author: Opinion by Justice CARTER.

text:
    Melvin GOODSPEED, Appellant, v. The STATE of Texas, Appellee.
    No. 06-01-00227-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted May 26, 2005.
    Decided June 21, 2005.

      James E. Davis, Texarkana, AR, for appellant.
    Nicole Habersang, Asst. Dist. Atty., Texarkana, TX, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Justice CARTER.

A jury convicted Melvin Goodspeed for aggravated sexual assault and sentenced him to ninety-nine years’ imprisonment. See Tex. Pen.Code Ann. § 22.021(a)(l)(B)(i) (Vernon Supp.2004-2005) (child victim). On appeal to this Court, we originally sustained Goodspeed’s sole point of error, held he received ineffective assistance of counsel during voir dire, and concluded counsel’s deficient performance during this critical phase of the trial sufficiently undermined confidence in the trial court’s judgment. Goodspeed v. State, 120 S.W.3d 408 (Tex.App.-Texarkana 2004), rev’d, No. PD-1882-03, — S.W.3d -, 2005 WL 766996, 2005 Tex.Crim.App. LEXIS 520 (Tex.Crim.App. Apr. 6, 2005). On discretionary review, the Texas Court of Criminal Appeals, with three justices dissenting, reversed because Goodspeed’s counsel had not been “afforded an opportunity to explain his actions before being denounced as ineffective” and because some hypothetical trial strategy might arguably support counsel’s conduct. Goodspeed, 2005 WL 766996 at *2, 2005 Tex.Crim.App. LEXIS 520, at *5. That court then remanded this case for further proceedings. We now affirm the trial court’s judgment.

I. Issues Presented

Goodspeed contends he received ineffective assistance of counsel from his trial attorney, because the attorney (A) filed “nonsensical pretrial pleadings,” (B) “conducted no meaningful voir dire examination” and exercised peremptory strikes on two previously excused panel members, (C) “failed to subpoena the child’s Mother until the morning of trial” and did not understand why the child complainant’s competency was an issue, (D) failed to make an adequate opening statement, (E) cross-examined witnesses in such a way as to insinuate Goodspeed’s guilt and solicited or allowed testimony that bolstered the credibility of other witnesses; (F) failed to question the complainant about playing sexual games with her cousin, and (G) failed to object to an improper jury argument by the prosecutor.

II. Standard of Review

We review claims of ineffective assistance of counsel using the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App.1986). We also note that the Texas Court of Criminal Appeals has, for the most part, relegated claims of ineffective assistance to the “the highly problematic and uncertain world of habeas corpus” review. See Goodspeed, 2005 WL 766996 at *6, 2005 Tex.Crim.App. LEXIS 520, at *21 (Holcomb, J., dissenting). We now turn to each of Goodspeed’s complained-of areas of error.

III. Analysis

A. Pretrial Pleadings

Goodspeed first alleges he received ineffective assistance because his trial counsel filed “nonsensical pretrial pleadings.” The complained-of filings include a motion to inspect medical records and witness reports, a request for specific witnesses (to be summoned to give testimony at a pretrial hearing), two motions to quash the indictment, and an objection to the State’s notice of an outcry witness.

The motion to inspect medical records and witness reports was directly relevant to the case. Counsel asked for pictures taken by Cecilia Cole, the nurse who examined the victim, at the North East Texas Child Advocacy Center. Cole would eventually testify at trial about these pictures and her role as the sexual assault nurse examiner. The photographs were also admitted into evidence at trial. Thus, the evidence sought through counsel’s pretrial motion was directly relevant to counsel’s preparation for trial.

The second item-—the request that specific witnesses be summoned for a pretrial hearing—was relevant to Goodspeed’s being able to present witness testimony. No ineffective assistance of counsel has been shown.

Similarly, counsel’s motions to quash do not support Goodspeed’s claim of ineffective assistance. The motions to quash the indictment highlight that the original indictment was possibly defective in two respects: the indictment arguably did not show the offense occurred within Bowie County, and the indictment did not give the specific date of the offense alleged. If the trial court had quashed the indictment based on either of trial counsel’s motions, Goodspeed, who was incarcerated at the time of filing, would have been freed' from jail until the State could secure a new indictment. See, e.g., Rodriguez v. State, 42 S.W.3d 181, 185-86 (Tex.App.-Corpus Christi 2001, no pet.) (granting of motion to quash generally results in dismissal of prosecution). And while an indictment need not allege the exact date on which an offense occurred, see Tex. Code CRiM. Proc. Ann. art. 21.02(6) (Vernon 1989), it would not be unsound trial strategy to narrow the State’s needed proof to a single offense date. Accordingly, we conclude there is at least a possible strategic reason supporting counsel’s decision to file the motions to quash.

Counsel’s final complained-of filing—a handwritten objection to the State’s notice of outcry witness—does seem to fall short of attacking the propriety of admitting testimony from an outcry witness. Instead, the objection reads more like a pretrial motion for acquittal. But Good-speed has not demonstrated that filing this second motion to quash had any impact on the outcome of his trial. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002). Nor does the record before us provide any insight into counsel’s reasoning for filing this particular motion. Thus, we cannot conclude counsel’s pretrial motions support Goodspeed’s claim of ineffective assistance of counsel.

B. Voir Dire and the Exercise of Peremptory Strikes on Previously Excused Members of Venire

Goodspeed next complains that trial counsel’s voir dire was ineffective because it resulted in no challenges for cause to venire members Pettyjohn, Bradford, Ov-ermeyer, Sims, Conkleton, Burks, Elliot, or George. He also asserts that trial counsel was ineffective for using two of Goodspeed’s peremptory challenges on two members of the venire panel who had already been excused for cause by the trial court. The Texas Court of Criminal Appeals has already ruled against Goodspeed on this aspect of his claim. See Goodspeed, 2005 WL 766996 at *4, 2005 Tex.Crim.App. LEXIS 520, at *2-5.

C. Subpoenaing the Victim’s Mother & Understanding Why Competency Was at Issue

Goodspeed next contends his trial counsel provided ineffective assistance because counsel did not subpoena the victim’s mother until the morning of trial and because counsel “had no idea of why the child’s competency to testify as a witness was in issue.... ” Goodspeed has not shown, however, that such alleged misconduct was not the product of a reasoned trial strategy or that, but for such conduct, Goodspeed would not have been convicted or would have otherwise received a lesser punishment. Moreover, Goodspeed’s trial counsel did test the victim’s ability to distinguish the truth, and counsel tested the victim about the circumstances surrounding her outcry in an obvious attempt to cast doubt on the veracity of her claim— which does, at least, seem to discredit Goodspeed’s claim that counsel did understand why the complainant’s competency was at issue. As such, the record before us does not support Goodspeed’s claim.

D. ShoH Opening Statement

Goodspeed next contends his trial counsel provided ineffective assistance by failing to make a longer opening statement. Counsel’s opening statement was, in fact, succinct:

Your Honor, as my client has steadfastly maintained his innocence from the date that he was arrested — August 11th of 2000 till the present time, he has denied that he assaulted this child, and we will have some proof on that. Thank you.

Neither the choice of language nor the brevity of the statement suggests error in counsel’s opening statement. Counsel concisely articulated Goodspeed’s defense strategy as one based on innocence, a theme that would reappear during counsel’s cross-examination of the State’s witnesses, in Goodspeed’s own testimony, and as part of counsel’s closing statement. In his brief to this Court, Goodspeed has made no attempt to show that a longer opening statement would have resulted in an acquittal or a shorter sentence. Accordingly, Goodspeed has not satisfied his burden of proof on appeal.

E. Cross-Examination of the State’s Witnesses and Solicitation of Bolstering Testimony

Goodspeed next contends trial counsel improperly phrased cross-examination questions in such a way that counsel’s questioning served (1) to impliedly admit Goodspeed’s guilt, (2) only to support the State’s case for conviction, and (3) to improperly bolster the testimony of the State’s evidence. Goodspeed further complains that counsel erred by asking a witness on cross-examination whether she believed the complainant’s outcry and by allowing the State to improperly bolster its witnesses by questioning those testifying about the veracity of the State’s other witnesses. Assuming, without deciding, that Goodspeed’s characterization of counsel’s cross-examination is correct, Good-speed has made no showing that, absent such alleged errors, he would not have been convicted or would have received a lesser sentence. Nor has trial counsel been afforded an opportunity to explain his strategic reasons for asking these questions. Accordingly, we cannot sustain Goodspeed’s claim based on the record and briefing currently before this Court.

F. Failure To Fully Question the Complainant About Her “Play” with Kevin

Goodspeed also argues, “Even though [the complainant’s] account of the sexual game the child had been playing with her cousin Kevin was the only other explanation for her injuries, [counsel] failed to fully explore this possibility through her testimony.” Goodspeed has neither made an attempt to show or suggest the substance of this missing testimony, nor made an attempt to show that such evidence would have necessarily resulted in an acquittal or a lesser sentence. Nor has trial counsel had the opportunity to respond to these allegations, as required by the Texas Court of Criminal Appeals. We, therefore, cannot say the record supports Good-speed’s claim.

G. Prosecutor’s Closing Argument

Finally, Goodspeed contends trial counsel’s performance was deficient because counsel failed to object to an allegedly improper jury argument by the State. Goodspeed’s trial took place one week after the terrorist attacks of September 11, 2001, in New York City, Pennsylvania, and Washington, D.C. In closing argument, the prosecutor stated, without objection,

You know, this last week has been a pretty amazing week for our country, and it has been a time where people have united and come together to stand against those who would perpetrate acts of terrorism against our country. And I’m standing here before you in a little part of the country, and I’m asking the twelve of you to come together and stand united against acts of terror, the act of terror that that man perpetrated against one of our children. I’m asking you to do that and I’m asking you to stop this girl’s suffering. She has endured enough and it’s time you all ended that suffering, and the only way you can do that is to return a verdict of guilty. Thank you.

