author: TERRY JENNINGS, Justice. ELSA ALCALA, Justice,

text:
    Marcos MONTOYA et ux, Paula Montoya, Individually and as Next Friends of Marcos Montoya, Jr., Appellants, v. HOUSTON INDEPENDENT SCHOOL DISTRICT and Veronica Dampha, Appellees.
    No. 01-04-00824-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 31, 2005.

      S. Mark Strawn, Ajamie LLP, Houston, TX, for Appellants.
    Joseph A. Callier, Callier & Garza, LLP, Houston, TX, for Appelees.
    Panel consists of Justices NUCHIA, JENNINGS and ALCALA.
   OPINION

TERRY JENNINGS, Justice.

In this accelerated, interlocutory appeal, appellants, Marcos Montoya et ux, Paula Montoya, Individually and as Next Friends of Marcos Montoya, Jr. (the “Montoyas”), challenge the trial court’s order granting a plea to the jurisdiction in favor of appellee, Houston Independent School District (HISD), on the Montoyas’ claims against HISD for injuries sustained by Marcos Montoya, Jr. (“Marcos”) when he fell from the emergency exit of an HISD school bus. In four issues, the Montoyas contend that the trial court erred in granting HISD’s plea to the jurisdiction on the grounds of governmental immunity from suit because the Texas Tort Claims Act waives such immunity from suit for personal injuries arising “from the operation or use of a motor-driven vehicle.” We affirm the trial court’s order.

Factual and Procedural Background

As stated in the Montoyas’ first amended petition, on May 15, 2002, Marcos sustained personal injuries when he fell from the emergency exit of a moving school bus owned by HISD and driven by an HISD employee. At the time of the incident, Marcos was eight years old and enrolled in special education in HISD. He had previously been diagnosed with mental retardation and other mental handicaps. Prior to the incident, Marcos had a history of aggressive behavior on the school bus, including a history of leaving his seat on the bus, running around on the bus, and attempting to exit the bus using the emergency exit.

On April 4, 2002, HISD equipped Marcos’s school bus seat with a special childproof harness to restrain him. However, the harness did not effectively restrain Marcos, and, on May 5, 2002, Marcos was able to free himself from the harness. On May 14, 2002, the day before the incident, Marcos freed himself from the harness and opened the rear emergency exit door of the bus, but did not fall out of the bus. The next day, on May 15, 2002, Marcos again freed himself from the harness and, while the bus was in motion, opened and fell through the emergency exit, sustaining the personal injuries giving rise to this lawsuit.

The Montoyas sued HISD and the HISD bus driver (collectively “HISD”), alleging that HISD was negligent in the operation or use of Marcos’s school bus. In their first amended petition, the Monto-yas alleged that HISD was negligent in the following ways:

a. failing to properly use the childproof harness restraining Marcos;
b. failing to maintain a reasonable lookout, and notice that Marcos had disengaged the harness;
c. failing to stop the bus before Marcos reached the emergency exit, opened it, and fell through it;
d. failing to equip the bus with an adequate restraining device; and
e. failing to instruct the bus driver in the proper use of the harness.

HISD filed an answer pleading as a defense “all the exemptions and exceptions from, and limitations on, liability provided in the Texas Tort Claims Act.” Contemporaneously with filing its answer, HISD filed a motion to dismiss and plea to jurisdiction, asserting that HISD was entitled to governmental immunity and that the trial court lacked jurisdiction to hear the Montoyas’ claim. HISD further asserted that Marcos’s injuries did not arise from the operation or use of a motor-driven vehicle, and thus the Montoyas’ allegations did not trigger a waiver of HISD’s immunity under the Texas Tort Claims Act.

The Montoyas filed a response to HISD’s plea to jurisdiction, arguing that their allegations arose from the operation or use of a motor-driven vehicle and thus HISD’s immunity was waived. After HISD filed a reply to the Montoyas’ response, the trial court conducted a hearing on HISD’s plea to the jurisdiction, and entered an order granting HISD’s plea.

Standard of Review

Governmental immunity from suit defeats a trial court’s subject matter jurisdiction. Tex. Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex.2004); Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.2003). Whether a party has alleged facts that affirmatively demonstrate a trial court’s subject matter jurisdiction is a question of law reviewed de novo. Miranda, 133 S.W.3d at 226.

“In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of immunity.” Whitley, 104 S.W.3d at 542. In reviewing the pleadings to determine whether a party has alleged facts that affirmatively demonstrate the court’s jurisdiction and a valid waiver of immunity, the reviewing court must construe the pleadings liberally in favor of the pleading party and must also look to the intent of the pleading party. Miranda, 133 S.W.3d at 226.

Waiver of Governmental Immunity

In issues one through four, the Monto-yas argue that the trial court erred in granting HISD’s plea to the jurisdiction because their allegations that HISD was negligent in failing to timely stop the bus, maintain a reasonable lookout, and properly use a child-proof harness state a claim for personal injuries arising from HISD’s operation or use of the bus, and the Texas Tort Claims Act specifically waives governmental immunity from suit for such claims. Tex. Civ. PRac. & Rem.Code Ann. § 101.021(1) (Vernon 1997).

HISD, a governmental unit, is immune from liability for Marcos’s injuries unless that immunity has been waived by the Texas Tort Claims Act. See Tex. Civ. PRac. & Rem.Code Ann. §§ 101.001, 101.021, 101.025, 101.051 (Vernon 1997 & Supp. 2004-2005); Whitley, 104 S.W.3d at 542; LeLeaux v. Hamshire-Fannett Sch. Dist., 835 S.W.2d 49, 51 (Tex.1992). The Texas Tort Claims Act provides, in relevant part:

A governmental unit in the state is hable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law.

Tex. Crv. PRac. & Rem.Code Ann. § 101.021(1) (Emphasis added).

The waiver of immunity set forth in section 101.021(1) has been construed by Texas courts to be a limited waiver. LeLeaux, 835 S.W.2d at 51. Thus, pursuant to this limited waiver, a school district is liable for a personal injury proximately caused by a negligent employee only if the injury arises from the operation or use of a motor-driven vehicle or motor-driven equipment. Tex. Civ. PRac. & Rem.Code Ann. § 101.021(1)(A). While the terms “use” and “operation” are not defined in the Act, the supreme court has defined “use” as “to put or bring into action or service; to employ for or apply to a given purpose” and has defined operation as “a doing or performing of a practical work.” Whitley, 104 S.W.3d at 542; LeLeaux, 835 S.W.2d at 51. The supreme court has also explained that the “arises from” language in section 101.021(1)(A) requires “a nexus between the injury negligently caused by a governmental employee and the operation or use of the motor-driven vehicle or piece of equipment.” LeLeaux, 835 S.W.2d at 51; see also Whitley, 104 S.W.3d at 543; Hopkins v. Spring Indep. Sch. Dist., 736 S.W.2d 617, 619 (Tex.1987). “This nexus requires more than mere involvement of property.” Whitley, 104 S.W.3d at 543. Rather, the use of the vehicle “must have actually caused the injury.” Id. The operation or use of a motor-driven vehicle “does not cause injury if it does no more than furnish the condition that makes the injury possible.” Id. (citing Dallas County Mental Health and Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.1998)). Additionally, while the statute does not expressly state whose operation or use of the vehicle or equipment is necessary, the supreme court has noted that “the more plausible reading is that the required operation or use is that of the [governmental] employee.” LeLeaux, 835 S.W.2d at 51.

The Montoyas make three specific allegations as to how Marcos’s injuries arose from HISD’s negligent operation or use of the school bus. First, the Montoyas allege that the HISD bus driver was negligent in failing to timely stop the bus before Marcos opened the rear emergency door and fell from the moving bus. Second, the Montoyas allege that the HISD bus driver was negligent in fading to maintain a reasonable lookout while driving the bus. Third, the Montoyas allege that the HISD bus driver was negligent in failing to properly use a child-proof harness and restrain Marcos. In reviewing the order of the trial court granting HISD’s plea to jurisdiction, we must take these allegations as true. LeLeaux, 835 S.W.2d at 52.

However, even assuming the truth of these allegations, the Montoyas have still failed to demonstrate that Marcos’s injuries actually arose from the bus driver’s operation or use of the bus. LeLeaux, 835 S.W.2d at 51. As to the Montoyas’ first allegation, we cannot agree with the Montoyas’ assertion that the bus driver’s negligent failure to timely stop the school bus “is the very quintessence of an allegation which arises from the use or operation of a motor vehicle.” While it is generally true that a driver’s negligent failure to timely stop a vehicle to avoid a collision would relate to the operation of that vehicle, here the Montoyas’ allegation concerns the bus driver’s failure to stop the bus to prevent Marcos from opening the rear door and falling out of the bus. This allegation actually relates to the bus driver’s duty to supervise and respond to Marcos’s behavior on the bus, not the driver’s operation or use of the bus itself. Furthermore, the Montoyas’ argument, that Marcos’s injuries would not have occurred if the bus had stopped prior to Marcos’s exiting the emergency door, does not demonstrate that Marcos’s injuries arose from the operation of the bus. For example, Marcos’s injuries would not have occurred if he had not boarded the bus altogether. But an allegation to this effect would not be sufficient to demonstrate that Marcos’s injuries arose from the operation of the bus. In order to establish the required nexus, the Montoyas must allege that the bus driver’s operation of the bus actually caused Marcos’s injuries. See Estate of Garza v. McAllen Indep. Sch. Dist., 613 S.W.2d 526, 528 (Tex.Civ.App.-Beaumont 1981, writ ref'd n.r.e.). Here, the Monto-yas’ allegation concerning the driver’s failure to stop the bus, even when construed liberally, is not sufficient to establish a waiver of HISD’s immunity.

