author: Justice ROSS.

text:
    Warren Keith RODGERS, Appellant, v. The STATE of Texas, Appellee.
    No. 06-03-00081-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Feb. 16, 2005.
    Decided March 25, 2005.

      James W. Volberding, Tyler, for appellant.
    Henry Whitley, Special Asst. Dist. Atty., Quitman, for state.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

Warren Keith Rodgers was convicted by a Wood County jury for the murder of his wife, Amanda. The indictment alleged, in two paragraphs, that Rodgers killed Amanda by placing her on a railroad track so she would be hit by a train and by driving over her with a vehicle. The jury-convicted Rodgers of murder, as alleged in both paragraphs, and assessed his punishment at life in prison and a $10,000.00 fine. The trial court sentenced Rodgers in accordance with the jury verdict.

Rodgers appeals, asserting: 1) the evidence is legally and factually insufficient; 2) the State’s expert regarding tire and shoe prints was not qualified “under Dau-bert, Robinson and Kelly, and Rodgers’ due process rights were violated by the expert’s testimony; 3) the protections of the Fourth Amendment and Article 38.23 of the Code of Criminal Procedure were violated by the issuance and execution of a search warrant for Rodgers’ home and vehicle; 4) the trial court erred in its refusal to. grant a change of venue; 5) the trial court erred by denying Rodgers’ request for inclusion of a lesser included offense in the jury charge; 6) Rodgers was deprived of his rights to due process and a fair and impartial jury by the district clerk’s solicitation of members of the jury panel to donate their jury pay to child and victim compensation funds, and by the trial court’s denial of additional strikes resulting in the seating of a juror who had so contributed her jury pay; and 7) Rodgers’ confrontation rights under the Sixth Amendment were violated by the admission into evidence of statements attributed to Amanda. We affirm the judgment.

Legal Sufficiency of the Evidence

In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This calls on the court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999).

The evidence, viewed in the light most favorable to the jury verdict, showed that, at the time of Amanda’s death, she and Rodgers had been separated for approximately a month. Amanda had told people she was afraid of Rodgers. Shortly before her death, she approached her grandmother, Wanda Wilson, for a place to stay, explaining that the time was coming when she (Amanda) would have to “hide out” from Rodgers.

Amanda was employed at Wal-Mart in the city of Mineóla. After completion of her shift June 21, 2001, she went to her white Ford Tempo parked in the store’s parking lot. After loading her groceries, she found her car would not start. Evidence was subsequently adduced that the wires connecting the Tempo’s spark plugs and coil had been cross-wired, rendering the vehicle inoperable. Coworker Penny Canfield testified that, on June 21, she was leaving Wal-Mart around 9:00 p.m. and passed Amanda coming back into the store. Amanda commented that her car would not start. Canfield offered to help, but Amanda told her Rodgers was there. Canfield testified she saw Rodgers sitting in his van in front of the store. Hampton Rayburn, another coworker at Wal-Mart, testified Amanda had been confiding in him for several months about her marital problems. She told Rayburn that Rodgers had threatened to kill her and that she was terrified of him. On the evening of Amanda’s death, Rayburn saw Amanda after her shift and she told him her car would not start. Rayburn testified Amanda made a couple of telephone calls and then went to check on her car again. Amanda returned inside the store and told Rayburn, “the asshole is here.” When Rayburn asked who she meant, she indicated Rodgers. Amanda told Rayburn she intended to tell Rodgers that things were over between them, and if he did not understand, she was leaving anyway. Rayburn told her to be careful and gave her his pocketknife, which she put in her right front pocket.

A surveillance videotape of the Wal-Mart parking lot, recorded June 21, 2001, and covering the time between approximately 6:32 p.m. and 9:11 p.m., was admitted into evidence. The videotape was played for the jury, and Wal-Mart’s security officer, Roger Copeland, narrated what was depicted on the videotape while it was played. He testified the videotape shows a dark van approaching a white car parked on the parking lot. A person gets out of the van and raises the hood on the white car. After closing the hood, the person gets back into the van and leaves the parking lot. Later, another person can be seen approaching the white car, placing items in the back seat, or possibly in the trunk. This person then returns to the store. The videotape then shows a white pickup truck, as well as the same van as had been shown earlier, approaching the white car. The van can then be seen leaving the parking lot.

Joe Don McClenney testified he saw Amanda and Rodgers in the parking lot that night. He identified them from a picture of the couple. McClenney was driving the white pickup truck seen in the videotape. He said he saw Rodgers working under the hood of Amanda’s white Tempo. McClenney, a mechanic by trade, offered to help the couple. Rodgers declined McClenney’s offer.

Neighbors at the apartments in the town of Alba, where Amanda lived, testified Amanda had not come home from work the night of June 21, but had called and told them she was getting a ride from Rodgers. Stephanie Cantrell, Amanda’s neighbor at the apartments, testified Rodgers called her on the afternoon of June 21 and told her Amanda was “messing with another woman.” He said that he was an electrician and that he could tamper with Amanda’s car or her house. Rodgers also told Cantrell that he had relatives in the “Westside Mafia” and that he could have Amanda “picked off.”

Mark Burrell worked with Rodgers and testified that on June 21, after work, the two drove to Big Sandy for beer and liquor. During the trip, Rodgers talked about his marital problems and said he could alter the wiring on Amanda’s car such that, when she engaged the car’s cruise control, the steering would lock and the driver would lose control of the car. Burrell testified there was no blood in the van when he rode with Rodgers to the liquor store.

William Cooksey, an engineer for Union Pacific Railroad, testified that, on the night of June 21 or early morning of June 22, 2001, he was operating a train as it approached the crossing of a county road in Mineóla, where he observed a woman, later identified as Amanda, lying on the tracks. Cooksey recalled that the woman was not moving. He could not remember how she was dressed, but did recall she had no shoes on her feet. When he saw her, he put the train in “full service reduction,” but was unable to stop before hitting her. It took him about a mile to get the train completely stopped. He then dialed 9-1-1 and reported what had happened.

Sheila Spotswood, M.D., the medical examiner who performed the autopsy on Amanda’s body, described various serious wounds. There were multiple abrasions all over the front of her body, and a significant laceration from the left side of her body to her left thigh, which almost amputated her left leg. Her spleen and liver were lacerated. Her skull was fractured, as were her ribs, right collarbone, and bones in her arms and legs. Spotswood agreed that these injuries were consistent ■with Amanda being hit by a train and that at least some of the injuries were consistent with her being run over by a motor vehicle such as a van.

Lieutenant Miles Tucker of the Wood County Sheriffs Office went to the scene in response to Cooksey’s 9-1-1 call. There, he found Amanda’s body about fifty feet from the railroad tracks. She was tentatively identified via a partial Wal-Mart pay stub found nearby.

In the process of trying to positively identify the body, law enforcement officers sought to locate Amanda’s husband, Rodgers. They were able to determine he lived with his mother at her residence in Mineó-la. Around daybreak on the morning of June 22, Deputy William Burge, Tucker, and Investigator Kyle Henson, all with the Wood County Sheriffs Office, went to this residence. Henson went to the front door of the house, and Burge went to the back of the house. Burge entered the back yard through an open gate and observed a green van parked behind the house. The officers already had information that Rodgers drove a vehicle of that description. Burge looked through a window of the van, where he observed what he believed was blood on the back of the driver’s seat. He looked through another window and saw what he thought was more blood. He then went to the front of the house where Henson was talking to Rodgers. Burge privately informed Henson of his observations in the van. Henson terminated his interview with Rodgers and left to obtain a search warrant.

Pursuant to the search warrant issued by a district judge, the officers seized the shoes Rodgers was wearing on the morning of June 22. Amanda’s blood was found on one shoe. The green van parked in the back yard was also seized pursuant to this warrant and towed to the sheriffs office for processing. Although Amanda and Rodgers owned both vehicles together, Rodgers primarily drove the van and Amanda the Tempo. Of the items seized from inside the van, Amanda’s blood was found on the driver’s back seat cover, a rear floor mat, a rear air conditioning vent, the back of the front passenger’s seat, and a piece of paper.

The State’s expert witness on tires and shoes, A.J. Jumper, testified that a shoe print photographed near the railroad tracks where Amanda’s body was found had similar characteristics and design as one of the shoes Rodgers was wearing on the early morning of June 22. He further testified that two tire tracks photographed at the same location had similar characteristics and design as three tire impressions taken from Rodgers’ van. The State’s DNA expert testified there were “consistencies” between a sample of Amanda’s DNA and the hair found under Rodgers’ van. He said two of the strands of hair found at that location could be identified as Amanda’s to the extent of one in 4,052.

