author: TERRIE LIVINGSTON, Justice.

text:
    In the Interest of A.S.M., a Child.
    No. 2-04-387-CV.
    Court of Appeals of Texas, Fort Worth.
    Aug. 18, 2005.

      Gregory Pitts, Fort Worth, TX, for Appellant.
    Harris & Cook, L.L.P., David L. Cook, Chris Harris, Arlington, TX, for Appellee.
    Panel B: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

Appellant Linda Sue M. appeals from the trial court’s orders denying and dismissing her petition to modify the parent-child relationship and awarding appellee attorney’s fees as sanctions because she did not file the affidavit described in family code section 156.102. In three issues, appellant contends that the ^rial court should not have required her to file an affidavit or, in the alternative, should have abated her suit rather than dismiss it, that the trial court abused its discretion in imposing sanctions against her, and that the evidence does not support the reasonableness and necessity of the $5,000 attorney’s fees award. We affirm.

On October 31, 2003, the trial court entered an Agreed Order in Suit to Modify Parent-Child Relationship between appellant and the child’s father, appellee Gerardo M., Jr., naming appellant and appellee as joint managing conservators of A.S.M. The order designated appellant as the parent with the exclusive right to determine the primary residence of the child but restricted the area in which the child could reside to Tarrant County, Texas and contiguous counties. On December 29, 2003, appellant filed a First Amended Petition to Modify the ParenWChild Relationship, requesting that the part of the agreed order restricting the child’s domicile to Tarrant County, Texas or contiguous counties be removed. On January 13, 2004, appellee filed a counter-petition to modify, in which he alleged that appellant’s petition was groundless and brought in bad faith and for the sole purpose of harassment because it was barred by res judicata. He also filed an answer on the same date, asking the trial court to refuse to go forward on appellant’s petition because she had not attached the affidavit described in family code section 156.102.

On April 7, 2004, the trial court held a preliminary hearing and entered temporary orders sending the parties to counseling. That same day, the trial court ruled on the parties’ joint motion to refer the case to the associate judge for trial and set the trial for July 1, 2004. On July 1, the parties appeared for trial, and the trial court took judicial notice of its file. The trial court found that appellant’s case should be dismissed because she did not file the section 156.102 affidavit. Thus, the trial court did not rule on the merits of either party’s petitions. The trial court further found that appellant’s petition was groundless, filed in bad faith, and brought for the sole purpose of harassment. Accordingly, the trial court awarded appellee $5,000 in attorney’s fees as sanctions.

At appellant’s request, the trial court filed findings of fact and conclusions of law. The trial court found that

5. [Appellant] did not execute and attach an affidavit to her First Amended Petition as provided by Tex. Fam.Code § 156.102(b).
13. When the case was called to trial ... [appellant] still had not filed the affidavit required by Tex. Fam. Code § 156.102(b).
14. The uncontroverted evidence shows that due to the actions of [appellant], [appellee] incurred reasonable and necessary attorney’s fees in an amount in excess of $5,000.00.

Based on these findings, the trial court concluded that

1. The Agreed Order was res judicata of the child’s best interests as of October 31, 2003.
3. The ... First Amended Petition sought to modify the designation of the person having the exclusive right to designate the primary residence of the child the subject of this suit.
4. [Appellant] was required to execute and attach an affidavit to her First Amended Petition[] as provided by Tex. Fam.Code § 156.102(b).
5. [Appellant] failed to execute and attach an affidavit to her First Amended Petition as provided by Tex. Fam.Code § 156.102(b).
6. The Court was therefore required to deny the relief sought by [appellant] without a hearing.
8. The filing of [appellant’s] ... First Amended Petition ... less than two months after the “Agreed Order in Suit to Modify Parent^Child Relationship” was signed on October 31, 2003, coupled with [appellant’s] failure to comply with Tex. Fam.Code § 156.102(b) showed that her ... First Amended Petition [was] filed in bad faith, [was] groundless and [was] brought for the sole purpose of harassment. [Appellant’s] prosecution of her suit despite her complete failure to comply with the provisions of Tex. Fam.Code § 156.102(b) warranted sanctions.
9. [Appellee] is entitled to an award of reasonable and necessary attorney’s fees in the amount of $5,000.00.

In her first issue, appellant challenges the trial court’s conclusion that she was required to file a section 156.102 affidavit with her petition. We review conclusions of law de novo. Simmons v. Kuzmich, 166 S.W.3d 342, 346 (Tex.App.-Fort Worth 2005, no pet.); see Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998) (citing cases holding that legal questions subject to de novo review), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999).

Subsection (a) of family code section 156.102, which is entitled “Modification of Exclusive Right to Determine Primary Residence of Child Within One Year of Order,” provides that

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

Tex. Fam.Code Ann. § 156.102(a). Subsection (b) requires that the affidavit contain, along with supporting allegations, at least one of the following allegations:

(1) that the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development;
(2) that the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interest of the child; or
(3) that the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least six months and the modification is in the best interest of the child.

Id. § 156.102(b). The only allegations that could be applicable to the facts of this case are (1) and (2). A trial court must deny the relief sought and refuse to schedule a hearing on the suit unless the court determines that the affidavit alleges adequate facts to support one or more of the allegations set forth in subsection (b). Id. § 156.102(c). Thus, in the absence of an affidavit, or if the petitioner has attached an affidavit that does not meet the requirements of section 156.102(b) and (c), the trial court should refuse to hear the merits of the matter.

The Dallas court of appeals has determined that the plain language of section 156.102(a) shows that the affidavit requirement applies only to suits “seeking to modify the designation of a person having the exclusive right to determine the primary residence of a child.” Ellason v. Ellason, 162 S.W.3d 888, 886 (Tex.App.-Dallas 2005, no pet.) (holding that section 156.102 did not apply to suit seeking to name parent as person with exclusive right to determine primary residence of child because order gave both parents joint right to determine primary residence of child); In re R.C.S., 167 S.W.3d 145, 148 (Tex.App.-Dallas, 2005, no pet. h.) (same, but order did not designate anyone as person with exclusive right to determine child’s primary residence). Appellee contends that “[t]he removal of a geographic domicile restriction is [also] a modification of the ‘designation of the person having the right to designate the primary residence of the child.’ ” Thus, we must determine whether appellant’s suit seeking to modify or remove the geographical restriction constitutes a “suit seeking to modify the designation of the person having the exclusive right to designate the primary residence of a child.” Tex. Fam.Code Ann. § 156.102(a) (emphasis added).

In determining whether section 156.102 applies to this situation, we may consider, among other things, the “object sought to be attained” by the statute and the “consequences of a particular construction” even if the wording of section 156.102(a) is unambiguous. Tex. Gov’t Code Ann. § 311.023 (Vernon 2005); In re J.A.B., 13 S.W.3d 813, 816 (Tex.App.-Fort Worth 2000, no pet.). Construction of a statute must be consistent with its underlying purposes and the policies it promotes. Northwestern Nat’l County Mut. Ins. Co. v. Rodriguez, 18 S.W.3d 718, 721 (Tex.App.-San Antonio 2000, pet. denied).

Texas’s public policy for all suits affecting the parent-child relationship is set forth in the family code. Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex.2002); see Tex. Fam. Code Ann. § 153.001(a) (Vernon 2002); In re E.S.S., 131 S.W.3d 632, 640-41 (Tex.App.-Fort Worth 2004, no pet.) (relying on public policy set forth in section 153.001(a) in determining whether agreement between parties in involuntary parental rights termination case violated public policy). Section 153.001(a) provides that (a) The public policy of this state is to[ ]

(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
(2) provide a safe, stable, and nonviolent environment for the child; and
(3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

Tex. Fam.Code Ann. § 153.001(a). The family code further provides that in determining conservatorship, possession, and access issues, the primary consideration of the court must always be the best interest of the child. Id. § 153.002. The purpose of section 156.102 in particular is to “promote stability in the conservatorship of children by preventing the re-litigation of custodial issues within a short period of time after the custody order is entered.” R.C.S., at 148.

The Waco court of appeals considered whether section 156.102(a) applies to a suit seeking to impose a geographical restriction on the designation of the parent having the exclusive right to determine the primary residence of two children. See In re AC.S., 157 S.W.3d 9, 17-19 (Tex.App.Waco 2004, no pet.). In A.C.S., an agreed divorce decree named the joint managing conservator mother as the parent with the exclusive right to determine the children’s primary residence with no geographical restrictions. Id. at 13. Six months after entry of the agreed decree, the joint managing conservator father sought to restrict the children’s residence to Brazos County or contiguous counties. Id. The Waco court of appeals determined that “[b]e-cause [father] sought a significant geographical narrowing of the terms under which [mother] could designate the children’s primary residence, ... he sought a modification of the designation” and, therefore, section 156.102 applied. Id. at 18. Thus, the Waco court has interpreted the provision broadly, to include not only a suit seeking to change the person with the exclusive right to determine a child’s primary residence, but also a suit seeking to change the scope, or terms, of the then-existing designation without changing the identity of the person.

We believe that this interpretation of section 156.102(a) is consistent with the underlying purposes of the statute and the public policy applicable to suits affecting the parent-child relationship in general. See Tex. Fam.Code Ann. §§ 153.001(a), 153.002; R.C.S., 167 S.W.3d at 148. Thus, we hold that a suit seeking to eliminate or modify the terms of a geographical restriction on a person having the exclusive right to determine a child’s primary residence is a “suit seeking to modify the designation of the person having the exclusive right to designate the primary residence of a child” for purposes of section 156.102(a).