The Montoyas’ second allegation, that the bus driver negligently failed to maintain a reasonable lookout, also relates to the bus driver’s duty to supervise the bus passengers and does not concern the actual operation or use of the bus. Goston v. Hutchison, 853 S.W.2d 729, 733 (Tex.App.-Houston [1st Dist.] 1993, no writ). In Goston, we concurred with the distinction made by the court in Estate of Garza that “when the allegations of negligence are related to the direction, control and supervision of the students, the suit is barred [and] when the allegations of negligence are related to the negligent use of the motor vehicle itself, the suit is not barred.” Id. at 733 (citing Estate of Garza, 613 S.W.2d at 528). We conclude that the Montoyas’ allegation concerning the driver’s failure to maintain a reasonable lookout falls squarely into the category of cases related to the direction, control, and supervision of students. Moreover, the Montoyas’ allegation regarding the bus driver’s failure to keep a reasonable lookout fails to demonstrate the required nexus between the driver’s negligent act and the injuries sustained by Marcos. Whitley, 104 S.W.3d at 543; Hopkins, 736 S.W.2d at 619.

Similarly, the Montoyas’ third allegation, that the bus driver negligently failed to use the harness properly, does not relate to the driver’s operation or use of the bus. However, even assuming that the driver’s negligent use of the harness constituted an operation or use of the bus, the negligent use' was not the actual cause of Marcos’s injuries. The actual cause of Marcos’s injuries was Marcos’s affirmative act of opening and exiting the rear emergency door of the bus. At most, the driver’s negligent use furnished the condition which enabled Marcos to exit the bus and injure himself. See Whitley, 104 S.W.3d at 543. Because this allegation does not demonstrate the critical nexus between the driver’s negligent use of the harness and Marcos’s fall from the bus, it is insufficient to support a waiver of HISD’s immunity.

In the trial court proceedings and in their appellate briefing the Montoyas rely heavily on Austin Ind. Sch. Dist. v. Gutierrez, 54 S.W.3d 860 (Tex.App.-Austin 2001, pet. denied), and Hitchcock v. Garvin, 738 S.W.2d 34 (Tex.App.-Dallas 1987, no writ), both of which are distinguishable from the facts at hand. In Gutierrez, a school bus driver discharged a student from the bus and then honked the horn of the bus to indicate to the student that she could safely cross the road. Gutierrez, 54 S.W.3d at 861. After the bus driver’s signal, the student attempted to cross the street and was struck and killed by a passing vehicle. Id. The court denied the school district’s plea to the jurisdiction because the bus driver’s “affirmative action of honking the horn,” which may have contributed to the accident, constituted a use of the bus. Id. at 866. Similarly, in Hitchcock, a school bus driver failed to activate the bus flashers or warning signals prior to unloading a child. Hitchcock, 738 S.W.2d at 36. Immediately after exiting the bus, the child attempted to cross the street but was struck by another car. Id. at 37. The court held that the driver’s failure to activate the flashers or warning signals of the school bus when the child was exiting constituted “an act or omission arising from the operation or use of a motor vehicle.” Id.

Here, however, the Montoyas’ allegations do not demonstrate that Marcos’s injuries actually resulted from the bus driver’s operation or use of the bus. Rather, the allegations demonstrate that Marcos’s injuries were caused by Marcos’s affirmative actions of opening the school bus emergency door and exiting the bus while it was in motion. Furthermore, even if the bus driver’s failure to adequately supervise the students on the bus contributed to the accident, her actual operation and use of the bus did not cause the injuries. See Goston, 853 S.W.2d at 733.

The Montoyas’ allegations are more comparable to the allegations made in Hopkins, 736 S.W.2d at 618 and Estate of Garza, 613 S.W.2d at 527. In Hopkins, a student with cerebral palsy suffered severe convulsions while riding on her school bus to her after-school day care center. Hopkins, 736 S.W.2d at 618. The bus driver contacted his supervisor and requested that a school nurse meet the bus. Id. Instead of providing the nurse, the supervisor instructed the driver to proceed with the student to the day care center, where she finally received medical care. Id. The student’s family brought suit against the school district, alleging that the district’s failure to provide adequate medical care caused the student’s personal injuries. Id. The court refused to find a waiver of the school district’s immunity, noting that the student’s injuries “could not have arisen from the use or operation of a motor vehicle as contemplated by the statute.” Id. (emphasis added).

In Garza, a non-student passenger boarded a school bus and stabbed a student who was riding the bus to school. Garza, 613 S.W.2d at 527. The plaintiffs alleged that the school district “failed to provide safe transportation for and effective control of the students riding on the school bus.” Id. The Garza court held that “the injury arose out of the failure to control and supervise the public, and not from the operation or use of a motor vehicle.... [A] knife and not the use of the bus was the cause of plaintiffs damage.” Id. at 528; see also Martinez v. VIA Metrop. Transit Auth., 38 S.W.3d 173, 176 (Tex.App.-San Antonio 2000, no pet.) (concluding that transit authority did not waive immunity to claims brought by metro van passenger after metro van driver failed to transport passenger timely and properly to nearest medical facility when he became sick and passed out).

As in Hopkins and Garza, here, the Montoyas’ pleadings demonstrate that the bus driver’s failure to supervise or control Marcos may have contributed to Marcos’s injuries. However, the pleadings do not demonstrate that the bus driver’s operation or use of the bus actually caused Marcos’s injuries. Instead of demonstrating the required nexus between Marcos’s injuries and the driver’s operation or use of the bus, the Montoyas’ pleadings establish only that Marcos’s injuries were the result of Marcos’s affirmative actions and possibly the bus driver’s failure to supervise, control, or direct Marcos.

Because the Montoyas’ allegations demonstrate that the HISD school bus merely provided the setting for Marcos’s injuries and that the bus driver’s operation or use of the bus did not proximately cause Marcos’s injuries, we hold that the Montoyas’ claims do not fall within the waiver of immunity set forth in section 101.021(1). Hopkins, 736 S.W.2d at 619. Accordingly, we further hold that the trial court did not err in granting HISD’s plea to the jurisdiction.

We overrule issues one through four.

Conclusion

We affirm the order of the trial court granting HISD’s plea to the jurisdiction.

ALCALA, J., dissenting.

ELSA ALCALA, Justice,

dissenting.

I respectfully dissent from the portion of the majority opinion in which it addresses the Montoyas’ allegation that the bus driver was negligent by “failing to stop the bus before Marcos reached the emergency exit, opened it, and fell through it.” I would construe this portion of the Monto-yas’ petition as alleging that them eight-year-old, mentally retarded child was injured because the bus driver negligently continued to drive the moving bus while the child opened the emergency exit door and fell through it.

The majority opinion holds that the child’s conduct, which it terms his “affirmative act,” caused the injuries he sustained and that, “at most, the driver’s negligent use simply furnished the condition” that “enabled Marcos to exit the bus and injure himself.” I would hold, instead, that the pleadings allege the necessary nexus between the bus driver’s negligent conduct — continuing to drive the bus while a child opened the emergency exit door— and the injuries that the child sustained from his fall from the moving bus through the emergency door. See Tex. Civ. PRAC. & Rem.Code Ann. §§ 101.021(1)(A), 101.025(a) (Vernon 1997) (conditioning waiver of governmental immunity and resulting governmental liability for personal injury on injury’s “aris[ing] from the operation or use of a motor-driven vehicle ”) (emphasis added); see also Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543 (Tex.2003) (noting that supreme court has “consistently required a nexus between the operation and use of the motor-driven vehicle or equipment and a plaintiffs injuries”).

The majority opinion suggests that, for the bus driver’s actions here to rise to the level of nexus with the injuries to Marcos, the driver would have to have done something more than merely continue to drive. I disagree. If, for example, a child runs in front of a car, the driver should not continue to drive, even at the speed limit, but should stop to prevent injuring the child. In this example, if the car struck a child who had run in front of the car, the mere act of continuing to drive would constitute the necessary nexus with injuries to the child, even if the child was also at fault by running in front of the car. Similarly, if a child opens an emergency door on a bus, the mere act of continuing to drive under that condition furnishes the element of dangerousness to an activity that would otherwise not necessarily be dangerous if the bus were stationary. In other words, the child’s conduct of opening the emergency door on the bus is ordinarily not dangerous if the bus is stationary; what created the danger here was the bus driver’s moving the bus while the child opened the door.

The school bus here was more than simply the location of the injury. See LeLeaux v. Hamshire-Fannett Sch. Dist., 835 S.W.2d 49, 51 (Tex.1992) (noting that empty school bus was parked and that driver was not aboard as significant factors in upholding lower courts’ rulings that school district had not waived immunity from suit). The distinction from LeLeaux that, in my view, the majority opinion does not consider, is that the pleadings here allege injuries that resulted from the combination of two acts, specifically, the child’s dangerous act of opening an emergency door on a moving bus and the driver’s dangerous act of continuing to drive the bus while this happened. In this case, therefore, and in contrast to the LeLeaux case, I would conclude that the pleadings allege that the bus was more than merely the location for the injury. See id.; see also Whitley, 104 S.W.3d at 543 (restating “mere location” rule). Rather, the pleadings allege that the movement of the bus as the child opened the emergency door caused the child’s extensive injuries.

Moreover, although there must be a nexus between the injury and the operation or use- alleged, Whitley, 104 S.W.3d at 543, the statute does not require that the use or operation of the motor vehicle constitute the sole cause of the injury. See Id. (noting that Whitley failed to show that use of bus “contributed to” Whitley’s injuries); see also Austin Indep. Sch. Dist. v. Gutierrez, 54 S.W.3d 860, 866 (Tex.App.-Austin 2001, pet. denied) (noting that bus driver’s honking to indicate safety of crossing road “may have contributed” to accident that resulted in passing car’s striking and killing child). Thus, although the child’s conduct in opening the door may certainly have contributed to his injuries, the Montoyas’ pleading that the bus driver continued to operate the bus under the circumstances also alleges that the driver contributed to the child’s harm.