“Permissible areas of closing argument are: (1) summation of evidence presented at trial; (2) reasonable deductions drawn from said evidence; (3) answers to opposing counsel’s argument; and (4) plea for law enforcement.” Flowers v. State, 133 S.W.3d 853, 858 (Tex.App.-Beaumont 2004, no pet.). In this case, the prosecutor’s argument arguably constituted a plea for law enforcement. We cannot say counsel rendered ineffective assistance by failing to object to an arguably permissible summation by the prosecutor.

IY. Conclusion

For the reasons stated, we overrule Goodspeed’s point of error and affirm the trial court’s judgment.


source: Caselaw Access Project

license: Public Domain

text:
    Gladi Gutierrez DELACRUZ, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00123-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted May 18, 2005.
    Decided June 22, 2005.

      Alex Tyra, Law Office of Alex Tyra, Longview, for appellant.
    Ray Bowman, Asst. Dist. Atty., Long-view, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Justice CARTER.

Gladis Gutierrez Delacruz appeals from her conviction by a jury for driving while intoxicated while the vehicle was occupied by a passenger younger than fifteen years of age. The jury assessed punishment at six months’ incarceration in a state jail facility. The trial court declined to place Delacruz on community supervision. On appeal, Delacruz contends the sentence imposed is disproportionate to the offense.

We first look to see if the issue has been preserved for review. Delacruz did not object to the sentence on the ground it was disproportionate to the crime, or on any other ground, at the time it was imposed. However, the motion for new trial contains a contention that the sentence was disproportionate to the offense. To preserve a complaint for appellate review, an appellant must have presented to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. Tex.R.App. P. 33.1(a)(1)(A); Rhoades v. State, 934 S.W.2d 113, 119 (Tex.Crim.App.1996). This Court has held that a defendant is required to raise a disproportionality objection in a timely manner. Hookie v. State, 136 S.W.3d 671, 679 (Tex.App.-Texarkana 2004, no pet.); Jackson v. State, 989 S.W.2d 842, 845 (Tex.App.-Texarkana 1999, no pet.).

Texas courts have traditionally held that, as long as the punishment assessed is within the range prescribed by the Legislature in a valid statute, the punishment is not excessive, cruel, or unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex.Crim.App.1973). However, in Jackson, 989 S.W.2d at 845, we recognized that a prohibition against grossly disproportionate punishment survives under the Eighth Amendment to the United States Constitution apart from any consideration of whether the punishment assessed is within the range established by the Legislature. See also Fluellen v. State, 71 S.W.3d 870, 873 (Tex.App.-Texarkana 2002, pet. ref'd).

As we set out in Alberto v. State, 100 S.W.3d 528, 530 (Tex.App.-Texarkana 2003, no pet.), our proportionality analysis is guided by (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. See Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Only if we find that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test and compare the sentence received to sentences for similar crimes in the same jurisdiction and to sentences for the same crime in other jurisdictions. Alberto, 100 S.W.3d at 530.

Here, the sentence imposed is practically, the minimum. We cannot say that the sentence is grossly disproportionate to the offense. Further, there is no evidence in the record comparing this sentence with others in the same jurisdiction for this offense, or those imposed on defendants in other jurisdictions who committed a similar offense. See id. For all of those reasons, disproportionate sentencing has not been shown.

We affirm the judgment.

      . The punishment was for a state jail felony, which carries a range of 180 days to two years' confinement, and a fine not to exceed $10,000.00. Delacruz was sentenced to six months’ confinement and a fine of $100.00. See Tex. Pen.Code Ann. § 12.35(a) (Vernon 2003), § 49.045 (Vernon Supp.2004-2005).

      . Although we have stated in other opinions that our opinion in Jackson required the objection to be made at the time sentence is imposed, that is not a precise rendering of our holding in that case. Compare Rodriguez v. State, 71 S.W.3d 778, 779 (Tex.App.-Texarkana 2002, no pet.); Smith v. State, 10 S.W.3d 48, 49 (Tex.App.-Texarkana 1999, no pet.); see also Quintana v. State, 777 S.W.2d 474, 479 (Tex.App.-Corpus Christi 1989, pet. ref'd) (where appellant does not raise issue of cruel and unusual punishment in punishment hearing or motion for new trial, the argument is waived). We require the objection to be made in a timely fashion, and we find that a motion for new trial, in this context, is an appropriate way to preserve the claim for review.


author: Opinion by Justice MAZZANT.

text:
    William LEWIS, Howard Knieriem, and Steve Holley, Appellants, v. DALLAS SOUNDSTAGE, INC., Hillwood Property Company, and Las Colinas Studios, Ltd., Appellees.
    No. 05-04-00920-CV.
    Court of Appeals of Texas, Dallas.
    June 22, 2005.

      Elise Mitchell, Laurance L. Priddy, Dallas, for Appellant.
    Baxter W. Banowsky, Banowsky Betz & Levine, P.C., Douglas C. Kittelson, Dallas, for Appellee.

      Before Justices MORRIS, FRANCIS, and MAZZANT.
   OPINION

Opinion by Justice MAZZANT.

In this case brought under Title III of the Americans with Disabilities Act of 1990(ADA), William Lewis, Howard Knier-iem, and Steve Holley (collectively, appellants) appeal the trial court’s take-nothing judgment entered in favor of Dallas Soundstage, Inc., Hillwood Property Company, and Las Colinas Studios, Ltd. (collectively, appellees). Appellants bring six issues on appeal arguing: (1) appellees failed to meet their burden to show the requested move of tour exhibit items would fundamentally alter the nature of appellees’ services; (2) there is insufficient evidence to support the trial court’s finding that (A) moving the studio tour items to the first floor was not readily achievable, (B) the studio facilities have been operating at a financial loss, (C) appellees’ studio facilities have public restrooms on the ground floor that comply with the ADA, and (D) appellees’ policy is to welcome all persons to attend the tour of the studio and the studio offers reduced fares and a video recording of the upper floor of the tour area at no extra charge; and (3) the trial court erred in not granting appellants attorney’s fees as prevailing parties. We affirm the trial court’s judgment.

Factual and PROCEDURAL Background

This case arose as a complaint regarding accessibility of a tour offered by Dallas Soundstage to the public. A portion of the tour is located on the second floor of a two-story building, and the only access to the second floor is a staircase. Las Colinas Studios owns the building, and Dallas Soundstage leases the space used for the tour.

In 1994, in response to an advertisement he had seen, Lewis called appellees and inquired whether someone in a wheelchair could go on the tour. After being told portions of the tour were upstairs and not accessible other than by the stairs, Lewis chose not to go. Knieriem also contacted appellees via the telephone, and he understood he would be unable to see the part of the tour on the second floor. He too chose not to go. Holley went to Dallas Soundst-age with his family, and they all inquired about the tour. Holley accompanied his family on the tour of the first floor, but when they went upstairs, Holley waited in the lobby.

After deciding not to attend the tour, Lewis filed suit. Knieriem and Holley joined as plaintiffs in 1995. The second amended petition alleged that appellees violated the ADA by: (1) discouraging persons with disabilities from attending the tour and informing them verbally the tour was not accessible; (2) failing to provide fully accessible public restrooms; (3) offering a tour with a path of travel that was not accessible to persons with mobility impairments; and (4) failing to provide handicapped parking with signage as required by the ADA. At trial, Lewis, Knieriem, and Holley summarized what they wanted: ap-pellees either to install a lift providing access to the second floor or to move the tour exhibit items from the second floor to the first floor.

In May 1995, appellees filed a motion for summary judgment then filed another motion for partial summary judgment in October 1995. The trial court granted the partial summary judgment in November 1995 and declared that the installation of an elevator was not required under the ADA.

The case was then heard before the bench in 1997, and after the parties closed, the trial court granted Hillwood’s motion to dismiss it from the suit. Further, the trial court granted the remaining defendants’ motion for directed verdict regarding attorney’s fees; no evidence had been presented on the issue. The trial court called a recess and suggested the parties return at a later time for closing arguments. The trial court issued its final take-nothing judgment in April 2004 and filed its findings of fact and conclusions of law in support of its judgment in July 2004.

ATTORNEY’S FEES

In their sixth issue, appellants complain the trial court erred in granting a take-nothing judgment because they were prevailing parties and therefore entitled to attorney’s fees. Appellants, however, do not present any argument complaining of the granted directed verdict that addressed attorney’s fees.

Rule 270 permits, but does not require, a trial court to reopen a case to allow additional evidence to be introduced. See Tex.R. Civ. P. 270. At the end of the trial in 1997, the trial court granted appel-lees’ motion for directed verdict on the issue of attorney’s fees; no evidence had been presented by appellants regarding the issue of attorney’s fees. Although appellants later filed an affidavit regarding attorneys fees, that affidavit was never admitted before the trial court.

On appeal, appellants do not contend the trial court abused its discretion in granting the motion for directed verdict. Appellants also do not raise complaints regarding their late attempt to introduce the missing evidence. Instead, appellants argue they were due attorney’s fees because they were prevailing parties.

The trial court never reached that issue; there was no evidence before the trial court regarding attorney’s fees. Appellants’ argument on appeal does not comport with the reason for the directed verdict; accordingly, they have waived this issue. Cf., McKee v. McNeir, 151 S.W.3d 268, 270 (Tex.App.-Amarillo 2004, no pet.) (grounds asserted on appeal must comport with those mentioned at trial to preserve complaint). We resolve appellant’s sixth issue against them.

Sufficiency of the Evidence

In their first through fifth issues, appellants contend appellees either failed to meet the burden of proof or provided no or insufficient evidence to support specific trial court findings and conclusions. In their first issue, appellants specifically argue that appellees failed to meet their burden to show the move of the tour items to the first floor would fundamentally alter the nature of appellees’ services. Although not specifically phrased as such, this complaint is an argument that appellees offered no or insufficient evidence that the requested move would fundamentally alter the nature of appellees’ services. In issues two through five, appellants argue there was no or insufficient evidence to support specific trial court findings and conclusions that: (1) moving the studio tour items to the first floor was not readily achievable; (2) the studio facilities have been operating at a financial loss; (3) appellees’ studio facilities have public restrooms on the ground floor that comply with the ADA; and (4) the appellees’ policy is to welcome all persons to attend the tour of the studio and the studio offers reduced fares and a video recording of the upper floor of the tour area at no extra charge.

