author: DIXON W. HOLMAN, Justice.

text:
    L.G. JONES III a/k/a, Larry Jones III, Appellant, v. The STATE of Texas, State.
    No. 2-04-145-CR.
    Court of Appeals of Texas, Fort Worth.
    March 17, 2005.
    Rehearing Overruled April 14, 2005.

      Wallach, Andrews & Stouffer, Richard A. Henderson, Fort Worth, for Appellant.
    Tim Curry, Crim. D.A., Charles M. Mallin, Asst. Crim. D.A. and Chief of the Appellate Section and Steven W. Conder, Asst. Crim. D.A., Fort Worth, for State.
    PANEL B: DAUPHINOT, HOLMAN, and GARDNER, JJ.
   OPINION

DIXON W. HOLMAN, Justice.

Appellant L.G. Jones III a/k/a Larry Jones III appeals from the trial court’s order of his post conviction DNA testing. We affirm.

Factual and PROCEDURAL Background

On November 5, 1999, a jury convicted Appellant of attempted murder and sentenced him to twenty-seven years’ imprisonment. This court affirmed Appellant’s conviction on April 12, 2001. On January 18, 2002, Appellant pro se filed a request for appointment of counsel to pursue his request for forensic DNA testing. On October 1, 2002, Appellant filed a motion for forensic DNA testing and specifically requested DNA testing on a shirt and knife admitted into evidence during his trial. Pursuant to article 64.03 of the code of criminal procedure, the trial court ordered the items to be tested by the Department of Public Safety Crime Laboratory (DPS). See Tex.Code CRIM. Proc. Ann. art. 64.03 (Vernon Supp.2004-05).

DPS sent the trial court a report of its results on February 18, 2003, which concluded that the source of the DNA profile recovered from the shirt could not be excluded as the contributor to the stain from the knife. After examining the forensic DNA test results, the trial court made its ruling ex parte, without a live hearing, and found that the results were not favorable to Appellant.

Issues on Appeal

In four issues, Appellant asserts that the trial court erred by 1) not ordering all the evidence to undergo DNA testing, 2) issuing an ex parte order without a hearing, 3) issuing an order without qualifying the testing expert, and 4) not allowing Appellant an opportunity to have his own appointed expert review the testing.

Items Not Tested FOR DNA

In his first issue, Appellant argues that the trial court erred by not ordering other items of evidence be tested for DNA. Specifically, another shirt, ball cap, shoes, jeans, and a jacket. Article 64.01 provides that “[a] convicted person may submit to the convicting court a motion for forensic DNA testing of evidence containing biological material. The motion must be accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion.” TexCode CRiM. PROC. Ann. art. 64.01; Dinkins v. State, 84 S.W.3d 639, 642 (Tex.Crim.App.2002). To meet the requirements of article 64.01, an appellant must clearly state, at a minimum, what evidence he wants tested. Dinkins, 84 S.W.3d at 642.

Here, Appellant’s motion stated:

Certain evidence, a shirt and a knife, were secured in relation to the offense of conviction and were in the possession of the state during the trial of the offense but were not subjected to DNA testing. The relevant items were not previously subjected to DNA testing because DNA testing was not technologically capable of providing probative results or, through no fault of the defendant, for reasons that are of a nature such that the interests of justice require DNA testing.

Appellant submitted his affidavit in support of his motion, stating:

[T]hat there exists evidence in this case in the form of blood samples that were recovered from the shirt of the alleged victim and the knife which was allegedly used in the offense and that under appropriate DNA testing will exonerate me or, at least produce material, exculpatory information which if presented to the jury would have resulted in my acquittal.

Appellant argues in his brief that he emphasizes these two items to be tested but does not limit his request to only the shirt and the knife. We disagree. In both Appellant’s motion and affidavit, he makes it clear that the evidence that he wants to have tested is the shirt and the knife. Because Appellant did not specify other items of evidence that he wanted tested for DNA and did not provide statements of fact in support of these claims, the trial court was not obligated to order testing beyond that requested by Appellant. See Dinkins, 84 S.W.3d at 642. Accordingly, we overrule Appellant’s first issue.

Hearing on the Non-Favorable Finding

In his second issue, Appellant contends that the trial court erred by issuing an ex parte order on the DNA test results without a hearing. He specifically complains that he was not allowed to object to the trial court’s finding in open court in an adversarial proceeding. The State contends that the trial court properly entered its non-favorable finding regarding Appellant’s forensic DNA test results and that the lack of a live hearing did not affect his substantial rights.

Article 64.04 provides: “After examining the results of testing under Article 64.03, the convicting court shall hold a hearing and make a finding as to whether, had the results been available during the trial of the offense, it is reasonably probable that the person would not have been convicted.” Tex.Code CRiM. PRoc. Ann. art. 64.04 (emphasis added).

The State contends the statute does not specifically require a live hearing and furthermore, that case law supports its argument that Appellant had no right to testify or even be present at a hearing under chapter 64. See Booker v. State, No. 05-03-00708-CR, 155 S.W.3d 259, 265-66 (Tex.App.-Dallas 2004, no pet.); see also Ex parte Mines, 26 S.W.3d 910, 914-15 (Tex.Crim.App.2000) (holding applicant for post-conviction writ of habeas corpus does not have constitutional right to be present at a hearing), cert, denied, 532 U.S. 908, 121 S.Ct. 1234, 149 L.Ed.2d 143 (2001); Cravin v. State, 95 S.W.3d 506, 510 (Tex. App.-Houston [1st Dist.] 2002, pet. ref d). However, the cases relied on by the State are distinguishable from the present case.

The Booker case cited by the State also involved post-conviction DNA test results, but the distinguishing difference from the present case is that in Booker “the trial court conducted a hearing pursuant to article 64.04 of the code of criminal procedure,” while in this case no hearing was held. Booker, 155 S.W.3d at 261-62. Furthermore, both Booker and his counsel were present at the hearing. Id. at 265-66. The State argues that Booker stands for the proposition that a convicted person has no right to be present or to testify at a post-conviction hearing such as a hearing conducted pursuant to chapter 64. Id. However, because no hearing was held we need not address whether Appellant had a right to be present or to testify at such hearing. The holding in Booker is based on the presumption that a hearing was conducted. Id.; Tex.Code Ceim. PROC. Ann. art. 64.01(c); see Brewer v. State, 05-02-00136-CR, 2002 WL 31445286, at *3-4 (TexApp.-Dallas Nov.4, 2002, no pet.) (not designated for publication) (holding appellant was entitled to be represented by counsel at 64.04 hearing, although unnecessary for the trial court to conduct an extensive hearing).

Moreover, this case is distinguishable from the other two cases cited by the State. The Cravin case also involved post-conviction DNA testing; however, that case involved Appellant’s motion requesting that the convicting court order various pieces of evidence tested. Cravin, 95 S.W.3d at 507. This case involves a post-conviction hearing on the DNA test results. The Cravin case and the case at hand are governed by different statutory provisions. See Tex.Code CRiM. PROC. Ann. arts. 64.03, 64.04. Additionally, the statutory language of article 64.03 does not require the trial court to hold a hearing when ruling on a motion to order forensic DNA testing, whereas the statutory language of 64.04 provides that “the convicting court shall hold a hearing” when examining the results of testing under article 64.03. Furthermore, the Texas Court of Criminal Appeals has examined the language in both statutes and drawn a distinction between articles 64.03 and 64.04. See Rivera v. State, 89 S.W.3d 55, 58-59 (Tex.Crim.App.2002) (holding that under article 64.03 no hearing is required unlike article 64.04).

Finally, the Mines case involved a writ of habeas corpus, not post-conviction DNA testing. Mines, 26 S.W.3d at 911. The State relies on Cravin because it cites Mines and equates the rights of an applicant for a post-conviction writ of habeas corpus with the rights of an applicant for a post-conviction DNA proceeding. However, as we have previously stated, whether a convicted person has the right to be present at either proceeding assumes that there exists a proceeding, at all, at which to be present. We find the State’s reliance on Mines to be misplaced. Accordingly, we hold that the trial court erred by not conducting a hearing pursuant to article 64.04 of the code of criminal procedure.

Having found error, we must conduct a harm analysis to determine whether the error calls for reversal of the judgment. Tex.R.App. P. 44.2. Appellant alleges, without citing any authority, that the trial court’s failure to hold a hearing is a constitutional violation. The State contends that no constitutional error exists. We agree with the State.. See Cravin, 95 S.W.3d at 509-11. (holding that post-conviction DNA hearing is analogous to habe-as corpus proceedings and procedures set out in chapter 64 do not violate due process and other constitutional rights). Because we have determined that the error is not constitutional, rule 44.2(b) is applicable. Tex.R.App. P. 44.2(a). Therefore, we are to disregard the error if it does not affect the appellant’s substantial rights. Tex.R.App. P. 44.2(b); see Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998) (op. on reh’g), cert, denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999); Coggeshall v. State, 961 S.W.2d 639, 642-43 (Tex.App.-Fort Worth 1998, pet. ref d). When considering whether an error “affected substantial rights,” we consider whether a party had a right to that which the error denied. Johnson v. State, 72 S.W.3d 346, 348 (Tex.Crim.App.2002). According to chapter 64 of the code of criminal procedure “After examining the results of testing under Article 64.03, the convicting court shall hold a hearing and make a finding ...” The code also provides that “A convicted person is entitled to counsel during a proceeding under this chapter.” TexCobe CRiM. PROC. Ann. art. 64.01(c).

