source: Caselaw Access Project

author: WANDA McKEE FOWLER, Justice.

license: Public Domain

text:
    Kosti SHIRVANIAN, Kosti Shirvanian and Marian Shirvanian in their Capacities as Trustees of Kosti Shirvanian and Marian Shirvanian Family Trust, and Ralph Tufenkian and Savey Tufenkian in their Capacities as Trustees of Tufenkian Family Trust, Appellants, v. Earl E. DeFRATES, Rodney Proto, and Waste Management, Inc., Appellees.
    No. 14-02-00447-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 18, 2004.
    Rehearing Overruled March 31, 2005.

      Steven R. Rech, Daryl L. Moore, Sharon McCally, Houston, Pamela Stanton Baron, Austin, for appellants.

      D. Gibson Walton, Gwen J. Samora, Marie R. Yeates, Richard P. Hogan, Jr., Stephen Burton Crain, Houston, Rodney Acker, Dallas & Houston, David E. Keltner, Fort Worth, for appellees.
    Panel consists of Justice FOWLER and Justice HUDSON.
   OPINION ON REHEARING

WANDA McKEE FOWLER, Justice.

We originally issued an opinion on January 8, 2004 in favor of the appellants, the Shirvanians, holding that the suit they brought against the appellees was a direct action — not a derivative suit — and therefore not barred by an earlier derivative suit against appellees. That decision applied Delaware law. However, while the appeal was on motion for rehearing, the Delaware Supreme Court issued an opinion clarifying when a suit is derivative in that state. Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1081 (Del.2004). Based on the direction given by that opinion, we grant appellees’ motion for rehearing. The opinion issued January 8, 2004 is withdrawn and the following opinion is issued in its place.

Procedural Posture of the Appeal

Appellants Kosti Shirvanian and various family trusts (“Shirvanians”), formerly the largest non-institutional shareholders of Waste Management, Inc., brought suit against appellees Waste Management, and former chief executives of Waste Management, Earl E. DeFrates and Rodney Pro-to (‘Waste Management Group”). The Shirvanians asserted claims of fraud, intentional misrepresentation, negligent and grossly-negligent misrepresentation, and conspiracy, alleging that Proto and DeF-rates induced Kosti Shirvanian and his sister, Savey Tufenkian, not to follow through with their plans to sell 3 million shares of Waste Management stock. The trial court granted appellees’ motion for summary judgment and sustained appel-lees’ special exceptions without specifying the basis for its rulings. Finding that the lawsuit the Shirvanians bring is derivative in nature and barred by res judicata, we affirm.

Standards of Review

After the Shirvanians sued them, appellees moved for summary judgment as an alternative to their special exceptions. The trial court entered one order in which it sustained the special exceptions and granted summary judgment and dismissed the case with prejudice, and the court later entered a final judgment. Ordinarily, we review a trial court’s dismissal of a case upon special exceptions for an abuse of discretion. Melendez v. Exxon Corp., 998 S.W.2d 266, 273 (Tex.App.-Houston [14th Dist.] 1999, no pet.). However, “[w]hen a trial court dismisses a case upon special exceptions for failure to state a cause of action, we review that issue of law under a de novo standard.” Boales v. Brighton Builders, Inc., 29 S.W.3d 159, 163 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). We must accept as true all material factual allegations and all factual statements reasonably inferred from the allegations set forth in the appellants’ pleadings. Id. (citing Sorokolit v. Rhodes, 889 S.W.2d 239, 240 (Tex.1994)).

Appellees filed a traditional motion for summary judgment, and therefore had the burden to show that no genuine issue of material fact exists and that they are enti-tied to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). As defendants, they must conclusively negate at least one essential element of each of the Shirvanians’ causes of action or conclusively establish each element of an affirmative defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). The appellees’ summary judgment motion rested solely on their affirmative defenses. In deciding whether a disputed material fact issue exists precluding summary judgment on appellees’ affirmative defenses, we resolve every reasonable inference in favor of the Shirvanians and take all evidence favorable to them as true. Id. at 911. Because the trial court’s order does not specify the grounds upon which it relied in granting appellees’ motion, we will uphold the judgment if it is properly supported on any ground by competent summary judgment evidence. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995).

