author: SAM GRIFFITH, Justice.

text:
    Edith Elaine RISINGER and Louis Risinger, Appellants, v. Allen SHUEMAKER and Covington Lumber Company, Inc., Appellees.
    No. 12-02-00302-CV.
    Court of Appeals of Texas, Tyler.
    July 30, 2004.
    Rehearing Overruled Sept. 30, 2004.

      Gregory D. Smith, for appellants.
    James A. Payne Jr., Fairchild, Price, Thomas & Haley, L.L.P., Center, Christopher Burke, Miller & Burke, P.C., Mark C. Jordan, Allen, Stein & Durbin, a Professional Corporation, San Antonio, for appel-lees.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J„ and DeVASTO, J.
   OPINION

SAM GRIFFITH, Justice.

In two issues, Appellants Edith and Louis Risinger (“the Risingers”) challenge the trial court’s entry of a take-nothing judgment in favor of Appellees Allen Shue-maker (“Shuemaker”) and Covington Lumber Company, Inc. (“Covington Lumber”). We affirm.

Background

On September 7, 1999, Edith Risinger was driving northbound on Teneha Street in Center, Texas, and stopped her car in order to turn left into the Easy Money Pawn Shop. As Mrs. Risinger was preparing to turn left, Shuemaker, an employee of Covington Lumber, was also driving northbound on Teneha Street and rear-ended Mrs. Risinger’s vehicle. The paramedics arrived soon after the collision and took Mrs. Risinger to the emergency room because she was complaining of pain in her neck and arm. After the accident, Mrs. Risinger continued to seek treatment from various physicians because of continual neck and back pain and eventually had to endure two surgeries to fuse her fifth through seventh cervical vertebrae.

On December 12, 2000, the Risingers filed suit against Shuemaker and Coving-ton Lumber, alleging that Shuemaker’s negligence caused the accident and Mrs. Risinger’s resulting injuries. Mrs. Ri-singer also alleged that Mr. Shuemaker was a reckless driver and that Covington Lumber knew or should have known that Shuemaker was a reckless driver.

On June 24, 2002, the case went to trial. After the case was argued to the jury, the jury was asked, “Did the negligence, if any, of Allen Shuemaker proximately cause the injury to the plaintiff, Elaine Risinger?” The jury answered, “No.” The trial court entered a take-nothing judgment in favor of Shuemaker, and the Ri-singers now seek a reversal of that judgment.

Issues Presented

On appeal, the Risingers argue in their first issue that the trial court erred by allowing Dr. Fabian Polo (“Dr.Polo”), a biomedical engineer, to testify that the collision did not medically cause any of Mrs. Risinger’s injuries. In their second issue, the Risingers argue that they are entitled to a new trial because the great weight of the evidence of Shuemaker’s negligence is overwhelming; therefore, the jury’s verdict should be reversed.

In an automobile accident case such as this, a plaintiff alleges that a defendant’s negligence proximately caused an event (the accident), and this event caused injury to the plaintiff. See Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex.1984). Therefore, at trial the plaintiff must establish two causal nexuses in order to be entitled to recovery: 1) a causal nexus between the defendant’s conduct and the event sued upon and 2) a causal nexus between the event sued upon and the plaintiffs injuries. Id. The nexus between the defendant’s conduct and the event is established in the liability phase of a plaintiffs case. Id. at 732. Whether the event sued upon by the plaintiff caused the alleged injuries is another matter entirely. Id. The causal nexus between the event sued upon and the plaintiffs injuries is strictly referable to the damages portion of the plaintiffs cause of action. Id.

The question posed to the jury in the instant case was, “Did the negligence, if any, of Allen Shuemaker proximately cause the injury to the plaintiff, Elaine Risinger?” (emphasis added). The jury answered, “No.” In our analysis, we assume from this answer that the jury first found that Shuemaker was not negligent. Accordingly, we must first address the Ri-singers’ second issue: whether the evidence is factually sufficient to support the jury’s finding that Shuemaker was not negligent. If so, then we need not discuss the Risingers’ first issue, whether the trial court reversibly erred by allowing Dr. Polo to testify that the forces involved in the accident could not have caused Mrs. Ri-singer’s injuries, because this testimony addresses the causation-of-damages aspect of the Risingers’ case. See Tanner v. Karnavas, 86 S.W.3d 737, 741 (Tex.App.-Dallas 2002, pet. denied).

Factual Sufficiency of the Evidence of Shuemakeb’s Negligence

Standard of Review

In Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241-42 (Tex.2001), the supreme court discussed the appropriate standard of review where, as here, the party attacking an adverse finding on an issue had the burden of proof. In summary, the court held as follows:

When a factual sufficiency challenge is presented, the complaining party must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Under this review, after considering and weighing all the evidence, we can set aside the verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.

Findings of fact are the exclusive province of the factfinder. Bellefonte Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 744 (Tex.1986). This Court is not a factfinder and may not pass on the credibility of the witnesses or substitute its judgment for that of the trier of fact, even if a different conclusion could be reached on the evidence. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988); Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.App.-Dallas 1986, writ ref d n.r.e.).

The Evidence

Patricia Clifton (“Clifton”) stated that on September 7, 1999, she was working for Everett Harbison (“Harbison”) at the Easy Money Pawn Shop and that she witnessed the accident from inside the store. She testified that she was standing behind a jewelry case that is situated behind two double doors containing two large plate glass panes. Clifton could see the road from this vantage point, and she noticed a church van and Mrs. Risinger’s car sitting in the middle of the road. Mrs. Risinger had her car’s turn signal on and was waiting to turn into the parking lot. She noticed that a “couple of kids” on bicycles had traveled in front of the store and were “about a half block down toward town.” Clifton then saw Shuemaker driving his vehicle and testified that he was looking over his shoulder as if he were looking at someone he knew that had passed by on the opposite side of the road.

Clifton stated that the front of Shue-maker’s truck hit the rear of Mrs. Rising-er’s car and that the impact shoved her car at least a car length. After the impact, an ambulance came to the scene and removed Mrs. Risinger from her vehicle. Clifton further said that she related the events she had witnessed to Johnny Sanders (“Sanders”), the police officer who investigated the accident.

Sanders, a sergeant with the Center Police Department, testified that when he arrived at the scene of the accident, Shue-maker told him that he was okay and that

he had looked off and when he looked back around the vehicle had stopped in front of him. When he got ready to swerve he observed two kids on a bicycle riding to the right. When he swerved to miss the car he said that it was either the 'kids probably or the car, so ... [h]e hit the car.

Sanders also stated that when he spoke with Clifton after the accident, Clifton told him that she saw some kids riding bicycles, but they had already passed in front of her and were not a factor in the accident. He said that Clifton also told him that before the impact, she saw Shuemaker looking at a woman going down the street and that the impact propelled Mrs. Risinger’s car about ten to fifteen feet.

Sanders conducted his own investigation and found some dirt piles and scuff marks. He estimated that Mrs. Risinger’s car had traveled about ten to twelve feet after the impact. Although he could not see any damage on Mrs. Risinger’s back bumper, he noticed that the front-left fender on Shuemaker’s truck was “sort of creased back” about a quarter of an inch. He said that when he went to check on Mrs. Ri-singer, she told him that she was not okay and that she was hurting behind her neck and in her back. On the accident report he filed after his investigation, Sanders noted that the factors which contributed to the accident were failure to control speed and driver inattention.

On cross-examination, Sanders stated that he never heard Shuemaker say that he was looking over his shoulder as he approached Mrs. Risinger’s car. Instead, Sanders said that Shuemaker told him that two kids on bicycles, traveling in the opposite direction, prevented him from passing Mrs. Risinger on the shoulder. Sanders also stated that some of the opinions and findings in his accident report were based on what Clifton told him. He further stated that he himself had seen the two kids riding on bicycles as he was approaching the accident scene.

As a matter of form, Sanders testified that anytime he investigates a rear-end accident, he always gives a citation for failure to control speed to the person driving the impacting vehicle. With regard to the driver inattention factor, Sanders said that he listed that as a factor after his conversation with Clifton. With regard to the accident report, Sanders testified that Mrs. Risinger’s vehicle sustained very weak damage, and that was a dent next to the license plate.

Mrs. Risinger stated that on the day of the accident, she was stopped, getting ready to turn left into the parking lot of the pawn shop. Her husband, Louis, was already in the pawn shop. She was then struck from behind, and the impact was hard enough to sling her forward toward the steering wheel and then backwards. Mrs. Risinger immediately felt “burning and hurting” in her neck and right arm. She never saw anything behind her vehicle because she was looking forward the entire time. After the accident, she spoke to Sanders and was taken to the hospital.