In determining whether the failure to hold a hearing affected Appellant’s substantial rights, we consider the record as a whole. See Schutz v. State, 63 S.W.3d 442, 444 (Tex.Crim.App.2001). Thus, we should consider everything in the record including the character of the error and its relationship to other evidence. Id. We agree that because the trial court did not conduct a hearing, Appellant’s attorney was not provided an opportunity to be present or object to any perceived errors in the proceedings. Appellant contends the error was harmful because not all of the evidence was subjected to DNA testing, he was unable to challenge the expert’s qualifications and findings, and he was unable to have his own expert appointed to review these findings and conduct independent tests. However, we have overruled all of these issues on appeal and Appellant offers no additional reason why he was harmed.

The pertinent portion of the DNA test results from the Texas DPS states:

The source of the DNA profile recovered from the shirt cannot be excluded as a contributor to the stain from the knife at the loci D3S1358, D8S1179, and D5S818. Assuming the victim is the source of the DNA from the shirt, at these loci the probability of selecting an unrelated person at random who could be a contributor to the stain from the knife is approximately 1 in 6 for Caucasians, 1 in 9 for Blacks, and 1 in 5 for Hispanics.

The trial court reviewed these results and entered its finding that stated:

After examining the results of the forensic DNA testing conducted by the Texas Department of Public Safety in the above numbered and styled case (Laboratory case number LID-120987), the Court finds that the results are NOT FAVORABLE, as defined by article 64.04 of the Texas Code of Criminal Procedure, to the defendant, L.G. Jones III.

Having reviewed the record, we hold that notwithstanding the trial court’s error, the issues that Appellant complains of on appeal would not have shown the DNA test results to be anything other than “NOT FAVORABLE” as entered by the trial court. Therefore, we conclude that the trial court’s error in not holding a hearing on the DNA test results pursuant to article 64.04 of the code of criminal procedure did not have a significant injurious affect such that Appellant’s substantial rights were affected. See McMmrough v. State, 995 S.W.2d 944, 948 (Tex.App.-Fort Worth 1999, no pet.). We expressly limited our holding with regard to the harm analysis to the narrow facts presented in this case. Accordingly, we overrule Appellant’s second issue.

Qualifications of DPS Laboratory and Expert

In his third issue, Appellant complains that the trial court determined the DNA evidence was unfavorable to him without making a separate determination under Kelly v. State regarding the testing expert’s qualifications. 824 S.W.2d 568, 573 (Tex.Crim.App.1992).

Article 64.03 of the code of criminal procedure provides that if forensic testing is to be conducted “by a laboratory other than a Department of Public Safety laboratory or a laboratory under contract with the department,” the order for DNA testing must include requirements that “the DNA testing be conducted under reasonable conditions designed to protect the integrity of the evidence and the testing process” and that the DNA testing “employ a scientific method sufficiently reliable and relevant to be admissible under Rule 702, Texas Rules of Evidence.” Tex. Code Crim. PRoc. Ann. art. 64.03(d).

The statute does not require compliance with these conditions where the testing is to be done by a DPS laboratory or a laboratory under contract with DPS. See id. art. 64.03(c). Thus, the statute implies that the conditions listed above will automatically be met by any DPS laboratory or a laboratory under contract with DPS. In this case, the testing was performed by a DPS laboratory. Accordingly, the requirements of article 64.03(d)(l)-(3) do not apply. See Booker v. State, 155 S.W.3d at 263-64. We overrule Appellant’s third issue.

Appointment op Independent ExpeRt

In Appellant’s fourth issue, he complains that the trial court erred by not allowing him an opportunity to have his own expert appointed to review the testing done by the DPS laboratory, as well as conduct his own tests. Chapter 64 makes no provision for testing by DPS and another laboratory. Booker, 155 S.W.3d at 264-65. The court of criminal appeals has held that trial courts do not have jurisdiction to order post-conviction DNA testing outside the provisions of chapter 64. State v. Patrick, 86 S.W.3d 592, 594-95 (Tex.Crim. App.2002) (orig.proceeding). Therefore, the trial court lacked jurisdiction to appoint an expert to perform independent testing. See Booker, 155 S.W.3d at 264-65. Even if the trial court had jurisdiction to appoint an independent expert to review DPS’s test results or perform independent testing, Appellant made no request to the trial court for an independent expert and therefore preserved nothing for review. See Tex.R.App. P. 33.1; Mendez v. State, 138 S.W.3d 334, 339-341 (Tex.Crim.App. 2004). We overrule Appellant’s fourth issue.

Conclusion

Having overruled all of Appellant’s issues, we affirm the trial court’s judgment.

      . Jones v. State, No. 02-99-00503-CR (Tex. App.-Fort Worth April 12, 2001, pet. ref'd) (not designated for publication).

      . Evidence was presented at Appellant’s trial on the merits that showed after the victim was stabbed Appellant was stopped by police, and a knife with blood on it was found inside his jacket pocket.

      . While we agree with Appellant that the trial court should have held a hearing pursuant to article 64.04, we do not agree with Appellant’s interpretation of the proceeding as being adversarial. See Ex ■parte Mines, 26 S.W.3d 910, 914 (Tex.Crim.App.2000).

      . See also United States v. Hayman which holds that unlike a criminal trial in which the guilt of the defendant is at issue, a habeas corpus proceedings is an independent proceeding that makes a collateral inquiry into the validity of the conviction. 342 U.S. 205, 222-23, 72 S.Ct. 263, 96 L.Ed. 232 (1952). A post-conviction DNA testing proceeding is also an independent proceeding that makes a collateral inquiry into the- validity of the conviction. Cravin, 95 S.W.3d at 510.

      . While we hold the trial court erred in not conducting a hearing pursuant to article 64.04, we need not address what type of procedural mechanisms should occur during a 64.04 hearing because Appellant did not raise that issue. See Tex.R.App. P. 47.1 (requiring appellate courts to address every issue necessary for final disposition of this appeal).


source: Caselaw Access Project

author: STEVE McKEITHEN, Chief Justice.

license: Public Domain

text:
    Shawn ODNEAL, Appellant, v. The STATE of Texas, Appellee.
    No. 09-04-097 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted Feb. 15, 2005.
    Decided March 23, 2005.

      Todd Leblanc, Beaumont, for appellant.
    Tom Maness, Criminal Dist. Atty., Wayln G. Thompson, Asst. Criminal Dist. Atty., Beaumont, for state.
    Before McKEITHEN, C.J., KREGER and HORTON, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

On March 18, 2000, appellant was found guilty by the trial court for the offense of Aggravated Sexual Assault (on a child). The record reflects that appellant pleaded guilty with the benefit of an agreed punishment recommendation. The record further reflects that the trial court followed the agreed recommendation in assessing punishment at life in the Texas Department of Criminal Justice — Correctional Institutions Division. Because appellant’s notice of appeal was not filed timely, we dismissed the appeal for want of jurisdiction on June 8, 2000.

Appellant subsequently filed a post-conviction application for writ of habeas corpus with the Court of Criminal Appeals alleging ineffective assistance of counsel in the failure to file a timely notice of appeal.

The Court of Criminal Appeals agreed with appellant and granted him habeas corpus relief. The Court explicitly set-out the remedy for appellant as follows:

The proper remedy in a case such as this is to return Applicant to the point at which he can give notice of appeal. For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the conviction had been entered on the day that the mandate of this Court issues. We hold that Applicant, should he desire to prosecute an appeal, must take affirmative steps to see that notice of appeal is given within thirty days after the mandate of this Court has issued.

The Court of Criminal Appeals’ mandate issued on February 18, 2004, with appellant filing a pro se notice of appeal the same day. As required by Tex.R.App. P. 25.2(a)(2) and 25.2(d), the trial court thereafter entered its certification of appellant’s right to appeal. Based upon the facts of the case, the Rule applicable to the trial court’s certification reads as follows:

The trial court shall enter a certification of the defendant’s right of appeal in every case in which it enters a judgment of guilt or other appealable order. In a plea bargain case — that is, a case in which defendant’s plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant — a defendant may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial, or (B) after getting the trial court’s permission to appeal.

See Tex.R.App. P. 25.2(a)(2). In the instant case, the trial court certified appellant’s right to appeal for the following reason: “Court of Criminal Appeals ordered, adjudged and decreed that an out of time appeal is Granted.”