Relevant Factual Background

Waste Management’s shares are publicly traded. As of January, 1999, the Shir-vanians owned over 6.1 million shares of Waste Management stock, representing approximately 9.5% of all then-issued shares of Waste Management stock. They also owned options to purchase an additional 4 million shares. During the time period relevant to this lawsuit, Shirvanian and his sister, along with the family trusts named above, were the largest non-institutional investors in Waste Management. Shirvanian was Waste Management’s single largest shareholder. Waste Management had acquired USA Waste Services, Inc., which had previously acquired Shirva-nian’s company, Western Waste, Inc. Both Shirvanian and Tufenkian had sat on the board of directors of USA Waste Services.

Shirvanian alleges that he decided, with the advice of financial advisors and other professionals, to diversify his stock holdings and sell shares of Waste Management, but he could not do so until 1999 because his shares were restricted. In the interim, he borrowed against his Waste Management shares and invested in other stocks, thereby incurring margin debt in excess of $100 million. After consulting with five- accounting firms, he and his advisers planned to sell between 2.5 and 3 million shares of Waste Management at a rate of 50,000 to 100,000 shares per day between .mid-April or early May and late June of 1999, after the sale restrictions were removed. Tufenkian’s trust planned to sell 20,000 shares per month during the same time frame. Tufenkian did not document her plan to sell Waste Management shares during this time period, and the parties dispute whether any writing reflects Tufenkian’s intent to sell Waste Management shares. In any event, in January of 1999, Shirvanian sold approximately 150,000 of his shares at about $51.00 per share. He sold additional shares on four occasions in March, April, and May of 1999. Tufenkian sold 60,000 shares in increments of 20,000 before May of 1999.

In May, “out of a sense of ‘professional duty,”’ Shirvanian informed Proto, then president and chief operating officer of Waste Management, and DeFrates, -then chief financial officer, of the Shirvanians’ intent to sell Waste Management shares. Shirvanian testified that he called Proto to get advice as to whether he should sell his shares because he “was very involved with Waste Management.” As he explained, “Stocks I buy from outside area, I’m, basically, not that close to the situation.” In an effort to induce Shirvanian and Tufenki-an not to sell their shares, Proto and DeF-rates fraudulently misrepresented the financial well-being of Waste Management. Shirvanian and Tufenkian said these misrepresentations were made during conversations between Shirvanian or Tufenkian, on the one hand, and Proto and DeFrates, on the other hand, (1) at a February 14, 1999 wedding reception, (2) during a telephone conversation between Shirvanian and Proto in May, (3) during a conversation between Shirvanian, Proto, and DeF-rates at the Dallas, Texas airport, and (4) during at least two telephone conversations between Proto and Shirvanian after a drop in Waste Management’s stock on July 7, 1999. Shirvanian relayed the content of his conversations with Proto and DeFrates to his sister. The specific alleged misrepresentations are as follows:

• Shirvanian called Proto in May of 1999 to tell him about his intent to sell shares because they “were friends ... knew each other ... [and Shirvanian] trusted him [Proto], and ... kindly took his advice.... ” Proto urged Shir-vanian not to sell, saying that Waste Management “is sound,” “do not sell your stock,” and “hold your shares.” He also said Waste Management’s earnings were “great” and synergies were “great”; the stock would be “going to $70 per share”; and that management was “holding some things back” that he could not divulge to Shirvanian. Proto said Waste Management would “meet its earnings projections” for 1999; he anticipated no surprises; and no unfavorable financial circumstances were known or about to be revealed. Proto said he was not going to sell his Waste Management shares.
• In a telephone conversation with DeF-rates, also in May, DeFrates told Shir-vanian that Waste Management “will have a billion in cash flow next year,” and Waste Management would have enough money to “choke a horse.”
• Also in May, at the airport in Dallas, Texas, during a conversation between Shirvanian, Proto, and DeFrates, Pro-to said Waste Management was “doing great”; [everything was “OK”; and ‘Waste Management is going to make its numbers, ($3.30) for first quarter 1999 and year end 1999.”
• In a telephone conversation with Proto around the first week of May or May 8 or 9, 1999, Tufenkian asked Proto how Waste Management was doing and if the company was going to make enough money so that she could continue her charitable work, and he said, “Yes.”
• DeFrates and Proto said in separate conversations to Shirvanian, “I’m not selling my shares, and I don’t think you should sell yours.... [I]f I was you, I would not sell my shares.... I would not get panicked.... If you can ... keep your margins, I would try to do it; and I’m doing the same thing. I’m trying to save whatever I have.... [T]he company is going to do well. Why do you want to sell your shares?” Proto and DeFrates told Shirvanian not to sell because it would “hurt the company” and “it won’t look good for the company for Kosti to sell shares.”
• DeFrates and Proto told Shirvanian that “[e]verything we say is true facts and you can depend on it; we are going to make our earnings; and we are going to make our earnings next year; and if I was you, I would not sell my shares.”
• At a February 14,1999 wedding reception, in response to Shirvanian’s query as to whether Waste Management would split its stock if it went up, Proto assured Shirvanian, with Tufen-kian present, that “[w]hen the stock goes to $60, we will split the stock and Kosti is going to be a billionaire. He’s going to make so much money, he wouldn’t know what to do with it.” TufenMan’s account of her conversation with Proto at the reception differs. She testified that Proto told her that Waste Management would “consider” splitting the stock if it went up.
• Proto told Shirvanian the “company was doing great.” Proto made a “personal commitment” to Shirvanian: “The company was doing great; they are going to make their earnings.” DeFrates and Proto told Shirvanian “there was no reason to worry about anything else.” They told Shirvanian “[w]e are going to make the 3.05. No problem. We’re going to make a billion dollars a year positive cash flow.”

As a result of these many misrepresentations, the Shirvanians cancelled their plans to sell more Waste Management shares. In June of 1999, the Shirvanians possessed option rights to purchase up to 4 million additional shares of Waste Management stock; if not exercised by June 30, 1999, certain of the options would expire. Shirvanian exercised his options, purchasing-885,366 more shares of Waste Management stock. But, while the Shirvanians cancelled their plans to sell shares and even purchased more shares through options^ — -all at the urging of DeFrates and Proto — DeFrates and Proto sold shares of Waste Management stock.

In July, Waste Management issued several press releases, including releases distributed on July 6, 1999, and July 29,1999, in which the company announced that it would not meet its earnings projections and that previously announced earning expectations were wrong. On July 7, Waste Management’s stock fell from $53.56 to below $33.94 per share, the largest one-day drop in share price in Waste Management’s company history. During a telephone conversation on July 8, Proto told Shirvanian: ‘We missed our projections,” and the market “over reacted”; we don’t know why the market “reacted so badly”; the “market was unfair”; the market is “punishing us for bad information.” According to Shirvanian, Proto also made the following comments: (1) Waste Management’s stock “should not have fallen below $45 per share” and that “everything is OK”; “ah will be OK”; and Waste Management’s stock value “will come back.” (2) Waste Management will “absolutely make its numbers”; “we are sure.” (3) There is “no more bad news”; everything is “behind us”; there will not be a “second shoe to fall.” (4) Kosti should “not get panicky”; and “don’t sell.”

Sometime between July 9 and July 13, 1999, Shirvanian had another telephone conversation with Proto in which Proto said Waste Management had a “$45 value if liquidated today”; Waste Management stock “should go up to $50 per share”; things were “great”; and “I don’t know of any more bad news.” After the July 29 press release in which Waste Management further revised its earning projections downward, however, Waste Management’s stock fell from $33 per share to $26 per share. All total, Waste Management’s stock dropped from $59 per share to $24 per share during the summer of 1999.

In reliance on the above misrepresentations made by Proto and DeFrates, the Shirvanians lost the opportunity to sell their shares at a more favorable price and lost over $50 million. Shirvanian sold more than 3.5 million shares of Waste Management stock between July 9, 1999, and August 13,1999, at an average price of $22 per share. Furthermore, the Shirva-nians allege they lost over $32 million relating to the stock options they exercised, due in part to tax liability on Shirvanian’s exercise of the options.

Because of the drop in Waste Management’s stock value, derivative and shareholder class action lawsuits were commenced against Waste Management and some of its former executives, including DeFrates and Proto. Two derivative lawsuits brought in Delaware state court were consolidated in the case styled In re Waste Management, Inc. Shareholders Derivative Litigation, C.A. No. 17313NC. That litigation was settled and the settlement approved by the Delaware Court of Chancery on September 30, 2001.