On cross-examination, Mrs. Risinger stated that she had come to a complete stop before she turned left because several cars were traveling in the other lane in the opposite direction. She also said that she saw two kids riding on bicycles going in the opposite direction on the shoulder parallel to her lane, but they had already passed her before she stopped. After the wreck, she noticed other cars passing her on the shoulder, but she never saw Shue-maker’s vehicle coming up behind her.

When Shuemaker testified, he stated that he had delivered a load of lumber to a contractor and was driving back to Coving-ton Lumber. As he was traveling behind Mrs. Risinger’s car, he noticed that she was coming to a stop when he saw her brake lights come on. Shuemaker further stated that

[w]ell, like I normally do, I just lightly get on my brakes and go around the people on the shoulder. And as soon as I went to go around them, I kind of started to veer off the road and I seen the two boys on a bicycle coming towards me. And to tell you the truth he scared me and that’s why I cut back. Because I knew I couldn’t hit them. And I hit my brakes and then I was just holding the steering wheel and I could see the back end of her car. And there for a second I thought I was fixing to stop. If I would of had a couple of more foot I probably could of.

Shuemaker said that his vehicle then came in contact with Mrs. Risinger’s car. When questioned further, Shuemaker stated that his truck had veered over about a quarter of the way onto the shoulder when he saw the two boys coming toward him. The boys were a little in front of Mrs. Risinger’s car when he turned back into the lane. Shuemaker said that he had plenty of time to get back into the lane and that the front of his vehicle “was pretty squared up with hers [Mrs. Risinger’s].”

After the impact, Shuemaker got out of his truck and saw Mr. Risinger coming toward him. The two men went to Mrs. Risinger’s vehicle, and after they checked on Mrs. Risinger, Shuemaker went into the pawn shop and called Covington Lumber. When he entered the store, he noticed two women standing in the far right corner of the store, and he told them to alert the authorities. When he exited the store, he stood beside his vehicle and began talking with Sanders. Shuemaker stated that prior to the accident, he was not looking over his shoulder and he did not see anyone he knew traveling in the opposite direction.

On cross-examination, Shuemaker stated that he admitted hitting Mrs. Risinger, but he did not “believe it made her have the neck surgeries and all.” Shuemaker was also asked on cross-examination whether “[r]egardless of what damages you believe may have been caused, this accident is still your fault, correct?” Shuemaker replied, “As in bumping into her vehicle, yes.” Shuemaker estimated that the distance the impact threw Mrs. Risinger’s car was enough for two people to walk side by side, and that as he was sitting in his vehicle, he could not see the lower end of the back of Mrs. Risinger’s car.

Harbison stated that on the day of the accident, he, Mr. Risinger, and Clifton were in the pawn shop before the accident occurred. Although he never saw the accident, he said that at the time of the accident, Clifton was sitting on a stool in front of the computer, located on the left side of the building looking out, and was nowhere near the jewelry case. When the accident occurred, Harbison did not remember hearing Clifton say anything that alerted him to the fact that two vehicles had made contact out on the road.

On cross-examination, Harbison stated that he recalled Clifton sitting on a stool behind the computer but admitted that she could have moved to behind the jewelry case before the accident occurred. On redirect, Harbison said that a person sitting on the stool in front of the computer would not be able to see down the road because a pillar by the doors would obstruct the view.

Analysis

The Risingers contend that jury’s finding of “no” on the issue of negligence was against the great weight and preponderance of the evidence of Shuemaker’s negligence. Specifically, they contend that because Shuemaker admitted fault, the jury should have found that he was negligent on the day in question. We disagree.

. “A party’s testimonial declarations which are contrary to his position are quasi-admissions.” Mendoza v. Fidelity & Guaranty Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex.1980). Those “quasi-admissions” are merely some evidence and are not conclusive upon the admitter. Id. The trier of fact decides the weight to be given such admissions. Id. Quasi-admissions are to be distinguished from the true judicial admission, which is a formal waiver of proof usually found in pleadings or the stipulations of the parties. Id. Although Shuemaker admitted that his vehicle hit Mrs. Risinger’s vehicle, he did not admit that he was negligent and that his negligence proximately caused Mrs. Ri-singer’s injuries. Therefore, Shuemaker’s statement is a quasi-admission and is not conclusive.

After viewing the entire record and the evidence in support of and against Shuemaker’s negligence, we do not find that the great weight and preponderance of the evidence supports a reversal of the jury’s finding of no negligence. The mere occurrence of a rear-end accident is not of itself evidence of negligence. DeLeon v. Pickens, 933 S.W.2d 286, 289 (Tex.App.Corpus Christi 1996, writ denied). The plaintiff in such a case must prove specific acts of negligence on the part of the following driver and must also prove proximate cause. Neese v. Dietz, 845 S.W.2d 311, 314 (Tex.App.-Houston [1st Dist.] 1992, writ denied). The issue of whether a rear-end collision raises an issue of negligence or establishes it as a matter of law depends on all the facts and circumstances of a particular case. DeLeon, 933 S.W.2d at 289. Whether the plaintiff succeeds in proving negligence and proximate cause by a preponderance of the evidence is within the jury’s province to determine. Pearson v. DeBoer, 99 S.W.3d 273, 276 (Tex.App.-Corpus Christi 2003, no pet.).

“Negligence” was defined to the jury as the

failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.

Although there was sufficient evidence to support a jury finding that Shuemaker was negligent on the day in question by failing to keep a proper lookout or driving inattentively, the evidence also supports the finding that he was not negligent. Shuemaker testified that when he started to pass Mrs. Risinger, he saw the boys riding on bicycles coming toward him, so he steered back into the lane because he did not want to hit the children. He testified that he could have stopped in time if he “had a couple more foot.” The jury chose to believe Shuemaker’s version of the events that occurred prior to the collision and determined that he did not fail to use ordinary care under the same or similar circumstances. Although we may disagree with the jury’s conclusion, based on this record, we are not free to disregard their conclusion. See Cruz v. Paso Del Norte Health Found., 44 S.W.3d 622, 646 (Tex.App.-El Paso 2001, pet. denied) (refusing to sit as thirteenth juror); Gainsco County Mut. Ins. Co. v. Martinez, 27 S.W.3d 97,108 (Tex.App.San Antonio 2000, pet. dism’d by agr.) (same). The Rising-ers’ second issue is overruled.

Because we have found factually sufficient evidence to support the jury’s finding that Shuemaker was not negligent on September 7, 1999, we need not reach the Risingers’ remaining issue. See Tanner, 86 S.W.3d at 741.

Disposition

The judgment of the trial court is affirmed.

      . Mr. Risinger sought damages for past and future loss of consortium.


source: Caselaw Access Project

author: BILL VANCE, Justice. GRAY, Chief Justice,

license: Public Domain

text:
    Nadine Ivy PHILLIPS, Appellant, v. Betty Jean IVY, Appellee.
    No. 10-02-00265-CV.
    Court of Appeals of Texas, Waco.
    Aug. 18, 2004.

      John H. Minton Jr., Potter Minton, a Professional Corporation, Tyler, for appellant.
    Bill Youngkin, Stacy & Dillard, Bryan, D. Lee Alford IV, Dallas, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

We have two appeals involving testamentary and non-testamentary transfers of property by James Bradford Ivy, who died in September 1990 and was survived by his wife Betty and his only child, Nadine. This appeal addresses a declaratory judgment action filed by Nadine Ivy Phillips concerning Paragraph III of James’s will, which purported to divide certain real property interests between Betty and Nadine, and a disclaimer signed by Betty.

THE WILL AND DISCLAIMER

Betty and James executed reciprocal wills. In Paragraph I of his will, James directed the payment of debts and funeral expenses and bequeaths to Betty his community interest in “all of the household goods, automobiles, clothing, jewelry and other personal belongings and all other tangible personal property owned by me at the time of my death.” (Emphasis added.). Paragraph II states: “It is my intention hereunder to dispose of my entire interest in my separate property and only my share of the community property.” Regarding his real property, Paragraph III provides:

I hereby give, devise and bequeath all of my real property, whether separate or community to my daughter NADINE IVY PHILLIPS, subject however to a life estate in said real property, including all the oil, gas, coal and other minerals which I hereby give, devise and bequeath to my wife, BETTY JEAN IVY, to use and enjoy during her lifetime, including all rents and profits therefrom as well as bonuses and royalty income.

The will did not have a residuary clause.