An appellate court has the ability to examine a certification for defectiveness. See Dears v. State, 154 S.W.3d 610, 614 (Tex.Crim.App., 2005) (not yet reported). We agree with other courts of appeals that the recitations in a certification of the right to appeal must be true and supported by the record. See Barcenas v. State, 137 S.W.3d 865, 865-66 (Tex.App.-Houston [1st Dist.] 2004, no pet.); Waters v. State, 124 S.W.3d 825, 826 (TexApp.-Houston [14th Dist.] 2003, no pet.). In the instant case, the printed reason for certifying appellant’s right to appeal has a narrow basis in fact when compared with the record in that it appears the trial court interpreted the habeas corpus relief granted to appellant as properly invoking our jurisdiction. We read the Court’s habeas corpus relief, however, as simply “turning the clock back” to the day of conviction, and providing appellant, “should he desire to prosecute an appeal,” the opportunity to timely file his notice of appeal at which point the requirements of the Rules of Appellate Procedure come into effect.

As noted above, Rule 25.2(a)(2) provides that in a plea bargain case where the punishment assessed did not exceed what was agreed to by the defendant and the State, the defendant may only appeal matters raised and ruled upon by written pretrial motion, or after getting the trial court’s “permission to appeal.” Rule 25.2(d), entitled “Certification of Defendant’s Rights of Appeal,” states that an appeal must be dismissed if a certification, which shows the defendant has the “right of appeal,” has not been made part of the record under the rules. These two provisions under Rule 25.2 appear to raise the question of whether “permission to appeal” has the same meaning as “right of appeal.”

In the instant case, for example, the trial court’s reason for certification, “Court of Criminal Appeals ordered, adjudged and decreed that an out of time appeal is Granted,” could be inferred to give appellant “permission to appeal.” It is not contested, however, that appellant pleaded guilty with the benefit of a negotiated and agreed punishment recommendation, which was complied with by the trial court, and the record does not indicate the existence of any pretrial motion. Therefore, under these facts, can the stated reason for certification be considered by this Court as being in compliance with Rule 25.2 so as to invoke our jurisdiction over this appeal?

Neither the United States nor Texas constitution guarantees the right to appeal state criminal convictions. See McKane v. Durston, 153 U.S. 684, 687, 14 S.Ct. 913, 38 L.Ed. 867 (1894); Griffin v. State, 145 S.W.3d 645, 646 (Tex.Crim.App. 2004). A defendant’s right to appeal is granted only by the legislature via statutory enactment. Griffin, 145 S.W.3d at 646. Tex.Code Crim. Proc. Ann. art. 44.02 (Vernon 1979 & Supp.2005) provides that “[a] defendant in any criminal action has the right of appeal under the rules hereinafter prescribed.” The Court in Griffin noted that, in the past, Texas courts have interpreted article 44.02 and its predecessors “very broadly,” and characterized this broad interpretation of article 44.02 as “impermissibly altering] the legislatively created right to appeal.” Id. The Court in Griffin then traced the judicial and legislative sequence of events of the past thirty-three years with regard to a defendant’s “right of appeal” from a guilty-plea proceeding:

In response to Helms v. State, 484 S.W.2d 925 (Tex.Crim.App.l972),[] the legislature amended Article 44.02 in 1977:

provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial.
Tex.Code Crim. Proc. Ann. art. 44.02 (Vernon 1979), repealed 1998 (emphasis added).

Griffin, 145 S.W.3d at 646 (emphasis in original).

The intent of the 1977 legislative amendment to article 44.02 was to eliminate appeals in which the defendant had entered a plea of guilty or nolo contendere before the court as part of a plea bargain and the punishment assessed did not exceed that agreed upon. Griffin, 145 S.W.3d at 646; Cooper v. State, 45 S.W.3d 77, 80 (Tex. Crim.App.2001).

In 1985, the legislature authorized the Court of Criminal Appeals to repeal sections of the Code of Criminal Procedure and promulgate rules of post-trial, appellate, and review procedures in criminal cases. See Tex. Gov’t Code Ann. § 22.108(a) (Vernon 2004); Griffin, 145 S.W.3d at 647. However, this grant of rule-making authority was limited, and the Court of Criminal Appeals may not, by those rules, “abridge, enlarge, or modify the substantive rights of a litigant.” Id. Indeed, the Court in Griffin noted that as the Court of Criminal Appeals lacks the power to bestow on a party the “right of appeal,” the rules that have pertained to invoking appellate jurisdiction have focused on “how” to perfect an appeal. Griffin, 145 S.W.3d at 647.

Initially in 1985, the Court promulgated Tex.R.App. P. 40(b)(1) (repealed in 1998), then Rule 25.2(b)(3) (deleted in 2002), and finally the present Rule 25.2(a)(2) which incorporated the two exceptions originally authorized in 40(b)(1). The significance of the evolution of Rule 25.2 to its current version was described in Griffin, involving a plea-bargaining defendant’s attempt to appeal lack of trial court jurisdiction, as follows:

The plain language of the 1977 amendment to Article 44.02 includes nothing to indicate that the legislature intended to exempt jurisdictional issues from the general limits of the proviso. Therefore, the current Rule 25.2 merely carries out the purpose of the legislature’s original rule: to eliminate merit-less appeals after the trial court accepted the terms of a plea agreement. “As the legislature saw it, the restrictions of the 1977 proviso applied to any matter in the case, without limitation.” Cooper, 45 S.W.3d at 80. Jurisdictional matters may be raised on appeal if they fit within the limited right of appeal granted by the legislature, or they may be litigated by writ of habeas corpus.
The language of the current Rule 25[.2](a)(2) and the 1977 proviso of Article 44.02 are substantially the same. Because the right to appeal is guaranteed only by statute and because the legislature did not expressly or even impliedly make an exception for appeals of jurisdictional issues that fall outside of the statutory exceptions, we are led to the conclusion that the requirements of the current Rule 25[.2](a)(2) are consistent with the initial legislative intent and do not impermissibly abridge the right to appeal.

Griffin, 145 S.W.3d at 648-49.

In light of the above discussion, we find that whenever a trial court gives a defendant “permission to appeal” as contemplated under Rule 25.2(a)(2), that defendant must possess a “right of appeal” independent of the rules of appellate procedure in order to invoke our jurisdiction. As the cases have pointed out, the Texas Rules of Appellate Procedure do not establish appellate jurisdiction, but set out procedures which must be followed in order to invoke a court’s jurisdiction over a particular appeal. See White v. State, 61 S.W.3d 424, 428 (Tex.Crim.App.2001); Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App. 1996). For a plea-bargaining defendant, a trial court’s “permission to appeal” will only invoke a court’s appellate jurisdiction if the defendant also has a “right of appeal.” Under the facts and circumstances of the instant case, the trial court’s certification is defective in that it appears to find appellant’s “right of appeal” solely within the Court of Criminal Appeals’s grant of “an out-of-time appeal.” Such a finding is misplaced as the Court’s mandate simply placed appellant in the position he was in on the day of his conviction.

However, above and apart from the improper reason for certification is the fact that appellant simply has no substantive “right of appeal” independent of the rules of appellate procedure. See Griffin, 145 S.W.3d at 648-49 (Rule 25.2(a)(2) carries out legislative purpose in 1977 version of article 44.02 to eliminate meritless appeals after the trial court accepts the terms of a plea agreement.); Shankle v. State, 119 S.W.8d 808, 814 (Tex.Crim.App.2003) (Because the appellant pleaded guilty and the punishment did not exceed the punishment agreed to by the defendant, the plea-bargaining appellant has no right of appeal under the applicable appellate rules.); Cooper, 45 S.W.3d at 80, 83 (Like the 1977 version of article 44.02, former Rule 25.2 limits every appeal on every ground in a plea bargain felony case.).

Assuming that appellant’s notice of appeal, containing the prayer that the trial court “accepts this Notice of Appeal,” was a sufficient request for permission to appeal, the trial court was required to enter a certification of appellant’s “right of appeal.” See Rule 25.2(a)(2). The trial court’s stated reason for permitting the appeal did not provide a right of appeal for appellant and we find none on the face of the record. As this “defect” in certification appears to provide a right of appeal when the record is clear that appellant has no such right, it is unnecessary for us to require the trial court to provide an amended certification before dismissing the appeal pursuant to Rule 25.2(d). See Barcenas v. State, 137 S.W.3d at 866. Accordingly, we dismiss this appeal as it fails to invoke our jurisdiction.

APPEAL DISMISSED.

      . The agreed punishment recommendation appears to be that in exchange for his plea of guilty and incarceration for life, the State agreed for the trial court to run the instant sentence concurrently with another life sentence for aggravated sexual assault in Cause No. 77455. See Odneal v. State, No. 09-00-200-CR, 2001 WL 62897 (Tex.App.-Beaumont Jan.24, 2001, pet. ref’d) (not designated for publication).

      . The Court in Helms held that "where a plea of guilty is voluntarily and understanding^ made, all non-jurisdictional defects including claimed deprivation of federal due process are waived.” Helms, 484 S.W.2d at 927 (clarified by Young v. State, 8 S.W.3d 656 (Tex.Crim.App.2000)). The Court in Griffin noted that the Helms Rule, as the holding became known, discouraged guilty pleas, and caused a defendant, who wanted to preserve his appellate issues, to force the State to a full trial on the merits. Griffin, 145 S.W.3d at 646.