The majority opinion further suggests that the substance of the Montoyas’ pleadings alleges only claims for negligent supervision, for which the Legislature has not waived HISD’s immunity from suit, rather than claims for negligent operation or use of a motor vehicle, for which the Legislature has waived HISD’s immunity from suit pursuant to sections 101.021(1)(A) and 101.025(a). Regardless of whether the child was negligently supervised, it was the movement of the bus by the bus driver that caused the serious injuries to the child from his fall through the emergency door of the moving bus.

I would hold that the Legislature has waived HISD’s immunity from suit for the injuries to Marcos that his parents allege were caused by the driver’s continuing to operate the bus while the child opened the emergency door and fell through it, and that the trial court therefore has jurisdiction to address this pleading only.

      . Tex. Civ. Prac. & Rem.Code Ann. §§ 101.001(3)(B), 101.021, 101.025, 101.051 (Vernon 1997 & Supp.2004-2005).

      . As stated in the Montoyas’ brief, the HISD bus driver, Veronica Dampha, was named as a defendant but did not file an answer, and the Montoyas filed a voluntary dismissal of their claims against Dampha.

      . While not specifically identified on appeal, the allegations in the Montoyas’ amended petition that HISD failed to equip the school bus with an adequate restraining device and that HISD failed to instruct the bus driver on the proper use of the restraining device are unrelated to the operation or use of a motor-driven vehicle. Tex. Civ. Prac. & Rem.Code Ann. § 101.021(1)(A) (Vernon 1997). Additionally, these allegations also concern discretionary decision-making, and thus do not support a waiver of immunity. See Tex. Civ. Prac. & Rem.Code Ann. § 101.056 (Vernon 1997); Cortez v. Weatherford Indep. Sch. Dist., 925 S.W.2d 144, 150 (Tex.App.-Fort Worth 1996, no writ).

      . The Hopkins court stated "we are unwilling to believe that the legislature ... intended to expose school districts to unlimited liability for stabbings on school buses while denying such claims for stabbings on school grounds.” Id. at 528. Like the supreme court in Hopkins, we are unwilling to believe that the legislature intended to expose school districts to unlimited liability for injuries caused by the affirmative actions of students on school buses while at the same time denying such claims for injuries caused by the affirmative actions of students on school grounds.


source: Caselaw Access Project

author: JANE BLAND, Justice.

license: Public Domain

text:
    Tammy LATHAM, Appellant, v. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee.
    No. 01-04-00628-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 7, 2005.

      Brian J. Fischer, Shawn Casey, Shawn Casey & Assoc., Houston, for Appellant.
    Sandra D. Hachem, Senior Asst. County Atty., for Appellee.
    Panel consists of Chief Justice RADACK and Justices HIGLEY and. BLAND.
   OPINION

JANE BLAND, Justice.

Tammy Latham appeals the trial court’s order terminating her parental rights to her minor children, K.L., J.L., and H.T. Latham contends (1) she is entitled to a reversal due to the trial court’s delay in appointing her appellate counsel; and (2) the evidence is legally and factually insufficient to support the trial court’s termination of her parental rights to her three minor children. We affirm.

Facts

Latham married Jeffrey Latham in December 1993. Latham testified that she was aware of his criminal history when they married, but that she did not know that one of his prior convictions included injury to a child, two years earlier, in August 1991. Jeffrey and Latham had their first child,- K.L., in July 1995. La-tham gave birth to their second child, J.L., in December 1996.

Although Latham denies using illegal drugs before the birth of her children, she testified that both she and Jeffrey began using cocaine and marihuana after the children were born. Latham testified that they did not abuse drugs in the presence of their children. Latham admits that she has a drug problem and that she knowingly engaged in a lifestyle that could injure her children.

Latham was convicted for possession of cocaine and for theft after the birth of her two children. As of the time of trial, she was in jail for a third charge, the unauthorized use of a motor vehicle. Thus, she has been incarcerated three times since her first child was born in 1995. Latham admits that while incarcerated she is unable to protect her children and provide for their physical and emotional needs. Further, she admits that engaging in criminal activity places her children in danger.

The Texas Department of Family and Protective Services (“DFPS” or “the agency”) became involved with Latham’s children in November 2001, after receiving a referral that K.L. had been left unattended at school. The school police picked up K.L. at 5:30 p.m., over three hours after school ended for the day. Latham explained that she was out of town and the person responsible for picking up K.L. from school had the days confused, but she admitted she failed to call and verify that the person actually picked up K.L. During the time the agency was involved with Latham’s children, a court ordered that Latham and her husband submit to drug testing. Both tested positive for cocaine in February 2002. Her first arrest for cocaine possession happened as she was working with the DFPS on a family service plan to reunite her with her children. Latham admits that she and her husband used crack cocaine on a daily basis in the first half of 2002.

In April 2002, the Lathams agreed in a temporary order that neither of them was fit to be the primary caretaker of the children. The order named the DFPS as the temporary sole managing conservator of the children. Latham agreed to pay court-ordered child support, in the amount of $187.50 per month, beginning August 2002. In May 2003, the Attorney General moved to enforce the child support order because Latham was in arrears in the amount of $1,800. During the time the DFPS cared for the children, Latham made one payment. She explained she was unable to pay the balance, due to her numerous incarcerations.

The agency’s Children’s Crisis Center evaluated Latham in August. She admitted to the agency’s evaluator that she had a problem and that her husband used and sold illegal drugs. Latham also revealed to the evaluator that her father had molested her as a child. Despite her own sexual abuse by her father, she and her children currently lived in her father’s home. Latham also admitted that her father supplied her with cocaine. She testified that she did not leave her children alone with her father, and assured she or her mother was also in the home. Latham agreed with the agency that it would have been better for her children if they did not reside with her father, but she stated that they did not have anywhere else to go.

Latham signed a family sendee plan with the agency in September 2002. In her plan, she agreed to complete the DFPS requirements in order to be reunited with her two children. The agency’s plan required Latham to (1) obtain a psychological evaluation and follow its recommendations; (2) complete a drug and alcohol assessment and follow the recommendations of the service provider; (8) locate and maintain proper housing; (4) obtain gainful employment; and (5) attend parenting classes. Latham lived with her mother until she was once again incarcerated, and started attending parenting classes, which she did not complete.

In late 2002, Latham began a relationship with Steven Toney and became pregnant with his child. During this period, she returned to reside at her father’s home. Toney went to Latham’s father’s home to find her, and her father shot and killed Toney. During this pregnancy, La-tham used illegal drugs for at least a month. Latham gave birth to her third child, H.T., on June 30, 2003, while in jail on the cocaine possession conviction. Although K.L. and J.L. remained in the agency’s custody at the time of H.T.’s birth, Latham did not alert the agency of the birth of H.T. Instead, Latham’s mother came to the jail and picked up H.T.

In late August 2003, Latham completed her jail time, but she did not contact the agency about resuming her service plan. Two months later, in October 2003, police arrested Latham for the unauthorized use of a motor vehicle, a state jail felony. At the time of her parental termination trial, the state jail felony charge had not been tried and she remained incarcerated. In November 2003, Latham and the agency amended the temporary order to include H.T.

The trial court appointed counsel for Latham on January 9, 2003. After a bench trial, the trial court ordered La-tham’s parental rights to her three minor children terminated. On February 9, 2004, Latham filed a pro se notice of appeal and a request for appointment of appellate counsel. Latham’s pro se filing does not include a certificate of service, but a letter Latham filed with the trial court indicates that she mailed a copy of her notice of appeal to her trial counsel. The trial court considered the appointment of appellate counsel on March 26, 2004, and signed an order appointing appellate counsel on July 9, 2004.

Latham contends that we should reverse because (1) the trial court unduly delayed in appointing appellate counsel; and (2) legally and factually insufficient evidence supports the judgment.

Standard of Review

In termination of parental rights cases, “due process requires that the State support its allegations by at least clear and convincing evidence” to reduce the risk of erroneous termination. Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 1391-92, 71 L.Ed.2d 599 (1982); In re B.L.D., 113 S.W.3d 340, 353-54 (Tex.2003). “ ‘Clear and convincing evidence’ ” means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. In re J.F.C., 96 S.W.3d 256, 264 (Tex.2002) (quoting Tex. Fam.Code Ann. § 101.007 (Vernon 2002)); see also In re C.H., 89 S.W.3d 17, 25 (Tex.2002) (discussing the Texas Supreme Court’s and the Legislature’s use of the same definition of “clear and convincing evidence”); Robinson v. Tex. Dep’t of Protective & Regulatory Servs., 89 S.W.3d 679, 688 (Tex.App.-Houston [1st Dist.] 2002, no pet.).

The standard for appellate review of legal sufficiency in termination-of-parental-rights cases is whether the evidence is such that a fact finder reasonably could form a firm belief or conviction about the truth of the matter on which the State bears the burden of proof. In re J.F.C, 96 S.W.3d at 266. In reviewing a challenge to the factual sufficiency of the evidence, we consider the evidence that the fact finder reasonably could have found to be clear and convincing. Id. (citing In re C.H., 89 S.W.3d at 25). An appellate court should not reverse if, considering all of the evidence in the record, the fact finder reasonably could have formed a firm conviction or belief that the parent committed one of the alleged grounds of termination and that the termination is in the best interest of the child. In re C.H., 89 S.W.3d at 27.

The natural right that exists between parents and their children is one of constitutional dimension. See In re J.F.C., 96 S.W.3d at 273; see also In re C.H., 89 S.W.3d at 26. A parent’s right to “the companionship, care, custody and management of his or her children” is a constitutional interest “far more precious than any property right.” Santosky, 455 U.S. at 758-59, 102 S.Ct. at 1397 (quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972)). In a case terminating parental rights, therefore, we strictly scrutinize the proceedings and strictly construe the law in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985).

