author: ANNE GARDNER, Justice.

text:
    Tim GLEASON and Wife, Diana Gleason and Randy Estes and Wife, Susan Estes, Appellants, v. Albert A. TAUB, Appellee.
    No. 2-04-110-CV.
    Court of Appeals of Texas, Fort Worth.
    Oct. 20, 2005.
    Rehearing Overruled Dec. 15, 2005.

      S. Gary Werley, Fort Worth, for appellants.
    Paul Francis, Fort Worth, for appellee.
    PANEL B: LIVINGSTON, GARDNER, and McCOY, JJ.
   OPINION

ANNE GARDNER, Justice.

INTRODUCTION

Appellants Tim and Diana Gleason and Randy and Susan Estes appeal from an order sustaining a plea to the jurisdiction and granting summary judgment. We reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Appellants allege that Appellee, Albert Taub, trespassed on their private property with a bulldozer, destroyed vegetation, and removed 16,000 cubic feet of dirt for use on another property where he was the construction manager. The affected part of the property is subject to a public drainage easement. Appellants sued Taub for trespass claiming that Taub’s actions have damaged them by adversely affecting their visual enjoyment of the property and have shortened the life of their trees.

Taub filed a plea to the jurisdiction, arguing that Appellants did not have standing to sue for trespass. He also filed a motion for summary judgment, arguing that he did not owe Appellants a duty to refrain from entering the property and removing dirt because the property was subject to a public easement. Taub also argued that, as a matter of law, he had a right to enter the easement and remove dirt and vegetation because his action improved the flow of water through the easement. The trial court granted both the plea and the motion.

DISCUSSION

Appellants argue two issues on appeal: (1) the trial court erred by ruling that Appellants lacked standing to sue and (2) the trial court erred by granting Taub’s motion for summary judgment on all claims. We will address each issue in turn.

STANDING

Standing is a necessary component of subject matter jurisdiction, which is essential to the authority of a court to decide a case. Brunson v. Woolsey, 63 S.W.3d 583, 587 (Tex.App.-Fort Worth 2001, no pet.). Standing is a question of law. Id. Without a breach of a legal right belonging to a plaintiff, that plaintiff has no standing to litigate. Id. A person has standing to sue when he or she is personally aggrieved by an alleged wrong. Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex.1996). Because the question of jurisdiction is a legal question, we apply the de novo standard of review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999).

A cause of action for injury to real property is a personal right that belongs solely to the owner of the property at the time the alleged injuries occurred. Senn v. Texaco, Inc., 55 S.W.3d 222, 225 (Tex.App.-Eastland 2001, pet. denied); Lay v. Aetna Ins. Co., 599 S.W.2d 684, 686 (Tex.Civ.App.-Austin 1980, writ ref'd n.r.e.). The granting of a public utility easement to the use and benefit of the public on a plat by the owner of a subdivision creates an easement in favor of the city, for the benefit of the public, with fee remaining in the owners and their successors in title. Humble Oil & Ref. Co. v. Blankenburg, 149 Tex. 498, 235 S.W.2d 891, 893 (1951). When an easement is dedicated to the public, possession and control of the surface are surrendered to the public, but ownership is not surrendered. See Cont’l Pipe Line Co. v. Gandy, 162 S.W.2d 755, 757 (Tex.Civ.App.-El Paso 1941, writ ref'd w.o.m.).

Taub argues that Appellants do not have standing to assert a claim for trespass or for damages to property within the public easement because Appellants are not the entity whose primary legal right has been breached. The land on which the trespass allegedly occurred is entirely within a public floodway, drainage, and utility easement. Taub contends that because a public easement is superior to the right of the individual who owns the fee, only the public — in this case, the City of Arlington — can bring a suit for trespass on the public easement.

We find no Texas cases holding that a fee owner lacks standing to sue a private party for trespass on private property that is subject to a public easement. Indeed, many cases resolve just such disputes with no discussion or even mention of standing. See, e.g., Grimes v. Corpus Christi Transmission Co., 829 S.W.2d 335 (Tex.App.Corpus Christi 1992, writ denied) (resolving a dispute between a servient tenant and a gas company that laid a pipeline in a public easement); Blackburn v. Brazos Valley Util., Inc., 777 S.W.2d 758 (Tex.App.-Beaumont 1989, writ denied) (resolving a dispute between servient tenant and a water utility company that laid a pipeline in a public easement).

Taub relies on Pak-Mor Manufacturing Co. v. Brown, 364 S.W.2d 89 (Tex.Civ.App.-San Antonio 1962, writ ref'd n.r.e.), for the proposition that only the dominant tenant — in this case, the City of Arlington — has standing to sue for trespass to a public easement. In that case, Pak-Mor built a dike and a fence across a public drainage and roadway easement on its own property. Id. at 90. The dike caused flooding on neighboring property. Id. The neighboring landowners sued Pak-Mor for nuisance. Id. The appellate court upheld the judgment of the trial court requiring Pak-Mor to remove the dike because it caused damage to the neighboring property. Id. at 95. But the appellate court also held that the neighboring landowners lacked standing to complain about the fence. Id. at 96. While Pak-Mor built the fence in the easement, it was entirely on Pak-Mor’s property and did not cause damage to the adjacent land. At most, the fence interfered with the disused roadway — something only the city or State could complain about. Id. From this holding, Taub jumps to the conclusion that only the city or State may ever sue for trespass on a public easement.

Our case is distinguishable from Pakr-Mor. The key distinction is that Pak-Mor built its fence on its own property; Taub, on the other hand, entered on and removed dirt from Appellants’ property. Pak-Mor neither trespassed on nor damaged its neighbors’ land; therefore, the neighbors had no standing to complain about the fence. But in this case Taub allegedly trespassed on and damaged Appellants’ property. Appellants, unlike Pak-Mor’s neighbors, were directly affected by Taub’s activity in the easement because they own the servient estate. Thus, Pak-Mor does not support Taub’s standing argument.

In this case Appellants are the owners of the underlying fee to the property that has directly been injured. Taub entered Appellants’ property and removed dirt, allegedly damaging their property. Appellants have standing to sue because they own the property and their property rights have been aggrieved by the alleged wrong. See Nootsie, 925 S.W.2d at 661.

Because Appellants have standing to sue, the trial court erred by sustaining Taub’s plea to the jurisdiction. We sustain Appellants’ first issue.

SUMMARY JUDGMENT

In a summary judgment case, the issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex.2002); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999); Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex.1996); Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). Therefore, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant. Limestone Prods., 71 S.W.3d at 311; Great Am., 391 S.W.2d at 47. A defendant is entitled to summary judgment if the summary judgment evidence establishes, as a matter of law, that at least one element of a plaintiffs cause of action cannot be established. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex.1999).

In his motion for summary judgment Taub claims that, as a matter of law (1) he owed Appellants no duty to refrain from entering the drainage and utility easement or removing dirt from the easement, and (2) he had a right to go into the area to improve the flow of water by moving dirt and removing vegetation because such actions are within the scope of the easement. We disagree.

In support of his claim that he owed no duty to Appellants, Taub cites Langston v. State, 812 S.W.2d 406, 408 (Tex.App.-Houston [14th Dist.] 1991), aff'd 855 S.W.2d 718 (Tex.Crim.App.1993), for the proposition that a person who is in a public easement does not commit a trespass against a private landowner adjoining the easement. The court in Langston did hold that protestors in the roadway easement outside of an abortion clinic were not guilty of criminal trespass, but it conditioned its holding by stating that it so held because the State had failed to prove that the clinic owned the servient estate where the easement was located. Id.

To succeed under Langston, Taub needed to show conclusively that Appellants did not own the property where the alleged trespass took place. Id. Taub’s summary judgment evidence proves just the opposite: Appellants do own the property where the alleged trespass took place, subject to the City of Arlington’s drainage and utilities easement. Because Taub has not conclusively disproved Appellants’ ownership of the property, he has failed to show as a matter of law that he owed no duty to Appellants. See id.

Taub also claims that as a matter of law he had a right to enter the easement and conduct activities within the scope of the easement, specifically, to improve drainage. In support of his motion for summary judgment, Taub presented the uncontroverted affidavit of professional engineer and registered public surveyor Dustin Zimmerman, who stated that, in his opinion, the movement of dirt and vegetation improved the flow of water and drainage in the easement and that those actions did not exceed the “typical usages” that are made of floodway, drainage, and utility easements.

Taub relies on Peterson v. Barron, 401 S.W.2d 680, 686 (Tex.Civ.App.-Dallas 1966, no writ), and City Public Service Board of San Antonio v. Karp, 585 S.W.2d 838, 841-42 (Tex.Civ.App.-San Antonio 1979, no writ), for the proposition that a public drainage and utility easement may be altered in any way consistent with the scope and intent of the use of the public easement. Taub fails to consider important aspects of these two holdings. Peterson holds that the city has a right to alter and use a public drainage and utility easement in any method consistent with the easement’s purpose. Peterson, 401 S.W.2d at 686. Karp holds that the easement may be used by the dominant tenant in a manner that is not inconsistent with the purpose for which it was created. Karp, 585 S.W.2d at 841-42. In this case, Taub is neither the city nor the dominant tenant. The city or dominant tenant has an absolute right to alter the easement in a manner consistent with its purpose. See Carter v. Lee, 502 S.W.2d 925, 930 (Tex.Civ.App.-Beaumont 1973, writ ref'd n.r.e.) (holding that a municipality has the exclusive right to control the drainage of surface water within its city limits). Nothing in the law suggests Taub was exalted above the status of a rank trespasser merely because his activities on Appellants’ property happened to be consistent with the public’s easement.

Because Taub failed to meet his summary judgment burden of establishing that he is entitled to judgment as a matter of law, the trial court erred by granting his motion for summary judgment. We sustain Appellants’ second issue.

CONCLUSION

Having sustained both of Appellants’ issues, we reverse and remand to the trial court for further proceedings. See Tex. R.App. P. 43.2(d).