Here, appellant, as the person with the exclusive right to determine A.S.M.’s primary residence, was required to file a section 156.102 affidavit when she filed her original and first amended petitions seeking to eliminate the geographical restriction. See Tex. Fam.Code Ann. § 156.102(a). She did not file an affidavit with her original or first amended petitions, nor did she attempt to file one at any time during the trial court proceedings even though appel-lee alleged in his answer that she had failed to do so. Additionally, appellant did not introduce any evidence at the July 1 hearing that would have fulfilled the requirements of the affidavit. See Tex. Fam. Code Ann. § 156.102(b); A.C.S., 157 S.W.3d at 18-19 (holding that although appellant failed to file affidavit, failure was harmless because appellant introduced evidence supporting allegation required to be included in affidavit); see also In re J.R.D., 169 S.W.3d 740, 742 (Tex.App.-Austin, 2005, no pet. h.) (reviewing trial court’s modification order after trial on merits under abuse of discretion standard); Franco v. Franco, 81 S.W.3d 319, 332 (Tex.App.-El Paso 2002, no pet.) (reviewing trial court’s order removing domicile restriction of children after trial on merits for abuse of discretion); In re C.R.O., 96 S.W.3d 442, 446 (Tex.App.-Amarillo 2002, pet. denied) (reviewing trial court’s order imposing domicile restriction after trial on merits for abuse of discretion). Thus, the trial court did not err in concluding that appellant was required to file the affidavit required by section 156.102 and dismissing her suit on that basis. Tex. Fam.Code Ann. § 156.102(c). We overrule appellant’s first issue.

Appellant’s second issue challenges the propriety of the trial court’s sanctions order on the grounds that appellee failed to prove that sanctions were warranted under Tex.R. Civ. P. 13 and that the trial court’s interpretation of section 156.102 was erroneous.

We initially note that the trial court was authorized to tax attorney’s fees against appellant as costs under family code section 156.005 because it found that appellant’s suit was brought for the sole purpose of harassment. Tex. Fam.Code Ann. § 156.005 (providing that trial court shall tax attorney’s fees as costs if it determines that a party’s modification suit was designed to harass a party); In re D.R. v. J.A.R., 894 S.W.2d 91, 96 (Tex.App.-Fort Worth 1995, writ denied) (op. on reh’g) (holding under former version of section 156.005 that trial court has discretion to award attorney’s fees but if it does so, then it must award them as costs); Stashak, v. Stashak, No. 14-02-00700-CV, 2003 WL 21230406, at *3 (Tex.App.-Houston [14th Dist.] May 29, 2003, no pet.) (mem.op.) (upholding trial court’s award of attorney’s fees under section 156.005 as sanctions for failure to file section 156.102 affidavit in custody modification suit). But the judgment does not tax the attorney’s fees as costs; instead, it is clear from the judgment and the trial court’s findings of fact and conclusions of law that it awarded the attorney’s fees as sanctions under rule 13. Tex.R. Civ. P. 13. Although appellee’s petition asked for reasonable attorney’s fees to be taxed as costs, it also specifically requested sanctions under rule 13 on the grounds that appellant’s petition was groundless and brought in bad faith and for the sole purpose of harassment. The trial court’s conclusions of law refer to the attorney’s fees award as a sanction rather than a cost and specifically concludes that appellant’s petition was groundless and brought in bad faith and for the sole purpose of harassment. Thus, we will review whether the trial court’s sanctions award was proper under rule 13.

We review a trial court’s determination to impose sanctions under an abuse of discretion standard. GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 730-32 (Tex.1993) (orig.proceeding); Ball v. Rao, 48 S.W.3d 332, 338 (Tex.App.-Fort Worth 2001, pet. denied). To determine whether the trial court abused its discretion, we examine whether it acted without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986); Ball, 48 S.W.3d at 338. We should only overturn a trial court’s conclusion if it is based on an erroneous view of the law or a clearly erroneous assessment of the evidence. Ball, 48 S.W.3d at 338; Stites v. Gillum, 872 S.W.2d 786, 788 (Tex.App.-Fort Worth 1994, writ denied). There is no abuse of discretion if some evidence of substantive and probative character supports the trial court’s decision or if the evidence is conflicting. Prevost v. Ins. Advisors of Tex., Inc., 46 S.W.3d 289, 292 (Tex.App.-Fort Worth 2001, pet. denied).

Rule 13 provides that a party may seek sanctions against a party or counsel or both if the court determines that any pleading or motion is groundless and brought either in bad faith or for the purpose of harassment. Tex.R. Civ. P. 13. A pleading is groundless if it has “no basis in law or fact and [is] not warranted by good faith argument for the extension, modification, or reversal of existing law.” Id. Courts are to presume that pleadings and motions are filed in good faith, and sanctions should not be imposed except for “good cause, the particulars of which must be stated in the sanction order.” Id.; Ball, 48 S.W.3d at 338.

Here the record shows that appellant filed suit barely a month after the trial court entered an agreed order containing the restriction she complained of. Appellant offered no evidence whatsoever to support the statement in her petition that changed circumstances warranted the elimination of the restriction and that the elimination of the restriction would be in the best interest of the child. In fact, appellant continued to argue that the affidavit was not necessary even after appel-lee filed his answer raising the issue. Furthermore, appellee testified that appellant had in the past failed to abide by a previous agreed order that required appellant to return A.S.M. to Tarrant County after moving to Illinois. The trial court’s find-mgs of fact and conclusions of law clearly state that appellant’s failure to file the affidavit even after having such failure called to her attention warranted the sanctions award. Based on the foregoing, we hold that the trial court did not abuse its discretion in awarding sanctions under rule 13. Tex.R. Civ. P. 13; see Stashak, 2003 WL 21230406, at *1, 3. We overrule appellant’s second issue.

In her third issue, appellant contends that there is no evidence to support the trial court’s award of $5,000 in attorney’s fees because there is no expert testimony that the fees appellee testified he incurred were reasonable and necessary. But proof of the necessity or reasonableness of attorney’s fees is not required when the fees are assessed as sanctions. JHC Ventures, L.P. v. Fast Trucking, Inc., 94 S.W.3d 762, 778 (Tex.App.-San Antonio 2002, no pet.); Stites, 872 S.W.2d at 797. Instead, the amount of attorney’s fees awarded as sanctions is within the sound discretion of the trial court. JHC Ventures, 94 S.W.3d at 778. Here, appellee testified that he had incurred over $5,000 in attorney’s fees in defending against appellant’s suit. Thus, we conclude that the evidence supports the attorney’s fees award. See id. We overrule appellant’s third issue.

Having overruled appellant’s issues, we affirm the trial court’s judgment.

      . Tex. Fam.Code Ann. § 156.102 (Vernon Supp. 2004-05). This section requires that a person seeking modification of the designation of the person with the exclusive right to determine the primary residence of a child file an affidavit alleging, along with supporting facts, at least one of the following:
      (1) that the child’s present environment may endanger the child's physical health or significantly impair the child’s emotional development;
      (2) that the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interest of the child; or
      (3) that the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least six months and the modification is in the best interest of the child,
      if the suit is filed within one year after the earlier of the date of the rendition of the order [in which the designation is made] or the date of the signing of a mediated or collaborative law settlement agreement on which the order is based. Id. § 156.102(a), (b).

      . Although a copy of appellant’s original petition is not in the record, the trial court’s findings of fact state that it was filed December 2, 2003.

      . Appellee conditioned his request for modification of the decree on the trial court's granting appellant’s requested relief. In other words, if the trial court agreed that appellant's petition should be dismissed because she did not attach the section 156.102 affidavit, then appellee did not wish for the decree to be modified in any way.

      . The Code Construction Act is applicable to the family code. See Tex. Gov't Code Ann. § 311.002; Vasquez v. State, 739 S.W.2d 37, 43 (Tex.Crim.App.1987); In re A.M., 101 S.W.3d 480, 484 (Tex.App.-Corpus Christi 2002, pet. filed).

      . See also Burkhart v. Burkhart, 960 S.W.2d 321, 323 (Tex.App.-Houston [1st Dist.] 1997, pet. denied) (construing former version of section 156.102, which applied to suits seeking to modify sole managing conservatorship, and explaining that Texas public policy regarding the modification of custody arrangements "disfavors disruption of custodial arrangements within the first year, except in cases in which the child’s physical health or emotional development is imperiled”); Mobley v. Mobley, 684 S.W.2d 226, 229 (Tex.App.-Fort Worth 1985, writ dism’d).

      . Appellant attempts to draw a distinction between a suit seeking to eliminate a restriction and a suit seeking to impose a restriction, but we do not believe there to be any meaningful distinction between the two. Granting relief in either situation has the potential to disrupt the status quo of the child's living arrangements, a result that Texas public policy attempts to avoid except in cases in which the child’s physical or emotional health is in danger. See Tex. Fam.Code Ann. § 153.001; R.C.S., 167 S.W.3d at 148; Burkhart, 960 S.W.2d at 323; Mobley, 684 S.W.2d at 229.

      . Appellant's statement of her first issue includes the contention that the trial court should have abated rather than denied and dismissed her suit, but appellant did not brief this issue; therefore, it is waived. See Shelton v. Sargent, 144 S.W.3d 113, 119 (Tex.App.Fort Worth 2004, pets, denied) (waiving point on appeal for failure to cite authority).

      . Instead of holding appellant in contempt, the trial court clarified the prior agreed order.

      . Although the trial court’s findings of fact and conclusions of law reference “reasonable and necessary” attorney’s fees, it is clear that the award of attorney’s fees constitutes sanctions for appellant's actions.


source: Caselaw Access Project

author: LEE ANN DAUPHINOT, Justice.

license: Public Domain

text:
    In the Interest of W.M. and A.S., Children.
    No. 2-04-172-CV.
    Court of Appeals of Texas, Fort Worth.
    Aug. 18, 2005.