Failure to Promptly Appoint Appellate Counsel

Latham contends that the trial court’s delay in granting her request for appellate counsel rendered moot her ability to have an effective appeal, and thus we should reverse the judgment of the trial court. Latham maintains that because she is indigent, her right to appointed counsel continued after the trial court signed her termination order. She contends that her appointed trial counsel “appeared” to withdraw, and that the trial court failed to appoint her appellate counsel until July 9, 2004, after the deadline for requesting findings of fact and conclusions of law from the trial court.

The DFPS responds that Latham has appellate counsel, and she cannot demonstrate prejudice from trial counsel’s failure to request findings of fact and conclusions of law. In its brief, the agency also analyzes Latham’s issue to be an ineffective assistance of counsel claim.

In parental termination cases, we look to the Court of Criminal Appeals for guidance in determining when a trial court appoints appellate counsel for an indigent person. In Smith v. State, 17 S.W.3d 660, 662-63 (Tex.Crim.App.2000), the Court of Criminal Appeals held that a presumption exists that a party represented by counsel at trial remains represented by counsel during the time for filing a motion for new trial. See also Oldham v. State, 977 S.W.2d 354, 362-63 (Tex.Crim.App.1998) (en banc) (op. on reh’g).

Here, Latham’s trial counsel never moved to withdraw from the case, and Latham copied trial counsel on her pro se notice of appeal. After his appointment, appellate counsel never contended in the trial court that Latham lacked representation post-trial. Thus, no evidence exists that trial counsel ended his representation at the conclusion of the trial, or that he had abandoned Latham. See Smith, 17 S.W.3d at 662 (citing Oldham, 977 S.W.2d at 362). We also note that Latham filed a pro se notice of appeal, which is an indication that she was aware of some of her appellate rights, “and we presume she was adequately counseled unless the record affirmatively displays otherwise.” Id. (citing Oldham, 977 S.W.2d at 363). If an indigent person entitled to representation is no longer represented by trial counsel, then upon request, the trial court should conduct an inquiry and promptly appoint appellate counsel. Absent any indication in the record that Latham was without counsel, however, we hold that the trial court did not err in delaying the appointment of appellate counsel in this case.

Legal and Factual Sufficiency of the Evidence

Latham further contends that, as a result of the delay in appellate representation, she was unable to procure the findings of fact and conclusions of law, which hinders her appeal. Her only contention as to the merits of this case, however, is that the evidence is legally and factually insufficient to support the termination of her parental rights to her children on at least “some of the grounds.” She notes that the State alleges twenty-two grounds for termination, and that the trial judge could have granted the request for termination on a ground that lacked legally or factually sufficient evidence. With findings of fact and conclusions of law, a hypothetical appeal could attack that ground, and we could not affirm on others supported by evidence, but not “found” by the trial court.

Yet, in reality, the judgment terminating Latham’s parental rights expressly specifies that she committed the following four grounds for termination:

(1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children;
(2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children;
(3) failed to support the children in accordance with the parent’s ability during a period of one year ending within the six months of the date of the filing of the petition; and
(4) constructively abandoned the children who have been in the permanent or temporary managing conservatorship of the Department of Protective and Regulatory Services or an authorized agency for not less than six months, and: (i) the Department or authorized agency has made reasonable efforts to return the children to the parent; (ii) the parent has not regularly visited or maintained significant contact with the children; and (iii) the parent has demonstrated an inability to provide the children with a safe environment.

See Tex. Fam.Code Ann. § 161.001(1)(D)-(F), (N) (Vernon 2002). We thus conclude, as the trial court’s order reflects, that it is these four grounds that the trial court found to be the basis for parental termination. Only one of these findings is necessary for a judgment of termination. See Robinson, 89 S.W.3d at 687. A court may base a termination of parental rights upon a finding that a parent engaged in conduct described in one of the alleged grounds, plus a finding that termination is in the best interest of the children. See Tex. Fam.Code Ann. § 161.001(l)-(2); see also In re L.M., 104 S.W.3d 642, 647 (Tex.App.-Houston [1st Dist.] 2003, no pet.). We thus determine whether the evidence is legally and factually sufficient to support the trial court’s finding that (1) Latham knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being; and (2) that termination is in the children’s best interests.

“Endanger” means to expose a child to loss or injury or to jeopardize a child’s emotional or physical health. See Robinson, 89 S.W.3d at 686 (citing Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987) and Doyle v. Tex. Dep’t of Protective & Regulatory Servs., 16 S.W.3d 390, 394 (Tex.App.-El Paso 2000, pet. denied)). While “endanger” means more than a “threat of metaphysical injury or the ill effects of a dysfunctional family,” it does not require that the conduct be actually directed at a child or that a child suffer an actual injury. Id. (citing Boyd, 727 S.W.2d at 533); see also Doyle, 16 S.W.3d at 394. “Under section 161.001(1)(E), the danger to a child must arise solely by the parent’s conduct established by the parent’s actions or by the parent’s failure to act.” Robinson, 89 S.W.3d at 686 (citing Doyle, 16 S.W.3d at 395). A parent’s imprisonment will not, standing alone, constitute endangerment. Id. (citing Boyd, 727 S.W.2d at 533). If the evidence, including imprisonment, however, shows a course of conduct that endangers the physical or emotional well-being of the child, then such facts support a finding under section 161.001(1)(E). Id. (citing Boyd, 727 S.W.2d at 533-34).

Latham has a history of illegal drug use, criminal activity, and imprisonment. Latham admitted that both she and her husband used drugs in their home, and that she realized these activities endangered her children. These activities continued after the birth of her children, and after Latham agreed not to commit such acts during her agreement to follow the agency’s plan for reunification with her children. Here, Latham knew her parental rights were in jeopardy, yet she failed to comply with the agency’s family reunification plan. She also continued to use illegal drugs, even during her pregnancy with H.T. We hold that legally and factually sufficient evidence exists to support the trial court’s finding of endangerment. See id. at 687 n. 9 (appellant’s use of drugs during pregnancy may be considered endangering a child).

In determining the best interest of a child, courts examine a number of factors, including: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individual seeking custody; (5) the programs available to assist the individual; (6) the plans for the child by the parent and the individual seeking custody; (6) the stability of the home; (7) the parent’s acts or omissions that indicate that the existing parent-child relationship is not a proper one; and (8) any excuse for parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976). The “Holley” factors are not exhaustive; some listed may not apply, while others not included on the list may also be appropriate. In re C.H., 89 S.W.3d at 27. Evidence that proves one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child’s best interest. Id. at 28. Using these factors, we examine whether the evidence is legally and factually sufficient to support the trial court’s finding that termination is in the children’s best interests, as discussed below.

The agency’s caseworker testified that K.L. has many special needs, including mental health, psychological, and medical needs. K.L. has a thyroid problem, mood disorder, bipolar disorder, borderline intellectual functioning, post-traumatic stress disorder, and attention deficit disorder. As a result of these needs, K.L. receives psychotherapy, individual therapy, speech therapy, and medication. The caseworker further testified that KL.’s current placement in a residential treatment center is meeting her physical and emotional needs, and that it is in KL.’s best interest to remain in the treatment center. J.L. and H.T. do not have any special needs, but the caseworker testified that their needs are being met in their placement home and that they are doing exceptionally well.

Latham testified that both she and her husband used cocaine on a weekly basis during the time that they, along with K.L. and J.L., lived at her mother’s home. La-tham ingested cocaine during her pregnancy with H.T., and the child tested positive for cocaine at birth. Latham continued to use drugs after giving birth to H.T., knowing that she needed to remain drug-free to be reunited with her children. The trial court could have considered the danger to the children from an inconstant relationship with a mother, who because of her drug use and incarceration, disrupts any permanency or stability for the children. The trial court reasonably could have inferred that Latham’s risk of relapse is high, given that she continued to ingest drugs while her children lived in protective custody, and while she sought to be reunited with them.

Latham’s drug abuse and failure to comply with the agency’s reunification plan is also evidence of an improper parent-child relationship. Her drug abuse during her pregnancy endangered H.T.’s well-being. Latham testified that she knew that her drug use endangered her children; yet, she continued to use drugs. To counter this evidence, Latham testified that she needed to be with her children and she loved them very much. She further testified that, although her history does not support her contention that she could be a good mother, she would like another chance to be with her children. We defer to the trial court’s role in assessing the weight and credibility of this evidence, cast against Latham’s previous history of abuse and neglect. See In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002).

The record contains little evidence of Latham fulfilling any of her parental responsibilities. In one instance, K.L. was left alone for nearly three hours after school. Her parental responsibilities have been performed by others, namely the agency and foster parents. Latham has not demonstrated that she possesses the ability to maintain a stable home, maintain employment, and to remain drug-free, nor the ability to live without incarceration. While in the free world, she visited her children five times, and only once in the eighteen months before her termination trial. The caseworker testified that La-tham failed to contact her to schedule visits with her children. The record does not contain any evidence of Lathams’ plans for her children.

As of the date of trial, Latham did not have a home and was awaiting trial for her state jail felony charge. She admitted that despite being molested by her father as a child and as a teenager, she continued to live with him during the eighteen months preceding her incarceration and the parental termination trial. Latham also admitted using drugs in both her mother’s home and her father’s home. Latham has failed to complete any parenting or substance abuse classes. Even after K.L. and J.L. were taken into protective custody, La-tham refused to complete the courses the agency recommended.

In contrast, the caseworker for the agency testified that J.L. and H.T. are adoptable, and that adoptive parents exist. The caseworker testified that J.L. and H.T. reside in a foster home, and due to KL.’s special needs, she is in a residential treatment center. She further testified that, with continued treatment, K.L. could be adopted. The caseworker also testified that J.L. and H.T. reside together in a foster home and are doing “exceptionally well.” Their foster parents are very interested in adopting the two children.