The Shirvanians filed this lawsuit on January 4, 2000, asserting causes of action for fraud and intentional misrepresentation, negligent and grossly-negligent misrepresentation, conspiracy, and damages. They seek to recover as damages the difference in the value of over 5 million shares of Waste Management stock before and after the July, 1999 decline in Waste Management’s stock value.

Appellees filed special exceptions and a motion for summary judgment. The basis for appellees’ special exceptions is that the Shirvanians failed to state a cause of action because Texas does not recognize a common-law cause of action for fraud for a “holder claim” — a claim that Proto and DeFrates induced the Shirvanians to “hold” their stock rather than sell it — and this court should adopt federal securities law to bar such a claim. In their motion for summary judgment, appellees sought to prevail on any one of the following affirmative defenses:

(1) The Shirvanians lack capacity to sue because all of their claims can be brought only in the name of the corporation as a derivative action and none of the claims are personal to the Shirvani-ans.
(2) Because the Shirvanians seek to recover for an injury common to all Waste Management shareholders, the Shirvani-ans are improperly attempting to assert derivative claims barred under res judi-cata principles by the prior judgment entered by the Delaware court in the consolidated shareholder derivative lawsuit brought against Waste Management based on the decline of Waste Management’s stock in July of 1999.
(3) The Shirvanians’ claims are barred by the doctrines of unclean hands and unlawful acts because they (a) sought and attempted to trade on insider information from Proto and DeFrates and (b) allege they received fraudulent insider information.
(4) Even if their claims are direct claims, the Shirvanians’ claims are barred under the doctrine of implied “conflict” preemption principles by federal securities laws that prohibit insider trading.

Appellees also argue on appeal that the trial court did not abuse its discretion in denying the Shirvanians’ postjudgment motion for leave to amend to add a claim for overpayment of taxes predicated on Shirvanian’s exercise of his options to purchase Waste Management stock at below-market prices because the Shirvanians’ original complaint did not plead such a claim, and it also is a “holder” claim -that fails as a matter of law.

Analysis

Though the parties cite extensive case-law, they concede that the Texas Supreme Court has not addressed the seminal questions presented by this appeal. This appeal presents us with an unusual procedural framework because the trial court sustained special exceptions and at the same time granted a motion for summary judgment. We first address the propriety of summary judgment. Before doing so, we again note that appellees did not move for summary judgment on the basis that the Shirvanians cannot prove the elements of their claims for fraud, negligent misrepresentation, or conspiracy. Appellees moved for summary judgment on their defenses. We resolve every reasonable inference in favor of the Shirvanians and take all evidence favorable to them as true. See Science Spectrum, 941 S.W.2d at 911.

A. Summary Judgment Was Proper.

1. The Shirvanians’ claims are derivative under Delaware law.

In their second issue presented, the Shirvanians assert the trial court erred in granting summary judgment on the ground that their claims are derivative, and thus are barred by the final judgment entered in the Delaware shareholder derivative lawsuit from which the Shirvanians did not opt out. Appellees argue the Shirvanians lack capacity to sue individually because, under Delaware law — which all parties agree controls the issue — the Shirvanians’ claims are derivative, as they are predicated on the decline in the value of their Waste Management stock.

As mentioned at the beginning of the opinion, since this case was originally submitted, the Delaware Supreme Court issued an opinion in which it clarified the issues to be determined in analyzing whether a stockholders’ suit is direct or derivative. Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031 (Del.2004). The Delaware court articulated the standard as follows: “The analysis must be based solely on the following questions: Who suffered the alleged harm — the corporation or the suing stockholders, individually — and who would receive the benefit of any recovery or other remedy?” Id. at 1035. To decide if the harm was to the corporation or to the stockholder individually, the court suggested the most relevant question is whether the stockholder can prevail without showing an injury to the corporation. Id. at 1036. A court should look to the nature of the wrong and to whom the relief should go. Id. at 1039. The stockholder’s claimed direct injury must be independent of any alleged injury to the corporation. Id. The stockholder must demonstrate that the duty breached was owed to the stockholder and that he or she can prevail without showing a corresponding injury to the corporation. Id.