      . Taub also cites Jamail v. Stoneledge Condominium Owners Association, 970 S.W.2d 673 (Tex.App.-Austin 1998, no pet.), Hale County v. Davis, 572 S.W.2d 63 (Tex.Civ.App.-Amarillo 1978, writ ref'd n.r.e.), and Continental Pipe Line, 162 S.W.2d at 755, for the proposition that a private citizen may not sue for any damage to a public easement. Jamail is not relevant because it is a nuisance case dealing with the placement of a gate across a public street where the appellants did not own the underlying fee. Jamail, 970 S.W.2d at 676. Continental Pipe Line is distinguishable because it concerned the proper use of a roadway easement pursuant to a statutory grant. Cont'l Pipe Line, 162 S.W.2d at 757. Hale does not support Taub's argument at all because it holds that the underlying fee owner does have standing to sue when a pipeline for private use is placed beneath a public easement, though it is distinguishable from the present case in that something was added to the easement rather than being taken away. Hale, 572 S.W.2d at 65.


source: Caselaw Access Project

author: FELIPE REYNA, Justice.

license: Public Domain

text:
    John RODGERS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 10-04-00280-CR, 10-04-00281-CR.
    Court of Appeals of Texas, Waco.
    Oct. 26, 2005.

      Scott K. Stevens, c/o Stan Schwieger, Waco, for appellant.
    David A. Castillo, Coryell County Dist. Atty., Gatesville, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

A jury convicted John Rodgers of the aggravated sexual assaults of two girls less than fourteen years’ old and assessed his punishment at forty years’ imprisonment for each conviction. Rodgers presents the same two issues in each case, contending that the court committed egregious error by failing to sua sponte instruct the jury on the State’s burden of proof for extraneous offenses in the guilt-innocence charge and in the punishment charge. We will affirm.

The indictments allege that Rodgers committed each offense by causing the mouths of the complainants to contact his sexual organ. A sexual assault nurse examiner testified that one of the complainants, M.E., told her that Rodgers had assaulted her in this manner multiple times, that he had contacted her vagina with his mouth, and that he had penetrated her vagina with his penis.

M.E. testified that Rodgers had forced her to perform oral sex on him multiple times, but she did not testify about other extraneous offenses. The other complainant, C.S., also testified that Rodgers had forced her to perform oral sex on him, but she never responded to the prosecutor’s questions about whether Rodgers forced her to do this more than once. Nor did C.S. testify about extraneous offenses.

Rodgers offered in evidence a Child Protective Services file which reflected that CPS had first investigated the complainants’ mother for suspicion of child abuse and neglect in 1998, two and one-half years before the offenses for which Rodgers was convicted. Among other things, the CPS file reflects allegations that one of the complainants had been sexually molested on a prior occasion, that one of them witnessed her mother engaged in sexual intercourse, and that one of them slept in the same bed with her mother “and [her mother’s] partner” while they were naked. The file also documents CPS’s investigation after the allegations against Rodgers were made and contains the complainants’ allegations of the offenses for which Rodgers was convicted and extraneous offenses he committed against them.

Guilt-Innocence Charge

Rodgers contends in his second issue that he suffered egregious harm because the court failed to sua sponte instruct the jury in the guilt-innocence charge that it could not consider evidence of extraneous offenses unless the jury was satisfied that the extraneous offenses had been proved beyond a reasonable doubt.

[The Court of Criminal Appeals] has held for many decades that “when evidence of collateral crimes is introduced for one of the various purposes for which such evidence becomes admissible, the jury should be instructed that they cannot consider against the defendant such collateral crimes, unless it has been shown to their satisfaction that the accused is guilty thereof.” In other words, a jury should be instructed that they are not to consider extraneous act evidence unless they believe beyond a reasonable doubt that the defendant committed that act.

Ex parte Varelas, 45 S.W.3d 627, 631 (Tex.Crim.App.2001) (citations omitted).

In the punishment phase, article 37.07, section 3(a)(1) similarly permits the fact-finder to consider evidence of extraneous offenses only if “shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible.” TexCode Crim. ProC. Ann. art. 37.07, § 3(a)(1) (Vernon Supp.2004-2005).

The Court of Criminal Appeals has considered the impact of this statute on the punishment charge and has concluded that it requires the inclusion of a reasonable doubt instruction in the punishment charge regardless of whether the defendant requests it or objects to its omission. See Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App.2000).

While extraneous-offense and bad-act evidence is generally admissible at punishment under section 3(a), we have recognized in unequivocal terms the circumstances in which it can be considered by the jury:
[Ejvidence [of extraneous bad acts and offenses] may not be considered in assessing punishment until the fact-finder is satisfied beyond a reasonable doubt that [such, acts and offenses] are attributable to the defendant, [emphasis supplied] Once this requirement is met, the fact-finder may use the evidence however it chooses in assessing punishment.

While section 3(a) says nothing about the submission of a jury instruction to this effect, such instruction is logically required if the jury is to consider the extraneous-offense and bad act evidence under the statutorily prescribed reasonable-doubt standard. Absent such instruction, the jury might apply a standard of proof less than reasonable doubt in its determination of the defendant’s connection to such offenses and bad acts, contrary to section 3(a). Section 3(a)’s requirement that the jury be satisfied of the defendant’s culpability in the extraneous offenses and bad acts is thus “law applicable to the case” in the non-capital punishment context. As this was “law applicable to the case” appellant was not required to make an objection or request under section 3(a) in order for the trial court to instruct the jury thereunder.

Id. (quoting Fields v. State, 1 S.W.3d 687, 688 (Tex.Crim.App.1999)) (citations omitted) (footnotes omitted).

As indicated by Huizar, the court’s charge must instruct the jury on the “law applicable to the case” regardless of the defendant’s request or objection. See id. at 484; see also Tex.Code Crim. PROC. Ann. art. 36.14 (Vernon Supp.2004-2005). Conversely, the Court of Criminal Appeals has historically required a defendant to request a reasonable doubt instruction on evidence of extraneous offenses (or object to its omission) before complaining on appeal that same was omitted from the guilt-innocence charge. See Varelas, 45 S.W.3d at 631-32; George v. State, 890 S.W.2d 73, 76 (Tex.Crim.App.1994); accord Rodriguez v. State, 137 S.W.3d 228, 231 (Tex.App.Houston [1st Dist.] 2004, no pet.).

According to our research, the Court of Criminal Appeals has not considered whether this requirement should continue in light of its holding in Huizar. See Rodriguez, 137 S.W.3d at 231. For the reasons which follow, we hold that the common law requirement that extraneous offenses admitted at guilt-innocence be shown beyond a reasonable doubt is the law applicable to the case when evidence of extraneous offenses is admitted and the trial court must so instruct the jury in the guilt-innocence charge regardless of whether the defendant requests such an instruction or objects to its omission.

The “law applicable to the case” generally includes statutes which apply to the facts of a particular case. See e.g. Huizar, 12 S.W.3d at 484 (“[art.37.07, § 3(a)’s] requirement that the jury be satisfied of the defendant’s culpability in the extraneous offenses and bad acts is thus ‘law applicable to the case’ ”); Arline v. State, 721 S.W.2d 348, 352 n. 4 (Tex.Crim.App.1986) (“a statutorily defined word or phrase must be included in the charge as part of the ‘law applicable to the case’ ”); Goodman v. State, 8 S.W.3d 362, 364 (Tex.App.-Austin 1999, no pet.) (“When a witness who is an accomplice as a matter of law gives testimony to which article 38.14 applies, the statutorily required instruction is ‘law applicable to the case.’ ”).

Sometimes, the common law' serves as a basis for the “law applicable to the case.” See Gray v. State, 152 S.W.3d 125, 131 (Tex.Crim.App.2004) (“Under our caselaw, this charge instructed the jury on the law applicable to the case.”).

However, defensive issues (even if statutorily-defined) do not constitute the “law applicable to the case” unless the defendant makes them so by presenting evidence to support their submission in the charge and by requesting their inclusion in the charge. See Huizar, 12 S.W.3d at 484 n. 7 (citing Posey v. State, 966 S.W.2d 57, 62 (Tex.Crim.App.1998)). In the same manner, limiting instructions regarding evidence of extraneous offenses do not constitute the “law applicable to the case” unless such instructions are requested by the party seeking to restrict the jury’s consideration of the evidence to its admissible purpose. See Hammock v. State, 46 S.W.3d 889, 895 (Tex.Crim.App.2001).

These two categories of issues and instructions for which requests are required rest largely on strategic choices made by defense counsel. Defense counsel must familiarize himself with the facts of the client’s case, identify any particular defenses which may be applicable to the facts, and develop a strategy to present the applicable defenses at trial. With regard to evidence of extraneous offenses, effective counsel will obtain pre-trial notice of those extraneous offenses which the State intends to prove at trial. See Loredo v. State, 157 S.W.3d 26, 29-30 (Tex.App.Waco 2004, pet. ref'd). Counsel must then plan a trial strategy to confront this evidence and be prepared to promptly request an instruction from the court limiting the evidence to its admissible purpose. See Hammock, 46 S.W.3d at 893-94.

Unlike these two categories of issues and instructions which will vary depending on the facts of the case, the requirement that extraneous offenses admitted at the guilt-innocence phase be shown beyond a reasonable doubt is a common law requirement applicable to any case in which evidence of extraneous offenses is . admitted. See Varelas, 45 S.W.3d at 631. The foundation for this requirement is quite similar to that for extraneous offenses admitted at punishment. Compare id. (jurors “are not to consider extraneous act evidence unless they believe beyond a reasonable doubt that the defendant committed that act”) with Huizar, 12 S.W.3d at 484 (“[E]vidence [of extraneous bad acts and offenses] may not he considered in assessing punishment until the fact-finder is satisfied beyond a reasonable doubt that [such acts and offenses] are attributable to the defendant.”).

In fact, it appears that the common law predating the enactment of the current version of article 37.07, section 3(a)(1) served as the source for the beyond-a-reasonable-doubt burden of proof the Legislature incorporated in that statute. See Edward L. Wilkinson, Punishment Evidence: Grunsfeld Ten Years Later, 35 St. Mary’s L.J. 603, 667-68 & n. 363 (2004) (citing Mitchell v. State, 931 S.W.2d 950, 954 (Tex.Crim.App.1996) (plurality)).

In Mitchell, a plurality of the Court of Criminal Appeals addressed the relationship between extraneous offenses admitted at guilt-innocence and those admitted at punishment.

[T]he use of extraneous offenses during the punishment phase should be analogous to that of the guilt/innocence phase of a trial regarding burden of proof. The use of evidence of extraneous offenses during the guilt/innocence phase is used to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Diming the punishment phase, evidence of an extraneous offense is offered to assist the trial court or the jury in determining punishment. When evidence of extraneous offenses has been offered, regardless of the respective phase of a trial, the law requires that it be proved beyond a reasonable doubt that the defendant committed the said extraneous offenses, or is at least criminally responsible for its commission.