Evaluating these facts under Holley, we hold that legally and factually sufficient evidence supports the trial court’s finding that termination of Latham’s parental rights is in the best interest of these three children. See Holley, 544 S.W.2d at 371-72.

Conclusion

We conclude that (1) the trial court did not err in its delay in appointing appellate counsel because Latham fails to demonstrate that her trial counsel withdrew or that she was otherwise without representation immediately after trial; and (2) the delay in appointment of appellate counsel did not hinder the presentation of this appeal because the evidence is legally and factually sufficient to support the termination of her parental rights on grounds set forth in the trial court’s order of termination. We therefore affirm the judgment of the trial court.

      . In her briefing to this court, however, La-tham does not raise an ineffective assistance of counsel issue, nor does she cite to any authority in support of an ineffective assistance of counsel argument.

      . We recognize that "[findings of fact shall not be recited in a judgment.” Tex.R. Civ. P. 299a. Neither party complains of this on appeal, however, and the trial court had no pending request for separate findings. In addition, the agency does not contend that La-tham waived her right to appellate review of the evidence. We therefore review Latham’s legal and factual sufficiency points upon the grounds stated in the trial court’s judgment. See In re U.P., 105 S.W.3d 222, 229 n. 3 (Tex.App.-Houston [14th Dist.] 2003, no pet.) (concluding that findings in judgment have probative value, as long as they do not conflict with those in separate documents); see also Hill v. Hill, 971 S.W.2d 153, 157 (Tex.App.-Amarillo 1998, no pet.).

      . In a parental termination case decided after In re C.H, the Texas Supreme Court further clarified the amount of deference that appellate courts should give to a factfinder’s determinations. In re J.F.C., 96 S.W.3d at 266 (“To give appropriate deference to the factfin-der’s conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence.”).


author: EVELYN V. KEYES, Justice.

text:
    In re D’Ann Lesli WHEELER, Relator.
    No. 01-04-01129-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 7, 2005.

      Anne Marie Cofer, Bryan, for Appellant.
    Charlotte Dawn Rainwater, Houston, for Appellee.
    Panel consists of Justices TAFT, KEYES, and HANKS.
   OPINION

EVELYN V. KEYES, Justice.

Relator, D’Ann Lesli Wheeler, has filed a petition for writ of mandamus complaining about the trial court’s order denying her motion to transfer venue. We conditionally grant the petition for writ of mandamus.

Background

In 1997, the trial court entered a final decree of divorce between relator and the real party in interest, John Ingraham Wheeler III. Pursuant to the decree, relator and the real party in interest became the joint managing conservators of their two children, L.E.W. and L.L.W. The decree also gave relator the exclusive right to determine the residence of the children, but restricted relator’s choice to either Brazos or Harris County.

On March 25, 2004, the real party in interest filed a petition to modify matters affecting the parent-child relationship. Relator filed a general denial and also filed a counter-petition to modify matters affecting the parent-child relationship, asking the trial court to remove the domicile restriction. Attached to her motion to modify was a motion to transfer venue, which requested that venue be transferred from Harris County to Brazos County because L.L.W. lives in Brazos County.

On October 27, 2004, the trial court held a hearing on the motion to transfer venue. The court held that it had continuing jurisdiction over the case and that relator had previously ratified the court’s jurisdiction. The trial court denied the motion to transfer venue as to both children.

Here, relator seeks relief only in regard to L.L.W. Pursuant to section 155.201 of the Texas Family Code, relator argues that the trial court had a mandatory duty to transfer venue to Brazos County because L.L.W. has lived in Brazos County for the past seven years. See Tex. Fam. Code Ann. § 155.201 (Vernon 2002). On November 12, 2004, we stayed all proceedings in the trial court, pending our review of this original proceeding.

Analysis

Transferring a case to a county where the child has resided for more than six months is a mandatory ministerial duty under section 155.201 of the Texas Family Code. Proffer v. Yates, 734 S.W.2d 671, 673 (Tex.1987); Bollard v. Berchelmann, 921 S.W.2d 861, 863 (Tex.App.-San Antonio 1996, no writ); see Tex. Fam.Code Ann. § 155.201. An order transferring or refusing to transfer the proceeding is not subject to interlocutory appeal. Tex. Fam. Code Ann. § 155.204(e) (Vernon 2002). Therefore, mandamus is available to compel mandatory transfer in a suit affecting the parent-child relationship. Proffer, 734 S.W.2d at 672-73; In re Sanchez, 1 S.W.3d 912, 914 (Tex.App.-Waco 1999, orig. proceeding).

When a court renders a final divorce decree, it acquires continuing, exclusive jurisdiction over the matters in the decree affecting a child of the marriage. Tex. Fam.Code Ann. § 155.001(a) (Vernon 2002); In re G.R.M., 45 S.W.3d 764, 766 (Tex.App.-Fort Worth 2001, orig. proceeding). The court retains continuing, exclusive jurisdiction over the child unless jurisdiction has been transferred under sections 155.201 to 155.207 of the Texas Family Code or an emergency exists. See Tex. Fam.Code Ann. §§ 155.001(c), 155.002, 155.201-.207 (Vernon 2002); In re G.R.M., 45 S.W.3d at 766-67. Section 155.201 provides in pertinent part:

(b) If a suit to modify or a motion to enforce an order is filed in the court having continuing, exclusive jurisdiction of a suit, on the timely motion of a party the court shall transfer the proceeding to another county in this state if the child has resided in the other county for six months or longer.

Tex. Fam.Code Ann. § 155.201(b).

No one disputes that the trial court has continuing, exclusive jurisdiction over the case. The parties primarily dispute whether the trial court was required to transfer venue to Brazos County, where one child has been living for the past seven years, while another child has been living in Harris County for the past eight months.

In In re T.J.L., the Fourteenth Court of Appeals had an opportunity to address the same issue with which we are now presented. 97 S.W.3d 257 (Tex.App.-Houston [14th Dist.] 2002, orig. proceeding). The court of appeals noted, “The statute is not as clear as it could be on whether transfer as to one child is required when not all children of a marriage live in the county to which transfer is sought.” Id. at 264. The court of appeals concluded, after construing the purpose of the statute, that the Legislature intended for the trial court to determine continuing, exclusive jurisdiction on a child-by-child basis. Id. It reached this conclusion because the statute consistently refers to jurisdiction over the “child,” in the singular. Id.

The court of appeals also recognized that “the Legislature wanted matters affecting the parent-child relationship to be heard in the county where the child resides.” Id. (citing Cassidy v. Fuller, 568 S.W.2d 845, 847 (Tex.1978) (“[V]enue provision was enacted for the reason that current circumstances affecting the child may usually be best shown in the county where the child resides.”)). In addition, another section in the statute recognizes that the trial court can transfer venue for some, but not all, children to another court. See Tex. Fam.Code Ann. § 155.207(b) (Vernon 2002) (“If the transferring court retains jurisdiction of another child who was the subject of the suit, the clerk shall send a copy of the complete files to the court to which the transfer is made and shall keep the original files.”).

Thus, the court of appeals concluded, “[W]e construe the statute as requiring a court to transfer the proceedings affecting a child to the county where the child resides, even if it retains jurisdiction over another child of the marriage who does not live in the transferee county.” In re T.J.L., 97 S.W.3d at 264. The Waco Court of Appeals has held similarly. See Koether v. Morgan, 787 S.W.2d 582, 585 (Tex.App.-Waco 1990, orig. proceeding) (“The statute does not require that all the children who have been subject to a court of continuing, exclusive jurisdiction in a particular case must live in the county to which a transfer is being sought.”).

The real party in interest cites In re T.J.L., but does not distinguish its holding. After reviewing the statute, we agree with the Fourteenth Court of Appeals and conclude that a trial court has no discretion but to transfer venue as to one child if the child has been living in another county for at least six months prior to the proceedings and a controverting affidavit has not been filed in regard to that child.

Here, on June 8, 2004, relator filed a motion to transfer venue to Brazos County as to both of her children, even though L.E.W. had started to live with her father on February 1, 2004. Relator alleged that both children had been living with her since September 15, 1997. The real party in interest filed an answer and a controverting affidavit, but contested only the current residence of L.E.W. There was no disagreement regarding the residence of L.L.W.

Because the real party in interest filed no controverting affidavit regarding the residence of L.L.W., the trial court had a ministerial duty to sever and to transfer all proceedings pertaining to L.L.W. to Brazos County. See T.J.L., 97 S.W.3d at 265. Thus, the trial court’s denial of relator’s motion to transfer venue was an abuse of discretion.

The real party in interest also argues that the trial court could deny relator’s motion to transfer venue because it was untimely. The trial court stated, “the Motion to Transfer is not timely and we are going to go forward.”

Section 155.201 provides that, “if a suit to modify or a motion to enforce an order is filed in the court having continuing, exclusive jurisdiction of a suit, on the timely motion of a party the court shall transfer the proceedings to another county-” Tex. Fam.Code Ann. § 155.201. Section 155.204 provides, “Except as provided by Section 262.203, a motion to transfer by a petitioner or movant is timely if it is made at the time the initial pleadings are filed.” Tex. Fam.Code Ann. § 155.204 (Vernon 2002). Here, relator filed her motion to transfer venue contemporaneously with her counter-petition to modify matters affecting the parent-child relationship. By filing a motion to modify, relator is classified as a petitioner. See In re Simonek, 3 S.W.3d 285, 288 (Tex.App.Waco 1999, orig. proceeding). Thus, relator’s motion to transfer venue was timely filed if it was made at the time that her initial pleadings in her suit to modify were filed. Id,.; Tex. Fam.Code Ann. § 155.204. Initial pleadings refers to the first pleadings filed by that petitioner. In re Simonek, 3 S.W.3d at 288. Here, relator’s first pleadings in regard to modifying the parent-child relationship were her motion to modify and her motion to transfer venue. Because she filed her motion to transfer venue at the time that she filed her initial pleadings, relator’s motion to transfer venue was timely.

