author: ANN CRAWFORD McCLURE, Justice.

text:
    In the Matter of A.B., A Juvenile.
    No. 08-03-00468-CV.
    Court of Appeals of Texas, El Paso.
    Feb. 3, 2005.

      M. Clara Hernandez, El Paso County Public Defender, El Paso, for appellant.
    Jose R. Rodriguez, County Atty., El Paso, for appellee.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

A.B. appeals the juvenile court’s finding that he engaged in delinquent conduct in two counts of aggravated sexual assault. Count I alleged A.B. engaged in delinquent conduct by intentionally and knowingly penetrating the sexual organ of A.A., a child younger than fourteen, with his finger. Count II alleged the intentional and knowing penetration of the child’s anus with his finger Finding the evidence sufficient, we affirm.

FACTUAL SUMMARY

Graciela Vega lived in a three bedroom, two bath house with a den. She rented the den and a bathroom to Maria Estrada and her three children. The den was separated from the rest of Graciela’s house and had a separate entrance. Graciela had never before asked Maria to care for A.A., but on April 29, 2003, she left her daughter with Maria and Maria’s children. A.B. is the oldest of Maria’s children. Graciela arrived home around 2 a.m. and knocked on Maria’s door to pick up her daughter. Maria was not home, but A.B. answered the door.

As Graciela bathed A.A. the next morning, the child made an outcry statement. The specific details of the outcry were not disclosed at trial. Graciela notified authorities on May 3, 2003. She waited a few days since she felt guilty about having left her daughter with Maria’s children. Graciela talked to Maria, who told her and A.A. not to tell anyone about the incident.

El Paso Police Department Detective Oscar Morales interviewed A.A. on May 8, 2003. Officer Morales believed the child could distinguish between telling the truth and a lie and that she knew the moral consequences of telling a lie. Morales characterized her as articulate and able to recall the events due to the short time period between the incident and the interview. A.A. was also able to identify her private parts and to distinguish between a good and bad touch.

A.A. was six at the time of trial and five at the time of the incident. She testified that she knew the difference between the truth and a lie and she promised to tell the truth. She remembered staying with A.B. and his two brothers. When A.A. was asleep in Maria’s bed, A.B. touched her. A.B. made sure the covers hid his hands. A.A.’s underwear was pulled down. She explained what private parts were, characterized them as the “front” and the “bottom,” and pointed to them for the court. She also knew the difference between “inside” and “outside.” Using his fingers, A.B. touched her inside both areas.

The juvenile court found that A.B. had engaged in delinquent conduct under both counts of the State’s petition. He was placed on probation under the Serious Habitual Offender Comprehensive Action Program.

ENGAGEMENT IN DELINQUENT CONDUCT

In Points of Error Nos. One and Two, A.B. challenges the legal and factual sufficiency of the evidence to support a finding of delinquent conduct.

Standard of Review

A jury finding that a juvenile engaged in delinquent conduct violates due process of law unless supported by sufficient evidence to justify a rational trier of fact to find guilt beyond a reasonable doubt. In the Matter of Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970), Alvarado v. State, 912 S.W.2d 199, 206-07 (Tex.Crim.App.1995); In the Matter of A.S., 954 S.W.2d 855, 858 (Tex.App.-El Paso 1997, no writ). Under this standard, we must review all the evidence, both State and defense, in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. In the Matter of A.S., 954 S.W.2d at 858; Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Alvarado, 912 S.W.2d at 207.

In reviewing factual sufficiency of the evidence, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). Evidence is factually insufficient if it is so weak that it would be clearly wrong and manifestly unjust to allow the verdict to stand, or the finding of guilt is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. Therefore, the question we must consider in conducting a factual sufficiency review is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the fact finder’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See id. In performing this review, we are to give due deference to the fact finder’s determinations. See id. at 8-9; Clewis, 922 S.W.2d at 136. The fact finder is the judge of the credibility of the witnesses and may “believe all, some, or none of the testimony.” Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.1991). Consequently, we may find the evidence factually insufficient only where necessary to prevent a manifest injustice from occurring. See Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997).

Aggravated Sexual Assault

The offense of aggravated sexual assault is committed when one intentionally or knowingly causes the penetration of the anus or sexual organ of a child under the age of fourteen by any means. Tex. Pen.Code Ann. § 22.021 (Vernon Supp. 2004-05). A conviction for aggravated sexual assault “is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is alleged to have occurred.” Tex.Code Crim.Proc.Ann. art. 38.07(a) (Vernon Pamphlet 2004-2005). This requirement does not apply if the victim is seventeen years of age or younger. Id. at art. 38.07(b)(1). The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault or indecency with a child. Perez v. State, 113 S.W.3d 819, 838 (Tex.App.-Austin 2003, pet. ref'd).

A child may lack the technical knowledge to accurately describe parts of his or her body. Clark v. State, 558 S.W.2d 887, 889 (Tex.Crim.App.1977). Where the child has sufficiently communicated to the trier of fact that the touching occurred to a part of the body within the definition of Section 21.01, the evidence will be sufficient to support a conviction regardless of the unsophisticated language that the child uses. Id. Sexual contact means any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person. Tex.Pen.Code Ann. § 21.01(2)(Vernon 2003).

In a prosecution for sexual assault, penetration may be proved by circumstantial evidence. Pace v. State, 986 S.W.2d 740, 749 (Tex.App.-El Paso 1999, pet. ref'd), citing Nilsson v. State, 477 S.W.2d 592, 595 (Tex.Crim.App.1972); Everage v. State, 848 S.W.2d 357, 359 (Tex.App.-Austin 1993, no pet.). Proof of the slightest penetration is sufficient. Nilsson, 477 S.W.2d at 595.

Analysis

Appellant first claims that the evidence was legally insufficient to prove the element of penetration beyond a reasonable doubt. He admits that an aggravated sexual assault conviction is supportable on the uncorroborated testimony of the sexual assault victim. See Tex.Code Crim.Proc. Ann. art. 38.07. But he questions whether the statutory language means that other evidence is irrelevant or dispensable. He complains that cases analyzed under Article 38.07 had a matrix of physical, medical, and circumstantial evidence while the case at bar has only the undeveloped and vague testimony of a child. In other words, he argues that A.A.’s testimony failed to dispel reasonable doubt since the record did not indicate where the child was pointing or what she meant by the terms “front,” “bottom,” or “inside.” He suggests that the State could have shown her anatomical dolls or pictures to determine where she was pointing and whether the touching was actually inside her genitals or anus. Because it failed to do so, Appellant claims the State failed to prove the element of penetration beyond a reasonable doubt. We disagree.

Viewing the evidence in a light most favorable to the verdict, we conclude that a rational trier of fact could have found all the essential elements of aggravated sexual assault through penetration of the sexual organ and anus solely on the basis of A.A.’s uncorroborated testimony. The child testified that while she was asleep in Maria’s bed, A.B. touched her. She characterized her private parts as the “front” and the “bottom” and she pointed to them. She explained that A.B. touched her “front” and in the “bottom” using his fingers. She also understood the difference between “inside” and “outside.” Because A.A. sufficiently communicated to the court that A.B. used his fingers to penetrate her genitals and anus, the evidence is legally sufficient to sustain the court’s finding of delinquent conduct under both counts of the State’s petition. Point of Error No. One is overruled.

Appellant argues in Point of Error No. Two that the evidence is factually insufficient to prove the element of penetration beyond a reasonable doubt. Specifically, he argues that there was no physical evidence to show penetration. Viewing the evidence in a neutral light, we cannot conclude that the evidence of penetration is so weak as to be clearly wrong and manifestly unjust or against the great weight the evidence. Penetration may be proved by circumstantial evidence. Pace, 986 S.W.2d at 749. Proof of the slightest penetration is sufficient. Nilsson, 477 S.W.2d at 595. A.A.’s testimony that A.B. penetrated her genitals and anus with his finger is sufficient evidence of penetration without testimony from her mother or a medical professional detailing any physical evidence of penetration.

We are to give due deference to the fact finder’s determinations since the fact finder is the judge of the credibility of the witnesses and may “believe all, some, or none of the testimony.” Chambers, 805 S.W.2d at 461. The court obviously found that A.A. to be a credible witness and believed her testimony regarding the sexual assault. Because the evidence is factually sufficient to sustain the court’s finding of delinquent conduct under both counts of the State’s petition, we overrule Point of Error No. Two and affirm the judgment of the trial court.


source: Caselaw Access Project

license: Public Domain

text:
    Michael GIBBS, Appellant, v. SHUTTLEKING, INC., Louisiana Riverboat Gaming Partnership d/b/a Isle of Capri Casino-Bossier City, Marty Negoslawski, Mitchell Goldminz, and Marvin Alger, Appellees.
    No. 08-02-00037-CV.
    Court of Appeals of Texas, El Paso.
    Feb. 3, 2005.
    Rehearing Overruled March 3, 2005.

      Thomas B. Cowart, Law Office of Win-dle Turley, P.C., Dallas, William J. Dun-leavy, Law Office of William J. Dunleavy, Carrollton, for Appellant.
    Christine D. Roseveare, Strasburger & Price, L.L.P., Dallas, for Appellee.
    Before Panel No. 1 LARSEN, McCLURE, and CHEW, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

This case arises from a bus hijacking in which the driver, Michael Gibbs, was seriously injured. He appeals the summary judgment granted in favor of his employers — ShuttleKing Inc., Louisiana Riverboat Gaming Partnership, Marty Negoslawski, Mitchell Goldminz, and Marvin Alger. Appellees will be referred to collectively as ShuttleKing. At issue is the foreseeability of the criminal conduct of the hijackers. We affirm.