      David A. Pearson, IV, Fort Worth, for Appellant.
    Tim Curry, Criminal Dist. Atty., Charles M. Mallin, David M. Curl, Anne Swenson, James Teel and Clifford Bronson, Asst. Criminal Dist. Attys., Fort Worth, for Ap-pellee.
    Panel F: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
   OPINION

LEE ANN DAUPHINOT, Justice.

After a bench trial, the trial court terminated the parental rights of W.M. and A.S.’s birthparents, denied the requested relief of the intervening foster parents and Appellants Wesley and Sandra S., the intervening maternal grandparents, and gave the Texas Department of Family and Protective Services (“TDFPS”) permanent managing conservatorship (“PMC”) of the children. In two points, the grandparents contend that the evidence is factually insufficient to show that awarding TDFPS PMC of the child W.M. is in the child’s best interest and that the trial court abused its discretion in denying them grandparent access to the children. Because we hold that the trial court did not abuse its discretion, we affirm the trial court’s judgment.

BACKGROUND FACTS

W.M. was born on August 23, 2001, while his parents were living with the grandparents. About one month after his birth, the child was removed from his parents by TDFPS because his legs had been broken and his esophagus had been torn. W.M.’s mother, Crystal, admitted that she had caused the injuries and was later convicted. Wesley’s testimony indicates some denial or minimizing of his daughter Crystal’s responsibility for W.M.’s injuries:

Q. Now, can you tell the Court what your understanding is of what kinds of injuries W.M. received? Like, was it broken bones? Was it bruising?
Tell the Court what it is your understanding is—
A. Well, my understanding was it was just stress fractures to his little legs.
Q. When you say “just stress fractures,” what do you mean by that?
A. Well, to his little legs. That’s all I know.
Q. Now, ultimately, your daughter was convicted of causing the injuries to W.M.; is that correct?
A. Yes, sir.
Q. Now, you have had many opportunities to talk to your daughter Crystal about what happened to cause the injuries to W.M., haven’t you?
A. Uh-huh.
Q. And she’s told you what her version of events is regarding the injury to W.M., hasn’t she?
A. Uh-huh.
Q. What has she told you?
A. Well, that she was tired and she might have hurt his legs when she went to change his diaper, or she doesn’t really know what happened.
Q. And has that been her story pretty much consistently since the date of the removal?
A. Pretty much.
Q. When you say “pretty much,” have there been changes in her position?
A. Well, she did say one time that he fell off the bed. She had went to get medicine for him and left him at home with Lee. That was the weekend we were out of town.
Q. What do you think caused the injuries?
A. Well, I have no idea.
Q. Have you ever told anyone you feel that — that it was Lee M ... who actually caused the injuries?
A. Yes.
Q. And why did you tell people that? Is that because that’s what you feel?
A. Well, because he had an anger problem.
Q.So your understanding of the injuries that W.M. received that resulted in his removal in September of 2001 was that he had two breaks to his leg? Is that your understanding?
A. No. I was understanding they weren’t broke, they were just fractures.
Q. So your description is not breaks, but fractures?
A. Yes.
Q. So do you think the injuries to W.M. were serious?
A. Well, at that time, I didn’t know. Q. Well, now what is your position? A. No.
Q. Not really?
A. Not really.
Q. Okay. Now, your daughter had been convicted for those injuries, correct?
A. Yes, sir.
Q. And she received a 12-year sentence; is that right?
A. Yes, sir.
Q. Now, she did not plead guilty to injuring the child; is that correct?
A. Right.
Q. She had a trial on that?
A. Right.
Q. Now, do you feel that — that your daughter intentionally hurt W.M.?
A. Not intentionally, no.
Q. Do you think that she accidentally hurt him?
A. Yes.
Q. Now, since — I’m not going to argue with your — what you believe? All right?
So since you believe that her — that the injuries that she caused to W.M. were accidental, do you think that— that she can learn to properly parent, since the only injuries that she caused were accidental?
A. Yes. Eventually, yes.
Q. And do you think she has pretty much learned her lesson?
A. Yeah, I think she has.
Q. And so when she is released from prison, you think that at that point she probably would be able to properly parent, since she has learned her lesson and since it was an accidental injury?
A. No, not at that time. I think she needs to take parenting classes and some more classes and learn a little bit more about children.
Q. And so when she is released from prison, if she would take some parenting classes, which could take a couple months, you feel that she would probably be in a position where she could properly parent?
A. Probably.
Q. Okay. And so she’s eligible on a yearly basis to ask for parole; is that correct?
A. That’s the way I understand it.
Q. Could be eligible for parole in a year, right?
A. Yes.
Q. Okay. How do you believe that the fractures to W.M.’s legs occurred? What do you think your daughter actually did?
Do you think it was a diaper changing, or do you think she was frustrated and tugged on his legs?
A.I don’t know how she did it.
Q. And you have asked her how she injured W.M., right?
A. No, really, I haven’t talked to her about it. She got convicted of it, and I dropped it. I haven’t said no more to her about it.
Q. If you were to be given custody of W.M., do you think that it would be important for you to develop, as best you can, a relationship between W.M. and his mother?
Do you think that’s important for W.M.?
A. No. Not right now, no.
Q. Well, when? When you say “not right now,” do you feel that at some point it would be important for you to develop the parent/child relationship, as best you can, between Crystal and W.M.?
A. Well, I don’t feel like that’s going to happen until she gets completely off her sentence.
Q. But, at that point, when she is completely off of her sentence, you feel that it would be important to develop a relationship between the two or not?
A. Well, no, not really, because she will have been away from him too long. He is not going to know her as his mother.
Q. If you were to be given custody of W.M., what would your opinion be on whether or not you should take W.M. to [the penitentiary] to visit with his mother?
A. That would be up to the Court. If the Court tells me no, then it ain’t gonna happen.
Q. Well, what — I’m asking you [is] what you think would be appropriate.
A. I don’t think so.

The grandparents did not find out until W.M.’s removal from his parents that his father, Lee, had a prior conviction for injuring one of his older children. They did, however, already know that he was on probation and had anger control problems.

TDFPS placed W.M. with the grandparents about two weeks after his removal, when he was six weeks old. Approximately five or six months later, the trial court awarded the grandparents PMC of W.M. During that placement, TDFPS visits revealed that W.M. had his own room, plenty of toys, a playpen, a swing, and other appropriate accessories. The home was clean and appropriate for the baby. The visiting caseworker, Dawn Adkins, testified that Wesley was very nurturing with W.M. She also testified that W.M. had had reflux early in life and that Wesley sought appropriate medical care. Finally, she testified that the grandparents were appropriate in their feelings that Crystal had injured W.M.

A.S. was born in July 2002, severely premature. She had retinal hemorrhaging, an enlarged heart, and lung problems. In mid-October, she was released from the hospital, and TDFPS placed her in the grandparents’ care. She required a heart and apnea monitor, and hospital staff trained the grandparents in its use before releasing A.S. into their care. In their training, the grandparents were told to seek immediate medical attention if the monitor sounded more than once. On October 28, 2002, the monitor sounded twice. Sandra called Wesley, who had just left the house. He returned, and they took the baby to the hospital, which was ten minutes away. Sandra testified that she did not call 911 because she knew from experience that she and her husband could get the baby to the hospital faster than the ambulance.

While A.S. was in the hospital, additional retinal hemorrhaging was discovered. Based on this single clue, TDFPS suspected shaken baby syndrome and would not allow A.S. to return to the grandparents’ home. The doctors disagreed about the cause of the hemorrhaging, with one believing that it could have been caused by shaken baby syndrome and others believing it was caused by the premature birth. After leaving the hospital in early November 2002, A.S. was placed in a dual-licensed foster home, that is, a home in which the parents wanted both to foster and to adopt children. While with the foster parents, A.S. had two-hour monthly visits with her grandparents. At trial, one of the caseworkers, Lashika Christmas, admitted that TDFPS no longer had concerns of shaken baby syndrome by the time of trial. CPS supervisor Kim Caraway, however, testified that she could not state whether A.S. was shaken or not, but she did admit that there is a lack of evidence necessary to establish that the baby was shaken.

Regarding the placement of W.M. from November 2002, the foster mother testified, “Actually, when I got the call for A.S. about her being [a] shaken baby, I was told that she had a sibling and that he would be coming to our home as well.” TDFPS removed W.M. from the grandparents’ home in early November 2002, after he had been with them continuously for about fifteen months. TDFPS placed him in a non-relative placement for a couple of days and then placed him with Wesley’s mother, Nadine, with whom he lived for about nine months. The grandparents were allowed to visit W.M. at Nadine’s house as long as she agreed and supervised. Wesley visited almost daily; Sandra, who worked daily during the week, visited on weekends.

TDFPS caseworker Lashika Christmas testified that she did not observe W.M. while he was with the grandparents, but she did observe him with Nadine. He appeared to be fine, clean, appropriately dressed, and healthy. Her concerns with the placement were safety hazards in the backyard and Nadine’s age. She also testified that she had protection concerns because Nadine stated that her family was loving, that her family would not harm children, that Crystal had not harmed W.M., and that no one had harmed A.S. W.M. was removed from Nadine in August 2003 and placed in the same foster home as A.S.

After TDFPS removed W.M. from his great-grandmother’s home, TDFPS decided to evaluate him. The evaluations showed that he was developmentally delayed by nine to ten months. Sandra testified that she knew that Nadine’s home was not a stimulating environment for W.M.

The foster mother testified that when W.M. arrived at her home at almost two years of age, he did not appear to know how to use silverware and would not follow simple commands. She also claimed that he only knew five words when he came into her care. Significantly, one of the five words was Paw-Paw, the name he used for Wesley. Wesley testified that he did not believe that W.M. was developmentally delayed.