Standards of Review

Findings of fact in a nonjury trial have the same force and dignity as a jury’s verdict. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994); Ashcraft v. Lookadoo, 952 S.W.2d 907, 910 (Tex.App.-Dallas 1997), pet. denied, 977 S.W.2d 562 (Tex.1998) (per curiam). When a complete reporter’s record is filed, the trial court’s fact findings may be reviewed for legal and factual sufficiency under the same standards as jury verdicts. Min v. Avila, 991 S.W.2d 495, 500 (Tex.App.-Houston [1st Dist.] 1999, no pet.); see Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996) (per curiam). In doing so we do not substitute our judgment for that of the fact finder, even if we would have reached a different conclusion when reviewing the evidence. FDIC v. F & A Equip. Leasing, 854 S.W.2d 681, 684-85 (Tex.App.-Dallas 1993, no writ). Rather, when addressing a legal sufficiency challenge, we view the evidence in a light most favorable to the finding, consider only the evidence and inferences that support the finding, and disregard all evidence and inferences to the contrary. Catalina, 881 S.W.2d at 297. We uphold the finding if more than a scintilla of evidence exists to support it. Id. In reviewing a factual sufficiency challenge, we examine all of the evidence and set aside a finding only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Zieben v. Platt, 786 S.W.2d 797, 799 (Tex.App.-Houston [14th Dist.] 1990, no writ); see also Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam).

We do not review a trial court’s conclusions of law for factual sufficiency. See Ashcraft, 952 S.W.2d at 910. Rather, we evaluate them independently, determining whether the trial court correctly drew the legal conclusions from the facts. Id.; Dallas Morning News Co. v. Bd. of Trustees of Dallas Indep. Sch. Dist., 861 S.W.2d 532, 536 (Tex.App.-Dallas 1993, writ denied). However, incorrect conclusions of law will not require a reversal if the controlling findings of fact will support the judgment under a correct legal theory. See Westech Eng’g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex.App.-Austin 1992, no writ). When findings of fact are included among the trial court’s conclusions of law, we will review them as findings of fact. Sears Roebuck & Co. v. Dallas Cent. Appraisal Dist., 53 S.W.3d 382, 385-86 (Tex.App.Dallas 2000, pet. denied).

Burdens of Proof

Title III of the ADA prohibits discrimination against a person in a place of public accommodation. 42 U.S.C.A. § 12182(a) (West 1995). One way in which a plaintiff may argue that a defendant has discriminated against an individual with a disability is to argue the defendant has failed “to make reasonable accommodations in policies, practices, or procedures when such modifications are necessary to afford such ... accommodations to individuals with disabilities.” 42 U.S.C.A. § 12182 (b) (2) (A) (i). In making such an argument, the plaintiff has the burden to prove that the policy modification was requested and is reasonable. See Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052, 1059 (5th Cir.1997). The plaintiff may meet this burden by “introducing evidence that the requested modification is reasonable in the general sense, that is, reasonable in the run of cases.” Id. Once that burden is met, the defendant may rebut by pleading and meeting its burden of proving the requested modification would “fundamentally alter the nature of the public accommodation.” Id., see also Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 845 (9th Cir.2004). This is done by looking at that defendant’s particular circumstances. Johnson, 116 F.3d at 1059-60.

In addition to a policy modification argument, a plaintiff may argue a defendant has violated the ADA by discriminating against a person with disabilities by failing to “remove architectural barriers ... that are structural in nature, in existing facilities, ... where such removal is readily achievable.” 42 U.S.C.A § 12182(b)(2)(A)(iv). Readily achievable— that which is “easily accomplishable and able to be carried out without much difficulty or expense” — is determined by looking at factors such as the nature and cost of the action required for the removal of the barrier; the overall financial resources of the facility; the overall size of the business; the number of persons employed at the site; the effect on expenses and resources; safety requirements that are necessary for safe operation; and the impact otherwise of the action upon the operation of the site. 42 U.S.C.A. § 12181(9) (West 1995). Although the ADA does not specify who bears the burden of proving whether removing a barrier is readily achievable, the Tenth Circuit, having reviewed cases under other subsections of section 12182(b)(2)(A), concluded the initial burden is on the plaintiff. See Colo. Cross Disability Coalition v. Hermanson Family Ltd., 264 F.3d 999, 1003 (10th Cir.2001). We are persuaded by the Tenth Circuit’s analysis.

In an architectural barrier claim, the plaintiff has the initial burden of showing that the suggested barrier removal is readily achievable under the particular circumstances. See id. Only if the plaintiff satisfies this initial burden must the defendant then rebut the plaintiffs showing. Id. at 1005-06. This places the ultimate burden of the defense on the defendant, but no defense need be proven if the plaintiff never introduces evidence in the first place that establishes the proposed barrier removal is readily achievable. See id. at 1007.

The evidence a plaintiff uses to meet this initial burden must be specific and relative to the particular circumstances involved. See id. at 1009. Having established who bears the burden in Colorado Cross Disability Coalition, the Tenth Circuit concluded the plaintiff introduced evidence only of a speculative nature; the plaintiff offered no evidence of specific design, cost, or estimates. The expert testified regarding conceptual ideas. Because of that, the Tenth Circuit concluded the plaintiff had not met its initial burden of showing the barrier removal was readily achievable.

Policy Modification / Fundamental Alteration

In their first issue, appellants argue appellees failed to meet their burden of rebutting appellants’ policy modification argument. Appellants also argue the trial court failed to enter a finding under this argument.

Originally, appellants argued their case asserting a request for appellees to remove the complained-of barriers to accessibility. However, during the trial, appellants added to their argument and contended that appellants had a policy jn place that, if modified, would provide access to the second floor tour exhibit items. Appellants made this argument by asserting that ap-pellees’ choosing to place some of the tour exhibits on the second floor was a type of policy. Appellants contended that to meet the requirements of the ADA, appel-lees needed a policy to have all tour exhibit items on the first floor. Assuming, but not deciding, that the decision to place tour exhibit items on the second floor was some sort of “policy,” and assuming that appellants met their initial burden that the requested policy modification was reasonable, we conclude that appellees met their defensive burden under the ADA.

Appellants called Steve Neusse as a witness. Neusse is the general manager of both Las Colinas Studios and Dallas Soundstage. However, the two are separate companies; Neusse is paid by both companies separately. Neusse testified that the policy of Dallas Soundstage is that “the tour is open to everyone regardless of disability, and [Dallas Soundstage has] done everything [it] can to try to make it as accessible as possible.”

Neusse also discussed the possibility of moving all tour items downstairs, and he said that the express terms of the lease meant that Dallas Soundstage did not have the right to move items belonging to it to the first floor. First, Dallas Soundstage leased space only on the second floor. According to Neusse, Dallas Soundstage, which operates the tour, leased space in the building from Las Colinas Studios. Dallas Soundstage, as the tenant, had sole and exclusive use of specific areas of the building — specifically, space that was represented by Exhibit A as attached to the lease. Exhibit A shows areas on the second floor only. Accordingly, the evidence showed that Dallas Soundstage did not lease any space for its sole use on the first floor. Second, Neusse testified that the lease prohibited Dallas Soundstage from interfering with the use of any of Las Colinas Studios’s working studios and from interfering with other tenants or licensees or with any production activities. Accordingly, Dallas Soundstage did not have authorization under the lease to move its tour exhibits to the'first floor.

Further, Neusse discussed how the space was used on the first floor. Three large stages were on the first floor, as well as dressing rooms, a wardrobe room, a rehearsal hall, and a makeup room. Neusse stated those rooms were all functional in nature and were parts of the actual studios operated by Las Colinas Studios. The inherent function of Las Co-linas Studios was to operate as actual movie and television studios and soundstages. Las Colinas Studios leased its stages and corresponding dressing rooms to production companies such as the Lions Group— the company that produces the television show Barney. Neusse stated that to move the tour display to the first floor, requiring the relocation of areas necessary for the operation of the actual studios, would “destroy the function of the ground floor.” Neusse added that to move the support services of the stages to the second floor would adversely affect the business of leasing the studios.

Further, regarding Dallas Soundstage, part of the tour included the opportunity to walk through a movie studio, including the dressing rooms and wardrobe and make-up rooms. Neusse stated that to move the second floor tour items to that area of the first floor would thus destroy the function of the studio as an actual complete working studio, thereby altering the nature of the tour—the public accommodation at issue—itself. Neusse also stated that the tour itself was only ancillary to the use of the building as a production and television facility.

Appellants argue in their reply brief that fundamental alteration is an affirmative defense and because appellees did not plead it as such, appellees waived the defense. However, appellants did not raise the issue of policy modification until during the trial. Appellees responded during trial and questioned Neusse on how moving the tour exhibits to the first floor would change the primary use of the building and adversely affect the business. Appellants did not object at that time to appellees’ presentation of the defense. Accordingly, we conclude the issue was tried by consent. See Tex.R. Civ. P. 67; Johnson v. Structured Asset Servs., LLC, 148 S.W.3d 711, 719 (Tex.App.-Dallas 2004, no pet.).

We have viewed the evidence in the light favorable to the judgment. Based on Neusse’s testimony and the evidence before the trial court, we conclude the evidence was sufficient to show that moving the tour exhibit items to the first floor would fundamentally alter the nature of the public accommodation at issue.