Viewed in the light most favorable to the jury verdict, we hold that a rational trier of fact could have found the essential elements of murder beyond a reasonable doubt. The evidence is legally sufficient to support Rodgers’ conviction.

Factual Sufficiency of the Evidence

In a factual sufficiency review, an appellate court views all the evidence in a neutral light and determines whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex.Crim.App.2004) (citing Zuniga v. State, 144 S.W.3d 477, 486 (Tex.Crim.App.2004)). If the evidence is factually insufficient, then we must reverse the judgment and remand for a new trial. Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App.1996).

Contravening the evidence supporting Rodgers’ conviction was Rodgers’ statement to Henson in the early morning of June 22 that he had picked up Amanda at Wal-Mart the night before, but she jumped from his van at the red light near Wal-Mart and got into the truck of another man. Further, Jumper, the State’s expert witness on tires and shoes, testified he could not state as a fact that the shoe print and the tire tracks photographed at the railroad scene were made by Rodgers’ shoe or the tires on his van. Also, the State’s DNA expert testified he could not conclusively determine that human hair found on the undercarriage of Rodgers’ van belonged to Amanda.

Viewing the evidence in a neutral light, we cannot say the evidence supporting the verdict, considered alone, is too weak to support the jury’s finding of guilt beyond a reasonable doubt. Likewise, after weighing the evidence supporting the jury verdict, and the contravening evidence, we conclude the contrary evidence was not strong enough that the State could not have met its burden of proof. The evidence was factually sufficient to support the jury verdict.

The State’s Expert Witness

Rodgers contends Jumper, the State’s expert witness on shoes and tires, was not qualified “under Daubert, Robinson and Kelly.” The State called Jumper as a witness to compare the sole of Rodgers’ shoe and tire imprints from his van with impressions made from a shoe print and tire tracks found near the railroad tracks where Amanda was hit by the train.

Rodgers filed a pretrial motion requesting a hearing outside the presence of the jury on all expert witnesses. The trial court instructed Rodgers to make his request for a “Rule 702 hearing” during trial. Rodgers failed to timely request such a hearing.

Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

Tex.R. Evid. 702.

This rule requires scientific evidence to be reliable and relevant. See Daubert, 509 U.S. at 589, 113 S.Ct. 2786. To be reliable, three criteria must be met: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. All three criteria must be proven to the trial court outside the presence of the jury before the evidence is admitted. Kelly, 824 S.W.2d at 573. The burden is on the proponent of the expert testimony to prove by clear and convincing evidence that the testimony is trustworthy. Id. We review the trial court’s decision under an abuse of discretion standard, which means the decision must be within the zone of reasonable disagreement in light of the evidence offered at the hearing and the requirements of Rule 702. Id. at 574.

In the instant case, Rodgers admitted at trial the State had timely provided copies of Jumper’s resume and report. He did not object when the State called Jumper to testify. On direct examination, the State established that Jumper is a latent print examiner for the Dallas County Southwestern Institute of Forensic Sciences (SWIFS). He testified that the following training and experience qualify him for this position:

• Two years’ training in the physical evidence section of the Dallas County Sheriffs Office
• Seven years’ apprenticeship with a certified print examiner
• Classes with the Dallas County Sheriffs Department on the matching of shoe and tire imprints
• Courses at the University of North Texas on the detection, collection, preservation, and examination of shoe and tire imprints
• A class with the former section chief of the FBI’s “shoe imprint section on tires” [sic]
• A class on tire track imprints comparison and recovery, taught at an FBI educational conference by a retired member of the Florida Department of Public Safety

When asked by the State if he was able to take a tire print or shoe print and make comparisons between an item from a crime scene and some other item or known item later located, Jumper answered, without objection, in the affirmative. He then stated he had testified in court more than 150 times.

Just as the State was beginning to ask Jumper questions concerning items of evidence in the instant case, Rodgers requested to question the witness on voir dire “to test his qualifications under 702.” Rodgers’ request was granted, and, in a lengthy interrogation in the presence of the jury, further established the following regarding Jumper’s background:

• He graduated from high school but not from college
• There were only two trials in which he testified as to tire prints
• He has written no articles discussing tire prints
• The course he took at the University of North Texas was a three-day course taught by a former section chief for the FBI’s footwear and tire imprint section
• In 1989, he took a three-day course at the Dallas County Sheriffs Academy on comparison of shoe and tire imprints taught by a detective in the physical evidence section of the Sheriffs Department
• In 1991, he took another three-day course at the Dallas County Sheriffs Academy on matching shoe and tire imprints
• In 1993, he took another three-day training course at the Sheriffs Department on “the recovery and examination of shoe and tires” [sic]
• He had two years’ (1987-1989) on-the-job training as a crime scene detective in the physical evidence section of the Dallas County Sheriffs Department
• At his current employment with SWIFS, he is required to take a test on comparisons of shoe imprints every year
• His job at SWIFS is to examine fingerprints, shoes, and tires, but the bulk of his work is with fingerprints
• During the five years he has worked at SWIFS, he has not testified in any other case regarding tire prints
• In 1998, he took a two-day course dealing specifically with tires at an educational conference presented by the International Association for Identification

At the end of this voir dire questioning, Rodgers approached the bench, stated he had no further questions on his “Daubert challenge,” and made the following objection outside the hearing of the jury:

My objection is he’s not qualified under Daubert or Kelly. He doesn’t meet the qualifications by any level of standard. If he’s going to testify to scientific testing that he’s familiar, well, maybe he’s qualified to express an opinion on taking a tire print and matching it to an individual tire or even a class of tires, I don’t see how any way that a grand total of 14 days of classroom training on any subject period would make anyone an expert any time when that leaves his work qualifications which although respectful are limited to two years of training through a supervisor and supervisor [sic] and on the job and followed by just sort of on the job training. He’s already testified he’s only testified twice, he’s only made two reports.
.... He doesn’t meet the qualifications of 702 or 703.

The trial court overruled Rodgers’ objection, and the State continued with its direct examination of Jumper, eliciting opinions from him, without further objection, that the shoe and tire prints photographed at the scene and the impressions from Rodgers’ shoes and tires had similar characteristics and designs. After a weekend recess of the trial, Rodgers conducted a lengthy and detailed cross-examination of Jumper, much of it outside the presence of the jury, during which Rodgers made a strong challenge to Jumper’s general knowledge of tires and shoes. Rodgers’ “Daubert, Robinson and Kelly ” issues on appeal are largely based on the testimony developed during this cross-examination. Fatal to his contentions, however, is that this testimony came after Jumper had already expressed his opinions before the jury-

There is a three-pronged test for the admissibility of expert testimony: (1) the expert must be qualified by knowledge, skill, expertise, training, or education; (2) the subject matter of the testimony must be an appropriate one for expert testimony; and (3) the expert’s testimony must assist the trier of fact to understand the evidence or decide a fact in issue. Hardin v. State, 20 S.W.3d 84, 91 (Tex.App.-Texarkana 2000, pet. ref'd); Bui v. State, 964 S.W.2d 335, 344 (Tex.App.-Texarkana 1998, pet. ref'd). At the time Jumper first expressed his opinions concerning his comparison of the shoe and tire prints photographed at the scene with the impressions made from Rodgers’ shoes and tires, Rodgers had only challenged him under the first prong of this test. Rodgers’ challenges under the other two prongs came later, during cross-examination, and were not before the trial court when it ruled on Jumper’s qualifications.

Further, at the time of the court’s ruling, Rodgers had asked no questions of Jumper concerning the three reliability criteria of Daubert. Neither had he reasserted, as required by the trial court’s pretrial ruling, his request for a hearing outside the presence of the jury to so question the witness. By this failure, Rodgers forfeited his right to such a hearing. See Scherl v. State, 7 S.W.3d 650, 655 (Tex.App.-Texarkana 1999, pet. ref'd). Based on the evidence before the trial court at the time of its ruling on Jumper’s qualifications, no abuse of discretion has been shown. Rodgers’ issues “under Dau-bert, Robinson and Kelly ” are overruled.