Mitchell, 931 S.W.2d at 954 (emphasis added).

“[T]he law requires” that extraneous offenses be proved beyond a reasonable doubt. Id. This requirement is more compelling during the guilt-innocence phase than during the punishment phase because the defendant’s presumption of innocence is still intact. Cf. Delo v. Lashley, 507 U.S. 272, 278, 113 S.Ct. 1222, 1226, 122 L.Ed.2d 620 (1993) (per curiam) (“Once the defendant has been convicted fairly in the guilt phase of the trial, the presumption of innocence disappears.”). Thus, “[a] defendant is ‘entitled to be tried on the accusations made in the State’s pleading and he should not be tried for some collateral crime or for being a criminal generally.’ ” Varelas, 45 S.W.3d at 630 (quoting Wilkerson v. State, 736 S.W.2d 656, 659 (Tex.Crim.App.1987)). For this reason, it is imperative that the jury be instructed that it cannot consider evidence of an extraneous offense unless the jurors “believe beyond a reasonable doubt that the defendant committed that act.” See id. at 631.

Accordingly, the requirement that extraneous offense be proved beyond a reasonable doubt is the “law applicable to the ease” when evidence of extraneous offenses is admitted during the guilt-innocence phase. “As this was ‘law applicable to the case,’ appellant was not required to make an objection or request ... in order for the trial court to instruct the jury” on this requirement. See Huizar, 12 S.W.3d at 484; contra Rodriguez, 137 S.W.3d at 230-31.

The First Court of Appeals has suggested that there is a division among the intermediate courts of appeals on this issue. See Rodriguez, 137 S.W.3d at 231. Although we agree that the courts are divided on this issue, we believe the First Court misread some of the opinions in question. According to the First Court, the San Antonio and Dallas Courts have extended Huizar to the guilt-innocence charge, while the Amarillo and Fourteenth Courts have (like the First Court) held that it does not apply.

The Amarillo and Fourteenth Courts have reached the same conclusion as the First Court that a trial court is not required to sua sponte submit a reasonable doubt instruction on extraneous offenses in the guilt-innocence charge. See Gilbert v. State, 2003 WL 22176625, at *4, 2003 Tex.App. LEXIS 8158 at *11-12 (Tex.App.Houston [14th Dist.] Sept. 23, 2003, no pet.) (mem.op.); Salazar v. State, 2002 WL 246642, at *3, 2002 Tex.App. LEXIS 1335 at *9-11 (Tex.App.-Amarillo Feb. 21, 2002, pet. ref'd) (not designated for publication).

The First Court suggests that the San Antonio Court has held the trial court does have such a sua sponte obligation. See Rodriguez, 137 S.W.3d at 231 (citing Chapa v. State, 2003 WL 1025148, at *1-2, 2003 Tex.App. LEXIS 2091 at *3-5 (Tex.App.San Antonio Mar. 12, 2003, pet. ref'd) (mem.op.)). However, the San Antonio Court agreed with the appellant in Chapa only on the issue “that the trial court erred in failing to instruct the jury as to reasonable doubt at the punishment phase.” Chapa, 2003 WL 1025148, at *1, 2003 Tex.App. LEXIS 2091 at *5 (emphasis added). Although some of the language employed by the San Antonio Court makes its discussion unclear, it appears that the emphasis in that decision was on the necessity of a reasonable doubt instruction in the punishment charge when evidence of extraneous offenses was admitted during the guilt-innocence phase. Id. 2003 WL 1025148, at *1, 2003 Tex.App. LEXIS 2091 at *4 (‘We assume that Huizar applies to extraneous offenses offered at both stages of trial.”) (citing Allen v. State, 47 S.W.3d 47, 50-51 (Tex.App.-Fort Worth 2001, pet. ref'd)). Thus, it does not appear that the San Antonio Court has yet decided whether the trial court must sua sponte submit a reasonable doubt instruction on extraneous offenses in the guilt-innocence charge.

The Dallas Court likewise has not plainly stated that a trial court must do so. In Carter, the Dallas Court reviewed a pro se response to an Anders brief which raised the issue in the context of an ineffective assistance of counsel claim. See Carter v. State, 2004 WL 2985144, at *1, 2004 Tex.App. LEXIS 11539 at *1-3 (Tex.App.-Dallas Dec. 28, 2004, no pet.). The Dallas Court concluded that this was an “arguable issue” and remanded the appeal to the trial court for the appointment of new counsel to file a brief on the merits. Id. 2004 WL 2985144, at *1, 2004 Tex.App. LEXIS 11539 at *8-9. The Dallas Court suggested that new “counsel should discuss the lack of jury instructions regarding the burden of proof for evidence of extraneous offenses introduced at trial and any other grounds that might arguably support the appeal.” Id. However, the Dallas Court has not reached the merits of this issue.

We disagree with the courts which have concluded that a trial court has no sua sponte duty to submit a reasonable doubt instruction on evidence of extraneous offenses in the guilt-innocence charge when such evidence is admitted. We hold that the requirement that extraneous offenses be proved beyond a reasonable doubt is the “law applicable to the case” when evidence of extraneous offenses is admitted during the guilt-innocence phase. “As this was ‘law applicable to the case,’ appellant was not required to make an objection or request ... in order for the trial court to instruct the jury” on this requirement. See Huizar, 12 S.W.3d at 484; contra Rodriguez, 137 S.W.3d at 231; Gilbert, 2003 WL 22176625, at *4, 2003 Tex.App. LEXIS 8158 at *12; Salazar, 2002 WL 246642, at *3, 2002 Tex.App. LEXIS 1335 at *10-11.

Here, the evidence of extraneous offenses was provided by the testimony of the sexual assault nurse examiner and by the information about the allegations against Rodgers contained in the CPS file, both of which referred to sexual assaults committed against the complainants in a manner other than alleged in the indictment. Because evidence of extraneous offenses was admitted during the guilt-innocence phase, the trial court had a duty to sua sponte submit an instruction in the guilt-innocence charge that this evidence could not be considered unless the jurors were convinced beyond a reasonable doubt that Rodgers had committed the extraneous offenses shown. Because the court failed to submit such an instruction, we must conduct a harm analysis.

In Rodriguez, Gilbert, and Salazar, the courts did not conduct harm analyses because they found no error in the charge. See Rodriguez, 137 S.W.3d at 231; Gilbert, 2003 WL 22176625, at *4, 2003 Tex.App. LEXIS 8158 at *12; Salazar, 2002 WL 246642, at *3, 2002 Tex.App. LEXIS 1335 at *10-11. Conversely, the Texarkana Court, even though it did not hold that a trial court has a sua sponte duty to submit a reasonable doubt instruction in the guilt-innocence charge regarding evidence of extraneous offenses, did review the record to see whether the appellant had suffered “egregious harm” under Almanza because of the trial court’s failure to submit such an instruction. See Shanks v. State, 13 S.W.3d 83, 87 (Tex.App.-Texarkana 2000, no pet.).

Rodgers concedes that because he failed to object to this omission he cannot obtain reversal unless he suffered “egregious harm.” See Tex.Code Ckim. PROC. Ann. art. 36.19 (Vernon 1981); Shanks, 13 S.W.3d at 87; see also Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985). The issue is whether Rodgers was harmed by the improper omission of the instruction, not by the admission of evidence of extraneous offenses. See Ellison v. State, 86 S.W.3d 226, 228 (Tex.Crim.App.2002). In evaluating harm, we consider “the entire jury charge, the state of the evidence, including contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at 171; Martin, 42 S.W.3d 196, 200 (Tex.App.-Fort Worth 2001, pet. ref'd); accord Ellison, 86 S.W.3d at 228.

The evidence in question was admitted through the testimony of the sexual assault nurse examiner and notations in the CPS file. However, the references to the extraneous offenses in the CPS file were not mentioned in testimony. Neither party otherwise emphasized the extraneous offense evidence in testimony or argument, although Rodgers’s counsel encouraged the jury to review the CPS file in support of the defense’s theory that the complainants were exposed to inappropriate sexual behavior by their mother and her paramours and were never sexually assaulted by Rodgers. The State responded by “inviting” the jury to look at the CPS file because the State was “not going to hide anything.” The State encouraged the jury to consider the CPS file and see (1) the difficulties the complainants’ mother was experiencing during the pertinent time periods, (2) the fact that none of the allegations against her were substantiated, and (3) the fact that the children were never removed from her care by CPS.

Because Rodgers admitted the CPS file in evidence without redaction or limitation, because neither party placed emphasis on the evidence of extraneous offenses contained in the CPS file, and because neither party made further reference to the brief testimony of the sexual assault nurse examiner regarding extraneous offenses against M.E., we cannot say that Rodgers suffered “egregious harm” because of the court’s failure to submit a reasonable doubt instruction with regard to the evidence of extraneous offenses admitted during the guilt-innocence phase. See Martin, 42 S.W.3d at 201 (no egregious harm where “any consideration of those bad acts by the jury in assessing punishment was at least partially prompted by defense counsel’s urging”). Accordingly, we overrule Rodgers’s second issue.

Punishment Charge

Rodgers contends in his first issue that he suffered egregious harm because the court failed to sua sponte instruct the jury that it could not consider evidence of extraneous offenses in assessing punishment unless the jury was satisfied that the extraneous offenses had been proved beyond a reasonable doubt.

The court erred by failing to sua sponte submit a reasonable doubt instruction regarding evidence of extraneous offenses in the punishment charge. Ellison, 86 S.W.3d at 227; Huizar, 12 S.W.3d at 484. Because there was no request or objection, the only issue to be determined is whether this error caused Rodgers to suffer “egregious harm.” Ellison, 86 S.W.3d at 228; Martin, 42 S.W.3d at 200.

Here, Rodgers’s 40-year sentences were significantly less than the 70-year sentences sought by the State. See Tabor v. State, 88 S.W.3d 783, 789 (Tex.App.-Tyler 2002, no pet.) (no egregious harm where jury sentenced defendant to 15-year sentence though State argued for maximum 20-year sentence). As with the guilt-innocence phase, the prosecutor did not refer to the evidence of extraneous offenses in his punishment argument. See Bolden v. State, 73 S.W.3d 428, 432 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (no egregious harm where prosecutor did not emphasize evidence of extraneous offense in argument); cf. Allen, 47 S.W.3d at 52-53 (no egregious harm even though prosecutor placed great emphasis on evidence of extraneous offenses). Finally, we note again that Rodgers was the primary source for the evidence in question because he offered the CPS file in evidence. See Martin, 42 S.W.3d at 201 (no egregious harm where defense counsel prompted jury to consider extraneous offenses).