Appellants complain the trial court did not enter findings of fact or conclusions of law regarding their policy modification issue. Appellants, however, also never included their policy modification argument in their pleadings; on the other hand, appellants specifically raised the argument of barrier removal and “readily achievable.” Regardless, the trial court’s take-nothing judgment indicates the trial court found in favor of appellees on this issue, and the findings of fact support the conclusion. The trial court specifically found that the ground floor was a working studio and that destroying that would destroy the primary concept of providing the viewing of an actual functioning television and movie studio. Further, appellants’ complaint that this specific conclusion was not included in the original findings and conclusions is waived because appellants did not request additional findings of fact or conclusions of law after receiving the ones about which they complain. See Tex.R. Civ. P. 298; Dallas Morning News, 861 S.W.2d at 536.

We resolve appellants’ first issue against them.

Moving Tour Exhibit Items to First Floor

In their second issue, appellants argue there was no or insufficient evidence to support the trial court’s specific findings and conclusions regarding barrier removal. The court concluded that moving the tour items to the first floor was not “readily achievable.” The trial court outlined three findings supporting its conclusion:

(1) The ground level of the facility will not physically accommodate the portions of the Tour that are currently on the upper level because there is not enough space;
(2) The entire ground level is dedicated and leased to producers of commercials and entertainment; and
(3) The ground level is the working studio which is the primary focus of the Tour.

The trial court stated also that moving the tour exhibits was not easily accomplishable or able to be carried out without much difficulty or expense. Appellants argue alternatively that such findings did not support a judgment in appellees’ favor.

We note first that appellants offer no argument and cite no authority that the trial court’s conclusion that moving tour items to the first floor was not readily achievable did not support a judgment in appellees’ favor. Accordingly, they have inadequately briefed the second part of their argument under their second issue. See Tex.R.App. P. 38.1(h).

We next turn to the remainder of appellants’ argument under their second issue. Appellants argue that the evidence showed “it would have cost Defendants practically nothing to make changes to the location of their exhibits_” However, the only evidence appellants highlight is that showing other modifications were made using ap-pellees’ own employees. Appellants offered no evidence of how much it would cost to move the tour exhibits to the first floor, such as the cost to reconfigure the space, to move walls (as was testified by Neusse would be required to do in order to move items downstairs), or to make leasehold improvements to the upstairs to accommodate the needs of the displaced tenants. Appellants also offered no evidence of specifically how they proposed the downstairs space would be used and reconfigured.

Appellants’ specific complaint on appeal is that the evidence did not support the trial court’s conclusion that moving tour exhibit items to the first floor was not readily achievable. However, having reviewed the evidence, we conclude that appellants never met their initial burden of showing the requested barrier removal was readily achievable. See Colo. Cross Disability Coalition, 264 F.3d at 1007. Evidence of how other accessibility improvements were accomplished does not address the particular circumstances of moving walls, reconfiguring space, and making leasehold improvements. Because appellants never met this initial burden, appellees were not required to produce specific evidence to rebut appellants’ contention. We resolve appellants’ second issue against them.

Financial Status of Las Colinas Studios

In their third issue, also applicable to the barrier removal claim, appellants argue there is no or insufficient evidence to support the trial court’s specific finding that the “Tour has been continuously operating at a financial loss.” Appellants also argue that such finding is irrelevant.

Under this issue, appellants’ argument addresses one area of the factors used to show whether a barrier removal request is readily achievable: overall financial resources of the facility, including the overall size of the business, the number of persons employed at the site, and the effect on expenses and resources. See 42 U.S.C.A. § 12181(9). While financial status may not directly relate to a policy modification claim, it is a factor under a barrier removal argument. Accordingly, the finding is not irrelevant.

Looking at the evidence, Neuss testified that Dallas Soundstage and Las Colinas Studios had lost money. Appellants, though, point out that Neuss agreed his testimony was based on financial statements that had not been verified. There was no evidence, however, that either Dallas Soundstage or Las Colinas Studios were not operating at a financial loss. Appellants also presented no other evidence addressing appellees’ financial resources.

We have reviewed all of the evidence. We conclude the evidence is not so weak or this finding so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. See Zieben, 786 S.W.2d at 799. We resolve appellants’ third issue against them.

Public Restrooms in Compliance with the ADA

In their fourth issue, appellants argue there is no or insufficient evidence to support the trial court’s finding and conclusion that the studio had public restrooms on the ground floor that comply with the ADA. Appellants raised this argument in their second amended petition as part of them contention that appellees violated section 12182(a) of the ADA by failing to provide public accommodations that were accessible. They further argued in them petition that appellees could make all of the complained-of accommodations and that they were “readily achievable.” Appellants never addressed this issue using a policy modification argument. Accordingly, we review appellants’ issue under the burden applicable to a barrier removal claim.

Having made their argument under section 12182(a) of the ADA, appellants contended that the restrooms were inaccessible. However, even assuming the restrooms were not accessible as required by the ADA, to make their argument, appellants had the initial burden of proving that any bander removal requested was readily achievable. See Colo. Cross Disability Coalition, 264 F.3d at 1009. Appellants did not meet this burden.

During the trial, appellants offered Jim Sealy as their expert in architecture and accessibility issues. Appellees objected, stating he was not proven to be an expert; appellees also objected that Sealy was not qualified concerning the ADA as applied in this particular case. Appellees questioned Sealy on voir dire, and Sealy agreed that he could not testify whether this particular building was in compliance with the ADA because he had not been asked by appellants to make any determination regarding whether the removal of any architectural barriers was readily achievable. The trial court allowed Sealy to testify regarding the ADA and accessibility in general. However, it sustained appellees’ objection regarding Sealy’s ability to testify whether barrier removal was readily achievable.

Sealy proceeded to testify, and he discussed that he would typically compile a compliance report if he were asked to determine whether a bander removal task was readily achievable. Although he discussed what he viewed when he went to the facility, the court again sustained ap-pellees’ objection to Sealy’s testifying regarding whether this particular facility was in compliance; Sealy agreed he had not been requested to compile a compliance report. Sealy said he usually was hired by an owner of a facility. In this case, however, Sealy visited the facility at the request of appellants, and he had not surveyed the area to determine whether any changes that needed to be made were readily achievable.

Regarding the remaining testimony, appellants offered no evidence specific to removing any barrier applicable to the accessibility of the restrooms regarding cost, design, or plan. Accordingly, even if the restrooms did not comply with the ADA, appellants never met their burden of showing that any requested barrier removal was readily achievable. Because appellants did not meet their burden, the trial court properly found for appellees. Therefore, any error in this complained-of finding and conclusion is harmless. See BMC Software Belgium, N.V. v. Marchand, 83 5.W.Sd 789, 794 (Tex.2002) (trial court’s incorrect conclusion of law does not require reversal if trial court rendered proper judgment). We resolve appellants’ fourth issue against them.

Welcome Policy / Alternative Methods

In their fifth issue, appellants argue there was no or insufficient evidence to support the trial court’s finding that it was appellees’ policy that all persons are welcome at Las Colinas Studios and that persons with disabilities were offered reduced ticket prices and a video recording of the items on the second floor. We disagree.

The ADA provides that if the removal of a barrier is not readily achievable, discrimination occurs if the facility fails to make the accommodation available through alternative methods if such methods are readily achievable. See 42 U.S.C.A. § 12182(b)(2)(A)(v). The trial court found that appellees had provided an alternative method by which its accommodation was available.

Lewis testified that when he called Las Colinas Studios, he did not receive an offer to view the second-floor tour exhibit items via a video. However, he did testify that he was offered a ticket at a reduced rate. When Knieriem called the Las Colinas Studios, he said he received neither an offer for a reduced rate nor an offer to view the second floor exhibit items on a video. Appellant Holly physically went to Las Colinas Studios, and he too was offered neither a reduced rate nor a video viewing. However, he went on the portion of the tour located on the first floor, and ly did not buy a ticket for that portion of the tour.

Neuss testified that at the time of trial, a video of the second-floor tour exhibit items was available to persons who were unable to access the second floor. He also stated they had been contemplating making the video “for quite some time” in order to make the second floor more accessible. A video of the second floor was played during the trial. And even in their brief, appellants acknowledge the existence of a present video.

Regarding the policy of welcoming all persons to attend the tour, Lewis testified he was discouraged from attending the tour. He said he spoke to someone on the phone — he believed the person’s name was Bill. Neuss testified, though, that he recalled no employee by the name of Bill or William. Holly also testified about the response he received when he requested to go on the tour; Neuss testified any such response would be “directly against company policy, and a person that represented [the] company like that would be dismissed.” Holly testified he did not report the employee’s, behavior to anyone in management. Neuss stated the company policy regarding persons with disabilities was to “accept and try to give everyone a full tour of the studio.”

We have reviewed all of the evidence regarding the complained-of alternative methods of accessibility. It was up to the trial court to resolve any conflicts or inconsistencies in the testimony. See F & A Equip. Leasing, 854 S.W.2d at 684-85. Having reviewed all of the evidence, we conclude the trial court’s finding is not against the great weight and preponderance of the evidence and is neither manifestly unjust, shocking to the conscience, or clearly demonstrative of bias. See Zieben, 786 S.W.2d at 799. We resolve appellants’ fifth issue against them.

Having resolved all of appellants’ issues against them, we affirm the trial court’s judgment.

      . Appellants originally sued Dallas Soundst-age, Inc., Las Colinas Studios, Ltd., and Hill-wood Property Company. At the trial, after both sides closed, Hillwood moved for a directed verdict asking that Hillwood be dismissed from the case because it was no longer an owner in interest in Las Colinas Studios. The trial court granted the motion and dismissed Hillwood from the case. Appellants do not complain of the dismissal on appeal.

      . In December 1997, appellees moved for entry of judgment. According to the record, nothing else took place regarding the case until April 2001 at which time appellees moved for appointment of a special master. The trial court appears not to have acted on that motion but notified parties in September 2002 the case was set for final disposition in November of that year. Appellants filed a motion for judgment in October then a motion for new trial in March 2003. At that time, a new judge was on the bench, and the trial court first granted the motion for new trial then, upon a joint motion for judicial review of the trial transcript and request for judgment, the trial court removed the new trial from its docket. Final judgment was issued April 2004.