      . See Act of May 27, 1985, 69th Leg. R.S., ch. 685, § 4(a), 1985 Tex. Gen. Laws 2472-2473.

      . As the Olivo Court pointed out: "Examples of laws that establish jurisdiction of courts of appeals are Tex. Const. Art. V, § 1 (courts in which judicial power is vested), Tex. Const. Art. V, § 6 (courts of appeals); V.T.C.A. Gov’t Code §§ 21.001 (inherent power and duty of courts), 22.220 (civil jurisdiction), 22.201 (courts of appeals districts),.... This Court's rulemaking authority is found in Tex. Const. Art. V, § 31(c), V.T.C.A. Gov’t Code 22.108, and Article 44.33(a), V.A.C.C.P.” Olivo, 918 S.W.2d at 523 (footnotes omitted).


author: BOB PEMBERTON, Justice.

text:
    Silverio MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 03-04-00134-CR.
    Court of Appeals of Texas, Austin.
    March 24, 2005.

      David M. Gonzalez, Austin, for Appellant.
    Ronald Earle and Holly E. Taylor, Austin, for State.
    Before Justices B.A. SMITH, PURYEAR and PEMBERTON.
   OPINION

BOB PEMBERTON, Justice.

A jury convicted appellant Silverio Martinez of two counts of indecency with a child by contact, one count of indecency with a child by exposure, and one count of aggravated sexual assault of a child. The jury assessed punishment of six years’ imprisonment for each of the two counts of indecency with a child by contact, five years’ imprisonment for indecency with a child by exposure, and seven years’ imprisonment for aggravated sexual assault of a child. Martinez brings two issues on appeal. First, he claims that the trial court erred by denying his challenges for cause when two venirepersons testified that they could not consider the full range of punishment. Second, he contends that the trial court erred by allowing the jury to convict him of four offenses, when the indictment appeared to charge him with only three crimes. For the reasons stated below, we affirm the judgment of the district court.

BACKGROUND

Silverio Martinez’s stepdaughter testified that Martinez began engaging in inappropriate sexual conduct with her in January of 2002, when she was 12 years old, and repeated this conduct many times over the course of several months. This abuse occurred generally while her mother was at work at night, and occurred in various locations, including her bedroom, her mother’s bedroom, and, after the family moved to Martinez’s house, in his living room.

The complainant first reported the abuse to her mother, who refused to believe her daughter and accused her of lying. In August 2002, the complainant made an outcry to her aunt, Mary Sanchez, while visiting Sanchez and her biological father, Sanchez’s brother. Sanchez then took the complainant to the police station to report the abuse, and later to a doctor for a physical examination. Martinez was arrested on October 21, 2002, for aggravated sexual assault of a child.

The indictment contained three sections labeled as counts that contained a total of eight paragraphs. Count I contained four paragraphs, and alleged that Martinez had committed the following acts of indecency with a child by contact:

• Count I, paragraph one, alleged that Martinez touched the complainant’s anus;
• Count I, paragraph two, alleged that Martinez touched the complainant’s breast;
• Count I, paragraph three, alleged that Martinez touched the complainant’s genitals;
• Count I, paragraph four, alleged that Martinez caused the complainant to touch Martinez’s genitals.

Count II contained one paragraph, and alleged that Martinez had committed indecency with a child by exposure by exposing his genitals knowing the complainant was present. Count III contained three paragraphs, and alleged that Martinez had committed the following acts of aggravated sexual assault of a child:

• Count III, paragraph one, alleged that Martinez penetrated the complainant’s anus with his sexual organ;
• Count III, paragraph two, alleged that Martinez caused the complainant’s sexual organ to contact his mouth;
• Count III, paragraph three, alleged that Martinez penetrated the complainant’s mouth with his sexual organ.

After the defense had rested but prior to closing arguments, Martinez moved to require the State to elect among the various acts alleged in the indictment that it would rely on for conviction in counts one and three. See O’Neal v. State, 746 S.W.2d 769, 772 (Tex.Crim.App.1988). The court granted Martinez’s motion, and the State elected to proceed with Count I, paragraph one (alleging that Martinez touched the complainant’s anus), Count I, paragraph two (alleging that Martinez touched the complainant’s breast), Count I, paragraph three (alleging that Martinez touched the complainant’s genitals), Count II (alleging that Martinez exposed his genitals knowing the complainant was present), Count III, paragraph one (alleging that Martinez penetrated the complainant’s anus with his sexual organ), and Count III, paragraph two (alleging that Martinez touched the complainant’s sexual organ with his mouth) as separate counts- — six counts in total. Each paragraph elected by the State was submitted to the jury as a separate offense. The jury returned a verdict of not guilty on Count I, paragraph one (touching the complainant’s anus), and Count III, paragraph one (penetrating the complainant’s anus with sexual organ), and returned verdicts of guilty on the other four offenses that the State had elected.

The facts relevant to each of the errors claimed by Martinez are set forth below.

DISCUSSION

Jury challenges for cause

In his first point of error, Martinez claims that the trial court erred when it denied his challenges of two prospective jurors for cause. Martinez claims that, during voir dire, it became apparent that two venirepersons, Silberkraus and Soliz, were unable to consider the full range of punishment for the offense of aggravated sexual assault. Because the trial court denied the challenges for cause, Martinez argues that he was forced to use a peremptory strike to exclude each of the two challenged venirepersons, that he was denied additional peremptory strikes, and that he identified two members of the jury as objectionable and claimed he would have struck them with a peremptory challenge. Martinez appropriately preserved the trial court’s error, if any. Demou-chette v. State, 731 S.W.2d 75, 83 (Tex. Crim.App.1986) (describing procedure for preserving error for trial court’s failure to sustain challenges for cause).

During voir due, defense counsel asked the panelists whether they could consider probation for aggravated sexual assault of a child. The following exchange took place between defense counsel and Silberkraus:

Mr. Mange: Can you consider probation?
Silberkraus: If the law says, yeah.
Mr. Mange: The law says you can.
Silberkraus: I don’t know that I could.
Mr. Mange: I have to do something that frequently irritates people about lawyers .... [T]he thing I have to do is ... pin you down. You said that I don’t know that I could. Could you, could you not?

To this question, Silberkraus responded “No, I don’t think so.”

Later, the trial judge called Silberkraus to the bench, and questioned him again about whether he could consider probation in the appropriate case. Silberkraus replied:

Silberkraus: I am tempted to say yes because that’s what the Legislature has deemed the appropriate punishment.
Court: They have given you a wide range.
Silberkraus: I can’t think in my mind right now theoretically what that appropriate case might be.
Court: Do you think that there could be an appropriate case?
Silberkraus: It’s a theoretical possibility that case exists. I can’t think of one right now where I personally would think if I had found the person guilty beyond a reasonable doubt where I myself would think a recommendation of probation would be appropriate. But it is possible.

Potential juror Soliz, similar to Silberkraus, initially responded that he would be unable to consider probation for the offense of aggravated sexual assault of a child. Toward the end of voir dire, the trial court called Soliz to the bench and explained the range of punishment associated with aggravated sexual assault of a child, and asked once again if he could consider probation. Soliz responded:

Soliz: I would consider but I think they should be a lot more harsh than that, especially for a child.
Court: But you could consider it?
Soliz: Yeah, I guess I could consider it....
Court: You wouldn’t give it, maybe, but you could consider it.
Soliz: I would not even consider it.
Court: Now you just answered it different.
Soliz: Well, it’s just that I feel a little bit stronger than that. I don’t think it’s harsh enough to be honest with you. What I feel and what I think what should be done is not what you are asking me. What you are asking me is what the law is and I will have to go with the law.

The trial court’s decisions to deny Martinez’s challenges to these two potential jurors for cause are subject to review under the abuse of discretion standard. Garcia v. State, 887 S.W.2d 846, 854 (Tex. Crim.App.1994). A trial court’s ruling on a challenge for cause is reviewed with “ ‘considerable deference’ because the trial court is in the best position to evaluate the venireperson’s demeanor and responses.” Blue v. State, 125 S.W.3d 491, 497 (Tex. Crim.App.2003) (quoting Colburn v. State, 966 S.W.2d, 511, 517 (Tex.Crim.App.1998)). This is especially true when the record reflects that a potential juror was vacillating or equivocating, because the trial judge was in the best position to observe the person’s demeanor and tone of voice — important factors that “do not come through when reviewing a cold record.” Banda v. State, 890 S.W.2d 42, 54 (Tex.Crim.App. 1994); see Colburn, 966 S.W.2d at 517 (“When the potential juror’s answers are vacillating, unclear, or contradictory, we accord particular deference to the trial court’s decision-And, when the venireman is persistently uncertain about his ability to follow the law, we will not second guess the trial court.”); see also Cortez v. HCCI-San Antonio, Inc., 159 S.W.3d 87, 93 (2005).