Due Process Violation

Rodgers further alleges that Jumper’s testimony as an expert witness violated the Due Process Clause of the United States Constitution and that Rodgers was thereby harmed. Rodgers does not provide any authority or argument on how his due process rights were violated. His argument centers on the alleged deficiencies in Jumper’s qualifications elicited during cross-examination. He argues and cites cases addressing Rule 702 and the Dau-bert/Kelly line of cases, but offers no argument or authority why such pm-ported error amounts to a due process violation. We find this point of error inadequately briefed and decline to address it. See Tex.R.App. P. 38.1(h); Vuong v. State, 830 S.W.2d 929, 940 (Tex.Crim.App.1992).

Search and Seizure

The State’s evidence showed that, during the early morning hours of June 22, 2001, the date Amanda’s body was found, officers went to the home of Rodgers’ mother, where Rodgers lived. • At that point in time, the officers had found Amanda’s pay stub near her body, but had not positively identified the body. The officers testified they went to Rodgers’ mother’s house, where Rodgers was staying, as part of their investigation seeking to positively identify Amanda. As noted earlier, while Henson went to the front door of this residence, Burge went to the back yard, entering through an open gate, and observed a green van parked behind the house. Burge looked through the windows of the van, where he observed what he believed was blood inside. He then went to the front of the house and informed Henson of his observations. Henson immediately left that location to get a search warrant. A district judge issued the warrant on that same date authorizing a search of Rodgers’ van and his mother’s house.

Rodgers contends Burge’s initial look through the van windows was an illegal warrantless search. The trial court con-eluded it was not, and we agree. The van was inside the back gate of Rodgers’ mother’s yard. Burge testified the gate was open “approximately 3, 4 feet” and at least one side of the yard was not enclosed by a fence.

An officer’s entry onto the cur-tilage or approach to the entrances of a residence does not necessarily rise to the level of a search as contemplated by the Fourth Amendment. Cf. Long v. State, 532 S.W.2d 591, 594-95 (Tex.Crim.App.1975) (sheriff and deputy with questions about private aircraft flights in area received no answer to front door, walking to back door smelled marihuana, which could also be seen through open window; observance of marihuana through window held not a search); Atkins v. State, 882 S.W.2d 910 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd) (officer investigating anonymous tip had to pass through fence to get to back door; appellant left house by way of back door, observed officer, dropped an object, and thereafter re-entered house; officer picked up object and recognized it as contraband; seizing object held not a search); Washington v. State, 152 S.W.3d 209, 214-15 (Tex.App.-Amarillo 2004, no pet. h.) (officers responded to Housing Authority report of persons smoking marihuana; officers drove to back of property and entered through open gate; entry through open gate held not a search). An officer may enter the curtilage of a house in an effort to contact its occupants. Buchanan v. State, 129 S.W.3d 767, 773 (Tex. App.-Amarillo 2004, pet. ref'd). This is true when the occupant has not manifested his or her intent to restrict access by locking a gate or posting signs informing the officer he or she is not invited or the officer does not deviate from the normal path of traffic. Id.

The trial court’s ruling in the instant case that Burge’s initial look through the van windows was not a search was based on evidence the fence on one side of the back yard did not enclose the property, the gate to the back yard was open, and the yard and van were within plain view from the street. We agree and hold that Burge’s looking through the van windows was not a search.

Rodgers also complains the warrant authorizing the search of his van and his mother’s house was vague to the point of being a general warrant and was therefore insufficient for Fourth Amendment purposes. He contends, “The warrant application did not identify particular items to be seized and instead authorized a general search of Rodgers’ home and van.”

The Fourth Amendment’s requirement that a warrant “particularly describe the place to be searched, and the persons or things to be seized” repudiates general warrants and “makes general searches ... impossible and prevents the seizure of one thing under a warrant describing another.” Long v. State, 132 S.W.3d 443, 448 n. 12 (Tex.Crim.App.2004). “Of course, ‘[a] search made under authority of a search warrant may extend to the entire area covered by the warrant’s description.’ And, when courts examine the description of the place to be searched to determine the warrant’s scope, they follow a common sense and practical approach, not a ‘Procrustean’ or overly technical one.” Id. at 448 (citations omitted); see also Ramos v. State, 934 S.W.2d 358 (Tex.Crim.App.1996) (warrant authorizing, per application affidavit, officers to search for “blood, clothing containing blood ... and any and all evidence relating to a homicide and/or a kidnapping,” where only items seized and subsequently used in investigation or trial were items containing blood, held harmless beyond reasonable doubt).

An officer may seize mere evidence of a crime even though such property is not particularly described in the search warrant when the objects discovered and seized are reasonably related to the offense in question, when the officer at the time of the seizure has a reasonable basis for drawing a connection between the observed objects and the crime which furnished the basis for the search warrant, and the discovery of such property is made in the course of a good faith search conducted within the perimeters of the search warrant.

Bower v. State, 769 S.W.2d 887, 906 (Tex.Crim.App.1989), overruled on other grounds, Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991).

An appellant, when alleging a general warrant was issued, must point to specific evidence seized pursuant to the complained-of paragraph and offered into evidence. Massey v. State, 933 S.W.2d 141, 148 (Tex.Crim.App.1996). “In failing to identify evidence that was seized pursuant to the complained of portion of the affidavit, appellant has inadequately briefed this issue and therefore failed to preserve his claim for review.” Id.

The application seeking a search warrant for Rodgers’ van and his mother’s home alleged that: 1) a specific offense had been committed; 2) the specifically described property or items that were to be searched for or seized constituted evidence of that offense or evidence that a particular person committed that offense; and 3) the property or items constituting evidence to be searched for or seized were located at or on the particular person, place, or thing to be searched. See Tex. Code Cmm. PROc. Ann. art. 18.01 (Vernon Supp.2004-2005).

Henson’s sworn application stated that the officer was conducting a homicide investigation into Amanda’s death; that, on trying to locate her husband and notify a family member for identification purposes, blood was seen in Rodgers’ van; that Rodgers told officers he had not seen Amanda since the previous night; that Amanda’s stepfather told officers Rodgers and Amanda had marital difficulties; and that clay on the van tires looked similar to that seen at the railroad crossing where Amanda’s body was found. The affidavit stated the affiant’s belief that blood, soil, and other unknown evidence could be found in the van and residence. The affidavit requested permission to seek “blood, soil, and other unknown evidence.”

We hold the warrant was not general, as it instructed officers to search for specific items, i.e., blood and soil. The phrase “other unknown evidence” reasonably related to those specific items, and in this context, was not so broad as to allow a search that would offend the protective intent of the Fourth Amendment.

Further, the only evidence seized from the house and subsequently admitted at trial were Rodgers’ tennis shoes. The right shoe had Amanda’s blood on it. Henson testified Rodgers was wearing the shoes when the search was conducted. Henson asked Rodgers for his shoes, and Rodgers complied.

Rodgers also contends there was no reasonable basis for the warrant to allow a search of the residence as well as the van parked at the residence. We hold the request in the affidavit supporting the application for the warrant reasonably sought a search of the residence and a search of the residence was properly authorized.

Considering the totality of the circumstances, as revealed in the complete affidavit, it was reasonable to seek authorization to search the residence. The affidavit detailed the circumstances under which Amanda’s body was found and the suspicious circumstances concerning Rodgers’ van, i.e., suspected blood in the van and clay on the tires similar to that seen at the railroad tracks. In light of the short time between Amanda’s body being found and officers seeing suspected blood in Rodgers’ van, and clay or mud on the van’s tires similar to that at the railroad tracks, and finding Rodgers at the residence where the van was parked, the magistrate signing the warrant only a few hours later could reasonably infer that blood, soil, or other evidence of the murder might have been transported from the van to the residence. A magistrate may make reasonable inferences from allegations in an affidavit applying for a search warrant. See Ramos, 934 S.W.2d at 363.

Rodgers’ search and seizure contentions are overruled.

Change of Venue

Before trial, Rodgers moved the court to change the venue of this case, asserting he could not get a fair trial in Wood County. He attached numerous newspaper articles in support of his motion. We review a trial court’s ruling on a motion for change of venue under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 150 (Tex.Crim.App.2001).

Rodgers was indicted in October 2001 for Amanda’s murder. According to his brief on appeal, he was also indicted that same month for aggravated sexual assault, alleged to have been committed on or about March 1, 2001. The change of venue issue in the instant case was argued in two hearings.

At the first hearing, held June 10, 2002, Rodgers presented witnesses who testified Rodgers had been unfairly prejudiced by media coverage of Amanda’s death and Rodgers’ alleged involvement. Rodgers’ mother, Wanda McKnight, testified she had seen two or three television news broadcasts concerning her son’s case(s) and had spoken to between twenty-five and thirty people who had seen newspaper coverage of the case. She testified that Rodgers had not received a fair trial in his aggravated sexual assault case and that the fact Rodgers was black and Amanda white precluded a fair jury trial in Wood County. In its cross-examination, the State questioned McKnight regarding her own trial for murder in Wood County. McKnight further admitted she had not spoken to people throughout the county.