Accordingly, we cannot say that Rodgers suffered egregious harm because of the court’s failure to submit a reasonable doubt instruction in the punishment charge concerning evidence of extraneous offenses admitted during the guilt-innocence phase. Thus, we overrule Rodgers’s first issue.

We affirm the judgment.

GRAY, C.J., concurred in the judgment.

      . This witness read the complainant's comments to the jury from the "sexual assault exam paperwork” which was marked as State's Exhibit No. 1 but never offered in evidence.

      . The charge at issue in Gray instructed the jury on the "synergistic effect” of multiple intoxicants in a case in which the information alleged only alcohol as an intoxicant. See Gray v. State, 152 S.W.3d 125, 131 (Tex.Crim.App.2004).

      . As noted, Mitchell is a plurality opinion. The lead opinion in Mitchell was joined by only 1 judge; 1 judge did not participate in the decision; 3 judges concurred in the judgment but not the opinion; and 3 judges dissented. See Mitchell v. State, 931 S.W.2d 950, 950 (Tex.Crim.App.1996) (plurality). The lead opinion was quoted with approval in Varelas. See Ex parte Varelas, 45 S.W.3d 627, 631 (Tex.Crim.App.2001). In reviewing the opinions of the concurring judges in Mitchell, it does not appear that these judges took issue with the section of the lead opinion quoted herein. See Mitchell, 931 S.W.2d at 954-57 (Clinton, J., concurring; Meyers, J., concurring) (Judge Maloney joined Judge Meyers's concurring opinion).

      .The Fort Worth Court held in Allen:

      If extraneous offense or bad acts evidence is before the jury, regardless of whether such evidence was introduced at the guilt-innocence or punishment phase, article 37.07, section 3(a) requires that the jurors be instructed not to consider such extraneous offenses or bad acts in assessing the defendant’s punishment unless they find the defendant culpable for such offenses or acts under the statutorily prescribed reasonable-doubt standard.

        Allen v. State, 47 S.W.3d 47, 50 (Tex.App.Fort Worth 2001, pet. ref'd).

      . See Anders v. Cal., 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967).

      . For reasons unknown, newly appointed counsel in Carter chose not to raise this "arguable issue” on resubmission. See Carter v. State, 2004 WL 2985144, at *1 n. 1, 2005 Tex.App. LEXIS 6866 at *1 n. 1 (Tex.App.Dallas Aug. 24, 2005, no pet. h.).

      . The testimony that Rodgers sexually assaulted the complainants in the manner alleged in the indictment on more than one occasion does not constitute evidence of extraneous offenses. See Shea v. State, 167 S.W.3d 98, 104 (Tex.App.-Waco 2005, pet. filed).

      . Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985).


text:
    Douglas Eugene HANSON, Appellant, v. The STATE of Texas, Appellee.
    No. 10-04-00295-CR.
    Court of Appeals of Texas, Waco.
    Oct. 26, 2005.
    Rehearing Overruled Nov. 22, 2005.

      Joseph L. Sheppard, Burleson, Richard Aley, Fort Worth, for appellant.
    Dale S. Hanna, Johnson County Dist. Atty., Cleburne, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

A jury convicted Douglas Eugene Hanson of three counts of aggravated sexual assault of a child and two counts of indecency with a child. The jury assessed his punishment at fifteen years’ imprisonment and a $2,000 fíne for each of the aggravated sexual assault convictions and ten years’ imprisonment and no fine for each of the indecency convictions. Hanson contends in four points that: (1) the court improperly commented on the weight of the evidence in the guilt-innocence charge by referring to the complainant as the “alleged victim” in an instruction regarding extraneous offenses; (2) the court abused its discretion by admitting the complainant’s out-of-court statements because the State failed to comply with the outcry statute and because their admission violated his right of confrontation under Crawford v. Washington; and (3) his multiple convictions for aggravated sexual assault and for indecency violate the state and federal constitutional protections against double jeopardy (2 points). We will affirm.

Comment on the Evidence

Hanson contends in his first point that the court improperly commented on the weight of the evidence in the guilt-innocence charge by referring to the complainant as the “alleged victim” in an instruction regarding extraneous offenses.

The wording at issue appears in the court’s instruction to the jury that it could not consider evidence of extraneous offenses unless the jurors were satisfied beyond a reasonable doubt that Hanson had committed them. The instruction referred to any evidence “regarding the Defendant’s having committed offenses against the alleged victim other than the offenses alleged against him in the indictment, or regarding the Defendant’s having committed offenses against any other person.” Hanson did not object to this instruction.

Because Hanson did not object, he must establish not only that the instruction was erroneous but also that he suffered egregious harm from it. See Mann v. State, 964 S.W.2d 639, 641 (Tex.Crim.App.1998); Steadman v. State, 160 S.W.3d 582, 585 (Tex.App.-Waco 2005, pet. ref'd).

Article 36.14 of the Code of Criminal Procedure governs the charge to the jury. It requires the trial court to submit its charge “not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury.” Tex.Code Crim. PROC. Ann. art. 36.14 (Vernon Supp.2004-2005).

A charge improperly comments on the evidence if it “assumes the truth of a controverted issue.” Whaley v. State, 717 S.W.2d 26, 32 (Tex.Crim.App.1986); Jackson v. State, 105 S.W.3d 321, 326 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd); Smith v. State, 959 S.W.2d 1, 27 (Tex.App.Waco 1997, pet. ref'd). Thus, a reference in the jury charge to the complainant as “the victim” improperly comments on the evidence. See Casey v. State, 160 S.W.3d 218, 229-30 (Tex.App.-Austin 2005, pet. granted); Veteto v. State, 8 S.W.3d 805, 816-17 (Tex.App.-Waco 2000, pet. ref'd); Talkington v. State, 682 S.W.2d 674, 675 (Tex.App.-Eastland 1984, pet. ref'd).

Here however, the language in question refers to the complainant as “the alleged victim.” (emphasis added). Thus, the court’s instruction did not assume that the complainant was in fact a victim. Accordingly, the instruction was not improper, and we overrule Hanson’s first point.

Outcry Testimony

Hanson contends in his second point that the court abused its discretion by admitting the complainant’s out-of-court statements because the State failed to comply with the outcry statute and because their admission violated his right of confrontation under Crawford v. Washington.

Article 88.072 permits the admission in evidence of the hearsay statement of a child abuse victim under limited circumstances. Pertinent to Hanson’s case, the State must give notice of its intent to offer such a statement at least fourteen days before trial; the State must provide “a written summary of the statement”; the statement must be the first one describing the offense which the complainant made to an adult (eighteen or older) other than the defendant; and the complainant must testify at trial or be available to testify. See Tex.Code CRIM. Proc. Ann. art. 38.072, § 2 (Vernon 2005).

Hanson contends that the outcry witness’s testimony should have been excluded under article 38.072 because: (1) the State failed to give fourteen days’ notice; (2) the State failed to provide a sufficiently detailed written summary of the statement; and (3) the person whom the State designated as the outcry witness was not the first adult to whom the complainant made a statement describing the offense.

Article 38.072 describes the proper outcry witness as “the first person, 18 years of age or older, other than the defendant, to whom the child made a statement about the offense.” Id. art. 38.072, § 2(a)(2). The Court of Criminal Appeals has construed this to mean the first adult “to whom the child makes a statement that in some discernible manner describes the alleged offense. [This] statement must be more than words which give a general allusion that something in the area of child abuse was going on.” Garcia v. State, 792 S.W.2d 88, 91 (Tex.Crim.App.1990). “[A] trial court has broad discretion in determining” the proper outcry witness. Id. at 92; accord Elder v. State, 132 S.W.3d 20, 26 (Tex.App.-Fort Worth 2004, pet. ref'd).

At a pretrial hearing to' determine the admissibility of the outcry testimony, the complainant J.Q. testified that in December 2001 he told his guidance counselor, then his mother, then a therapist that Hanson had “touched [him] in [his] private parts.” J.Q. explained that he did not describe this “in any great detail” with any of them. He discussed the incidents in far more detail with an investigator, Geanetta Salter, in February of the following year.

On cross-examination, J.Q. testified that he further discussed the allegations with his parents during the months between the initial report in December and his interview with Salter in February. He testified that he told his father that Hanson had touched his penis and his “butt” but that he did not go into detail because he “didn’t really feel comfortable” discussing it with his father.

The proper outcry witness is the adult to whom the complainant first tells “how, when, and where” he was assaulted. See Sims v. State, 12 S.W.3d 499, 500 (Tex.App.-Dallas 1999, pet. ref'd); Reed v. State, 974 S.W.2d 838, 841-42 (Tex.App.San Antonio 1998, pet. ref'd). Here, J.Q. told his parents and the others with whom he talked before Salter only the general statement that Hanson had touched his “private parts” (using slightly more specific language with his father). There is nothing in the record to suggest that he told them any details about “how, when, and where” Hanson assaulted him. Id. Thus, we cannot say that the trial court abused its discretion in determining that Salter was the proper outcry witness. See Smith v. State, 131 S.W.3d 928, 931 (Tex.App.-Eastland 2004, pet. ref'd) (complainant told mother and doctor that defendant “had been performing oral sex on him” then later provided details to another adult); Castelan v. State, 54 S.W.3d 469, 475-76 (Tex.App.-Corpus Christi 2001, no pet.) (complainant told grandmother that defendant had “put his thing in through the back” then later provided details to counselor); Sims, 12 S.W.3d at 500 (complainant told mother that defendant “had touched her private parts” then later provided details to counselor).