After reviewing the entire voir dire testimony of each of the above two venireper-sons, we cannot conclude that the trial court abused its discretion when it denied Martinez’s challenges for cause to Silber-kraus and Soliz based on their vacillating answers as to whether they could consider probation in an aggravated sexual assault of a child case. Although Silberkraus was unable to describe a specific case in which he believed probation would be appropriate, he was not required to identify such a hypothetical case where, as here, he agreed that it is possible that such a case exists. See Garcia, 887 S.W.2d at 854 (suggesting, in context of answering special issues in assessing punishment for capital murder, that venireperson is not subject to challenge for cause if she states she will fulfill her duties based on law and evidence presented, even if she is unable to conceive of situation in which she would answer special issue in negative). As for Soliz, because his voir dire testimony was equivocal, we must accord great deference to the trial judge, who had the better opportunity to see and hear him. See id. Although Martinez’s brief quite artfully attempts, albeit relying sometimes on matters outside the record, to portray voir dire events in a manner favorable to him, we are bound as an appellate court to rely upon the record before us. Vuong v. State, 830 S.W.2d 929, 943 (Tex.Crim.App. 1992).

We find all other arguments made by Martinez with respect to his first point of error to be without merit. We overrule Martinez’s first issue.

The indictment

In his second issue, Martinez argues that the trial court erred by allowing the jury to convict him of four offenses when the indictment appeared to charge him with only three crimes. Martinez asserts that the vagueness of the allegations in the indictment made it impossible to determine from the face of the indictment that all of the acts occurred on different days, and argues that the State therefore should have provided more notice that it intended to proceed upon separate counts of the same offense. The essence of Martinez’s argument is that the trial court should not have authorized his conviction for multiple counts of indecency with a child by contact and aggravated sexual assault, but rather should have read Count I and Count III as alleging only one offense each.

Martinez alleges that he was harmed by the trial court’s error in the following three ways: (1) because the trial judge allowed the State to proceed on Count I, paragraph three (alleging that Martinez touched the complainant’s genitals), and Count III, paragraph two (alleging that Martinez touched the complainant’s sexual organ with his mouth), the jury could have found that both offenses occurred on the same occasion, in violation of his right against double jeopardy; (2) Martinez was forced to choose between his constitutional right to a unanimous jury and his right against double jeopardy, and was placed in a position where he regretted “an intelligent exercise of his constitutional rights”; and (3) Martinez now has four felony convictions when before trial he only had notice that the State was seeking convictions on three offenses.

When multiple offenses are committed during a single criminal episode, these offenses may be joined in a single indictment. Tex. Code Crim. Proc. Ann. art. 21.24(a) (West 2003); Tex. Pen.Code Ann. § 3.01 (West 2003) (defining “criminal episode” as the commission of two or more offenses that “are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan”). Where an indictment contains multiple counts, the State is not required to elect between counts and each count may be submitted to the jury. Owens v. State, 96 S.W.3d 668, 672 (Tex.App.-Austin 2003, no pet.). However, upon the timely motion by the defendant, the State is required to make an election of those alleged acts upon which it will rely to pursue a conviction. Gutierrez v. State, 8 S.W.3d 739, 748 (Tex.App.-Austin 1999, no pet.) (upholding denial of motion to require State to elect because motion “came too late,” as appellant did not make motion until after he had presented his case-in-chief and thus could “no longer take advantage of the benefits of election”). One of the purposes of the election rule is that the rule gives the defendant notice of the particular offense the State intends to rely on for prosecution and affords the defendant an opportunity to defend. O’Neal, 746 S.W.2d at 772-73; Phillips v. State, 130 S.W.3d 343, 349 (Tex.App.-Houston [14th Dist.] 2004, pet. ref d). In the present case, Martinez himself frustrated this purpose by waiting to move for an election until after presenting his case-in-chief.

In the context of the charges like those in the present case, which often encompass separate and different assaults within the same transaction or series of transactions, “an indictment containing alternative legal theories may present some question as to whether it charges separate offenses or merely alternative legal theories.” Vick v. State, 991 S.W.2d 830, 834 (Tex.Crim.App.1999). As a general rule, a “count” is used to charge the offense itself and a “paragraph” is the portion of a count which alleges the method of committing the offense. Owens, 96 S.W.3d at 673. The substance of the allegation determines its character as a “count” or a “paragraph,” not the terminology used. Dalton v. State, 898 S.W.2d 424, 426 (Tex.App.Fort Worth 1995, pet. ref d).

In response to Martinez’s argument that he should have been given notice that the State would proceed on the paragraphs as separate counts because the indictment was “understandably vague” with respect to the time the alleged offenses occurred, we note at the outset that the State need not allege a specific date in an indictment. Tex.Code Crim. Proc. Ann. art. 21.02(6) (West 1989) (“The time mentioned must be some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is barred by limitation.”). It is settled law that “the ‘on or about’ language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period.” Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App. 1997). Allowing inexact references to dates of the alleged acts is particularly necessary in child sexual abuse cases, where “it is not often that a child knows ... the date that she was sexually assaulted.” Id. at 256 n. 8. Thus, the State was not required to allege different dates in each paragraph of the indictment, as Martinez claims. Based on this settled law, we do not believe that the indictment was improperly vague, nor that the State failed to fulfill its duty to provide Martinez notice of the offenses he was being charged with. Gurry v. State, 30 S.W.3d 394, 398 (Tex. Crim.App.2000) (“An indictment is generally sufficient to provide notice if it follows the statutory language.”). We next turn to the issue of whether the trial court improperly authorized Martinez’s convictions based on the individual paragraphs of the indictment.

In Owens, this Court was presented with a similar argument as that made here by Martinez. Owens’s indictment contained three counts alleging various acts of sexual abuse. Owens, 96 S.W.3d at 670-71. One count, alleging aggravated sexual assault, contained two paragraphs; each paragraph alleged that Owens had committed different acts. Id. at 671. The trial court in that case submitted each paragraph to the jury as a separate offense, and the jury returned a separate verdict based on each paragraph submitted. Id. at 672. Owens argued on appeal that the trial court erred by submitting multiple paragraphs to the jury. We held that the trial court did not err by treating the two “paragraphs” as “counts” alleging two discrete offenses and authorizing Owens’s conviction for both. We stated that “[tjhose who commit multiple discrete assaults against the same victim are liable for separate prosecution and punishment for every instance of such criminal misconduct.” Id. at 672-73.

In the present case, the paragraphs in the indictment alleged that Martinez had committed multiple acts of sexual abuse against the complainant, and the complainant testified at trial as to the multiple instances of sexual abuse. Specifically, the complainant testified that Martinez had committed the following acts: (1) he licked her vagina “several times”; (2) he licked and touched her breasts; (8) he placed his penis on her bottom lip; (4) he put his penis in her vagina and her “butt hole”; and (5) he put his fingers “through [her] vagina.” Given this evidence, the trial court did not err by allowing the State to proceed with the separate “paragraphs” as “counts” alleging multiple offenses and authorizing Martinez’s conviction for those elected by the State, as the record contained sufficient evidence to uphold a conviction on each of the counts. See Vernon v. State, 841 S.W.2d 407, 410 (Tex.Crim. App.1992) (finding that defendant’s various acts of sexual misconduct committed against stepdaughter over period of six years did not constitute a single offense, but rather multiple assaults against the same victim); Hutchins v. State, 992 S.W.2d 629, 633 (Tex.App.-Austin 1999, pet. ref d) (holding that because appellant touched victim’s genitals with his fingers before penetrating her with his penis, two distinct offenses were committed despite the two acts’ close temporal proximity).

Because the record contains sufficient evidence of Martinez’s sexual abuse of the complainant, Martinez’s contention that these convictions violate his right against double jeopardy because two of the counts submitted to the jury could have allowed for two convictions based on the same underlying conduct also fails. In order to prevail on a double jeopardy claim, the evidence must show that the two offenses at issue necessarily arose from “one act which could be subject to two different interpretations.” Ochoa v. State, 982 S.W.2d 904, 908 (Tex.Crim.App.1998). Martinez has not demonstrated that his conviction of indecency with a child by contact was based on the same conduct underlying his conviction for aggravated sexual assault of a child. Hutchins, 992 S.W.2d at 633. Indeed, as we have already noted, the complainant testified that Martinez touched her genitals with his fingers — an act not alleged in Count III, paragraph two (alleging that Martinez touched the complainant’s sexual organ with his mouth), but that supports a conviction for the offense alleged in Count I, paragraph three (alleging that Martinez touched the genitals of the complainant). Thus, Martinez’s double jeopardy claim is without merit.

Martinez further argues that he was forced to elect between his constitutional right to a unanimous jury and his right against double jeopardy. As we have just stated, however, Martinez’s right against double jeopardy was not violated. Nor, for that matter, was his right to a unanimous jury. The election rule performs an important function in cases that threaten to deny a defendant’s right to a unanimous jury. See Francis v. State, 36 S.W.3d 121 (Tex.Crim.App.2000). In Francis, the court of criminal appeals held that there was a possibility of a non-unanimous jury verdict when the trial court granted a motion to elect that requested that the State choose between two separate offenses alleged in a one-count, one-paragraph indictment, and the State elected to pursue a single conviction based on the two separate offenses. Important to the Francis court’s ruling, the judge submitted the separate offenses to the jury in the jury charge in the disjunctive, and requested that the jury return only one verdict. Id. at 124-25. Francis is thus distinguishable from this case; here, the State elected to pursue six separate convictions based on six separate offenses, and the trial judge submitted each offense to the jury separately and required the jury to consider each offense apart from the other offenses. The judge further required the jury to come to a unanimous decision for each offense covered in the charge. And, in fact, the jury did return a separate and unanimous verdict for each of the six counts charged. We therefore hold that Martinez’s constitutional right to a unanimous jury and his right against double jeopardy were not violated.

