author: JOHN S. ANDERSON, Justice.

text:
    Gary Gray ROY, Appellant, v. The STATE of Texas, Appellee.
    Nos. 14-02-00909-CR, 14-02-00910-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 20, 2004.

      Emily Munoz-DeToTo, Houston, for appellant.
    Amanda Joy Peters, Houston, for appel-lee.
    Panel consists of Justices YATES, ANDERSON, and HUDSON.
   OPINION

JOHN S. ANDERSON, Justice.

Appellant Gary Gray Roy was convicted by a jury of unauthorized use of a motor vehicle (“UUMV”) and retaliation. See Tex. Pen.Code Ann. § 31.07(a) (Vernon 2003), 36.06 (Vernon Supp.2004). The jury sentenced appellant to one year’s confinement for the offense of UUMV and five years’ confinement for the retaliation offense. By four points of error, appellant challenges the factual sufficiency of the evidence supporting the UUMV conviction, the legal and factual sufficiency of the evidence supporting the retaliation conviction, and the trial court’s admission of hearsay testimony. We affirm.

Factual Background

Appellant was arrested on December 26, 2001, after Thrifty Car Rental learned he was driving a vehicle owned by Thrifty without proper authority. At the time, appellant was dating Elizabeth Norris, a former employee of Thrifty, and the two had purchased a home together. Norris’s sister, Gwen Pappillion, called Thrifty, alerting it to the unauthorized use of a silver Ford Expedition and an alleged scheme by appellant, Norris, and two current employees of Thrifty to use Thrifty vehicles without paying for them. Pappil-lion claims to have called Thrifty two or three times previously to make similar allegations. However, Russell Atkin, Thrifty’s director of security and fraud prevention officer, did not become involved until December 26, 2001. That same day, Pappillion called the police because she suspected appellant was physically abusing Norris. Pappillion testified that, when the police arrived, she also informed them about the vehicles she claimed were stolen from Thrifty. The police questioned Norris and appellant, but no charges were filed.

Atkin conducted a preliminary investigation based on the information provided by Pappillion and determined a silver Ford Expedition was missing from Thrifty’s inventory. Atkin prepared a list of possible locations to find the vehicle and then notified the police. Atkin and an associate began surveillance of appellant and Norris’s house, while the police watched another location. Shortly after arriving at the house, Atkin saw appellant park the Expedition in front of the house. Atkin verified that it was, in fact, the missing Thrifty vehicle and then relayed that information to the police. A few minutes later, appellant left the residence in the Expedition, and Atkin began following appellant and updating the police as to their location. The officers arrived shortly thereafter, continued pursuit, and apprehended appellant.

After he was arrested, appellant began yelling from the back of the police car to obtain Atkin’s attention. With the officer’s permission, Atkin approached the police car and appellant handed him a piece of paper containing three individual’s names and phone numbers. According to Atkin, appellant stated he was instructed to call “this girl if [he had] any problems.” One of the names on the paper was Nina Nguyen, an employee of Thrifty, and beside her name was her home phone number. Pappillion identified Nina Nguyen, along with Charles Stanford, as the two Thrifty employees involved in the scheme.

The following day, Atkin interviewed Stanford regarding his involvement in the scheme. Atkin testified Stanford admitted his involvement and implicated appellant; however, Atkin never relayed the substance of the conversation to the police or the prosecutor. Stanford, a Thrifty mechanic, and Nguyen! were both terminated from Thrifty.

Norris called a contact at Thrifty and learned that her sister, Pappillion, had notified Thrifty about the Expedition. While appellant was in jail, he telephoned Norris, and after learning of Pappillion’s involvement, asked Norris to call Pappillion on a three-way call. Norris complied, and after Pappillion and appellant began arguing, Norris put the receiver down and stopped listening to the conversation. Pappillion testified that during the telephone conversation, appellant threatened to kill her and her children. Enraged, Pappillion went to her sister’s house, which was located next door, and the two began fighting. As a result of the fighting, Norris called the police, to report domestic violence. Norris testified that when Pappillion entered her house she was upset because appellant had just threatened her. Norris, however, did not hear appellant make any threats, and appellant denied making any threats. When the police arrived, Pappillion described the threats made by appellant; consequently, appellant was charged with retaliation and UUMV. Following his conviction, appellant brings this appeal.

Discussion

I. Unauthorized Use of a Motor Vehicle

In his first point of error, appellant claims the evidence is factually insufficient to support his conviction for UUMV. Specifically, appellant contends the State failed to produce any evidence negating the defense of mistake of fact and failed to prove beyond a reasonable doubt appellant knew he did not have consent to operate the vehicle.

A. Factual Sufficiency of the Evidence to Support the Jury’s Finding of Guilt

We begin the factual sufficiency review with the presumption that the evidence supporting the jury’s verdict is legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App.1996). In conducting a factual sufficiency review, we view all of the evidence in a neutral light, without favoring either party. Johnson, 23 S.W.3d 1, 6 — 7 (Tex.Crim.App.2000). We will set aside the verdict only if (1) the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence, if present, is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484, (Tex.Crim.App.2004); see Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex.Crim.App.2003); Johnson, 23 S.W.3d at 11. When reviewing the evidence, we must give appropriate deference to the jury findings in order to prevent intruding on the fact finder’s role as the sole judge of the weight and credibility of the evidence. Johnson, 23 S.W.3d at 7. Therefore, unless the record clearly reveals a different result is appropriate, we “must defer to the jury’s determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor.” Id. at 8.

In order to prevail, the State was required to prove appellant intentionally or knowingly operated another’s vehicle without the effective consent of the owner. Tex. Pen.Code Ann. § 31.07(a) (Vernon 2003). Thus, the State was required to show not only that appellant intentionally or knowingly operated the vehicle, but that appellant knew he did not have the consent of the owner. McQueen v. State, 781 S.W.2d 600, 604 (Tex.Crim.App.1989).

Atkin testified that during his investigation, he learned appellant was directly involved in the scheme to use Thrifty vehicles without its knowledge, just as Pappillion reported. In his confession to Thrifty representatives, elicited through Atkin at trial, Stanford claimed appellant arranged to personally pick up the vehicles away from Thrifty property and, in exchange, give Stanford money and tickets. Appellant never had any type of rental agreement with Thrifty. Also, when appellant was arrested, he provided a piece of paper containing Nina Nguyen’s name and home telephone number. Appellant, however, denied any involvement and claimed he had never met Stanford personally. Appellant also denied handing the piece of paper to Atkin after he was arrested; rather, he claimed Atkin found the paper in the vehicle and then brought it to appellant to question him about it.

The jury is the sole judge of the credibility of the witnesses and the weight to be given the evidence; thus, the jury is entitled to believe or disbelieve all or part of a witness’s testimony. Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App.1996). Viewing the evidence in a neutral light, we cannot say the evidence of guilt, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt or the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Therefore, we hold the evidence is factually sufficient to support the jury’s finding of guilt.

B. Factual Sufficiency of the Evidence to Support Jury’s Implicit Rejection of Appellant’s Mistake of Fact Defense

Appellant also challenges the factual sufficiency of the evidence to support the jury’s implicit rejection of his mistake of fact defense. In Zuliani, the court held that when a defendant challenges the factual sufficiency of the rejection of a defense, we must review all of the evidence in a neutral light and ask whether the State’s evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. 97 S.W.3d at 595.