It is undisputed that the State’s outcry notice was untimely, having been given less than a week before trial. When Hanson objected on the basis of the timeliness of the State’s notice, the State responded that Hanson’s counsel had reviewed Salter’s report in the State’s file on “a couple of different occasions” and that she had previously told Hanson’s counsel that the State intended to designate Salter as the outcry witness. Hanson’s counsel did not dispute these assertions and did not claim surprise. In addition, the complainant testified at trial, and Hanson had the opportunity to cross-examine him. Accordingly, the State’s untimely notice did not “affect [Hanson’s] substantial rights.” See Tex.R.App. P. 44.2(b); Divine v. State, 122 S.W.3d 414, 419 (Tex.App.-Texarkana 2003, pet. ref'd); Gabriel v. State, 973 S.W.2d 715, 719-20 (Tex.App.-Waco 1998, no pet.); Fetterolf v. State, 782 S.W.2d 927, 930 (Tex.App.-Houston [14th Dist.] 1989, pet. ref'd).

Hanson next contends that Salter’s testimony should have been excluded because the State failed to provide a sufficiently detailed written summary of the statement about which she would testify. See Tex.Code Chim. PeoC. Ann. art. 38.072, § 2(b)(1)(C). We disagree. The State attached to its outcry notice a copy of Salter’s handwritten notes taken during her interview of the complainant. This satisfied the State’s obligation to provide a written summary of the statement about which the outcry witness would testify. See Soto v. State, 736 S.W.2d 823, 828 (Tex.App.-San Antonio 1987, pet. ref'd); cf. Biggs v. State, 921 S.W.2d 282, 285 (Tex.App.-Houston [1st Dist.] 1995, pet. granted) (summary which stated that defendant “had sexual contact” with complainant and “exposed his genitals to her” did not provide sufficient detail).

Accordingly, we cannot say that the court abused its discretion by overruling Hanson’s objections to Salter’s testimony premised on non-compliance with article 38.072.

Confrontation

Hanson also contends in his second issue that the admission of J.Q.’s out-of-court statements through Salter’s testimony violated his Sixth Amendment right of confrontation as interpreted by the Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). This appears to be an issue of first impression in Texas.

In Crawford, the Supreme Court revisited its prior decision in Ohio v. Roberts, in which the Court had held that the admission of the hearsay statement of an unavailable witness does not violate the right of confrontation so long as the statement “falls under a ‘firmly rooted hearsay exception’ or bears ‘particularized guarantees of trustworthiness.’” See id. at 60, 124 S.Ct. at 1369 (quoting Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980)). The Court concluded in Crawford that the Roberts rationale was not “faithful to the original meaning of the Confrontation Clause.” Id.

In place of the Roberts standard, the Court adopted a two-part test, depending on whether the statement at issue is “testimonial” or “non-testimonial.” Id. at 68, 124 S.Ct. at 1374.

Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.

Id.

We need not decide whether J.Q.’s statements to Salter are “testimonial” however. “[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” Id. at 59 n. 9, 124 S.Ct. at 1369 n. 9.

J.Q. testified at trial and was cross-examined by Hanson. Therefore, the admission of his prior out-of-court statements to Salter did not violate his right of confrontation. Id. As noted, this is an issue of first impression in Texas. However, our holding is consistent with the vast majority of courts in other states which have considered this issue.

Accordingly, we overrule Hanson’s second point.

Double Jeopardy

Hanson contends in his third point that his convictions for both the second and third counts of the indictment alleging aggravated sexual assault violate the state and federal constitutional protections against double jeopardy. He contends in his fourth point that his convictions for both the fourth and fifth counts of the indictment alleging indecency by -contact violate the state and federal constitutional protections against double jeopardy. He argues that only one of these aggravated sexual assault convictions and only one of the indecency convictions should be allowed to stand.

Before we reach the jeopardy issue however, it must be noted that Hanson did not raise this objection at trial. Hanson will be excused from the ordinary rules of procedural default “when the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests.” Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App.2000); accord Murray v. State, 24 S.W.3d 881, 888 (Tex.App.-Waco 2000, pet. ref'd).

Here, because we have a complete record, “it can be determined from undisputed facts clearly apparent on the face of the record” whether there has been a jeopardy violation. See Murray, 24 S.W.3d at 889.

Count two alleges that Hanson committed aggravated sexual assault by causing J.Q.’s penis to contact Hanson’s mouth. Count three alleges that Hanson’s penis penetrated J.Q.’s anus. Count four alleges that Hanson committed indecency with a child by touching J.Q.’s genitals. Count five alleges that Hanson caused J.Q. to touch Hanson’s genitals.

Hanson relies on Patterson v. State, in which the Court of Criminal Appeals held that a conviction for an offense listed in section 3.03 of the Penal Code

bars conviction for conduct that, on the facts of the case, is demonstrably part of the commission of the greater offense. For example, indecency by genital exposure of oneself in the course of manual penetration of another are separate offenses, while penile contact with mouth, genitals, or anus in the course of penile penetration will be subsumed.

152 S.W.3d 88, 92 (Tex.Crim.App.2004).

As the Austin Court of Appeals has since explained, the issue is whether the “convictions are based on the same act.” Barnes v. State, 165 S.W.3d 75, 88 (Tex.App.-Austin 2005, no pet.); accord Elder v. State, 132 S.W.3d 20, 24-25 (Tex.App.-Fort Worth 2004, pet. ref'd) (conviction based on “same acts” is jeopardy-barred). Thus, if a defendant commits the aggravated sexual assault of a child by penetrating the child’s mouth with his penis, then the defendant cannot also be prosecuted for the indecency by contact which necessarily occurred in the course of committing the aggravated sexual assault. See e.g. Barnes, 165 S.W.3d at 88; see also Elder, 132 S.W.3d at 23-25 (subsequent conviction for aggravated sexual assault for penetration of child’s sexual organ by mouth jeopardy-barred by prior prosecution for indecency by contact relying on same conduct).

Here, counts two and three allege two distinct offenses which cannot be subsumed within each other. Hanson simply misreads Patterson when he broadly construes it to allow only a single conviction regardless of the number of criminal acts which occur during “a single sexual encounter.” Rather, as the Court of Criminal Appeals explained in Lopez v. State, “An actor can be prosecuted for separate violations of Tex. Penal Code § 22.021 based on different acts which occur in the same transaction because each act is a separate violation of the child.” 108 S.W.3d 293, 300 n. 28 (Tex.Crim.App.2003).

Because counts two and three allege distinct offenses based on different conduct, Hanson’s conviction for one of these counts does not bar his conviction for the other also. See Elder, 132 S.W.3d at 25; Murray, 24 S.W.3d at 889.

In the same manner, counts four and five allege distinct offenses based on different conduct. One alleges that Hanson committed the offense by touching J.Q.’s genitals; the other alleges that Hanson caused J.Q. to touch Hanson’s genitals. Thus, Hanson’s conviction for one of these counts does not bar his conviction for the other. Id.

Accordingly, we overrule Hanson’s fourth and fifth points.

We affirm the judgment.

Chief Justice GRAY concurring in the judgment without a separate opinion.

      . 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

      . One of the issues on which the Court of Criminal Appeals has granted review is "Whether referring to the complainant as the victim of the offense in the jury charge constitutes an impermissible comment on the weight of the evidence when the jury charge tracked the language of the statute.” See Casey v. State, No. PD-0548-05 (Tex.Crim.App. Sept. 14, 2005) (order granting State’s petition for discretionary review).

      . The term "article" as used hereinafter refers to an article of the Code of Criminal Procedure unless otherwise indicated.

      . The statute actually provides that the child must testify or be available to testify "in court or in any other manner provided by law.” Tex.Code Crim. Proc. Ann. art. 38.072, § 2(b)(3) (Vernon 2005). However, because the complainant in this case testified at trial, we do not address testimony "in any other manner provided by law.”

      .The offenses occurred in Texas when the complainant was visiting his grandmother. The complainant lives in Florida. Salter is a "child protective investigator” employed by the State of Florida.

      . The Court of Criminal Appeals granted discretionary review in Biggs without issuing a written opinion, vacated the Court of Appeals’ judgment, and remanded the case to the lower court to conduct a factual sufficiency review. See Biggs v. State, 1997 WL 694914, at *1, 1997 Tex.App. LEXIS 5640 at *1 (Tex.App.-Houston [1st Dist.] Oct. 30, 1997, pet. ref'd) (not designated for publication).

      . The Court left “for another day any effort to spell out a comprehensive definition of 'testimonial.' ” Crawford v. Wash., 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004).

      . See King v. Ala., 2005 Ala.Crim.App. LEXIS 123 at *12 (June 24, 2005); Cal. v. Martinez, 125 Cal.App.4th 1035, 1050, 23 Cal.Rptr.3d 508, 519 (Cal.App.3d Dist.2005); Colo. v. Argomaniz-Ramirez, 102 P.3d 1015, 1017-19 (Col.2004); Conn. v. Samuels, 273 Conn. 541, 568-69, 871 A.2d 1005, 1023 (2005); Starr v. Ga., 269 Ga.App. 466, 468-69, 604 S.E.2d 297, 299 (2004); Ill. v. Cookson, 215 Ill.2d 194, 203-04, 294 Ill.Dec. 72, 830 N.E.2d 484, 489-90 (2005); Mass. v. King, 445 Mass. 217, 236-37, 834 N.E.2d 1175, 1193 (2005); El-

        kins v. Miss., 2005 Miss.App. LEXIS 483 at *7-8 (July 26, 2005); Gaxiola v. Nev., 119 P.3d 1225, 1230-31 (Nev.2005); N.C. v. Painter, 2005 N.C.App. LEXIS 2000 at *13-18 (Sept. 20, 2005); S.D. v. Carothers, 2005 SD 16, ¶¶ 8-14, 692 N.W.2d 544, 546-49 (2005); Wash. v. Price, 127 Wash.App. 193, 200-01, 110 P.3d 1171, 1175 (Wash.App. Div. 2 2005); Wis. v. James, 2005 WI App. 188, ¶¶ 9-11, 2005 WI App. 188, ¶¶ 9-11, 703 N.W.2d 727, 732-33 (2005).


text:
    Jerry O. and Rose DUEITT, Appellants, v. ARROWHEAD LAKES PROPERTY OWNERS, INC., et al., Appellees.
    No. 10-04-00274-CV.
    Court of Appeals of Texas, Waco.
    Oct. 26, 2005.
    Rehearing Overruled Nov. 22, 2005.