      . Appellants made this argument only as it applied to moving tour items downstairs. Accordingly, we analyze this issue only as it applies to any sort of policy regarding the decision to place tour exhibit items on the first or second floor.

      . In their reply brief, appellants also argue that their expert, Jim Sealy, testified that removal of seven specific complained-of barriers was readily achievable. Appellants list these seven such "barriers” in their brief; however, none of these barriers pertain to moving the tour exhibits to the first floor. And in this issue, appellants have appealed the trial court's findings and conclusion only regarding moving the exhibit tour items to the first floor. Accordingly, this argument is inapplicable to whether the evidence supports the trial court’s findings and conclusion as complained about by appellants.

      . Appellants do not complain of this ruling on appeal.

      . Appellants discuss in their brief that the video was made after suit was filed, but they offer no argument or legal authority explaining the significance of this point. Accordingly, we do not reach any such point in our review: any potential issue relative to this point is inadequately briefed. See TexR.App. P. 38.1(h).


author:
BRIAN QUINN, Chief Justice.
      JAMES T. CAMPBELL, Justice,

text:
    In re COVENANT MEDICAL CENTER and John Eaton, L.V.N, Relators.
    No. 07-05-0033-CV.
    Court of Appeals of Texas, Amarillo.
    July 7, 2005.

      John A. Scully, Nisha P. Byers, Lynn C. Sheils, Michelle E. Robberson, Cooper & Scully, P.C., Dallas, Mark 0. Blankenship, Crenshaw Dupree & Milam, L.L.P., Lubbock, for Relators.
    Joe L. Lovell, Lovell, Lovell, Newsom & Isern, Amarillo, Paul Colley, Jr. & Associates, Richard Alan Grigg, Law Office of Dicky Grigg, Austin, for Real Party In Interest.
    Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
   BRIAN QUINN, Chief Justice.

Covenant Medical Center and John Eaton, L.V.N. (collectively referred to as Covenant), petitioned this court for a writ of mandamus directing the trial court to 1) vacate its order granting Andrew Cord a 30-day grace period to file a medical expert report under § 13.01(g) of article 4590i of the Texas Revised Civil Statutes and 2) dismiss Cord’s suit. Cord was not entitled to an extension because the medical report tendered fell outside the scope of § 13.01(g), says Covenant, and, therefore, the trial court was obligated to dismiss the suit. We deny the application.

The first question we must address is whether the avenue of mandamus can be used to address the issue before us. As recently as this year, a panel of this court held that it could. See In re Brown, No. 07-04-0455-CV, 2005 WL 176504 at *1 (Tex.App.-Amarillo January 27, 2005, orig. proceeding); accord, In re Rodriguez, 99 S.W.3d 825, 827-28 (Tex.App.-Amarillo 2003, orig. proceeding) (holding the same); In re Morris, 93 S.W.3d 388, 390 (Tex.App.-Amarillo 2002, orig. proceeding) (holding the same). So the answer is yes.

Next, we must determine whether the trial court abused its discretion by granting Cord 30 additional days to file an adequate expert report. See In re Entergy Corp., 142 S.W.3d 316, 320 (Tex.2004) (holding that before mandamus can issue, the applicant must show that the trial court clearly abused its discretion); Walker v. Gutierrez, 111 S.W.3d 56, 63 (Tex.2003) (holding that the appropriate standard of review when assessing whether the trial court erred in granting an extension is one of abused discretion). According to Covenant, such an abuse occurred because the failure to timely provide an adequate report resulted not from an accident or mistake, as contemplated by art. 4590i, § 13.01(g), but rather intentional or consciously indifferent conduct. Moreover, the conduct consisted of a purported mistake of law concerning the qualifications or ability of a registered nurse to opine about what caused the injury at issue.

The expert in question (Paula L. Antog-noli, Ph.D., R.N., C.N.A.A.) was, and is, a registered nurse with a doctorate in philosophy. In her report, she generally described the length of time she practiced nursing, her duties, and the areas of her “clinical expertise.” The latter included “medical/surgical, critical care, emergency and trauma care, and surgical services .... ” So too did she state that the “enclosed vita attests to my qualifications as a result of my education and experience to render an opinion about the standard of care applicable to this case.” (Emphasis added). Nowhere in the report or vitae, however, did she expressly represent that her qualifications also enabled her to address causation.

One suing another for medical malpractice must

[n]ot later than the later of the 180th day after the date on which a health care liability claim is filed or the last day of any extended period ... (1) furnish to counsel for each physician ... one or more expert reports, with a curriculum vitae of each expert listed in the report; or (2) voluntarily nonsuit the action against the physician....

Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(d) (Vernon Supp.2003). For a report to satisfy art. 4590i, § 13.01(d), it must be written by an expert and provide a fair summary of that expert’s opinions regarding the applicable standard of care, its breach, and the causal relationship between the breach and injury. Chisholm v. Maron, 63 S.W.3d 903, 906 (Tex.App.-Amarillo 2001, no pet.). So too must it and the attached vitae establish the expert’s qualifications as an expert. Id. That is, it must show that the declarant is qualified as an expert on the subject about which he speaks. Id. at 906-07; accord In re Windisch, 138 S.W.3d 507, 511 (Tex.App.-Amarillo 2004, orig. proceeding).

Next, while expert testimony is normally required to establish the elements of a medical malpractice claim, see Hood v. Phillips, 554 S.W.2d 160, 165-66 (Tex.1977), that rule has its exceptions. For instance, under some circumstances it may not be necessary to prove causation. Schneider v. Haws, 118 S.W.3d 886, 892-93 (Tex.App.-Amarillo 2003, no pet.); Traut v. Beaty, 75 S.W.3d 661, 668 (Tex.App.-Texarkana 2002, no pet.). Those circumstances include situations wherein the relationship between the act and result is a topic that can be accessed simply through the exercise of a factfinder’s general experience and common sense. Id.

At bar, Cord sued Covenant and a licensed vocational nurse (LVN). His complaints were founded upon alleged breaches of standards applicable to the nursing profession. Being that the standards of care at issue pertained to nursing, as opposed to the practice of medicine by a physician, Cord had a registered nurse (Antognoli) review the supposed misfeasance and draft a report per § 13.01(d), art. 4590L In her report, Antognoli not only described the acts she deemed misfeasance but also opined about the applicable standards of care which a muse was to follow, their breach, and the causal relationship between their breach and injury suffered by Cord. Furthermore, in explaining her qualifications as an expert, she said nothing about her ability to discuss the topic of causation. Instead, she simply represented that her education and experience enabled her “to render an opinion about the standard of care_” Thereafter, the trial court found the report deficient; it apparently believed that she either was not qualified as an expert to opine about causation or did not illustrate that she was so qualified. Nonetheless, it eventually gave Cord 30 more days to file a report satisfying the requirements of § 13.01(d).

Implicit in the decision to extend Cord more time is the finding that neither he nor his attorney acted intentionally or with conscious indifference when tendering the initial report. Indeed, one of Cord’s attorney’s testified that they did not so act but thought a nurse such as Antognoli was qualified to opine about the results of one’s failure to abide by standards of care recognized in the field of nursing. And, while admitting that Antognoli may not have been qualified to discuss the “extent of the brain damage” suffered by Cord, he nonetheless thought her capable of analyzing the effect one’s inability to breathe would have on one’s well-being. Indeed, he informed the trial court that with regard to the failure to “monitor a patient, if a patient stops breathing, you probably don’t even need to be a nurse to say that’s going to cause harm.”

Given the statement of Cord’s attorney, there is evidence of record upon which the trial court could have found (when deciding whether to grant additional time) that counsel likened the element of causation to be of the kind mentioned in Schneider and Trout; that is, of the type that requires no expert testimony. In other words, the trial court had before it evidence of a purported mistake made by Cord’s attorney which influenced his decision to have An-tognoli draft the report. The alleged mistake consisted of the belief that a registered nurse could opine not only about the duties imposed on nurses but also the injuries caused others by the misconduct of nurses. More importantly, that nurses could so testify in certain situations found support in the law, as illustrated by Schneider and Traut. Since evidence of such a belief appears of record and the belief has arguable basis in the law, the trial court had basis to conclude that the mistake of counsel was accidental as opposed to intentional or consciously indifferent. And, because of that we cannot say it acted unreasonably or abused its discretion in granting Cord a 30-day extension. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978) (holding that when findings of fact and conclusions of law are not filed, the judgment must be upheld on any legal theory supported in the record).

To the extent Covenant suggests that Walker v. Gutierrez mandates a different result, we would disagree. Walker involved a situation wherein the report omitted one or more elements required by § 13.01(r)(6) of the Revised Civil Statutes. And, because statute clearly dictated that the report cover each element, the Supreme Court hesitated to excuse non-compliance with settled law. Walker v. Gutierrez, 111 S.W.3d at 64; see also In re Zimmerman, 148 S.W.3d 214, 217 (Tex.App.-Texarkana 2004, orig. proceeding). Yet, unlike the circumstance in Walker, authority here exists that enables a complainant to utilize a non-expert’s opinion on causation in certain cases. So too does the record hold evidence indicating that Cord and his attorneys thought that authority applied. So, we cannot say that the mistake, if any, by Cord implicated settled law known to Cord and contrary to his position.

Accordingly, the petition for writ of mandamus is denied.

CAMPBELL, J., dissenting.

JAMES T. CAMPBELL, Justice,

dissenting.

In my judgment, Cord’s mistaken belief that Dr. Antognoli’s report complied with section 13.01(r)(6) is not a mistake of law that entitled him to a section 13.01(g) grace period, and the trial court abused its discretion in granting the grace period.