FACTUAL SUMMARY

As a bus driver for ShuttleKing, Gibbs drove passengers from Dallas to the Isle of Capri Casino in Bossier City, Louisiana. On November 7, 1996, three passengers pulled weapons and hijacked the bus in Tyler, Texas. Gibbs was shot and seriously wounded during the robbery. He sued ShuttleKing for negligence, alleging that it failed to provide a reasonably safe workplace. In particular, he complained that ShuttleKing (1) faded to check passengers’ luggage; (2) allowed passengers to enter unattended buses; (3) allowed hijackers to enter the bus with weapons; (4) failed to provide an adequate means of communication so that Gibbs could advise ShuttleK-ing of danger; (5) failed to provide him with an adequate means to secure funds from the sale of tickets; (6) failed to instruct or properly instruct employees on security measures; and (7) failed to instruct or properly instruct employees to not leave buses unattended. Gibbs contended that he suffered severe injury to his head, face, left hand, and to his body generally. He sought medical expenses, lost wages and loss of earning capacity, physical pain and suffering, mental anguish, disability, and disfigurement.

PROCEDURAL SUMMARY

Gibbs sought recovery on both negligence and promissory estoppel theories. The trial court initially granted partial summary judgment dismissing the negligence claims. The promissory estoppel issue was tried to a jury, and Gibbs was awarded $150,000 in damages. The East-land Court of Appeals determined that the judgment was interlocutory since it failed to address all claims and parties. On remand, the trial court signed an amended final judgment which incorporated both the partial summary judgment on the negligence issues and the judgment on the jury verdict. Gibbs has appealed only the summary judgment as to negligence. He asks us to affirm the judgment as it pertains to promissory estoppel.

We abated the appeal after Negoslawski filed for bankruptcy. The bankruptcy court discharged Negoslawski from his obligations on December 11, 2002. Gibbs concedes that he cannot resume his action against Negoslawski in a personal capacity. Consequently, he has waived collection of any judgment from Negoslawski personally and has restricted his collection of any damages to insurance covering Negoslaw-ski’s liability, to the co-defendants, or to other responsible third parties. We have reinstated the appeal and consider it now on the merits.

ISSUES ON APPEAL

In his first issue for review, Gibbs generally complains that the trial court erred by granting summary judgment on the negligence issues. He contends that the evidence submitted in his response raised a fact issue as to whether the risk of harm to drivers and passengers was foreseeable. His remaining three issues deal with the applicability of Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex.1998). In Issue Two, Gibbs posits that a defendant can be held liable for the criminal acts of a third party if it knows of an unreasonable and foreseeable risk to the plaintiff. He then asks whether the bus hijacking was foreseeable by ShuttleK-ing. In Issue Three, he queries whether Timberwalk applies when the nature of the business, as opposed to the premises of the business, created , the risk of criminal conduct. In Issue Four, he questions whether the Timberwalk foreseeability factors apply to a moving vehicle.

STANDARD OF REVIEW

A no-evidence summary judgment is proper only when the non-movant fails to prove there is a genuine issue of material fact on one or more of the elements identified in the motion. Tex.R.Civ.P. 166a(i). A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard that we apply in reviewing a directed verdict. Marsaglia v. University of Texas, El Paso, 22 S.W.3d 1, 3 (Tex.App.-El Paso 1999, pet. denied). The motion should be granted if the non-movant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the non-movant’s claim on which the non-mov-ant would have the burden of proof at trial. Marsaglia, 22 S.W.3d at 4. If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Id. Less than a scintilla of evidence exists when the evidence is “so weak as to do no more than create a mere surmise or suspicion” of a fact, and the legal effect is that there is no evidence. Id.

THE MOTION AND RESPONSE

ShuttleKing filed both no-evidence and traditional motions for summary judgment. The no-evidence motion relied upon Tim-berwalk and argued that Gibbs failed to establish the duty element of negligence. In his response, Gibbs claimed that Tim-berwalk was inapplicable because the case at bar did not involve a dangerous premises condition. Instead, he argued his suit was predicated on a negligent activity within the ambit of Keetch v. Kroger Co., 845 S.W.2d 262 (Tex.1992). Alleging that the risk of harm was foreseeable and that ShuttleKing had actual subjective awareness of the risks involved, he claimed ShuttleKing owed him a duty of ordinary care and a duty to provide a safe workplace. He also claimed the existence of a special relationship. Finally, he contended that ShuttleKing owed a high duty of care to its passengers since it was a common carrier, and Gibbs was a necessary and unintended/intended beneficiary.

In his affidavit, Gibbs averred that he had complained to Safety Director Lonnie Self about the risk of robbery due to the presence of large amounts of cash from ticket sales. Several other drivers had also complained to management. The affidavit of driver Joyce Bridwell revealed that she had complained to both Alger and Negoslawski. Yet another driver, Milton Kelly, had reported to Self and Alger in 1995 that a bus carrying passengers to Las Vegas in a similar operation had been hijacked. When Kelly voiced concerns about security, Self belittled them to the extent that Kelly believed the company did not take the dangers seriously.

Charter Sales Manager Priscilla Mantle acknowledged that a regular topic at management meetings was the risk associated with accepting cash for the sale of tickets on the casino charter buses. This was a particular concern since the Department of Transportation required the buses to stop for a roadside check between Dallas and Bossier City, often at night and in desolate areas. Bus drivers had also complained about the cash sales and the dangers associated with them, and some refused to drive the night run. Cash sales were temporarily halted but were later reinstated due to a decline in ticket revenues. Alger expressed concerns about the danger of cash collections. Management discussed having an employee travel to pick up the cash collected each night, but since no employee had time to make the trip, the cash was left with the drivers.

TIMBERWALK

At the heart of this dispute is the Texas Supreme Court’s decision in Timberwalk. Inasmuch as it weaves throughout the issues on appeal, we will begin our analysis with a review of the opinion. There, a tenant who was raped in her apartment sued the landlord and management company for its negligent failure to provide adequate security. 972 S.W.2d at 751. On appeal, the Supreme Court was faced with two issues: (1) whether the plaintiff had alleged a negligent activity or a premises defect and (2) whether the risk that a tenant would be sexually assaulted was reasonably foreseeable to the defendants. Id.

The court recognized that the failure to provide adequate security against criminal conduct is ordinarily couched in terms of premises liability. 972 S.W.2d at 753. That was particularly trae since the tenant did not assert that she was injured by or as a contemporaneous result of any activity of the defendants. The only activity that had injured the tenant was the conduct of the rapist. Id. The court then addressed whether the defendants had a duty to provide security measures and whether the likelihood of violent criminal activity within the apartment complex could have been reasonably foreseen. Id. at 756. The opinion articulated the factors to be considered in determining the foreseeability of third party criminal acts: (1) proximity, (2) recency, (3) frequency, (4) similarity, and (5) publicity. Id. at 759. In a concurrence, Justice Spector suggested that other types of evidence may also establish foreseeability, such as the nature, condition, and location of the defendant’s premises. Id. Spector quoted the language from Restatement (Second) of Torts section 344 comment f: “If the place or character of [a] business ... is such that [the landowner] should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, [the landowner] may be under a duty to take precautions against it....” Id.

DUTY TO PREVENT THIRD PARTY CRIMINAL ACTS

In Issue Two, Gibbs argues that Timberwalk does not negate the common law duty to control a third party when the defendant has the opportunity, ability, and knowledge of the necessity to do so. To the extent he relies upon Section 318 of the Restatement (Second) of Torts, the argument is waived as it was not raised in his response to the motion for summary judgment. Tex.R.Civ.P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”). We will consider the argument to the extent he contends he presented sufficient evidence that the criminal acts were foreseeable so as to defeat summary judgment.

The elements of a negligence cause of action are the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002). Generally, a person has no legal duty to protect another from the criminal acts of a third person. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995). An exception to the general rule is that one who controls premises has a duty to use ordinary care to protect invitees from criminal acts of third parties if it knows or has reason to know of an unreasonable and foreseeable risk of harm to the invitee. Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex.1997). Gibbs, as an employee, would be classified as an “invitee” on ShuttleKing’s premises. See Guerrero v. Memorial Medical Center of East Texas, 938 S.W.2d 789, 791 (Tex.App.-Beaumont 1997, no pet.), citing Hernandez v. Heldenfels, 374 S.W.2d 196, 197 (Tex.1963). Ordinarily, this duty does not include preventing criminal acts of third parties over whom the premises owner has no control. Id.; see also Timberwalk, 972 S.W.2d at 756. However, in a landlord-tenant relationship, a landlord who retains control over the security and safety of the premises has been found to owe a duty to a tenant, a tenant’s employee, and a tenant’s guest to use ordinary care to protect the employee against an unreasonable and foreseeable risk of harm from the criminal acts of third parties. See Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex.1993); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 549 (Tex.1985); Haight v. Savoy Apartments, 814 S.W.2d 849, 853-54 (Tex.App.-Houston [1st Dist.] 1991, writ denied).