      Don Stocking, Stocking & Associates, Conroe, for appellants.
    Larry L. Foerster, Darden, Fowler & Creighton, Bryan P. Fowler, The Fowler Law Firm, Conroe, Carrie E. Campbell, Mounger & Campbell, Wimberly, for ap-pellees.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

Jerry 0. Dueitt and Rose Dueitt appeal from the trial court’s dismissal of their case for want of prosecution. Because we find that the trial court did not abuse its discretion in dismissing the Dueitts’ cause, and because we find that any error in failing to hold a hearing on the Dueitts’ motion to reinstate was harmless, we affirm.

Factual and Procedural Background

The Dueitts own two lots in the Arrowhead Lakes division of Montgomery County. The property was subject to deed restrictions that levied a fee for maintenance purposes. After a dispute arose about the amount of the maintenance levy, Arrowhead Lakes Property Owners, Inc. filed a lien affidavit against the Dueitts’ property. Because their title was encumbered, the Dueitts could not sell their property. In 1990, the Dueitts filed suit against Arrowhead and some of its then current and former directors (Appellees) seeking declaratory relief and damages for slander of title, common law fraud, deceptive trade practices, and violations of the state and federal fair debt collection practices act.

After pending for over thirteen years on the trial court’s docket, Appellees filed a motion for dismissal of the case for want of prosecution. On May 27, 2004, the trial court held a hearing on the Appellees’ motion and subsequently dismissed the case without prejudice. The Dueitts filed a motion to reinstate and requested a hearing on the motion. The trial court denied the motion without a hearing.

On appeal, the Dueitts argue in seven issues that the trial court erred because it (1-2) failed to give notice of its intention to dismiss their case for want of prosecution; (3-4) did not inform the Dueitts of the authority under which the trial court intended to dismiss; (5) abused its discretion by dismissing their cause for lack of due diligence in prosecuting their case; (6) abused its discretion by taxing all costs against the Dueitts; and (7) abused its discretion by failing to hold a hearing on the Dueitts’ motion to reinstate.

Analysis

The Dueitts Received Adequate Notice

The Dueitts argue in issues one through four that they had no adequate notice of the trial court’s intention to dismiss their case for want of prosecution.

A trial court’s power to dismiss a suit for want of prosecution originates from two sources: (1) Texas Rule of Civil Procedure 165a and (2) the trial court’s inherent authority. Tex.R. Civ. P. 165a; Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.1999); Steward v. Colonial Cas. Ins. Co., 143 S.W.3d 161, 163-64 (Tex.App.-Waco 2004, no pet.); Binner v. Limestone County, 129 S.W.3d 710, 712 (Tex.App.-Waco 2004, pet. denied). A trial court may dismiss a suit under Rule 165a when (1) a party fails to appear for a trial or hearing or (2) when a suit is not disposed of within the time standards given by the Supreme Court. Tex.R. Civ. P. 165a(l), (2); Steward, 143 S.W.3d at 163-64. Independent of the rules of civil procedure, a trial court may also dismiss a suit under the inherent authority given to it by common law. Villarreal, 994 S.W.2d at 630; Steward, 143 S.W.3d at 163-64. The Dueitts did not request findings of fact or conclusions of law, and the trial court did not specify the standard of dismissal used. Therefore, we must affirm on the basis of any legal theory supported by the record. Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 252 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990)).

We review a dismissal for want of prosecution under an abuse-of-discretion standard. State v. Rotello, 671 S.W.2d 507, 509 (Tex.1984); In re Marriage of Seals, 83 S.W.3d 870, 873 (Tex.App.-Texarkana 2002, no pet.). A trial court abuses its discretion when it acts “without reference to any guiding rules or principles,” or, stated another way, when the trial court acts in an arbitrary and unreasonable manner. City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex.2003) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985)).

A party must be provided with notice and an opportunity to be heard before a trial court may dismiss a case for want of prosecution under either Rule 165a or its inherent power. See Tex.R. Civ. P. 165a(l) (“Notice of the court’s intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record, and to each party not represented by an attorney.”); Villarreal, 994 S.W.2d at 630; Smith v. McKee, 145 S.W.3d 299, 302 (Tex.App.Fort Worth 2004, no pet.). The requirements of notice and a hearing are necessary to ensure the dismissed claimant has received due process. Smith, 145 S.W.3d at 302; Tex. Sting Ltd. v. R.B. Foods, Inc., 82 S.W.3d 644, 648 (Tex.App.-San Antonio 2002, pet. denied); Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 401 (Tex.App.-Dallas 2001, pet. denied). The failure to provide adequate notice of the trial court’s intent to dismiss for want of prosecution requires reversal. Villarreal, 994 S.W.2d at 630-31; Smith, 145 S.W.3d at 302. However, participation in a hearing on a motion to reinstate cures any due process concerns for the failure to provide notice of intent to dismiss. Manning v. North, 82 S.W.3d 706, 715 (Tex.App.Amarillo 2002, no pet.); Tex. Sting, Ltd., 82 S.W.3d at 648-49.

The Dueitts argue that they received no adequate notice of the trial court’s intent to dismiss their case because the notice was promulgated by Appellees and not the trial court itself. They argue that Appel-lees’ motion to dismiss was only sufficient to inform the Dueitts of the Appellees intentions, and gave no indication of the trial court’s intentions. They argue that Appellees cannot give notice of the trial court’s intentions, but that the trial court must give notice of its own intentions.

However, dismissal for want of prosecution may be obtained by motion of the trial court or on motion of any party to the suit. Sierra Club v. Tex. Comm’n. on Envtl. Quality, — S.W.3d -,-, No. 03-04-00108-CV, 2005 WL 121869, at *2, 2005 Tex.App. LEXIS 454, *5 (Tex.App.Austin, Jan. 21, 2005) (not designated for publication) (“Contrary to appellants’ arguments, the rule 165a reinstatement procedure applies to all dismissals for want of prosecution, regardless of whether they are initiated by the court or motion of a party.”); Polk v. Southwest Crossing Homeowners Ass’n, 165 S.W.3d 89, 92-93 (Tex.App.-Houston [14th Dist.] 2005, pet. filed) (trial court' granted Appellees’ motion to dismiss for want of prosecution); Harvey v. Wetzel, No. 03-03-00608-CV, 2004 WL 1685879, at *3, 2004 Tex.App. LEXIS 6818, *12 (Tex.App.-Austin, July 29, 2004, no pet.) (not designated for publication) (affirming the trial court’s granting of Appellee’s motion to dismiss for want of prosecution); Wright v. Tex. Dept. of Crim. Justice-Institutional Div., 137 S.W.3d 693, 694 (Tex.App.-Houston [1st Dist.] 2004, no pet. h.) (Appellee filed a motion to dismiss for want of prosecution); Manning, 82 S.W.3d at 712 (Appellee filed a motion to dismiss for want of prosecution).

The Dueitts also argue that Appel-lees’ motion and the trial court’s notice were inadequate because it did not inform them of the trial court’s intention to dismiss or of the authority under which the case might be dismissed.

Appellees filed their motion to dismiss on April 14, 2004. The Dueitts filed a response to Appellees’ motion on April 21. The trial court’s notice of a hearing was filed on May 14. The notice informed the Dueitts that a hearing would be held on Appellees’ motion to dismiss and gave the time and place for the hearing. The Dueitts argue that the trial court’s reference to Appellees’ motion in its notice was not sufficient to inform them of the trial court’s intent to dismiss the Dueitts because Appellees’ motion requests that Ap-pellees, not the Dueitts, be dismissed with prejudice. In the introductory statement of Appellees’ motion, it states that Appel-lees “move[ ] this Court for an order dismissing [Appellees] with prejudice.” However in body of the motion, Appellees argue that the Dueitts’ case should be dismissed because the Dueitts failed to prosecute their case with due diligence and reminds the trial court that the action has been pending on the docket for over thirteen years with no affirmative action on the case since February 2001. Appellees also state in the motion that this time period is outside the time standards promulgated by the Texas Supreme Court and asks the trial court to “order the dismissal of Plaintiffs’ action with prejudice.” Further, in their response to Ap-pellees’ motion, filed before the trial court’s notice was sent, the Dueitts argue that their cause should not be dismissed under the trial court’s inherent power because they have not been delinquent in prosecuting their case.

All that due process requires is that a party be given notice of the time and substance of the hearing, and an opportunity to present arguments at the hearing. Smith, 145 S.W.3d at 302; Tex. Sting, 82 S.W.3d at 648. The notice referencing Appellees’ motion to dismiss was sufficient to inform the Dueitts of the time and the substance of the hearing, namely that the hearing would concern the potential dismissal of their cause for want of prosecution. The hearing was held, and the Dueitts presented their arguments to the trial court which the court ultimately rejected. As for the absence of reference in the motion to the authority the trial court would use to dismiss the cause, we have held that “a dismissal notice containing no reference to Rule 165a or the court’s inherent authority [is] sufficient to put the appellant on notice that the court could dismiss under Rule 165a(l), Rule 165a(2), or its inherent authority.” Steward, 143 S.W.3d at 164 (citing Binner, 129 S.W.3d at 712). The Dueitts were given adequate notice that their cause could be dismissed by the trial court for want of prosecution and participated in the hearing, thus receiving due process. Accordingly, we overrule the Dueitts’ issues one through four.

No Abuse of Discretion in Dismissing the Dueitts’ Case

The Dueitts argue in their fifth issue that the trial court abused its discretion in determining that they did not prosecute their case with due diligence.

In determining under its inherent authority whether a party has demonstrated a lack of diligence in prosecuting a claim, a trial court may consider the entire history of the case; including the length of time the case was on file, the extent of activity in the case, whether a trial setting was requested, and the existence of reasonable excuses for delay. Scoville v. Shaffer, 9 S.W.3d 201, 204 (Tex.App.-San Antonio 1999, no pet.); King v. Holland, 884 S.W.2d 231, 237 (Tex.App.Corpus Christi 1994, writ denied). No single factor is dispositive, and a belated trial setting or stated readiness to proceed to trial does not conclusively establish diligence. Ozuna v. Southwest Bio-Clinical Laboratories, 766 S.W.2d 900, 902 (Tex.App.-San Antonio 1989, writ denied).

The Dueitts argue that we should perceive this case as composed of two phases. The first phase begins at the filing of the suit in 1990 and ends at the denial of the Dueitts’ partial summary judgment in 1998. The Dueitts argue that in this phase it is clear that the trial court did not believe that they failed to use due diligence, or it would have taken action to dismiss the case in 1998. Therefore, the Dueitts argue that Appellees are wrong to include this eight-year span to support its argument that the Dueitts have not exercised due diligence for thirteen years. In the second phase, the Dueitts argue that a delay in setting a trial date was unavoidable due to the sequential deaths of four of the Appellees, and that the Dueitts exercised due diligence in this phase by serving the representatives of the deceased Appel-lees’ estates.