The real party in interest also argues that relator is not entitled to mandamus relief because the record does not contain a signed order from the trial court. We disagree. If a court’s order is adequately reflected in the reporter’s record, a formal written order is not essential to obtaining mandamus relief. In re Vernor, 94 S.W.3d 201, 206 n. 8 (Tex.App.-Austin 2002, orig. proceeding); see also Tex. R.App. P. 52.3(j)(l)(A). Because the record affirmatively reflects that the trial court denied the motion to transfer as to both children, a formal written order is not necessary.

Conclusion

We conditionally grant the petition for writ of mandamus. The writ will issue only if the trial court does not sever and transfer all proceedings pertaining to L.L.W. to Brazos County.

      . The Honorable Georgia Dempster, judge of the 308th District Court of Harris County, Texas. The underlying lawsuit is Wheeler v. Wheeler, No. 97-42617 (308th Dist. Ct., Harris County, Texas).

      . The real party in interest argues that relator’s request to transfer venue is only an attempt to forum shop. Although forum shopping is possible here, the statute alleviates this possibility because the transferee court acquires the power to enforce previous orders entered by the transferor court. Tex. Fam. Code Ann. § 155.206(c), (d) (Vernon 2002).


author: SHERRY RADACK, Chief Justice. TERRY JENNINGS, Justice,

text:
    Herbert Edward DAVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-00801-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 7, 2005.

      Crespin Michael Linton, Houston, for appellant.
    Shirley Cornelius, Assistant District Attorney-Harris County, Charles A. Rosen-thal, Jr., District Attorney-Harris County, Houston, for appellee.
    Originally submitted to panel consisting of Chief Justice RADACK and Justices KEYES and ALCALA.
   EN BANC OPINION

SHERRY RADACK, Chief Justice.

Herbert E. Davis, appellant, pleaded not guilty to aggravated robbery. The jury found him guilty and assessed punishment at 35 years’ confinement. In three points of error, appellant contends that (1) the evidence is legally insufficient to support his conviction; (2) the trial court erred in excluding the complainant’s civil court pleading; and (3) the trial court abused its discretion by denying him a mistrial. We affirm.

BACKGROUND

Jeffrey Dailey, complainant, planned to spend one week at the beginning of May 2002 at the Western Inn Motel as he prepared for his final examinations at the University of Houston Law School. On May 4, 2002, Dailey permitted an unknown female to enter his motel room after she asked to use his telephone. While in the room, the female telephoned someone and waited in complainant’s room until this person arrived. After Dailey released the door chain and answered the door, five to seven people entered the room. This group of people punched Dailey, kicked him, threw him on the bed, cut the telephone line in his room, and threatened to kill him with a knife. Dailey later testified that someone smoked crack cocaine during the robbery and that his assailants stole his car, college ring, watch, wallet, and money from his bank account after he gave them his PIN number. Soon, all of his assailants except appellant left Dailey’s motel room. Appellant held a pocket knife to Dailey’s throat and told him not to move. Appellant was masturbating and wearing a condom. After appellant fell asleep, Dailey quietly escaped the motel room and called 911 from the motel lobby. On May 5, 2002, at 1:52 a.m., Officer M. Romero responded to a robbery in progress. Romero met Dailey in the lobby. After Dailey told Romero his room number, Romero went to Dailey’s motel room and found appellant sleeping with a knife in his hand.

Appellant testified that while he was at the motel, he heard a male voice crying for help. Appellant saw Dailey lying naked and flat on his back on the floor of Dailey’s motel room. Appellant told Dailey that he would stay with him while someone else left to call 911. Appellant testified that as he placed Dailey on the bed, appellant became exhausted. Appellant testified that because he had not taken his second insulin shot that day, he passed out because of a glucose reaction. The first memory appellant has after passing out is being awakened by Officer Romero.

Legal Sufficiency of the Evidence

In his first point of error, appellant asserts that the evidence was legally insufficient to support his conviction. Specifically, appellant contends that the State failed to prove beyond a reasonable doubt that appellant committed the offense of aggravated robbery.

To establish the offense of aggravated robbery, the State had to prove that appellant (1) in the course of committing theft, (2) with intent to obtain and maintain control of property, (3) knowingly and intentionally, (4) threatened or placed another in fear of imminent bodily injury or death, and (5) then and there used or exhibited a deadly weapon. Tex. Pen.Code Ann. § 29.03(a) (Vernon 2003). A legal-sufficiency challenge requires us to determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000); Howley v. State, 943 S.W.2d 152, 155 (Tex.App.-Houston [1st Dist.] 1997, no pet.). As the exclusive judges of the facts, the jurors may believe or disbelieve all or any part of a witness’s testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App.1981).

Appellant contends that the evidence is legally insufficient to prove that he committed the offense of aggravated robbery because (1) appellant testified that he did not rob Dailey and had no information about the robbery; (2) Dailey is not credible because he filed a civil lawsuit against the Western Inn Motel; (3) evidence suggests that Dailey may have invented the robbery to hide his own questionable activity; and (4) Officer Romero testified that he did not find a “crack pipe” or any condoms in the motel room.

Appellant’s first three complaints ask us to circumvent the jury verdict by finding appellant more credible than Dailey. The jury, which heard testimony from appellant and Dailey, was in the best position to determine who was more credible based on their testimony and demeanor in court, and, on appeal, we will defer to the jury’s assessment of credibility under these circumstances. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App.1997).

At trial, the State presented the testimony of Jeffrey Dailey, the complainant, the only witness to the offense. Dailey testified that one of his assailants pulled out a knife with a three-to five-inch blade. Dai-ley testified that, upon pulling out the knife, “they told me they were going to kill me.” He also testified that, after they threatened to kill him with the knife, they stole his car, college ring, watch, and wallet.

Dailey identified appellant in court as part of the group of men and women who attacked and robbed him in his motel room. Dailey testified that appellant was in his motel room from the beginning of the attack. Dailey also testified that after the other assailants left, appellant stayed in the room and kept Dailey at knifepoint, telling him not to move. When asked whether he was sure the person who did this was appellant, Dailey responded, “Yeah, it’s him. I know that for a fact.”

Appellant’s fourth complaint asserts that Dailey is not credible because the physical evidence is inconsistent with his testimony. Dailey testified that someone smoked crack during the robbery, that appellant was masturbating after the other assailants left the room, and that appellant was wearing a condom. Although Officer Romero did not find a crack pipe or a condom in the motel room, Officer Romero testified that he did not conduct an extensive search of the motel room. To convict appellant for aggravated robbery, the State was not required to prove that appellant smoked crack, masturbated, or wore a condom. See Tex. Pen.Code Ann. § 29.03(a) (Vernon 2003). Any inconsistencies between Dailey’s testimony and Romero’s testimony would not render the evidence legally insufficient.

It is well established that a conviction may be based on the testimony of a single eyewitness. Aguilar v. State, 468 S.W.2d 75, 77 (Tex.Crim.App.1971); Lewis v. State, 126 S.W.3d 572, 575 (Tex.App.-Texarkana 2004, pet. ref'd). The determination of what weight to give testimonial evidence is within the sole province of the jury, as it turns on an evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. The jury is free to believe or disbelieve all or any part of the State’s witnesses’ testimony. Id. A court of appeals must show deference to such a jury finding. Id. at 409.

Viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found that appellant committed robbery while using or exhibiting a deadly weapon. Accordingly, we hold that the evidence was legally sufficient to support appellant’s conviction for aggravated robbery.

We overrule appellant’s first point of error.

Admissibility of Complainant’s Petition

In his second point of error, appellant contends the trial court abused its discretion by refusing to admit into evidence Dailey’s civil pleading filed in his civil lawsuit against the motel where the offense occurred. Appellant argues that he could not cross-examine Dailey about any inconsistencies between the civil pleading and his in-court testimony in the criminal case at bar. Appellant argues that Dailey’s pleading, which was made by Dailey’s attorney with Dailey’s authorization, is admissible as an admission of a party opponent under Texas Rule of Evidence 801(e)(2)(e). See Tex.R. Evid. 801(e)(2)(c).

We review the trial court’s determination of admissibility under an abuse-of-discretion standard. Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App.1990); Roberts v. State, 29 S.W.3d 596, 600 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). The trial court has wide discretion in determining the admissibility of evidence and its ruling will not be disturbed as long as it is “within the zone of reasonable disagreement.” Montgomery, 810 S.W.2d at 391. A trial court’s ruling will be upheld if reasonably supported by the record and correct on any theory of law applicable to the case. See Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App.2002).

When a party presents a trial court with a proffer of evidence containing both admissible and inadmissible statements, and the proponent of the evidence fails to segregate and specifically offer the admissible statements, the trial court may properly exclude all of the evidence. Sauceda v. State, 129 S.W.3d 116, 124 (Tex.Crim.App.2004); Willover, 70 S.W.3d at 847.

At trial, appellant twice attempted to introduce, in its entirety, Plaintiffs Original Petition from Dailey’s civil lawsuit against Western Inn Motel. The trial court twice sustained the State’s objections that the statements in the pleadings were hearsay because they were not the complaining witness’s statements. Appellant later made an oral offer of proof concerning the testimony to which appellant anticipated Dailey would provide in response to questions regarding possible inconsisten-des with his trial testimony and the pleading. After his offer of proof, appellant attempted to introduce the complainant’s pleading as non-hearsay statements made by an agent or a person authorized by a party-opponent under Texas Rule of Evidence 801(e)(2)(c) and (d), but the trial court -denied appellant’s request. Tex.R. Evid. 801(e)(2)(c), (d). The trial court stated that admitting Dailey’s civil pleading would violate his attorney-client privilege and, therefore, the court would sustain any objection concerning the admission of the pleading based on Rule 503 of the Texas Rules, of Evidence. Tex.R. Evid. 503.