Thus, the foreseeability of an unreasonable risk of criminal conduct is a prerequisite to imposing a duty of care on one who owns or controls premises to protect others on the property from the risk. Timberwalk, 972 S.W.2d at 756. While only a general danger and not the precise sequence of events must be foreseeable, when the general danger is the risk of injury from criminal activity, there must be evidence of specific previous crimes on or near the premises. Id. Crime may be visited upon virtually anyone at any time or place, but criminal conduct of a specific nature at a particular location is never foreseeable merely because crime is increasingly random and violent and may possibly occur almost anywhere, especially in a large city. Id., citing Lefmark, 946 S.W.2d at 59. If a landowner had a duty to protect persons on its property from criminal conduct whenever crime might occur, the duty would be universal. Id. A duty exists only when the risk of criminal conduct is so great that it is both unreasonable and foreseeable. Id. Whether the risk was foreseeable must not be determined in hindsight but rather in light of what the premises owner knew or should have known before the criminal act occurred. Id. at 757. In determining whether the occurrence of certain criminal conduct on a landowner’s property should have been foreseen, courts should consider whether any criminal conduct previously occurred on or near the property, how recently it occurred, how often it occurred, how similar the conduct was to the conduct on the property, and what publicity was given the occurrences to indicate that the landowner knew or should have known about them. Id. The factors must be considered together in determining whether criminal conduct was foreseeable. Id. at 759.

Proximity

For a landowner to foresee criminal conduct on property, there must be evidence that other crimes have occurred on the property or in its immediate vicinity. Id. Criminal activity occurring at a distance from the landowner’s property bears less relevance because crime rates may be expected to vary significantly within a large geographic area. Id. This is not to say that evidence of remote criminal activity can never indicate that crime is approaching a landowner’s property. Id. But such evidence must be especially strong, and must show that the risk of criminal conduct on the landowner’s property is not merely increasing but has reached a level as to make crime likely. Id.

Most courts have looked to narrow geographic areas in analyzing the foreseeability of criminal conduct. Id. While a few courts have examined criminal activity occurring in broader geographic areas, statistics regarding large or undefined geographic areas do not by themselves make crime foreseeable at a specific location. Id. Even if a city’s overall crime rate has risen, specific areas within the city may remain crime free. Id. Likewise, merely because several crimes have occurred at a particular ATM located in a high-crime area does not render it more likely that future crimes will occur at every ATM the bank owns. Id. For a risk to be foreseeable, there must also be evidence of criminal activity within the specific area at issue, either on the landowner’s property or closely nearby. Id.

RecencylFrequency

Foreseeability also depends upon how recently and how often criminal conduct has occurred in the past. Id. at 757-58. The occurrence of a significant number of crimes within a short time period of time strengthens the claim that the particular crime at issue was foreseeable. Id. at 758. On the other hand, the complete absence of previous crimes, or the occurrence of a few crimes over an extended time period, negates the foreseeability element. Id.

Similarity

Although the previous crimes must be sufficiently similar to the crime in question as to place the landowner on notice of the specific danger, the prior crimes need not be identical. Id. For example, a string of assaults and robberies in an apartment complex make the risk of other violent crimes, like murder and rape, foreseeable, but a spate of domestic violence in the complex does not portend third party sexual assaults or robberies. Id.

Assessing this factor is difficult because “[cjriminal activity is not easily compartmentalized.” Id., citing Jardel Co. v. Hughes, 523 A.2d 518, 525 (Del.1987). While property crimes may expose a dangerous condition that could facilitate personal crimes, as when apartments are targeted repeatedly by thieves, vandalism to automobiles in an apartment complex’s parking lot can be a serious concern, but it does not suggest the likelihood of sexual assault. Id.

Publicity

The publicity surrounding the previous crimes helps determine whether a landowner knew or should have known of a foreseeable danger. Id. A landlord often has actual knowledge of previous crimes occurring on the premises through tenants’ reports, and actual notice of past incidents strengthens the claim that future crime was foreseeable. Id. However, unreported criminal activity on the premises is no evidence of foreseeability. Id. at 758-59. Previous similar incidents cannot make future crime foreseeable if nobody knows or should have known that those incidents occurred. Id. at 759. Property owners bear no duty to regularly inspect criminal records to determine the risk of crime in the area; on the other hand, when the occurrence of criminal activity is widely publicized, a landlord can be expected to have knowledge of such crimes. Id.

Application

Gibbs argued that ShuttleKing as owner of the bus had the ability and responsibility to control the third parties who were responsible for his injury. He relies on the following instances of crime: one of ShuttleKing’s drivers learned in 1995 that a bus carrying passengers to Las Vegas was hijacked and he advised management about the incident; the safety director was familiar with one incident in which a bus driver shot an armed hijacker in New Jersey in 1991; management discussed the risk associated with accepting cash for ticket sales; and management recognized the concern arising from Department of Transportation requirements for roadside checks which often occurred at night in desolate areas.

ShuttleKing offered evidence that it operated buses in twenty-nine states and the District of Columbia. It had operated the Dallas-Bossier City run more than 1,400 times in the previous twenty-two months without a comparable incident. It presented news articles from The New York Times reporting three similar incidents. Of these, two were in the New York City area and one was in California. Whether the New Jersey hijacking constituted one of the New York incidents is not clear from the record. Nor is it clear whether the Las Vegas hijacking coincided with the California incident. It is clear that the owners of ShuttleKing were not subscribers of the newspaper. Gibbs offered no evidence that any crimes had occurred on ShuttleKing’s bus lines or on other bus lines traveling on casino runs between Dallas and Louisiana. Nor did he provide evidence to show recency or frequency of crimes occurring on similar bus lines. The occurrence of few crimes over an extended period of time or the absence of previous crimes negates foreseeability. Timberwalk, 972 S.W.2d at 759. Finally, Gibbs failed to provide evidence to show that the actual incidents were similar to the crime perpetrated against him or that they were sufficiently publicized. Id. at 759.

DUTY TO PROVIDE SAFE WORKPLACE

Also contained within Issue Two is Gibbs’ argument that ShuttleKing had a duty to provide a safe workplace. An employer has a duty to use ordinary care in providing its employees with a safe place to work; however, an employer does not become an insurer of its employees’ safety at work. Kroger Co. v. Keng, 976 S.W.2d 882, 885 (Tex.App.-Tyler 1998, review granted), aff'd, 23 S.W.3d 347 (Tex.2000), citing Werner v. Colwell, 909 S.W.2d 866, 869 (Tex.1995); Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex.1996). An employer must provide rules and regulations for the safety of its employees, furnish safe machinery and instrumentalities, provide a safe place to work, and select careful and competent fellow servants. Kroger Co., 976 S.W.2d at 885, citing Burk Royalty Co. v. Walls, 616 S.W.2d 911, 923-24 (Tex.1981). It must warn employees about the hazards of their employment and supervise their activities. Farley v. M.M. Cattle Co., 529 S.W.2d 751, 754 (Tex.1975), overruled on other grounds, Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex.1978). The test whether the employer has met its obligation is- the exercise of ordinary care based on general negligence principles. Woodlawn Mfg., Inc. v. Robinson, 937 S.W.2d 544, 548 (Tex.App.-Texarkana 1996, writ denied), citing Tidwell, 867 S.W.2d at 21. Because ordinary principles of negligence apply, the foreseeability necessary to impute responsibility for third party criminal conduct must be evaluated in light of Timberwalk.

ShuttleKing owed Gibbs a duty only if the third party criminal act were foreseeable. Because the evidence failed to establish foreseeability under the Timber-walk factors, we overrule Issue Two.

NATURE OF THE BUSINESS

In Issue Three, Gibbs complains that the Timberwalk factors should not have been rigidly applied in determining the foreseeability of third party criminal acts. Because the bus was not a fixed location, the analysis should focus on the nature of the business, rather than the location of the business. In other words, Gibbs contends that the issue is whether ShuttleKing knew or should have known that the nature of their business was prone to attract criminal activity.

In support of this argument, Gibbs refers us to Section 344 of the Restatement (Second) of Torts, Justice Spec-tor’s concurrence in Timberwalk, and two pre-Timberwalk opinions. See Kendrick v. Allright Parking, 846 S.W.2d 453, 454-55 (Tex.App.-San Antonio 1992, writ denied); Garner v. McGinty, 771 S.W.2d 242, 244 (Tex.App.-Austin 1989, no writ). His reliance on the Restatement has been waived inasmuch as he failed to address the issue in the trial court. See Tex.R.Civ.P. 166a(c). Moreover, we are disinclined to expand the duty articulated in Timber-walk. The opinion defined the parameters of foreseeability for third party criminal acts, and the analysis did not incorporate a “nature of the business” factor. Issue Three is overruled.

PREMISES LIABILITY VERSUS NEGLIGENT ACTIVITY

In Issue Four, Gibbs first argues that since a bus is not a fixed piece of property, it does not qualify under the definition of “premises.” Secondarily, he asserts that the case involves a negligent activity rather than a premises defect.