The Texas Court of Criminal Appeals, however, has recently modified the standard of review for factual sufficiency challenges. Zuniga, at 484. In so doing, the court did not specifically address whether the modified standard applies when a defendant challenges the rejection of a defense. However, the court expressed its desire to resolve any conflicts in the standard of review for factual sufficiency by (1) linking the burden of proof at trial to the standard of review on appeal and (2) avoiding language that suggested a lower burden of proof was required. Id. Thus, the court concluded that because the State is required to prove the defendant’s guilt beyond a reasonable doubt, any standard of review which suggested the lower burden of proof, preponderance of the evidence— whether or not it was actually employed— was inappropriate. Id. at 483-84. Accordingly, the court set out the following standards when conducting a factual sufficiency review:

There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt.

Id. at 484.

Following Zuniga, we first look at the burden of proof of the parties at trial when, as in this case, the defendant raises the defense of mistake of fact. See id. The defendant bears the initial burden to present evidence raising the defense; however, once the defense is raised, the State bears the burden of persuasion to disprove the defense. Bruno v. State, 812 S.W.2d 56, 59-60 (Tex.App.-Houston [14th Dist.] 1991), aff’d, 845 S.W.2d 910, 912 (Tex.Crim.App.1993); Anderson v. State, 11 S.W.3d 369, 372 (Tex.App.-Houston [1st Dist.] 2000, pet. refd). The State meets its burden by proving its case beyond a reasonable doubt. Bruno, 812 S.W.2d at 59-60. Thus, the State’s burden does not decrease once the mistake of fact defense is raised; rather, the State must disprove the defense by proving its case beyond a reasonable doubt. Id.

Because Zuliani’s standard for reviewing the factual sufficiency of the rejection of a defense utilizes “great weight and preponderance” language, and the Zuniga court resolved some of the confusion that developed post-Clewis by avoiding language suggestive of a preponderance of the evidence burden of proof, we interpret Zuniga to modify the standard of review for rejection of a defense. Accordingly, we adopt the Zuniga modification for the standard of review when the defendant challenges the rejection of a defense. Thus, when the defendant challenges the rejection of a defense on factual insufficiency grounds, we view all the evidence in a neutral light and determine whether (1) the evidence supporting the rejection of the defense, when considei’ed by itself, is too weak to support the rejection beyond a reasonable doubt or (2) contrary evidence, if present, is strong enough that the beyond-a-reasonable-doubt standard could not be met. See Zuniga, at 484. This revised standard encompasses both objectives stated in Zuniga; first, it directly links the burden of proof to the standard of review on appeal, and second, it removes the great weight and preponderance language from the standard of review. See id.

After reviewing all of the evidence in a neutral light, including the evidence previously detailed, we conclude there was direct evidence from appellant and Norris that Norris gave appellant consent to drive the Expedition. However, the State also presented evidence controverting appellant’s assertion that consent to use the vehicles had been given. Atkin testified Norris was not an employee at the time Pappillion called Thrifty about the unauthorized use of one of its vehicles, eliminating Norris as a source of consent. Atkin further testified appellant did not have consent of any kind from Thrifty to use its vehicles.

By its verdict, the jury believed appellant knew he did not have consent to drive the Expedition; thus, implicitly finding against the defensive theory. Zuliani, 97 S.W.3d at 594; Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App.1991). We hold the State’s evidence, when considered by itself, is not too weak to support the implicit finding, and the contrary evidence is not so strong that the beyond-a-reasonable-doubt standard could not have been met. Thus, we conclude the evidence is factually sufficient to support the jury’s implied finding against appellant’s defensive issue.

Appellant’s first point of error is overruled.

II. Retaliation

In his second and third points of error, appellant alleges the evidence is legally and factually insufficient to support the jury’s verdict as to the retaliation offense. When reviewing a legal sufficiency claim, we review the evidence in a light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson, 23 S.W.3d at 7. Whether the evidence is legally sufficient is determined as a matter of law; thus, if the evidence is legally insufficient, the case should never have been submitted to the jury. Oldham v. State, 5 S.W.3d 840, 844 (Tex.App.Houston [14th Dist.] 2000, pet. ref d). The same standard applies regardless of whether the state presents direct or circumstantial evidence. Huntley v. State, 4 S.W.3d 813, 814 (TexApp.-Houston [1st Dist.] 1999, pet. refd) (en banc). We review the factual insufficiency claim by the standards previously articulated.

Retaliation is defined as intentionally or knowingly harming or threatening to harm another by an unlawful act in retaliation for, or on account of, the service or status of another as an informant. Tex. Pen.Code Ann. § 36.06 (Vernon Supp 2004). An “informant” is defined as “a person who communicated information to the government in connection with any governmental function.” Id. In his legal sufficiency claim, appellant only challenges Pappillion’s status as an informant. Appellant claims the State failed to prove beyond a reasonable doubt that Pappillion notified the police; rather, appellant claims Pappillion only notified a third-party, Thrifty, ultimately leading to appellant’s arrest. Appellant, however, overlooks Pappillion’s testimony that she notified the police about appellant’s involvement in the unauthorized use of Thrifty automobiles. Appellant’s reliance comes from Pappillion’s testimony on cross-examination, in which Pappillion admits she never reported appellant’s activity to the police. Pappillion attempted to explain the contrary answer given'during cross-examination; however, her answers were abbreviated due to the nature of cross-examination.

The jury was free to believe all or part of Pappillion’s testimony and to assess Pappillion’s credibility. Jones, 944 S.W.2d at 647. When faced with conflicting evidence, we presume the jury resolved conflicts in favor of the prevailing party. Manning v. State, 112 S.W.3d 740, 746 (Tex.App.-Houston [14th Dist.] 2003, pet. ref d). If evidence exists establishing beyond a reasonable doubt the elements of the offense, this court is not at liberty to disregard the jury’s findings. McGee v. State, 923 S.W.2d 605, 608 (Tex.App.Houston [1st Dist.] 1995, no pet.) (citing Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim.App.1988)). Here, there was evidence establishing beyond a reasonable doubt Pappillion directly communicated the information about the theft of Thrifty vehicles to the police. Thus, the evidence is legally sufficient to support Pappillion’s status as an informant.

In his factual sufficiency challenge, appellant claims the evidence is insufficient to support Pappillion’s status as an informant and to show appellant threatened Pappillion. As previously stated, there was evidence both supporting and discrediting Pappillion’s status as an informant. Additionally, Pappillion testified that after Norris and appellant initiated a three-way telephone conversation, appellant threatened to kill her and her children. Norris admitted she did not listen to the entire conversation between appellant and Pap-pillion, and after the two started fighting on the phone, she put her end of the receiver down. Norris testified that moments later, Pappillion entered her house angry and upset because appellant had just threatened her and her family. Appellant testified at trial that he did not threaten Pappillion.