Generally, hearsay is not admissible except as provided by statute or the rules of evidence. Tex.R. Evid. 802. Hearsay is generally defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex.R. Evid. 801(d). Appellant claims, on appeal, that Dailey’s pleading is not hearsay under rule 801’s definition because it is an admission by a party opponent under rule 801(e)(2). See Tex.R. Evid. 801(e)(2). By definition, a statement is not hearsay if the statement is offered against a party and is made by a person authorized by that party to make a statement concerning the subject. Tex.R. Evid. 801(e)(2)(c).

Rule 801(e)(2), which exempts admissions by a party opponent from the hearsay definition, recognizes that, “a party should not be allowed to exclude his own statement on the grounds that what he said was untrustworthy.” Bell v. State, 877 S.W.2d 21, 24 (Tex.App.-Dallas 1994, pet. ref'd). If a party to the suit made the statement, there should be no concern about the statement’s reliability despite the fact that it was made out of court. Id. When dealing with admissions, the concern is not about the reliability and trustworthiness of an out-of-court statement. Bell v. State, 877 S.W.2d 21, 24 (Tex.App.-Dallas 1994, pet. ref'd). Admissions are admitted because a party should not be allowed to exclude his own statement on the ground that what he said is untrustworthy. Id. at 24. When a party’s own out-of-court statement is offered against him, “it would be most incongruous to permit him to object to it by claiming that it is untrustworthy and should not be received because it was not given under oath, in the presence of the trier of fact, and subject to cross-examination.” Godwin v. State, 899 S.W.2d 387, 390 (Tex.App.-Houston [14th Dist.] 1995, pet. ref'd). A statement, to be considered as an admission, does not necessarily have to admit an element of an offense. Perkins v. State, 902 S.W.2d 88, 98 (Tex.App.-El Paso 1995, pet. ref'd).

The threshold issue is whether a complaining witness for the State can be a “party-opponent” in a criminal case under Texas Rule of Evidence 801(e)(2)(c). In Willover v. State, this Court held that statements of a complainant were admissions by a “party-opponent” in a criminal case and, as such, not hearsay. 38 S.W.3d 672, 676 (Tex.App.-Houston [1st Dist.] 2000), rev’d on other grounds, 70 S.W.3d 841 (Tex.Crim.App.2002). The Court of Criminal Appeals reversed this Court’s opinion on other grounds and found it “need not address the Court of Appeals holding that ‘when [Rule 801(e)(2) ] uses the term ‘admission by party-opponent,’ it includes those of the defendant and the complaining witness.’ ” Willover, 70 S.W.3d at 848 n. 10.

This Court’s holding in Willover has been criticized on the ground that the State, not the victim, is the party-opponent of the accused in a criminal proceeding. See, e.g., Logan v. State, 71 S.W.3d 865, 869 (Tex.App.-Fort Worth 2002, pet. ref'd). Since Willover, the Second Court of Appeals held in Logan v. State, contrary to this Court’s holding in Willover, that a statement by a victim or complainant in a criminal case is not admissible under rule 801(e)(2) as an admission by a party opponent. Id.

A complaining witness is a crime victim who has no control over what charges the State brings against an accused, who the State charges, and when the State brings the charges. Perhaps more importantly, the complainant has no authority over the disposition of the offense, whether charges are dismissed or pursued, or what sentence a defendant ultimately receives. The State may bring charges against a defendant even though the complaining witness declines to pursue the charges, refuses to testify at trial, or testifies on behalf of the defendant at trial. Similarly, a complaining witness’s desire that charges against a defendant be dropped has no legal effect on the State’s charges against a defendant. It is axiomatic that a party has the authority to pursue or not to pursue charges, and to resolve the charges with or without a trial. The party here is the State of Texas, not the complaining witness.

We now conclude that the complainant in a criminal prosecution is not a party within the meaning of rule 801(e)(2) and that we erred by holding to the contrary in Willover. We overrule Willover’s holding that a complaining witness is a party opponent. See Willover, 38 S.W.3d at 676. Because a statement by a complainant in a criminal case is not admissible under rule 801(e)(2), then a statement made by a person authorized by complainant to make a statement is not admissible under rule 801(e)(2)(c). We hold that the trial court properly sustained the State’s objection to appellant’s offer of Dailey’s civil pleading because the petition was not an admission of a party opponent under rule 801(e)(2)(c).

Because we find that Dailey’s civil pleading would contain inadmissible hearsay, we do not reach the issue of whether admission of the pleading would also be barred by the attorney-client privilege under rule 503.

We overrule appellant’s second point of error.

Motion for Mistrial

In his third point of error, appellant contends that the trial court abused its discretion by denying appellant’s motion for mistrial. Specifically, he alleges that the trial court improperly commented on the weight of the evidence in the presence of the jury. Appellant argues that the trial judge took an adversarial position against appellant in the presence of the jury and implied that appellant was engaging in unethical or illegal conduct when he told appellant, “You can’t do that,” after appellant asked a witness a question.

The standard of review for a trial court’s denial of a motion for mistrial is abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999). A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. See Sewell v. State, 696 S.W.2d 559, 560 (Tex.Crim.App.1983). Thus, a trial court may properly exercise its discretion to declare a mistrial if a verdict of conviction could be reached, but would have to be reversed on appeal due to an obvious procedural error in the trial. Id. The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case. Hernandez v. State, 805 S.W.2d 409, 413-414 (Tex.Crim.App.1990).

To preserve a complaint for appellate review, a defendant must make a timely, specific objection to the trial court. Tex.R.App. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 119 (Tex.Crim.App.1996). A party’s failure to object generally waives all error unless the statement is so prejudicial that no instruction could have cured the harm. Higdon v. State, 764 S.W.2d 308, 310 (Tex.App.-Houston [1st Dist.] 1988, pet. ref'd). The complaining party must object at the earliest possible opportunity and must obtain an adverse ruling. Dixon v. State, 2 S.W.3d 263, 265 (Tex.Crim.App.1998). The objection will be sufficient to preserve error for appellate review if the objection communicates to the trial judge what the objecting party wants, why the objecting party thinks himself or herself entitled to relief, and does so in a manner clear enough for the judge to understand the objection and request at a time when the trial court is in a position to do something about it. Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.1992).

Appellant claims the trial court commented on the weight of the evidence in the presence of the jury when it told appellant, “You can’t do that,” when appellant attempted to ask Dailey questions concerning Defendant’s Exhibit No. 10-A, a certified copy of Plaintiffs Original Petition pleading in Dailey’s civil lawsuit against the Western Inn Motel where the offense occurred.

The record reflects the following exchange at trial between the State and complainant Jeffrey Dailey:

[Defense counsel]: Let me stop you for a minute. You’re trying to be a lawyer?
[Complainant]: Yes, sir.
[Defense counsel]: Do you know how important it is to tell the truth?
(Looking at document)
[Complainant]: Yes, sir.
[Defense counsel]: And everything you told this jury has been the absolute truth?
[Complainant]: Yes, sir.
[Defense counsel]: Nothing have you lied about?
[Complainant]: Not one thing.
[Defense counsel]: And you didn’t lie to Mr. Ellis [attorney who drafted the original petition in Dailey’s civil lawsuit] either, did you?
[Complainant]: No, sir, I didn’t he to Mr. Ellis.
[Defense counsel]: So those two stories should be exactly the same?
[Complainant]: Yes.
[Defense counsel]: Okay. Did you tell them after approximately two hours of struggling with—
[Court]: Just a minute. Approach the bench, please. Bring it with you.

As the attorneys approached the bench, the trial court directed appellant to bring the document he was reading from and allegedly made the comment, “You can’t do that.” However, this comment is not reflected in the trial court record.

The next day, appellant complained of the trial judge’s alleged comment. Although the trial court and the prosecutor recalled that the comment was made outside the hearing distance of the jury after both attorneys had reached the bench, appellant insisted that the judge made the comment when the jury was still in the jury box. Appellant, nevertheless, informed the trial court of his intention to object in the presence of the jury and ask the court for an instruction to the jury to disregard the trial court’s comment. However, once the jury was again seated that day, no objection was made. Appellant did not object or ask for an instruction to disregard in the presence of the jury until the next morning, two days after the incident. At this time, the trial court instructed the jury to disregard the comment, but the court denied appellant’s subsequent motion for a mistrial.

Appellant’s trial objection was one day too late, and, thus, not timely because appellant did not object at the earliest possible opportunity. We hold appellant has failed to preserve error for appellate review of the trial court’s comment that occurred allegedly in the presence of the jury.

Accordingly, we overrule appellant’s third point of error.

CONCLUSION

We affirm the judgment of the trial court.

En banc consideration was requested, and a majority of the Court voted for en banc consideration of the panel’s decision.

En banc Court consists of Chief Justice RADACK and Justices TAFT, NUCHIA, JENNINGS, KEYES, ALCALA, HANKS, HIGLEY, and BLAND.

Justice JENNINGS, concurring to the en banc decision.

TERRY JENNINGS, Justice,

concurring.

Under the doctrine of stare decisis, we should overrule a previous holding of this Court only for very important reasons and after careful deliberation. After such deliberation, I agree with the en banc court that we should overrule this Court’s holding in Willover v. State, which extended Texas Rule of Evidence 801(e)(2) “party” status from law enforcement officials, who are agents of the State, to complaining witnesses, who are not.

The main purpose in excluding hearsay evidence is its inherent unreliability in assisting the fact finder in ascertaining the truth. There are essentially four “ ‘hearsay dangers’ — faulty perception, faulty memory, accidental miscommunication, and insincerity.” Olin Guy Wellborn III & Cathleen C. Herasimchuk, Article VIII: Hearsay, 30 Hous. L.Rev. 897, 898 (1993) (Texas Rules of Evidence Handbook) (emphasis added) (footnote omitted). We, therefore, exclude from evidence various statements not presented under controlled courtroom conditions.