Bus as Premises

The common definition of “premises” is “a building or part of a building with its grounds or other appurtenances.” J.B. Advertising, Inc. v. Sign Bd. of Appeals of the City of Carrollton, 883 S.W.2d 443, 447 (Tex.App.-Eastland 1994, writ denied), citing Billstrom v. Memorial Medical Center, 598 S.W.2d 642 (Tex.Civ.App.-Corpus Christi 1980, no writ). In Billstrom, the court defined “premises” as “an estate, including land and buildings thereon; ... The area of land surrounding a house, and actually or by legal construction forming one enclosure with it. A distinct and definite locality, and may mean a room, shop, or other definite area, or a distinct portion of real estate.” 598 S.W.2d at 646, citing Black’s Law Dictionary 1063 (5th ed.1979). Gibbs argues that because Timberwalk is replete with references to “landowners” and “real property,” a bus does not fit within the parameters of the decision. From this, he concludes that the Timber-walk foreseeability factors do not apply.

While a bus may not fit neatly within the definition of a “premises,” a bus utilized by a transportation company is sufficiently similar to a “premises” to fall under the purview of the Timberwalk factors. Although it does not constitute real property, it does constitute an asset used by ShuttleKing in their business. The bus was Gibbs’ workplace—a definite area and locality. Whether a different standard would apply to a bus in use as a common carrier is an issue not presently before us.

Negligent Activity

Recovery on a negligent activity theory requires that the person be injured by or as a contemporaneous result of the activity itself rather than by a condition created by the activity. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992); see also Timberwalk, 972 S.W.2d at 753. Negligence in the context of a negligent activity means doing or failing to do what a person of ordinary prudence in the same or similar circumstances would do. Timberwalk, 972 S.W.2d at 753. Negligence in the context of a premises defect means “failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner or occupier [of land] knows about or in the exercise of ordinary-care should know about.” Keetch, 845 S.W.2d at 267; see also Timberwalk, 972 S.W.2d at 753.

In Keeteh, the plaintiff argued that Kroger exposed its customers to the unreasonable risk of a fall by negligently conducting its plant spraying activity in an area of its store that was open to its customers. 845 S.W.2d at 264. The court noted that a Kroger employee sprayed the plants sometime prior to her 7 p.m. quitting time and that the plaintiff slipped on the floor and fell at approximately 7:30 pm. Id. The court found that there was no ongoing activity when the plaintiff was injured and that while the plaintiff may have been injured by a condition created by the spraying, she was not injured by the activity of spraying. Consequently, the injury was caused by a premises condition rather than a negligent activity.

Here, Gibbs was injured as a result of the hijackers’ conduct. It was a hijacker who shot him. The circumstances are more akin to a premises liability claim than a negligent activity claim and Gibbs has failed to show otherwise. Accordingly, Point of Error Four is overruled.

CONCLUSION

Having determined that the third party criminal acts were not foreseeable under Timberwalk and having further examined the evidence with regard to the other duties alleged, we conclude Gibbs failed to provide more than a scintilla of probative evidence to raise a genuine issue of material fact. Because summary judgment was proper, we overrule Issue One. The judgment of the trial court is affirmed.

LARSEN, J., not participating.

      . Negoslawski and Goldminz served as officers of ShuttleKing. Alger had entered into a joint venture with ShuttleKing and served as its general manager.

      . The promissory estoppel claim stemmed from ShuttleKing’s promise to pay for Gibbs' medical expenses.

      . These latter two duties — the existence of a special relationship and the heightened duly owed by a common carrier — are not urged as a basis for reversing the summary judgment. Because they are neither assigned as error nor briefed, we do not address them.


author: JOHN S. ANDERSON, Justice.

text:
    Robert G. CARON, Appellant, v. The STATE of Texas, Appellee.
    No. 14-03-01094-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 10, 2005.

      Amanda Joe Peters, Houston, for appel-lee.
    Jonathan Munier, Houston, for appellant.
    Panel consists of Justices ANDERSON, HUDSON, and FROST.
   OPINION

JOHN S. ANDERSON, Justice.

Appellant Robert Caron was convicted by a jury of first-degree felony securities fraud, and the jury assessed punishment at five years’ confinement and a $10,000 fine. Asserting two points of error, appellant contends: (1) the trial court erred by denying his motion for mistrial when the State’s cross-examination and jury argument attempted to shift the burden of proof; and (2) the trial court erred by exempting the State’s expert witness from “the Rule” where the State failed to follow provisions of that exemption. We affirm.

In his first issue, appellant contends the trial court erred when it denied his motion for mistrial because the State’s cross-examination and jury argument attempted to shift the burden of proof. During trial, and after the State presented its case-in-chief, appellant testified and was cross-examined by the State. Appellant specifically complains that two of the State’s cross-examination questions attempted to shift the burden of proof.

One of the State’s claims against appellant at trial was he failed to disclose to investors the corporation’s loss of its charter for failure to pay franchise taxes. Appellant testified that according to paperwork he saw, the taxes had been paid. On cross-examination, the State asked appellant why he did not produce the record when he knew it was an issue. Appellant’s counsel objected and argued the State was attempting to shift the burden of proof. The objection was overruled.

Another of the State’s claims at trial was that appellant misled investors into believing they were investing in an existing and operating business, when, in fact, it was only an undeveloped idea. The State’s witnesses testified that appellant’s software program was necessary to implement the business idea, but it never actually existed. Appellant testified the program did exist and said at least three different companies were involved in making the program. On cross-examination, the State asked appellant whether he had anybody from those three companies present to testify on his behalf. Appellant responded that he was not asked to, to which the prosecutor replied, “it’s not my responsibility to bring in your witnesses.” At this time, appellant’s counsel objected on the basis of an improper attempt to shift the burden of proof. The objection was sustained. However, this complaint is waived because appellant did not take the necessary steps to preserve error. See Tex.R.App. P. 33.1; Brooks v. State, 642 S.W.2d 791, 798 (Tex.Crim.App.1982) (stating the proper method of pursuing an objection until an adverse ruling is to object, request an instruction to disregard, and move for a mistrial). Here, appellant may not complain because he received all of the relief he requested, and no adverse ruling. Failure to request further relief after an objection is sustained preserves nothing for review. Henderson v. State, 617 S.W.2d 697, 698 (Tex.Crim.App.1981).

Moreover, appellant’s assertion that the State attempted to shift the burden of proof is unfounded. Texas Rule of Evidence 611(b) provides “[a] witness may be cross-examined on any matter relevant to any issue in the case, including credibility.” Tex.R. Evid. 611(b). The extent of cross-examination for a showing of bias or credibility is within the trial court’s discretion, and its decision is not subject to reversal on appeal absent a clear abuse of discretion. Chambers v. State, 866 S.W.2d 9, 27 (Tex.Crim.App.1993). A defendant who exercises his right to testify is subject to the same rules governing examination and cross-examination as any other witness, whether he testifies at the guilt-innocence stage or at the punishment stage of the trial. Felder v. State, 848 S.W.2d 85, 99 (Tex.Crim.App.1992); Fuentes v. State, 832 S.W.2d 635, 639-40 (Tex.App.-Houston [14th Dist.] 1992, pet. ref'd). In Texas, the scope of cross-examination is wide open, and once the defendant testifies at trial, he opens himself up to questioning by the prosecutor on any subject matter that is relevant. Felder, 848 S.W.2d at 99. In the instant case, the State’s questions on cross-examination were relevant to appellant’s credibility, specifically, his testimony refuting that of the State’s witnesses. This line of questioning was not an attempt to shift the burden of proof, but instead, tested appellant’s credibility in an attempt to discover the truth.

Appellant also contends the State attempted to shift the burden of proof during jury argument. During closing argument, the prosecution stated, “[i]f there is something out there that is going to exonerate you, you want to make it known.” Appellant’s counsel objected on the basis that it was an attempt to shift the burden of proof. The objection was sustained. Following an instruction to disregard, appellant’s counsel requested a mistrial, which was denied. An instruction to disregard the argument generally cures any error. Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App.1996); Dinkins v. State, 894 S.W.2d 330, 357 (Tex.Crim.App.1995). However, in this case, there was no error because the argument was proper and did not shift the burden of proof.

Proper jury argument includes four areas: (1) summation of the evidence presented at trial, (2) reasonable deductions drawn from the evidence, (3) answer to opposing counsel’s argument, and (4) a plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex.Crim.App.1999). The State’s jury argument did not shift the burden of proof, but instead, summarized the state of the evidence and was a reasonable deduction drawn from the evidence. During jury argument, the State may comment on appellant’s failure to present evidence in his favor. See Jackson v. State, 17 S.W.3d 664, 674 (Tex.Crim.App.2000); Patrick v. State, 906 S.W.2d 481, 491 (Tex.Crim.App.1995); Thomas v. State, 638 S.W.2d 481, 483 (Tex.Crim.App.1982). Appellant’s first issue is overruled.

In his second issue, appellant contends the trial court erred by exempting the State’s expert witness from “the Rule,” where the State failed to follow provisions of that exemption. Texas Rule of Evidence 614, also known as “the Rule,” prevents witnesses from remaining in the courtroom during the testimony of other witnesses. See Tex.R. Evid. 614. Rule 614 is designed to prevent witnesses from altering their testimony, consciously or not, based on the testimony of another witness. See Webb v. State, 766 S.W.2d 236, 239 (Tex.Crim.App.1989). One exception to Rule 614 applies to a person who is essential to the presentation of the party’s case. Lewis v. State, 486 S.W.2d 104, 106 (Tex.Crim.App.1972) (stating the trial court is vested with discretion and may permit expert witnesses to be exempt from the rule so they may hear other witnesses testify and then base their opinions on such testimony). Enforcement of Rule 614 lies within the sound discretion of the trial court, and its actions will be disturbed only upon a showing of abuse of discretion or injury to the defendant. See Cooks v. State, 844 S.W.2d 697, 733 (Tex.Crim.App.1992).