Rodgers’ uncle, Ronald Harris, whose sister (apparently McKnight) had pled guilty to murder in Wood County, believed the writers of the publications covering the case had already decided Rodgers was guilty. He felt that Rodgers would be tried by an all-white jury and that it was “still like the 60’s” in Wood County. He claimed the police in Mineóla picked on black people more than white people.

Rodgers presented a family friend, James Gunter, who was a member of the Mineóla school board and was involved with helping underprivileged children. Although Gunter had not talked to anyone in most of the surrounding communities, he did not think that a black man married to a white woman could get a fair trial in Wood County. He did acknowledge it had been at least a year since he had heard any publicity about the case.

At the conclusion of this testimony, the trial court recessed the venue hearing until March 13, 2003. At that hearing, the State controverted Rodgers’ evidence with its own witnesses, including a banker and a retired law enforcement officer.

To justify a change of venue based on media attention, a defendant must show that the publicity about the case was pervasive, prejudicial, and inflammatory. Bell v. State, 938 S.W.2d 35, 46 (Tex.Crim.App.1996). The evidence presented at the venue hearings regarding the effect of the publicity in this case was conflicting. The trial court was free to evaluate the credibility of all the witnesses and their testimony. Because it was not clear that the media coverage was pervasive, prejudicial, and inflammatory, as required under Bell, we cannot say the trial court abused its discretion in denying Rodgers’ motion to change venue.

We further note that all the newspaper articles attached to Rodgers’ motion were published in the four months following Amanda’s death (June-October 2001). Rodgers’ trial was held about twenty-one months after Amanda’s death. Having reviewed these articles and the testimony of Rodgers and the State’s witnesses, we find the trial court was within its discretion in denying Rodgers’ motion for change of venue.

Lesser Included Offense

Rodgers complains the trial court erred in denying his request to have the jury instructed on the lesser offense of assault. To determine whether a charge on a lesser included offense should be given, we apply a two-step test. Mathis v. State, 67 S.W.3d 918, 925 (Tex.Crim.App.2002); see Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App.1985); Royster v. State, 622 S.W.2d 442, 444 (Tex.Crim.App. [Panel Op.] 1981) (plurality opinion). The first step is to decide whether the offense is a lesser included offense of the offense charged. See TexCode CRim. PROC. Ann. art. 37.09 (Vernon 1981); Mathis, 67 S.W.3d at 925. The second step of the test requires us to evaluate the evidence to determine whether there is some evidence that would permit a jury rationally to find that the defendant is guilty only of the lesser offense. Mathis, 67 S.W.3d at 925; Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App.2000); Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App.1998). Further, the evidence must establish the lesser included offense as a valid rational alternative to the charged offense. Wesbrook, 29 S.W.3d at 113 (citing Arevalo v. State, 943 S.W.2d 887, 889 (Tex.Crim.App.1997)).

A person commits murder if such person: (1) intentionally or knowingly causes the death of an individual; or (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. A person commits assault if such person “intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse.” Tex. Pen.Code Ann. § 22.01(a)(1) (Vernon Supp.2004-2005). The offense of assault also includes intentionally or knowingly threatening another, including the person’s spouse, with imminent bodily injury; or causing offensive or provocative physical contact with another person. Tex. Pen.Code Ann. § 22.01(a)(2), (3) (Vernon Supp.2004-2005). Article 37.09, in relevant part, states that an offense is a lesser included offense if “it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” Tex. Code CRIm. PROC. Ann. art. 37.09.

Assault can be a lesser included offense of murder. See Hayward v. State, 117 S.W.3d 5, 13 (Tex.App.-Houston [14th Dist.] 2003, pet. granted). Assault is established by proof of the same or less than all the facts required to establish that an appellant committed murder as charged in the indictment. See Tex.Code Crim. Proc. Ann. art. 37.09(1); Jacob v. State, 892 S.W.2d 905, 908-09 (Tex.Crim.App.1995).

There was no evidence that, if Rodgers was guilty of a crime, he was guilty only of assault. In fact, there was no evidence of assault. He argues it is possible Amanda was cut with the knife she borrowed from Rayburn. But there is no evidence of this. The medical examiner testified the cause of death was blunt force trauma. She said that such trauma was consistent with a person being hit by a train and that some of the injuries were consistent with her being run over by a motor vehicle such as a van. It was impossible to “separate out” whether death was caused by the train, the vehicle, or a combination of both.

Rodgers did not testify and presented no evidence raising the lesser included offense of assault. The trial court did not err in refusing the request for an instruction on a lesser included offense.

Donation of Jurors’ Compensation

Rodgers complains of the practice of the Wood County District Clerk in soliciting members of the jury panel to donate their juror pay to child and victim compensation funds. Rodgers concedes this Court has previously rejected these arguments (see Harvey v. State, 123 S.W.3d 623 (Tex.App.-Texarkana 2003, pet. ref'd)), and states he makes these points solely to preserve them for possible federal review. We decline to address these issues further. See also Ruckman v. State, 109 S.W.3d 524 (Tex.App.-Tyler 2000, pet. ref'd).

Denial of Additional Strikes

Rodgers makes only a cursory explanation of how his rights were violated by the trial court’s denial of additional strikes during jury selection. We find this issue inadequately briefed and decline to address it. See Tex.R.App. P. 38.1(h); Vuong v. State, 830 S.W.2d 929, 940 (Tex.Crim.App.1992).

Victim’s Statements

In a supplemental issue, Rodgers cites the United States Supreme Court’s recent holding in Crawford v. Washington and asserts that testimony of witnesses Rayburn and Wilson, relating statements of Amanda, violated the holding of that case and the Confrontation Clause. Crawford held that the Confrontation Clause in the Sixth Amendment to the United States Constitution barred from admission into evidence testimonial statements of a witness who did not appear for trial unless the witness was unavailable to testify and the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 52-53, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

Crawford “leave[s] for another day ... a comprehensive definition of ‘testimonial.’ ” Id. at 68, 124 S.Ct. 1354. However, the Court did note that “the term covers ... at a minimum ... prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and ... police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.” Id.

Rodgers complains that testimony from Wilson and Rayburn, relating statements made by Amanda within the two days before her death, were hearsay not permitted following Crawford. See Wiggins v. State, 152 S.W.3d 656 (Tex.App.-Texarkana 2004, no pet.). The statements of which Rodgers complains were made by the victim to a family member and a coworker before any possible prosecution of Rodgers and were not expected to be used in judicial proceedings. By definition, these statements were not testimonial and therefore do not implicate Crawford.

Conclusion

We affirm the judgment.

        . Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex.1995).

      . Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992).

      . Tex.Code Crim. Proc. Ann. art. 38.23 (Vernon Supp.2004-2005).

      . The State’s DNA expert testified that mitochondrial DNA analysis was performed on the hair samples found on the undercarriage of Rodgers’ van. Mitochondrial analysis does not yield the same "extremely definitive” results (i.e., identifying a source down to one in the billions or trillions) as nuclear DNA testing (which, for example, was used to identify Amanda's blood on Rodgers’ shoe). Mitochondrial analysis, though, is useful in analyzing hair or other specimens which may be damaged or may not be of sufficient quality to yield results under nuclear testing. Mitochondrial analysis can yteld a result identifying the donor to within one in a few thousand or ten thousand, according to the State's expert. In its brief before this Court, the State asserts that some of the hair was conclusively identified as Amanda’s. The witness stated there were "consistencies” between a sample of Amanda’s DNA and the hair found under Rodgers’ van, but he also testified he could not say the hairs from the van definitely came from the same source as the sample of Amanda's blood.

      . Tex.R. Evid. 703 provides:
      The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by, reviewed by, or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

      . Her father eventually identified the body.

      . His conviction for that offense was reviewed by this Court in a separate appeal. See Rodgers v. State, 111 S.W.3d 236 (Tex.App.-Texarkana 2003, no pet.).

      . The record is unclear as to the outcome of this trial approximately sixteen years before Rodgers’ trial. Based on later testimony from Rodgers’ uncle, it appears McKnight pled guilty to murder and was placed on probation.