On June 20, 1991, Betty signed a disclaimer, which provided in relevant part the following:

I hereby irrevocably and without qualification disclaim, renounce and refuse to accept any interest under Article III of the will other than a life estate, it being my intent hereby that I have no interest in the remainder of such property.

Betty filed a summary judgment affidavit by the attorney who prepared the estate tax return stating that the purpose of the disclaimer was to assure that her estate would not be exposed to the risk that rights in the remainder be included in her estate at her death.

THE JUDGMENT

The parties agreed that certain proceeds from James’s interest in real property were subject to Betty’s conventional life estate, and the parties specified certain sums that had already been received that would be transferred to a trustee for investment. The trial court decided the remaining issues relating to Paragraph III of James’s will, i.e., whether Betty received more than a conventional life estate as a result of the will and disclaimer, on competing motions for partial summary judgment. The court denied Nadine’s Motion for Partial Summary Judgment and granted Betty’s Motion for Partial Summary Judgment, making the following conclusions of law:

a. That the effect of Paragraph III of the Will of James Bradford Ivy, duly probated in Cause No. 6317 in the County Court of Freestone County, Texas, and the disclaimer of Betty Jean Ivy filed June 20, 1991, in such cause (both attached to such motion for Partial Summary Judgment as exhibits) do not operate to grant to Betty Jean Ivy a conventional life estate, but rather by specific bequest grants to her the right of full ownership of the proceeds of all oil, gas and other minerals to include bonuses and royalty income in all real property of the decedent James Bradford Ivy for the lifetime of Betty Jean Ivy, and the disclaimer executed by Betty Jean Ivy did not waive such right. As a result, the open mine doctrine does not apply to the above portion of the property of decedent.
b. That Defendant Betty Jean Ivy is entitled to the proceeds of all oil, gas, and other minerals to include bonuses and royalty income from all real properties of decedent James Bradford Ivy without any restrictions on ownership, use or accounting of such royalty income for her lifetime.
c. That with respect to real property of the decedent other than oil, gas and other minerals, the Defendant Betty Jean Ivy holds a conventional life estate, with remainder in the Plaintiff Nadine Ivy Phillips.

The judgment further implemented the parties’ agreement and awarded Nadine attorney’s fees.

THE ISSUES ON APPEAL

On appeal, Nadine brings two issues that challenge the summary judgment:

1. Does the will of James Bradford Ivy give Defendant full ownership of all proceeds of all oil, gas and other minerals (including bonuses and royalty income) from decedent’s real property during Defendant’s lifetime and deny Plaintiff any remainder interest in such revenues?
2. Did the disclaimer executed by Defendant limit to a conventional life estate the bequest made to her in Paragraph III of decedent’s will?

We review the decision to grant a summary judgment de novo. Rucker v. Bank One, 36 S.W.3d 649, 652-53 (Tex.App.-Waco 2000, pet. denied). A trial court may grant a summary-judgment motion when there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Texas Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240, 252 (Tex.2002); Singleton v. Donalson, 117 S.W.3d 516, 517 (Tex.App.Beaumont 2003, pet. denied). When both parties move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both parties’ summary judgment evidence and determine all questions presented. Eckels v. Davis, 111 S.W.3d 687, 693 (Tex.App.-Fort Worth 2003, pet. denied) (citing Dow Chem. Co. v. Bright, 89 S.W.3d 602, 605 (Tex.2002)). The reviewing court should render the judgment that the trial court should have rendered. Id. The parties do not dispute the relevant facts, so we focus our review on the interpretation of the will and the disclaimer.

As a general rule subject to exceptions, a life tenant may not dispose of the corpus of the estate; oil and gas royalties and bonuses are generally considered corpus. Singleton, 117 S.W.3d at 518; see Moore v. Vines, 474 S.W.2d 437, 439 (Tex.1971); Clyde v. Hamilton, 414 S.W.2d 434, 438 (Tex.1967). But exceptions exist. Singleton, 117 S.W.3d at 518; Hudspeth v. Hudspeth, 756 S.W.2d 29, 31 (Tex.App.-San Antonio 1988, writ denied). For example, under the open mine doctrine, which is applied only to leases executed by the testator and in effect at his death, royalties and bonuses belong to the life tenant. Singleton, 117 S.W.3d at 518; Riley v. Riley, 972 S.W.2d 149, 155 (Tex.App.-Texarkana 1998, no pet.) (citing Clyde v. Hamilton, 414 S.W.2d 434 (Tex.1967)). Another exception arises when the testator expressly says otherwise in the will; controlling effect is given to the intent of the creator of the life estate. Singleton, 117 S.W.3d at 518; see Hudspeth, 756 S.W.2d at 31.

By using the phrase “as well as bonuses and royalty income,” James made a specific bequest to Betty of the royalties and bonuses from his real property in addition to the conventional life estate. We agree with the trial court’s conclusions of law concerning the interpretation of Paragraph III of James’s will.

Turning to the disclaimer, we find that Nadine’s motion for partial summary judgment argued the legal effect of the disclaimer. Betty’s motion also argued the legal effect of the disclaimer. Both motions had the disclaimer attached as an exhibit, so there is no dispute about its contents. Nadine’s response to Betty’s motion asserts that the effect of the disclaimer can be determined as a matter of law and that the attorney’s affidavit is immaterial.

The court specifically found that the disclaimer did not operate as a waiver, determining the disclaimer issue as a matter of law. Although they differ about the validity of that determination, both parties agree that the court had authority to do so. We find no reason to disagree with the trial judge’s conclusion that the disclaimer did not operate as a waiver of any part of the life estate to which Betty was entitled under James’s will.

We overrule Nadine’s issues.

CONCLUSION

Having overruled Nadine’s issues, we affirm the judgment.

Chief Justice GRAY dissenting.

GRAY, Chief Justice,

dissenting.

We should not go behind the language of the disclaimer. See Tex. PROB. Code Ann. § 37A (Vernon 2008); Badouh v. Hale, 22 S.W.3d 392, 396 (Tex.2000). I would hold that the disclaimer had the effect, even if the will was more expansive in its donative language, of limiting Betty’s interest under Article III of the will to a traditional life estate. This would require a reversal of the trial court’s judgment and a remand to the trial court to resolve issues that remain to be decided regarding the relative rights of the life tenant and the remainder-man in the proceeds of the sale of the corpus and income derived therefrom.

All doubt about what the testator may have intended in his will was removed by the disclaimer signed by the widow. The disclaimer states:

I hereby irrevocably and without qualification disclaim, renounce and refuse to accept any interest under Article III of the will other than a life estate, it being my intent hereby that I have no interest in the remainder of such property.

If, for any reason, we somehow avoid the clear language of this disclaimer, we will have not only bent the words of this disclaimer beyond its breaking point, we will cause uncertainty in any estate planning application that involves the use of a disclaimer.

Due to the language used in the will, Betty wanted certainty and predictability with regard to her own estate planning, not just the benefits that she would receive under her husband’s will. To achieve this certainty, she signed a formal legal document, as provided for by the probate code, that would have a certain effect: to identify and define the property that she was to receive under the will. I would give that legal document the effect that it has for all other purposes, and would hold that Betty’s disclaimer limited the gift under Article III to a traditional life estate. Thus I would not need to address Phillips’s first issue. Because the majority holds otherwise, I respectfully dissent.

      . In Cause No. 10-02-00266-CV, we address the non-testamentary transfers.

      . Nadine’s motion for a partial summary judgment asserts that there are no fact issues and seeks judgment based on the terms of the will and the disclaimer. She does not seek a remand on the issues we decide; her prayer is for a holding that Betty owns only a conventional life estate in the real estate. Thus, the issues are properly before us on competing requests for summary judgment.


author: TOM GRAY, Chief Justice. BILL VANCE, Justice,

text:
    In re Janice RODRIGUEZ.
    No. 10-04-00165-CR.
    Court of Appeals of Texas, Waco.
    Aug. 25, 2004.
    L. Patrick Davis, Ft. Worth, for Appellant/Relator.
    Dale S. Hanna, Johnson County District Attorney, Cleburne, for Appellee/Respon-dent.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

TOM GRAY, Chief Justice.

The petition for writ of mandamus is denied. See De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex.Crim.App.2004) (orig.proceeding); In re Rodriguez, No. 10-04-00152-CV, 2004 WL 1632829, 2004 Tex. App. LEXIS 6605 (Tex.App.-Waco July 21, 2004, orig. proceeding) (per curiam).

Justice VANCE dissenting.

BILL VANCE, Justice,

dissenting.

