text:
    ALERT SYNTEKS, INC. and R & T Sales Company, Inc., Appellants, v. JERRY SPENCER, L.P. and Spencer Distributing, L.P., Appellees.
    No. 12-02-00137-CV.
    Court of Appeals of Texas, Tyler.
    Oct. 29, 2004.

      Frank L. Supercinski, Longview, for appellant.
    Daniel F. Dean, Palestine, for appellee.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J. and DeVASTO, J.
   OPINION

DIANE DeVASTO, Justice.

R & T Sales Company, Inc. (“R & T”) appeals the trial court’s order granting Jerry Spencer, L.P.’s (“Spencer”) motion to appoint a receiver. R & T raises three issues on appeal. Alert Synteks, Inc. (“Alert”) appeals the trial court’s order granting injunctive relief against it and in favor of Spencer Distributing, L.P. (“Spencer Distributing”). Alert raises two issues on appeal. We dismiss for want of jurisdiction in part and reverse in part.

Background

Spencer entered into two construction contracts with R & T, who agreed to build two commercial buildings for Spencer in Richland Hills, Texas and Watauga, Texas respectively. Alert was one of several subcontractors working for R & T on the projects.

During the course of the project, Spencer received claims of unpaid bills from subcontractors on each project totaling more than $640,000.00. Among such claims was Alert’s claim for $75,846.70 for work it had performed on both buildings. Spencer had previously paid R & T $1,905,755.06 to be held in trust to pay subcontractors.

Spencer filed the instant suit seeking a declaratory judgment as to what amount it owed Alert and other subcontractors. Spencer further sought to have a receiver appointed for the assets of R & T. R & T and Alert, by separate pleadings, answered and each filed motions to transfer venue. Both motions to transfer venue were denied.

Subsequently, Alert made a demand to Spencer for $75,346.70 and related to Spencer that if the amount was not paid, Alert would sell certain fuel dispensers it had in its possession that were owned by a third party, Spencer Distributing. Thereafter, Spencer Distributing intervened in the lawsuit by way of Plaintiffs First Supplemental Petition claiming conversion and requesting that the trial court enjoin Alert from selling the gas dispensers.

On April 19, 2002, Spencer filed its Third Amended Original Petition. Neither Spencer Distributing nor its request for injunctive relief are referenced in this pleading. On April 30, 2002, the trial court conducted a hearing concerning Spencer Distributing’s request for injunc-tive relief against Alert as well as Spencer’s request to have a receiver appointed for the assets of R & T. At the hearing, Barry Thomas Swinney (“Swinney’), a representative for Spencer Distributing, testified as did Darren Mackey, a certified public accountant who worked for Spencer.

Following the hearing, the trial court granted both Spencer Distributing’s motion for injunctive relief and Spencer’s motion to appoint a receiver. This interlocutory appeal followed.

Motion to Transfer Venue

In its third issue, R & T argues that the trial court erred in refusing to grant its motion to transfer venue. In its brief, R & T contends that the instant case is controlled by Texas Civil Practice and Remedies Code chapter 64, which provides that any action governed by any other statute prescribing mandatory venue shall be brought in the county required by that statute. R & T further argues that the mandatory venue provision set forth in Section 64.071 of the Texas Civil Practice and Remedies Code requires that the instant case be transferred to the county of R & T’s principal office. Likewise, in its second issue, Alert argues that mandatory venue provisions deprived the trial court of jurisdiction to enter the temporary injunction against it.

No interlocutory appeal may arise from a trial court’s determination of proper venue. See Tex. Civ. PRAC. & Rem.Code § 15.064(a) (Vernon 2002); Bristol-Myers Squibb v. Barner, 964 S.W.2d 299, 301 (Tex.App.-Corpus Christi 1998, no pet.); Guardian Sav. & Loan Ass’n v. Williams, 731 S.W.2d 107, 108 (Tex.App.-Houston [1st Dist.] 1987, no writ); cf., Surgitek, Inc. v. Adams, 955 S.W.2d 884, 887 (Tex.App.-Corpus Christi 1997, pet. dism’d by agr.) (Section 15.003 of the Civil Practice and Remedies Code, which allows an interlocutory appeal to contest a trial court’s decision regarding joinder, did not authorize an interlocutory appeal of a denial of motion to transfer venue, even where the appeal also claimed improper joinder of plaintiffs who were allegedly unable to independently establish their right to bring suit in the county).

Here, both R & T and Alert seek to challenge the trial court’s ruling on their respective motions to transfer venue. Inasmuch as we lack jurisdiction concerning a trial court’s interlocutory ruling on a motion to transfer venue, we decline to consider both R & T’s third issue and Alert’s second issue.

Receivership

In its first issue, R ⅛ T contends that the trial court erred in ordering that a receiver be appointed because the underlying grounds for the trial court’s order were not properly supported by the evidence.

Section 7.04 or 7.05 Receivership

Initially, R & T contends that even though Spencer’s motion to appoint a receiver sought a receivership pursuant to Section 7.04 of the Texas Business Corporation Act, the trial court’s order, in fact, appointed a receiver in accordance with Section 7.05 of the Texas Business Corporation Act.

Under Section 7.04, a receiver may be appointed by any court having jurisdiction of the subject matter for specific corporate assets that are involved in litigation, whenever it is deemed by the court that circumstances exist that require the appointment of a receiver to conserve such assets and to avoid damage to parties at interest. See Tex. Bus. Corp. Act Ann. § 7.04(A) (Vernon 2003). However, a receiver may be appointed under Section 7.04 only if (1) all other requirements of law are followed and (2) other remedies available either at law or in equity are determined by the court to be inadequate. Id. Furthermore, a receiver may be appointed under Section 7.04 only in certain instances, which, in pertinent part, are as follows:

[B]etween partners or others ... interested in any property or fund, on the application of the plaintiff or any party whose right to or interest in the property or fund or the proceeds thereof is probable, and where it is shown that the property or fund is in danger of being lost, removed, or materially injured.
In any other actions where receivers for specific assets have heretofore been appointed by the usages of the court of equity.

See Tex. Bus. CoRP. Act Ann. § 7.04(A)(1), (3) (Vernon 2003).

On the other hand, Section 7.05 provides that a receiver may be appointed for the assets and business of a corporation by the district court whenever circumstances exist deemed by the court to require the appointment of a receiver to conserve the assets and business of the corporation and to avoid damage to the parties at interest. See Tex. Bus. CoRP. Act Ann. § 7.05(A) (Vernon 2003) (emphasis added).

In support of its argument that the trial court appointed a receiver pursuant to Section 7.05, R & T cites Humble Exploration Co., Inc. v. Fairway Land Co., 641 S.W.2d 934 (Tex.App.-Dallas 1982, writ ref'd n.r.e.). In Humble, the trial court’s order appointing a receiver directed the receiver to take possession of Humble, “including all its operations, business, affairs, properties, files, records, bank accounts, employees, facilities, real and personal property, interests, assets, liabilities, and any and all of its properties.” Id. at 938 (emphasis in original). Emphasizing further that the trial court’s order had appointed a receiver of Humble and its “assets and business[,]” the trial court concluded that the trial court’s order was necessarily an appointment relying upon Section 7.05.

R & T seeks to draw a parallel between Humble and the case at hand. Here, the trial court’s order appointing a receiver for R & T decreed, in pertinent part, as follows:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that WILLIS JARRELL, JR., ... is hereby appointed receiver of the assets, funds, actions, property, and records of R & T SALES COMPANY, INC., DEFENDANT ... [T]he receiver shall be authorized ... to do any and all acts necessary to the proper and lawful conduct of the receivership, including the following:
1. Secure and conserve all property of DEFENDANT R & T SALES COMPANY, INC., including personal property, real property, intangible property, and tangible property.
2. Trace and vouch all construction trust funds in the amount of $1,904,755.06 PAID BY PLAINTIFF JERRY SPENCER, L.P. to DEFENDANT R & T SALES COMPANY, INC. for construction of the Richland Hills and Watauga convenience stores that form the basis of [this] suit ...
3. Preserve all assets and records of DEFENDANT R & T ... and such other actions as may be necessary to protect all parties at interest and for the Court to make a determination of the rights of the parties to the assets, funds, and actions of DEFENDANT R & T ...
4. The receiver shall be empowered to do whatever is reasonably necessary to trace, find, and verify the full sum of approximately $1,905, 755.06 paid by PLAINTIFF JERRY SPENCER, L.P. to DEFENDANT R & T
5. The receiver shall have the authority to obtain monthly bank statements and monthly reconciliation statements for any and all financial institutions of DEFENDANT R & T ... for any period of time the receiver deems necessary. The receiver shall also have the authority to obtain all journal entries, monthly profit and loss statements, monthly balance sheets, monthly account receivables, data compilations, reviews, and/or audits for DEFENDANT R & T ... for any period of time the receiver deems necessary ... [T]he receiver shall have the power and authority to obtain any other records that the receiver may deem beneficial in accomplishing the goals of this Order.
6. The receiver shall have the right to employ legal counsel and expend reasonable attorneys [fees] from the $25,000.00 fund deposited in the registry of the court by the PLAINTIFF JERRY SPENCER, L.P. to file suit to pursue and effect the terms of this Order.
8. The receiver is authorized by the Court to employ accounting assistance in this matter, upon motion and order before the Court, to be paid by Plaintiff.
IT IS FURTHER ORDERED that money coming into the- possession of the receiver shall be held in trust by the receiver subject to such orders as this Court may hereafter issue.
IT IS FURTHER ORDERED that the receiver shall, upon location of assets, funds, property, and/or records or no later than 120 days from qualification of the receiver, file in this action an inventory of all property of which the receiver shall have taken possession. If the receiver subsequently comes into possession of additional property, the receiver shall file a supplemental inventory as soon as practical.