      . Rodgers attached several other press clippings to his motion for new trial wherein he asked the trial court to reconsider its ruling on the change of venue. The additional articles attached to the motion for new trial consisted of some of the articles published in the few months following Amanda's death, articles leading up to the trial and covering the trial, and several "docket call” articles interspersed through the intervening year and a half, simply containing the names of and charges filed against various defendants in Wood County.


source: Caselaw Access Project

author: KEM THOMPSON FROST, Justice.

license: Public Domain

text:
    Christine H. DE LAURENTIS, Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION a/k/a USAA, Appellee.
    No. 14-03-00164-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 31, 2005.

      Sheila Lee Haddock, Roger A. Rider, Houston, for appellant.
    Bruce E. Ramage, Dana T. Williams, Levon G. Hovnatanian, Houston, for appel-lee.
    Panel consists of Justices HUDSON, FOWLER, and FROST.
   OPINION ON MOTION FOR REHEARING

KEM THOMPSON FROST, Justice.

We overrule appellant Christine de Lau-rentis’s motion for rehearing. We withdraw the opinion issued in this case on September 30, 2004, and we issue the following opinion in its place.

This case arises from an insurance-coverage dispute between a policyholder who suffered mold damage to her apartment and an insurer who denied coverage under a renter’s insurance policy. The policyholder sued the insurer asserting a breach-of-contract claim as well as various extraeontractual claims. The trial court granted summary judgment in favor of the insurer. At issue is whether the policyholder’s claim for mold damage that purportedly resulted from a leaking air conditioning unit in her apartment is covered under her renter’s insurance policy. We find coverage for any such damage for which causation is ultimately established, and reverse and remand in part on this issue. However, we affirm the trial court’s judgment as to the extraeontractual claims.

I. Factual and ProceduRal Background

In August of 2000, appellant/plaintiff Christine H. de Laurentis (“Policyholder”) purchased a renter’s insurance policy from United Services Automobile Association a/Va USAA (“Insurer”). The Insurer used a Texas Homeowner’s Policy Form B-T (“HOB-T”) in issuing the policy. The following month, the Policyholder discovered the air conditioning unit in her apartment was leaking water into the closet of her bedroom, and black mold was growing on one wall of the closet. The apartment complex purportedly repaired the leak and the damage.

In June of 2001, the Policyholder concluded that the mold had not been remedi-ated and, in fact, had spread throughout her apartment. She filed a claim with the Insurer, seeking compensation under her renter’s insurance policy for temporary residence and for remediation of her furniture, art work, clothing, and other personal belongings.

The Policyholder asked the City of Houston to test her apartment for mold in July of 2001. The ambient air in the Policyholder’s apartment tested within the normal acceptable range. However, swab samples taken throughout the apartment isolated two fungal items: stachybotrys and penicillium. The Policyholder’s belongings and the wall of her closet, which previously had exhibited mold, were not tested. A swab sample taken from another wall of the same closet showed no indications of mold.

In pursuing her claim, the Policyholder spoke to Brenda Essex, a representative of the Insurer, on two occasions before Essex sent a claims investigator to the Policyholder’s apartment. Essex informed the Policyholder during both telephone conversations that her claim would be denied, stating as a basis for the denial that mold is not a named peril in the Policyholder’s HOB-T policy. Candace Shook, a claims investigator for the Insurer, went to the Policyholder’s apartment on July 19, 2001, and determined from the apartment complex that there had been a leak in the air conditioning system. While at the Policyholder’s apartment, Shook acknowledged the claim, and on behalf of the Insurer, she offered to pay for what had been damaged by the water. Shook told the Policyholder during the inspection that the mold damage was specifically excluded by the HOB-T policy. That same day, Shook sent the Policyholder a letter reiterating that mold was specifically excluded by the HOB-T policy. However, in the letter Shook informed the Policyholder that the Insurer would pay for damage to any items that had gotten wet from the leak. Additionally, Shook’s letter stated that, because the apartment complex had requested the Policyholder to move to another unit so that workers could make additional repairs necessitated by the water damage, the Insurer would cover the expenses associated with a move to another apartment. Shook subsequently sent another letter to the Policyholder’s attorney, advising that the Insurer did not believe the HOB-T policy covered any damage that may have been caused by the mold. In order to process the Policyholder’s claim, Shook sent a letter on August 30, 2001, requesting the Policyholder to provide an inventory of personal property damaged by water. The Policyholder did not provide an inventory.

The Policyholder sued the Insurer for breach of the insurance policy and asserted various extracontractual claims, including a claim for bad faith handling of her insurance claim. The parties filed cross-motions for summary judgment, each asking the trial court to interpret the relevant policy provisions as a matter of law. The Policyholder sought partial summary judgment on the issue of coverage; the Insurer sought dismissal of the Policyholder’s breach-of-contract and extracontractual claims. The Insurer asserted the following grounds in its motion for final summary judgment:

(1) The Policyholder’s failure to comply with the HOB-T policy conditions precludes coverage.
(2) The Policyholder’s breach-of-contract claim fails as a matter of law because there is no coverage under the HOB-T policy for mold damage to the Policyholder’s personal property.
(3) The Policyholder’s deposition testimony shows that her extraeontractual claims fail as a matter of law.
(4) The Policyholder’s extracontractual claims are barred as a matter of law because a bona fide coverage dispute exists.

The trial court denied the Policyholder’s motion, granted the parts of the Insurer’s motion seeking dismissal of the extraeon-tractual claims, and denied the parts of the Insurer’s motion seeking dismissal of the breach-of-contract claim. Both parties filed motions for reconsideration. In her motion for reconsideration, the Policyholder asked the trial court to set aside its dismissal of her extracontractual claims and to grant her prior motion for partial summary judgment as to her breach-of-contract claim. In its motion for reconsideration, the Insurer asked the trial court to stand by its dismissal of the extracon-tractual claims and to reverse its denial of the Insurer’s motion for summary judgment as to the breach-of-contract claim, so as to grant final summary judgment in favor of the Insurer as to the Policyholder’s claims. Upon reconsideration, the trial court vacated its previous order, granted the Insurer’s motion for final summary judgment, and entered a final judgment dismissing all of the Policyholder’s claims.

II. Issues Presented

On appeal, the Policyholder presents the following issues:

1.Contract Interpretation. The Policyholder’s insurance contract provides coverage for a “physical loss” that is “caused by” the “accidental discharge, leakage or overflow of water” from an “air conditioning system” unless “the loss is specifically excluded.” Did the trial court err in refusing to find coverage as a matter of law for mold damage the Policyholder claims was caused by an air conditioner water leak?
2. Waiver of Condition Precedent. May the Insurer avoid liability for wrongfully denying the Policyholder’s claim simply because the Policyholder did not present an itemized list of damaged property when the Insurer rejected the Policyholder’s claim immediately and without investigation, contending that mold was not a covered peril under the HOB-T policy?
3. Extracontractual Claims. If this court construes the policy language at issue to provide coverage for the Policyholder’s claimed loss, is the Policyholder entitled to have her extracontractual claims considered by a jury because the issue presented — whether an insurer is hable in damages for denying a claim after its liability has become reasonably clear — is a question of fact rather than law?

III. STANDARD OF REVIEW

Although the Policyholder asks this court to review the trial court’s denial of her motion for partial summary judgment, this ruling is not before us because that motion did not seek a final judgment. See CU Lloyd’s of Tex. v. Feldman, 977 S.W.2d 568, 569 (Tex.1998) (stating that, before a court of appeals may review an order denying a cross-motion for summary judgment not covered by an interlocutory appeal statute, both parties must have sought final judgment in their cross-motions for summary judgment, unless an exception applies that is not applicable to the instant case).

In reviewing the Insurer’s motion for summary judgment, we take as true all evidence favorable to the Policyholder, and we make all reasonable inferences in her favor. See Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). If the Insurer’s motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the Policyholder to raise a genuine, material fact issue sufficient to defeat summary judgment. See id. Because the trial court’s order granting summary judgment does not specify the grounds for its ruling, we must affirm summary judgment if any of the summary-judgment grounds are meritorious. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000).

IV. Non-Waiver of Condition Precedent

In her second issue, the Policyholder asserts the trial court erred in granting summary judgment based on the Insurer’s argument that, because the Policyholder failed to comply with a condition precedent in her HOB-T policy, she is precluded from suing for breach of the insurance contract. Specifically, the Insurer states that the Policyholder failed to provide the company with a written inventory of the damaged personal property. The Insurer claims the Policyholder’s failure prevented the Insurer from inspecting the damaged property and determining whether the Policyholder had sustained a physical loss from a named peril in her policy. The Policyholder argues that the evidence reflects the Insurer did not deny her claim because she failed to meet any condition precedent in the policy, but simply because she claimed her losses were mold-related.