Although reluctant at first, the grandparents completed every task that TDFPS required of them to try to regain custody, including attending parenting classes and counseling sessions and completing psychological evaluations.

TDFPS’s permanency plan for the children was to give TDFPS permanent managing conservatorship, terminate the parents’ rights, and seek adoption for the children. Even though W.M. especially was bonded to his grandparents, particularly to his grandfather, TDFPS argued against grandparent access because it could militate against any potential adoptions.

At trial, the CASA advocate recommended that the children be reunited with their grandparents, and, alternatively, that W.M. be returned to live with them and that he and the grandparents have regular visitation with A.S. TDFPS introduced the parents’ affidavits of relinquishment into evidence. No one challenged the termination of parental rights below, and no one challenges it here. The only issues are conservatorship and access.

Permanent Managing ConseRvatorship

In their first point, the grandparents contend that the evidence is factually insufficient to support the trial court’s finding that TDFPS should have PMC of W.M. They do not challenge the trial court’s determination that TDFPS should have PMC of A.S.

Actions to determine the conser-vatorship of a child are governed by the best interest of the child. The grandparents appear to contend that the burden of proof and standard of review regarding the best interest issue in custody matters are the same as those regarding the best interest issue in termination cases. They are not. The burden of proof in conserva-torship cases, as opposed to termination cases, is a preponderance of the evidence. The standard of review in conservatorship cases is abuse of discretion. The trial court has wide latitude in determining the best interests of a minor child. We will reverse the judgment of the trial court only when it appears from the record as a whole that the court has abused its discretion. A trial court abuses its discretion if it acts arbitrarily and unreasonably or without reference to guiding principles. An abuse of discretion does not occur as to factual matters as long as some evidence of a substantive and probative character exists to support the trial court’s decision. Legal and factual sufficiency are not independent grounds for review in conserva-torship cases, but they are relevant factors in deciding whether an abuse of discretion occurred. In determining whether there has been an abuse of discretion because the evidence is legally or factually insufficient to support the trial court’s decision, we engage in a two-pronged inquiry: (1) Did the trial court have enough information upon which to exercise its discretion; and (2) did the trial court err in applying its discretion? The traditional sufficiency review comes into play with regard to the first question. With regard to the second question, we determine, based on the elicited evidence, whether the trial court made a reasonable decision.

The trial court did not file any separate findings of fact and conclusions of law supporting its ultimate conservator-ship finding in the decree. When no findings of fact or conclusions of law are filed in a bench trial, the trial court’s judgment implies all findings of fact necessary to support it, but these implied findings are not conclusive. An appellant may challenge them by raising both legal and factual sufficiency of the evidence points. Consequently, we will treat the grandparents’ first point as a complaint that the trial court abused its discretion by finding that TDFPS should have PMC of W.M.

A court’s primary consideration in any conservatorship case shall always be the best interest of the child. Courts may use the nonexhaustive list of Holley factors to determine the child’s best interest. Those factors include:

(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 individuals seeking custody;
(5) the programs available to assist these individuals to promote the best interest of the child;
(6) the plans for the child by these individuals or by the agency seeking custody;
(7) the stability of the home or proposed placement;
(8) the acts or omissions of the parent [or potential conservator] which may indicate that the existing ... relationship is not a proper one; and
(9) any excuse for the acts or omissions of the [potential conservator].

These factors are not exhaustive; some listed factors may be inapplicable to some cases; other factors not on the list may also be considered when appropriate.

TDFPS argues that the evidence shows that the foster parents can provide a far more stimulating and nurturing environment for W.M., and a safer one. We do not agree with TDFPS that the evidence shows any such thing. As Anna Hunt, the CASA worker, and the only neutral observer who saw W.M. in the homes of the grandparents, Nadine, and the foster parents, testified, there are some positive aspects of the foster home and some different benefits of the grandparents’ home. The evidence does show that the foster parents provided a much better home for W.M. than Nadine, but the grandparents did not place W.M. with her; TDFPS did. Further, the foster parents, like the grandparents, were also denied PMC. It is TDFPS who has conservatorship of these children under the order and who can place them in any adoptive home it sees fit. Nevertheless, TDFPS does point out two key concerns: (1) our policy in Texas of trying to keep siblings together when it is in their best interest and (2) stability. Section 162.302 of the Texas Family Code provides, “It is the intent of the legislature that the department in providing adoption services, when it is in the children’s best interest, keep siblings together and whenever possible place siblings in the same adoptive home.” In this case, termination was not challenged, and the trial court ordered that the State have PMC of both children and authorized the State “to place the children for adoption in a suitable home.” The trial court’s order of termination, which in practical terms allows the children to continue residing in the foster home of the foster parents, who hope to adopt the children, follows the intent of the statute, and we have no evidence that the children’s placements have changed since the trial.

Additionally, placing both children in the custody of TDFPS follows our State’s policy in custody disputes of placing children together when it is in their best interest. In D.R.L.M., a couple who had adopted a little girl appealed the trial court’s award of PMC of D.R.L.M., their little girl’s half-sister, to that child’s foster parents. The little girls had never lived together. Our court explained the law on split custody:

The Smiths [the adoptive parent’s of D.R.L.M.’s half-sibling] argue that section 162.302(e) “codifies” prior Texas case law holding that siblings may not be separated absent a showing of clear and compelling reasons. They cite In re De La Pena, Pizzitola v. Pizzitola, Dal ton v. Doherty, Zuniga v. Zuniga, O. v. P., and Griffith v. Griffith.
We have carefully reviewed each of the cases cited by the Smiths. We cannot agree that these cases require us to read a clear-and-compelling-reasons burden of proof into section 162.302(e). First, none of these cases are adoption cases. They are custody cases. Second, the policy of “keeping” siblings together enunciated in these eases necessarily applies only to siblings already living together. Third, courts have traditionally applied the policy of keeping siblings together in custody decisions only to children of the same marriage, i.e., not to half-siblings.

Unlike the children in D.R.L.M., the children here, W.M. and A.S., were born to the same birth parents and at the time of trial had lived together for about nine months. Further, three separate entities — the foster parents, the grandparents, and the State — sought PMC of both children at trial. That is, unlike D.R.L.M., the case before us involves the issue of both children’s custody, not just that of one of them. Consequently, we hold that in this case, any party seeking to split the children up would have to show clear and compelling evidence to do so.

The trial court had evidence before it that the grandparents believed that A.S. should not undergo a change in caretakers; that is, the grandparents testified that they believed it to be in A.S.’s best interest to remain with the foster parents because of her fragile health. The trial court was therefore faced with the decision of splitting up the siblings or leaving them both in their foster home, where they had resided together for almost nine months. That is, the trial court was faced with splitting PMC of the children among the parties or leaving PMC of both children with one party. It chose the latter option. The two children had spent only a brief two weeks together before the State decided to place W.M. in foster care at the approximate age of twenty-four months, but some evidence at trial showed that bonding occurred while the children were in the foster home. The trial occurred more than a year ago. Presumably, the bond between the children has only deepened in the intervening period between the time of trial and now.

The grandparents introduced evidence that CASA worker Anna Hunt had recommended reuniting the children with them. At trial, after hearing the testimony, Ms. Hunt modified her recommendation to reunite W.M. with the grandparents but to leave A.S. with the foster parents and give W.M. and the grandparents access. She testified that W.M. was closely bonded to Wesley but that she had not seen evidence of a strong bond between W.M. and A.S. or between W.M. and the foster father at her home visits. TDFPS workers, however, as well as the foster parents, testified that W.M. and A.S. are closely bonded and that W.M. has bonded appropriately with their family and his sister. Based on our review of the evidence, we cannot say that the grandparents presented clear and compelling reasons to split the children up.

Additionally, as TDFPS points out, little W.M. had lived in five different homes with six different sets of parental figures at the time of trial, when he was a little more than two-and-a-half years old. The foster parents are his sixth set of parental figures. While TDFPS is under no legal obligation to maintain W.M. in his placement with them, the State’s representatives at trial indicated that that is the plan, and that the foster parents wish to adopt. Given these two key concerns of keeping the siblings together when it is in their best interest and maintaining stability for W.M., we cannot say that the trial court abused its discretion by awarding PMC to TDFPS. We overrule the grandparents’ first point.

GRANDPARENT ACCESS

In their second point, the grandparents contend that the trial court abused its discretion in denying them grandparent access to the children. As TDFPS points out, the grandparents did not specifically plead for grandparent access. The initial statements of the attorneys reveal, however, that the issue of unsupervised access was tried by consent. Section 153.433 of the Texas Family Code provides,

The court shall order reasonable access to a grandchild by a grandparent if:
(1) at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent’s parental rights terminated; and
(2) access is in the best interest of the child, and at least one of the following facts is present:
(A) the grandparent requesting access to the child is a parent of a parent of the child and that parent of the child has been incarcerated in jail or prison during the three-month period preceding the filing of the petition or has been found by a court to be incompetent or is dead;
(B) the parents of the child are divorced or have been living apart for the three-month period preceding the filing of the petition or a suit for the dissolution of the parents’ marriage is pending;
(C) the child has been abused or neglected by a parent of the child;
(D) the child has been adjudicated to be a child in need of supervision or a delinquent child under Title 3;
(E) the grandparent requesting access to the child is the parent of a person whose parent-child relationship with the child has been terminated by court order; or
(F) the child has resided with the grandparent requesting access to the child for at least six months within the 24-month period preceding the filing of the petition.