The jury is the sole judge of the credibility of the witnesses and the weight to be given the evidence; thus, the jury is entitled to believe or disbelieve all or part of a witness’s testimony. Jones, 944 S.W.2d at 647-48. By its verdict, the jury believed the State’s version of the facts. Indeed, the jury was entitled to believe Norris’s testimony regarding the excited utterance by Pappillion. Viewing the evidence in a neutral light, we cannot say the evidence of guilt, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt or that the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met.

Accordingly, we overrule appellant’s second and third points of error.

III. HEARSAY

In his final point of error, appellant alleges the trial court erroneously admitted hearsay testimony concerning Atkin’s interview with Charles Stanford, and that such admission violated his Sixth Amendment right to confrontation. At trial, however, appellant objected only to hearsay; therefore, appellant has waived any alleged error under the Confrontation Clause. Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App.2000). Additionally, appellant did not properly object to every alleged hearsay statement; thus, we will limit our review to those alleged hearsay statements which were properly preserved for review. Tex.R.App. P. 33.1. We review the trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Bingham v. State, 987 S.W.2d 54, 57 (Tex.Crim.App.1999). The trial court abuses its discretion if it acts without reference to any guiding rules and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990).

The specific statements made by Atkin during re-direct examination, which were properly objected to and have been raised as error before this court, include the following three statements: (1) Stanford admitted what he did was wrong; (2) Stanford had a close relationship with Norris; and (3) Norris was not involved. Appellant properly objected to the latter two statements the first time they were admitted; however, the same evidence was admitted later in the trial without objection. Thus, appellant has waived any error with regard to the admission of the second and third statements. Kirvin v. State, 575 S.W.2d 301, 302 (Tex.Crim.App.1978) (holding that, when testimony is erroneously admitted over objection but the same testimony is thereafter admitted without objection, the objection in the first instance is waived); Alexander v. State, 630 S.W.2d 355, 359 (TexApp.-Houston [1st Dist.] 1982, no pet.).

Accordingly, we consider only whether the trial court abused its discretion in admitting Atkin’s testimony that Stanford admitted what he did was wrong. Appellant objected twice on hearsay grounds to Atkin’s testimony regarding Stanford’s admission of his own wrongdoing. After the first objection, the State argued the statement was admissible as either a statement against interest or a statement of a co-conspirator. The trial court overruled both objections.

A statement is excepted from the hearsay rule when it falls under Texas Rule of Evidence 803(24), the statement against interest exception. This exception allows admission of a statement which tends to subject the declarant to civil or criminal liability, so that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. Tex.R. Evid. 803(24). Rule 803(24) further provides, “In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” Id. In this case, Stanford’s admission that what he did was wrong could have subjected him to criminal liability for unauthorized use of a motor vehicle, as well as civil liability to Thrifty. Thus, because the statement would tend to subject Stanford to criminal or civil liability, we must now decide whether corroborating circumstances exist.

A trial court should consider the following factors in determining whether corroborating circumstances exist: (1) whether guilt of the declarant is inconsistent with guilt of the defendant; (2) whether the declarant was situated in such a manner that he might have committed the crime; (3) timing of the declaration; (4) spontaneity of the declaration; (5) the relationship of the parties, and (6) independént corroborative facts. Dewberry v. Stale, 4 S.W.3d 735, 751 (Tex.Crim.App. 1999). The focus of the inquiry is to verify to the greatest extent possible the trustworthiness of the statement, so as to avoid the admissibility of a fabrication. Bing-ham, 987 S.W.2d at 58. All evidence should be considered in determining whether circumstances clearly indicate the trustworthiness of a statement against interest. Id.

In this case, Atkin testified Gwen Pappillion implicated Stanford initially, before appellant was ever arrested. When appellant was arrested, Atkin notified police that he believed Stanford was involved, but was unsure of the relationship between the parties. Atkin testified Thrifty’s computer system indicated the Expedition should have been in the maintenance division, where Stanford worked. Stanford and Norris maintained a close relationship, even after Thrifty terminated Norris, and Stanford admitted he knew appellant and made arrangements with him to exchange the vehicles. Stanford made the statement the morning after appellant was arrested, and immediately after Atkin asked what his involvement entailed. Additionally, Stanford’s position as an employee of Thrifty put him in a position to commit the crime and conceal it. We find this evidence presents sufficient corroborating circumstances to clearly indicate the trustworthiness of the statement. Thus, we hold the trial court did not abuse its discretion in finding the statement met the requirements of Rule 803(24).

Appellant also argues the trial court erred in admitting hearsay testimony by Atkin that Stanford was crying during his confession. Texas Rule of Evidence 801(d) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tex.R. Evid. 801(d) (emphasis added). Texas Rule of Evidence 801(a)(2) defines a “statement” to include nonverbal conduct of a person if the nonverbal conduct is intended by the person as a substitute for verbal expression. Tex.R. Evid. 801(a)(2). Here, there is no evidence to suggest Stanford’s lachrymose state was intended as a substitute for verbal expression; thus, it not does fall within the definition of a statement under Rule 801(a)(2). Because At-kin’s testimony about Stanford’s condition was not a statement offered in evidence to prove the truth of the matter asserted, Atkin’s testimony was not hearsay. Appellant’s fourth point of error is overruled.

Conclusion

Having overruled appellant’s four points of error, we affirm the judgment of the trial court.

      . Appellant’s first point of error complains the evidence is factually insufficient to "sustain the conviction of unauthorized use of a motor vehicle because the state failed to prove the appellant did not make a mistake of fact.” Appellant also argues the State failed to present "any witnesses with personal knowledge of any facts” bearing on appellant’s intent. We interpret appellant’s complaint as a challenge to the factual sufficiency of the evidence to support the mens rea element of both the crime and the defensive issue of mistake of fact. See Tex.R.App. P. 38.1(e).

      . Tex.R. Evid. 803(24).

      . Tex.R. Evid. 801(e)(2)(E).


source: Caselaw Access Project

author: KEM THOMPSON FROST, Justice.

license: Public Domain

text:
    Bryan KESSEL, Appellant, v. The STATE of Texas, Appellee.
    No. 14-03-00271-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 27, 2004.

      Glenn J. Youngblood, Houston, for appellant.

      Eric Kugler, Houston, for appellee.
    Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN.
   OPINION

KEM THOMPSON FROST, Justice.

In this case, we must determine if the trial court erred in ordering the defendant removed from the courtroom and taken back to the jail, causing him to miss the entire punishment phase of his jury trial. We find reversible error, affirm the conviction, and reverse and remand for a new punishment hearing.