The principle discussed in the Schneider, 118 S.W.3d 886, and Traut, 75 S.W.3d 661, cases, that expert testimony is not required to establish the causal relationship between a breach of the standard of care and the injuries claimed when that relationship fairly may be evaluated by the factfinder’s general experience and common sense, does not seem to me to apply to this case. According to Antognoli’s report, this case is not simply about a failure to monitor a patient who stopped breathing. The report provides three pages of detail, criticizing the nursing care provided Cord in several particulars, including the incorrect administration of morphine; the failure to accurately and completely document nursing interventions and physician orders and the patient’s response to the interventions and orders; the failure to record vital signs, pulse oximetry readings and physical assessments; failures in communication between professional and LVN nursing staff; and the failure to determine and record the amount of morphine administered to Cord. The report then concludes with a statement concerning causation, by which Antognoli opines that the breaches of the nursing standards “directly contributed to Andrew Cord’s post-surgical complication of respiratory depression and subsequent anoxic encephalopathy.”

General experience and common sense manifestly would not enable a factfinder to evaluate fairly the relationship between Cord’s neurological damage and the breaches the report says “directly contributed” to his injuries.

Cord’s contention that his counsel mistakenly believed Antognoli was qualified to address causation also cannot support a finding of accident or mistake under Walker because the asserted mistaken belief does not match the report. Cord’s response to relators’ petition cites his counsel’s testimony that he believed a nurse is qualified to state that “harm’s done if you don’t breathe.” But Antognoli’s report does not say that Cord stopped breathing. It does say that, according to medical records and deposition testimony, he was found with “deep, shallow, noisy slow res-pirations of 16 per minute.” It also says he was unconscious and unresponsive, and that he was exhibiting seizure activity. And the report does not just say that he suffered “harm.” It says he suffered anoxic encephalopathy. By its definition in section 13.01(r)(6), an expert report is one that addresses the standard of care, the manner in which the care rendered failed to meet the standard, and “the causal relationship between that failure and the injury, haim, or damages claimed.” (emphasis mine). Whether we read Cord’s pleadings (which allege Cord was diagnosed with “hypoxic encepholopathy”) or the section 13.01 expert report, the injury, harm or damages claimed is brain damage. Counsel’s stated belief that Antognoli is qualified to opine “that harm’s done if you don’t breathe” does not equate to a mistaken belief that she is qualified to render the opinions contained in her report.

In view of the injury claimed and the settled requirements for section 18.01(d) reports, see Chisholm, 63 S.W.3d at 906; Windisch, 138 S.W.3d at 511, I cannot agree that a belief no expert testimony on causation was required, or that counsel’s stated belief that Antognoli was qualified, constitutes the kind of mistake of law that entitled Cord to a section 13.01(g) grace period. Walker, 111 S.W.3d at 64.

I would hold that the report omitted a required expert opinion on the issue of causation, see § 13.01(r)(6); Chisholm, 63 S.W.3d at 907, and that Cord’s mistaken belief that the report complied with the statute is not a mistake of law that entitled him to a section 13.01(g) grace period. See Walker, 111 S.W.3d at 64-65; In re Brown, — S.W.3d -, -, No. 07-04-0455-CV, 2005 WL 176504, at *1-2, 2005 Tex.App. LEXIS 684, at *6-*7 (Tex.App.-Amarillo January 27, 2005, no pet. h.). Accordingly, I would grant relators their requested relief, and respectfully dissent from the Court’s disposition of their petition.

      . The report in question was issued by a registered nurse.

      . Article 459Oi, § 13.01(g) provided that:
      Notwithstanding any other provision of this section, if a claimant has failed to comply with a deadline established by Subsection (d) of this section and after hearing the court finds that the failure of the claimant or claimant’s attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection....
      Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(g) (Vernon Supp.2003).
      We recognize that this article can now be found at Tex. Civ. Prac. & Rem.Code Ann. §§ 74.001-74.507 (Vernon 2005).

      . Again, statute permits the trial court to grant the extension if it concludes that the claimant's actions were neither intentional nor the result of conscious indifference but rather accidental or a mistake. Tex.Rev.Civ. Stat. Ann. art.4590i, § 13.01(g) (Vernon Supp. 2003).

      . Whether the acts and injury involved in the case at bar evince one of those situations is not a matter before us at this time.

      . As discussed below, Antognoli’s report does not say Cord stopped breathing.

      . Relators contended before the trial court that the expert report was inadequate for the additional reason that its statement concerning causation was a mere conclusion. See Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex.2002). Relators’ mandamus petition here does not make that contention.

      . The complete statement quoted in Cord's response, from counsel’s testimony at the hearing at which the trial court granted the grace period, was: “In good faith, we didn't need [a brain injury expert]. Obviously, in proof at the trial of the case, we have to show the extent of his injuries. And we are using his treating physicians. But, as far as showing that harm’s done if you don’t breathe, we certainly felt that a nurse was qualified to state that.”


author: Opinion by Justice ROSS.

text:
    Roy A. AYERS, Appellant, v. Gail MITCHELL, Appellee.
    No. 06-04-00088-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted June 16, 2005.
    Decided July 12, 2005.
    Rehearing Overruled Aug. 16, 2005.

      Troy A. Hornsby, Miller, James, Miller & Hornsby, LLP, Texarkana, for appellant.
    John R. Mercy, Mercy, Carter & Tid-well, LLP, Texarkana, John W. Alexander, Alexander and Hammonds, LLP, Winns-boro, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Justice ROSS.

Roy A. Ayers and his wife, Lorayne, deposited funds in an account at a bank where they, along with two of their children, Gail Mitchell and Larry Ayers, were signatories on the account. Mitchell eventually gained sole control over the funds. Roy testified that he demanded a return of the funds. When Mitchell refused, Roy filed suit against her, alleging, among other things, breach of contract, conversion, breach of fiduciary duty, and fraud. Roy also sued for “a declaratory judgment that all monies in issue are owned by Roy A. Ayers and should be returned to Roy A. Ayers.” Mitchell counterclaimed, seeking a declaratory judgment as to the existence of a trust, terms of the trust, and her status as trustee. The funds at issue were ultimately deposited in the registry of the court.

The case was tried to the court and resulted in a judgment that Roy take nothing by his suit, that the funds at issue were held in an irrevocable trust for the benefit of Roy, and that Mitchell was the sole trustee of that trust. The court filed findings of fact and conclusions of law in support of its judgment. Roy appeals, challenging the material findings and conclusions made by the court. Because we hold the trial court erred in finding the existence of a valid trust, we reverse and render judgment that Roy is entitled to have the funds returned to him. We remand to the trial court the question of Roy’s reasonable and necessary attorney’s fees.

Background

In 1998, Roy and Lorayne became concerned about their future health and living care needs. According to Mitchell’s testimony, her parents asked her to take charge of their life savings to provide for their future healthcare needs. She said that her parents wanted to “shelter [these funds] ... from Medicaid.” So, on December 18, 1998, Roy and Lorayne created a savings account at a bank in Winnsboro, depositing approximately $48,000.00. There were four signatories on the account: Roy, Lorayne, Mitchell, and Larry. Mitchell’s social security number was shown on the account, and she paid the taxes on the income from the account. Mitchell testified Roy instructed her to keep her siblings from misusing any of this money. Mitchell’s siblings are: Larry, Marsha Kull, and Paul Ayers.

Lorayne died sometime after the creation of the savings account. In January 2003, Roy had surgery to amputate one of his legs. Following Roy’s surgery, Mitchell and Kull broached the subject of Roy living in a nursing home. Larry was opposed to this idea and took Roy home to live with him. Larry testified he “gutted” his home and did significant remodeling to make the home accessible for Roy. There was also testimony that Larry isolated Roy from the rest of the family. Larry, a single person, hired care providers to come into the house to help with Roy’s needs and with the cooking and other household chores. One caregiver testified it was her understanding from the other caregivers that Roy was not to be left alone with other members of the family. Jeff Ayers, Larry’s son, testified Larry told him not to associate with Mitchell or Kull, or any of their children. Jeff also testified that Larry had coached Roy on how to answer questions in court.

In June 2003, Mitchell became aware that Larry had been writing checks of increasing value on Roy’s checking account (not the account the subject of this suit). Mitchell then removed the funds in question from the savings account and opened a new account, with herself and Kull as signatories. Kull’s name was removed from the account, at her request, leaving Mitchell as the only signatory. Mitchell testified she viewed herself as trustee of these funds and felt responsible to protect the money and see to it that the money was used for Roy’s reasonable medical needs and for his “comfortable living expenses.”

Trial Court’s Findings and Conclusions

In its written findings of fact, the trial court found, among other things, that the bank account in question did not reflect that Mitchell was a trustee; that Roy and Lorayne intended that Mitchell hold the account subject to their requirements for comfortable living and medical needs; that Roy, Lorayne, Mitchell, and Larry were permitted to withdraw from the account; that Larry exerted undue influence over Roy; that the only withdrawal from the account made by Mitchell was for the construction of a bridge requested by Roy; that Roy was disoriented on the day of trial; that Roy was unable to care for himself; that Roy and Lorayne intended to completely divest themselves of any legal interests in the account in question; that Roy never made a demand on Mitchell for return of the account before filing suit; and that Roy and Lorayne intended for Mitchell to have complete control over the account subject only to their needs for healthcare and comfortable living.

In its conclusions of law, the trial court concluded that Mitchell is the trustee of the funds in the account in question; that the trust was intended to be irrevocable; that the trust became irrevocable on the death of Lorayne; that Roy is in need of a guardian; that, should any of the trust fund remain after the death of Roy, the trust terminates and the funds shall be paid out equally to the children of Roy and Lorayne; and that Roy and Lorayne intended to and did divest themselves of any interest in the trust fund except as beneficiaries thereof.

Roy’s Contentions

Roy contends the evidence established as a matter of law that Roy revoked the trust, and that failing to so find was against the great weight and preponderance of the evidence. He also contends the evidence established that Roy and Lo-rayne intended Larry and Mitchell to be joint trustees, and failing to so find was likewise against the great weight and preponderance of the evidence. Roy further contends the trial court erred in enforcing an oral trust and in ordering the trust res be divided equally among Roy’s children following his death. Finally, Roy contends the trial court should have awarded him attorney’s fees.