The HOB-T policy, under the heading of “Section I — Conditions,” and subheading of “Duties After Loss,” states:

a. Your Duties After Loss. In case of a loss to covered property caused by a peril insured against, you must:
(1) give prompt written notice to us of the facts relating to the claim.
(4) furnish a complete inventory of damaged personal property showing the quantity, description and amount of loss. Attach all bills, receipts and related documents which you have that justify the figures in the inventory.

The Insurer’s agents told the Policyholder that only water-damaged property — items that actually got wet — would be covered under the HOB-T policy. The Insurer admits its representatives told the Policyholder that her claim for recovery of mold-damaged property would be denied on the stated ground that mold was not a covered peril under her policy.

The provisions of an insurance policy regarding an insured’s duties after a loss- are for the benefit of the insurance company. See Sanders v. Aetna Life Ins. Co., 146 Tex. 169, 205 S.W.2d 43, 44-45 (1947) (discussing this principle in the context of notices and proofs of loss). But, an insurer’s denial of a claim before the deadline for presenting the required proof of loss (or other documentation) waives that requirement as a matter of law. Id. (finding that, because the insurer denied the claim before the deadline to submit proofs of continued total and permanent disabilir ty, the insurer waived that requirement because nothing occurred after the denial that “would indicate to [the insured] that the submission of further proofs of loss would be more than an idle formality”); see also North River Ins. Co. v. Pomerantz, 492 S.W.2d 312, 313 (Tex.App.-Houston [14th Dist.] 1973, writ refused n.r.e.) (stating that “[a] denial of liability by the insurance company within the period allowed for filing proof of loss, on grounds other than the failure to submit proof of loss, constitutes waiver of this requirement”). However, “[i]t is a well-known principle in this class of cases that the acts relied on as constituting a waiver should be such as are reasonably calculated to make the assured believe that a compliance on his part with the stipulations providing the mode of proof of loss, and regulating the appraisement of the damage done, is not desired, and that it would be of no effect if observed by him.” Scottish Union & Nat’l Ins. Co. v. Clancey, 83 Tex. 113, 18 S.W. 439, 440-41 (1892); see also North River Ins. Co., 492 S.W.2d at 314. This court has held that it is of no consequence “whether the insurance company informs the insured that the claim absolutely will not be paid or simply indicates that it is not planning to pay the claim unless some new development arises.” See North River Ins. Co., 492 S.W.2d at 313. It is enough that the actions of the insurance company would reasonably lead the insured to believe that the company is not going to pay the claim because of some reason other than failure to file the required proof of loss. Id. at 314. The Insurer recognizes this rule of law, but contends it merely mentioned during oral conversations with the Policyholder that the HOB-T policy did not include mold as a named peril. The Insurer argues there is no evidence that it denied the Policyholder’s claim under the named peril she was asserting-physical loss caused by the accidental discharge, leakage, or overflow of water from within an air conditioning system.

The record does not support the Insurer’s argument. The Insurer’s representatives told the Policyholder on multiple occasions that the claim for her mold-damaged property would be denied. Shook repeatedly informed the Policyholder that the Insurer would pay only for damaged items that actually got wet. Nothing in the record indicates the Policyholder reasonably would have' considered the completion of the inventory to be anything more than an idle formality. The Insurer asserts that the Policyholder nonetheless should have completed and returned the inventory of loss its representative requested if the Policyholder truly believed that the mold was caused by leaking water and the alleged damage was thus covered under her HOB-T policy. Essentially, the Insurer argues that the Policyholder should have completed the inventory if she believed the claim to be covered despite the Insurer’s unequivocal statements, both orally and in writing, that the claim would be denied.

Waiver of a condition precedent is evaluated according to what the insured reasonably would have thought under the circumstances. Id. For the reasons noted, a reasonable policyholder would have considered the filing of an inventory an exercise in futility. Moreover, the inventory the Insurer sought was not a complete inventory of the Policyholder’s damaged property, but an inventory of personal items that actually got wet, which logically would have excluded the property the Policyholder claimed was damaged by mold.

We conclude the Insurer waived the requirement for the personal property inventory when it informed the Policyholder that mold was not covered under her policy and that the Insurer would pay only for items that got wet. The condition precedent having been waived, the Policyholder is not barred from recovery in a suit for breach of the insurance contract. Accordingly, we sustain the Policyholder’s second issue.

V. CONSTRUCTION AND INTERPRETATION of The Policy

In her first issue, the Policyholder asserts the trial court erred in finding no coverage as a matter of law under the insurance policy. Texas courts interpret insurance policies according to the rules of contract construction. Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.1998). In applying these rules, our primary concern is to ascertain the parties’ intent as expressed in the language of the policy. See id. at 464. In determining the intention of the parties, we look only within the four corners of the insurance agreement to see what is actually stated, not what was allegedly meant. See Esquivel v. Murray Guard, Inc., 992 S.W.2d 586, 544 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). We must give effect to all contractual provisions so that none will be rendered meaningless. Kelley-Coppedge, 980 S.W.2d at 464. If the policy language is worded so that it can be given a definite or certain legal meaning, it is not ambiguous, and we construe it as a matter of law. See id. at 464; cf. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983) (holding that a contract is “ambiguous when its meaning is uncertain and doubtful or it is reasonably susceptible to more than one meaning”). Whether a contract is ambiguous is a question of law. Kelley-Coppedge, 980 S.W.2d at 464. An ambiguity does not arise simply because the parties offer conflicting interpretations. Id. at 465.

A. The Operative Policy Provisions

The Policyholder, as the insured, asserted a first-party claim under her HOB-T policy. A first-party claim sounds in contract and thus is determined by the terms of the insurance agreement between the insurer and the insured. Under the heading of “Section I — Perils Insured Against,” and subheading of “Coverage B (Personal Property),” the insuring agreement states in pertinent part:

We insure against physical loss to the property described in Section I Property Coverage B (Personal Property) caused by a peril listed below, unless the loss is specifically excluded....
9. Accidental Discharge, Leakage or Overflow of Water or Steam from within a plumbing, heating or air conditioning system or household appliance.

The parties dispute whether the policy language obligates the Insurer to pay the Policyholder for mold damage purportedly caused by a leaking air conditioning unit in the Policyholder’s apartment. The Policyholder contends the apartment’s air conditioning system leaked and caused mold to grow and spread throughout her apartment. The mold allegedly damaged the Policyholder’s personal belongings, furniture, art work, and clothing. Thus, she alleges facts that would trigger coverage if the HOB-T policy covers such damage.

The Insurer contends the Policyholder’s claim for purported mold damage to her personal property is not covered because no named peril for “mold” was included in her HOB-T policy. Therefore, the Insurer argues, the Policyholder’s real claim is that mold — not the accidental discharge of water by the air conditioning system— caused her damage. Must mold be specifically identified as a named peril in the HOB-T policy for coverage to exist? Or, does coverage exist because the Policyholder alleges a “physical loss” caused by a peril named in the policy? To resolve this issue, we must determine the meaning of the operative policy language. No Texas court has addressed this precise issue in construing the language of the standard HOB-T policy.

B. The Meaning of the Policy Language

The HOB-T policy is a named-perils policy that covers “physical loss to the property ... caused by a named peril.” It is helpful to our analysis to characterize the perils contributing to the loss and to determine which perils are covered and which are excluded. The accidental discharge, leakage, or overflow of water from within an air conditioning system is a named peril. Because the HOB-T policy is a named-perils policy, all perils not specifically included in the policy are excluded from coverage. See Ingersoll-Rand Fin. Corp. v. Employers Ins. of Wausau, 771 F.2d 910, 912 (5th Cir.1985) (applying Louisiana law).

If there is a single guiding principle that governs our interpretation of the insurance policy, it is to give effect to the parties’ intent as expressed in the policy’s plain language. See Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex.1994). The HOB-T policy does not define the terms “physical loss” or “caused by” so we look to the plain meaning of these undefined terms. “Loss” signifies “the act of losing or the thing lost; it is not a word of limited, hard and fast meaning and has been synonymous with or equivalent to, ‘damage’.... ” Black’s Law Dictionaby 945 (6th ed.1990) (stating that “loss” in an insurance policy “means a state of fact of being lost or destroyed, ruin or destruction.”). A physical loss is simply one that relates to natural or material things. See WEBSTER’S THIRD NEW Int’l DlCT. 1706 (1993) (defining “physical” as “of or relating to natural or material things as opposed to things mental, moral, spiritual, or imaginary”). “Caused” is defined as “to serve as cause or occasion of: bring into existence: make,” and “cause” is defined as “something that occasions or effects a result: ... something that ... produces a phenomenon.” Webster’s Third New Int’l Dict. at 356. Applying the plain meaning of the policy language, we conclude that the policy covers tangible damage to the Policyholder’s personal property by water leaking from an air conditioning unit. Such water leaks can produce mold damage — a tangible loss to the Policyholder’s personal property. Therefore, the policy’s plain language, when read in context, giving effect to all contractual provisions, is unambiguous and requires payment for mold damage caused by a leaking air conditioning unit.