The issue in this case is the best interest of the children. As our sister court in Dallas has held,

The trial court’s judgment regarding what serves the best interest of the children with regard to visitation is a discretionary function and will only be reversed upon a determination that the trial judge has abused her discretion. This is because the trial judge “is in the best situation to observe the demeanor and personalities of the witnesses and can ‘feel the forces, powers, and influences that cannot be discerned by merely reading the record.’ ”

To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred. An abuse of discretion does not occur where the trial court bases its decisions on conflicting evidence. Furthermore, an abuse of discretion does not occur as long as some evidence of substantive and probative character exists to support the trial court’s decision.

Caseworker Lashika Christmas testified that continued grandparent access would not be in the children’s best interest

[bjecause just emotion concerns. If they were with the foster parents and just going back and forth, I mean, I just wonder what that would do to them emotionally. Because, I mean, you know, of course the foster parents have concerns now from when they do the visits and come back.
You know, there are problems that W.M. presents. But then you think about later down the line, if something happens to the [foster parents] and we have this order in place, and, of course, these children are eligible for adoption, what if they go into another adoptive home? Then what would that family do? Because they don’t know anything about the grandparents. You don’t know how they would feel about that continued access.

CPS supervisor Kim Caraway testified,

My concern would be that if it was ordered for the grandparents to have access, depending on what that access is, it could prevent the [foster parents] from wanting to adopt the children.
And, at that point, if that were to happen, we have a medically fragile baby and her sibling. It would be very difficult to find an adoptive home for them, just with that alone, along with, then, if you had some sort of orders for visitation with the grandparents, that would be another — could be another barrier to finding an adoptive home for the children.

The foster mother gave conflicting testimony regarding grandparent access. She testified that the grandparents and A.S. appeared to be bonded and that she had no reason to believe that W.M. was not bonded to his grandparents. She also testified that she thought it was important that children know them family and that she had never discouraged W.M.’s relationship with his grandparents. But she had concerns about the grandparents’ abilities to meet A.S.’s medical needs as well as the risks associated with transporting A.S. for visits.

She also had concerns about W.M.’s behavior after visits with the grandparents. She testified that he had temper tantrums and was sick soon after each visit, but she admitted that the symptoms had lessened a lot over the months W.M. had been living with her family. She believed that he got sick because his grandparents fed him junk food on his visits, and she refused to consider the possibility that he might have separation anxiety after having to leave his grandparents each week. She also testified that based on a gut feeling, she was afraid that the grandparents might not bring W.M. home after a visit, even though they had never threatened to run with him and had never been threatening, intimidating, or abusive to her or her husband. Finally, she testified that she would be concerned about the level of care that he would receive while he was with his grandparents.

The children’s CASA advocate recommended that W.M. be returned to the grandparents because

from my observations, the ties to — between W.M. and the grandparents are so strong that that’s why I felt that reunification would be in his best interest.
But from A.S.’s standpoint, she is so fragile that I would tend to agree that it probably would be detrimental to her health to be removed from the environment and the family that she has now. But I also believe it’s in her best interest to know her grandparents and the love they have for her.

Finally, the children’s guardian ad litem asked the Court to allow supervised visitation between the children and the grandparents to continue. We believe that this would have been an appropriate solution, but we see no evidence in the trial record that the grandparents alternatively sought or would have accepted supervised access to the children, especially W.M., nor can we conclude that the trial court abused its discretion by ruling differently than we would have.

Based on the record, we cannot say that the trial court abused its discretion in denying grandparent access. But we can say that the law does not have all the answers, and we can say that a two-year-old’s complete loss of the two most long-term, stable influences in his life cannot be a good thing, and we can implore the four adults who claim to love these children and want what is best for them to work toward a private compromise outside the legal system that will ensure the children’s bright, stable future without erasing the positive remnants of their past. We overrule the grandparents’ second point.

Conclusion

Having overruled the grandparents’ two points, we affirm the trial court’s judgment.

      . We substitute W.M. for the male child’s name and A.S. for the female child’s name throughout the record excerpts.

      . See Tex. Fam.Code Ann. § 153.002 (Vernon 2002).

      . Id. § 105.005; In re A.D.H., 979 S.W.2d 445, 446 (Tex.App.-Beaumont 1998, no pet.); In re Moss, 887 S.W.2d 186, 187 (Tex.App.-Texarkana 1994, no writ); MacDonald v. MacDonald, 821 S.W.2d 458, 463 (Tex.App.Houston [14th Dist.] 1992, no writ); see also Choyce v. Dallas County Child Welfare Unit, 642 S.W.2d 559, 560-61 (Tex.App.-Dallas 1982, no writ) (explaining that, because con-servatorship is revocable and less drastic adjudication than termination, stricter clear and convincing burden is not applicable).

      . Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982); see In re Jane Doe 2, 19 S.W.3d 278, 281 (Tex.2000).

      . Gillespie, 644 S.W.2d at 451.

      . Id.

      . Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).

      . Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.2002); In re M.N.G., 147 S.W.3d 521, 530 (Tex.App.-Fort Worth 2004, pet. denied).

      . In re D.R.L.M., 84 S.W.3d 281, 301 (Tex.App.-Fort Worth 2002, pets, denied); see Beaumont Bank v. Buller, 806 S.W.2d 223, 226 (Tex.1991); Tex. Dep’t of Health v. Buckner, 950 S.W.2d 216, 218 (Tex.App.-Fort Worth 1997, no pet.).

      . In re T.D.C., 91 S.W.3d 865, 872 (Tex.App.Fort Worth 2002, pet. denied); Norris v. Norris, 56 S.W.3d 333, 338 (Tex.App.-El Paso 2001, no pet.). But note that at least one court rejects the two-pronged approach. Zorilla v. Wahid, 83 S.W.3d 247, 256 n. 1 (Tex.App.-Corpus Christi 2002, no pet.).

      . T.D.C., 91 S.W.3d at 872; Norris, 56 S.W.3d at 338.

      . T.D.C., 91 S.W.3d at 872; Norris, 56 S.W.3d at 338.

      . Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex.1996).

      . BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002).

      . Tex Fam.Code Ann. § 153.002; In re V.L.K., 24 S.W.3d 338, 342 (Tex.2000).

      . Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976); T.D.C., 91 S.W.3d at 872.

      . Holley, 544 S.W.2d at 371-72.

      . In re C.H., 89 S.W.3d 17, 27 (Tex.2002).

      . Tex. Fam.Code Ann. § 162.302(e) (Vernon 2002).

      . D.R.L.M, 84 S.W.3d at 287.

      . Id. at 303 (citations omitted).

      . See O. v. P., 560 S.W.2d 122, 127 (Tex.Civ.App.-Fort Worth 1977, no writ).

      . Tex. Fam.Code Ann. § 153.433 (Vernon 2002).

      . In re N.A.S., 100 S.W.3d 670, 673 (Tex.App.-Dallas 2003, no pet.) (citations omitted).

      . Downer, 701 S.W.2d at 241-42.

      . Id.

      . Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978); see also Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997).

        .Butnaru, 84 S.W.3d at 211.

      . Down&r, 701 S.W.2d at 241-42.


author: SUE WALKER, Justice. LEE ANN DAUPHINOT, Justice,

text:
    Karl WILLIAMS, Appellant, v. The STATE of Texas, State.
    No. 2-04-175-CR.
    Court of Appeals of Texas, Fort Worth.
    Aug. 18, 2005.

      Joseph F. Zellmer, Denton, TX, for Appellant.
    Bruce Isaacks, Crim. Dist. Atty., Charles E. Orbison, and Anthony James Paul, Asst. Dist. Attys., Denton, TX, for State.
    Panel A: CAYCE, C.J.; DAUPHINOT and WALKER, JJ.
   OPINION

SUE WALKER, Justice.

I.INTRODUCTION

Appellant Karl Williams entered an open plea of guilty to the offense of sexual assault and a plea of not true to an enhancement allegation. After finding Williams guilty of sexual assault, the trial court ultimately found the State’s enhancement allegation to be true and sentenced Williams to forty years’ confinement. In five points, Williams argues that the trial court erred by granting the State’s oral, unsworn motion for continuance, by admitting a probable cause affidavit during the punishment phase of the trial, and by overruling his objections that the State’s notices of intent to enhance punishment and intent to introduce extraneous offenses were untimely filed. We will affirm.

II.PROCEDURAL BACKGROUND

Williams’s case was set for trial on March 18, 2004. The day before, on March 17, 2004, the State provided Williams with notice of its intent to enhance his punishment. The trial court called Williams’s case for trial on March 18th, and the State requested a continuance; the defense announced ready and opposed the State’s request for a continuance. The trial court granted a continuance, and later that same day (March 18th) the State filed, and provided Williams with, notice of its intent to offer extraneous offenses.

Williams’s case was reset for seven days later, on March 25, 2004, and proceeded to trial on that date. Counsel for Williams argued that the State’s notice of intent to offer extraneous offenses and notice of intent to enhance punishment were untimely. He asserted that the State should be precluded from offering evidence of any extraneous offenses and should be barred from enhancing Williams’s punishment. The trial court overruled both of Williams’s objections, and Williams entered an open plea of guilty.

During the punishment phase of the trial, an investigator for Denton County testified that fingerprints he had taken from Williams matched fingerprints in a penitentiary packet offered by the State. The trial court also admitted, over Williams’s objection, the probable cause affidavit supporting Williams’s arrest warrant in the current case. After the State rested, Williams’s wife testified that Williams is a good husband, that he works hard, and that he supports five people. She did admit, however, that she was not familiar with the details of the charged offense.

The trial court found the enhancement allegation to be true and sentenced Williams to forty years’ confinement.

III.Motion For Continuance

In his first point, Williams argues that the trial court erred by granting the State’s oral motion for continuance because it was based upon insufficient cause and was not in writing. The State maintains that the trial court acted within its discretion by granting the State’s motion for continuance.