Standards of Review

Findings of fact in a case tried to the court have the same force and dignity as the findings made by a jury in its verdict. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex.Civ.App.-Houston [14th Dist.] 1977, writ ref'd n.r.e.). Findings of fact are not conclusive, however, when a- complete reporter’s record appears in the record. Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex.App.Houston [14th Dist.]), writ ref'd n.r.e., 699 S.W.2d 199 (Tex.1985).

In conducting a legal sufficiency review of a trial court’s findings, the judgment will not be set aside if there is any evidence of a probative nature to support it. Ray v. Farmers’ State Bank, 576 S.W.2d 607, 609 (Tex.1979) (citing Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972 (1951)). An appellate court cannot substitute its own findings of fact for those of the trial court if there is any evidence in the record to sustain the trial court’s findings. Id.

In reviewing the trial court’s findings for factual sufficiency, we consider all the evidence in the record, including any contrary to the trial court’s judgment. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). The trial court’s findings may be overturned only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

A trial court’s conclusions of law are reviewed de novo. In re Humphreys, 880 S.W.2d 402, 404 (Tex.1994).

Evidence of Oral Trust Not Legally Sufficient

We begin our analysis with Roy’s contention the trial court erred in enforcing an oral trust. In general, a trust must be in writing to be enforceable. Tex. PROP. Code Ann. § 112.004 (Vernon 1995). That statute requires a trust in either real or personal property to be created with a written document. However, a trust in personal property may be created, and the trust enforced, where there is a) a transfer of the trust property; b) to a trustee; c) who is neither settlor; d) nor beneficiary; e) if the transferor expresses at the time or before the transfer his or her intent to create a trust. Tex. PROP.Code Ann. § 112.004(1). A trust meeting these requirements need not be in writing.

Mitchell contends, and the trial court found, that Roy, as settlor, transferred, the funds in question to her as trustee. The Texas Property Code defines “beneficiary” as “a person for whose benefit property is held in trust, regardless of the nature of the interest.” Tex. PROP.Code Ann. § 111.004 (Vernon Supp.2004-2005). Mitchell does not contend, and the evidence does not show, that Mitchell is a beneficiary of the alleged trust. The evidence does show that, at the time or before the bank account in question was created, Roy made statements to Mitchell consistent with creating a trust. Fatal to Mitchell’s contention that an oral trust was established, however, is the absence of a complete transfer of the alleged trust property.

As it pertains to trusts, the Texas Property Code does not contain a definition of “transfer.” See Tex. PROP.Code Ann. § 111.004. However, in a case construing, in part, certain bank savings accounts opened by the account holder “in trust” for others, the Texas Supreme Court held that such trusts are governed in general by the rules applicable to gifts and explained that:

The principal difference between such a trust and a gift lies in the fact that in the case of a gift the thing given passes to the donee, while in the case of a voluntary trust only the equitable or beneficial title passes to the cestui qui trust. In each case the equitable title must pass immediately and unconditionally and the transfer thereof must be so complete that the donee might maintain an action for the conversion of the property. Absent a completed gift of the equitable title, no trust is created, for an imperfect gift will not be enforced as a trust merely because of its imperfection.
“But the peculiarity with respect to these so-called ‘savings bank trusts’ is that the courts require that the declar-ant shall express his intent to create a trust more clearly and by a larger number of acts than in the case of an ordinary trust. The deposit of money in a bank under a trust title is considered equivocal. Men frequently deposit money under a trust title from other motives than that of creating a trust.”

Fleck v. Baldwin, 141 Tex. 340, 172 S.W.2d 975, 978 (1943) (holding insufficient evidence of trust creation, particularly, lack of evidence of original owner’s intent to yield control over funds in question).

More recently, the Eastland Court of Appeals held that the intent of the donor is the principal issue in determining whether a gift has been made. Hayes v. Rinehart, 65 S.W.3d 286, 289 (Tex.App.-Eastland 2001, no pet.). That case was one brought by the testator’s son seeking, in part, a determination that funds in a certificate of deposit (CD) account in the name of the testator’s daughter were property of the estate, not a gift to the daughter. Part of the court’s consideration in upholding the trial court’s finding that there was no transfer of the funds by gift was the fact that the testator had used money from another CD account to purchase a pickup truck after also placing that CD account in the daughter’s name. Id. Significantly, the court also noted that the testator had, similar to the instant case, placed the CD account in his daughter’s name to be eligible for Medicare and Medicaid benefits. Id.

In another case, a mother put a CD in her name and in the name of her children, and the children asserted that this act constituted a gift as a matter of law. In rejecting the children’s contention, the Dallas Court of Appeals held that, for a gift to be effective, delivery must divest the donor of all dominion and control over the gift. McConathy v. McConathy, No. 05-95-01036-CV, 1997 WL 145172, *3-4 (Tex.App.-Dallas Apr. 1, 1997, pet. denied), 1997 Tex.App. LEXIS 1592, at *9-11 (not designated for publication). The court, noting that the mother, as a joint account holder of the CD, had the authority to dispose cf the CD without the children’s consent, further stated:

[The mother’s] placing [the children’s] names on the CD did not divest her of all dominion and control over the CD or immediately and unconditionally vest [the children] with ownership of the CD. Thus, [the mother’s] action of having [the children’s] names placed on the CD account with her own name did not establish present donative intent and delivery as a matter of law.

Id. 1997 WL 145172 at *4, at *11.

Applying these principles applicable to gifts, we hold that, to have a “transfer of the trust property to a trustee,” as contemplated by Section 112.004(1), the transfer must divest the trustor of all dominion and control over the trust res.

In the instant case, there is evidence that, at or before the time the funds in question were placed in the savings account, Roy and Lorayne instructed Mitchell to take charge of such funds to provide for their future healthcare needs. Further, Roy’s niece, Irene Ayers (daughter of Roy’s brother) testified Roy told her that Mitchell was in charge of Roy’s finances. However, the evidence further shows that neither Roy nor Lorayne ever divested themselves of all dominion and control over these funds. They both remained as signatories on the account where the funds were located. As such, they expressed their intent to retain control over such funds. It is axiomatic that, when an order to pay from an account has been signed by an authorized signer on the account, the order is to be paid. See Tex. Bus. & Com. Code Ann. § 4.401(a) (Vernon 2002) (bank may charge account for amount of item “properly payable”) and § 4.402(b) (Vernon 2002) (bank that refuses to pay item “properly payable” may be liable for ■wrongful dishonor). Roy and Lorayne remaining as signatories on the account defeats any claim that the funds in that account were transferred away from them.

Roy’s continued control over the account is also shown by Mitchell’s own testimony that her father instructed her to deduct $2,425.00 from the account to reimburse Mitchell for the cost of a bridge she had built on Roy’s property. Roy’s authorization of this expenditure shows his continued control over these funds and is inconsistent with the view that a complete transfer of those funds away from himself ever took place. Roy’s continued control of the funds is also shown by evidence that he made one or more loans to Larry from those funds.

The undisputed evidence shows that Roy had control over these funds until Mitchell moved them, without Roy’s knowledge or consent, into an account where she had sole control. We hold, as a matter of law, there was never a “transfer of the trust property to a trustee” as contemplated by Section 112.004(1). In the absence of a writing representing the creation of a trust, and in the further absence of a complete transfer of the funds, we hold that, as a matter of law, no valid trust was created. Accordingly, we sustain Roy’s point that the trial court erred in enforcing an oral trust.

Any Trust Created Was Revocable

Notwithstanding our conclusion that no valid trust was created, we will address Roy’s contention that the evidence established, as a matter of law, that Roy revoked any trust created and that the trial court’s failure to so find was against the great weight and preponderance of the evidence. Even if a valid trust had been created, we hold that, as a matter of law, any such trust was revocable and that it was revoked by Roy.

The trial court found the alleged trust to be irrevocable. That finding, however, is not supported by the evidence and is contrary to law. 'Trusts created under Texas law are revocable, unless made specifically irrevocable. Westerfeld v. Huckaby, 462 S.W.2d 324, 327 (Tex.Civ.App.-Houston [1st Dist.] 1970), aff'd, 474 S.W.2d 189 (Tex.1971). The irrevocability of a trust must • appear from the terms and language of the instrument creating the trust. Tex. Prop.Code Ann. § 112.051(a) (Vernon 1995). Otherwise, the trust is revocable. See Tex. Prop.Code Ann. § 112.051(a), (b) (Vernon 1995). Here, there was no written document establishing the trust and stating its purposes, duration, or whether it was revocable. The alleged oral trust was, as a matter of law, revocable.

Mitchell contends, and the trial court concluded, that the supposed trust was intended to be irrevocable and became irrevocable when Lorayne died. Mitchell cites Citizens Nat’l Bank v. Allen, 575 S.W.2d 654, 658 (Tex.Civ.App.-Eastland 1978, writ refd n.r.e.), in support of her position that a trust becomes irrevocable on the death of the trustor. That case, however, dealt with only one settlor, and the Eastland court qualified its holding with the following language:

[W]hen a valid inter vivos revocable trust is established and not revoked during the lifetime of the trustor, it becomes irrevocable upon his death, and there being no other unfulfilled purposes of the trust expressed, the trust terminates and is enforceable by the beneficiary.

Id. (Emphasis added.)

Obviously, where there is only one settlor of a trust, and he or she dies, that settlor is no longer capable of revoking the trust and, there being no other purpose, the trust becomes irrevocable. Where, however, there are multiple set-tlors, and one dies, but there are purposes of the trust yet unfulfilled, such trust does not become irrevocable on the death of one settlor. That is the situation here. Any trust that existed did not become irrevocable at Lorayne’s death, because Roy survived Lorayne and at least part of the trust’s purpose — providing for Roy’s healthcare needs — remained unfulfilled. Further, none of the evidence showed that Ray and Lorayne intended the alleged trust to be irrevocable. We hold, therefore, that, even if a valid trust was created, it was revocable as a matter of law.