In the instant case, the State asked the trial court to exempt its expert on securities law from “the Rule.” The trial court exempted the expert with the understanding that the expert would not apply facts from the other witnesses’ testimony to the law of securities. Appellant did not object to the limitation. When the State’s expert testified, the State twice attempted to ask questions applying the facts of the case to securities law. Appellant objected both times, and his objections were sustained. As a result, no fact-specific testimony was admitted into evidence. We conclude the trial court did not abuse its discretion in allowing the State’s expert to be exempt from Texas Rule of Evidence 614, and even if it had, any error was waived. Appellant’s second issue is overruled.

The judgment of the trial court is affirmed.

      . The two questions appellant complains of on appeal were the two instances in which his trial counsel objected to this particular line of questioning. The State’s cross-examination asked six other questions similar to the two complained of on appeal; however, appellant's counsel did not object to them. Instead, appellant’s response to the State's un-objected-to questions was that he had no burden to produce evidence supporting his defensive theories.

      . Therefore, any complaint appellant has regarding the State’s failure to satisfy its burden of showing the expert’s presence was essential is waived. See Tex.R.App. P. 33.1.

      . Appellant may not complain because he received all the relief he requested, and there was no adverse ruling. See Henderson, 617 S.W.2d at 698. The proper method of pursuing an objection until an adverse ruling is to (1) object, (2) request an instruction to disregard, and (3) move for a mistrial. Arevalo v. State, 835 S.W.2d 701, 705 (Tex.App.-Houston [14th Dist.] 1992, no pet.).


text:
    STATE OFFICE OF RISK MANAGEMENT, Appellant, v. Hector ESCALANTE, Appellee.
    No. 08-03-00436-CV.
    Court of Appeals of Texas, El Paso.
    Feb. 17, 2005.
    Rehearing Overruled March 16, 2005.

      Bradley D. McClellan, Office of Atty. Gen., Austin, for Appellant.
    Robert E. Riojas, El Paso, for Appellee.
    Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

This is a workers’ compensation case arising out of a vehicle accident involving Hector Escalante. After exhausting his administrative remedies in the Texas Workers’ Compensation Commission (TWCC), Escalante appealed the adverse determination in district court. The jury found in favor of Escalante on three of four issues, and the trial court entered judgment reversing in part the determination of the TWCC. The State Office of Risk Management (SORM) appeals. Finding no error, we affirm.

FACTUAL SUMMARY

On August 9, 2000, Escalante was leaving a work-related awards ceremony on his way to a job site when he was involved in a motor vehicle accident. He was struck by a truck as he drove out of the parking lot. The truck dragged his car some forty feet into the street, spun him around, and tore off the front of the car. Escalante refused medical attention at the scene and was later taken back to work by a coworker. Admittedly, he had no bruises, scratches, or bleeding.

After the accident, Escalante complained of having unrelenting headaches and pain in his neck, shoulder, anide, and back. He also complained of blurred vision but he did not receive medical attention until August 16 when he visited Dr. Michael Boone with whom he already had a follow-up visit for a previous injury. Escalante notified the doctor of his new injury and reported his symptoms.

Dr. Boone ordered x-rays and an MRI of the spine. The MRI results revealed that Escalante had a herniated bulge from disks protruding at two levels in his neck and spine. Escalante was sent for an evaluation of his neck in October 2000. He was referred to physical therapy due to a diagnosis of lumbar radiculopathy and cervical neuropathy. Escalante also received electronic differential stimulation and epidural injections for pain in his neck and lower back. Dr. Boone diagnosed him as having cervical and lumbosacral root lesions and utilized the cervical epidurals to relieve pain.

Escalante returned to work in mid-December 2000. His medical restrictions included no bending, stooping, crawling, or lifting more than twenty pounds. He returned to the same position he held before the accident but was working the help desk. Escalante continued working until February 22, 2001 when his employer sent him home because he could not perform the essential physical job functions for his position. He was offered a demotion by the department for less pay. At this time, Escalante was still receiving therapy for his neck, back, and leg. He was ultimately dismissed from his job on March 29, 2002.

By the time of trial, Escalante had deteriorating vision in his right eye, headaches, numbness and weakness in his arms, and pain in his neck and back. He had never received treatment for a neck condition before the auto accident nor had he suffered from blurred vision. He admitted previous problems with his back, including a herniated disk in his lower back and sciatica pain in 1988-1989. He also had lateral laminectomy surgery in 1991, but had received no treatment for back problems between this surgery and the lifting injury in May 1999.

Escalante filed a workers’ compensation claim. He began receiving benefits for the lifting injury in March 2001. He was told that since he could not receive benefits on two claims at once, he would be paid on his old injury until he reached maximum medical improvement, and then he would be paid for his new injury. Escalante stopped receiving payments for his old injury but payments for his new injury never began.

A contested case hearing was held on April 22, 2002. The hearing officer determined that Escalante’s compensable injury did not include recovery for injury to the lumbar spine, ethnoid sinusitis, cervical root lesions, neuroforaminal narrowing of C5-6 and C6-7, headaches, and/or blurred vision. The appeals commission affirmed the decision, and Escalante sought review in district court. The jury returned a verdict in favor of Escalante on injury to his lumbar spine and formation of cervical root lesions. It also decided that Esca-lante’s injury in the car accident was the producing cause of his disability from February 23, 2001 to April 22,2002.

LEGAL SUFFICIENCY

In Point of Error No. One, SORM argues that Escalante failed to present legally sufficient or necessary expert evidence on the extent of his injuries. In Point of Error No. Seven, it claims that Escalante failed to produce legally sufficient evidence of disability.

Standard of Review

In considering a no evidence point, we consider only the evidence and inferences tending to support the jury’s findings and disregard all evidence and inferences to the contrary. See Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992); Pool v. Ford Motor Co., 715 S.W.2d 629, 634-35 (Tex.1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Texas Tech University Health Sciences Center v. Apodaca, 876 S.W.2d 402, 411-12 (Tex.App.-El Paso 1994, writ denied). If more than a scintilla of evidence supports the questioned finding, the “no evidence” point fails. See Tseo v. Midland Am. Bank, 893 S.W.2d 23, 25 (Tex.App.-El Paso 1994, writ denied); Hallmark v. Hand, 885 S.W.2d 471, 474 (Tex.App.-El Paso 1994, writ denied).

Challenged Findings

The jury found that the compensable injury sustained by Escalante on August 9, 2000(1) extended to include a compensable injury to his lumbar spine; (2) extended to include a compensable injury in the form of cervical root lesions; (3) did not extend to include a compensable injury in the form of blurred vision; (4) was a producing cause of disability; and (5) the disability existed from February 23, 2001 to April 22, 2002. SORM challenges the jury’s findings of injury to the lumbar spine and the cervical root lesions as well as the disability findings.

Necessity of Expert Testimony?

The Workers’ Compensation Act defines a compensable injury as “damage or harm to the physical structure of the body.” Tex. Lab. Code Ann. § 401.011(26)(Vernon Supp.2004-05). As a matter of law, pain alone cannot be considered damage to the body. Saldana v. Houston General Ins. Co., 610 S.W.2d 807, 811 (Tex.Civ.App.-Houston [1st Dist.] 1980, writ ref'd n.r.e.). However, the aggravation of a pre-existing condition is a com-pensable injury for purposes of the Act. See Peterson v. Continental Cas. Co., 997 S.W.2d 893, 895 (Tex.App.-Houston [1st Dist.] 1999, no pet.); Cooper v. St. Paul Fire & Marine Ins. Co., 985 S.W.2d 614, 616-18 (Tex.App.-Amarillo 1999, no pet.).

SORM complains that Escalante’s injuries resulted in no visible changes to his body such that Escalante had to present expert medical evidence on his injuries since they were not those that a layman could reasonably understand. It directs us to four cases in support of this proposition. First, it draws upon Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370, 373 (1948) for its holding that where a claimant suffered injury to the joints of his knee, shoulder, and spine, the severity and true character were to be revealed only by the most minute, technical, and scientific examinations by medical experts. Id. at 373. Hawkins was a workers’ compensation suit in which the trial court instructed a verdict for the insurance company on the sole ground that the claimant had faded to raise a fact issue as to good cause for not filing his claim within statutory guidelines. Id. at 371. In other words, the court was examining whether the claimant had used due diligence in filing his claim. Id. at 372. It does not stand for the proposition that Escalante had to offer medical evidence to show the extent of his injuries.

Next, SORM relies upon Broders v. Heise, 924 S.W.2d 148, 152 (Tex.1996) for its holding that given the increasingly specialized and technical nature of medicine, there is no validity to the notion that every licensed medical doctor should automatically be qualified to testify as an expert on every medical question. But Broders involved the question of whether a witness was qualified to testify as an expert on a particular issue. A doctor is not qualified as an expert merely because he is a medical doctor. Id. at 152. Dr. Boone, as Escalante’s treating orthpaedic surgeon, does not fall within the Broders analysis.