Based on our review of the trial court’s order, we conclude that the order in the instant case is distinguishable from the order in Humble. Here, the trial court’s order does not direct that there be a receiver of the business of R & T. Rather, the trial court’s order is restricted to R & T’s assets. As such, we hold that the trial court’s order appointing a receiver must conform to the requirements of Section 7.04.

Standard of Review

Since a receivership is an equitable remedy within the sound discretion of the court, an appointment will not be disturbed on appeal unless the record reveals an abuse of discretion. See Abella v. Knight Oil Tools, 945 S.W.2d 847, 849 (Tex.App.Houston [1st Dist.] 1997, no writ); see also Balias v. Balias, Inc., 748 S.W.2d 253, 256 (Tex.App.-Houston [14th Dist.] 1988, writ denied). We will reverse for abuse of discretion only when we conclude that the trial court acted in an unreasonable or arbitrary manner. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985). Stated somewhat differently, abuse of discretion occurs when a court acts “without reference to any guiding rules and principles.” Id. at 241-42. A corollary principle is that a court of appeals may not reverse for abuse of discretion merely because it disagrees with the trial court’s decision, so long as such a decision was within the court’s discretionary authority. See Beaumont Bank, N.A v. Buller, 806 S.W.2d 223, 226 (Tex.1991); Downer, 701 S.W.2d at 242.

Propriety of Trial Court’s Order Granting Receivership

To iterate, among the requirements that must be met before a trial court can appoint a receiver under Section 7.04 is that the trial court determine that other remedies available either at law or in equity are inadequate. See Tex. Bus. Corp. Act § 7.04(A); see also Associated Bankers Credit Co. v. Meis, 456 S.W.2d 744, 750 (Tex.Civ.App.-Corpus Christi 1970, no writ) (under Section 7.04, a receiver will not be appointed if the status of the property can be maintained and the rights of the applicant protected pending a hearing by the issuance of a restraining order or temporary injunction, or by any remedy less drastic than a receivership).

In the case at hand, Spencer offered no evidence at the hearing on its motion to appoint a receiver to support the trial court’s finding that other remedies available either at law or in equity were inadequate. No evidence of record supports that other methods which could potentially be employed to trace the missing funds, such as traditional discovery, had been attempted and failed or were otherwise unavailable. In fact, there is no indication in the record that any discovery had been attempted at the time the trial court granted Spencer’s motion. Moreover, the record is silent as to reasons why injunc-tive relief could not be employed to preserve assets or why monetary damages would not provide an adequate remedy. We hold that by granting Spencer’s motion to appoint a receiver where there was no evidence supporting its finding that other remedies available either at law or in equity were inadequate, the trial court abused its discretion. R & T’s issues one and two are sustained.

Injunction

In its first issue, Alert argues that the trial court abused its discretion by granting injunctive relief in favor of Spencer Distributing.

Amendment of Pleadings

Alert’s argument in support of its first issue is multifarious. Initially, Alert contends that the trial court improperly granted the injunction because (1) Spencer Distributing had been dismissed as a party, (2) the injunctive action against Alert had been abandoned, and (3) the injunctive relief was not supported by the pleadings. More specifically, Alert argues that Spencer Distributing was made a party to the instant lawsuit by virtue of Plaintiffs First Supplemental Petition filed on April 4, 2002. When, on April 19, 2002, Spencer filed its Third Amended Petition, which made no reference to Spencer Distributing or its claim for injunctive relief against Alert, Plaintiffs First Supplemental Petition, Alert argues, was no longer regarded as the pleading of record. Thus, Alert contends, Spencer Distributing was no longer a party, and its claim for injunctive relief was thereby abandoned. We disagree.

When a party’s name is omitted from an amended pleading, he is as effectively dismissed as where a formal order of dismissal is entered. Randolph v. Jackson Walker L.L.P., 29 S.W.3d 271, 274 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). However, Texas Rule of Civil Procedure 64 requires that the party amending point out the instrument amended, as “original petition,” or “plaintiffs first supplemental petition,” or as another instrument filed by the party and shall amend by filing a substitute therefor, entire and complete in itself, indorsed “amended original petition,” or “amended first supplemental petition,” accordingly as said instruments of pleading are designated. See Tex.R. Civ. P. 64.

In the case at hand, Alert, in essence, argues that Plaintiffs Third Amended Original Petition operated to supplant Plaintiffs First Supplemental Petition. Yet, in accordance with Rule 64, and the examples cited therein, Spencer has indorsed the pleading as the third amendment to its original petition. Any amendment to Plaintiffs First Supplemental Petition would, in accordance with the express example set forth in Rule 64, be indorsed as Plaintiffs First Amended First Supplemental Petition. Id. Nothing in the body of Plaintiffs Third Amended Original Petition, either express or implied,. causes us to conclude that Spencer sought to amend Plaintiffs First Supplemental Original Petition. Moreover, none of the cases cited by Alert support the proposition that a pleading designated as an amendment to a previously-filed original petition also served to amend a previously-filed supplemental petition. Thus, we conclude that (1) Spencer Distributing was not dismissed as a party at the time the trial court granted injunctive relief, (2) the injunctive action against Alert was not abandoned, and (3) the injunctive relief granted was supported by the pleadings.

Adequate Remedy at Law

Alert further contends that the trial court improperly granted Spencer Distributing injunctive relief because the record reflects that there existed an adequate remedy at law.

A trial court is clothed with broad discretion in determining whether to issue an injunction, and its order will be reversed only on a showing of a clear abuse of discretion. See Florence v. Florence, 388 S.W.2d 220, 224 (Tex.Civ.App.-Tyler 1965, writ dism’d). However, this general rule is not unlimited; it does not extend to the erroneous application of the law to the undisputed facts. Bank of the Southwest N.A. v. Harlingen Nat’l Bank, 662 S.W.2d 113, 115-16 (Tex.App.-Corpus Christi 1983, no writ). Furthermore, it is an, abuse of discretion for a trial court to issue a temporary injunction where no evidence that would support a temporary injunction was presented to the trial court. See Rogers v. Howell, 592 S.W.2d 402, 403 (Tex.Civ.App.-Dallas 1980, writ ref'd n.r.e.). A judgment issuing a writ of temporary injunction may not be made by affidavit, and thus a sworn petition does not constitute evidence supporting the trial court’s judgment. Id.; Millwrights Local Union No. 2484 v. Rust Engineering Co., 433 S.W.2d 683, 686 (Tex.1968).

An injunction will not be granted if there is an adequate and plain remedy at law. See McGlothlin v. Kliebert, 672 S.W.2d 231, 232 (Tex.1984); Bank of the Southwest, 662 S.W.2d at 116. For a legal remedy to be adequate, it must give the plaintiff complete, final, and equal relief. See Universal Health Servs., Inc. v. Thompson, 24 S.W.3d 570, 577 (Tex.App.Austin 2000, no pet.); Henderson v. KRTS, Inc., 822 S.W.2d 769, 773 (Tex.App.-Houston [1st Dist.] 1992, no writ); Bank of the Southwest, 662 S.W.2d at 116 (“The test for determining whether an existing remedy is adequate is whether such remedy is as complete and as practical and efficient to the ends of justice and its prompt administration as is equitable relief.”). For the purposes of injunctive relief, if damages cannot be calculated, or if the defendant will be unable to pay damages, there is no adequate remedy at law. Texas Indus. Gas v. Phoenix Metallurgical Corp., 828 S.W.2d 529, 533 (Tex.App.-Houston [1st Dist.] 1992, no writ); see Thompson, 24 S.W.3d at 577; Surko Enters., Inc. v. Borg-Warner Acceptance Corp., 782 S.W.2d 223, 225 (Tex.App.Houston [1st Dist.] 1989, no writ). Granting an injunction in the face of an adequate remedy at law is an erroneous abuse of the court’s discretionary powers. See Hancock v. Bradshaw, 350 S.W.2d 955, 957 (Tex.Civ.App.-Amarillo 1961, no writ).

In the case at hand, Swinney testified that each of the gas dispensers had a fair market value of eleven thousand dollars and that the total value of all of the dispensers allegedly converted was ninety-nine thousand dollars. Although Spencer Distributing pleaded that it “daily suffers losses from the non-possession of the ... gas dispensers[,]” and that “the property and rights involved are unique and irreplaceable[,]” there is no evidence of record to support such allegations. The record is further silent concerning any inability on the part of Alert to pay Spencer Distributing monetary damages. Moreover, Spencer Distributing has not argued in its brief that it was without an adequate remedy at law or that Alert was insolvent. Inasmuch as the only evidence of record reflects that the gas dispensers allegedly converted had a fixed and discernible fair market value, and further, considering that (1) there is no evidence that Spencer Distributing had suffered or would suffer losses resulting from the non-possession of the gas dispensers, (2) there is no evidence that the gas dispensers were unique and irreplaceable, and (3) there is no evidence suggesting that Alert was insolvent, we cannot conclude that Spencer Distributing’s remedy at law was inadequate. Thus, we hold that by granting an injunction in the face of an adequate remedy at law, the trial court abused its discretion. Appellant’s first issue is overruled in part and sustained in part.

Conclusion

We dismiss R & T’s third issue and Alert’s second issue for want of jurisdiction. Having sustained R & T’s issues one and two, we reverse and vacate the trial court’s order appointing a receiver for the assets of R & T. Having sustained Alert’s issue one in part, we reverse and dissolve the trial court’s order granting a temporary injunction against Alert. Accordingly, we remand this cause to the trial court for further proceedings consistent with this opinion.