Indeed the Dueitts are correct that in this second phase the record reflects activity from the Dueitts regarding the deaths of the four Appellees and the filing of scire faciases. The Dueitts cite Brown v. Prairie View A & M Univ. in support of their argument that they exercised reasonable diligence in the second phase by serving the respective representatives of the estates. 630 S.W.2d 405, 412-13 (Tex.App.Houston [14th Dist.] 1982, writ ref'd n.r.e.). In Broum, the Fourteenth Court of Appeals reversed the trial court’s dismissal for want of prosecution for a twenty-eight month delay in making the representative of the deceased a party because the record showed due diligence. Id. However in Brown, the case was set for trial when the death occurred, and during the twenty-eight month delay the court noted that the plaintiff had not let the case lie dormant, but had filed two amended petitions and had responded to a motion for summary judgment. Id.

In this case, the first Appellee died in 1999 and the representative of his estate filed an answer in that same year. No activity occurred until the next Appellee died in 2002. While the Dueitts did as the law required after the death of each Appel-lee, no other affirmative action was taken on the case. At the hearing on Appellees’ motion, counsel for the Dueitts admitted that in thirteen years he had never requested a trial setting. While the Dueitts argue that their cause should be considered as two separate phases, we may consider the entire history of the case, including the length of time the case has been on file. Scoville, 9 S.W.3d at 204. Therefore, we find that the trial court did not abuse its discretion in dismissing the Dueitts’ case under its inherent authority for want of prosecution when the case was on file for over thirteen years with no request for a trial setting. Harvey, 2004 WL 1685879, at *3, 2004 Tex.App. LEXIS 6818 at *12 (record supported dismissal for lack of prosecution, under court’s inherent authority, based on plaintiffs failure to set trial date over nine-month period without a reasonable excuse, coupled with the forty-two-month time that the case was on file); Manning, 82 S.W.3d at 713-14 (eight and one-half years “is sufficient to establish a rebuttable presumption that appellants have not prosecuted the suit with due diligence”); 3V, Inc. v. JTS Enterprises, Inc., 40 S.W.3d 533, 541 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (‘When an unreasonable delay in the prosecution of a case occurs, it is presumed that the case has been abandoned. If that delay is not sufficiently explained, the presumption of abandonment is conclusive and the case will be dismissed.”). We overrule the Dueitts’ fifth issue.

Failure to Hold a Hearing on the Motion to Reinstate was Harmless

The Dueitts argue in their seventh issue that the trial court erred in failing to hold a hearing on their motion to reinstate.

“The same reinstatement procedures and timetable are applicable to all dismissals for want of prosecution including cases which are dismissed pursuant to the court’s inherent power, whether or not a motion to dismiss has been filed.” Smith, 145 S.W.3d at 305-06 (citing Tex.R. Crv. P. 165a(4)); Sierra Club, at-, 2005 WL 121869, at *2, 2005 Tex.App. LEXIS 454, *5. Rule 165a(3) provides that a judge “shall set a hearing” on a motion to reinstate as soon as practicable and notify all parties or their attorneys of record of the date, time, and place of the hearing. Tex.R. Civ. P. 165a(3). The rule is mandatory, and the trial court has no discretion about whether to set a hearing on the motion. Thordson v. City of Houston, 815 S.W.2d 550, 550 (Tex.1991) (“It [is] not within the discretion of the trial court to fail to hold an oral hearing on the motion to reinstate.”); Smith, 145 S.W.3d at 305-06 (“It is not within the discretion of the trial court to fail to hold an oral hearing on a timely-filed, properly verified motion to reinstate.”) Matheson v. Am. Carbonics, 867 S.W.2d 146, 147-48 (Tex.App.-Texarkana 1993, no writ) (“Whether or not the movant requests a hearing on a motion to reinstate is irrelevant; a hearing is required unless waived.”). Therefore, the trial court abused its discretion in failing to hold a hearing on the Dueitts’ motion to reinstate.

We now turn to whether the trial court’s failure to hold a hearing is harmless. Tex.R.App. P. 44.1; see In re J.F.C., 96 S.W.3d 256, 274 (Tex.2002) (“Appellate courts should not reverse a trial court’s judgment in violation of Rule 279 any more than appellate courts should reverse a trial court’s judgment for error that was harmless. Rule 279 applies just as Texas Rule of Appellate Procedure 44.1 applies.”); In re J. B., 93 S.W.3d 609, 615 (Tex.App.-Waco 2002, pet. denied) (conducting a harm analysis for violation of Rule 245); 4M Linen & Uniform Supply Co., Inc. v. W.P. Ballard & Co., Inc., 793 S.W.2d 320, 324 (Tex.App.-Houston [1st Dist.] 1990, writ denied) (conducting a harm analysis for violation of Rule 52). The trial court’s error requires reversal if it probably caused the rendition of an improper judgment or probably prevented the Dueitts from properly presenting their case to the court of appeals. Tex.R.App. P. 44.1(a); In re J. B., 93 S.W.3d at 615.

“The motion to reinstate is the failsafe to prevent cases that fall into any of the three categories from being improperly dismissed.” Binner, 129 S.W.3d at 713. The motion to reinstate ensures that the dismissed party has received due process, because participation in the reinstatement hearing cures any due process concerns. Steward, 143 S.W.3d at 165; Binner, 129 S.W.3d at 713; Manning, 82 S.W.3d at 715; Tex. Sting, 82 S.W.3d at 649-50. Yet, we have already determined that the Dueitts received due process. The Dueitts received adequate notice and substance of the hearing on the motion to dismiss, and had the opportunity to respond at the hearing, which is all that due process requires. Smith, 145 S.W.3d at 302; Tex. Sting, 82 S.W.3d at 648. Therefore, all due process concerns were eliminated before the Dueitts filed their motion to reinstate. If participation in a motion to reinstate cures any due process error in the original hearing on the motion to dismiss, we do not see why the reverse should not also be true. See Manning, 82 S.W.3d at 715; Tex. Sting, 82 S.W.3d at 648-49. If due process was achieved in the original hearing on the motion to dismiss, then the failure to hold a hearing on the motion to reinstate was harmless.

Furthermore, the Dueitts did not promulgate any new arguments or advocate the discovery of new evidence supporting their claims in their motion to reinstate. The Dueitts argued the same issues in their motion to reinstate that they argued in the hearing on the motion to dismiss. In the hearing on the motion to dismiss, the Dueitts argued that (1) Appellees’ motion to dismiss was inadequate to inform them of the trial court’s intentions; (2) that Appellees did not have standing to move the court to dismiss the Dueitts for want of prosecution; (3) that they received no notice that the trial court intended to dismiss their case for want of prosecution; and (4) that they exercised due diligence in prosecuting their case because of the numerous filings of scire faciases. These same issues were present in the Dueitts’ motion to reinstate. No new arguments were before the trial court. The failure to hold a hearing did not cause a rendition of an improper judgment because the case was on file for over thirteen years, there was an admission from the Dueitts’ counsel that he had never requested a trial setting, and the Dueitts offered no new evidence, only their claim that they exercised due diligence by filing a scire facias after each Appellee’s death. Nor could the failure to hold a hearing prevent the Dueitts from presenting their case on appeal because the Dueitts argue these same issues on appeal. Therefore, we find that the failure to hold a hearing on the Dueitts’ motion to reinstate was harmless. Tex.R.App. P. 44.1(a); In re J. B., 93 S.W.3d at 615. We overrule the Dueitts’ seventh issue.

Any Error in Taxing Costs Against the Dueitts was not Properly Preserved

The Dueitts argue in their sixth issue that the trial court abused its discretion by taxing all costs against them because this created an adjudication of the merits, which is an action not allowed in a dismissal for want of prosecution. It is true that a dismissal for want of prosecution cannot be a decision on the merits of the case. Bird v. Kornman, 152 S.W.3d 154, 161 (Tex.App.-Dallas 2004, pet. denied).

However, the Dueitts failed to argue this issue in their motion to reinstate. If a trial court’s involuntary dismissal order mistakenly adjudicates the case on the merits by dismissing the suit with prejudice or by stating that the plaintiff “take nothing,” the error must be challenged in a timely filed motion to reinstate or motion for new trial. If not, the error is waived. Id. (citing El Paso Pipe & Supply Co. v. Mt. States Leasing, Inc., 617 S.W.2d 189, 190 (Tex.1981)) (“However, the error in dismissing a case with prejudice cannot be raised for the first time on appeal and must be presented to the trial court.”); Labrie v. Kenney, 95 S.W.3d 722, 728-29 (Tex.App.-Amarillo 2003, no pet.) (stating error in improper dismissal for want of prosecution is “subject to waiver if the trial court is not given an opportunity to correct it or if the question is not properly raised on appeal”); Andrews v. ABJ Adjusters, Inc., 800 S.W.2d 567, 568 (Tex. App.-Houston [14th Dist.] 1990, writ denied) (noting argument that dismissal for want of prosecution “with prejudice” was improper but argument could be waived on appeal). Therefore, because we find that this issue was not properly preserved for appeal, we overrule the Dueitts’ sixth issue. See Tex.R.App. P. 33.1.

Conclusion

Having overruled all of the Dueitts’ issues, we affirm the trial court’s order.

      . Appellees include Arrowhead Lakes Property Owners, Inc., Harry E. Curry, Cheryl Snoe, Christen K. Arnold as Executrix of the Estate of Carolyn Williams, Rose Coker, Shirley Ann Spain Gaylord as Heir of Alta Partin, Marshall Harold Beleau as Executrix of the Estate of Harold Beleau, Virgil Gorden, Roy Rutherford, Olaf Lovett, and Jeannine Fastow as Executrix of the Estate of Theodore Edward Spornhauer.


author: FELIPE REYNA, Justice. TOM GRAY, Chief Justice,

text:
    Iketha SAUNDERS, Individually and as next friend of Rob Saunders, Robert Saunders, III, and Robnashea Saunders, Appellant, v. Lakisha LEE and Shawna D. Dodd, Appellees.
    No. 10-04-00211-CV.
    Court of Appeals of Texas, Waco.
    Oct. 26, 2005.