Third, SORM contends that Escalante relied upon conclusory medical reports which were not business records and did not prove causation. It cites Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 500 (Tex.1995) for the premise that in order to constitute evidence of causation, an expert opinion must rest on reasonable medical probability. There, the court concluded that when an expert’s opinion is based on assumed facts that vary materially from the actual, undisputed facts, the opinion is without probative value and cannot support a verdict. Id. at 499-500; see Schaefer v. Texas Employers’ Ins. Ass’n, 612 S.W.2d 199, 202-05 (Tex.1980)(reviewing substance of medical expert’s testimony and holding that this testimony constituted no evidence of causation, as it was based on assumptions, possibility, speculation, and surmise). Here, SORM has never contended that Dr. Boone’s opinion was based on facts that vary materially from those established by the evidence. Consequently, Burroughs is distinguishable.

Finally, SORM references Barraza v. Eureka Co., 25 S.W.3d 225, 230 (Tex.App.-El Paso 2000, pet. denied). There, the plaintiff sued her employer claiming that she suffered injury to her hands and wrists as a result of repetitive movements during the continual use of manual machines. Id. at 227. The expert, an industrial engineer, summarized the testimony of several employees as to the injuries they had received and concluded that the company’s continual use of the manual machines constituted negligence which was the proximate cause of the plaintiffs injury. Id. The court determined that as an engineer, the expert was not qualified to render a medical opinion. Here, Dr. Boone’s opinions were .made in his capacity as a treating medical doctor and from his own observations and examinations of Escalante.

We conclude that the evidence is legally sufficient to sustain the jury’s findings on compensable injuries sustained by Escalante to his lumbar spine and in the form of cervical root lesions. It is not necessary to present expert medical testimony in order to establish a compensable new injury. Peterson, 997 S.W.2d at 896 n. 3. Lay opinion testimony may be sufficient to raise a fact issue. Id.; see National Farmers Union Property and Cas. Co. v. Degollado, 844 S.W.2d 892, 897 (Tex.App.-Austin 1992, writ denied)(stating competent lay opinion testimony may be sufficient to establish the extent of incapacity or disability). Escalante offered his medical records and his own testimony. He was not required to present additional expert medical testimony. See Peterson, 997 S.W.2d at 896 n. 3. The jury could have reasonably determined that Esca-lante suffered an aggravation of his prior back injury as well as a new injury to his neck. Point of Error No. One is overruled.

“Disability”

“Disability” is defined as “the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.” Tex. Lab.Code Ann. § 401.011(16). Proof of the duration and extent of a disability resulting from an injury is, like the assessment of damages in a personal injury action, at best an estimate which must be determined by a jury from all the pertinent facts before it. Reina v. General Acc. Fire and Life Assur. Corp., Ltd., 611 S.W.2d 415, 416 (Tex.1981), citing Texas Employers’ Insurance Ass’n v. Washing ton, 437 S.W.2d 340 (Tex.Civ.App.-Dallas 1969, writ ref'd n.r.e.); Transport Insurance Co. v. Garcia, 580 S.W.2d 96 (Tex.Civ.App.-Houston [1st Dist.] 1979, writ ref'd n.r.e.). A jury may reasonably infer permanent disability from circumstantial evidence produced by lay witnesses. Id. at 417. This is true even if the evidence is contradicted by the testimony of medical experts. Id., citing Travelers Insurance Co. v. Wade, 373 S.W.2d 881 (Tex.Civ.App.-Dallas 1963, writ ref'd n.r.e.). The issue of disability may be established by the worker alone. Id., citing Insurance Company of Texas v. Anderson, 272 S.W.2d 772 (Tex.Civ.App.-Waco 1954, writ ref'd n.r.e.).

In viewing the evidence through the proper prism, we conclude the jury could have reasonably determined that Esca-lante’s injuries from the auto accident resulted in his disability from February 23, 2001 to April 22, 2002. The duration and extent of a disability is best left to the determination of the jury. See Reina, 611 S.W.2d at 416. Further, the disability can be established solely by testimony from the worker. See id. at 417. We overrule Point of Error No. Seven.

EVIDENTIARY ERROR

In five points of error, SORM complains of evidentiary error. The admission and exclusion of evidence is committed to the trial court’s sound discretion. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989). A trial court abuses its discretion when it acts without regard for any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).

Admission of Evidence Not Offered in TWCC Proceedings

In Point of Error No. Two, SORM complains that the trial court failed to determine whether good cause existed to admit evidence that was not offered in proceedings conducted before the TWCC. The Labor Code provides:

A party who fails to disclose information known to the party or documents that are in the party’s possession, custody, or control at the time disclosure is required by Sections 410.158-410.160 may not introduce the evidence at any subsequent proceeding before the commission or in court on the claim unless good cause is shown for not having disclosed the information or documents under those sections.

Tex.Lab.Code Ann. § 410.161 (Vernon 1996). When an appeals panel decision is appealed to the trial court, the trial court reviews it under a modified de novo standard. Peterson, 997 S.W.2d at 895, citing Texas Workers’ Compensation Comm’n v. Garcia, 893 S.W.2d 504, 530 (Tex.1995). The proceeding is reviewed de novo since new evidence (other than what the hearing officer was presented with) is admissible at trial. Id., citing Garcia, 893 S.W.2d at 530.

SORM takes issue with the following documents which were not introduced at the contested case hearing but which were admitted during the trial below: (1) the February 28, 2002 MRI and (2) the late 2002 and 2003 assertions by Dr. Boone. SORM appears to argue that any and all evidence not offered at the hearing must be excluded at a subsequent trial. Section 410.161 does not provide that a party who fails to disclose information at the hearing may not introduce the evidence at a subsequent proceeding; the statute requires a party to disclose information knoum to the party or documents in the party’s possession, custody, or control at the time the disclosure was required. Tex.Lab.Code Ann. § 410.161. Any late 2002 or 2003 reports or letters by Dr. Boone would not have been known to Escalante at the time of the hearing nor in his possession, custody, or control at that time. See Tex.Lab. Code Ann. § 410.161.

Escalante admitted that he did not introduce the MRI report at the contested hearing and that the report may have been in existence at the time of the hearing. But he explained that he did not receive the report until a day or two after the hearing. Not only did he not have it in his possession at the time of the hearing, he was not even aware of it until after the hearing. The trial court could well have found that the reports were admissible under Section 410.161. Finding no abuse of discretion, we overrule Point of Error No. Two.

Exclusion of Dr. Pollet’s Report

In Point of Error No. Three, SORM complains that the medical examination performed by its chosen doctor was excluded although it was authenticated and admitted during the administrative proceedings. In Point of Error No. Four, it argues that Escalante opened the door to its admission by offering exhibits which referenced Dr. Pollet’s report and by eliciting testimony from the case adjuster who was questioned about the report.

All facts and evidence contained within the administrative record are admissible to the extent allowed under the Rules of Evidence. Tex.Lab.Code Ann. § 410.306(b). Dr. Pollet’s report was included in the Commission’s record. However, our procedural rules provide:

(a) Exclusion of Evidence and Exceptions. A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness (other than a named party) who was not timely identified, unless the court finds that:
(1) there was good cause for the failure to timely make, amend, or supplement the discovery response; or
(2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties.
(b) Burden of Establishing Exception. The burden of establishing good cause or the lack of unfair surprise or unfair prejudice is on the party seeking to introduce the evidence or call the witness. A finding of good cause or of the lack of unfair surprise or unfair prejudice must be supported by the record.

Tex.R.Civ.P. 193.6(a), (b). The trial court has discretion to determine whether or not a party calling an unidentified witness has met its burden of showing good cause. Morris v. Short, 902 S.W.2d 566, 570 (Tex.App.-Houston [1st Dist.] 1995, writ denied); see also American Home Assurance Co. v. Lara, 967 S.W.2d 907 (Tex.App.-El Paso 1998, pet. denied)(no attempt to show good cause). In fact, the Texas Supreme Court has held that an unidentified witness could not testify, even though his deposition had been taken. See Sharp v. Broadway Nat. Bank, 784 S.W.2d 669, 671 (Tex.1990). Further, Rule 194.2(e) requires disclosure of “the name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person’s connection with the case.” Tex.R.Civ.P. 194.2(e).

The trial court excluded the report since SORM failed to designate Dr. Pollet as a person with relevant knowledge or as an expert. The trial court found that the failure would unfairly surprise or prejudice Escalante since he was not given an opportunity to cross-examine or depose Dr. Pol-let, and SORM offered no explanation for not designating Pollet as a person -with relevant knowledge. See Tex.R.Civ.P. 193.3(a). Point of Error No. Three is overruled.