This plain-language interpretation is supported by case law. The Tenth Court of Appeals has discussed potential coverage under a different insurance policy by distinguishing between a “physical loss” and a “direct physical loss.” See Travelers Indem. Co. v. Jarrett, 369 S.W.2d 653 (Tex.App.-Waco 1963, no writ). In Travelers, the court stated:

Where insurance against property damage is only against “direct” loss by lightning it has been said the quoted term means “immediate” or “proximate,” as distinguished from remote or incidental causes. But a provision insuring against “loss or damage caused by lightning” renders the insurer liable for all known effects of lightning, “and includes all loss or damage which results as a direct and natural consequence of the lightning, notwithstanding other incidental agencies may be incidental in adding to the loss or damage.”

Id. at 655 (quoting 11 Couch, Insurance 2d, §§ 42.355, 42.357) (emphasis added). Thus, Texas courts have determined that a physical loss, as opposed to a direct physical loss, includes the natural consequences of the named peril. Additionally, the United States Supreme Court has determined that all consequences naturally flowing from a peril insured against are properly attributable to the peril. Lanasa Fruit S.S. & Importing Co. v. Universal Ins. Co., 302 U.S. 556, 565, 58 S.Ct. 371, 375, 82 L.Ed. 422 (1938).

A case from the state of Washington illustrates this principle. See Bowers v. Fanners Ins. Exch., 99 Wash.App. 41, 991 P.2d 734 (2000). In Bowers, the insurance company denied coverage for mold damage when the insured’s rental house was damaged after tenants converted the house into a hothouse for growing marijuana. Id. at 735. As a part of the operation, all heat in the house was diverted to the basement. Id. at 736. As a result of the operation, mold grew throughout the house. Id. The insurance company refused to compensate the insured for her mold-related damage, contending mold was excluded under the policy. The insured argued that the cause of her damage was not the mold, but the vandalism of her tenants, a covered peril. The Bowers court held that “[h]ere, there can be no reasonable difference of opinion regarding the cause of [the insured’s] loss. It was the tenants’ acts, which ‘in an unbroken sequence ... [produced] the result for which recovery is sought[.]’ ” Id. at 738.

The Insurer argues, however, that mold damage cannot be covered under the HOB-T policy. It contends that a named-perils policy excludes all risks not specifically included in the insurance contract, and because mold is not a named peril- in the policy, mold is excluded from coverage. The Insurer’s argument ignores the undeniable fact that mold can be damage. We do not share the Insurer’s narrow view, but find that “mold may be either damage or a cause of loss, depending on the circumstances.” See Liristis v. Am. Family Mut. Ins. Co., 204 Ariz. 140, 61 P.3d 22, 25 (App.2002) (finding homeowner’s policy did not exclude mold damage caused by a covered event); see also Keenan v. Wausau Lloyds Ins. Co., No. 04-98-00087-CV, 1998 WL 652332, at *3 (Tex.App.-San Antonio Sept. 23, 1998, no pet.) (not designated for publication) (holding that homeowner’s named-perils policy covered cost for accessing defectively constructed plumbing lines after named peril caused damage to homeowner’s property); Kemmerer v. State Farm Ins. Co.’s, No. 01-5445, 2004 WL 87017, at *2 (E.D.Pa. Jan. 19, 2004) (holding that “[i]f the leak from the powder room caused the mold infestation, that leak would fall within the peril [sudden and accidental discharge or overflow of water] outlined in the homeowner’s insurance policy.”); Prudential Prop. & Cas. Ins. Co. v. Lillard-Roberts, No. CV-01-1362-ST, 2002 WL 31495830, at *9-10 (D.Or. June 18, 2002) (finding that, in a named-perils policy,' the “accidental discharge or overflow of water” peril provided for coverage of physical mold damage caused by a water leak).

If a named peril — the accidental discharge, leakage, or overflow of water from within an air conditioning system — caused the alleged mold, the damage could be a physical loss covered under the HOB-T policy because this type of damage was not specifically excluded from coverage in the policy. Accordingly, we sustain the Policyholder’s first issue to the extent that it asserts that the trial court erred in granting the Insurer’s motion for summary judgment as to the breach-of-contract claim. We reverse the part of the trial court’s judgment that granted summary judgment in favor of the Insurer as to the breach-of-contract claim, and we remand to the trial court for further proceedings consistent with this opinion.

VI. The Extracontractual Claims

In her third issue, the Policyholder asserts that the Policyholder is entitled to have her extracontractual claims considered by a jury because the issue of whether an insurer is liable for denying a claim after its liability has become reasonably clear is a question of fact rather than law. In analyzing the Policyholder’s third issue, we address the following: (1) whether, under all circumstances, her extracontractual claims stand or fall along with her breach-of-contract claim; and (2) whether the Policyholder has negated the Insurer’s third ground for summary judgment regarding her deposition testimony and her extraeon-tractual claims.

A. Do the Policyholder’s extracontrac-tual claims always stand or fall along with her breach-of-contract claim?

The Policyholder asserts that her breach-of-contract claim and extracontrac-tual claims must stand or fall together and that this court’s reversal of the trial court’s summary judgment in favor of the Insurer as to the contract claim necessarily requires a reversal of the trial court’s dismissal of the extracontractual claims. The Policyholder cites no cases that stand for this proposition.

First, it is important to recognize that this court has not determined that the alleged physical damage to the Policyholder’s personal property is covered by the insurance policy in question. Rather, we have held that the trial court erred in granting summary judgment as to the breach-of-contract claim based on the grounds asserted in the Insurer’s motion for summary judgment. On remand, the Policyholder still must prove physical loss, not specifically excluded, to her personal property caused by a named peril in her policy. For example, if the Policyholder can prove that her alleged mold damage constitutes a physical loss to her personal property caused by an accidental discharge, leakage, or overflow of water or steam from within a plumbing, heating, or air conditioning system or household appliance, then the Policyholder may be able to recover on her breach-of-contract claim. However, our ruling in this appeal has nothing to do with evidence, if any, that exists to prove the Policyholder’s breach-of-contract claim.

Second, there is a significant distinction between an insurer’s potential liability to pay an insured as to claims allegedly covered by its insurance policy and the insurer’s potential liability for extracontractual claims such as a claim for bad faith. See Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 17-18 (Tex.1994). Simply reversing a trial court’s summary judgment as to a coverage claim does not necessarily mean that the trial court’s summary judgment as to the extracontractual claims must be reversed. See, e.g., Emmert v. Progressive County Mut. Ins. Co., 882 S.W.2d 32, 35-36 (Tex.App.-Tyler 1994, writ denied) (reversing trial court’s summary judgment in favor of insurer as to coverage issue, affirming summary judgment as to extra-contractual claims, and rejecting insured’s argument that a reversal of summary judgment as to coverage, by itself, raises a material fact issue requiring a reversal of summary judgment as to extracontractual claims). Therefore, we reject the Policyholder’s argument that this court’s reversal of the trial court’s summary judgment as to the breach-of-contract claim creates a fact issue and requires reversal as to her extracontractual claims.

B. Has the Policyholder negated the Insurer’s third ground for summary judgment regarding her deposition testimony and her extracontractual claims?

Additionally, one of the grounds that the Insurer asserted in its motion for summary judgment is that the Policyholder’s deposition testimony shows that her extra-contractual claims fail as a matter of law. In her deposition, the Policyholder testified that the Insurer committed the following alleged wrongs:

(1)The Insurer did not test her belongings so that the Policyholder would know how contaminated they are.
(2) The Insurer did not offer to remediate her belongings.
(3) The Insurer continually denied her insurance claim.