I. Factual and PRocedural Background

Appellant Bryan Kessel was charged by indictment with burglary. He pleaded not guilty, but the jury found him guilty. The next morning, before the punishment phase began, the parties appeared before the trial court. The record reflects the following:

[Trial Court]: Both sides ready?
[Prosecutor]: The State is ready.
[Appellant’s counsel]: Just for the record.
[Trial Court]: We’re outside the presence of the jury. Yes. Lets [sic] make a record. We’re outside the presence of the jury.
[Appellant’s counsel]: Judge, at this time we have tried to communicate with Mr. Kessel, and he is nonrespon-sive. He appears to be, Um—
[Trial Court]: He is slumped over in his chair.
[Appellant’s counsel]: He is slumped over in his chair, uncommunicative, and we object to proceeding on the grounds of the 6th and 14th and 5th, 6th and 14th Amendment [sic] to the United States Constitution and the corresponding Texas amendments.
[Trial Court]: All right. Let the record reflect that I have heard numerous reports to explain Mr. Kessel’s appearance before me right now. He was wheeled into the courtroom by a deputy sheriff. When instructed by the deputy sheriff to get out of the wheelchair to get into the chair, he was certainly able to stand up to move himself from this wheelchair to the chair, which led the Court to believe that he, one, understood the request by the Sheriffs Department, secondly, was able to carry it out.
Deputy Holden is a lieutenant with the Sheriffs Department.
[Lieutenant Holden]: Yes, Your Honor.
[Trial Court]: Would you say you have the most understanding of what has transpired with Mr. Kessel to [sic] the people of the courtroom?
[Lieutenant Holden]: Of the people in this courtroom, yes, sir.
[Trial Court]: What’s your understanding of what has transpired as to him?
[Lieutenant Holden]: That because [sic] his late return from court yesterday he didn’t get his medication until later in the day. And at that point an effect took place on his body from the medication. He was alert earlier, he followed directions.
[Trial Court]: Earlier. You mean earlier today?
[Lieutenant Holden]: Earlier within the last half hour.
[Trial Court]: Where was that?
[Lieutenant Holden]: Down at the holding area, classification. He was given directions, followed those directions. He was taken to the dressing area. He dressed himself.
[Trial Court]: Standing?
[Lieutenant Holden]: Standing. He would lean at times, but standing, but because of the tremors we put him in a chair. Just now when I brought him into the courtroom I gave him directions, he stood, turned, sat in his chair. He did understand, followed the directions that I gave him.
[Trial Court]: Let there be no doubt that Mr. Kessel’s appearance before me right now, it’s markedly different than the appearance he has had before the jury for the last three days. There is no doubt in my mind, based upon what I have been told this morning by Lieutenant Holden, this is the first time Lieutenant Holden and I have talked about this, but other deputies have been relaying information to me about the behavior, and I was told earlier that he had removed his classification badge.
[Lieutenant Holden]: Yes.
[Trial Court]: Had to be taken to classification to be rebanded.
[Lieutenant Holden]: Yes, Your Honor.
[Trial Court]: There is no doubt in my mind this was nothing more than an attempt by Mr. Kessel to delay, impede, and perhaps prohibit the conclusion of this trial this morning. It’s consistent with his behavior during the facts of this case when he was arrested. It is consistent with his behavior in numerous appearances before me when we had conversations, and I’m absolutely convinced this is nothing more than an attempt on his part to inhibit and perhaps prohibit the conclusion of this trial today.
The Court is of the opinion that his refusal to speak to his lawyers is nothing more than an attempt on his part to somehow sabotage the punishment phase of this trial. He has been able to respond to requests by the Sheriffs Department, so he is capable of hearing requests and commands and following those requests and commands appropriately.
Mr. Kessel, can you hear me right now?
All right. He has raised his head. He is not responding but he appears to the Court to be able to hear me right now. The Court is of the opinion that Mr. Kessel’s current behavior and appearance is nothing more than a blatantly conscious attempt on his part to, one, if he cannot sabotage the punishment phase of the trial is [sic] to perhaps somehow incur some sort of sympathy from this jury as a result of his appearance and so — and since he intends not to communicate with his lawyers I’m going to order him removed from the courtroom for this punishment phase of the trial. You can remove him from the courtroom and take him back to the holdover.
[Appellant’s counsel]: And, Judge, we would object to the same, same basis, because our understanding is that there is a medical basis and it would be difficult to determine exactly whether or not his current demeanor and attitude is a result of his seizure disorder or a result of faking.
[Trial Court]: All right. Your objection is denied.
[Appellant’s counsel]: Thank you.
[Bailiff]: Are we to return him to the holdover in the back or the holdover in the jail in the jail which [sic] he is housed?
[Trial Court]: Take him — take him back period.
[Bailiff]: Until he can return to his housing?
[Trial Court]: Return to his house.
(Defendant removed)
(Open court, no defendant, jury present).
[Trial Court]: Members of the jury, Mr. Kessel is not going to be present in the courtroom during this punishment phase of trial. That is a decision that I have made for reasons known to me that are of no consequence and not to be considered by you during this stage of the trial. I have made the decision he is not going to be present, so I have ordered him to be removed from the courtroom.

In accordance with the trial court’s order removing appellant from the courtroom, appellant was absent from the courtroom for the entire punishment phase of the trial. Appellant had pleaded not true to enhancement paragraphs alleging two prior burglary convictions. The jury found the allegations in both of the enhancement paragraphs to be true and assessed punishment at fifty-five years’ imprisonment in the Texas Department of Criminal Justice — Institutional Division. The entire punishment phase of the trial took place on February 27, 2003, and the record shows that the jury never saw appellant in the courtroom at any time on that day. The next day, the trial court had appellant brought back to the courtroom for imposition of the sentence.

II. Standard of Review

In determining whether the trial court abused its discretion, we consider whether the court acted without reference to guiding rules and principles — that is, whether the court acted arbitrarily or unreasonably. Lyles v. State, 850 S.W.2d 497, 502 (Tex.Crim.App.1993). We must uphold the trial court’s ruling so long as it is “within the zone of reasonable disagreement.” Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim.App.2002).

III. Issue and Analysis

In his second issue, appellant complains that, by ordering him removed from the courtroom during the punishment phase, the trial court violated his right to be present in the courtroom under the Confrontation Clause of the Sixth and Fourteenth Amendments to the United States Constitution, under Article I, Section 10 of the Texas Constitution, and under article 33.03 of the Texas Code of Criminal Procedure. Appellant’s trial counsel also objected in the trial court that the punishment phase should not proceed at that time based on appellant’s condition and his inability to communicate with his counsel. On appeal, however, appellant does not assert that the trial court erred in proceeding while he was incapacitated; rather, appellant complains that the trial court erred by ordering him removed from the courtroom in violation of his right to be present during the punishment phase.

One of the most basic rights guaranteed by the Confrontation Clause is the defendant’s right to be present in the courtroom at every stage of his trial. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057,1058, 25 L.Ed.2d 353 (1970). A criminal defendant may lose his constitutional right to be present at trial if, “after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.” Id., 397 U.S. at 343, 90 S.Ct. at 1060-61. Trial courts confronted with “disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case.” Id., 397 U.S. at 343, 90 S.Ct. at 1061. When a defendant’s behavior is of “an extreme and aggravated nature,” that discretion encompasses expulsion from the courtroom. Id., 397 U.S. at 346, 90 S.Ct. at 1062; see also Ramirez v. State, 76 S.W.3d 121, 129 (Tex.App.-Houston [14th Dist.] 2002, pet. refd).