It is well settled that a criminal action may be continued on the written motion of the State or of the defendant, so long as sufficient cause is shown. See Tex.Code CRIM. PROC. Ann. art. 29.08 (Vernon 1989). The court of criminal appeals has explained, however, that a trial court also possesses discretion to grant an oral motion for continuance on equitable grounds. See Darty v. State, 149 Tex.Crim. 256, 193 S.W.2d 195, 195 (1946); see also Hernandez v. State, 492 S.W.2d 466, 467 (Tex.Crim.App.1973). “[A] motion for continuance, based on equitable grounds rather than statutory grounds, is entirely within the sound discretion of the court, and will only call for reversal if it is shown that the court clearly abused its discretion.” Alvarado v. State, 818 S.W.2d 100, 103 (Tex.App.-San Antonio 1991, no pet.). Thus, the granting or denying of a motion for continuance, equitable or otherwise, is within the discretion of the trial court and will not be reversed on appeal unless it is shown that the court abused its discretion. See Janecka v. State, 937 S.W.2d 456, 468 (Tex.Crim.App.1996), cert. denied, 522 U.S. 825, 118 S.Ct. 86, 139 L.Ed.2d 43 (1997). An appellant must show that he was actually prejudiced by the trial court’s decision to grant the continuance. Vasquez v. State, 67 S.W.3d 229, 240 (Tex.Crim.App.2002).

Here, after the State made its oral motion for continuance, counsel for Williams argued that his client would be prejudiced by the granting of the continuance. Williams argued that, because the State had provided him with notice of its intent to enhance Williams’s punishment just one day earlier, the continuance had the effect of curing the untimely notice. The State responded that the timeliness of its notice of intent to enhance punishment was not relevant to whether the continuance was granted. The State argued that it was “not prepared to go forward” and that “the only purpose [for the continuance was] so that justice could be done properly.” The State also pointed out that this was its first request for a continuance.

Williams failed to articulate any specific prejudice arising from the trial court’s granting of the continuance. Williams was set to enter an open plea of guilty to the court. There is no evidence that the typical prejudices, usually associated with the denial of a motion for continuance — inadequate trial preparation time, unfair surprise, or inability to locate witnesses— existed here. See Dotson v. State, 146 S.W.3d 285, 297 (Tex.App.-Fort Worth 2004, pet. ref d). The trial court apparently discounted Williams’s argument that the State was seeking a continuance for the purpose of curing the untimeliness of its notice of intent to enhance punishment. Moreover, whether the inability to avoid or circumvent punishment enhancements is the type of “prejudice” meant to be avoided by the granting of a motion for continuance is questionable, and Williams provides no support for this assertion. We hold that the trial court did not abuse its discretion by granting the State’s oral motion for continuance. See Alvarado, 818 S.W.2d at 103 (holding trial court did not abuse its discretion by granting co-defendant’s motion for continuance based on equitable grounds). We overrule Williams’s first point.

IV. Pkobable Cause Affidavit

In his second and third points, Williams argues that the trial court erred by admitting a probable cause affidavit during the punishment phase of the trial. Williams contends that the affidavit constituted hearsay and violated his Sixth Amendment right to confrontation. The State maintains that any error resulting from the admission of the affidavit was harmless.

The trial court admitted State’s Exhibit 2 — a probable cause affidavit supporting the warrant issued authorizing Williams’s arrest — at punishment just before the State rested. After this, the trial court stated that it had reviewed Williams’s pre-sentence investigation report (PSI). Without deciding whether it was error for the trial court to admit the affidavit, we hold that any possible error resulting from the admission of the affidavit was harmless because the affidavit contains facts identical to those found in the PSI, which was considered by the trial court without objection. See Tex.R.App. P. 44.2(b); Tex.Code CRim. PROC. Ann. art. 42.12, § 9(c)(1) (Vernon Supp.2004-05) (stating judge may inspect PSI if the defendant pleads guilty); Elder v. State, 132 S.W.3d 20, 27 (Tex.App.-Fort Worth 2004, pet. ref d) (reasoning inadmissible evidence rendered harmless if same or similar evidence introduced elsewhere without objection), cert. denied, - U.S. -, 125 S.Ct. 1645, 161 L.Ed.2d 484 (2005). The facts in the PSI are cumulative of those in the affidavit, and, moreover, are the very facts of the offense to which Williams pleaded guilty. We overrule Williams’s second and third points.

V. Timeliness Of Notices

In his fourth and fifth points, Williams argues that the State’s notice of intent to enhance punishment and notice of intent to use extraneous offenses were not timely.

A. Notice of Intent to Enhance Punishment

The State filed its notice of intent to enhance punishment on March 17, 2004. Williams entered his open plea of guilty on March 25, 2004, and the punishment phase began that same day. Thus, Williams received the State’s notice eight days before he entered his plea.

An accused is entitled to notice of the State’s intent to use prior convictions for enhancement purposes. See Hollins v. State, 571 S.W.2d 873, 876 (Tex.Crim.App.1978). A proper notice of intent to enhance punishment must be given in a timely manner, but it need not be pled in the indictment itself to be considered proper notice, so long as it is pleaded “in some form” prior to trial. Brooks v. State, 957 S.W.2d 30, 34 (Tex.Crim.App.1997); Hudson v. State, 145 S.W.3d 323, 326 (Tex.App.-Fort Worth 2004, pet. ref d); see also McNatt v. State, 152 S.W.3d 645, 652 (Tex.App.-Texarkana 2004, pet. filed) (listing requirements of proper notice of intent to enhance punishment). Here, we are concerned with the requirement that the notice be timely.

Notice is presumptively reasonable if given at least ten days before trial. Accord Tex.Code CRiM. Peoc. Ann. art. 1.051(e) (Vernon 2005) (providing that appointed counsel is entitled to ten days to prepare for proceeding), art. 28.10(a) (Vernon 1989) (providing that, after notice and upon request, a defendant is allowed not less than ten days to respond to an amended indictment or information); see also Hudson, 145 S.W.3d at 326; Fairrow v. State, 112 S.W.3d 288, 294-95 (Tex.App.Dallas 2003, no pet.); Sears v. State, 91 S.W.3d 451, 455 (Tex.App.-Beaumont 2002, no pet.). In Hudson, we explained that while neither Fairrow nor Sears suggested a limited, certain time frame within which notice must be given to be timely, notice is presumptively “reasonable” if given at least ten days before trial. See Hudson, 145 S.W.3d at 326. While ten days’ notice is presumptively reasonable, the issue to be resolved here is whether eight days’ notice is reasonable notice. See Barnes v. State, 152 S.W.3d 144, 146 (Tex.App.-Dallas 2004, no pet.) (“Accordingly, we must determine whether the notice appellant received in this case was reasonable.”).

We do not, as the dissent contends, draw any distinction between the timeliness of notice of punishment enhancement provided by amending the indictment or provided in a different document. We specifically recognize that it is the reasonableness of the notice, not the form of the notice, that controls. See, e.g., Hollins, 571 S.W.2d at 876. Nor does Article 28.10(a) of the code of criminal procedure, as the dissent also contends, automatically mandate that a defendant be given ten days’ notice of an amendment to an indictment. See Tex. Code CraM. PROC. Ann. art. 28.10(a). That statute authorizes the State to amend an indictment, including by adding a punishment enhancement allegation, “at any time before the date the trial on the merits commences,” but on the “request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant to respond” to the amendment. Id. Thus, the statutory ten-day period does not limit when the State may amend an indictment; it simply mandates, upon a defendant’s request, a ten-day response time. See id. Here, Williams did not request any length of time to respond to the enhancement allegations. He did the opposite; he opposed the State’s motion for continuance which provided him with time to respond and he did not seek additional time to respond after his case was reset eight days later. According to the dissent, although the State is entitled by statute to amend an indictment “at any time” before trial on the merits commences and is required to provide only “reasonable” notice of punishment enhancement allegations, if the State fails to provide notice of the punishment enhancement allegations ten days prior to the first trial setting, it is somehow barred forever from pleading enhancement allegations. This is not a “diminishing salami” theory — so named by the dissent — it is bologna.

A number of cases have held that the State’s notice of intent to enhance punishment is timely despite being given less than ten days before trial. In Castilla v. State, the State provided notice of intent to enhance punishment seven days before the guilt/innocenee phase of trial. No. 05-01-01776-CR, 2002 WL 31261741, at *4 (Tex. App.-Dallas Oct.10, 2002, no pet.) (not designated for publication). The Castilla court determined that this provided appellant with “ample notice” of the State’s intent to allege a prior conviction for enhancement purposes. Id. In Barnes, seven days’ notice before trial was deemed reasonable. See Barnes, 152 S.W.3d at 146. There, the Dallas Court of Appeals refused to hold that the State’s motion to enhance punishment was equivalent to an amendment of the indictment, and therefore refused to apply an absolute ten-day notice period pursuant to article 28.10(a) of the Texas Code of Criminal Procedure. See id.

Other cases have determined that less than ten days’ notice is unreasonable and untimely. In Hudson, we held that the State’s notice was untimely because it was provided six days before the punishment phase of the trial. See Hudson, 145 S.W.3d at 326. We placed considerable emphasis on the fact that notice was given after the conclusion of the guilt/innocence phase. See id. In Fairrow, the court held that notice given on the day of the trial was untimely. See Fairrow, 112 S.W.3d at 295. The Beaumont Court of Appeals in Sears determined that notice given the Friday before trial was set to begin on Monday was untimely. See Sears, 91 S.W.3d at 455. In Hackett v. State, the Waco Court of Appeals held that notice given five days before trial was untimely. 160 S.W.3d 588, 590-91 (Tex.App.-Waco 2005, pet. filed) (not designated for publication). The court held that a minimum of ten days’ notice must be given when the State files a separate pleading providing notice of its intent to enhance punishment because article 28.10(a) requires a minimum of ten days’ notice for an amendment to an indictment, and “[a]n enhancement notice which affects the range of punishment is a de facto amendment of the indictment.” Id. at 591. Also, in Villescas v. State, the El Paso Court of Appeals held that six days’ notice before trial began was not timely, reasoning that six days’ notice prior to trial was simply insufficient and that the record demonstrated that appellant was “surprised and unprepared in his defense with respect to the alleged prior convictions.” No. 08-03-00131-CR, 2005 WL 327022, at *2-3 (Tex.App.-El Paso Feb.10, 2005, pet. filed) (not designated for publication).