      . Alert had Spencer Distributing's fuel dispensers in its possession because Spencer Distributing had Alert transport the dispensers from R & T’s warehouse.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(1), (4) (Vernon 2004-2005).

      . In support of its proposition, Alert cites to the following cases: Direkly v. Devcon, 866 S.W.2d 652 (Tex.App.Houston [1st Dist.] 1993, writ dism’d w.o.j.); Burton v. Bridges, 641 S.W.2d 635 (Tex.App.-El Paso 1982, writ refd n.r.e.); and Sparks v. Aetna Life and Casualty Co., 554 S.W.2d 228 (Tex.Civ.App.-1977, no writ).

      . A subsequent appeal of Thompson was ultimately reversed on unrelated grounds. See Universal Health Servs., Inc. v. Renaissance Women’s Group, P.A., 121 S.W.3d 742 (Tex.2003).


source: Caselaw Access Project

author: Chief Justice MORRISS.

license: Public Domain

text:
    Ex Parte David INFANTE.
    No. 06-04-00020-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Nov. 4, 2004.
    Decided Nov. 5, 2004.

      Mark Breding, Crumley and Breding, Quitman, for appellant.
    Henry Whitley, Special Assistant District Attorney, Marcus D. Taylor, District Attorney, Quitman, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

David Infante appeals the trial court’s denial of his pretrial application for writ of habeas corpus. A jury recently acquitted him of aggravated sexual assault. Infante now asks us to bar the State from prosecuting him in five remaining cases (in which the charges range from indecency with a child to aggravated sexual assault) because he was acquitted on the other charge. Based on the record before us and the applicable law, we affirm the trial court’s judgment.

I. Factual and Procedural Background

On August 2, 2001, a grand jury charged Infante in cause number 16,841-2001-A with the aggravated sexual assault of S.I., a child. See Tex. Pen.Code Ann. § 22.021 (Vernon Supp.2004-2005). More specifically, the indictment in 16,841-2001-A alleged,

that on or about the 25th day of May A.D. 2001, and before the presentment of this indictment, in the County and State aforesaid, DAVID INFANTE, hereinafter styled Defendant, did then and there intentionally and knowingly cause the mouth of [S.I.], a child who was then and there younger than 14 years of age and not the spouse of the defendant, to contact the sexual organ of the defendant, against the peace and dignity of the State.

The grand jury also indicted Infante in four other cases. In 16,842-2001-A, the indictment charged him with aggravated sexual assault and alleged,

that on or about the 25th day of May A.D. 2001, and before the presentment of this indictment, in the County and State aforesaid, DAVID INFANTE, hereinafter styled Defendant, did then and there intentionally and knowingly cause the sexual organ of [S.I.], a child who was then and there younger than 14 years of age and not the spouse of the defendant, to contact the mouth of the defendant, against the peace and dignity of the State.

In 16,843-2001-A, Infante was also charged with aggravated sexual assault, and that indictment alleged,

that on or about the 11th day of May A.D. 2001, and before the presentment of this indictment, in the County and State aforesaid, DAVID INFANTE, hereinafter styled Defendant, did then and there intentionally and knowingly cause the penetration of the female sexual organ of [S.I.], a child who was then and there younger than 14 years of age and not the spouse of the defendant, by defendant’s finger, against the peace and dignity of the State.

In 16,844-2001-A, the grand jury charged Infante with indecency with a child. See Tex. Pen.Code Ann. § 21.11(a)(2) (Vernon 2003). More specifically, that indictment alleged,

that on or about the 27th day of April A.D. 2001, and before the presentment of this indictment, in the County and State aforesaid, DAVID INFANTE, hereinafter styled Defendant, did then and there, with intent to arouse and gratify the sexual desire of said defendant, intentionally and knowingly engage in sexual contact with [S.I.], by touching the female sexual organ of [S.I.], a child younger than 17 years of age and not the spouse of the defendant, against the peace and dignity of the State.

In 16,845-2001-A, Infante was also charged with indecency with a child by sexual contact, and that indictment alleged,

that on or about the 27th day of April A.D. 2001, and before the presentment of this indictment, in the County and State aforesaid, DAVID INFANTE, hereinafter styled Defendant, did then and there, with the intent to arouse and gratify the sexual desire of said defendant, intentionally and knowingly engage in sexual contact with [S.I.], by touching the anus of [S.I.], a child younger than 17 years of age and not the spouse of the defendant, against the peace and dignity of the State.

On January 16, 2002, another grand jury returned a sixth indictment against In-fante in cause number 17,046-2002-A. This indictment charged Infante with “intentionally and knowingly eaus[ing] the anus of [S.I.], a child who was then and there younger than 14 years of age and not the spouse of the defendant, to contact the mouth of the defendant, against the peace and dignity of the State.” The alleged offense occurred May 25, 2001.

After the jury acquitted Infante of aggravated sexual assault in 16,843-2001-A, Infante filed a pretrial application for writ of habeas corpus seeking to bar the State from further prosecuting him on the remaining charges. See TexCode Crim. Proc. Ann. art. 11.08 (Vernon 1977). The trial court denied relief. Infante now appeals.

II. Standard of Review

Usually, the decision to grant an application for writ of habeas corpus “lies within the discretion of the trial court, and the exercise of that discretion will not be disturbed unless clearly abused.” Ex parte Pipkin, 935 S.W.2d 213, 215 (Tex.App.-Amarillo 1996, pet. refd). But the abuse of discretion standard is not appropriate if the trial court’s decision regarding a habeas application does not turn on witness credibility or demeanor. Ex parte Mann, 34 S.W.3d 716, 718 (Tex.App.-Fort Worth, no pet.). In such a case, the appellate court must review de novo the trial court’s application of law to facts. Id. The standard of review is altered from reviewing for abuse of discretion because the trial court is not in an appreciably better position than the appellate court to determine the correct application of law to facts. Id. (citing Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App.1997)); see also Ex parte Nagle, 48 S.W.3d 213, 215-16 (Tex.App.-San Antonio 2000, no pet.). In the case now before us, the trial court’s decision to deny relief did not turn on witness credibility. Accordingly, we will review the trial court’s ruling under the de novo standard.

III. Collateral Estoppel

Infante first contends the doctrine of collateral estoppel, as set forth in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), precludes prosecution of the remaining charges. Infante essentially argues that the previous acquittal forecloses his identity as the perpetrator of any type of sexual abuse against S.I. According to Infante, because the jury acquitted him, it necessarily concluded he was not the perpetrator and, therefore, cannot be tried in any of the remaining five cases. We disagree.

Collateral estoppel, though it finds its origins in civil litigation, is embodied in the Fifth Amendment’s protection from double jeopardy and applies with force to state criminal proceedings. Id. at 443, 445, 90 S.Ct. 1189; Ex parte Watkins, 73 S.W.3d 264, 267 (Tex.Crim.App.2002). Collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe, 397 U.S. at 443, 90 S.Ct. 1189.

Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded' its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’

Id. (quoting Mayers & Yarborough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv. L.Rev. 1, 38-39 (I960)).

Even if identity had been shown to be the reason for Infante’s acquittal in the case numbered 16,843-2001-A, an offense alleged to have occurred May 11, 2001, that finding should not preclude prosecution of any of the other offenses, since they were alleged to have been committed on different occasions, that is, April 27 or May 25, 2001.

Also, even if the alleged offenses all arose from the same occurrence, the acquittal should not preclude prosecution on the other charges, since identity was not shown to be the determinative issue on the acquittal. While Infante did contest, in the case in which he was acquitted, whether he was the one who sexually assaulted S.I., identity was not the only disputed issue at trial. In fact, it appears not to have been even the principal issue. In-fante also argued that the injuries to S.I.’s hymen (as reported by Kim Basinger, the sexual assault nurse examiner, and which the State argued proved the sexual assault occurred), might instead be attributable to a naturally occurring “hymenal fissure.” During cross-examination, the nurse described a hymenal fissure as “a place in which the hymen has been disrupted. It’s healed over. It can be caused by a number of things.” The nurse further conceded that a hymenal fissure is not caused by sexual abuse.

Infante also suggested that the injury to S.I.’s hymen might have accidentally occurred during one of the many times he changed S.I.’s diaper. S.I.’s mother testified at trial that, while she was at work, Infante had some responsibility for taking care of S.I. Infante’s responsibilities frequently included changing S.I.’s diapers. According to the mother’s testimony, In-fante often rushed through the diaper change, rather than being slow and gentle. There was also evidence that S.I. had severe, chronic diaper rash. Even S.I.’s mother said S.I. complained of experiencing pain when her mother cleansed the infected area with a baby wipe.

Clearly, more than merely the perpetrator’s identity was at issue. Given the possibility that the jury’s verdict turned on an issue other than identity — a possibility that Infante conceded during the trial court’s habeas hearing — we cannot conclude Infante’s acquittal in cause number 16,843-2001-A necessarily precludes the State’s prosecution in the remaining cases. Thus, Infante’s collateral estoppel argument fads. Cf. Sutton v. State, 495 S.W.2d 912, 913-15 (Tex.Crim.App.1972) (jury could have based acquittal in prior case on issue other than identity); Nagle, 48 S.W.3d at 218 (jury’s general acquittal did not collaterally estop defendant’s prosecution in remaining cases).

We overrule Infante’s first point of error.

IY. Double Jeopardy

In his second point of error, In-fante asserts the State should not be allowed to prosecute him in the two remaining indecency charges because they are lesser-included offenses of the aggravated sexual assault case for which he was acquitted in 16,843-2001-A. To do otherwise, contends Infante, would violate his constitutional protection against double jeopardy.