An admission by a party opponent is not considered hearsay and is not excluded because “the party is ‘estopped’ from making the ironic claim that his own remarks are untrustworthy unless made under the ideal testimonial conditions.” Wellborn & Herasimchuk, Article VIII: Hearsay, 30 Hous. L.Rev. 897, 899 (emphasis added); see Godwin v. State, 899 S.W.2d 387, 390 (Tex.App.-Houston [14th Dist.] 1995, pet. ref'd).

In Willover, this Court concluded that the State is merely “technically” or “nominally” a party. 38 S.W.3d at 676. At first glance, it might appear that a complaining witness, like a plaintiff in a civil ease, would fit into this category of being a “party.” However, unlike in civil matters, in which a plaintiff and his agents are clearly parties with control over their litigation, a complaining witness is too often at the mercy of the criminal justice system.

Criminal cases are inherently different from civil eases. A party in a civil case has control over the case, but a complaining witness does not. A plaintiff can decide when and whom to hue as counsel and, with the advice of counsel who represents him, when and how to initiate a lawsuit or settle it. A plaintiff has the ability to give input and make decisions regarding the development, prosecution, and presentation of her case. A complaining witness in a criminal case simply does not have this control. In fact, crime victims are so different that the Legislature has statutorily enacted certain “Crime victims’ rights.” See Tex.Code CRiM. Peoc. Ann. art. 56.02 (Vernon Supp.2004-2005). Acknowledging the very weak position of crime victims in our criminal justice system, these basic rights include adequate protection, return of the victim’s property, and notice and information requirements. Id.

Criminal actions are brought “[i]n the name and by authority of the State of Texas.” TexCode CRiM. PROC. Ann. arts. 21.02, 21.21 (Vernon 1989). This is no mere legal fiction nor technicality. The prosecutor makes the charging decision, not the complaining witness. The prosecutor represents the State, not the complaining witness. Criminal cases are brought only after investigation by peace officers, prosecutors, and, in felony cases, grand juries, whose roles are clearly defined by statute. See Tex.Code Crim. PROC. Ann. arts. 2.01-2.26, 19.01-19.42, 20.01-20.22 (Vernon 1977 & Supp.2004-2005).

A complaining witness is neither an agent nor servant of the State, but simply a witness, who has absolutely no control over when and how a criminal case is brought and developed by the State. For example, sexual assault and family violence victims are often, unfortunately, very reluctant to come forward and initiate an investigation against a spouse, partner, parent or other relative. Often, these victims are compelled by the State to give statements against a person upon whom they completely depend. It would be incongruous to allow such statements into evidence as party opponent admissions when they are often made by very reluctant complainants under untrustworthy conditions.

Because the State, not the complaining witness, is in fact the party opponent of the accused and the complaining witness is not an agent of the State, I agree with the en banc court that out-of-court statements made by the complaining witness are not admissible against the State under Rule 801(e)(2). Owens v. State, 916 S.W.2d 713, 717-18 (Tex.App.-Waco 1996, no pet.); Halstead v. State, 891 S.W.2d 11, 12-13 n. 1 (Tex.App.-Austin 1994, no pet.); see 2A Steven Goode Et Al., Texas Practice: Courtroom Handbook on Texas Evidence 444 (2000). As I stated in my dissent from the denial of en banc review in Willover, this Court’s contrary holding was in serious error. 38 S.W.3d at 686. Accordingly, I further agree with the en banc court’s decision to overrule that holding.

      . Dailey's "Plaintiff's Original Petition,” although marked at trial and referred to in the appellate briefs as "Defendant’s Exhibit 10-A,” is not included in the record.

      . The State made the following objections to the trial testimony:
      [Defense counsel]: I believe you have testified that the very first time you read 'the pleadings was today, right?
      [Complainant]: No. I have seen the pleadings before in his office.
      [Defense counsel]: I said, "read.”
      [Complainant]: I still have not read it front to back. This morning I looked at it; and yes, I read some of it. But I have never read that front to back either this morning or a year and a half ago.
      [Defense counsel]: In your reading of it, did you determine whether or not—
      [State]: Your honor, I object to hearsay and relevance and improper impeachment.
      [Court]: Sustained.
      [Defense counsel]: I will offer State’s [sic] Exhibit 10[sic] and tender it to counsel.
      [State]: Your Honor, I object to Exhibit 10[sic], It is not the complaining witness' statement; and therefore, it’s hearsay.
      [Court]: Your objection is sustained. Defendant’s 10-A is not in.
      (Whereupon Defendant’s Exhibit 10-A was not admitted.)

      . Appellant made the following offer of proof:
      [Defense counsel]: Then may I make a proffer, an oral proffer, as to what I would anticipate he would say if I’m not going to be allowed to question the witness concerning the proffer?
      [Court]: Other than what [complainant] has said for two days of testimony?
      [Defense counsel]: Yes, sir.
      [Court]: Go ahead.
      [Defense counsel]: I believe that if I were to call Jeffrey Dailey and have him read the contents of State’s Exhibit 10[sic] and then question him concerning them, that he would admit there are inconsistent statements that are attributed to him at least, specifically in relation to whether or not he was ever unconscious during this episode, specifically as to whether or not there were several actual attempts to actually assault him; and I am saying “attempts” versus threats. He has testified to threats, but he testified to no actual attempt. That he would testify that those pleadings show that he repeatedly — well, that he saw these people, various ones, repeatedly smoking crack cocaine. May I have just a second, Judge. There is one more.
      (Pause)
      [Court]: Was there anything else?
      [Defense counsel]: Yes, Your Honor. Further that he would in response to my question as — in response to my question would answer that in Defense Exhibit 10[sic] he has alleged that these people actually attempted to murder him. I believe those things to be inconsistent statements, with what he has testified to before this jury.

      .The trial court explained its position as follows:
      Basically we were talking about Rule 503 as to attorney/client privilege; and the general rule is that a client has privilege to refuse to disclose and to prevent any other person from disclosing copies of communications made for the purpose of facilitating the rendition of professional legal services to the client between the client, for example, and his lawyer or representative lawyer. And I am ruling that the complainant can assert that at this stage if he chooses to do so.

      . Pleadings in a civil action that are inconsistent with a party’s position in another civil action are admissible as admissions of a party opponent. St. Paul Fire and Marine Ins. Co. v. Murphree, 163 Tex. 534, 357 S.W.2d 744, 747 (1962); Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 838 (Tex.App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.).

      . In dicta, the Court of Criminal Appeals went on to state;
      However, we note that the other Courts of Appeals in Texas that have considered the issue, have all reached the opposite conclusion. See, e.g., Owens v. State, 916 S.W.2d 713, 717-18 (Tex.App.-Waco 1996, no writ) ("The State, not the victim, is the party-opponent of the accused in a criminal proceeding.”); Halstead v. State, 891 S.W.2d 11, 12 n. 1 (Tex.App.-Austin 1994, no writ) ("[W]e conclude that the complainant in a criminal prosecution is not a party within the meaning of Rule 801(e)(2)”). Those decisions are in line with the majority of other jurisdictions who have considered the issue. See, e.g., Goodson v. State, 566 So.2d 1142, 1148 n. 11 (Miss.1990) (Because the victim is not a party opponent within the meaning- of Rule 801(d)(2), the victims statements may not be received into evidence as an admission.); State v. Antillon, 229 Neb. 348, 426 N.W.2d 533, 538 (1988) ("[I]t is clear that the victim-witness, did not meet the legal definition of party to the case. His role in the action was not to bring or defend against charges, but merely to provide testimony about the allegations. As such, he was not a party-opponent. ...”), superceded by statute on other grounds as stated in State v. Andersen, 232 Neb. 187, 440 N.W.2d 203 (1989); People v. Deskin, 60 Ill.App.3d 476, 17 Ill.Dec. 757, 376 N.E.2d 1086, 1090 (1978) ("In a criminal case, the party opponent to the defendant is the People of the State of Illinois. The victim, though also a complainant, is merely another witness.”).

      . Appellant’s first objection, which was made the day after the comment was allegedly made, was as follows:
      [Defense counsel]: And I will tell you that, “You can’t do that,” did not make it into the record.
      [Court]: I remember I said that after we were up here outside the hearing of the jury.
      [Defense counsel]: Judge, I will tell you why. I was in — I was in mid step about right here when you said that, and I was extremely surprised. And that’s the reason I remember it, and I will tell you it is not in the record.

      . The day after his objection to the trial court, appellant objected in the presence of the jury:
      [Defense counsel]: I object to a comment on the weight of the evidence that the Court made at the close of evidence on Tuesday that I brought to the Court’s attention first thing Wednesday morning, in which I'm asking the Court to instruct the jury to disregard the Court’s statements and actions in calling me to the bench at that point in time and anything the Court said in regard to that in the presence of the jury. [Court]: Since you are referring to something that occurred two days ago, are you asking me to refresh the jury’s memory as to exactly what the words were that were said, which I will do if you're asking.
      [Defense counsel]: No, Judge, I — something occurred that I believe the jury should not know about it. I would ask that they disregard it. I would seem to be shooting myself in the foot to re-ring the bell, so to speak, by telling them what it was.
      [Court]: I’m just trying to figure out how the jury is going to try to remember what the last—
      [Defense counsel]: Simply, Judge, instruct them.
      [Court]: — words that were said on Tuesday afternoon. This being Thursday and all.
      [Defense counsel]: If they do remember, please instruct them to disregard it. If they don’t, it wouldn't be a problem.

      . 38 S.W.3d 672 (Tex.App.-Houston [1st Dist.] 2000), rev’d, 70 S.W.3d 841 (Tex.Crim.App.2002).

      . Tex.R. Evid. 801(e)(2).