An analysis and application of the aforementioned cases leads us to conclude that the State provided reasonable notice of its intent to enhance Williams’s punishment. The State provided notice eight days before Williams entered his open plea of guilty. This is one day more than was provided in Barnes and Castilla, and notice was determined to be reasonable in both of those cases. See Barnes, 152 S.W.3d at 146; Castilla, 2002 WL 31261741, at *4. Unlike in Fairrow, notice was not given on the day of the trial, and unlike in Sears, notice was not given on a Friday before the trial began on the next Monday. See Fairrow, 112 S.W.3d at 295; Sears, 91 S.W.3d at 455. Moreover, unlike Hudson, in which notice was given after the guilt/innocence phase, notice was given here eight days before Williams entered his plea of guilty and the trial court proceeded to punishment. Hudson, 145 S.W.3d at 326. And unlike Villescas, there is no evidence of surprise or unpreparedness resulting from the State’s intent to enhance punishment. See Villescas, 2005 WL 327022, at *3. Furthermore, unlike the Waco Court of Appeals in Hackett, we have not previously held that a separate enhancement notice that could affect punishment is a “de facto” amendment to the indictment requiring a minimum of ten days’ notice in compliance with article 28.10(a). See Hackett, 160 S.W.3d at 591.

We also look to the underlying purpose of the notice sufficiency rule. The court of criminal appeals has stated, “The accused is entitled to a description of the judgment of former conviction that will enable him to find the record and make preparation for a trial of the question whether he is the convict named therein.” Hollins, 571 S.W.2d at 875. Sufficient notice makes the accused aware “that a greater penalty is to be sought than for a first offense, and to enable him to take issue thereon, and if possible show there is a mistake in identity, or that there was no final former conviction or the like.” See id. at 876; see also Holt v. State, 899 S.W.2d 22, 24 (Tex.App.-Tyler 1995, no pet.) (reasoning that “the purpose of enhancement allegations in the indictment is to give the defendant notice of the earlier convictions so that he can prepare his defense”); Earl v. State, 870 S.W.2d 669, 671 (Tex.App.-Houston [1st Dist.] 1994, no pet.) (same).

Here, counsel for Williams made it clear on March 18, 2004 that his client opposed the granting of the State’s oral motion for continuance. He stated that the open plea had been set “for probably about three to four weeks right now.” Despite the State’s notice of intent to enhance punishment, Williams did not request additional time to respond to the enhancement allegation. He instead freely and voluntarily entered his open plea of guilty eight days later on March 25, 2004. In terms of punishment, the State presented compelling evidence that Williams had a previous felony conviction, and he was afforded the opportunity to rebut that evidence. No surprise or lack of preparation is reflected in the record. Just before entering his plea, while being questioned by his attorney, Williams stated, “I feel that my punishment would be better from the Judge. I don’t want the DA to assess anything. So, no, I won’t plea bargain or nothing. I’ll take whatever the Judge gives me, if it’s life or five years or whatever, I’ll take her judgment.”

We hold that the State provided reasonable notice to Williams of its intent to enhance his punishment. Williams did not request any additional time to respond to the enhancement allegations. We overrule Williams’s fourth point.

B. Notice of Intent to Use Extraneous Offenses

In his fifth point, Williams argues that the State failed to give timely notice of its intent to use extraneous offenses at the punishment phase. The State contends that any error by the court in overruling Williams’s objection to the timeliness of the notice was harmless because the State did not offer any evidence of extraneous offenses at the punishment phase.

During the guilt/innocence phase, the State offered and the trial court admitted Williams’s signed judicial confession. The State then rested; it did not offer any evidence of extraneous offenses. During the punishment phase, the State introduced and the trial court admitted the probable cause affidavit and a pen packet in order to prove up the enhancement allegation. The State did not offer any evidence, other than the prior conviction alleged in the enhancement allegation, of extraneous offenses. Assuming that it was error to overrule Williams’s objection to the timeliness of the State’s notice of intent to offer extraneous offenses, any error was harmless because the trial court did not admit evidence of Williams’s other crimes, wrongs, or acts. See Tex.R.App. P. 44.2(b). We overrule Williams’s fifth point.

VI. Conclusion

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

DAUPHINOT, J. filed a dissenting opinion.

LEE ANN DAUPHINOT, Justice,

dissenting.

Because I see the thoughtful majority opinion and those it relies on as nudging criminal law down the slippery slope of gamesmanship decried in civil law, I must respectfully dissent.

Essentially, the majority notes that if the State provides the enhancement notice by adding it to the bottom of the indictment, a defendant is entitled to ten days’ notice unless he does not complain about the lack thereof. If, however, the State writes the same words on a separate piece of paper, seven or eight days’ notice is ample, even over a defendant’s objection that the vehicle allowing the shorter notice, that is, in this case the trial court’s ruling granting the State’s oral motion for continuance, prejudiced his case.

Enhancement allegations are not mere footnotes to a criminal case. Enhancement allegations implicate due process considerations regardless of how the State presents the allegations. Prior convictions can elevate a misdemeanor to a felony; for example, they are elements of the offense and, without dispute, must be pled in the indictment in felony cases of DWI, theft, and family violence assault.

But prior convictions used as punishment enhancements can have the same effects on the liberty of the accused as those that are elements of the offense. Consider the following hypothetical situation. During the first semester of their junior year of high school, five seventeen-year-old buddies drank a few beers and decided to move ten calves from the new high school principal’s pasture into one of their uncle’s pastures as a prank. They got caught after being stopped on the highway by a deputy sheriff for suspicion of DWI. After a speedy jury trial, the five boys were found guilty of third-degree felony theft, and the trial court sentenced them to two years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. The boys earned good conduct time during their confinement, completed their G.E.D.s, applied to and were accepted by various universities in the State of Texas, and, after serving about eighteen months of their sentences, were released from prison in the spring, a couple of weeks before their former classmates’ graduation. The school board of their former high school passed a resolution to allow the five to walk across the stage with their former classmates. On the day of graduation, the principal coincidentally celebrated his sixtieth birthday.

Five years to the day later, the buddies, who had all graduated from college with honors, accepted respectable jobs, married and started their families, reunited at their high school reunion. They drank a few beers and reminisced. The next day, the now sixty-five-year-old principal discovered that ten of his emus were missing. A week later, the emus were discovered in the adjoining pasture, owned by the sheriff.

Suspicion focused on the five buddies, and even though the bottom had fallen out of the market for emus, the grand jury indicted the five young men for second-degree felony theft.

On a Thursday afternoon at 4:30 p.m., eight days before the initial trial setting, the prosecutor faxed a notice of enhancement to each defense lawyer on the case, indicating that if convicted, each defendant’s punishment would be enhanced because of his prior conviction for stealing the calves. Each legal assistant of each lawyer dutifully placed each notice of enhancement in each lawyer’s chair. Meanwhile, the lawyers, all board-certified, were attending and speaking at the annual TCDLA conference. They returned to their respective homes in their respective cities late Sunday night. After making the rounds at their respective district courthouses on Monday morning, they returned to their offices after lunch and found the documents in their chairs. Three-and-a-half days before trial, the lawyers discovered that their twenty-three-year-old clients were facing life imprisonment. The trial court denied their timely joint oral motion for continuance.

How can an appellate court claim, without winking at due process guarantees of the law, that a criminal defendant whose punishment may be so increased is not entitled to the same preparation time as the defendant who is given the same notice on a different piece of paper? There exists a doctrine called the salami theory: You may slice the salami often, but if you slice it thin each time, no one notices until the salami is mostly or entirely gone.

In Texas, it is well-settled that

the purpose of an indictment is to give the defendant notice of the specific offense with which he is charged and to enable the court, upon conviction, to pronounce the proper judgment, and to enable the accused to plead the judgment that may be given upon it in bar of any further prosecution for the same offense.