Examples of conduct found to be of an “extreme and aggravated nature” include: (1) repeatedly arguing with the trial court in an abusive manner and threatening to Mil the trial judge, Allen, 397 U.S. at 339-40, 90 S.Ct. at 1059; (2) maMng repeated, nonresponsive, profane, vulgar, and disruptive statements and exhibiting disruptive behavior, Burks v. State, 792 S.W.2d 835, 836-37 (TexApp.-Houston [1st Dist.] 1990 pet. refd); (3) ignoring the trial court’s warnings not to disrupt the proceedings and engaging in a violent scuffle with the bailiff, Dotson v. State, 785 S.W.2d 848, 853-54 (Tex.App.-Houston [14th Dist.] 1990, pet. refd); and (4) disrupting the trial by interjecting alleged facts that were not in evidence in front of the jury, and after being warned that continued disruptive behavior would result in removal from the courtroom, insisting to the trial court that his behavior was not disruptive in a manner the appellate court presumed was highly disruptive, Ramirez, 76 S.W.3d at 129-30.

Appellant’s behavior, as reflected in the record before us, was not of an “extreme and aggravated nature” and did not warrant his expulsion from the courtroom. Nothing in the record approaches the level of disruptive, contumacious, defiant conduct necessary to justify the extraordinary action of removing a defendant from the courtroom during trial. Rather than engage in “noisy, disorderly, and disruptive” speech and conduct, appellant made no sound whatsoever. See Allen, 397 U.S. at 338, 90 S.Ct. at 1058. Appellant simply sat, “slumped over in his chair,” silent and “nonresponsive.”

The trial court stated that, sometime earlier, appellant had removed his classification badge. The trial court also stated that appellant’s behavior was consistent with his behavior when he was arrested, apparently referring to appellant’s flight from police officers before he was apprehended and his escape from a police car after he was handcuffed. Though this court does not condone appellant’s alleged removal of his classification badge while in custody, his flight from police officers, or his apparent escape from a police car, none of these acts took place inside the courtroom, and none of them provides a suffi-eient basis to remove appellant from the courtroom during the punishment phase of his trial. Furthermore, appellant could have engaged in all of these prior behaviors and still have been physically incapacitated the morning that the punishment phase of his trial was to begin.

The trial court stated that it had no doubt that appellant was pretending to be physically incapacitated, but there are other indications in the record that appellant might have been experiencing genuine health problems. Lieutenant Holden stated that appellant was late in receiving certain medication and that “an effect [had taken] place on [appellant’s] body.” Appellant had to be transported from the jail to the courtroom in a wheelchair. Though Lieutenant Holden indicated that appellant had followed instructions that morning to dress himself and to get in and out of the wheelchair, conduct of this nature is not necessarily inconsistent with appellant having experienced problems with his health or medication. Furthermore, Lieutenant Holden also stated that appellant leaned at times when he was dressing himself and that he was placed in the wheelchair because he was experiencing tremors. There is no evidence that Lieutenant Holden is qualified to give medical opinions, and he did not offer an opinion as to whether he believed appellant was pretending to be incapacitated. Nonetheless, Lieutenant Holden’s statements did not provide a sound basis for the trial court to conclude appellant was pretending to suffer physical incapacity rather than actually experiencing health problems.

While the jury was deliberating and after it was too late to try to remedy any harm to appellant from the trial court’s order removing him from the courtroom, the trial court heard testimony from a jail physician, Dr. Frank, who had evaluated appellant that morning. Dr. Frank’s testimony further confirmed that appellant might have been experiencing actual physical symptoms either from a recent seizure or from taking his medication that morning. Though we do not consider this medical testimony in determining whether the trial court abused its discretion, we note that it would have been prudent for the trial court to have heard this testimony before ordering appellant removed from the courtroom and taken back to the jail. See Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App.2003) (noting general rule that appellate court reviews propriety of trial court’s ruling based on evidence before the trial court at the time of the ruling). After carefully reviewing the record, we find no evidence of any “extreme and aggravated” conduct by appellant that was “so disorderly, disruptive, and disrespectful of the court” that his trial could not have been “carried on with him in the courtroom.” Allen, 397 U.S. at 343, 346, 90 S.Ct. at 1060-61, 1062. Furthermore, even presuming that appellant was only pretending to have suffered a seizure, as the trial court believed, the trial court did not warn appellant that it would order appellant removed from the courtroom if he continued the allegedly disruptive behavior. See Allen, 397 U.S. at 343, 90 S.Ct. at 1060-61; Ramirez, 76 S.W.3d at 129-30 (stating that defendant must be warned before being removed from courtroom and finding that tidal court did warn defendant before ordering his removal). Inexplicably, when asked by the bailiff whether appellant should be removed to the holdover area near the courtroom or whether appellant should be taken back to the jail, the trial court ordered appellant returned to the jail, precluding any possibility that appellant at least could have listened to the proceedings during the punishment phase. See Allen, 397 U.S. at 351, 90 S.Ct. at 1064 (Brennan, J., concurring) (stating that “when a defendant is excluded from his trial, the court should make reasonable efforts to enable him to communicate with his attorney and, if possible, to keep apprised of the progress of his trial ... it is not weakness to mitigate the disadvantages of his expulsion as far as technologically possible in the circumstances”); Ramirez, 76 S.W.3d at 129-30 (affirming trial court’s order removing defendant from courtroom when trial court allowed defendant to listen to the proceedings in the holdover area near the courtroom).

The State asserts the trial court did not abuse its discretion in determining that appellant was intentionally trying to disrupt the courtroom proceedings based in part on appellant’s filing of several pretrial motions pro se, even though he was represented by counsel. Appellant filed all of these pro se documents before trial. None of them indicate any attempt to disrupt, delay, or sabotage the trial. In fact, the trial court ruled on two of appellant’s pro se motions, granting one of them. The State also asserts that, at one point during the guilt-innocence phase of the trial, appellant addressed the court directly despite being represented by counsel. On that occasion, appellant’s remarks to the trial court were out of the hearing of the jury. More importantly, appellant addressed the court directly only after the trial judge directly asked him a question. We find no merit in the State’s arguments.

We conclude the trial court’s order removing appellant from the courtroom for the entire punishment phase of his trial was not “within the zone of reasonable disagreement” and constituted an abuse of discretion. Wheeler, 67 S.W.3d at 888; Shaw v. State, 846 S.W.2d 482, 486-87 (Tex.App.-Houston [14th Dist.] 1993, pet. ref d) (holding trial court erred in having defendant bound and gagged in presence of the jury during punishment phase); Sanchez v. State, 702 S.W.2d 258, 259 (Tex. App.-Dallas 1985, pet. refd) (holding trial court erred in excluding defendant from courtroom during part of his trial). This error is of constitutional magnitude.

Having found this constitutional error, we must reverse the judgment as to punishment unless we determine beyond a reasonable doubt that the error did not contribute to the jury’s assessment of punishment at fifty-five years’ confinement. See Tex.R.App. P. 44.2(a); Garcia v. State, 149 S.W.3d 135, 146 (Tex.Crim.App.2004) (characterizing right to translation of trial when defendant does not understand English as part of defendant’s right to be present in the courtroom during trial and holding that court of appeals should assess harm for violation of this right under Tex. R.App. P. 44.2(a)); Ramirez, 76 S.W.3d at 130. The punishment phase did not last long in this case. The State reoffered the same evidence offered and admitted during the guilt-innocence phase as well as two penitentiary packets that it asserted were from appellant’s two prior burglary convictions. The State also offered expert testimony from Deputy R. Shield that the fingerprints of the person convicted in the two penitentiary packets are the same and are appellant’s fingerprints. Appellant’s counsel did not cross-examine Deputy Shield and did not offer any evidence other than re-offering the defense evidence admitted during the guilt-innocence phase.