Relator, Janice Rodriguez, filed a motion to recuse Judge William Bosworth, Jr., Judge of the 413th District Court of Johnson County, asserting grounds under Rule of Civil Procedure 18b. Tex.R. Crv. P. 18b(a), (b), (f). Judge Bosworth declined to recuse himself and referred the matter to Judge Jeff Walker, Eighth Regional Administrative Judge. At the hearing on the motion, Judge Walker refused to allow Relator to call Judge Bosworth as a witness, citing Rule of Evidence 605. Tex.R. Evm 605. Relator seeks to compel Judge Walker to hold another hearing on the motion and compel the attendance of Judge Bosworth as a witness.

As far as I can determine, the issue of whether Rule 605 (the rule relied on by Judge Walker) precludes a trial judge from testifying at a recusal hearing before another judge is a question that has not been directly decided. The rule does not appear to be so broad and seems to be limited to situations in which a judge actually leaves the bench to testify at a trial over which he is presiding. See In re Bruce, 112 S.W.3d 635, 642 n. 1 (Tex.App.Fort Worth 2003, pet. dism’d, untimely filed) (where a different judge presided over the habeas corpus hearing, trial judge who had not officially recused himself from the case when the State called him as a witness was not “stepping down from the bench” and testifying as a witness in the very same proceeding over which he was currently presiding) (citing Hensarling v. State, 829 S.W.2d 168, 170 (Tex.Crim.App.1992), and Franks v. State, 90 S.W.3d 771, 781 (Tex.App.-Fort Worth 2002, no pet.) (trial judge’s testimony from a recusal hearing should not have been admitted into evidence at trial)); see also Kemp v. State, 846 S.W.2d 289, 305 n. 9 (“In Hensarling v. State, 829 S.W.2d 168 (Tex.Crim.App.1992), we construed Rule 605 to circumscribe only that situation in which a trial judge would actually ‘step down from the bench’ to become a witness in the very same proceeding in which he is currently presiding.”).

Relator has no adequate remedy by appeal in this instance because the testimony of the trial judge whose recusal she seeks will not be available at a trial. See De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex.Crim.App.2004) (orig.proceeding) (“party seeking mandamus relief ‘must establish the effective denial of a reasonable opportunity to develop the merits of his or her case”). A trial before a biased trial judge is structural error not subject to a harm analysis. Id. at 7 (citing Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 1833, 144 L.Ed.2d 35 (1999)).

Relator has been denied Judge Bos-worth’s testimony on her motion to recuse him, and she will be unable to preserve it for our review on direct appeal because she will have no opportunity at trial to further develop the merits of her motion. See De Leon, 127 S.W.3d at 5.

Believing Relator does not have an adequate remedy by a direct appeal, I would request a response and decide this issue. Tex.R.App. P. 52.

      . There is an apparent conflict in Tex.R.App. P. 47.4. Because the author of the Dissenting Opinion has opposed the designation of this Memorandum Opinion as a memorandum opinion it must be designated as an opinion. “An opinion may not be designated a memorandum opinion if the author of a concurrence or dissent opposes that designation.” Tex.R.App. P. 47.4. The same rule, however, limits what opinions can be designated non-memorandum opinions:
      An opinion must be designated a memorandum opinion unless it does any of the following:
      (a) establishes a new rule of law, alters or modifies an existing rule, or applies an existing rule to a novel fact situation likely to recur in future cases;
      (b) involves issues of constitutional law or other legal issues important to the jurisprudence of Texas;
      (c) criticizes existing law; or
      (d) resolves an apparent conflict of authority. Id. This opinion does not do any of those things, and thus "must” be designated a memorandum opinion. Id. We have, nevertheless, designated it as an opinion because the sentence of the rule regarding the opposition by the author of a concurrence or dissent is more specific, and subject to less interpretation, than the later portion of the same rule above quoted.
      It does, however, remain designated "do not publish” pursuant to Tex.R.App. P. 47.2(b). A question remains whether it was the purpose of the rule to allow the author of a concurrence or dissent to publish the concurrence or dissent over the contrary vote of the other members of the panel, and, further, to attach as an appendix to that concurrence or dissent the opinion designated "do not publish.” We choose, in this instance, to leave that issue to the jurisprudential judgment of the author, but ultimately it will be left to the rule makers to clarify.

      . The majority opinion is designated “do not publish.” However, the court makes all opinions, published and non-published, available to Westlaw, LexisNexis and other publishers.

      . In the civil context a remedy by appeal is inadequate when (1) a discovery error cannot be cured, (2) ability to present a viable claim or defense is severely compromised, or (3) missing discovery cannot be made part of the appellate record so that the reviewing court is unable to evaluate the effect of the trial court's error on the record before it. See Walker v. Packer, 827 S.W.2d 833, 843-44 (Tex.1992). Here, if Judge Walker’s refusal was error, it cannot be cured; Relator's ability to present evidence on her recusal motion will have been completely compromised, and the missing testimony cannot be made part of the record for appeal.


author: W. KENNETH LAW, Chief Justice. JAN P. PATTERSON, Justice,

text:
    CITY OF AUSTIN, Appellant, v. Francisco LAMAS, Appellee.
    No. 03-04-00034-CV.
    Court of Appeals of Texas, Austin.
    Dec. 2, 2004.
    Rehearing Overruled March 10, 2005.

      Robin E. Sanders, Asst. City Atty., for appellant.
    Trey D. Picard, Jeff M. Meyerson, Mey-erson Law Firm, P.C., Austin, for appellee.

      Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
   OPINION

W. KENNETH LAW, Chief Justice.

In this case, we examine a governmental unit’s liability under the Tort Claims Act because of the condition of a stop sign. A tort allegedly occurred when a city bus ran a stop sign that was obscured by tree branches. The City of Austin argues that sovereign immunity bars tort liability unless it had actual notice of the traffic sign’s condition. See Tex. Civ. Prac. & Rem. Code Ann. § 101.060(a)(2) (West 1997). Because Lamas did not plead actual notice and because discovery revealed that the City did not have actual notice of the condition of the sign, the City asserted that the court lacked jurisdiction. The district court denied the City’s plea to the jurisdiction. For the reasons stated below, we affirm the district court’s denial of the City’s plea to the jurisdiction.

BACKGROUND

In August 2002, Francisco Lamas was a passenger aboard a bus owned and operated by Capital Metropolitan Transportation Authority in Austin. As the bus approached the intersection of Tillery St. and Goodwin St. in Austin, the driver failed to observe a stop sign that was allegedly obscured by foliage. The driver did not stop at the intersection, and the bus ran over a dip in the street without slowing. As a result, Lamas claims that he sustained serious injuries after being thrown into the air during the incident. The stop sign and the alleged foliage were located in a City-controlled easement, and the City is responsible for the maintenance of traffic signs. Neither party claims that the City had actual notice of the condition of the stop sign.

Lamas brought a personal injury action against the City. The City filed a plea to the jurisdiction on the grounds that sovereign immunity barred the City from tort liability under the Texas Tort Claims Act. After the trial court denied the City’s plea to the jurisdiction, the City brought this interlocutory appeal. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(8) (West 2004); Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004).

DISCUSSION

In its sole issue, the City appeals the trial court’s denial of its plea to the jurisdiction, arguing that sovereign immunity bars Lamas’s cause of action because it did not have actual notice of the condition of the sign. See Tex. Civ. Prac. & Rem.Code Ann. § 101.060(a)(2).

A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject-matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). Subject-matter jurisdiction is essential to the authority of a court to decide a case. See West Orange-Cove Consol. I.S.D. v. Alanis, 107 S.W.3d 558, 587 (Tex.2003); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). Because subject-matter jurisdiction presents a question of law, we review the district court’s decision de novo. See Mayhew, 964 S.W.2d at 928; Texas State Employees Union/CWA Local 6184 v. Texas Workforce Comm’n, 16 S.W.3d 61, 65 (Tex.App.-Austin, 2000, no pet.). Governmental immunity from suit defeats a trial court’s jurisdiction and so it may be raised by a plea to the jurisdiction. Harris County v. Sykes, 136 S.W.3d at 638; Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636, 639 (Tex.1999). In reviewing a trial court’s ruling on a plea to the jurisdiction, we do not look at the merits of the ease; rather, we construe the pleadings in favor of the plaintiff, look to the pleader’s intent, and accept the pleadings’ factual allegations as true. Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). A jurisdictional challenge may implicate the merits of the plaintiffs cause of action. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex.2004). If evidence raises a fact issue concerning the court’s jurisdiction, it would be inappropriate for the court to grant a plea to the jurisdiction. Id at 227-28.