SORM next argues that Esca-lante opened the door to the admission of the report. On appeal, it contends that the ruling unduly restricted cross-examination. Cross-examination is a safeguard essential to a fair trial and a cornerstone in the quest for truth; longstanding principles of our jurisprudence recognize the right and necessity of full and complete cross-examination. Davidson v. Great National Life Insurance Co., 737 S.W.2d 312, 313 (Tex.1987). The right to cross examine a witness is a substantial one, and it is error to so restrict it as to prevent the cross-examining party from going fully into all matters connected with the examination in chief. Id., citing Texas Employers Insurance Ass’n v. Garza, 308 S.W.2d 521, 527 (Tex.Civ.App.-Amarillo 1957, writ ref'd n.r.e.). Due process requires an opportunity to confront and cross-examine adverse witnesses. Id., citing Goldberg v. Kelly, 397 U.S. 254, 268, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287 (1970); Baltierra v. State, 586 S.W.2d 553, 556 (Tex.Crim.App.1979). It is proper to allow a party to be fully cross-examined as to previous injuries, claims and actions .to show that his present physical condition is not the result of the injury presently sued for, but was caused in whole or in part by an earlier or subsequent injury or a pre-existing condition. Bonham v. Baldeschwiler, 533 S.W.2d 144, 148 (Tex.Civ.App.-Corpus Christi 1976, writ ref'd n.r.e.), citing Robertson v. Southwestern Bell Telephone Co., 403 S.W.2d 459, 468 (Tex.Civ.App.-Tyler 1966, no writ).

SORM maintains that two of Escalante’s exhibits referred to independent medical exams by Dr. Pollet. We have thoroughly reviewed the voluminous medical reports and have found Dr. Pollet’s' examination mentioned four times:

• December 27, 2002 — Notes by Dr. Boone reflect “Dr. Richards and I both reported 16% and Dr. Pollet’s [sic] reports 10%, so I do not know how this is going to be resolved.”
• August 21, 2001 — Notes by Dr. Boone reflect “Dr. Pollet saw the patient for an IME, was given 10 percent low back impairment in relation to the 1999 injury.”
• June 20, 2001 — Notes by Dr. Boone reflect “[Escalante] has an independent medical exam with Dr. Pollet sometime soon.”

Escalante also introduced portions of the deposition testimony of Joseph De Palma. De Palma worked for SORM and served as an adjuster for Escalante’s claim. After Escalante’s tender, SORM offered other portions of the deposition, including the following exchange:

QUESTION:There was a subsequent attempt by your office to better understand the nature of Mr. Escalante’s accident in April of 2002 when you retained a physician to perform an independent medical exam. Do you recall that?
ANSWER:No, I would not recall anything that was not within that division.
QUESTION:Okay. In the course of your work as an adjuster have you retained physicians to perform independent medical exams on employees?
ANSWER:Yes, I have.

SORM explained that the only independent medical exam was performed by Dr. Pollet and argued that Escalante had “opened the door” its admission. The trial court disagreed, as do we.

The brief references to Dr. Pollet made by Dr. Boone in passim do not rise to the level of opening the door for the admission of Pollet’s report. The comments do no more than mention his eventual examination and reveal a disagreement of the impairment rating for the lifting injury. Dr. Boone does not analyze, challenge, discredit, or otherwise opine concerning the report or the method of examination. And SORM had a full opportunity to cross-examine Escalante. Bonham, 533 S.W.2d at 148. He was thoroughly questioned regarding his previous work-related injury and other prior ailments including scoliosis, intraocular pressure, sinus problems, and chronic back pain. Finding no abuse of discretion, we overrule Point of Error No. Four.

Admission of Business Records

In Point of Error No. Five, SORM contends that the trial court erred in admitting reports of Dr. Boone which were not prepared in the regular course of business and did not meet the business records hearsay exception. The business records hearsay exception provides:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. ‘Business’ as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.

Tex.R.Evid. 803(6).

SORM argues that the documents were developed months and years after the incident and contained no explanation of con-elusory statements nor how they met the business record requirement. It also asserts that the reports contain no explanation of the doctor’s training, experience, or ability to come to such conclusions, no causal connections, and merely recite the “magic words.”

In support of this argument, SORM directs us to Hooper v. Towes, 790 S.W.2d 757, 759-760 (Tex.App.-El Paso 1990, writ denied). There, this court considered whether the trial court erred in excluding a major portion of a doctor’s report. Id. at 759. It examined whether the report was a business record and thus an exception to the hearsay rule. Id. at 760. An employee of El Paso Orthopedic Surgery Group had testified that the letter in question contained the signature of the doctor, that he was licensed to practice medicine in Texas and was board certified as an orthopedic specialist, that the letter was the type of record made in the ordinary course of business, and that someone with knowledge of the events recorded made a record at or about the time the events occurred. Id. The court found guidance in Texas Employer’s Insurance Association v. Sauceda, 636 S.W.2d 494 (Tex.App.-San Antonio 1982, no writ). In Sauceda, the insurance carrier contended that the trial court erred in excluding a doctor’s letter offered to prove that the claimant’s loss of use of his ankle was less than total. Id. at 496. The claimant argued that the record had not been properly authenticated as a business record. Id. at 497. The court opined that its examination of the letter led it to believe that the letter was prepared in response to a request by a representative of the insurance carrier and that in the absence of the doctor’s remaining records, the court was unable to ascertain the purpose for the letter. Id. at 499. If the letter were written solely in response to a request by the carrier, it did not qualify as a routine entry in the claimant’s medical history. Id. The court concluded that the letter was not evidence of a routine entry made in the regular course of the doctor’s business since on its face, the letter was an attempt to convey an opinion elicited by an outside interested source. Id. Thus, Hooper held that most of the report was a summary of notes made by other doctors and that the trial court did not err in excluding a portion of the report which was not based upon entries made by the doctor or employees of his surgery group. Hooper, 790 S.W.2d at 760. SORM does not contend that any of the objectionable documents contained entries which were not made by Dr. Boone. Hooper, 790 S.W.2d at 760. Nor does it suggest that the reports were written solely in response to a request by the insurance carrier or that the evaluation would not have been done otherwise. See Sauceda, 636 S.W.2d at 499. Point of Error No. Five is overruled.

Decision from the Contested Case Hearing

In Point of Error No. Six, SORM complains that the decision of the administrative judge arising from the contested hearing should have been admitted as a public record. The Rules of Evidence provide:

Records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth:
(A) the activities of the office or agency;
(B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding in criminal cases matters observed by police officers and other law enforcement personnel; or
(C) in civil cases as to any party and in criminal cases as against the state, factual findings resulting from an investigation made pursuant to authority granted by law;
unless the sources of information or other circumstances indicate lack of trustworthiness.

Tex.R.Evid. 803(8). “Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.” Tex.R.Evid. 805.

Two provisions of the workers’ compensation statute govern the admissibility of the Commission’s decisions in jury trials. The first requires a trial court to “inform” the jury of the appeals panel decision in its charge to the jury. See Tex.Lab.Code Ann. § 410.304(a). The second allows admission of “[a]ll facts and evidence” contained in the Commission’s record “to the extent allowed under the Texas Rules of Civil Evidence.” Tex. Lab.Code Ann. § 410.306(b). The Texas Supreme Court has interpreted this provision to mean the Commission’s record is admissible in a jury trial to the extent allowed by the rules of evidence. See Garcia, 893 S.W.2d at 515 n. 11; accord ESIS, Inc. v. Johnson, 908 S.W.2d 554, 560 (Tex.App.-Fort Worth 1995, writ denied). The record includes the written opinion of the appeals panel. See ESIS, 908 S.W.2d at 560.

However, evidence heard by the agency is not per se admissible at trial in the district court. Mary Lee Foundation v. Texas Employment Com’n, 817 S.W.2d 725, 727 (Tex.App.-Texarkana 1991, writ denied). Whether the evidence is admissible depends upon its own merits under the general rules of evidence. Id.; see Halsell v. Texas Water Commission, 380 S.W.2d 1 (Tex.Civ.App.-Austin 1964, writ ref'd n.r.e.); Texas Liquor Control Board v. Taylor, 338 S.W.2d 321 (Tex.Civ.App.-Waco 1960, no writ); Kavanagh v. Holcombe, 312 S.W.2d 399 (Tex.Civ.App.-Houston 1958, writ ref'd n.r.e.); Miller v. Tarry, 191 S.W.2d 501 (Tex.Civ.App.-Austin 1945, writ ref'd n.r.e.). The public records exception to the hearsay rule does not mean that ex parte statements, hearsay, conclusions, and opinions contained within such records are automatically admissible. Mary Lee Foundation, 817 S.W.2d at 728, citing Wright v. Lewis, 777 S.W.2d 520 (Tex.App.-Corpus Christi 1989, writ denied).

By way of pretrial motion, Escalante sought to in limine the decision, opinion, or finding of the TWCC’s contested case hearing officer or benefit review officer. At a pretrial conference, counsel for Esca-lante argued that the decision of the appeals panel was admissible but that no authority suggested that documents contained within the Commission file were automatically admissible. He specifically objected to the contested case hearing officer’s decision on the basis of hearsay. The court granted the requested relief. At trial, SORM made an offer of proof — Defendant’s Exhibit 18 — of a certified copy of the entire administrative hearing file “to show — this just goes to the objection on the documents that have been offered and admitted subsequent to the hearing.” The exhibit was not offered into evidence, nor was the trial court asked to rule upon its admissibility. And while the decision of the hearing officer at the contested ease hearing is included within the hundreds of pages which comprise Exhibit 18, the seven page decision was not offered separately. On appeal, SORM limits its complaint to the exclusion of this singular document.