Finally, Martinez argues that he was harmed because he was convicted of four offenses, where the indictment appeared to charge him of only three. As discussed above, the indictment and the record support the jury’s findings that Martinez committed four separate felonies.

Because we conclude that the defendant was sufficiently put on notice as to the offenses the State would rely on for conviction and that the trial court appropriately addressed Martinez’s motion for an election, we hold that Martinez was not harmed by any alleged error on the part of the trial court. We therefore overrule Martinez’s second issue.

CONCLUSION

We conclude that the trial court did not err when it denied Martinez’s two challenges for cause during the voir dire of potential jurors. We also conclude that Martinez was not harmed when the trial court allowed the State to proceed on selected paragraphs of the indictment as separate counts, and that Martinez was adequately put on notice as to the charges brought against him. We affirm the convictions.

      . Tex. Pen.Code Ann. § 21.11(a)(1) (West 2003).

      . Tex. Pen.Code Ann. § 21.11(a)(2) (West 2003).

      .Tex. Pen.Code Ann. § 22.021(a)(1)(B) (West Supp.2004-05).

      . Because the issues presented in this appeal concern the form in which the specific allegations were presented in the indictment and submitted to the jury, we unfortunately must discuss Martinez's acts in some detail.

      . In particular, we disagree with Martinez that the trial court abused its discretion by questioning the venirepersons directly, rather than allowing the State to do so. Martinez has not demonstrated that the trial court’s questions were "reasonably calculated to benefit the State or prejudice the defendant's rights.” Gardner v. State, 733 S.W.2d 195, 210 (Tex.Crim.App.1987). Indeed, we believe that such intervention was warranted for the purposes of expedition and clarification. See id. In any event, even assuming that the trial court abused its discretion by questioning the prospective jurors directly, we agree with the State that, because Martinez did not object to the court’s direct questioning of venireper-sons, such error was not preserved by Martinez for review. Tex.R.App. P. 33.1.

      . Each paragraph states that the acts alleged occurred on or around July 6, 2002.

      . A count may contain as many separate paragraphs as necessary. Tex.Code Crim. Proc. Ann. art. 21.24(b) (West 1989).

      . Notwithstanding our decision in Owens, we strongly cautioned the State against using the type of drafting it used in thé indictment "to obtain a tactical advantage at trial, thereby creating confusion as to whether the paragraph describes a separate offense or an alternate manner and means of committing the same offense.” Owens v. State, 96 S.W.3d 668, 673 n. 7 (Tex.App.-Austin 2003, no pet.). Martinez does not contend here that the State drafted the indictment in such a way to obtain a tactical advantage at trial.

      . Although the State argues that Martinez did not preserve the double jeopardy claim for review, Tex.R.App. P. 33.1, “[b]ecause of the fundamental nature of double jeopardy protections, a double jeopardy claim may be raised for the first time on appeal ... when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests.” Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App.2000). We will assume these conditions are satisfied here and consider Martinez’s double jeopardy claim.

      . The jury charge stated that if the jury found evidence that the defendant engaged in "sexual contact by touching the breast or genitals of” the complainant, then it should return a guilty verdict. Francis v. State, 36 S.W.3d 121, 124 (Tex.Crim.App.2000).


author: BEA ANN SMITH, Justice.

text:
    GULF COAST COALITION OF CITIES, Houston Council for Health and Education, and State of Texas, Appellants, v. PUBLIC UTILITY COMMISSION of Texas, Appellee.
    No. 03-04-00338-CV.
    Court of Appeals of Texas, Austin.
    March 24, 2005.

      Bryan L. Baker, Amalija J. Hodgins, Asst. Attys. Gen., Austin, for State.
    Thomas L. Brocato, Lloyd, Gosselink, Blevins, Rochelle, Baldwin & Townsend, P.C., Austin, for Gulf Coast Coalition of Cities.
    Dennis N. Ryan, Andrews Kurth L.L.P., Dallas, for Houston Council for Health and Education.
    Douglas Fraser, Asst. Atty. Gen., Austin, for Public Utility Commission.
    Before Justices B.A. SMITH, PURYEAR and PEMBERTON.
   OPINION

BEA ANN SMITH, Justice.

This is a direct appeal challenging the validity of an amendment to the Public Utility Commission’s rule governing the recovery of stranded costs in a true-up proceeding. Gulf Coast Coalition of Cities, Houston Council for Health and Education, and the State of Texas (collectively the Ratepayers) challenge the Commission’s removal of an express conflict-of-interest provision in the section of the rule that defines who qualifies as an independent financial expert to determine the value of certain affiliated power generation company assets. The Ratepayers contend that by eliminating the conflict-of-interest provision, the Commission has compromised the independence of the financial experts who perform this important role in the true-up proceeding. They assert that the removal of the conflict-of-interest provision is (1) facially invalid because it contravenes the plain language of the statute calling for independent financial experts to serve on the valuation panel, and (2) void because the Commission did not substantially comply with the reasoned justification requirements of the Administrative Procedure Act in adopting the amendment. We affirm the Commission’s order adopting the amended rule.

BACKGROUND

In 1999, the legislature amended the Public Utilities Regulatory Act (PURA) to partially deregulate the utility industry in Texas. The legislature found that:

The production and sale of electricity is not a monopoly warranting regulation of rates, operations, and services and that the public interest in competitive electric markets requires that, except for transmission and distribution services and for the recovery of stranded costs, electric services and their prices should be determined by customer choices and the normal forces of competition.

Tex. Util.Code Ann. § 39.001(a) (West Supp.2004-05). The new statutory scheme charges the Commission with facilitating recovery of “stranded costs” by the formerly regulated utilities.

The basic concept of stranded costs is straightforward. Under regulation, a utility could recover over time its prudently incurred costs of acquiring power-generation assets through rates approved by the Commission and paid by captive customers. See Central Power & Light Co. v. Public Util. Comm’n of Texas, 36 S.W.3d 547, 552-53 (TexApp.-Austin 2000, pet. denied). The Commission enabled this cost recovery by incorporating depreciation expenses into approved rates. See id. at 558. Without this regulation of rates, utilities operating in a competitive market might be unable to recover stranded costs. Competition could drive rates so low that a formerly regulated utility would be unable to recoup its investments. The legislature concluded that if generating plants became uneconomic as a result of legislatively mandated deregulation, it was in the public interest for utilities to be made whole by recovering their full investment in those generation plants. Tex. Util.Code Ann. § 39.001(b)(2); CenterPoint Energy, Inc. v. Public Util. Cornm’n of Texas, 148 S.W.3d 81, 83 (Tex.2004). Therefore, in PURA the legislature allowed an electric utility “to recover all of its net, verifiable, nonmitigable stranded costs incurred in purchasing power and providing electric generation service.” Tex. UtiLCode Ann. § 39.252(a). The legislature provided a comprehensive scheme for estimating, finalizing, and recovering those costs. Id. §§ 39.201, .251-54, ,256-.65, .301-.13. Stranded cost recovery, if any, will occur over a period of years rather than in a lump sum. Id. §§ 39.201(k), .262(c).

After January 10, 2004, each transmission and distribution utility, its affiliated retail electric provider, and its affiliated power generation company must jointly file with the Commission to finalize stranded costs. Id. § 39.262(c). Once the parties have filed, the Commission conducts a “true-up proceeding” to determine whether the utility actually has remaining stranded costs. Id. §§ 39.201(0, .262(c). An affiliated power generation company must quantify its stranded costs using one of the methods provided by PURA. Id. § 39.262(h)(l)-(4).

The Partial Stock Valuation method is an appropriate means of establishing the value of an affiliated power generation company’s assets. Id. § 39.262(h)(3). This method applies when an electric utility or its affiliated power generation company has transferred generation assets to separate affiliated or nonaffiliated corporations, but only if a certain percentage of the common stock of each such corporation is spun off and sold to public investors through a national stock exchange and is traded for one year or more. Id. The Commission may accept the market value or convene a valuation panel of three independent financial experts to determine the valuation of common stock in each transferee corporation. Id. The panel must consist of independent experts, from the top ten nationally recognized investment banks with demonstrated experience in the United States electric industry, chosen from proposals submitted in response to Commission requests. Id. The Commission’s determination, based on the panel’s finding, conclusively establishes the value of the common stock of each transferee corporation.