The Tort Claims Act expressly waives sovereign immunity for “injuries arising out of conditions or use of property.” Id. at 225; County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex.2002) (quoting Texas Dep’t of Transp. v. Able, 35 S.W.3d 608, 611 (Tex.2000)); Texas Dep’t of Transp. v. Garza, 70 S.W.3d 802, 806 (Tex.2002) (section 101.060 is exception to general waiver of immunity in section 101.021); see Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (West 1997). In cases involving the condition of a traffic sign, the Tort Claims Act expressly waives immunity for governmental units when the tort arises from a failure to warn of a special defect so long as the requisite notice standard is satisfied under section 101.060. See Tex. Civ. Prac. & Rem.Code Ann. §§ 101.022 (West 1997), .060. Section 101.060(a)(2) specifies that “notice” of a condition of a traffic sign is required to impose liability. Id. § 101.060(a)(2). Because the City argues that the statute requires a showing of “actual notice”— which neither party asserts the City had in this case — we must construe the meaning of “notice” as it appears in section 101.060(a)(2).

Determining legislative intent is the overriding goal of statutory interpretation. Continental Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex.2002). In order to ascertain legislative intent, we first look to the plain and common meaning of the words used by the legislature. Tex. Gov’t Code Ann. § 311.011 (West 1998); Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex.2000); Texas Workers’ Comp. Comm’n v. Texas Builders Ins. Co., 994 S.W.2d 902, 908 (Tex.App.-Austin 1999, pet. denied). Unless a statute is ambiguous, courts abide by the clear language of the statute and enforce it as written. RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex.1985).

Statutes are interpreted by considering the entire statute, not just disputed provisions. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 514 (Tex.1997); Thomas v. Cornyn, 71 S.W.3d 473, 481 (Tex.App.-Austin 2002, no pet.). Disputed provisions are to be considered in context, not in isolation. See Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864, 866 (Tex.1999). We are to presume that every word in a statute has been used for a purpose and that each word, phrase, clause, and sentence should be given effect. State v. Shumake, 131 S.W.3d 66, 75 (Tex.App.-Austin 2003, no pet.); see State v. Evangelical Lutheran Good Samaritan Soc’y, 981 S.W.2d 509, 511 (Tex.App.-Austin 1998, no pet.).

The legislature created a general duty owed for premises defects in section 101.022. A government unit owes a claimant only the duty that a private person owes to a licensee on private property. Tex. Civ. Prac. & Rem.Code Ann. § 101.022(a) (West 1997). Thus, actual knowledge rather than constructive knowledge of a dangerous condition is required. State v. Tennison, 509 S.W.2d 560, 562 (Tex.1974). However, the limitation of duty contained in section 101.022(a) does not apply to the duty to warn of special defects, including the duty to warn of the condition of a traffic sign “as is required by section 101.060.” Tex. Civ. Prac. & Rem.Code Ann. § 101.022(b).

Instead, a municipality is liable for “personal injury and death caused by the condition or use of a tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” Id. § 101.021. In particular, section 101.060 addresses traffic signs, signals, and warning devices. Id. § 101.060. The legislature has expressed the notice requirement differently in 101.060(a)(2) than in subsection (a)(3). Id. A governmental unit has immunity from a tort that arises from “the absence, condition, or malfunction of a traffic or road sign, signal, or warning device unless the absence, condition, or malfunction is not corrected by the responsible governmental unit within a reasonable time after notice.” Id. § 101.060(a)(2). In contrast, if the tort arises from the removal or destruction of a traffic sign, the governmental unit will only be subject to liability if there is a showing of “actual notice.” Id. § 101.060(a)(3).

After reviewing section 101.060 in the context of the Tort Claims Act, we conclude that subsection (a)(2) does not require actual notice. In section 101.022, the legislature specifically carved out an exception to the general limitation on the duty to warn of premise defects in subsection (a) by creating a specific provision relating to special defects in subsection (b). Id. § 101.022. In creating this exception, the legislature directly contemplated exempting special defects, including stop signs, from an actual notice standard. Nonetheless, the legislature decided that the removal or destruction of a road sign in 101.060(a)(3) should still fall under the actual notice requirement. See id. § 101.060(a)(3). However, the legislature chose to impose a different level of notice in section 101.060(a)(2) for the absence, condition, or malfunction of a road sign. See id. § 101.060(a)(2). Although the City would have us read “notice” in subsection (a)(2) to mean “actual notice,” we will respect the legislature’s choice in enacting two differently worded clauses governing the notice requirement for tort liability in section 101.060.

We find support for our conclusion from other appellate courts that have examined this issue in different procedural contexts and concluded that section 101.060(a)(2) does not require actual notice. In Robnett v. City of Big Spring, for example, a trial court granted a summary-judgment motion to the city based on sovereign immunity in a dispute over the city’s failure to maintain a stop sign allegedly obstructed by an elm tree. 26 S.W.3d 535, 536-538 (TexApp.-Eastland 2000, no pet.). The Eastland court reversed. Id. Evidence introduced through affidavits in Robnett indicated that there had been prior accidents due to the obstructed sign, that the police officer on the scene personally knew that the tree in question was a problem, and, according to the trial judge, that “everyone in town” knew about the intersection. Id. at 537. The court held that for governmental immunity to be waived under section 101.060(a)(2), the governmental unit must either have known or should have known of the condition within a reasonable time after notice. Id. at 538. The court then reasoned that the section 101.022(a) limitation on premises defects — that actual notice be shown — does not govern special defects under section 101.060 and that, had the legislature wanted to require actual notice in subsection (a)(2) as it requires in subsection (a)(3), then it “certainly knew how to so provide, but it did not.” Id.

In Kenneally v. Thwm, the San Antonio court considered photographs that showed scraggly, untrimmed bushes located on the unimproved portion of a city street easement that had allegedly obstructed a traffic sign for as long as a resident remembered. 653 S.W.2d 69, 71-72 (Tex.App.San Antonio 1983, writ refd n.r.e.). Evidence also showed that police officers passed through the intersection several times a month. Id. at 72. In light of this evidence, the San Antonio court overruled the trial court’s grant of summary judgment for the municipality, holding that there was “sufficient evidence to raise a question of fact as to whether the condition had existed for such a length of time that City, in the exercise of reasonable diligence, should have discovered it.” Id. at 71-72 (emphasis added).

In State Department Highways & Public Transportation v. Gonzalez, the Corpus Christi court affirmed a jury verdict against the Texas Department of Transportation in a case concerning a traffic accident that occurred at an intersection controlled by a stop sign that had been vandalized six times in the seventeen days prior to the accident. 24 S.W.3d 533, 537-540 (Tex.App.-Corpus Christi 2000), rev’d, 82 S.W.3d 322, 328 (Tex.2002). The Corpus Christi court differentiated “actual notice” in section 101.060(a)(3) from “notice” in section 101.060(a)(2) because the State had no reason, under normal circumstances, to anticipate the destruction or removal of a sign by vandals under section 101.060(a)(3), whereas the State might have reason to know of or anticipate a general malfunction or faulty condition of a traffic device as contemplated in section 101.060(a)(2). Id. at 538.

The supreme court overturned the Corpus Christi decision because under a plain reading of the words “remove or destroy” the vandalism of the stop sign was properly governed by section 101.060(a)(3); thus, actual notice applied. Gonzalez, 82 S.W.3d at 328. It did not overrule , the San Antonio court’s reading of section 101.060(a)(2). Id. at 328. Instead, it decided that, under the facts of the case, section 101.060(a)(3) applied and that subsection, by its express terms, requires actual notice, which was missing in the case. See id. at 328-329.

After carefully reviewing these decisions, we believe that the legislature intended to require actual notice only in section 101.060(a)(3). It expressly chose to use different words when it crafted section 101.060(a)(2). Given the plain language of section 101.060(a)(2) in the context of the whole statute, we conclude that the legislature intended a difference between “notice” in section 101.060(a)(2) and “actual notice” in section 101.060(a)(3). See Shumake, 131 S.W.3d at 75 (indicating each word in statute has been used purposely and should be given effect). Thus, we hold that section 101.060(a)(2) does not require actual notice and that the district court properly denied the City’s plea to the jurisdiction. We overrule the City’s issue on appeal.

CONCLUSION

We conclude that section 101.060(a)(2) does not require actual notice to be pleaded in order for a court to have jurisdiction to hear this cause of action under the Tort Claims Act. A plea to the jurisdiction is a procedural hurdle; therefore, we make no indication of whether the merits of Lamas’s case will satisfy the requisite notice under section 101.060. We affirm the district court’s order denying the City’s plea to the jurisdiction.