The granting or overruling of a motion in limine is not in and of itself error. Rodarte v. Cox, 828 S.W.2d 65 (Tex.App.-Tyler 1991, writ denied); Bifano v. Young, 665 S.W.2d 536 (Tex.Civ.App.-Corpus Christi 1983, writ ref'd n.r.e.). It simply requires a litigant to approach the bench before pursuing a line of questioning or referencing particular documents. A judgment will not be reversed unless the evidence is in fact offered. Acord v. General Motors Corp., 669 S.W.2d 111 (Tex.1984); Hartford Accident and Indemnity, Co. v. McCardell, 369 S.W.2d 331 (Tex.1963). Moreover, where evidence is tendered, only a portion of which is admissible, and an appropriate and specific objection is sustained, it is the burden of the party offering it to separate the admissible from inadmissible testimony. Hurtado v. Texas Employers’ Insurance Association, 574 S.W.2d 536 (Tex.1978). If the burden of segregation is not met by the tendering party, the trial court does not err in excluding it in its entirety, and a point of error challenging the exclusion will not be preserved. Perry v. Texas Municipal Power Agency, 667 S.W.2d 259 (Tex.App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.). We overrule Point of Error No. Six. Having overruled all issues for review, we affirm the judgment of the trial court.

LARSEN, J., not participating.

      . Escalante's previous injury stemmed from an incident in May 1999 when he lifted a file server as part of his work duties and injured his back and the tendon in his left leg. He did not see a doctor until October 1999. He took a leave of absence in April 2000 and returned in June with a full medical release. At the time of the auto accident, Escalante was still being treated for a bruised tendon and was wearing a walking boot to relieve the stress on it.

        . This report appears in the record twice and is included as two of the four references we have discovered.

      . We cannot ascertain whether the date referenced is merely erroneous or whether Dr. Pollet had also been employed to examine Escalante with regard to the lifting injury as early as June 2001 as Dr. Boone's notes reflect


text:
    In re Maria SOTELO, Relator.
    No. 08-05-00064-CV.
    Court of Appeals of Texas, El Paso.
    Feb. 17, 2005.
    Jaay D. Neal, Law Office of Jaay D. Neal, P.C., San Antonio, for Relator.
    James F. Scherr, Scherr & Legate, P.C., El Paso, for Interested Party.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION ON PETITION FOR WRIT OF MANDAMUS

ANN CRAWFORD McCLURE, Justice.

Relator, Maria Sotelo, asks this Court to issue a writ of mandamus against the 34th District Court of El Paso County. Mandamus will lie only to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992)(orig.proceeding). Moreover, there must be no other adequate remedy at law. Id. Based on the record before us, we are unable to conclude that Respondent clearly abused his discretion by concluding that he did not have plenary jurisdiction to rule on Relator’s motion. Accordingly, we deny mandamus relief. See Tex.R.App.P. 52.8(a).


author: RICHARD H. EDELMAN, Justice.

text:
    Ronald A. PACE, Appellant, v. TRAVELERS LLOYDS OF TEXAS INSURANCE COMPANY, Appellee.
    No. 14-03-01401-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 24, 2005.

      Jeffrey Nolan Diamant, C. Dennis Barrow Jr., Pamela Diane Thacker, Houston, for appellant.
    John Chadwick Gauntt, The Woodlands, Kimberly P. Cox, Spring, for appellee.
    Panel consists of Justices YATES, EDELMAN, and GUZMAN.
   OPINION

RICHARD H. EDELMAN, Justice.

In this homeowners insurance policy coverage ease, Ronald Pace appeals a summary judgment in favor of Travelers Lloyds of Texas Insurance Company (“Travelers”) on the ground that fact issues were raised as to when the statute of limitations period began to run. We affirm.

Standard of Review

A traditional summary judgment may be granted if the motion and summary judgment evidence show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or response. Tex.R. Civ. P. 166a(c). A defendant moving for summary judgment on the affirmative defense of limitations must conclusively prove when the cause of action accrued. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). In reviewing a summary judgment, we take all evidence favorable to the nonmovant as true and resolve every doubt, and indulge every reasonable inference, in the nonmov-ant’s favor. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex.2004).

Ambiguous Letters

Travelers’s motion for summary judgment in this case asserted that: (1) the two-year limitations period applicable to Pace’s claims began to run on April 26, 2000, the date of its letter denying those claims; (2) Pace filed his petition on January 8, 2003, more than two years after April 26, 2000; and, therefore, (3) Pace’s claims were barred by limitations. It is not disputed in this case that a two-year limitations period began to run upon the denial of Pace’s claim, but only when that denial occurred.

The April 26 letter stated, in part:

After careful consideration of all information available to us, we have determined that the damage to your property is not afforded coverage under the insurance policy.
Our investigation indicates that the damage has resulted from settlement and/or movement of the structure due to causes which are not attributable to accidental leakage from the plumbing system.
Based on the results of our investigation and the Exclusions referenced above, we regret that we will be unable to make any payment for the cost to repair damages that are attributable to foundation movement.
If you have additional information that you feel may have an impact on this coverage decision or should you have any questions concerning this claim please forward same tome....

(emphasis added). Pace’s first and third issues contend that the last sentence, italicized above: (1) rendered the letter ambiguous as to whether the coverage decision was final or, alternatively, in an ongoing state of evaluation; and (2) thereby created a fact issue whether it was a denial of coverage.

Following the April 26 letter, Pace hired an engineer who concluded that the foundation damage had been caused by plumbing leaks, and Pace forwarded a copy of his report to Travelers. Travelers replied to this information in a letter dated September 24, 2001, which stated:

In a continued effort to determine if there is coverage for the damage being claimed in the above mentioned loss we requested E. Earl Peebles, P.E., with National Loss Consultants, [to] inspect and reevaluate the information you submitted and the original report prepared by [National Loss Consultants],
Enclosed for your review is a copy of Mr. Peebles[’s] response to the additional information. National Loss Consultants findings remain unchanged.
Based on our review of your claim file[,] we regret our position remains the same. We are unable to issue claim payment for the loss caused by foundation settlement that is not the result of a leaking plumbing system.
If you have any further questions regarding your claim[,] please do not hesitate to contact me....

(emphasis added). Pace’s first and third issues further contend that the italicized portion of the first sentence of the September 24 letter indicates that Travelers had been continuing to evaluate the claim in the interim and thereby further raised a fact issue whether a coverage determination had indeed been made in conjunction with the April 26 letter. We disagree.

The April 26 letter plainly stated, “we have determined that the damage to your property is not afforded coverage under the insurance policy,” provided a reason for the decision, then reiterated that “we will be unable to make payment....” This unequivocally communicated a decision to deny coverage. Although the final paragraph of that letter invited Pace to provide any additional information he felt might have an impact on the decision, it did not request any further information, suggest that any further information would be needed, or even useful, to reach a decision, or otherwise imply that the coverage decision had not been made.

In addition, it does not necessarily follow that: (1) because a decision has been made, it cannot be subsequently changed; or (2) because a decision can later be changed, it has not been made. Therefore, neither the fact that the April 26 letter left open the possibility that new information could potentially cause a different decision to be reached, nor the fact that the September 24 letter acknowledged that the new information provided by Pace had been reviewed to determine if a different decision was warranted, created uncertainty whether a decision had been made in conjunction with the April 26 letter.

Under Pace’s interpretation of the letters, an insurer faced with a request for reconsideration of a denial of coverage would be put to the choice between refusing it outright, thereby risking a bad faith claim, or considering the request and restarting the limitations period. We can find no authority or rationale to support such an approach (but only a potential for increasing litigation needlessly). Because the April 26 and September 24 letters neither reasonably indicated that a coverage decision had not been made by April 26, nor left any ambiguity in that regard, we overrule Pace’s first and third issues.

Additional Claim

Pace’s second issue contends that a second claim was created by the additional information he provided after the April 26 letter, such that the September 24 letter, denying that claim, began a new limitations period. See Pena v. State Farm Lloyds, 980 S.W.2d 949 (Tex.App.-Corpus Christi 1998, no pet.). Although the application of the law to the facts in Pena is difficult to follow, that opinion expressly applied the principle that, “claims for additional payments may begin the statute of limitations running anew.” Id. at 954. The relevant portion of the opinion concludes:

Because the slab foundation problems were essentially on-going, and its subsequent reinvestigation of and partial payment for the same reported problems, it appears the denial of the October 1991 claim was effectively reconsidered and withdrawn by State Farm, thus resetting the starting date for limitations to March 31,1994.

Id. The present case differs factually from Pena in two important respects: (1) Pena’s summary judgment response did not contend that the information he provided to Travelers after he received the April 26 letter asserted a claim for any additional damages, i.e., in addition to any damages he claimed before the April 26 letter; and (2) to whatever extent the April 26 decision was reconsidered by Travelers based on the additional information, there is no evidence that that decision was ever expressly or impliedly withdrawn or changed, such as by making payment or otherwise taking action inconsistent with that decision. Without evidence of either a claim for additional damages or a withdrawing or changing of the April 26 decision, as in Pena, Pace has provided us no basis to conclude that the rationale of that case has any application here. Accordingly, Pace’s second issue is overruled and the judgment of the trial court is affirmed.

      . See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 222-23 (Tex.2003) (holding that, to be a denial of a claim, insurer’s letter need not use the word "deny” or other magic words if its determination regarding the claim and the reasons therefor are clearly conveyed in writing to the insured).

      . See, e.g., Tex. Ins.Code Ann. art. 21.21, § 4(10)(a)(ii) (Vernon Supp.2004-05).