In this case, the Commission attempted to convene a valuation panel to determine the value of the common stock of a particular transferee corporation. The Commission sent out a Request for Proposals to the top ten investment banks as outlined in PURA section 39.262(h)(3). The Commission’s Request for Proposals, however, elicited no responses from prospective panelists. On March 26, 2004, the Commission proposed amending its true-up proceeding rule to delete the express conflict-of-interest provision. The stated purpose of the amendment was to attract “a broader group of persons who would be eligible to serve on the valuation panel.” 29 Tex. Reg. 5338.

On April 13, 2004, the Commission held a public hearing on the proposed amendment. The Ratepayers filed written comments detailing their objections to the change. The Ratepayers asserted that they supported the attempt to increase the number of responses to the Request for Proposals but expressed concern that the amendment would not guarantee the independence of panelists or generate an adequate number of responses from qualified panelists. Therefore, the Ratepayers urged the Commission to retain an express conflict-of-interest provision in the rule. They further proposed that the Commission work to expand the potential pool of panelists rather than eliminate the rule’s means of securing independent panelists.

In its final order adopting the amendment, the Commission summarized and responded to the Ratepayers’ concerns. The Commission acknowledged that it too was concerned that panelists be independent, as required by PURA section 39.262(h)(3), and that it would “consider appropriate conflict-of-interest standards in selecting persons to serve on valuation panels” on a case-by-case basis. 29 Tex. Reg. 5338. The Commission also explained that, while it understood the Ratepayers’ fear that the amended rule would still not produce a sufficient number of qualified panelists, this concern was premature and based on speculation that could prove to be false. 29 Tex. Reg. 5339. The Commission declined to alter the amendment in response to the Ratepayers’ comments. Id.

DISCUSSION

Facial Challenge

In their first issue, the Ratepayers contend that the amended true-up proceeding rule is facially invalid because it eliminates the statutory requirement that panelists be independent. They claim this contravenes the plain language of PURA section 39.262(h)(3).

An agency can only adopt rules that are authorized by and consistent with its statutory authority. Railroad Comm’n of Tex. v. Lone Star Gas Co., 844 S.W.2d 679, 685 (Tex.1992). The determining factor in whether a particular administrative agency has exceeded its rulemaking authority is whether the rules are “in harmony” with the general objectives of the legislation involved. Id.; Al Boenker Ins. Agency, Inc. v. Texas FAIR Plan Assoc., 2004 WL 1686598, at *4, 2004 Tex.App. LEXIS 6827, at *10 (TexApp.-Austin July 29, 2004, pet. denied). Whether the rules are “in harmony” with the general objectives of the legislation involved is a question of law determined through statutory construction. Id. at %-5, at *7-10.

We construe administrative rules as we construe statutes. Lewis v. Jacksonville Bldg. & Loan Ass’n, 540 S.W.2d 307, 310 (Tex.1976). Our objective is to determine and give effect to the legislature’s intent. City of San Antonio v. City of Boeme, 111 S.W.3d 22, 25 (Tex.2003). If a statute’s meaning is unambiguous, we look to the plain meaning of the statute. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). We consider the rule as a whole and in relationship to the statute which it implements. Envoy Med. Sys., L.L.C. v. State of Texas, 108 S.W.3d 333, 337 (Tex. App.-Austin 2003, no pet.). An agency’s interpretation of its own rules is entitled to deference unless it is plainly erroneous. Public Util. Comm’n v. Gulf States Utils. Co., 809 S.W.2d 201, 207 (Tex.1991); Envoy Med. Sys., 108 S.W.3d at 337. When there is vagueness, ambiguity, or room for policy determinations, we defer to an agency’s interpretation unless it is plainly inconsistent with the language of the rule. BFI Waste Sys. of N. Am. v. Martinez Envtl. Growp, 93 S.W.3d 570, 575 (Tex. App.-Austin 2002, pet. denied).

A validity challenge tests a rule on procedural and constitutional grounds. See State Office of Pub. Util. Counsel v. Public Util. Comm’n, 131 S.W.3d 314, 327 (Tex.App.-Austin 2004, pet. denied); Eld-ercare Props., Inc. v. Texas Dep’t of Human Servs., 63 S.W.3d 551, 558 (Tex.App.Austin 2001, pet. denied). This Court does not decide matters of policy; we are limited to evaluating whether the Commission acted contrary to the statute. State Office of Pub. Util. Counsel, 131 S.W.3d at 321. We presume that an agency rule is valid, and the challenging party bears the burden to demonstrate its invalidity. Id. To establish the rule’s facial invalidity, a challenger must show that the rule: (1) contravenes specific statutory language; (2) runs counter to the general objectives of the statute; or (3) imposes burdens, conditions, or restrictions in excess of or inconsistent with the relevant statutory provisions. Id.

Here, the Ratepayers argue that the deletion of the conflict-of-interest provision contravenes the specific statutory mandate that panelists chosen to serve on a Partial Stock Valuation panel be independent. The Ratepayers suggest that the Commission must retain an express conflict-of-interest provision in order to secure independent panelists. We disagree.

Although the Commission originally enacted an express conflict-of-interest provision to secure the independence of the panelists, the statute did not require it to do so. Unlike other sections of PURA, section 39.262(h)(3) does not expressly state the manner by which the Commission may establish the independence of prospective panelists. See, e.g., Tex. Util. Code Ann. §§ 12.053 (West 1998) (prohibiting appointment of commissioner employed by public utility), 12.152 (West Supp.2004-05) (specifically listing conflicts of interest that exclude individuals from eligibility for appointment as commissioner or executive director of Commission). In section 39.262(h)(3), the legislature chose instead to adopt a baseline standard that panelists be independent and then to allow the Commission to determine whether a prospective panelist is' independent. The only statutory mandate is that the panelists be independent. How their independence is established is left to the Commission’s discretion. While it was within the Commission’s discretion to include an express conflict-of-interest provision initially, it was also within the Commission’s discretion to delete the provision for the purpose of attracting a larger pool of potential panelists.

In this facial challenge, we do not consider the merits of the Commission’s new policy of determining the independence of prospective panelists on a case-by-case basis. State Office of Pub. Util. Counsel, 131 S.W.3d at 321. We only decide whether the deletion of an express conflict-of-interest provision contravenes the specific statutory language of PURA section 39.262(h)(3). Although the amended rule lacks an explicit test for determining panelists’ independence, it does not eliminate the statutory requirement that the panelists be independent. Because we construe a rule in relationship to the statute which it implements, Envoy Med. Sys., 108 S.W.3d at 337, the requirement that panelists be independent survives the amended rule. Therefore, we hold that the amended true-up proceeding rule is not facially invalid.

Reasoned Justification

In their second issue on appeal, the Ratepayers challenge the Commission’s reasoned justification for the amended rule. To satisfy the reasoned justification requirement, the Commission’s order finally adopting the amendment must explain how and why it reached its conclusion. State Office of Pub. Util. Counsel, 131 S.W.3d at 327; Reliant v. Public Util. Comm’n of Texas, 62 S.W.3d 833, 840 (Tex. App.-Austin 2001). A reasoned justification must include: (1) a summary of comments the agency received from interested parties; (2) a summary of the factual basis for the rule; and (3) the reasons the agency disagrees with a party’s comments. Tex. Gov’t Code Ann. § 2001.033(a)(1); State Office of Pub. Util. Counsel, 131 S.W.3d at 327; Reliant, 62 S.W.3d at 840. An agency rule not adopted in substantial compliance with the rulemaking provisions of the APA is voidable. Tex. Gov’t Code Ann. § 2001.035(a) (West 2000); State Office of Pub. Util. Counsel, 131 S.W.3d at 327.

The question of substantial compliance is a question of law determined solely from the face of the adopting order. State Office of Pub. Util. Counsel, 131 S.W.3d at 327; see Methodist Hosps. v. Industrial Accident Bd., 798 S.W.2d 651, 659 (Tex.App.-Austin 1990, writ dism’d w.o.j.). To substantially comply with the reasoned justification requirement, the four corners of the final order must (1) present the agency’s justification in a relatively clear, precise, and logical fashion; (2) accomplish the legislative objectives underlying the reasoned-justification requirement; and (3) come fairly within the character and scope of each of the statute’s requirements in specific and unambiguous terms. State Office of Pub. Util. Counsel, 131 S.W.3d at 328; Reliant, 62 S.W.3d at 841. The two fundamental goals of the reasoned justification requirement are to ensure the agency fully considered the comments submitted, and to provide the factual basis and rationale of the rule as determined by the agency. Reliant, 62 S.W.3d at 841.

We review a challenge to the reasoned justification requirement using an “arbitrary and capricious” standard and do not presume that facts exist to support the agency’s order. Id. An agency’s action is arbitrary if “in making a decision it commits any of the following errors: (1) does not consider a factor that the Legislature intended the agency to consider in the circumstances; (2) considers an irrelevant factor; or (3) reaches a completely unreasonable result after weighing only relevant factors.” Id.

The Ratepayers claim that the Commission’s final order lacks a reasoned justification because (1) it lacks a summary of the factual basis for the rule, and (2) it fails to state the reasons why the Commission disagreed with the written comments submitted by the Ratepayers.