Concurring Opinion by Justice Patterson.

JAN P. PATTERSON, Justice,

concurring.

I concur in the judgment only. See Tex.R.App. P. 47.5 (concurring and dissenting opinions).

      . Lamas also sued Capital Metro and the First Latin American Assembly — a third party land owner — but those claims have been settled.

      . A stop sign’s obstruction from view by foliage is a "condition” of that sign within the meaning of section 101.060(a)(2). Long v. City of Mission, 629 S.W.2d 699, 701 (Tex.1982). In Long, the supreme court reversed a grant of summary judgment when the plaintiff had pleaded actual notice under a former version of section 101.060(a)(2). Id. at 701. The court held that the terms of the Tort Claims Act applied in that case instead of Mission's city charter provisions. Id. The court did not hold that section 101.060 requires actual notice; instead, it held that a pleading of actual notice was sufficient to overcome a motion for summary judgment. Id.


author: Chief Justice MORRISS.

text:
    Chad Anthony SPLAWN, Appellant, v. The STATE of Texas, Appellee.
    No. 06-03-00243-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Sept. 13, 2004.
    Decided Feb. 1, 2005.
    Rehearing Overruled March 29, 2005.

      Jeff Starnes, McLaughlin, Hutchison, Starnes & Biard, LLP, Paris, for appellant.
    Gary L. Waite, Asst. Dist. Atty., Gary D. Young, Lamar County Dist. Atty., Paris, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

Life imprisonment, on each of the two charges of aggravated sexual assault of a child and indecency with a child, resulted from Chad Anthony Splawn’s single jury trial. None of Splawn’s ten points of error attacks the sufficiency of the evidence, so we discuss the evidence only as necessary to address the points Splawn raises.

We affirm Splawn’s conviction on both charges, affirm the mandatory life sentence on the aggravated sexual assault of a child conviction, and reverse his life sentence on the indecency with a child conviction, remanding the indecency sentence to the trial court for a new hearing on punishment. We reach that result because we hold that (A) the jury charge on range of punishment contained egregiously harmful error and thus requires a new punishment hearing; but (B) denying Splawn’s motion for continuance was discretionary, (C) the State’s notice regarding extraneous offenses was timely and adequate, (D) the location of the trial was proper, (E) the State’s notice of enhancements was sufficient, (F) the State was not required to disclose Splawn’s oral statements, (G) denying Splawn’s challenges of venirepersons for cause was not error, and (H) denying Splawn’s Batson challenges was not error.

A. Jury Charge on Range of Punishment Contained Egregiously Harmful Error

In his first two points of error, Splawn contends (1) that the jury charge contained a harmfully erroneous range of punishment for the indecency with a child conviction and (2) that denying his motion for new trial asserting that error was, itself, error. Although the State argued at trial that Splawn’s punishment on the indecency conviction was properly enhanced under Tex. Pen.Code Ann. § 12.42(b) (Vernon Supp.2004-2005), the State now concedes this was incorrect because the previous offense was not a final conviction, but had instead been subject to community supervision. The jury was thus erroneously charged that the range of punishment for the indecency conviction was five to ninety-nine years or life.

The trial objection made to this portion of the charge is focused on a claim of a lack of notice of the State’s proposed enhancements and does not address the range of punishment error. Because Splawn did not object to the range-of-punishment error, the error is reversible only if it caused him egregious harm. See Cartwright v. State, 838 S.W.2d 134, 137 (Tex.Crim.App.1992) (applying Almanza analysis to error in charging range of punishment); see also Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985). In determining whether egregious harm occurred, we review the error in light of the entire jury charge, the state of the evidence, including the contested issues and the weight of probative evidence, the argument of counsel, and all other relevant evidence revealed by the record as a whole. Skinner v. State, 956 S.W.2d 532, 544 (Tex.Crim.App.1997) (quoting Alman-za, 686 S.W.2d at 171).

Errors resulting in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996) (citing Almanza, 686 S.W.2d at 171); Washington v. State, 59 S.W.3d 260, 265 (Tex.App.-Texarkana 2001, pet. ref’d).

In this case, the harm is obvious: Splawn was sentenced to life in prison for a charge on which he could properly have been sentenced to a maximum of only twenty years.

The State has suggested that we have the authority to reform the sentence from the maximum under the erroneous range to the maximum under the correct, lesser range, arguing this would obviously satisfy the intention of the jury. The general rule is that, if we have “the necessary data and evidence before [the court] for reformation, the judgment and sentence may be reformed on appeal.” Banks v. State, 708 S.W.2d 460 (Tex.Crim.App.1986). The State directs us to an unpublished case in which the court, without comment or analysis, reformed a maximum sentence under an incorrect range to the maximum sentence under the lesser range. See Crain v. State, No. 14-97-00234-CR, 1998 WL 418846, 1998 Tex.App. LEXIS 4478 (Tex.App.-Houston [14th Dist.] July 23,1998, no pet.) (not designated for publication). Crain relied on McCray v. State, 876 S.W.2d 214, 217 (Tex.App.-Beaumont 1994, no pet.), as authority. In McCray, the court, in a split opinion, concluded with little analysis that, because the trial court had sentenced McCray to the highest level available under the wrong range of punishment, it could reform that sentence to the highest level under the lower range.

Other courts have declined to apply that theory, and have reversed cases where a fact-finder was provided with the wrong range of punishment and remanded the case to the trial court for a new punishment hearing. See Bailey v. State, 7 S.W.3d 721, 725 (Tex.App.-Corpus Christi 1999), vacated on other grounds, 38 S.W.3d 157 (Tex.Crim.App.2001); State v. Rowan, 927 S.W.2d 116 (Tex.App.-Houston [1st Dist.] 1996, no pet.).

We conclude sentence reformation is not appropriate here. In each of the cases allowing reformation, only a single charge had been prosecuted. While we find reformation attractive when there is a single charge — if a fact-finder found the maximum punishment to be the right one under a high level felony, it would certainly find the maximum punishment proper under a lesser charge — it is problematic here.

This case is more complex because two different charges were involved, and the error may well have influenced the jury’s assessment of punishment on the indecency charge. The erroneous range of punishment charged on the indecency conviction was communicated to the jury at the same time as the accurate charge concerning the mandatory life sentence for the enhanced assault conviction. The jury was charged that the indecency conviction was punishable with as much as a life sentence, the mandatory sentence on the other enhanced conviction. If the two offenses were worthy of equal maximum punishment, the jury could very easily have concluded they should, in fact, be equally punished. Because, in fact, the range of punishment for indecency with a child is substantially different from the life sentence mandated for aggravated sexual assault of a child, enhanced — and because we cannot know how the jury might have assessed punishment on the indecency conviction, if correctly charged on that offense — we remand the indecency sentence to the trial court for another punishment hearing. See Flores v. State, 888 S.W.2d 187, 193 (Tex.App.-Houston [1st Dist.] 1994, pet. refd).

B. Denying the Continuance Was Discretionary

In his third point of error, Splawn contends the court committed reversible error by failing to grant his first pretrial motion for continuance. The record shows that Splawn originally had appointed counsel, who was evidently replaced with retained counsel November 19, 2002. After at least one more delay from a March 24, 2003, trial setting, the retained counsel was allowed to withdraw July 3, 2003, and yet another attorney was appointed that same day. That attorney withdrew only six days later, and current counsel, Jeff Starnes, was appointed to represent Splawn. Starnes filed the motion for continuance August 14, 2003, and after a hearing August 19, the trial court denied the motion. Voir dire began September 8, and trial began the next day.

The trial court’s ruling on a motion for continuance is reviewed for abuse of discretion. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex.Crim.App.1995); see Tex. Code Ckim. PROC. Ann. arts. 29.03, 29.06(6) (Vernon 1989). To establish an abuse of discretion, there must be a showing that the defendant was actually prejudiced by the denial of his motion. Janecka v. State, 937 S.W.2d 456, 468 (Tex.Crim.App.1996); Heiselbetz, 906 S.W.2d at 511.

As pointed out by the State, Starnes had represented Splawn for five weeks before filing the motion for continuance. At a hearing August 19, Starnes informed the trial court that he felt unprepared because he had not received previous counsel’s file until August 12. He also pointed out that he was, at the same time, appointed counsel for another defendant whose trial was to begin shortly in that same court, and that the defendant in the other case could not speak English, requiring a translator for all communications. Counsel also pointed out that his pretrial motions had not yet been ruled on, and that because of the situation he was not in a position to prepare adequately for trial.