Included in the notice requirement are the elements of the offense and the degree of the offense that establishes jurisdiction and the range of punishment. Historically, the pleadings necessary to enhance the range of punishment were contained in the indictment. When the State failed to include the enhancement pleadings in the indictment in Brooks, the Texas Court of Criminal Appeals held that, although the State must plead the enhancement allegations, the pleadings do not have to appear in the indictment:

When Long was decided, indictments were the only pleadings of the State. The Long court was concerned that failing to include enhancements in the indictment “would, in effect, do away with criminal pleadings.” Further, when Long was decided, the law required the State to plead “whatever matter affects the degree or kind of punishment.” By contrast, statute now permits the State to have other pleadings, and Sharp [v. State, 707 S.W.2d 611 (Tex.Crim.App. 1986)] eliminated the requirement that an indictment plead punishment issues. Moore [v. State, 154 Tex.Crim. 307, 227 S.W.2d 219 (Tex.Crim.App.1950)] held that prior convictions used for enhancement must be pled but did not categorically say that the pleading used must be an indictment. Sigler [v. State, 143 Tex.Crim. 220, 157 S.W.2d 903 (Tex.Crim.App. 1941)] had nothing to do with whether enhancements must be pled but held that such enhancements do not implicate double jeopardy concerns. In fact, a reading of Sigler indicates that [Ex parte] Patterson [, 740 S.W.2d 766 (Tex.Crim.App. 1987)] apparently cited it as adverse authority on whether enhancements should be included in an indictment because of Sigler’s holding that enhancements are not elements of the offense but historical facts relating to punishment.
We note that the concurring opinion in Patterson also maintained that enhancement allegations must be contained in an indictment and cited four additional cases in support of the idea that “proper notice” must be given. Coleman [v. State, 577 S.W.2d 486 (Tex.Crim.App. 1979)] and Bevins [v. State, 422 S.W.2d 180 (Tex.Crim.App.1967)] held merely that enhancements need not be alleged with the same particularity as the primary offense in an indictment; they are not direct authority for the proposition that an indictment must refer to such enhancements. Parasco [v. State, 309 S.W.2d 465 (Tex.Crim.App.1958)] and Rogers [v. State, 168 Tex.Crim. 306, 325 S.W.2d 697 (Tex.Crim.App. 1959)] did purport to hold that prior convictions used for enhancement must be alleged in the indictment. But Parasco⅝ holding was premised in part on the notion that the prior conviction in the particular case constituted an element of the offense. This part of Paras-co’s holding was subsequently overruled. Due to its holding that the prior conviction was an element of the offense, its alternative holding that enhancements must be alleged in the indictment could be viewed as mere dicta. Moreover, Parasco cited no authority for this alternative holding and gave no reasoning other than to characterize alleging the enhancement offense in the indictment as “proper notice.” And Rogers relied solely upon Parasco as authority for its holding.
The theme through all of these cases appears to be that a defendant is entitled to notice of prior convictions to be used for enhancement. But alleging an enhancement in the indictment is not the only reasonable method of conveying such notice. Even Judge Clinton, the author of the majority opinion in Patterson, has subsequently maintained that enhancement paragraphs do not have to be in the indictment:
We simply observed in Patterson that the enhancement paragraphs must be pled somewhere, and, as the court of appeals points out, when the seminal case on enhancement paragraphs was decided, an indictment was the only pleading available to the State. We did not necessarily indicate that an enhancement paragraph must be supported by a grand jury finding, and in fact we expressly held that a deadly weapon allegation need not emanate from a grand jury finding.
Hence, we conclude that, to the extent prior cases have indicated that enhancement paragraphs must be pled in the indictment, those cases did not survive our decisions in Sharp and Rosales [v. State, 748 S.W.2d 451 (Tex.Crim.App.1987)]. As with deadly weapon findings, prior convictions used as enhancements must be pled in some form, but they need not be pled in the indictment— although it is permissible and perhaps preferable to do so. In this case, the requisite notice was conveyed by the State’s motion and the trial court’s order.

In his concurring opinion, Judge Mansfield contended,

[I]f the State intends effectively to increase the actual amount of prison time the accused will serve if he is convicted by seeking an affirmative deadly weapon finding, then the accused must be provided adequate advance notice so he can prepare a defense to the State’s allegation that he used or exhibited a deadly weapon. Indeed, failure to provide such adequate notice in advance may well violate the accused’s due process and due course of law rights under the United States and Texas Constitutions. Similarly, so that the accused is provided a reasonable opportunity to contest the validity of prior convictions the State intends to use for enhancement purposes, he must be given adequate advance notice of the State’s intent to do so.

Slowly, Texas courts, not the legislature, have decided that the indictment no longer must provide the requisite punishment notice and that some constantly changing number of days provides sufficient, yea ample notice of the State’s intent to increase exponentially the maximum punishment a jury or a judge may assess. But notice must still be given and must be given in a timely manner. The legislature has mandated that a defendant’s appointed counsel in a criminal case, even a probation revocation, be given ten days to prepare for trial. Is it proper for this court to circumvent the clear intent of the legislature by modifying the manner of providing notice? That is, is it proper to use a loosening of the manner in which notice must be given to accomplish a shortening of trial preparation time? In enacting article 1.051(e), the legislature has suggested that due process is satisfied by ten days’ notice. Respectfully, I believe that the legislature should assume the responsibility of stating clearly how enhancement notices must be pled and how much time a defendant in a criminal case must be afforded to prepare to defend against enhancement allegations that can potentially elevate his maximum punishment from ten years’ incarceration to life imprisonment. The gradual erosion of the due process protections afforded by requiring timely notice of the allegations against which a defendant must defend should be addressed by the legislature.

I would hold that the trial court abused its discretion by granting the State’s oral motion for continuance made on the day the case was set for trial because the prejudice that Appellant was required to show was obvious — his exposure increased fivefold, from twenty years to life. I would further hold this abuse of discretion harmful under Texas Rule of Appellate Procedure 44.2(a) because I believe that Appellant’s right to due process was violated. Even under Texas Rule of Appellate Procedure 44.2(b), however, I would hold that the error was sufficiently harmful: Appellant’s sentence of forty years’ confinement is double the maximum amount of confinement he faced absent the trial court’s error.

Because I perceive the salami to have been sliced too often, although the cut has been thin each time, I must respectfully dissent from the majority opinion.

      . The denial of an oral motion for continuance preserves nothing for our review. Ricketts v. State, 89 S.W.3d 312, 317 (Tex.App.Fort Worth 2002, pet ref'd). But here, Williams complains of the granting of the State's oral motion for continuance.

      . The dissent — based on its erroneous construction of article 28.10(a) as a ten-day-notice requirement instead of a ten-days-to-respond requirement — characterizes the statutory ten days as "the whole salami” and construes shortening of the purported ten-day-notice requirement as slicing off pieces of the whole salami, resulting in a "diminishing salami."

      . See majority op. at 735.

      . See, e.g., Ex parte McAtee, 586 S.W.2d 548, 550 (Tex.Crim.App.1979); McNatt v. State, 152 S.W.3d 645, 653 (Tex.App.-Texarkana 2004, pet. filed); Sears v. State, 91 S.W.3d 451, 455 (Tex.App.-Beaumont 2002, no pet.).

      . Tex Penal Code Ann. § 49.09(b)(2) (Vernon Supp.2004-05); Gibson v. State, 995 S.W.2d 693, 696 (Tex.Crim.App.1999).

      . Tex. Penal Code Ann § 31.03(e)(4)(D) (Vernon Supp.2004-05); Gant v. State, 606 S.W.2d 867, 871 (Tex.Crim.App. [Panel Op.] 1980).

      . Tex Penal Code Ann. § 22.01(a)(1), (b)(2) (Vernon Supp.2004-05); Sheppard v. State, 5 S.W.3d 338, 340 (Tex.App.-Texarkana 1999, no pet.).

      . See Tex Penal Code Ann. § 31.03(a), (b), (e)(5) (providing that theft of ten or more head of "cattle, horses, or exotic livestock or exotic fowl” in one transaction is a third-degree felony).

      . See id. § 12.34(a) (Vernon 2003).

      . See id. § 31.03(f)(3) (upgrading the offense one level if the owner is an "elderly individual”); § 31.01(10) (Vernon Supp.2004-05) (referring to definition in section 22.04(c)); § 22.04(c) (Vernon 2003) (providing that an elderly person is "a person 65 years of age or older”); see also Tex. Agric. Code Ann. § 142.001(5) (Vernon 2004) (defining exotic fowl as "avian species that is not indigenous to this state”).

      . See Tex. Penal Code Ann. § 12.42(b) (Vernon Supp.2004-05) (providing that "[i]f it is shown on the trial of a second-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for a first-degree felony”).

      . See, e.g., Almota Farmers Elevator and Warehouse Co. v. United States, 409 U.S. 470, 480, 93 S.Ct. 791, 797-98, 35 L.Ed.2d 1 (1973) (Powell and Douglas, JJ., concurring) ("[I]t would be unjust to allow the Government to use 'salami tactics’ to reduce the amount of one property owner’s compensation by first acquiring an adjoining piece of property or another interest in the same property from another property owner."); Huhler v. City of Corpus Christi, 564 S.W.2d 816, 821 (Tex.Civ.App.-Corpus Christi 1978, writ ref’d n.r.e.) ("Plaintiff contends that by completing such projects in stages, the defendants are using the 'old salami technique' by gradually depriving him of his land without instituting condemnation proceedings or paying just compensation.’’).

      . Sledge v. State, 953 S.W.2d 253, 263 (Tex.Crim.App.1997); see also TexCode Crim. Proc. Ann. arts. 21.04, 21.11 (Vernon 1989) (defining the certainty required in an indictment).

      . See, e.g., Few v. State, 588 S.W.2d 578, 585 (Tex.Crim.App. [Panel Op.] 1979).

      . Long v. State, 36 Tex. 6, 10 (1871).

      . Brooks v. State, 957 S.W.2d 30, 34 (Tex.Crim.App.1997).

      . Id. at 33-34 (citations omitted).

      . Id. at 34 — 35 (Mansfield, J., concurring).

      . TexCode Crim. Proc. Ann. art. 1.051(e) (Vernon 2005) (providing that appointed counsel is entitled to ten days to prepare for a proceeding); see Rojas v. State, 943 S.W.2d 507, 511 (Tex.App.-Dallas 1997, no pet.) (holding that appointed counsel is entitled to ten days to prepare for probation revocation proceeding); see also Campbell v. State, 456 S.W.2d 918, 920 n. 3 (Tex.Crim.App.1970) (holding that probationer is entitled to copy of revocation motion at least ten days before hearing).

      . See Tex. Penal Code Ann. § 12.42(d) (Vernon Supp.2004-05) (providing the “three strikes” law).

      . See Tex.R.App. P. 44.2(a).

      . See Tex.R.App. P. 44.2(b).