In closing arguments, the State argued that because this was appellant’s third burglary conviction, the jury should assess punishment at life in prison so that appellant could not continue committing burglaries. Appellant’s counsel focused on the fact that, even if the jury found this to be appellant’s third burglary conviction, this burglary did not involve any physical injury and involved only minimal property damage. Appellant’s counsel sought to evoke sympathy for appellant and asked the jury to assess punishment at the minimum of twenty-five years’ confinement, if the jury found the enhancement paragraphs true.

The jury found the enhancement paragraphs true and assessed punishment at fifty-five years’ confinement, which is in the middle of the punishment range for this offense. Although the trial court instructed the jury not to consider why the trial court had ordered appellant removed from the courtroom, the trial court did not instruct the jury to disregard the fact— regardless of the reasons therefor — that the trial court had ordered appellant removed from the courtroom. When a trial court takes the extreme measure of ordering a defendant removed from the courtroom for the entire punishment phase of his trial, the jury is likely to make a negative inference simply from the fact that the trial court ordered him removed. See Shaw, 846 S.W.2d at 486-87. We cannot say with confidence that the trial court’s error did not affect the jury’s assessment of punishment to appellant’s detriment, especially in light of the State’s argument based on recidivism and the continuing danger to the community the State claimed appellant posed. The jury may have been more receptive to this argument and the need to protect the community from appellant and his allegedly incorrigible conduct after having just learned that the trial court had ordered appellant removed from the courtroom for the rest of the trial. We cannot say beyond a reasonable doubt that the trial court’s error did not contribute to the jury’s assessment of punishment. See Tex.R.App. P. 44.2(a); Shaw, 846 S.W.2d at 486-87; Sanchez, 702 S.W.2d at 259. Accordingly, we sustain appellant’s second issue.

Because appellant does not challenge his conviction on appeal, we affirm the conviction, reverse the trial court’s judgment as to punishment, and remand to the trial court for a new punishment hearing consistent with this opinion.

      .The State asserts that appellant’s right to be present in the courtroom during the punishment phase is subject to procedural default under ordinary preservation-of-error rules and that appellant failed to preserve error in the trial court. We disagree. Appellant’s right to be present in the courtroom must be implemented by the judicial system unless expressly waived. See Garcia v. State, 149 S.W.3d 135, 142-45 (Tex.Crim.App.2003) (characterizing right to translation of trial when defendant does not understand English as part of defendant's right to be present in the courtroom during trial and holding that this right is not subject to ordinary preservation-of-error rules but must be implemented unless it is expressly waived); see also Illinois v. Allen, 397 U.S. 337, 342-43, 90 S.Ct. 1057, 1060, 25 L.Ed.2d 353 (1970) (holding that defendant’s right to be present in courtroom during trial is not absolute and may be waived by consent or by disorderly and disruptive conduct). Appellant did not expressly waive his right to be present in the courtroom; rather, appellant's counsel timely objected to the trial court's order that appellant be removed from the courtroom, and the trial court overruled this objection.

      . Appellant does not argue that the Texas Constitution or the Texas Code of Criminal Procedure offer different levels of protection than the federal constitution; therefore, we consider only the federal constitutional complaint. See Mitschke v. State, 129 S.W.3d 130, 132 (Tex.Crim.App.2004).

      . Dr. Frank testified as follows:
      (1) Three weeks earlier, appellant had reported a seizure and had been prescribed a daily dose of Dilantin, an antiseizure medication.
      (2) If appellant were to miss a day of this medication he would be more at risk of a seizure.
      (3) Appellant was brought to Dr. Frank at 7:30 a.m. "laying sleeping on [a] stretcher with vomit coming out of his mouth.”
      (4) Dr. Frank evaluated appellant for reported seizure activity.
      (5) It is documented that appellant's medical history includes a seizure disorder.
      (6) Though appellant obeyed specific instructions, he appeared very drowsy and hardly opened his eyes the entire time. This reaction is common for somebody who has just had seizure activity.
      (7) Dr. Frank tested appellant’s blood for the level of Dilantin and found that it was 9.1. The therapeutic range for Dilantin is between 10 and 20.
      ís) Some people have seizures even when the antiseizure medication in their bloodstream is within therapeutic levels, so the therapeutic levels are merely a guide.
      (9) Dilantin makes some people sleepy. Dr. Frank had appellant take a dose of Dilantin that morning and told him to "sleep it off."
      (10) Dr. Frank stated appellant appeared oriented to person, place, and time but that he did not test him for higher brain functions and would not know whether he was impaired in any way.
      (11) The stress of being in trial, having been convicted, and facing a sentence of twenty-five years to life in prison could induce a person who has a seizure disorder to have a seizure.
      (12) A person with a seizure disorder could intentionally not take their medication in an attempt to induce seizures. Likewise, a person with a seizure disorder could try to fake symptoms of a seizure. It is hard to determine if appellant was faking his symptoms, but in Dr. Frank’s opinion, appellant did have a seizure because he was so drowsy and that is usually associated with hav-
      ing a seizure.

      . Appellant’s first issue, if sustained, would only provide him with a new punishment hearing, so we need not address it.


author: RICHARD H. EDELMAN, Justice.

text:
    Thomas G. ADAMS, D. O., et al., Appellants, v. ESC MEDICAL SYSTEMS, INC. and Luxar Corporation, Appellees.
    No. 14-03-01286-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 17, 2004.

      James B. Lewis, Robert W. Hildebrand, Patrick Zummo, Houston, for appellants.
    Frank A. Monago, Marc Lance Ellison, Houston, for appellees.
    Panel consists of Justices FOWLER, EDELMAN, and SEYMORE.
   OPINION

RICHARD H. EDELMAN, Justice.

In this products liability case, seventy appellants appeal the dismissal of their claims based on forum non conveniens (“FNC”) on the grounds that ESC Medical Systems, Inc. and Luxar Corporation (collectively, “ESC”) failed to show that: (1) there was a single preferable alternative forum; or (2) the Gilbert factors weighed strongly in favor of the dismissal. We affirm.

Background

This case was brought by twelve Texas, and seventy non-resident, health care providers, alleging that various laser hair removal and other cosmetic medical devices they purchased from ESC did not operate as promised. The trial court’s order (the “order”) dismissed only the claims of the seventy non-resident plaintiffs, who reside in twenty-two other states.

Standard of Review

An FNC determination is reviewed for abuse of discretion. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 511, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). FNC is an equitable doctrine exercised when a court determines that, for convenience and the interest of justice, an action should instead be instituted in another forum, commonly because non-resident claimants are asserting claims that arose outside the state and will require application of foreign law. See Flaiz v. Moore, 359 S.W.2d 872, 874-75 (Tex.1962). Factors relevant to an FNC determination include: (1) private interests, such as relative ease of access to sources of proof; and (2) public interests, such as administrative difficulties for the courts. See Gilbert, 330 U.S. at 508-09, 67 S.Ct. 839. Unless the balance of factors strongly favors the defendant, the plaintiffs choice of forum should rarely be disturbed. Id. at 508, 67 S.Ct. 839.