      Todd LeBlanc, Beaumont, for appellant.
    Jason A. Powers, Houston, for appellees.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

Iketha Saunders filed a personal injury suit against Appellees on behalf of herself and her minor children. The court granted Appellees’ no-evidence summary judgment motion and denied Saunders’s motion to reopen, which she filed about one month later. Saunders contends in three issues that the court abused its discretion by: (1) denying her motion to reopen; (2) denying a continuance motion she filed on the day of the summary judgment hearing; and (3) granting the summary judgment motion and denying the continuance motion and the motion to reopen because these rulings “substantially hinder[ed her] rights and rewarded] misrepresentation by Appel-lee[s].” We will reverse and remand.

Appellees filed their no-evidence summary judgment motion the day after the trial court granted a motion to withdraw filed by Saunders’s first attorney. Appel-lees served notice that the summary judgment hearing would be held thirty-four days’ later. According to an affidavit filed by Saunders, she tried to find another attorney “immediately” after her first attorney withdrew, but several attorneys declined to take her case. She first had contact with her present attorney three weeks after the summary judgment motion was filed.

Saunders’s new attorney obtained her file from her former attorney six days before the summary judgment hearing. Her new attorney filed a continuance motion supported by Saunders’s affidavit on the morning of the hearing. The court denied Saunders’s continuance motion and granted Appellees’ summary judgment motion.

Saunders filed a motion to reopen about one month later. At the same time, she filed a response to Appellees’ summary judgment motion. After a hearing, the court denied the motion to reopen.

Appellate Jurisdiction

Saunders filed her notice of appeal sixty-six days after the court signed the summary judgment. The only post-judgment motion she filed was the “motion to reopen,” which is not listed among the types of postjudgment pleadings which will extend the deadline for the filing of a notice of appeal. See Tex.R.App. P. 26.1(a).

Nevertheless, any “timely filed postjudgment motion that seeks a substantive change in an existing judgment qualifies as a motion to modify under Rule [of Civil Procedure] 329b(g)” and extends the appellate timetable. Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 314 (Tex.2000); accord Ashley v. Harris County Risk Mgt., 104 S.W.3d 905, 905 n. 2 (Tex.App.-Corpus Christi 2003, no pet.); In re T.G., 68 S.W.3d 171, 176 (Tex.App.-Houston [1st Dist.] 2002, pet. denied).

Saunders asked the trial court in her motion to reopen to allow her to file a late response to Appellees’ no-evidence summary judgment motion so she could produce evidence on each element of her claims challenged by Appellees’ motion. We hold that Saunders’s motion to reopen sought a substantive change in the summary judgment. Thus, it operated to extend the deadline for the filing of her notice of appeal. Id. Accordingly, her notice of appeal was timely.

Motion to Reopen

Saunders contends in her first issue that the court abused its discretion by denying her motion to reopen the evidence.

Appellees alleged in their no-evidence summary judgment motion that Saunders had failed to respond to their discovery and thus could produce no evidence to support any of her claims. Because Saunders’s attorney had withdrawn, Appellees served the summary judgment motion on Saunders herself.

In the motion to reopen, Saunders produced evidence that she had in fact responded to the discovery in a timely manner. At the same time, Saunders filed a response to the summary judgment motion accompanied by evidence to support each element of her claims.

The motion to reopen was premised on Rule of Civil Procedure 270 which provides, “When it clearly appears to be necessary to the due administration of justice, the court may permit additional evidence to be offered at any time; provided that in a jury case no evidence on a controversial matter shall be received after the verdict of the jury.”

In determining whether to permit additional evidence under Rule 270, a court should consider: (1) the movant’s diligence in obtaining the additional evidence; (2) the decisiveness of this evidence; (3) whether the reception of the evidence could cause any undue delay; and (4) whether the granting of the motion could cause any injustice. Naguib v. Naguib, 137 S.W.3d 367, 373 (Tex.App.-Dallas 2004, pet. denied); Lopez v. Lopez, 55 S.W.3d 194, 201 (Tex.App.-Corpus Christi 2001, no pet.). “The trial court should exercise its discretion liberally ⅛ the interest of permitting both sides to fully develop the case in the interest of justice.’ ” Lopez, 55 S.W.3d at 201 (quoting Word of Faith World Outreach Ctr. Church, Inc. v. Oechsner, 669 S.W.2d 364, 367 (Tex.App.-Dallas 1984, no writ)); In re T.V., 27 S.W.3d 622, 624 (Tex.App.-Waco 2000, no pet.).

Ordinarily it lies within the trial court’s discretion to grant or refuse permission to a party to reopen a case for the reception of additional testimony. But there are occasions when it is the duty of the court to grant such a request, especially when the proffered testimony is decisive, its reception will not cause any undue delay, or do an injustice.

Word of Faith, 669 S.W.2d at 367 (emphasis added) (quoting Hill v. Melton, 311 S.W.2d 496, 500 (Tex.Civ.App.-Dallas 1958, writ dism’d w.o.j.)); accord Naguib, 137 S.W.3d at 373; In re Est. of Johnson, 886 S.W.2d 869, 873 (Tex.App.-Beaumont 1994, no writ).

Saunders presented uncontroverted evidence that she had difficulty finding a new attorney when her first one withdrew. Her new attorney was unable to obtain her file until six days before the summary judgment hearing. From the record, we thus conclude that there is nothing to show that Saunders failed to diligently pursue the evidence in question. Rather, the delay in responding to the summary judgment motion, which Appellees served on Saunders herself, was due to the difficulties she had in hiring another attorney.

The evidence in question is plainly decisive in the context of Appellees’ no-evidence summary judgment motion.

Finally, we hold that granting the motion to reopen would not have caused undue delay or any injustice. Saunders’s case had been on file for only six months when the court denied the motion to reopen. Saunders’s original petition alleged that Level 2 discovery was appropriate for this case. Under Rule 190.3 then, the discovery period should have run until thirty days before trial or for nine months after the first discovery response was due, whichever date was earlier. Tex.R. Civ. P. 190.3(b)(1). There was no trial setting, so the discovery period presumably should have been permitted to run for several more months at the time of the summary judgment.

Under the Rules of Judicial Administration, the time standard for the disposition of this case was at a minimum twelve months. See Tex.R. Jud. Admin. 6(b)(2). It is difficult to understand how it could be concluded that granting Saunders’s motion to reopen would cause undue delay or work any injustice when only half of the time standard for disposition under Rule 6(b)(2) had elapsed at the time the court considered the motion to reopen.

For these reasons, we hold that the court abused its discretion because it faded to “exercise its discretion liberally ⅛ the interest of permitting both sides to fully develop the case in the interest of justice.’ ” Lopez, 55 S.W.3d at 201 (quoting Word of Faith, 669 S.W.2d at 367); T.V., 27 S.W.3d at 624. Accordingly, we sustain Saunders’s first issue.

We need not address the remainder of the issues presented. We reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion.

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice,

dissenting.

No Jurisdiction

The final judgment in this case was signed on April 5, 2004. (CR-35.) There was no motion filed that would extend the time in which to file a notice of appeal. See Tex.R.App. P. 26.1. Thus, the notice of appeal had to be filed within 30 days of the date of the judgment, id., or a motion for extension of time had to be filed within 45 days, whether it was.an express motion for extension or implied. See Verburgt v. Dorner, 959 S.W.2d 615 (Tex.1997). The notice of appeal was not filed until June 10, 2004, 66 days after the final judgment was signed. The notice of appeal is untimely. We have no jurisdiction. The appeal should be dismissed.

Square Peg — Round Hole

After the trial court granted a no-evidence motion for summary judgment, the non-movant moved to reopen the evidence under Rule 270. Tex.R. Civ. P. 270. Rule 270 has no application to a summary judgment proceeding. “Rule 166a(c) of the Texas Rules of Civil Procedure authorizes the late filing of summary judgment evidence, if the party requests and obtains leave of the court and if such evidence is before the court before the summary judgment is rendered. Tex.R. Civ. P. 166a(c); Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex.1996).” Withrow v. State Farm Lloyds, 990 S.W.2d 432, 434 (Tex. App.-Texarkana 1999, pet. denied); see also J.E.M. v. Fidelity & Cas. Co. of New York, 928 S.W.2d 668, 672 (Tex.App.-Houston [1st Dist.] 1996, no pet.). As noted, the rule which allows a party to have a trial court consider late-filed evidence in response to a motion for summary judgment is Rule 166a(c). Tex.R. Civ. P. 166a(c) (“Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response.”). I cannot join the violence in which the majority engages by forcing a square peg into a round hole.

Conclusion

Because the majority reverses and re.mands an appeal when it should be dismissed because we have no jurisdiction, or affirmed because the appellant has presented no error on which relief can be granted, I dissent.

      . Rule 26.1(a) extends the deadline for filing the notice of appeal in a civil case from 30 to 90 days if “any party timely files: (1) a motion for new trial; (2) a motion to modify the judgment; (3) a motion to reinstate under Texas Rule of Civil Procedure 165a; or (4) a request for findings of fact and conclusions of law....” TexJR.App. P. 26.1(a).

      . Rule 329b(g) provides in pertinent part:
      A motion to modify, correct, or reform a judgment (as distinguished from motion to correct the record of a judgment under Rule 316), if filed, shall be filed and determined within the ... time prescribed by this rule for a motion for new trial and shall extend the trial court’s plenary power and the time for perfecting an appeal in the same manner as a motion for new trial.
      Tex.R. Civ. P. 329b(g).

      .Rule 166a(c) provides for the late filing of summary judgment evidence with the permission of the court, but only "before judgment.” Id. 166a(c). Thus, relief was not available to Saunders under Rule 166a(c) because the judgment had already been signed.

      . On appeal, Saunders suggests that the motion may be characterized alternatively as a motion for new trial. However, because Saunders expressly relied on Rule 270 and did not characterize the pleading as a motion for new trial in the trial court, she may not make this characterization for the first time on appeal. See Tex.R.App. P. 33.1(a)(1)(A); Houston R.E. Income Props. XV, Ltd. v. Waller County Appraisal Dist., 123 S.W.3d 859, 862-63 (Tex.App.-Houston [1st Dist.] 2003, no pet.).

      . We do not mean to suggest that a case may not be disposed of in less than 12 months. However, we do believe that more egregious circumstances are required' before a court may dispose of a case in less than 6 months.