The Double Jeopardy Clause of the Fifth Amendment embodies several concepts: it protects a person from being twice prosecuted for the same offense; it precludes the State from prosecuting someone for the same offense or a lesser-included offense after a jury has acquitted the accused; and it bars punishing a person more than once for the same offense. Nickerson v. State, 69 S.W.3d 661, 670 (Tex.App.-Waco 2002, pet. ref'd) (citing Monge v. California, 524 U.S. 721, 727-28, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998)); see also U.S. Const. amend. V; Hutchins v. State, 992 S.W.2d 629, 631 (TexApp.-Austin 1999, pet. ref'd, untimely filed). In-fante invokes the second of these protections. The Fifth Amendment’s Double Jeopardy Clause is enforceable against the States through the Fourteenth Amendment. Ashe, 397 U.S. at 437, 90 S.Ct. 1189 (citing Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)).

“To determine whether offenses are the same for double jeopardy purposes, we must construe the statutory provisions in question to discern ‘the allowable unit of prosecution,’ which is ‘a distinguishable discrete act that is a separate violation of the statute.’ ” Nickerson, 69 S.W.3d at 671 (quoting Ex parte Hawkins, 6 S.W.3d 554, 556 (Tex.Crim.App.1999)). This distinction is critical because the Double Jeopardy Clause acts to prevent prosecution only for an “identical criminal act”; the Double Jeopardy Clause does not serve to prohibit subsequent prosecutions merely because the accused has been charged with a similarly titled offense as that for which he or she was previously acquitted. Ex parte Goodbread, 967 S.W.2d 859, 860 (Tex.Crim.App.1998) (citing Luna v. State, 493 S.W.2d 854 (Tex.Crim.App.1973)). If the remaining charges against Infante are based on the same specific criminal impulse or prohibited conduct for which he has already been acquitted, then the prosecution may not proceed. See, e.g., Stephens v. State, 806 S.W.2d 812 (Tex.Crim.App.1990) (cannot twice prosecute defendant for same rape, of same victim, arising from same incident); Kalish v. State, 662 S.W.2d 595, 600 (Tex.Crim.App.1983) (public intoxication and possession of cocaine were deemed part of same transaction based on facts of case; acquittal of public intoxication precluded prosecution for drugs). But if the remaining charges are based on criminal impulses or prohibited actions that were different from those that were made the basis of the State’s charge in 16,843-2001-A, and those actions are statutorily defined to create offenses separate and distinct from the charge for which the accused was previously acquitted, then double jeopardy will not preclude Infante from being prosecuted on those charges. See Blockburger v. United States, 284 U.S. 299, 302, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Moffett v. State, 716 S.W.2d 558 (Tex.App.-Dallas 1986, pet. ref'd) (convictions for both investing in manufacture of controlled substances and possession of controlled substances did not violate double jeopardy even though same drugs were involved; act of possession and act of investing in manufacture each constituted separate crime).

Indecency with a child can be a lesser-included offense of aggravated sexual assault. See, e.g., Elder v. State, 132 S.W.3d 20, 23-24 (Tex.App.-Fort Worth 2004, pet. ref'd) (record showed State used same facts to prove indecency charges as it later used to prove aggravated sexual assault charges; State not entitled to seek convictions for both offenses); Pullin v. State, 827 S.W.2d 1, 3 (TexApp.-Houston [1st Dist.] 1992, no pet.) (indecency is lesser-included offense of aggravated sexual assault). The question of whether indecency is, in fact, a lesser-included offense often turns on the wording of the indictment. Weatherby v. State, 61 S.W.3d 733, 736 n. 1 (Tex.App.-Fort Worth 2001, pet. ref'd) (appellant’s act of fully penetrating daughter formed basis for both offenses; indecency was lesser-included offense). But when the facts giving rise to the indecency charge are not the same that support a prosecution for aggravated sexual assault, the former will not be deemed to be a lesser-included offense of the latter, and both may be prosecuted without violating the Double Jeopardy Clause. See, e.g., Bottenfield v. State, 77 S.W.3d 349, 358 (Tex.App.-Fort Worth 2002, pet. ref'd), cert. denied, 539 U.S. 916, 123 S.Ct. 2275, 156 L.Ed.2d 133 (2003) (evidence showed appellant touched victim’s “winkie” twice, thus supporting convictions for both aggravated sexual assault and indecency).

If the reviewing court cannot determine, based on the State’s pleadings, whether the lesser offense is the same as the greater offense, the court should look to the proof offered at trial for clarification. Goodbread, 967 S.W.2d at 860.

If evidence of more than one offense is admitted and a conviction for either could be had under the indictment, and neither the State nor the court elects, a plea of former conviction [or acquittal] is good upon a prosecution based upon one of said offenses, it being uncertain for which one the conviction [or acquittal] was had.

Walker v. State, 473 S.W.2d 499, 500 (Tex.Crim.App.1971); see also Nagle, 48 S.W.3d at 216 (failure to elect will permit double jeopardy to bar prosecution of all offenses raised by evidence at trial). This principle, however, bars only prosecution for crimes for which proof was offered at the previous trial. Goodbread, 967 S.W.2d at 861.

The indictment in cause number 16,843-2001-A charged Infante with committing aggravated sexual assault by using his finger to penetrate S.I.’s sexual organ. To prove its case, the State offered evidence from Basinger, who testified that the victim had two tears on her hymen that were consistent with having something forcefully inserted. Basinger also testified that, during the taking of S.I.’s medical history, S.I. said Uncle Fluffy, S.I.’s nickname for Infante, had touched her sexual organ. Brian Elliot, who is the pastor where S.I.’s grandmother attends church and who testified as the outcry witness, said the victim had told him “Fluffy was hurting her with his finger ... in the vagina.” And Carmen Connolly, a psychologist who had counseled S.I., testified S.I. stated during a counseling session that her Uncle Fluffy had “touched her peepee, where she goes peepee.” Thus, it would seem the evidence presented by the State in 16,843-2001-A would support a conviction for either aggravated sexual assault or indecency with a child. This is because it is theoretically possible that the indecency allegation contained in the indictment for trial court cause number 16,844-2001-A (touching the victim’s female sexual organ) might be barred by double jeopardy based on the jury’s general acquittal in 16,843-2001-A.

But in a double jeopardy challenge, the defendant has the burden to provide a record that both establishes the commonality of the offenses and shows the State will be relying on the same instances of misconduct for which the accused was previously convicted or acquitted. United States v. Register, 931 F.2d 308, 312-13 (5th Cir.1991) (cited approvingly for application in Texas pretrial habeas cases in Goodbread, 967 S.W.2d at 861). In Register, the defendant was convicted in federal district court of two counts of possessing cocaine with intent to distribute: one count alleged a possession offense that occurred January 20, 1989, and the second count alleged a separate possession offense occurred January 22, 1989. Id. at 309. On appeal, Register argued that the conviction under the second count was multiplicitous because his drug possession in January constituted a continuing offense rather than two distinct offenses. Id. at 312. The Fifth Circuit disagreed and stated,

Register has made no attempt to demonstrate that the source of the January 20 delivery was, in fact, the same stash found by the agents in Register’s condominium on January 22.... Because Register has offered no evidence to establish that the cocaine in each of the two transactions came from a common “stash,” we find no violation of the double jeopardy clause.

Id.

The indictments in 16,844-2001-A and 16,845-2001-A (both charging Infante with indecency) allege Infante touched the victim’s sexual organ or anus. The indictments do not, however, allege the method or means by which Infante touched S.I. Infante presented no evidence at the trial court’s hearing on his habeas application to demonstrate the charges in 16,844-2001-A and 16,845-2001-A necessarily require proof of the same conduct for which the jury rendered a “not guilty” verdict in 16,843-2001-A. Nor has Infante directed our attention to any such evidence in the record on appeal. This case is, therefore, factually distinguishable from Stephens, 806 S.W.2d 812. Accordingly, Infante has not met his burden of proof because we cannot determine from the record before us whether the conduct for which Infante has been acquitted will form the same basis for the remaining indecency prosecutions. Cf. Hutchins, 992 S.W.2d at 633. Moreover, at the habeas corpus hearing the State said it did, in fact, make an election to proceed only on the aggravated sexual assault charge during the trial of 16,843-2001-A, a claim that Infante did not challenge and which the record before us supports. As such, we must overrule his second point of error.

For the reasons stated, we affirm the trial court’s judgment.

      . The evidence at trial showed S.I. was three years old at the time of the alleged assault and four years old at the time of trial.

      . “An election is 'some action that excludes or limits the jury’s consideration of an offense.' " Nagle, 48 S.W.3d at 216 (quoting Goodbread, 967 S.W.2d at 861 n. 2).

      . To the State’s surprise, the victim recanted at trial. When asked if "anybody [had] ever touched you on your teetee,” the victim said, "No.” And when the prosecutor asked, "Has anyone ever touched you anywhere,” again the victim answered, "No.”


author: W.G. ARNOT, III, Chief Justice.

text:
    In re Mike ORSAGH.
    No. 11-04-00063-CV.
    Court of Appeals of Texas, Eastland.
    Nov. 10, 2004.
    William G. Thompson, Breckenridge, for relator.
    Frank D. McCown, Arlington, Donald R. Campbell Jr., Donald R. Campbell, Inc., Fort Worth, Landon Thompson, Cisco, Robert McCleskey, Eastland, for respondents.
    Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
   Opinion

W.G. ARNOT, III, Chief Justice.

This is an original mandamus proceeding in which the relator challenges a district court’s jurisdiction to hear a contested probate matter transferred from a constitutional county court. The transfer occurred when the county judge executed an order under the provisions of TEX. PROB. CODE ANN. § 5(b) (Vernon Supp.2004-2005). The county judge executed the transfer order as a result of his disqualification under TEX. CONST, art. V, § 11. The relator, Mike Orsagh, attacks the mechanism used by the county judge to overcome the disqualification. We will conditionally grant a writ of mandamus.