The trial court considered that, as well as the facts that Splawn had already been in jail for 332 days and that his trial had been already delayed at least once. The court then noted that the previous delay had occurred because of the withdrawal of retained counsel on the eve of trial. After articulating concerns about the delays and their causes, the court decreed that the Splawn case would be tried first and that the other criminal matter would be delayed.

The situation was further complicated when the State, at the last minute, provided Splawn with a videotape as required by an extant discovery order. As a result, the trial court delayed trial yet another ten days. Thus, trial actually began September 9. Considering the length of time that had elapsed, the previous delay, and the last, ten-day delay of the trial, we cannot conclude the trial court abused its discretion by concluding that no additional delays should be permitted and that trial should commence as ordered. We find no error in the denial of the motion for continuance.

C. Notice Regarding Extraneous Offenses Was Timely and Adequate

In points of error four and five, Splawn contends the trial court erred in ruling the State had given timely and adequate notice of its intention to introduce evidence of extraneous offenses. On July 21, Splawn filed requests directed both to the trial court and to the State referencing Article 37.07 of the Texas Code of Criminal Procedure and Rule 404 of the Texas Rules of Evidence, respectively, asking for immediate notice. On July 24, Splawn filed a similar request under Article 38.37 of the Texas Code of Criminal Procedure. Each of the three requests served both as a request to the State and as a motion to the trial court asking for enforcement should the State be derelict in complying with the request. The three motions were formally granted by the trial court August 25, 2003.

The State provided notice August 21, 2003, listing five extraneous alleged offenses it intended to prove. All five were originally in the indictment and had been abandoned by the State. The August 21 list contains dates differing from those in the indictment. That list alleged that four of the five offenses occurred June 6, 2002, in contrast to the indictment’s May 6, 2003, date. Thus, on August 26, the State filed an amended list setting out the correct date.

Voir dire in this case began September 8, 2003. Trial began the next day, September 9. We have recently acknowledged the presumption that notice of intent to enhance, given more than ten days before trial, is timely. McNatt v. State, 152 S.W.3d 645 (Tex.App.-Texarkana, 2004, pet. filed) (not designated for publication); Fairrow v. State, 112 S.W.3d 288, 295 (Tex.App.-Dallas 2003, no pet.). In this case, even if we calculate from the later date, over ten days elapsed from the date of notice to the beginning of the trial. Notice was timely.

But Splawn also asserts that the State’s notice regarding extraneous offenses was inadequate, in that the State provided insufficient details of the extraneous offenses to allow him to adequately prepare for trial. The two latest amended notices, filed August 26, 2003, each disclosed five alleged offenses which had not resulted in a conviction. Each of the alleged offenses was disclosed by including information on the name or classification of the alleged offense, the date of its alleged commission, the county in which it was allegedly committed, its alleged victim, and finally a reference that it was “separate (abandoned) count” followed by an associated number. Splawn portrays that last reference as vague, but we disagree. The references clearly refer to numbered counts of the indictment, which counts had been subsequently abandoned but which the State wished to use as evidence at trial.

Splawn specifically complains about the notices’ confusion of dates and their lack of specificity regarding how each alleged offense was committed. We address first the date component, then the disclosure concerning how each alleged offense was committed.

"While there was admittedly some initial confusion in the trial court about the various alleged offenses and their dates, that does not negate the fact that the latest amended notices of August 26, 2008, which we have already concluded were timely, clearly set out a date for each alleged offense. Therefore, the notices’ dates of offense were sufficiently stated.

The substance of the alleged offenses were adequately noticed, as well. In addition to the other related information about each offense — omitted here — the notice specified the five alleged offenses by name or classification of offense and by reference to specific counts of the indictment:

OFFENSE [A]: Indecency With A Child (by exposure)
STATUS OF CHARGE: charged as separate (abandoned) count six
OFFENSE [B]: Aggravated Sexual Assault of a Childsexual contact (“cause the anus of [J.H.] to contact the sexual organ of the defendant”)
STATUS OF CHARGE: charged as separate (abandoned) count two
OFFENSE [C]: Indecency With A Child (by exposure)
STATUS OF CHARGE: charged as separate (abandoned) count seven
OFFENSE [D]: Indecency With A Child (by contact)
STATUS OF CHARGE: charged as separate (abandoned) count five
OFFENSE [E]: Indecency With A Child (by contact)
STATUS OF CHARGE: charged as separate (abandoned) count three

As to each noticed alleged offense, the named offense completely matched with the details set out by the referenced count of the indictment:

That is ample detail to give Splawn notice of the alleged offenses.

In asserting the inadequacy of notice, Splawn invokes three different notice requirements, Article 37.07, Section 3(g), and Article 38.37, Section 3, of the Texas Code of Criminal Procedure, and Rule 404(b) of the Texas Rules of Evidence. We address each in turn.

Article 37.07, Section 3(g) — applicable to evidence introduced during the punishment phase of trial — provides that notice of alleged offenses that have “not resulted in a final conviction in a court of record or a probated or suspended sentence” must include the date and county of the occurrence and the name of the alleged victim. Tex.Code CRiM. PROC. Ann. art. 37.07, § 3(g) (Vernon Supp.2004-2005). If referencing the indictment is proper, each of the noticed alleged offenses provides the information required by Article 37.07, Section 3(g).

Article 38.37, Section 3, of the Texas Code of Criminal Procedure and Rule 404(b) of the Texas Rules of Evidence apply regarding evidence introduced during the guilt/innocence phase of trial. Article 38.37, Section 3, provides that its required notice is to be given in the same manner as notice under Texas Rule of Evidence 404(b). Tex.Code Ceim. PROC. Ann. art. 38.37, § 3 (Vernon Supp.2004-2005); Tex.R. Evid. 404(b). Neither Article 38.37, Section 3, nor Rule 404(b), specify what information must be included for a notice to be reasonable. But the purpose of at least Rule 404(b) is to avoid surprise. Cole v. State, 987 S.W.2d 893, 897 (Tex.App.-Fort Worth 1998, pet. ref d); Self v. State, 860 S.W.2d 261, 264 (Tex.App.-Fort Worth 1993, pet. ref’d); see Hayden v. State, 66 S.W.3d 269, 271 (Tex.Crim.App.2001). That is essentially the purpose of Article 37.07, Section 3(g). Roman v. State, 986 S.W.2d 64, 67 (Tex.App.-Austin 1999, pet. refd); Nance v. State, 946 S.W.2d 490, 493 (Tex.App.-Fort Worth 1997, pet. refd). We see no reason why the type of information, or the level of detail in that information, required under any of the three provisions to make a notice sufficient, should be appreciably different, except for the obvious difference between, on one hand, a cause number and county and date of conviction, where there has been a conviction, and, where an offense has not resulted in a conviction, “the date and county of the occurrence and the name of the alleged victim,” as required by Article 37.07, Section 3(g). See Tex.Code CRiM. PROC. Ann. art. 37.07, § 3(g).

A notice’s reference to other written material available to defense counsel is adequate notice, if it is reasonably calculated to draw defense counsel’s attention to an extraneous offense described in the referenced material. See Roman, 986 S.W.2d at 67. The State’s notice in this case, referring Splawn’s counsel to specified numbered counts in the indictment to provide the additional detail therein disclosed, is sufficient notice, since the descriptions of the offenses as set out in the referenced counts of the indictment contain sufficient information—notifying Splawn of the allegations that he exposed his genitals in J.H.’s presence, that he caused his penis to contact J.H.’s anus, and that he touched J.H.’s genitals. The notice as to each extraneous offense gave information, either in the notice itself or by reference to a specific numbered count of the indictment, sufficient to allow Splawn to prepare for trial. Notice was therefore not only timely, but adequate.

D. Location of Trial Was Proper

Splawn’s sixth point of error contends the trial court erred by holding the trial in the Police Athletic League (PAL) building. The facility is a designated auxiliary court facility. See Tex. Loc. Gov’t Code Ann. § 292.004 (Vernon 1999). Splawn argues he was harmed because it is a location where children and police intersect, because the PAL emblem on the outside of the building reflects its purpose, and because groups of children typically were found in the hallways leading to the courtroom and jury room. He provides no legal argument under this contention of error. We are not convinced that error is shown by holding the trial in a sanctioned facility. Further, even if some error could be said to exist, the existence of a symbol involving children does not of itself show harm under these facts, and the existence of children in hallways is reflective of life in general. Under these facts, no harm appears. We overrule this contention of error.

