case, the third party’s out-of-court statement would constitute hearsay, and therefore, must independently satisfy a hearsay exception. See Tex.R. Evid. 805. We find that this contention is without merit. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Tex.R. Evid. 801(d). Although Anderson may have learned of the shooting from a third party, the State did not offer the third party’s statement into evidence. The only out-of-court statement offered into evidence was Anderson’s own statement. Therefore, the State was only required to show that Anderson’s statement falls within a hearsay exception.

Passage of Time

Appellant also contends that Anderson’s statement does not qualify as an excited utterance because the State failed to show the amount of time that elapsed between the shooting and Anderson’s purported statement. Appellant further maintains that Anderson’s statement is not reliable because the State was unable to show Anderson’s actions during the time between the shooting and the statement, and therefore, Anderson may have had the opportunity to reflect on, or fabricate, the details of the shooting.

The excited utterance exception to the hearsay rule is founded on the belief that a statement made as a result of a startling event or condition is involuntary and does not allow the declarant an adequate opportunity to fabricate, thereby ensuring the trustworthiness of the statement. Couchman, 3 S.W.3d at 159. In other words, the statement is trustworthy because it represents an event speaking through the person rather than the person speaking about the event. Zuliani, 97 S.W.3d at 595. The lapse of time between the event and declaration, and whether the statement is made in response to a question, are considerations in determining whether the statement is admissible as an excited utterance, but they are not disposi-tive. Lawton v. State, 913 S.W.2d 542, 553 (Tex.Crim.App.1995). The critical factor is whether the emotions, excitement, fear, or pain of the event still dominated the de-clarant at the time of the statement. Zuliani, 97 S.W.3d at 596. If the statement is made while the declarant is still in the grip of emotion, excitement, fear, or pain and the statement relates to the exciting event, it is admissible even after an appreciable amount of time has elapsed. Penry v. State, 691 S.W.2d 636, 647 (Tex.Crim.App.1985); Jones v. State, 772 S.W.2d 551, 555 (Tex.App.-Dallas 1989, writ ref'd).

As appellant asserts, the State did not establish the exact amount of time that elapsed between the shooting and Anderson’s statement to Cabbie. However, an approximate length of time was established. The evidence shows that the shooting occurred on March 1, 2001 between 2:20 a.m. and 4:45 a.m. Anderson’s statement was made the same day sometime after 1 a.m., but while it was still dark outside. Thus, although the exact amount of time between the shooting and the statement cannot be ascertained, it is clear that the elapsed time between the shooting and the statement was likely no more than a few hours. We cannot say that this amount of time disqualifies the statement from being an excited utterance. See Zuliani, 97 S.W.3d at 596 (holding statements qualified as excited utterances where de-clarant was scared and tired, and her statements were in response to questions twenty hours after the event); Short v. State, 658 S.W.2d 250, 255 (Tex.App.-Houston [1st Dist.] 1983), affirmed, 671 S.W.2d 888 (Tex.Crim.App.1984) (holding four-and-one-half hours was not too long a period of time between exciting event and a statement made by a child still in extreme pain regarding the cause of his injury).

Further, we find that the trial court could have reasonably concluded that Anderson had not been able to reflect or fabricate and was still under the excitement and stress of the shooting at the time of the statement. Anderson’s statement was made only a few hours after the shooting, an event likely to produce extreme excitement and shock so as to ensure the statement’s spontaneity and reliability. Because of the extreme nature of the startling event, and the short passage of time, it is highly probable that Anderson was still dominated by the emotion caused by the startling event. See Lawton, 913 5.W.2d at 553-54 (holding eyewitness’s statement made an hour after the crime properly admitted as excited utterance based on magnitude of crime and officer’s testimony that witness was excited and upset when making the statement); Cf. Aguilera v. State, 75 S.W.3d 60, 68 (Tex.App.-San Antonio 2002, pet. ref'd.) (holding no excited utterance because declarant had time to fabricate during one-year lapse); Gay v. State, 981 S.W.2d 864, 867 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd) (holding no excited utterance because de-clarant most likely deliberated about the offense during 10-day lapse).

Finally, we note that the record supports a finding that Anderson was still dominated by the emotions caused by the shooting. See Zuliani, 97 S.W.3d at 596 (holding that “critical factor” is whether the declarant was still dominated by the emotions, excitement, fear or pain of the event). Cabbie testified that when Anderson arrived home, he was exited, nervous, and scared and “didn’t know what to do.” Also, Anderson’s statement was not in response to a question but was volunteered upon arriving home and encountering Cabble.

Because the record supports the trial court’s ruling, we find the trial court did not abuse its discretion in admitting Anderson’s hearsay statement under the excited utterance exception. We overrule appellant’s second issue.

Use of Nickname

In his third issue, appellant claims the trial court abused its discretion by allowing the State, and trial witnesses, to refer to appellant by his street nickname, “Thug.” The State contends appellant did not preserve this issue for our review. To preserve error for appeal, a party must object each time inadmissible evidence is offered unless he (1) obtains a running objection, or (2) makes an objection outside the presence of the jury to all the testimony he deems objectionable. Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App.2003); see Tex.R. Evid. 103(a)(1).