Dean Tindall filed an application to probate the last will and testament of Da-phane Tindall Woods in the County Court of Eastland County in April 1998. Hon. Brad Stephenson, the current County Judge of Eastland County, filed the application on Tindall’s behalf as Tindall’s attorney. Judge Stephenson subsequently took office as county judge on January 1, 1999. The probate proceeding became contested after Judge Stephenson took office. There is no dispute that Judge Stephenson’s prior service as counsel in the case rendered him “constitutionally disqualified” under Article V, section 11 to preside over the probate matter.

Judge Stephenson executed an order entitled “Order Transferring Contested Matter to District Court” on August 30, 1999. The order cited Section 5(b) as the basis for the transfer. Pursuant to the transfer order, the entire probate proceeding was transferred to the 91st District Court. The district court entered several orders in the probate proceeding over the course of three years. These orders included an agreed judgment which partitioned the assets of the estate among the decedent’s devisees.

Orsagh is a debtor and creditor of the estate. The estate has asserted a claim against Orsagh for unpaid rent. Orsagh’s claims against the estate arise from his care of livestock belonging to the decedent and the estate. Orsagh asserts that Judge Stephenson lacked authority to transfer the probate case to the district court in light of his disqualification under the constitution. Orsagh seeks an order which nullifies all orders entered by the district court and remands the probate case to the county court.

The agreed judgment which partitioned the assets of the estate awarded the estate’s claim against Orsagh to Dorothy Horn, a devisee of the decedent’s estate and a party to the contested probate proceeding. Horn subsequently filed a separate lawsuit against Orsagh to collect the estate’s claim which she received by partition. Orsagh sought to offset Horn’s claim for rent with his claim against the estate. Orsagh named Horn, Tindall, and Robert A. McCleskey as defendants to his offset claim against the estate. Horn and Tin-dall successfully obtained a summary judgment against Orsagh’s offset claim based upon the agreed judgment which effectuated a partition of the estate’s assets. See TEX. PROB. CODE ANN. § 818 (Vernon 2003). Orsagh seeks to set aside the agreed judgment in an effort to restore the viability of his offset claim against the estate.

Article V, section 11 provides:

No judge shall sit in any case wherein the judge may be interested, or where either of the parties may be connected with the judge, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when the judge shall have been counsel in the case.

The fact that Judge Stephenson is disqualified under the constitution is significant. An order or judgment rendered by a constitutionally disqualified judge is void. See In re Union Pacific Resources Company, 969 S.W.2d 427, 428 (Tex.1998)(orig.proceeding). Furthermore, disqualification on constitutional grounds cannot be waived and may be raised even after the judgment is beyond appeal in a collateral attack. Fry v. Tucker, 146 Tex. 18, 202 S.W.2d 218, 221-22 (1947); In re Gonzalez, 115 S.W.3d 36, 39 (Tex.App.-San Antonio 2003, orig. proceeding); Zarate v. Sun Operating, Limited, Inc., 40 S.W.3d 617, 621 (Tex.App.-San Antonio 2001, pet’n den’d). Mandamus will issue to correct a void order of a trial court. Urbish v. 127th Judicial District Court, 708 S.W.2d 429, 431 (Tex.1986); In re Gonzalez, supra at 39. If an order challenged by writ of mandamus is void, the relator need not show that he or she lacks an adequate appellate remedy. In re Southwestern Bell Telephone Company, 35 S.W.3d 602, 605 (Tex.2000); In re Gonzalez, supra at 39.

TEX. CONST. art. V, § 16 addresses the methods to be used by a disqualified constitutional county judge to overcome his or her disqualification. This section provides:

When the judge of the County Court is disqualified in any case pending in the County Court the parties interested may, by consent, appoint a proper person to try said case, or upon their failing to do so a competent person may be appointed to try the same in the county where it is pending in such manner as may be prescribed by law.

Accordingly, the constitution provides two alternatives for dealing with the disqualification of a constitutional county judge. The first method is the selection of a mutually agreeable substitute judge by the parties. The second method entails the selection of a substitute judge “in such manner as may be prescribed by law.” Since the parties did not select a substitute judge by mutual agreement, the critical inquiry in this proceeding is whether the transfer of the probate proceeding to the district court under Section 5(b) constituted a “manner as may be prescribed by law” for resolving Judge Stephenson’s disqualification.

Section 5(b) provides a mechanism for a constitutional county judge to transfer the contested portion of a probate matter to either another judge or another court. Section 5(b)(1) permits the constitutional county judge to request the assignment of a statutory probate court judge to hear the contested portion of the proceeding. Section 5(b)(2) permits the constitutional county judge to transfer the contested portion of the proceeding to a district court.

In Gonzalez, the San Antonio Court of Appeals recently addressed a transfer under Section 5(b) by a constitutionally disqualified county judge to a district court. The constitutional county judge in Gonzalez executed two orders in an effort to resolve his disqualification. In re Gonzalez, supra at 37. In the first order, the constitutional county judge appointed a substitute judge which the parties had mutually agreed upon to serve in the case. In re Gonzalez, supra at 38. After the substitute judge tried the case but prior to the entry of a final judgment, the disqualified constitutional county judge executed an order under Section 5(b) transferring the case to a district court. In re Gonzalez, supra at 38.

The court in Gonzalez considered the authority of the constitutional county judge to execute each of the orders. The court determined that the judge was permitted to execute the first order appointing the substitute judge which the parties agreed upon as permitted by Article V, section 16. In re Gonzalez, supra at 40. The court concluded that the judge’s assignment of a judge agreed upon by the parties as authorized by the constitution did not involve the exercise of judicial discretion. In re Gonzalez, supra at 40. However, the court invalidated the subsequent order attempting to transfer the case to the district court under Section 5(b). In re Gonzalez, supra at 41-42. The court determined that the judge’s execution of the transfer order under Section 5(b) was void because it involved the exercise of judicial discretion. In re Gonzalez, supra at 41-42.

We agree with the San Antonio Court of Appeals’s conclusion that the execution of a transfer order under Section 5(b) constitutes the exercise of judicial discretion. The exercise of discretion is most apparent in this proceeding when one considers that Judge Stephenson exercised a choice between requesting the assignment of a statutory probate court judge or transferring the contested portion to a district court under Section 5(b)(1) & (b)(2). Since the discretionary acts of a constitutionally disqualified judge are void, Judge Stephenson did not have authority to transfer the probate proceeding to the district court.

Furthermore, it does not appear that a transfer of a probate case to a district court is a “manner as may be prescribed by law” as required by Article V, section 16. TEX. GOV’T CODE ANN. § 26.012 (Vernon 2004) specifically addresses instances wherein a constitutional county judge is disqualified in a probate matter. At the time that Judge Stephenson executed the transfer order, Section 26.012 provided in relevant part as follows:

Disqualification in Probate Matters. (a) If the county judge is disqualified to act in a probate matter, the judge shall immediately certify the disqualification to the governor and the governor shall appoint a person to act as special judge in the case. The special judge shall act from term to term until the disqualification ends.

Courts generally construe the word “shall” in a statute as mandatory unless legislative intent sug-gests otherwise. Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex.1999). Therefore, it would appear that, absent the selection of a mutually agreed-upon visiting judge under Article V, section 16, Judge Stephenson was subject to a mandatory, statutory requirement to certify his disqualification to the governor for the appointment of a substitute judge.

Moreover, the transfer of a probate case to a district court under Section 5(b) does not appear to be a practical method for resolving a constitutional county judge’s disqualification. Under Section 5(b — 4), the constitutional county court is required to continue exercising jurisdiction over the management of the estate with the exception of the contested matter which has been transferred to the district court. Section 5(b — 3) requires the district court to transfer the probate matter back to the constitutional county court whenever the contested matter is resolved. The constitutional county court’s retention of jurisdiction over the uncontested portion of a probate proceeding is simply not feasible when the county judge is disqualified from presiding over the case.

The real parties in interest argue that the district court possessed concurrent, original jurisdiction with the constitutional county court to enter the various orders entered by the district court. They cite Eppenauer v. Eppenauer, 831 S.W.2d 30 (Tex.App.-El Paso 1992, no writ), in support of this proposition. Relying upon the text of TEX. PROB. CODE ANN. § 149C (Vernon 2003), the El Paso Court of Appeals held that a district court had original jurisdiction to consider a suit to remove an independent executor which was initially filed in the district court. Eppenauer v. Eppenauer, supra at 33. The court noted in reaching its holding that Section 149C provided a narrow exception to the general rule that original probate jurisdiction lies in the county courts.

Relying upon Eppenauer, the real parties in interest contend that the district court had jurisdiction to enter orders in this probate proceeding because a motion to remove the independent executor had been filed. We conclude that the holding in Eppenauer is distinguishable on two bases. First, the party seeking to remove the independent executor in Eppenauer initiated the claim for removal of the independent executor in the district court. In this proceeding, the claim for removing the independent executor was initiated in the constitutional county court and then transferred to the district court in an order which we have determined that the county judge was without jurisdiction to enter. Second, the orders entered by the district court in this proceeding addressed matters other than just the removal of the independent executor.

Orsagh’s request for a writ of mandamus invalidating the orders entered by the district court is conditionally granted. In the event that the district court does not withdraw its orders and remand the case to the constitutional county court by December 1, 2004, a writ of mandamus will issue.

      . We take judicial notice that there is no legislatively established statutory probate court, county court at law, or other statutory court exercising the jurisdiction of a probate court in Eastland County. See TEX. GOV'T CODE ANN. § 26.167 (Vernon 2004); TEX. PROB. CODE ANN. § 5(b) (Vernon Supp. 2004 — 2005).