We also hold that, as a matter of law, Roy revoked any such trust. In so holding, we recognize the testimony on this issue was conflicting. Roy testified he made demand on Mitchell for return of the funds. Mitchell testified Roy did not request a return of the funds. The trial court, believing Mitchell and disbelieving Roy, found that Roy never made a demand on Mitchell for a return of the funds before filing suit. The trial court further found that Roy was “disoriented” at the time of trial and that he was incapable of managing his financial affairs. The trial court concluded, as a matter of law, Roy was in need of a guardian.

The trial court, as fact-finder, was the sole judge of the credibility of the witnesses and the weight to be given their testimony. As such, it was the court’s prerogative to believe Mitchell’s testimony and disbelieve Roy’s. However, the issue of guardianship was not before the court. Indeed, the trial of this cause was abated pending a judicial determination of Roy’s need for a guardian by a district court in Titus County. The application for such guardianship (filed by Kull) was denied December 11, 2003. This case was reinstated April 8, 2004, and went to trial April 30, 2004. The trial court also found that Larry exerted undue influence over Roy, but that finding is not linked to any specific conduct by Larry or Roy, and the effect of that finding is not stated.

Aside from the conflict in the testimony concerning whether Roy revoked the alleged trust, Roy contends, and we agree, that the act of filing suit was itself a demand by Roy for a return of the funds and a revocation of the alleged trust. We find it significant that the trial court, in its finding that Roy never made a demand on Mitchell for a return of the funds, limited its finding to the period “before filing suit.” Further, Roy’s testimony at trial made it unmistakably clear he was demanding a return of his funds. We hold that, even if Roy’s funds were held in trust, as a matter of law, he revoked that trust by his act of filing suit and by his testimony at trial that he was demanding a return of his funds. The trial court’s failure to so find was against the great weight and preponderance of the evidence.

Attorney’s Fees

Roy’s last point of error asserts he would be entitled to recover his attorney’s fees in this action under Tex. Crv. Peac. & Rem.Code Ann. § 37.009 (Vernon 1997). Roy sued for “a declaratory judgment that all monies in issue are owned by Roy A. Ayers and should be returned to Roy A. Ayers.” Having sustained that contention, we agree that Roy is entitled to his reasonable and necessary attorney’s fees as are equitable and just.

Summary and Conclusion

Because we hold that no valid trust was created in this case and that, even if such trust was created, it was, as a matter of law, a revocable trust and was revoked, we find it unnecessary to address Roy’s other points of error.

We reverse and render judgment that Roy owns all the funds in issue and that such funds should be immediately returned to him. We remand to the trial court the determination of Roy’s reasonable and necessary attorney’s fees under Section 37.009 of the Texas Civil Practice and Remedies Code.

      . Because of the common last name, Roy, Lorayne, and Larry are referred to by their first names.

      . The trial court's findings of fact and Mitchell’s pleadings state that Lorayne died in 2000, but we have been unable to locate any indication of this date any other place in the record. Roy testified that Lorayne’s death was about three years before trial; the trial was held in April 2004.


author: BRIAN QUINN, Chief Justice.

text:
    Edna Sue Anderson WOODS, Appellant, v. Danny Craig WOODS, Appellee.
    No. 07-03-0363-CV.
    Court of Appeals of Texas, Amarillo.
    July 12, 2005.
    Bruce N. Smith, Beaumont, for Appellant.
    Lee Roger Ratliff, Law Office of Lee Roger Ratliff, Silsbee, for Appellee.
    Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

      . Though the trial court stated in its conclusion of law number six that it rendered judgment on November 21, 2002, the determination does not bind us. This is so because what it believed the legal effect of its action to be is not dispositive. S & A Restaurant Corp. v. Leal, 892 S.W.2d 855, 858 (Tex.1995) (stating that "[t]he fact that the trial court believed that he had rendered judgment ... is not dispositive”).

   Opinion

BRIAN QUINN, Chief Justice.

Edna Sue Anderson Woods (Edna) appeals from a final divorce decree. Through two issues, she contends that the trial court erred in 1) “denying [her] Motion to Withdraw Consent and ... entering the Final Decree of Divorce” and 2) concluding that it rendered judgment on the day it approved an agreement pertain-mg to the division of the marital estate. We reverse and remand in part and affirm in part.

Background

After petitioning for divorce but before expiration of the mandatory 60-day waiting period, see Tex. Fam.Code Ann. § 6.702(a) (Vernon 1998) (requiring the court to wait 60 days from the date suit is filed before granting a divorce), Edna and her husband, Danny Craig Woods, agreed to a particular division of their marital estate. The agreement was transcribed into the record at a hearing conducted by the trial court on November 21, 2002, a date some five weeks before expiration of the waiting period. And, though all recognized that a final judgment could not be entered upon the agreement at the time of the hearing, each acceded to the execution of temporary orders incorporating it. Then, the trial court not only approved the accord but also informed the litigants that their bargain would be incorporated into a final judgment when the prescribed waiting period lapsed.

After the temporary orders were executed but before the trial court signed a written judgment, Edna moved to withdraw her consent to the agreement. A hearing was held on the motion, after which it was denied. Subsequently, the trial court signed a final decree of divorce. Therein, it stated that the parties previously had “entered into an Agreement Incident to Divorce ...,” that the trial court had approved the agreement, and that the property division reflected in the document was “in accordance with the agreement.”

Authority

According to the Texas Supreme Court, one may revoke consent to a settlement agreement at any time before judgment is rendered on the agreement. S & A Restaurant Corp. v. Leal, 892 S.W.2d 865, 857 (Tex.1995). This is so because a trial court cannot render a valid agreed judgment absent the consent of the parties at the time it is rendered. Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex.1995). That the litigants may have satisfied the elements of Texas Rule of Civil Procedure 11 in arriving at the accord matters not; consent at the time judgment is rendered must still exist. Id. Moreover, a judgment rendered after one party revokes his consent is void. S & A Restaurant Corp. v. Leal, 892 S.W.2d at 857.

Next, a trial court renders judgment when it officially announces its decision in open court or by written memorandum filed with the clerk. Id. An intent to render judgment in the future does not satisfy this test, however. Id. at 857-58; quoting, Reese v. Piperi, 584 S.W.2d 329 (Tex.1976). Rather, the words spoken or written by the trial court must evince a present, as opposed to future, act that effectively decides the issues before the court. Id. In other words, it must “clearly indicate the intent to render judgment at the time the words are expressed.” Id.

Application of Authority

Here, the record clearly illustrates that Edna withdrew her consent to the November 21, 2002 agreement before the trial court signed the final decree. Yet, Danny argues that this is unimportant since the trial court actually rendered judgment during the November 21st hearing. We disagree.

At the end of the November hearing, the following discourse occurred:

COURT: Okay. Are we going to do one of two things, No. 1, we can just go ahead and approve the agreement as to a temporary basis and enter the temporary orders or we can approve the agreement as to a temporary basis, enter the temporary orders, and I can make a finding that the evidence substantiates the granting of the divorce and grant the divorce contingent on the expiration of the 60 days and the submission of the decree and the people will not have to come back.
Counsel: That was our intent, Your Honor, the latter, the temporary as well as—
COURT: Is that what you folks want me to do? In other words, make a finding that based on what I have heard so far, you have satisfied the Texas Family Code and your evidence substantiates the granting of the divorce but you’re not divorced. You will not be divorced until after January the 1st of 2003, at which time Mr. Butler [Edna’s attorney] and Mr. Ratliff [Danny’s attorney] would submit a decree to the Court and at that time I would sign the decree and your divorce would be granted upon signature and entry of the decree. So, in effect, you would be held under and bound under these temporary orders pending the signing of the decree at which time your divorce will be final. Is that what you folks want to do?
[Edna]: That’s fine.
[Danny]: Yes, sir.
COURT: Okay. The Court then this date based on the evidence submitted to the Court, the Court makes a finding that the evidence substantiates the granting to Edna Sue Anderson Woods a divorce from Danny Craig Woods. As to a temporary basis and to a permanent dissolution of the community property, the Court approves the parties [sic] agreement all as per the record made this date.
Whenever the temporary orders are signed and approved by the attorneys as to form, they will forward it to me and I will sign it and you will be bound by these temporary orders during the pen-dency of the divorce. Whenever the 60 days expire, which will be January the 1st, 2003, they will submit a final decree to me that has the property division all as per the record made this date in the decree. I will sign it, and your divorce will be final at that time upon signature and entry of the decree.

(Emphasis added). As can be seen, the italicized passages contain words short of evincing a clear intent to finally adjudicate (at the time the words were uttered) the rights involved. Indeed, the trial court recognized that it could not so resolve the issues at that time. Thus, it decided to issue “temporary orders” memorializing the agreement “during the pendency of the divorce.” And, once the requisite 60-day period lapsed, the parties were to then “submit a final decree ... that has the property division ... ”, which decree the trial court would sign to finalize the divorce. Explicit in these words was the need for further action, though the trial court obviously revealed the nature of the decision that would be encompassed by that action. And, the action consisted of the execution of a written decree containing the parties’ agreement. Because of that, we cannot say that the trial court rendered judgment at the November 21st hearing.

In sum, the trial court erred by incorporating into its judgment an agreement which Edna had previously revoked. Accordingly, we reverse that portion of the judgment that divides the marital estate of Edna and Danny Woods, affirm the remainder of the decree, and remand the cause for further proceedings.

      . Per Rule 11, "... no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.” Tex.R. Civ. P. 11.

      . Though the judgment may be void, that does not necessarily render the underlying agreement unenforceable. See Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex.1995) (stating that although a court cannot render a valid agreed judgment absent consent at the time it is rendered, this does not preclude it, after proper notice and hearing, from enforcing a settlement agreement complying with Rule 11 even though one side no longer consents to it). However, an attempt to enforce it must be based upon proper pleadings and proof. Id. at 462.