Appellants’ three issues essentially argue that, because appellees failed to show the existence of a single, or otherwise preferable, alternative forum for the case, the trial court abused its discretion by scattering their seventy claims to be litigated in at least twenty-two separate lawsuits in that many other states.

Availability of Alternative Forum

It is undisputed that dismissal for FNC requires the existence of an alternative forum in which all of the defendants are amenable to process. However, a further question presented in this case is whether FNC requires an alternative forum in which all of the defendants are amenable to process by all of the plaintiffs. At least two Texas opinions have contained language suggesting that the entire case and all parties should be able to come within the jurisdiction of the alternative forum. However, neither of those cases, nor any other opinion the parties have cited or we have found, overturned an FNC dismissal for the lack of such an alternative forum; and one Texas case arguably rejected the argument that such a forum must exist. Under these circumstances, we lack a sufficient basis to conclude that the dismissal was in error for the absence of a single alternative forum in which all of the defendants were amenable to process by all of the plaintiffs.

Adequacy of Alternative Forum

Appellants’s third issue contends the trial court abused its discretion because ESC failed to show that the Gilbert factors strongly favor dismissal. Appellants maintain that the numerous state forums are not more convenient for anyone.

Application of the Gilbert factors obviously varies according to the perspective from which they are viewed. Because ap-pellees’ claims all arose in other states, the Gilbert factors favor the dismissal and refiling in those respective states in that sources of proof will be more easily accessible there; governing law can more readily be applied by courts there; and Texas courts and jurors will not be imposed upon to determine disputes that have no relation to them. On the other hand, consolidating such litigation in a single court, rather than at least twenty-three, offers considerable advantages in terms of judicial economy, reducing the likelihood of contradictory determinations, and arguably increasing the likelihood of a large-scale settlement.

The fact that this suit was also brought by Texas plaintiffs (indeed, a disproportionate number of Texas plaintiffs) further obscures the Gilbert analysis. Although not framed in such terms, the FNC dismissal in this case is, in effect, a considerable constraint on whatever right of permissive joinder Texas plaintiffs have with regard to out-of-state plaintiffs. As a practical matter, if fracturing multi-state plaintiffs’ claims, as occurred in this case, is proper on FNC grounds, then the ability of plaintiffs from multiple states to bring joint actions in Texas is seriously in question, and without regard to the considerations that otherwise govern joinder of claims. We have found nothing to suggest that this is in any way an objective of the FNC doctrine. Nevertheless, despite the potentially wide-ranging, and possibly unintended, consequences of applying the FNC doctrine in this manner, we have not been provided authority clearly demonstrating it to be error. Accordingly, appellant’s issues are overruled, and the judgment of the trial court is affirmed.

      . See Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947).

      . The Gilbert analysis has been adopted by the Texas Supreme Court. See In re Smith Barney, 975 S.W.2d 593, 596 (Tex.1998).

      . See Exxon Corp. v. Choo, 881 S.W.2d 301, 302 n. 2 (Tex. 1994).

      . In dismissing the claims of the seventy nonresident plaintiffs, the trial court's order did not identify an alternative forum, but accepted appellees’ stipulation that, if the dismissed plaintiffs file actions in their respective home states within one year of the dismissal, ESC would not object to jurisdiction, and any applicable statute of limitations would be tolled.

      . See, e.g., Direct Color Servs., Inc. v. Eastman Kodak Co., 929 S.W.2d 558, 564 (Tex.App.Tyler 1996, writ denied); Sarieddine v. Moussa, 820 S.W.2d 837, 841-42 (Tex.App.-Dallas 1991, writ denied).

      . See Direct Color, 929 S.W.2d at 564; Saried-dine, 820 S.W.2d at 841.

      . See Direct Color, 929 S.W.2d at 564.

      . However, although not material to our determination, at least one Texas opinion has held that, once a defendant establishes the existence of an alternative forum, the burden shifts to the plaintiff to prove that it is not adequate. See Direct Color, 929 S.W.2d at 563.

      . We have not found a break-down in the record of the number of plaintiffs from each state. However, dividing the 70 non-resident plaintiffs by the 22 states they represent produces an average of less than four plaintiffs for each of those states; whereas the 12 Texas plaintiffs amount to more than three times that average.


author: RICHARD H. EDELMAN, Justice. CHARLES W. SEYMORE, Justice,

text:
    ALTIVIA CORPORATION, Appellant, v. GREENWICH INSURANCE COMPANY, Appellee.
    No. 14-03-00740-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 26, 2004.

      David R.N. Taubenfeld, Dallas, for appellant.
    Thomas M. Farrell, Houston, for appel-lee.
    Panel consists of Justices FOWLER, EDELMAN, and SEYMORE.
   MAJORITY OPINION

RICHARD H. EDELMAN, Justice.

In this liability insurance coverage dispute, Altivia Corporation (“Altivia”) appeals a summary judgment entered in favor of Greenwich Insurance Company (“Greenwich”) on the grounds that Greenwich had a duty to defend under Altivia’s Commercial General Liability policy (“CGL”) and its Employee Benefit Liability endorsement (“EBL”) to the CGL. We affirm in part and reverse and remand in part.

Background

Altivia was sued by a former employee, Hidrogo, who alleged that he was: (1) wrongfully terminated in retaliation for filing a workers’ compensation claim; and (2) defamed by Altivia employees to other prospective employers. Altivia sued Greenwich for coverage under the CGL and EBL, Greenwich moved for summary judgment against those claims, and the trial court granted a take-nothing summary judgment against Altivia.

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). We review a summary judgment de novo, taking all evidence favorable to the nonmovant as true and resolving every doubt, and indulging every reasonable inference, in the nonmovant’s favor. Provident Life and Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003).

A liability insurer is obligated to defend a suit if the facts alleged in the pleadings would give rise to any claim within the coverage of the policy. Utica Nat’l Ins. Co. v. Am. Indem. Co., 141 S.W.3d 198, 201 (Tex.2004). An insurer’s duty to defend is determined solely by the allegations in the pleadings and the language of the insurance policy. King v. Dallas Fire Ins. Co., 85 S.W.3d 185, 187 (Tex.2002). The insurer bears the burden to show that a policy exclusion applies, and courts adopt the insured’s construction of an exclusion whenever it is reasonable, even where the construction urged by the insurer appears to be more reasonable. Utica, 141 S.W.3d at 202, 207.

CGL

Altivia’s first issue contends that Greenwich had a duty to defend against Hidro-go’s allegations of libel and slander under the CGL. The thrust of those allegations was that:

[Altivia], by and through its authorized agents, has slandered and defamed [Hi-drogo] to other trucking companies which has prevented him from obtaining other employment. [Altivia] published and caused to be published statements substantially to the effect that [Hidrogo] had two accidents while employed with [Altivia]. These words reflected upon the business and personal integrity of [Hidrogo].... These statements, expressly and by implication, constituted slander and slander per se. ... They adversely affected his reputation, both personally and professionally.... These statements were false and malicious.