      . In addition to the transfer order, Orsagh specifically seeks to set aside five orders entered by the district court, including: (1) an order appointing a successor administrator entered on October 23, 2000; (2) an order for sale of livestock entered on December 4, 2000; (3) the agreed judgment entered on December 13, 2001; (4) an order denying Orsagh's motion to remand the probate proceeding to the county court entered on August 23, 2002; and (5) an order denying Orsagh's motion to reconsider entered on February 17, 2004.

      . Robert A. McCleskey is an attorney appointed by the district court as the successor administrator of the estate to replace Tindall.

      . Section 318 provides that “[n]o claim for money against the estate of a decedent shall be allowed by a personal representative and no suit shall be instituted against the representative on any such claim, after an order for final partition and distribution has been made.”

      . The Texas Legislature recently enacted a non-substantive revision of Section 5(b) which reorganized the section. Citations to the current format of the section have been used for clarity.

      . TEX. GOV’T CODE ANN. § 26.011 (Vernon 2004) contains a separate provision dealing with a constitutional county judge's disqualification in criminal and non-probate civil cases.

      .Section 26.012 was amended on September 1, 1999. The enacting language of the amendment provides that an assignment or selection of a judge made before the effective date of the amendment is governed by the law in effect at the time the assignment or selection was made. Section 26.012 now provides that the presiding judge of the statutory probate court will assign a visiting judge whenever the constitutional county judge is absent, incapacitated, or disqualified in a probate proceeding. See TEX. GOV’T CODE ANN. § 25.0022(h) (Vernon 2004).

      . At the time Eppenauer was decided, Section 149C specifically provided that a district court could hear a suit to remove an independent executor. Section 149C has since been amended to provide that a suit to remove an independent executor is to be filed in the "county court” as that term is defined in TEX. PROB. CODE ANN. § 3 (Vernon 2003).

      . See Op. Tex. Att’y Gen. No. JM-1244 (1990) for a discussion of a district court’s lack of original jurisdiction to hear probate matters.


author: BRIAN QUINN, Justice.

text:
    Billy Joe McKEE, individually and as independent executor of the estate of Thelma McKee, deceased, Appellant, v. David G. McNEIR, M.D., Dennis Dove, M.D., individually and d/b/a Dove & Associates, and Barry L. Horowitz, M.D., Appellees.
    No. 07-03-0412-CV.
    Court of Appeals of Texas, Amarillo.
    Nov. 22, 2004.

      Joe L. Lovell, Tim D. Newsom, Lovell, Lovell, Newsom & Isern, Amarillo, for appellant.
    Barry D. Peterson, Peterson, Farris Pruitt & Parker, Vance E. Ivy, Packard, Hood, Bednarz, Johnson & Ivy, L.L.P., Amarillo, for appellees.
    Before QUINN and REAVIS, JJ., and BOYD, S.J.

      . John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. § 75.002(a)(1) (Vernon 1998).

   Opinion

BRIAN QUINN, Justice.

Billy Joe McKee, individually and as independent executor of the estate of Thelma McKee, deceased (McKee), appeals from a judgment denying him recovery against Dr. David G. McNeir (NcNeir), Dr. Dennis Dove, individually and d/b/a Dove & Associates (Dove), and Dr. Barry L. Horowitz (Horowitz). His sole issue involves the trial court’s refusal to admit evidence, during the rebuttal phase of the trial, of prior medical malpractice claims against Dove. McKee sought to admit the evidence 1) because the defendants purportedly “opened the door” to it and 2) for purposes of rebutting Dove’s opinions. However, the trial court excluded it because it was not rebuttal evidence, no one had opened the door to its admission, and its prejudicial effect “would far outweigh any probative value” it may have. We affirm the judgment of the trial court. Standard of Review

The appropriate standard of review is one of abused discretion. That is, before we can say that the trial court erred in excluding the evidence, we must conclude that the decision evinced an instance of abused discretion. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex.1995). It evinces such an instance when it fails to comport with guiding rules or principles. Id.

Next, and assuming arguendo that we were to hold that the trial court did err, authority prohibits us from reversing the judgment unless we determine that the “case turn[ed] on the evidence excluded.... ” Id.; accord, Nissan Motor Co. v. Armstrong, 145 S.W.3d 131,144 (Tex.2004) (so holding). And, the burden lies with the complainant to demonstrate that. Nissan Motor Co. v. Armstrong, 145 S.W.3d at 144.

As to the guiding principles applicable at bar, we find several in the Texas Rules of Evidence. The first mandates that evidence of other wrongs is not admissible to prove the character of a person to show that he acted in conformity with that character. Tex.R. Evid. 404(b). It may, however, be received by the trial court if offered for other purposes, such as to prove motive, plan, scheme, knowledge, or identity, for instance. Id. Finally, even if admissible, the trial court may still exclude it if the probative value of the evidence, if any, is substantially outweighed by the danger of unfair prejudice, confusing of the issues, or misleading the jury. Tex.R. Evtd. 403. Application of Standard

Underlying McKee’s argument on appeal is the proposition that the evidence of other malpractice claims was admissible due to the similarity between the alleged neglect there involved and that involved here. Yet, our review of the record fails to illustrate that such a contention was urged below. Again, McKee informed the trial court that the evidence was admissible to discredit Dove’s opinions and because the door to its use had been opened. Nowhere did he urge that it was admissible due to its similarity to the circumstances or claims before us. Since the grounds asserted on appeal must comport with those mentioned at trial to preserve a complaint, Moser v. Davis, 79 S.W.3d 162, 169 (Tex.App.-Amarillo 2002, no pet.), and they do not here, the issue was waived.

Next, to the extent that evidence of similar wrongs may be admissible, despite Rule 404(b), it is clear that, at the very least, the circumstances of the incidents and conditions under which they occurred must be reasonably similar. Nissan Motor Co. v. Armstrong, 145 S.W.3d at 138 (involving unintended acceleration of a vehicle); Farr v. Wright, 833 S.W.2d 597, 601 (Tex.App.-Corpus Christi 1992, writ denied) (involving a malpractice claim). And, the degree of similarity required depends upon the fact or issue in dispute. Nissan Motor Co. v. Armstrong, 145 S.W.3d at 138. Yet, even if similar, the evidence remains subject to exclusion if it creates undue prejudice, confusion, or delay. Id.

Additionally, inherent in both Nissan and Farr is the requirement that the proponent of the evidence illustrate that the supposedly similar incident actually occurred. Simply put, if the incident did not happen, then it could hardly be admissible to prove the occurrence of some other act or event. And, therein lies the problem here. The only evidence of record purporting to illustrate the existence of the extraneous incidents of malpractice were copies of pleadings and final orders issued by various courts. Yet, most anything can be said in a pleading, whether true or not. Consequently, including an allegation favorable to the pleader in such a document is seldom evidence of its occurrence. See In re M.C., 65 S.W.3d 188, 193 (Tex.App.Amarillo 2001, no pet.) (stating that “generally, pleadings are not admissible as proof of their contents in favor of the pleader”). Furthermore, the final orders accompanying each pleading in question say nothing about the veracity of the particular plaintiffs claims. Instead, they either indicate that the claims were settled or that recovery was denied; none state that Dove was negligent or that the incident described in the respective pleading actually happened. So, because the incidents underlying McKee’s complaint before us appear as nothing more than mere allegations in various pleadings, we find no basis upon which to infer that they actually occurred or that they were reasonably similar to those underlying the claims against Dove.

In short, the record does not permit us to hold that the trial court abused its discretion in excluding the evidence in question. Thus, we overrule McKee’s issue and affirm the judgment of the trial court.

      . Though some 20 different suits were mentioned at trial, not all involved medical malpractice claims. Furthermore, McKee represented during oral argument and in his brief that he is concerned only about eight particular instances of litigation.


author: Opinion by Justice ROSS.

text:
    The STATE of Texas, Appellant v. Richard Raymond DIXON, II, Appellee.
    No. 06-03-00217-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 25, 2004.
    Decided Nov. 23, 2004.

      Gary L. Waite, Assistant District Attorney, Mark Burtner, Lamar County District Attorney, Paris, for appellant.
    Steven Miears, Bonham, for appellee.
    Before MORRISS, C.J., ROSS and ‘ CARTER, JJ.
   OPINION

Opinion by Justice ROSS.

The State of Texas appeals from a pretrial order suppressing evidence. The record shows that Richard Raymond Dixon, II, was stopped for a traffic offense and arrested. In a search incident to arrest, the officer found between one and four grams of methamphetamine. Dixon filed a motion to suppress, which the trial court granted after two pretrial hearings.

The State brings three points of error. It first contends the trial court erred in denying its right to a hearing on the motion to suppress and in making findings of fact when no evidence was presented. The State presents no argument in support of its position on this point and admits that the controlling law allows a trial court to decide a pretrial motion without hearing testimony. We find the State’s lack of briefing on this point waives the issue. Further, we note that the request for findings of fact and conclusions of law was made by the State, not by Dixon. The doctrine of invited error applies, and even if the trial court did err by entering findings of fact, that could not enure to the benefit of the State. See Prystash v. State, 3 S.W.3d 522, 530-32 (Tex.Crim.App.1999).

The State primarily- relies on its third point of error, wherein it contends the evidence is insufficient to support the trial court’s order of suppression because the court relied on a concept of law that was improperly applied. Specifically, the State contends the trial court suppressed the evidence because it concluded the evidence was improperly obtained through a pretext stop. The State argues that the court’s ruling rested on its conclusion this was a pretext stop and thus was per se illegal.