At trial, a hearing was held outside the presence of the jury in which the trial court considered whether witness Nicole Cabbie could refer to appellant as “Thug” during her testimony. Because Cabbie only knew appellant by his nickname, the State requested that Cabbie be permitted to refer to appellant by his nickname for identification purposes. Appellant objected that the probative value would be substantially outweighed by the danger of unfair prejudice. The trial court overruled appellant’s objection.

Although appellant objected outside the presence of the jury to the admission of his nickname through Cabbie’s testimony, this objection only relieved him of having to reassert his objection while she testified. See Gillum v. State, 888 S.W.2d 281, 285 (Tex.App.-El Paso 1994, pet. ref'd). Texas Rule of Evidence 103 provides that an objection to “offered” evidence outside the presence of the jury will apply to the evidence when it is admitted before the jury without having to repeat the objection. Tex.R. Evtd. 103. Because only Cabbie’s testimony concerning appellant’s nickname was “offered” outside the presence of the jury, appellant’s objection did not preserve error with regard to the additional testimony about his nickname that was subsequently offered by other witnesses. Moreover, because the subsequent witnesses referred to appellant’s nickname, any error in allowing Cabbie to refer to appellant’s nickname was cured by the unobjected-to testimony of the subsequent witnesses. See Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App.1998) (holding that overruling an objection to evidence will not result in reversal when other such evidence is received without objection).

Accordingly, we overrule appellant’s third issue.

Admission of Videotapes

In his fourth issue, appellant claims the trial court erred by admitting two videotaped police interviews of appellant. In the first interview, appellant claimed he knew nothing about the murder. In the second interview, he claimed that on the night of the offense, he gave a ride to an acquaintance who admitted committing the murder. Appellant also claimed he had stayed at his girlfriend’s house that night. Appellant also denied being with Higgins the night of the offense and denied any knowledge about a .22 caliber handgun. In contrast to appellant’s claims, his girlfriend testified appellant was not at her home that night. Witnesses also testified appellant was with Higgins, and appellant had traded some crack for a .22 caliber handgun about a week before the offense. The videotapes also contained several references to drugs, extraneous crimes and bad acts, and character evidence.

At trial, appellant objected to admission of the videotapes in their entirety claiming they were irrelevant, and their probative value was substantially outweighed by the danger of unfair prejudice. See Tex.R. Evid. 402, Tex.R. Evid. 403. A defendant’s conduct after the commission of a crime which indicates a “consciousness of guilt” is admissible to prove that he committed the offense. Torres v. State, 794 S.W.2d 596, 598 (Tex.App.-Austin 1990, no pet.). This conduct includes making false statements to cover up the crime. See King v. State, 29 S.W.3d 556, 564-65 (Tex.Crim.App.2000). Therefore, appellant’s statements to police which contradicted other evidence presented at trial were relevant and admissible to show his consciousness of guilt. Although the tapes contained statements that were not relevant to show appellant’s consciousness of guilt (such as discussions about fishing), when evidence contains both admissible and inadmissible portions, the objecting party must specifically refer to the inadmissible, portions to apprise the trial court of the precise objection. See Sonnier v. State, 913 S.W.2d 511, 518 (Tex.Crim.App.1995). Appellant failed to specifically object to any particular portions of the interview, and thus, any error in overruling his relevancy objection has not been preserved for review. See id.

Appellant also failed to preserve error on his claim that the probative value of the videotapes was outweighed by the danger of unfair prejudice because he did not specifically object to the portions of the interviews that were inadmissible. At trial, appellant pointed out that the tapes contained references to drugs, crime, nicknames, extraneous offenses and bad acts. However, he did not specify where these references could be found in the three hour tapes. The trial court is not required to sort through challenged evidence to segregate the admissible from the inadmissible. See Willover, 70 S.W.3d at 847. Because appellant did not specifically refer to the portions of the interviews he deemed inadmissible, he failed to preserve the issue for our review. See Sonnier, 913 S.W.2d at 518. Appellant’s fourth issue is overruled.

Accordingly, the judgment of the trial court is affirmed.

      . Appellant also notes that the State was permitted to ask the "one witness" question to potential jurors outside the presence of the panel. However, the record reflects that appellant made no objection to these questions at the time they were asked. Therefore, he has waived any complaint about these questions on appeal. See Tex.R.App P. 33.1(a).

      . Initially, we note that whether the term "cousin" referred to appellant goes to the weight and not the admissibility of the statement.

      . We note that Cabbie’s trial testimony does not establish that Anderson was not present at the time of the shooting. Cabbie merely testified that Anderson did not tell her that he saw the shooting.

      . We note that the Texas and federal rules on excited utterances are identical, and that Texas adopted the federal rule. See Fed.R.Evid. 803(2); H. Wendorf & D. Shlueter, Texas Rules of Evidence Manual 326 (2d ed.1988).

      . Jack Langdon, a lead investigator on the case, testified that he viewed a videotape from a Chevron station where the victim was found dead in his car, and it showed that something "unusual” was happening around the car about 2:25 a.m. The victim’s body was discovered in his car around 4:45 a.m.

      . Because we have determined that the trial court did not abuse its discretion by admitting the statement under the excited utterance exception, we need not address whether the statement was admissible under the present sense impression exception.

      . In a previous trial of this case, appellant did make objections to specific portions of the interviews that he wanted excluded. The record reflects that in this trial, the court took notice of these previous objections. However, in this appeal, appellant does not complain about the specific portions of the videotapes that were the basis of those objections.