Applying those principles here leads to the conclusion that the Shirvanians’ complaints are derivative, not direct, and could be asserted only on behalf of the corporation. The misrepresentations the Shirva-nians allege caused their injury were based on mismanagement of the corporation’s assets. The Shirvanians cannot prove their injury without proving an injury to the corporation. We hold, therefore, that the Shirvanians’ suit is derivative under Delaware law.

2. The Shirvanians’ claims are barred by res judicata.

Two derivative lawsuits brought in Delaware state court on behalf of all Waste Management stockholders were consolidated in the case styled, In re Waste Management, Inc. Shareholders Derivative Litigation. The shareholder derivative litigation settled and final judgment was entered on September 20, 2001. The judgment states that all shareholders were given notice of the settlement and an opportunity to object. The judgment further provides that it has res judicata effect as to “all claims and issues that have or could have been raised.” The judgment provides it has a preclusive effect in all pending and . future lawsuits encompassed by the release. The release encompasses all causes of action that have been or could have been alleged or asserted by shareholders or the company for damages or equitable relief.

Res judicata precludes relitigation of claims that have been finally adjudicated, or that arise out of the same subject matter and could have been litigated in a prior action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 654 (Tex.1996). Res judicata requires proof of the following elements: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action. Espeche v. Ritzell, 123 S.W.3d 657, 665 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). Because we have determined the Shirvanians’ claim is derivative, not direct, the Shirvanians’ suit is barred by res judicata and should have been brought in the consolidated shareholders’ derivative action. Accordingly, summary judgment was proper. The Shirvanians’ second issue is overruled.

B. Special Exceptions Were Properly Sustained.

In their first issue, the Shirvanians contend the trial court erred in granting ap-pellees’ special exceptions. When reviewing a trial court’s dismissal of a cause of action on special exceptions, we must accept as true all of the factual allegations set out in the challenged pleading. Aran-da v. Insurance Co. ofN. Am., 748 S.W.2d 210, 213 (Tex.1988). The legal conclusions of the trial court as to whether the plaintiffs petition adequately established a cause of action are subject to de novo review in this court. Boales, 29 S.W.3d at 163. Appellees filed special exceptions in which they contended the Shirvanians failed to state a viable individual cause of action. Because the Shirvanians’ claims were of a derivative nature and not individual claims, even accepting the Shirvani-ans’ allegations as true, they failed to state a viable individual cause of action. Accordingly, the trial court properly sustained the special exceptions. The Shirva-nians’ first issue is overruled.

C. The Trial Court’s Judgment Was Not Overbroad.

In their third issue, the Shirvani-ans contend the trial court’s judgment is overbroad in that it grants relief not addressed in the special exceptions or summary judgment motion. The Shirvanians contend that appellees faded to address, in their special exceptions or their motion for summary judgment, the Shirvanians’ claims regarding the tax liability of exercising the options. The Shirvanians exercised options to purchase 885,366 shares of Waste Management stock at $6.8333 per share when the market value of the stock was $53.75 per share. The Shirvanians contend they had to pay taxes on the value of the shares on July 30, 1999, before the price of the stock dropped.

The Shirvanians’ original petition, however, did not raise a cause of action for overpayment of taxes. While the Shirvani-ans recited, in the factual background of their petition, their exercise of the stock options, the only fraud claims asserted against appellees were based on alleged misrepresentations that caused the Shirva-nians not to sell their stock. After the trial court ruled on appellees’ special exceptions and motion for summary judgment, the Shirvanians filed a document titled “Plaintiffs Motion for New Trial, Motion for Reconsideration and Request for Leave to Amend.” Attached to that motion was Plaintiffs First Amended Petition. In the amended petition, the Shirva-nians included an allegation that, in relying on appellees’ misrepresentations, they exercised options to purchase 800,000 shares of Waste Management stock. Although the value of the Waste Management stock declined significantly, it did not decline below the $6.8333 paid by the Shirvanians when they exercised their options. Therefore, the Shirvanians’ injury from the exercise of the options was the payment of taxes on the value of the shares on July 30, 1999.