On two occasions during her deposition, the Policyholder was asked if there was anything the Insurer had done wrong, other than refusing to test the Policyholder’s apartment and belongings for mold and refusing to pay for items that the Policyholder felt were damaged by mold. On both occasions, the Policyholder’s only addition to this list of alleged wrongs was that the Insurer also continually denied her insurance claim. The Insurer asserted in its motion for summary judgment that this testimony shows that the Policyholder’s extracontractual claims fail as a matter of law. .

On appeal, the Policyholder has not negated this ground for summary judgment. Therefore, on this basis alone, we can affirm the trial court’s summary judgment as to the extracontractual claims. See Lewis v. Adams, 979 S.W.2d 831, 833 (Tex.App.-Houston [14 Dist.] 1998, no pet.) (holding that summary judgment must be affirmed if there were multiple grounds for summary judgment and the appellant does not attack all grounds on appeal). Furthermore, the • Policyholder attached no evidence to her response in opposition to the Insurer’s motion for summary judgment. The Policyholder’s response contains only the following arguments as to the extracontractual claims: (1) if the trial court grants plaintiffs motion for partial summary judgment, then the Insurer’s position in this litigation was merely pretextual, and (2) the Insurer’s argument that mold is not a covered peril is intellectually dishonest because the Policyholder has pleaded that mold was the damage that was caused by the covered peril. Even if the Policyholder had negated this summary-judgment ground on appeal, we still would conclude that the Policyholder’s deposition shows that her extracontractual claims fail as a matter of law. See United States Fire Ins. Co. v. Williams, 955 S.W.2d 267, 268-69 (Tex.1997).

For the above reasons, we conclude the trial court properly granted summary judgment as to the Policyholder’s extra-contractual claims. Accordingly, we overrule the Policyholder’s third issue.

VII. Conclusion

The trial court erred in granting summary judgment as to the Policyholder's breach-of-contract claim insofar as its ruling was based on the Policyholder’s failure to present an itemized list of damaged property and based on the alleged absence of coverage as a matter of law for mold damage to the Policyholder’s personal property. The Policyholder’s extracon-tractual claims do not necessarily stand or fall along with her breach-of-contract claim. Further, the Policyholder has not negated the Insurer’s third ground for summary judgment regarding her deposition testimony and her extracontractual claims. Accordingly, the trial court properly granted summary judgment as to those claims. We reverse the trial court’s judgment to the extent it dismissed the Policyholder’s breach-of-contract claim, and we sever and remand that claim for further proceedings consistent with this opinion.

      . In her motion for rehearing, the Policyholder asserts for the first time that the trial court’s final judgment did not dismiss her extracontractual claims on the merits but rather dismissed them as being moot based on the parties' motions for reconsideration. The Policyholder asserts that the trial court’s judgment implicitly dismissed these claims as moot based on its granting of the Insurer’s motion for summary judgment as to coverage with the understanding that the extracontrac-tual claims would be revived automatically and reinstated upon reversal of the trial court’s coverage ruling by an appellate court. However, nothing in the record, including the parties’ arguments in their motions for reconsideration, indicates that the Policyholder ever nonsuited, conditionally withdrew, or asked the trial court to conditionally dismiss or abate her extracontractual claims. The trial court did withdraw its prior order and did state that its ruling was based, in part, on the parties’ representations that there are no disputed issues of material fact in connection with the breach-of-contract claim. Nonetheless, based on the language of the trial court’s judgment, we conclude that the trial court granted the Insurer's motion for final summary judgment, without specifying the grounds, and dismissed all of the Policyholder's claims on the merits, rather than on any alleged mootness ground.

      . The Policyholder casts her issue as being conditioned on this court’s finding that the HOB-T policy provides coverage for her alleged loss. We interpret this issue to fairly include the same argument conditioned on a reversal of the trial court’s summary judgment, even if that reversal does not include a determination that the insurance policy provides coverage for the Policyholder’s alleged loss. See Tex.R.App. P. 3 8.1 (e).

      . As stated above, to the extent the Policyholder asserts the trial court erred in refusing to find coverage as a matter of law and grant her motion for partial summary judgment, this issue is not before us. See CU Lloyd’s of Tex., 911 S.W.2d at 569.

      . The Insurer argues in its appellate brief that the Policyholder never produced any summary-judgment evidence that proved or even implied (1) that any of the Policyholder’s belongings were ever contaminated by mold; or (2) that the source of any mold contamination was the purported air conditioning leak. However, neither party presented the issue of causation to the trial court; thus, the Policyholder had no obligation to present causation evidence at that time. The Insurer acknowledged at oral argument that the issue presented to the trial court was whether the Policyholder’s HOB-T policy would cover mold damage caused by a leaking air conditioning system, presuming the Policyholder is able to prove causation.

      . In this case, the parties rely on many cases addressing a mold exclusion clause and the definition of an "ensuing loss” provision, neither of which is at issue here. Thus, we conclude cases discussing the meaning of "ensuing loss” do not control our resolution of the issue now before us.

      .The Insurer filed a motion in this court asking us to strike an improper inclusion in the Policyholder’s September 17, 2003 "Memorandum of Authorities.” The memorandum contained an unsigned, unverified “Texas Department of Insurance Exempt Filing Notification” concerning the adoption of amendato-ry mandatory endorsements, which was not in the record. Our review is confined to the evidence in the appellate record. See Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex.1979). Furthermore, it is improper for parties to rely on matters outside the record in making arguments to the court. See, e.g., Melendez v. Exxon Corp., 998 S.W.2d 266, 280 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (holding parties should confine their arguments and factual recitations to matters contained in the record). Therefore, we do not consider the improper item submitted by the Policyholder and confine our review to the appellate record.

      . The Insurer attempts to distinguish the Travelers case by arguing that the Policyholder has not demonstrated water was the actual cause of her mold damage. Again, causation was not an issue presented to the trial court; the relevant issue before the trial court was whether as a matter of law mold damage caused by a water leak would be covered under the HOB-T policy.

      . Citing Columbiaknit, Inc. v. Affiliated FM Ins. Co., No. 98-434-HU, 1999 WL 619100 (D.Or. Aug. 4, 1999), the Insurer argues that mold cannot be both a loss and a cause of a loss because the terms "peril” and "physical loss” have been defined differently. In Co-lumbiaknit, the court defined “perils” as "active forces which cause the loss of or damage to the insured property.” 1999 WL 619100, at *3. It held that the "requirement that the loss be physical' ... is widely held to exclude losses that are intangible ... [and precludes] any claim ... when the insured merely suffers a detrimental economic impact unaccompanied by a distinct, demonstrable, physical alteration of the property.” Id., at *4. However, nothing in the court’s ruling suggests that mold cannot at times operate as a peril and at other times as a physical loss. The court found merely that the clothing in the manufacturer’s inventory would not be considered a loss unless it was physically damaged by the mold — meaning that the claimant must first prove demonstrable damage from the mold before it could recover. Id., at *7 ("Goods need not have been water-soaked from the water intrusion to be covered. Fabric and garments in the [facility] that are moldy as a result ... of the water leak are covered property. ... Furthermore, fabrics and garments with a pervasive, persistent or noxious odor may also be physically damaged property.... Likewise, if the plaintiff establishes at trial a class of garments which has increased microbial counts and that will, as a result, develop either an odor or mold or mildew, these items may be covered as well.”).

      . As stated above, the Policyholder conditions her third issue on this court having construed the policy language to provide coverage for the Policyholder’s claimed loss. Even though this court has not determined whether the HOB-T policy covers the Policyholder’s alleged loss, we interpret the condition on the third issue to fairly include this court’s reversal of the trial court’s summary judgment as to the Policyholder’s breach-of-contract claim. Because we have reversed this part of the trial court’s summary judgment, we address the Policyholder’s third issue.

      . In the coverage portion of her summary-judgment response, the Policyholder did incorporate by reference into the response the "argument and authority cited in Plaintiff’s motion [for partial summary judgment].” However, this argument and authority does not relate to the extracontractual claims. Further, at no place in this argument and authority or in the Policyholder’s response ' does she incorporate by reference the evidence attached to her motion for partial summary judgment.

      . The Policyholder’s response in opposition as to the extracontractual claims reads in its entirety as follows:
      [Insurer’s] argument that there is no evidence of extracontractual causes of action because of the "bona fide dispute” rule is misplaced. If the Court were to grant [Policyholder's] motion for summary judgment which prior existing law regarding ensuing damage would dictate, then [Insurer’s] position throughout this litigation was merely pretextual in order to avoid paying this claim. Its argument that "mold is not a covered peril” is an intellectually dishonest [sic] in light of [Policyholder’s] pleading that mold was the damage that was caused by the covered peril.