The.relevant portions of the CGL policy: (1) generally provide coverage for sums the insured becomes legally obligated to pay as damages because of “personal injury,” including oral or written publication of material that slanders or libels a person; but exclude coverage for: (2) such a personal injury if done by the insured with knowledge of its falsity; and (3) personal injury arising out of any termination of a person’s employment or “employment related” acts or omissions, such as defamation (the “ERP exclusion”).

Hidrogo’s petition does not specify the context of the alleged statements or the persons by whom, time frame in which, or purpose for which the statements were allegedly made. To the extent they were alleged to be.made in response to routine employment inquiries to Altivia by other prospective employers, they would be employment related acts subject to the ERP exclusion. Conversely, to the extent the statements were otherwise alleged to be made by Altivia’s authorized agents, such as to subject Altivia to liability, and were false and malicious, as Hidrogo’s petition alleges, they would have allegedly been made by Altivia with knowledge of their falsity and thus also outside the scope of coverage. Therefore, based on the allegations in Hidrogo’s pleadings and the language of the CGL, Altivia has not shown how Hidrogo’s libel and slander allegations could give rise to any claim that would be within the coverage of the CGL. Accordingly, its first issue is overruled.

EBL

Altivia’s second issue argues that Greenwich’s duty to defend against Hidro-go’s claim of wrongful termination under the EBL was not limited to negligent acts, as Greenwich’s motion for summary judgment had asserted. The relevant portions of the EBL provide:

1. Insuring Agreement
a. [Greenwich] will pay those sums that the insured becomes legally obligated to pay as damages because of acts, errors or omissions arising out of the administration of [Altivia’s] employee benefit program.
c. This insurance applies to damages because of a negligent act, error or omission in the administration of [Altivia’s] employee benefit program only if:....

We agree with Altivia that subsection lc does not limit the entire scope of the EBL coverage to negligent acts, but merely limits the extent of coverage for negligent acts thereunder. Because this was Greenwich’s only basis for asserting that the EBL did not provide a duty to defend against the wrongful termination claim, we sustain Altivia’s second issue.

Accordingly, the judgment of the trial court is reversed and remanded with regard to Altivia’s claim under the EBL for Hidrogo’s wrongful termination claim and affirmed as to the remainder.

SEYMORE, J., concurring.

CHARLES W. SEYMORE, Justice,

concurring.

The trial court concluded that Greenwich has no contractual duty to defend or indemnify Altivia. On appeal, Altivia does not challenge Greenwich’s refusal to indemnify for losses sustained in connection with settlement of the underlying claim.

The majority’s ruminations about “context” of Hidrogo’s pleadings are not consistent with proper application of the “eight corners” rule. In his petition, Hidrogo alleges the following:

Defendant, by and through its agents, has slandered and defamed plaintiff to other trucking companies which has prevented him from obtaining other employment.
(emphasis added)

In the underlying pleadings, there is no description of dates, times, places, or specific persons who made the alleged defamatory statements. Altivia suggests that we consider the possibility that some of Altivia’s employees may have gossiped among themselves regarding Hidrogo’s termination and driving record. The majority appropriately refuses to entertain Altivia’s suggested scenario. However, the majority entertains its own scenario. After correctly concluding that there is no duty to defend if the statements were made in response to routine employment inquiries, the majority opines, “to the extent the statements were otherwise alleged to be made by Altivia’s authorized agents, such as to subject Altivia to liability, and were false and malicious ... they would have allegedly been made by Altivia with knowledge of their falsity and thus also outside the scope of coverage.”

I concur with the majority in finding no duty to defend under the Comprehensive General Liability section of the policy but respectfully disagree with their analysis. My colleagues do not sufficiently distinguish between the duty to indemnify and the duty to defend. See Utica Nat’l. Ins. Co. of Tex. v. Am. Indem. Co., 47 Tex. Sup.Ct. J. 845, 2004 WL 1535235, at ⅜4 (Tex. July 9, 2004) (stating that having the duty to defend does not necessarily mean that a carrier is obligated to indemnify the insured). Unlike the duty to indemnify, whether there is a duty to defend does not depend upon the actual facts which might support liability in the underlying lawsuit. Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 821-22 (Tex.1997). An insurer’s duty to defend is determined by allegations in the pleadings and the language of the insurance policy, commonly expressed as the “eight corners” rule. Nat’l Union Fire Ins. Co. of Pittsburg, PA v. Merchs. Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.1997). We may not read facts into the pleadings, look outside the pleadings, or imagine factual scenarios that might trigger coverage; however, if the underlying petition contains allegations which, when fairly and reasonably construed, state a cause of action that is potentially covered by the policy, then the insurer has a duty to defend. Nat’l Union Fire Ins. Co., 939 S.W.2d at 142.

The majority erroneously reads facts into the pleadings by speculating about knowledge, intent, motive or authority of Altivia’s employees. On the contrary, we may not consider scenarios outside the plain language of Hidrogo’s pleadings in the underlying case. Our focus should be only the text of factual allegations in the pleadings that show origin of the claimed damage. The focus on origin of damages is consistent with the requirement that there be a causal connection between conduct excluded from coverage and the damages alleged by the underlying plaintiff. Waffle House, Inc. v. Travelers Indem. Co. of III. 114 S.W.3d 601, 608 (Tex.App.-Fort Worth 2003, pet denied). Reading Hidro-go’s petition literally, without reference to the truth or falsity of the allegation; the damages, if any, arise out of alleged defamatory remarks to' prospective employers. Applying the “eight corners” rule, I would conclude that defamatory communications to other trucking companies without implying any other circumstance (for or against coverage) alleges an “employment related practice ... such as defamation” as described in the Employment Related Practices Exclusion. Such conduct as literally expressed in the underlying pleadings is excluded from coverage. Succinctly, the underlying petition does not state a cause of action that is potentially covered by the Comprehensive General Liability section of the policy. Nat’l Union Fire Ins. Co., 939 S.W.2d at 142.

Accordingly, I concur with the majority relative to disposition of Altivia’s first issue and join the majority in reversing and remanding on Altivia’s second issue.

      . See Waffle House, Inc. v. Travelers Indem., 114 S.W.3d 601, 609 (Tex.App.-Fort Worth 2003, pet. denied) (distinguishing Penn. Nat’l Mut. Cas. Ins. Co. v. Kitty Hawk Airways, Inc., 964 F.2d 478, 481 (5th Cir.1992) as having involved such an inquiry).

      . We thus conclude that Altivia's reliance on Waffle House to support its first issue is misplaced. The basis for the holding in that opinion was that the defamatory statements were made out of Waffle House’s attempt to prevent its employees from leaving rather than being related to the plaintiff’s termination. See Waffle House, 114 S.W.3d at 608-09. No such ulterior motive was alleged in this case. Moreover, even statements made for the purpose of preventing employees from leaving are employment related acts. We further disagree with the apparent reasoning of that opinion that an ERP exclusion can apply only where the alleged misconduct arises out of the plaintiff's termination, rather than another employment-related act.

      . We express no opinion on any other aspect of the applicability, if any, of the EBL to Hidrogo’s claim.

      . Accordingly, I join the majority in limiting the court’s analysis to the contractual duty to defend.