Texas follows a “fair notice” standard for pleading, which looks to whether the opposing party can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896-97 (Tex.2000). Here, because no cause of action was pleaded prior to the trial court’s ruling, appellees could not be expected to address a cause of action that had not yet been pleaded. The trial court did not err because the cause of action was not before the court at the time of its ruling. The Shirvanians’ third issue is overruled.

In their fourth issue, the Shir-vanians contend the trial court erred in refusing to permit them to amend their petition after sustaining appellees’ special exceptions. After, the trial court sustains special exceptions, it may not dismiss a suit until the party has been given an option to amend, unless the trial court can determine that an amendment will not cure the defect. Geochem Labs., Inc. v. Brown & Ruth Labs. Inc., 689 S.W.2d 288, 290 (Tex.App.-Houston [1st Dist.] 1985, writ ref d n.r.e.). Summary judgment may also be proper if a pleading deficiency is of the type that could not be cured by an amendment. Ryan v. Friesenhahn, 911 S.W.2d 113, 115 (Tex.App.-San Antonio 1996), aff'd by, 960 S.W.2d 656 (Tex.1998). Here, the Shirvanians could not have cured the defect in their pleadings by an amendment. Their claim for overpayment of taxes is a derivative shareholders’ claim because their injury derives from the drop in the stock’s value and cannot be separated from that of the corporation. See Tooley, 845 A.2d at 1039. Because the proposed amended pleadings could not cure the defect, the trial court did not err in denying the Shirvanians’ request for leave to amend. The Shirvanians’ fourth issue is overruled.

Conclusion

Because we conclude the Shirvanians’ claims are derivative under Delaware law, the claims are barred by the release executed in the derivative lawsuit brought in Delaware state court by Waste Management shareholders. We affirm the trial court’s order sustaining appellees’ special exceptions and granting summary judgment in their favor.

Former Chief Justice SCOTT BRISTER not participating.

      . One defendant, Gregory T. Sangalis, former general counsel of Waste Management, was nonsuited.

      . There is one alleged factual basis for the conspiracy claim, according to Shirvanian's testimony. He alleges that when Proto, DeF-rates, and Sangalis were at a meeting in Mexico during the operative time frame, "they were conspiring and doing things that was not the best of the corporate — or my benefit or any shareholder’s benefit.”

      . This argument was the focus of appellees' combined special exceptions and motion for summary judgment. On appeal, appellees no longer make this argument their focal point, and instead argue that this court should only reach this argument if we conclude summary judgment was not proper. We make this note because appellees chastise the Shirvanians for focusing on the special exceptions argument. Such a contention is without merit when it is appellees who have shifted their argument on appeal.


author: J. HARVEY HUDSON, Justice.

text:
    Antoine ADAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 14-03-01255-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 9, 2004.
    Discretionary Review Refused April 27, 2005.
    Leora Teicher Kahn, Houston, for appellant.
    Donald W. Rogers, Jr., Houston, for ap-pellee.
    Panel consists of Chief Justice HEDGES and Justices HUDSON and SEYMORE.
   OPINION

J. HARVEY HUDSON, Justice.

A juvenile court certified appellant Antoine Adams, a fourteen-year-old juvenile, to stand trial as an adult for the offense of murder. The juvenile court transferred the case to district court where appellant was indicted for the offense of aggravated assault. See Tex. Pen.Code ANN. § 22.02 (Vernon 2003). Appellant pled guilty to aggravated assault and was subsequently sentenced to twenty (20) years’ confinement in the Texas Department of Criminal Justice, Institutional Division. In three points of error, appellant challenges the district court’s jurisdiction to decide his case. We affirm.

The record reflects that on June 1, 2002, the day before appellant’s fifteenth birthday, he and several other individuals attacked and killed the complainant using their fists and a number of weapons including a hammer, a cane, and a knife. A juvenile delinquency petition was filed in the 313th Juvenile District Court, Cause No.2002-06065J AMENDED, alleging that appellant had committed homicide, a first degree felony. The juvenile court held a certification hearing to determine if appellant should stand trial as an adult for the offense of murder. The court certified appellant as an adult, waived its jurisdiction in the juvenile proceedings, and transferred the matter to the 351st District Court. A grand jury indicted appellant with the offense of aggravated assault, a lesser included offense of murder, and he pled guilty without challenging the court’s jurisdiction.