The State’s argument is not fully supported by the court’s written findings and conclusions. The court stated in its written conclusions it was suppressing the evidence because of the inordinate . delay between the alleged traffic offense — not signaling a turn within 100 feet of an intersection — and the alleged traffic stop. The State did not suggest that the driver did not signal, but that he did not signal “within so many feet” before he turned. The record shows that, at the location of the alleged failure to signal, the street divides and a driver in the right-hand lane is required to turn right. The trial court found that Dixon’s vehicle turned right at this location and concluded the turn was lawful.

The record further shows that, after this alleged traffic violation, the officers followed Dixon’s vehicle for over three miles at in-town speeds before stopping the vehicle, with no suggestion of any reason for a delay. The record also shows that the officers asked for and received permission to search the vehicle, and found nothing. They searched Dixon, and found nothing. They searched the companion, Tina Morales, and found nothing. They then called for a drug dog and a female officer. The drug dog found nothing. However, the female officer searched Morales and found three baggies of methamphetamine in her underwear.

An officer may legally initiate a traffic stop if such officer has a reasonable basis for suspecting a person has committed a traffic offense. See Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App.1992). The burden is on the state to demonstrate the reasonableness of the stop. Tex. Dep’t of Pub. Safety v. Chang, 994 S.W.2d 875, 877 (Tex.App.-Austin 1999, no pet.). Stopping a vehicle and detaining its occupants is a seizure within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Garza v. State, 771 S.W.2d 549, 558 (Tex.Crim.App.1989). A seizure under the Fourth Amendment must be objectively reasonable in light of the particular circumstances of the case. Maryland v. Wilson, 519 U.S. 408, 411, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997); Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Whether a stop is reasonable depends on “a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Wilson, 519 U.S. at 411, 117 S.Ct. 882; United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Prouse, 440 U.S. at 654-55, 99 S.Ct. 1391, 59 L.Ed.2d 660.

The trial court concluded that the traffic stop was not reasonable, finding that it occurred 3.2 miles from the point of the alleged illegal turn and that “[n]o outside force or entity interfered with the arresting officer’s ability to stop [DixonJ’s vehicle between the point of the alleged violation and the actual stop_” The court specifically found that the officers’ stop of Dixon was not within a reasonable time or a reasonable distance after the alleged violation.

The State argues this scenario is effectively the same one addressed by this Court in State v. Kreie, No. 06-03-00084-CR, 2003 WL 22415741 (Tex.App.-Texarkana Oct. 24, 2003, no pet.) (not designated for publication). In that case, we recognized explicitly that the pretext doctrine no longer invalidates a stop and that, in considering whether an offense has been committed, “an officer’s subjective intent is relevant only to a credibility determination of his stated reasons for stopping or arresting an individual.” Id. at *1; Garcia, 827 S.W.2d at 944. We also recognized that, if a trial court disbelieved that an offense had occurred, then the court could suppress the evidence obtained as a result of the unlawful stop and that we are required to defer to the trial court’s ruling because it necessarily turns on an evaluation of the credibility of the witnesses. Kreie, 2003 WL 22415741, at *1; State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000).

The critical difference in the instant case and Kreie is that, in this case, the court did not suppress the evidence because it found the stop was merely a pretext to look for drugs. The court suppressed the evidence because it concluded the 3.2-mile delay between the officers’ claimed observation of a traffic offense and the ultimate stop was not within a reasonable time or a reasonable distance after the alleged violation. It also specifically found that nothing interfered with the officers’ ability to stop the vehicle earlier.

At a suppression hearing, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and may choose to believe or disbelieve any or all of a witness’ testimony. Alvarado v. State, 853 S.W.2d 17, 23 (Tex.Crim.App.1993); Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App.1991). In this case, the trial court entered findings of fact (inferring findings in favor of ruling). The trial court’s ruling will only be reversed on appeal if no reasonable view of the record can support the trial court’s conclusion under the correct law as applied to the facts viewed in the light most favorable to its legal conclusion. DuBose v. State, 915 S.W.2d 493, 497-98 (Tex.Crim.App.1996); State v. Rivenburgh, 933 S.W.2d 698, 700 (Tex.App.-San Antonio 1996, no pet.). To establish an abuse of discretion, the appealing party must show that the trial court’s ruling lies outside the “zone of reasonable disagreement.” DuBose, 915 S.W.2d at 496-97.

Further, the appellate court must sustain the trial court’s ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996); James v. State, 72 S.W.3d 35, 40 (Tex.App.-Texarkana 2001, pet. ref'd).

There is little guidance to be had on the question of how much time or distance can elapse between an officer’s claimed observation of a traffic offense and the eventual stop. In a recent case reviewing a traffic stop, the Texas Court of Criminal Appeals looked at the distance on an interstate highway that an officer followed an alleged traffic violator as a consideration in deciding whether the officer was exercising a community caretaker function in stopping the vehicle. Corbin v. State, 85 S.W.3d 272, 278 (Tex.Crim.App.2002). The officer testified he had seen the car veer slightly over the side line and then move back into its lane. The court noted the officer had followed the car for over a mile before stopping the driver. Although the court did not make its decision based solely on the distance or length of time the officer followed the vehicle, that is clearly a matter to be considered when a court is deciding whether a traffic stop is reasonable.

We do not hold that a delay of this distance will always be unreasonable. In each such instance, the court should properly consider all of the factors surrounding the stop. In that context, we reiterate that the trial court made a specific finding that nothing would have prevented an earlier stop, that the stop was 3.2 miles from the point of the alleged violation, and that the stop was not made either within a reasonable time or a reasonable distance after the alleged violation.

There were no witnesses to give formal testimony in this case, but it is clear counsel for both sides agreed on the facts involved, the sequence of events, and the reasons for the actions taken by the arresting officers. It was within the discretion of the trial court to determine whether to believe the officers’ allegations. See Meek v. State, 790 S.W.2d 618, 620 (Tex.Crim.App.1990). A reasonable review of the record supports the court’s decision in this, as well as in its determination that too much time and space elapsed before the stop. We find the record can reasonably be viewed as supporting the trial court’s conclusion, when viewed in the light most favorable to that conclusion. See DuBose, 915 S.W.2d at 497-98; Rivenburgh, 933 S.W.2d at 701.

We affirm the judgment.

      . See Tex.Code Crim. Proc. Ann. art. 28.01, § 1(6) (Vernon 1989).

      . The Transportation Code provides as follows:
      (a) An operator shall use the signal authorized by Section 545.106 to indicate an intention to turn, change lanes, or start from a parked position.
      (b) An operator intending to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of movement of the vehicle before the turn.
      Tex. Transp. Code Ann. § 545.104 (Vernon 1999).

      . We are aware of a possible split of authority between appellate courts on the question of whether a turn signal is required only if the turn is a ninety-degree turn. Compare Trahan v. State, 16 S.W.3d 146 (Tex.App.-Beaumont 2000, no pet.) (no turn or lane change necessary to exit freeway; thus statute does not apply); with Reha v. State, 99 S.W.3d 373, 375-76 (Tex.App.-Corpus Christi 2003, no pet.) (any turn, no matter the degree, requires use of turn signal under statute).

      . This is a permissible method of determining such an issue, as explicitly set out by statute and as acknowledged by the Texas Court of Criminal Appeals. Rodriguez v. State, 844 S.W.2d 744, 745 (Tex.Crim.App.1992).

      . See generally Balentine v. State, 71 S.W.3d 763, 771 (Tex.Crim.App.2002) (discussion of some considerations in determining whether length of investigative detention was unreasonable).


text:
    In re Paula COCHRAN and Dwane Eric Hotz.
    No. 06-04-00091-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Nov. 29, 2004.
    Decided Nov. 30, 2004.

      David Colley, Woodson, Colley & Colley, LLP, Mount Pleasant, for relator.
    Duke E. Hooten, TDFPS, Special Litigation Unit, Austin, Lana Shadwick, TDFPS, Office of General Counsel, Houston, for real party in interest Department of Family and Protective Services.
    John M. Cobern, Mount Pleasant, for real party in interest H.H.H., a Child.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

In this mandamus action, we must decide whether Paula Cochran and Dwane Eric Hotz are entitled to current possession of H.H.H., their newborn daughter and Cochran’s tenth child, pending a final hearing on termination of their parental rights to H.H.H. Our decision turns on whether the proof of prior, for-cause terminations of Cochran’s and Hotz’s parental rights to their other children, essentially standing alone, satisfies Section 262.201(b) of the Texas Family Code and thus allows the State, acting through the Texas Department of Family and Protective Services (the Department), to withhold current possession of H.H.H. from her parents. See Tex. Fam.Code Ann. § 262.201(b) (Vernon 2002). Though, from their past record as to their other children, Cochran and Hotz may pose a risk to H.H.H., we hold that risk is not a sufficient statutory basis, and the proof in this case does not meet the high statutory requirements, to allow the Department to deny Cochran and Hotz present possession of H.H.H. We conditionally grant the writ of mandamus.

Historical Perspective

To understand the present situation, we must review Cochran’s and Hotz’s history with the Department. In 2002, Cochran’s rights to her first eight children were terminated when the trial court concluded (1) that she had (a) placed or knowingly allowed her children to be placed or remain in conditions or surroundings which endangered the physical or emotional well-being of the children, and (b) engaged in conduct, or knowingly placed children with a person or persons who engaged in conduct, which endangered the physical or emotional well-being of the children, and (2) that termination was in the children’s best interests. See Tex. Fam.Code Ann. § 161.001(1)(D), (E) (Vernon 2002). With respect to two of the eight children who were the subjects of the 2002 terminations, Hotz was the biological father; his parental rights were also terminated.

In 2003, Cochran’s and Hotz’s parental rights to Cochran’s ninth child, born after the previous terminations, were terminated when the trial court found by clear and convincing evidence that, among other things, the parents “knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child.”