E. Notice of Enhancements Was Sufficient

Splawn’s seventh point of error asserts error in the enhancement charge’s inclusion of an enhancement not incorporated into the indictment. He contends that pleading enhancement allegations in the indictment is not only the “traditional” method of achieving that purpose, but also that it is implicitly required by the Texas Constitution. As pointed out by the State, this contention was disposed of by the Texas Court of Criminal Appeals in Brooks v. State, 957 S.W.2d 30, 33 (Tex.Crim.App.1997), which held that, despite prior cases holding to the contrary, enhancements need not be pled in the indictment, though noting that it is perhaps preferable to do so. This contention is without merit.

F. Disclosing Splawn’s Oral Statements Was Not Required

In his eighth point of error, Splawn contends that the court erred by allowing the State to introduce statements allegedly made by Splawn that were not turned over to defense counsel before trial. The pretrial order entered by the court requires the State to make a list of materials available “for inspection, photographing, photocopying and duplication,” including all “confessions, statements and res gestae statements purportedly made by the Defendant....” The order requires to be turned over to the defense, no later than 10:00 a.m. on the 28th day after entry of the order and on written demand, as much of such information and materials as are under the control of the State.

Splawn complains because the State, on the Friday before jury selection began, gave oral notice of the existence of an oral admission by Splawn to the parents of J.H. Splawn argues that this is a clear failure to comply with the order. We disagree. The order is not directed generally at all potential testimony of witnesses, and does not require the State to create and then provide documentation of their prospective oral testimony. Oral comments, not in written form in the State’s possession, uttered by Splawn to third parties, are not matters within the possession, custody, or control of the State. The State cannot be faulted for failing to produce them. We overrule this contention of error.

G. Denying Challenges of Venirepersons for Cause Was Not Error

Splawn’s ninth point of error attacks the trial court’s denial of Splawn’s challenges for cause against venirepersons numbered six, twelve, forty-four, and forty-six, which he states forced him to accept jurors that would otherwise have been unacceptable.

When reviewing a trial court’s decision to grant or deny a challenge for cause, we are to look at the entire record to determine if there is sufficient evidence to support the court’s ruling. Sells v. State, 121 S.W.3d 748, 759 (Tex.Crim.App.2003). We give great deference to the trial court’s decision because the trial judge is present to observe the demeanor of the venireperson and to listen to the tone of voice. Id. We have been directed to give particular deference when the potential juror’s answers are vacillating, unclear, or contradictory. Feldman v. State, 71 S.W.3d 738, 744 (Tex.Crim.App.2002); King v. State, 29 S.W.3d 556, 568 (Tex.Crim.App.2000). In our review, we look to see if the trial court abused its discretion in denying a defendant’s challenges for cause. Murphy v. State, 112 S.W.3d 592, 600 (Tex.Crim.App.2003).

We address each challenged venireper-son in turn.

Juror six, Mr. Glenn, had written in a juror questionnaire that, if a person was not guilty, he would take the stand to tell his side of the story, and stated that a person charged with molesting a child should have to prove his innocence “without a doubt.” In a more extended discussion, he went on to explain that he could balance the evidence and would require the defense to put on evidence. However, when the State questioned him, he gave answers agreeing that a defendant did not have to put on evidence, because the State had to prove guilt. On requestioning by defense counsel, he again flip-flopped, agreeing that, regardless of what the law says, he believed an accused child molester should have to prove his or her innocence. He then stated, however, that he could put that “in the back of his head, gone.” This is a situation where a venireperson vacillated, depending on which counsel was questioning him. See Feldman, 71 S.W.3d at 744. In such a situation, we must defer to the trial court’s determination.

Juror twelve, Mr. Jones, a retired Texas Department of Public Safety officer who worked with the officer in the sheriffs office who had investigated this case, said that he would perhaps tend to give an officer’s testimony the benefit of the doubt as opposed to someone he did not know and that he knew the woman who had interviewed the child. He also stated that he would try his best to set those factors aside and decide the case based on the evidence, and that he would follow the law as stated by the judge. His statements are not of the type that remove this decision from the trial court’s discretion.

Juror forty-four, Mr. White, stated that a child would not make a statement about molestation unless it happened, and that he believed the majority of the time a child would “tell it just like it is....” As with juror six, his answers about whether the defendant should testify in his own defense vacillated. Yet he did state at one point that it would not influence him. We likewise hold that the decision in this case was within the range of discretion available to the court.

Juror forty-six, Mrs. Walters, stated on her questionnaire her belief that, if a child made such an accusation, it was probably true, that a person accused of a bad crime should let his or- her point of view be heard, and that it would help if the defendant would testify. However, she also stated in response to questions by the State that, if the State failed to prove its case, she would have to find the defendant not guilty. And she finally settled on the statement that, if the defendant did not testify, she would not hold it against him or her, and would decide the case solely based on the evidence she heard. The court had the authority to sort out the contradictory and unclear answers of the vernireperson in the exercise of its discretionary authority.

We overrule this contention of error.

H. Denying Splawn’s Batson Challenges Was Not Error

Splawn’s tenth and final point of error contends the trial court erred in overruling his Batson challenges. His contention is based on a claim that the State had exercised its peremptory challenges on the basis of gender. In each of the seven strikes exercised by the State, it struck a male. Under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, a litigant may not exercise a peremptory challenge based on the juror’s gender, J.E.B. v. Alabama ex. rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), ethnicity, Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), or race, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Guzman v. State, 85 S.W.3d 242, 245 (Tex.Crim.App.2002).

In our review, wé examine the genuineness instead of the reasonableness of the State’s asserted nonracial motive for peremptorily striking each veniremember. Gibson v. State, 144 S.W.3d 530, 534 (Tex.Crim.App.2004). We are then to apply a “clearly erroneous” standard of appellate review to a trial court’s ruling on a Batson claim. This highly deferential standard is applied because the trial court is in the best position to determine whether a prosecutor’s facially race- or gender-neutral explanation for a peremptory strike is genuine. See Jasper v. State, 61 S.W.3d 413, 421-22 (Tex.Crim.App.2001) (race).

When the Batson challenge was raised, the State worked its way down the fist and attempted to provide a reason for each strike. Splawn complains on appeal about two of them, Steven Edward Philip and Tommy Clyde Lane. The State’s reasons for striking those two veniremembers, while not terribly thorough, are gender neutral:

Steven Edward Philip, I really can’t recall my reasons on that one. I struck him from the previous case last week and basically from that same feeling, although I don’t have my records on that from last week. Tommy Clyde Lane was based on his answers. Let me look at it real quick. He indicated he had a bad check and I had a question on whether or not that resulted in a conviction, and I forgot to ask him that when he was up here. If I’m not mistaken, I think he also indicated that he knew one of the witnesses and I wasn’t sure how he knew him and it seemed like it might be negative.

There is no requirement that the reasons for exercising a peremptory challenge be good ones. In fact, a peremptory challenge is, by definition, one exercised without giving a good reason. The United States Constitution requires only that there be something articulated to show that the exercise was not based on a constitutionally forbidden categorization, such as race, ethnic background, or gender. That standard has been met. The State gave reasons, and they were not reasons that are constitutionally prohibited. That is all that is required. There is no showing that the trial court’s ruling was clearly erroneous. We overrule this contention of error.

We affirm both of Splawn’s convictions, affirm the mandatory life sentence on the assault conviction, and reverse and remand his sentence on the indecency conviction to the trial court for a new punishment hearing.

      . The sentences were set to run concurrently.

      . The aggravated sexual assault conviction was for engaging in oral sex with an eleven-year-old boy, while the indecency conviction was for touching the boy's genitals.

      . Tex. Pen.Code Ann. § 12.42(c)(2) (Vernon Supp.2004-2005) permits enhancement of a sentence for aggravated sexual assault under Section 22.021 even if the prior prosecution resulted in a probated sentence rather than a final conviction. See Tex Pen.Code Ann. § 12.42(g)(1) (Vernon Supp.2004-2005).

      . One of the two notices also gave notice of two prior felonies, by classification or name of the offense, the date of offense, the county of offense, and the case number. That those details are insufficient is not argued by Splawn.

      . The State had originally obtained an indictment on two aggravated sexual assault counts — numbered one and two in the original indictment — and five indecency counts— numbered three through seven. Before trial and before the notices in question, the State had dropped counts two, three, five, six, and seven, and retained counts one and four for prosecution.

      . We note that Splawn has made a similar argument about Article 37.07, Section 3(g), notice before, with equal success. See Splawn v. State, 949 S.W.2d 867, 871 (Tex.App.-Dallas 1997, no pet.).