Appellant contends on appeal that the district court lacked jurisdiction. Specifically, he argues the juvenile court should have retained its exclusive jurisdiction rather than transferring the case. He cites Texas Family Code section 54.02 to support this contention. Appellant admits that the juvenile court may waive jurisdiction under section 54.02 in certain instances, but contends he does not fall within one of the permissive exceptions. Section 54.02 provides that a juvenile court may waive its exclusive jurisdiction and transfer a case to district court or criminal district court if the child is fourteen (14) years of age or older and is alleged to have committed a capital or first degree felony. See Tex. Fam.Code Ann. § 54.02(a)(2)(A) (Vernon 2002). But the child must be fifteen (15) years of age or older for the court to waive its jurisdiction if the child is alleged to have committed only a second or third . degree felony. See id. § 54.02(a)(2)(B). Appellant contends that because he was fourteen when he committed the offense and was ultimately indicted with only a second degree felony, the statute did not permit the juvenile court to waive its exclusive jurisdiction.

However, appellant waived his right to challenge the district court’s jurisdiction when he entered a guilty plea without contesting jurisdiction as required by article 4.18 of the Texas Code of Criminal Procedure. Article 4.18 provides specific requirements which an underage defendant must meet to contest a court’s jurisdiction on the basis of age. See Tex.Code CRiM. PROC. Ann. art. 4.18 (Vernon Supp. 2004-2005). Specifically, the article states in pertinent part, “[a] claim that a district court or criminal district court does not have jurisdiction over a person because jurisdiction is exclusively in the juvenile court and that a juvenile court could not waive jurisdiction ... must be made by written motion in bar of prosecution .... ” Id. (emphasis added). Furthermore, “the motion must be filed and presented to the judge ... if the defendant enters a plea of guilty or no contest, before the plea.” Id. (emphasis added). “A person may not contest the jurisdiction of the court on the ground the juvenile court has exclusive jurisdiction if: (1) the person does not file a motion within the time requirements of this article — ” Id. (emphasis added).

Here, appellant never filed a motion in bar of prosecution as required by article 4.18. Instead, appellant entered a plea of guilty without making any challenges to the district court’s jurisdiction. As such, he cannot contest the court’s jurisdiction for the first time on appeal. See Pratt v. State, Nos. 14-99-00162-CR, 14-99-00163-CR, 2000 WL 963530, at *3 (Tex. App.-Houston [14th Dist.] July 13, 2000) (not designated for publication) (holding that a juvenile defendant waived any challenge of jurisdiction when he pled guilty without contesting jurisdiction as required by article 4.18); see also Miller v. State, 981 S.W.2d 447 (Tex.App.-Texarkana 1998, pet. ref d) (holding that when a defendant fails to comply with the statutory requirements of article 4.18 of the Code of Criminal Procedure, he fails to preserve for review his claim that the juvenile court’s waiver of jurisdiction was void). Appellant’s contentions are overruled.

The judgment of the trial court is affirmed.


author: BOB McCOY, Justice.

text:
    Curtis Wayne POPE Jr., Appellant, v. The STATE of Texas, State.
    No. 2-03-195-CR.
    Court of Appeals of Texas, Fort Worth.
    Dec. 23, 2004.
    Rehearing Overruled March 3, 2005.

      The Kearney Law Firm, Em. Reagan Wynn, Fort Worth, for Appellant.

      Tim Curry, Crim. Dist. Atty., Charles M. Mallín, Asst. Crim. Dist. Atty., Chief of the Appellate Section, Edward L. Wilkinson, David Lobingier, Joe Shannon, Jr., Asst. Crim. Attys, Fort Worth, for Appel-lee.
    PANEL B: HOLMAN, WALKER, and McCOY, JJ.
   OPINION

BOB McCOY, Justice.