The Ratepayers contend that the Commission’s statements that, “[It] has received several responses from apparently qualified ... respondents,” and that the new Request for Proposals contained “clear restrictions” are both unsupported by anything in the rulemaking record and inappropriately refer to uncorroborated events not fully developed within the four corners of the final order. 29 Tex. Reg. 5338-39. Even if the Ratepayers are correct that these statements reference events that are not fully developed or explained in the final order, they have not shown that the Commission failed to include a summary of the factual basis for the amendment.

The Ratepayers’ arguments in their brief and at oral argument suggest that our review of the final order should be limited to the final paragraph in which the Commission directly responds to the Ratepayers’ written comments. However, our review is not so narrowly confined. State Office of Pub. Util. Counsel, 131 S.W.3d at 328; Reliant, 62 S.W.3d at 841 (substantial compliance with reasoned justification requirement must be provided within four corners of final order). A review of the final order in its entirety reveals that, in summarizing the Ratepayers’ written comments, the Commission provided a summary of the factual basis for the amended true-up proceeding rule. The Commission attempted to convene a valuation panel but its Request for Proposals failed to elicit any responses. 29 Tex. Reg. 5338. The Commission then made a policy decision that in place of an express conflict-of-interest prohibition, it would consider on a case-by-case basis “appropriate conflict-of-interest standards in selecting persons to serve on a valuation panel.” Id. In their written comments, the Ratepayers observed that the purpose of the proposed amendment was to attract “a broader group of persons who would be eligible to serve on a valuation panel.” Id. They further noted that they appreciated the Commission’s efforts to broaden the pool of prospective panelists. Id. We conclude that the final order does contain an adequate summary of the factual basis for the rule.

The Ratepayers also claim that the Commission inadequately explained why it disagreed with the Ratepayers’ comments. The Ratepayers expressed concern that the amendment would create a risk that the valuation panel would not be independent, and that, even if the conflict-of-interest provision were removed, qualified persons would be reluctant to serve on a valuation panel. Id. The Ratepayers complain that the Commission’s responses were inadequate because the Commission combined and responded to their two distinct concerns as if their only real concern was whether the amended rule would attract a sufficient number of independent, qualified respondents. Specifically, the Ratepayers contend that the Commission’s following statements do not respond adequately to their concerns: “[It] has already received several responses from apparently qualified ... respondents,” that the new Request for Proposals “contains clear restrictions on performing current or post-agreement work for either Center-point or its generation subsidiary,” and that “despite this prohibition, the Commission received responses.” The Ratepayers note that there is no evidence within the four corners of the final order that either demonstrates that the alleged respondents are independent or that the new Request for Proposals actually contains sufficient restrictions to secure independent panelists. Id. at 5839. The Ratepayers additionally argue that the Commission cannot rely on language in the new Request for Proposals to adequately secure independent panelists as it is unlikely that this Request for Proposals will ever be used again. We disagree and hold that the Commission adequately responded to expressed concerns and suggestions of the Ratepayers.

The Ratepayers’ initial concern was that the removal of the express conflict-of-interest provision created a risk that a valuation panel may not be independent. The Commission stated that it “shares [Ratepayers’] concern that it be able to select independent, qualified persons to serve on a valuation panel, and it intends to make every reasonable effort to select such a panel.” Id. The Commission also asserted that it would “consider appropriate conflict-of-interest standards in selecting persons to serve on the valuation panel.” Id. at 5338. These statements demonstrate that the Commission fully realized that it was statutorily obligated to select independent panelists and that despite the removal of the express conflict-of-interest provision, it would follow the statutory mandate.

Likewise, the Commission’s responses make clear that it was also concerned that its efforts to attract a broader group of persons to serve on a valuation panel could fail. However, its characterization of the Ratepayers’ fear that potential panelists may be reluctant to serve on a valuation panel as “premature” is accurate based on the facts of this case. Id. at 5339. Until the Commission attempts and fails to convene a panel because of lack of interest among potential panelists, the Ratepayers’ concern is premature and speculative.

The Ratepayers argue that the Commission did not explain why it disagreed with the Ratepayers’ alternate suggestions for changing the proposed rule. The Ratepayers “urge[d] the Commission to include appropriate conflict-of-interest standards in the rule” and also requested “that the Commission seek to fulfill the legislative intent underlying PURA section 39.262 by issuing a Request for Proposals that would seek responses from alternate groups of independent financial experts, including ‘buy-side’ analysts who do not make their money through transaction fees and trading commissions.” Id. at 5338-39. The Ratepayers contend that the Commission ignored their suggestions, citing the Commission’s comment that “[Ratepayers] in their comments did not specifically suggest that the commission change the proposed rule, and the commission is not making any changes in response to these comments.” Id. However, we are not persuaded that the Ratepayers’ suggestions are sufficiently directed at the proposed rule.

The Ratepayers’ request that the Commission retain express conflict-of-interest standards in the rule is not a suggestion on how to improve the proposed rule; it is a request that the Commission keep the old rule. See id. at 5338. The request adds nothing to the debate over whether it is appropriate for the Commission to establish the independence of prospective panelists on a case-by-case basis. It merely restates the Ratepayers’ disagreement with the proposed amendment to the true-up proceeding rule and their preference for the previous version of the rule. It was unnecessary for the Commission to respond more specifically to this request because it adequately addressed the Ratepayers’ concern regarding how it would establish the independence of potential panelists under the proposed rule.

The Ratepayers’ second suggestion, that the Commission issue a Request for Proposals from alternate groups beyond those provided for by statute, also did not make any request regarding feasible changes to the proposed rule. The suggestion focused on how the Commission could draft future Requests for Proposals to enlarge the pool of prospective panelists, not on the proposed rule. Furthermore, suggesting that the “Commission seek responses from alternate groups of independent financial experts” posits that the Commission ignore an explicit statutory mandate. See Tex. UtiLCode Ann. § 39.262(h)(3) (“stating that valuation panel must consist of financial experts, chosen from proposals submitted in response to Commission requests, from top ten nationally recognized investment banks”). Thus, while the Ratepayers’ suggestion may increase the number of persons willing to serve on a valuation panel, the Commission does not have the statutory authority to solicit panelists from outside the top ten nationally recognized investment banks. Thus, the Commission was correct, in regard to the second suggestion, that the Ratepayers did not specifically request that it make any feasible changes to the proposed rule.

We conclude that the Commission’s final order adequately explained how and why it reached its conclusion regarding the repeal of the express conflict-of-interest provision from the true-up proceeding rule. Therefore, we overrule the Ratepayers’ second issue that the final order was void for lack of a reasoned justification.

CONCLUSION

We hold that the amended true-up proceeding rule is not facially invalid and that the Commission’s order adopting the amended rule contained an adequate reasoned justification. Accordingly, we sustain the validity of the amended rule as enacted by the Commission.

      . This rule, found at 29 Tex. Reg 5338, is to be codified at 16 Tex. Admin. Code section 25.263 (Pub Util. Comm’n) as part of the true-up proceeding rule. Although the Commission’s amendment has not yet been codified, we will use its administrative code citation for the sake of clarity and convenience.

      . A "stranded cost" is the "positive excess of the net book value of generation assets over the market value of the assets, taking into account all of the electric utility’s generation assets, any above market purchased power costs, and any deferred debit related to a utility’s discontinuance of the application ... for generation-related assets_” Tex. Util. Code Ann. § 39.251(7) (West Supp.2004-05).

      . The average daily closing price of the common stock over 30 consecutive trading days chosen by the Commission out of the last 120 consecutive trading days before the filing required under Subsection (c) shall be presumed to establish the "market value” of the common stock equity in each transferee corporation. Tex. Util.Code Ann. § 39.262(h)(3) (West Supp.2004-05).

      . The former conflict-of-interest provision read as follows: "None of the financial experts chosen for the panel shall have participated, or be employed by an investment house or brokerage house which has participated in the business separation, securitization, or other activities related to the implementation of PURA Chapter 39 on behalf of the utility for which the market valuation is being determined.” 26 Tex. Reg. 10498 (2001), amended in part by 29 Tex. Reg. 5338 (2004) (former 16 Tex. Admin. Code § 25.263(f)(l)(C)(iv)).

      . The City of Houston, Coalition of Cities, Office of Public Utility Counsel, and Texas Industrial Energy Consumers filed written comments in conjunction with appellants, but are not parties to this direct appeal.

      .Specifically, the Ratepayers suggested that the Commission expand the pool of potential panelists by ignoring the explicit statutory requirement that panelists be selected from the top ten nationally recognized investment banks with demonstrated experience in the United States electric industry. See 29 Tex. Reg. 5338-39; see also Tex. Util.Code Ann. § 39.262(h)(3).

      . The Ratepayers alternatively request that, if we overrule both their issues, we hold that this Court may review the independence of selected panelists in each contested case. Ratepayers admit that this issue is beyond the scope of this validity challenge. Therefore, any judicial decision on this matter would be an advisory opinion barred by the separation of powers provision of the Texas Constitution. Tex. Const, art. II, § 1; see Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211 (Tex. 2002); Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). We deny the Ratepayers’ request for alternative relief and offer no ruling on the propriety of a case-by-case review of the independence of future panelists.