H.H.H., the child in question here, was born June 6, 2004, at home, her delivery attended by a midwife. On June 11, acting on a hotline tip, Bob Alexander, a Department caseworker, visited the family and found H.H.H. in relatively good health, having only a mild skin rash. But, because of the parents’ history, the Department removed H.H.H. from the home that day. On June 14, the Department filed a petition to terminate the parental rights of Cochran and Hotz.

On June 23, 2004, as mandated by the Texas Family Code, the trial court held a “14-day hearing” during which Alexander testified regarding his observations made at the home. He noted his concern that H.H.H. had not been to the doctor yet, but admitted she appeared to be in generally good health. There were no signs that H.H.H. had been physically or sexually abused or that she had been neglected. On direct examination, Alexander conceded that “risk,” based on the prior terminations, had “a large bearing” on the departmental decision to seek termination of Cochran’s and Hotz’s parental rights. At the end of this hearing, the trial court expressed its concerns regarding the gravity of this case and facilitated the bringing of Relators’ petition in order to clarify this issue. It then entered the temporary order forming the basis of this petition, denying Cochran and Hotz possession of H.H.H. The trial court also entered the following written findings:

Having examined and reviewed the evidence, including the sworn affidavit accompanying the petition and based upon the facts contained therein, the Court finds there is sufficient evidence to satisfy a person of ordinary prudence and caution that: (1) there was a danger to the physical health or safety of the child which was caused by an act or failure to act of the person entitled to possession and for the child to remain in the home is contrary to the welfare of the child; based only on the past conduct of Paula Cochran and Dwane Eric Hotz as shown by the Judgment in Cause 30,014 in the District Court of Titus County, Texas on March 13, 2003 ... and the Judgment in Cause FM 005744 in the 353rd Judicial District Court in Travis County, Texas and; (2) the factual urgency for protection requiring the immediate removal of the child is inferred from Exhibits A and B of this order and; (3) that under the circumstances the Texas Department of Family is not required to attempt reunification and that there is a substantial risk of continuing danger if the child is returned home....
The Court finds with respect to the child ... that reasonable efforts consistent with the child’s health and safety are not required to be made by the Department to prevent or eliminate the need for removal of the child from the home and to make it possible for the child to return home, and that continuation in the home would be contrary to the welfare of the child.

Mandamus Conditionally Lies Because of Lack of Proof of Any Act or Failure to Act by Cochran or Hotz that Endangered H.H.H.

Mandamus is “an extraordinary remedy, available only in limited circumstances.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding). A writ of mandamus will issue “only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law.” Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (orig. proceeding). The appellate court must determine whether there has been a clear abuse of discretion that justifies mandamus relief. Id.

Mandamus is available only in the absence of a factual dispute of consequence. Walker, 827 S.W.2d at 839-40. The trial court does not abuse its discretion when its judgment is based on conflicting evidence and some of this evidence reasonably supports the court’s decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.2002). If a relator seeks to overrule a court’s decision based on factual issues or matters committed to the trial court’s discretion, he or she has the burden to show that the trial court could have reached only one decision on the facts. Walker, 827 S.W.2d at 839-40.

We first turn to the governing statute to determine what must be proven to deny a parent possession of his or her child. Section 262.201 of the Texas Family Code provides for a “14-day hearing” at the end of which the trial court must order the return of a child to its parents, absent certain findings:

(b) At the conclusion of the full adversary hearing, the court shall order the return of the child to the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian entitled to possession unless the court finds sufficient evidence to satisfy a person of ordinary prudence and caution that:
(1) there was a danger to the physical health or safety of the child which was caused by an act or failure to act of the person entitled to possession and for the child to remain in the home is contrary to the welfare of the child;
(2) the urgent need for protection required the immediate removal of the child and reasonable efforts, consistent with the circumstances and for the safety of the child, were made to eliminate or prevent the child’s removal; and
(3) reasonable efforts have been made to enable the child to return home, but there is a substantial risk of a continuing danger if the child is returned home.

Tex. Fam.Code Ann. § 262.201(b). We will address those subsections in reverse order.

The trial court is given some discretion over the findings specified by Section 262.201(b)(3): “The court may waive ... the requirement to make reasonable efforts to return the child to a parent ... if the court finds that the parent has subjected the child to aggravated circumstances.” Tex. Fam.Code Ann. § 262.2015(a) (Vernon 2002). Section 262.2015 goes on to authorize the trial court to find that a parent has subjected the child to aggravated circumstances if “the parent’s parental rights with regard to another child have been involuntarily terminated based on a finding that the parent’s conduct violated Section 161.001(1)(D) or (E).... ” Tex. Fam.Code Ann. § 262.2015(b)(5) (Vernon 2002). Those conditions were met here. Since both prior terminations were based on findings that the parents either “knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child” or “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child,” both terminations qualify as “aggravated circumstances.” See Tex. Fam.Code Ann. § 262.2015(b); see also Tex. Fam.Code Ann. § 161.001(1)(D), (E). The trial court was well within its discretion in finding that there was no need for the Department to make reasonable efforts to return the child. Therefore, we will not issue a writ of mandamus based on the trial court’s finding under Section 262.201(b)(3).

Subsection (2) arguably allows the trial court to exercise its discretion in finding what efforts were reasonable in any given case by requiring it to find that “reasonable efforts, consistent with the circumstances and for the safety of the child, were made to eliminate or prevent the child’s removal.” Tex. FaM.Code Ann. § 262.201(b)(2) (emphasis added). The plain language of this provision allows some flexibility in the trial court’s determination of what efforts, if any, were reasonable in the given circumstances. Therefore, we also decline to issue á writ of mandamus with respect to the trial court’s finding under Section 262.201(b)(2) of the Texas Family Code.

We therefore turn to the trial court’s finding that there was a danger to the physical health or safety of the child caused by an act or failure to act by the parents under Section 262.201(b)(1). The record before us does not support that finding.

H.H.H. was bom June 6, 2004. The two pre-existing orders of termination were entered September 6, 2002, and March 13, 2003, respectively. Thus, the conditions, acts, or omissions forming the bases of those terminations occurred at least fourteen months before H.H.H. was born and, obviously, could not have posed a danger to her. In the absence of any current conditions or actions that would constitute a danger to H.H.H.’s health or safety, the trial court could not have reasonably based its findings on the prior terminations alone. We conclude that the trial court could not have found that the parents’ prior terminations were acts or omissions under Section 262.201(b)(1) of the Texas Family Code which posed a danger to H.H.H. when the conduct resulting in the prior terminations was committed before her conception.

When conducting an abuse of discretion review, we examine the entire record. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex.1996); Land v. AT & S Transp., Inc., 947 S.W.2d 665, 667 (Tex.App.-Austin 1997, no writ). So, while the trial court’s written order is unclear in that it states that it “examined and reviewed the evidence, including the sworn affidavit accompanying the petition,” but also states that subsequent findings were based only on evidence of prior terminations, we are to examine all the evidence in the record before us to determine whether the trial court abused its discretion. Other evidence in the record, like the evidence of prior terminations, simply does not illustrate that an act or failure on the part of the parents posed a danger to H.H.H.’s physical health or safety-

In fact, the evidence before us indicates that, aside from a skin rash and a couple of skin pustules, H.H.H. was in good health. Alexander testified the doctor’s visit did not yield any major health concerns. Additionally, we are not prepared to say that evidence Cochran gave birth at home with the aid of a midwife constituted an act or failure to act which posed a danger to H.H.H.’s physical health or safety. While there is arguably some concern that H.H.H. had not been to a doctor since her birth five days earlier, we know from Alexander’s testimony regarding H.H.H.’s health and the results of her subsequent doctor’s visit that this omission had not posed any known danger to H.H.H. Additionally, Alexander testified that Cochran had indicated that H.H.H. had a doctor’s appointment on the Monday following the Friday on which the Department removed her.

Relators have shown that, on this evidence, the trial court could have come to only one reasonable conclusion, that the Department failed to show that an act or failure to act by Cochran or Hotz posed a danger to the physical health or safety under Section 262.201(b)(1) and that present possession of H.H.H. should have been returned to her parents as required under Section 262.201(a). Accordingly, we conditionally grant Cochran and Hotz’s petition for writ of mandamus and direct Respondent, the Honorable William C. Martin, III, to vacate his Temporary Order Following Adversary Hearing signed June 28, 2004, and order the return of the present possession of H.H.H. to her parents. The writ will issue only if Respondent fails to comply within ten days of this order.

      . We note the recent opinion of the Texas Supreme Court delineating two types of findings contemplated by the Texas Family Code, (1) findings to be made before taking a certain action but which need not be in writing and (2) findings that must be made in writing pursuant to a provision in the Texas Family Code. See In re J.P., 136 S.W.3d 629, 631 (Tex.2004). Here, it appears the findings under Section 262.201 fall into the first category. Although not expressly required by statute, these findings may be written, as they are here.

      . We emphasize that we address only the right to present possession of the child as governed by Section 262.201 of the Texas Family Code and that, in contrast, Section 161.001(1)(M) provides that a parent’s right to his or her child may be terminated on the basis that the parent's parental rights were previously terminated as to another child under Section 161.001(1)(D) or (E), so long as the current termination is also shown to be in the best interest of the child. See Tex. Fam. Code Ann. § 161.001(1)(M), (2) (Vernon 2002).

      . We note that we are measuring from the dates of the orders of termination. Although we do not know from the record when the ninth child was removed from the home, it is safe to assume that it was significantly longer ago than the orders were entered. That being so, fourteen months is the very minimum of time that could have passed between the acts or omissions for which parental rights were terminated in those proceedings and the birth of H.H.H.