INTRODUCTION

A jury found appellant, Curtis Wayne Pope, Jr., guilty of murder, and the trial judge sentenced him to life imprisonment. In six points on appeal, Pope complains that the trial court erred by (1) allowing the State to elicit testimony regarding Pope’s appointed DNA expert in violation of the work-product component of his attorney-client privilege, (2 & 3) excluding testimony elicited by Pope on cross-examination of certain State witnesses in violation of Pope’s Sixth Amendment right of confrontation, (4) improperly instructing the jury, (5) allowing improper jury argument by the State, and (6) overruling his motion for new trial. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 22, 2000, the body of a stabbing victim was found inside a trailer at a construction site. Blood was found on the office furniture, the floor of the office, and the victim’s clothes. DNA testing of the blood conducted by GeneScreen, an independent lab, revealed that some of this blood was from Pope, and he was charged with murder. A plea of not guilty was entered on his behalf.

Prior to trial, Pope filed a Motion for Independent Examination of DNA Evidence, requesting that Robert Benjamin be permitted to “review and examine all reports and testing already performed ... for purposes of deoxyribonucleic acid (DNA) testing and comparison.” The trial court granted the motion, and the defense later designated Dr. Benjamin as its DNA expert.

At trial, Pope’s defense counsel cross-examined the State’s DNA experts, William Watson and Jamie King, regarding the method of DNA testing used, the level of “professional judgment” needed to perform DNA analysis, and whether errors were made in the analysis. On redirect, the trial court allowed the State, over objection of defense counsel, to introduce testimony regarding Dr. Benjamin’s qualifications, the materials provided to him, and whether he had requested additional testing. Pope’s counsel objected to this line of questioning, partially on the grounds that it violated his client’s work-product and attorney-client privileges. The trial court overruled this objection and allowed the testimony. Defense counsel did not call Dr. Benjamin to testify at trial, nor did they present evidence that would indicate to the jury that the defense had even employed a DNA expert.

Part of defense counsel’s trial strategy concerned the mislabeling of samples submitted for DNA testing. In that regard, defense counsel sought to elicit testimony on cross-examination from Karla Carmichael and Aliece Watts regarding problems at the Fort Worth Police Department’s Crime Lab (the “Crime Lab”). The testimony was presented outside the presence of the jury in a bill of exception.

In the bill, Carmichael testified that there had been some problems at the Crime Lab with the “misidentification ... of samples.” However, when questioned further, Carmichael testified only to a problem with the ventilation hoods at the lab and to problems involving DNA testing performed by the Crime Lab. On redirect, Carmichael testified that none of the problems had anything to do with the handling or processing of evidence, but arose in the context of DNA analysis, and that the Crime Lab did not do the DNA testing in this case, but instead submitted the samples to Orchid Cellmark for DNA testing.

In the bill, Watts acknowledged that there had been “some problems with the handling of evidence” at the Crime Lab and that there had been some investigations of the handling of evidence at the Crime Lab, but stated that she did not know if the accusations had ever been substantiated. Further, although Watts acknowledged that there had been accusations of mishandling of evidence, and that as a result there existed the possibility that the evidence in this case could have been mishandled, she indicated by her testimony that she had no evidence that the samples in this case had been mishandled.

Pope was found guilty by the jury and sentenced to life imprisonment by the trial judge. On the day that the jury returned its verdict, Carmichael was placed on administrative leave from her employment at the Crime Lab. She was subsequently terminated for, among other things, “[her] failure to perform assigned work in a satisfactory manner” and “[her] carelessness or negligence in performing work.”

Pope filed this appeal on May 9, 2003. He later filed a Motion for New Trial asserting violations of his due process rights and his Sixth Amendment right to confrontation. Pope’s Motion for New Trial was overruled by operation of law on July 23, 2003.

WORK-PRODUCT PRIVILEGE

In his first point, Pope complains that the work-product component of his attorney-client privilege was violated when the trial court allowed the State to put on testimony indicating that his DNA expert, Dr. Benjamin, had been provided with the State’s DNA testing and had failed to request additional testing or question the testing. Further, Pope complains that the trial court committed error when it allowed the State to put on this testimony and then point out that Dr. Benjamin was not called by the defense to testify. Pope argues that this violates the work-product component of his attorney-client privilege because the jury could have only concluded from this testimony (and the State’s closing argument) that Dr. Benjamin believed that the testing was properly done.

The State contends that the testimony regarding the materials provided to Dr. Benjamin was not work-product and therefore not privileged and that the prosecution may comment on a defendant’s failure to call an expert witness when the comment is directed at a disputed issue.

A. Standard of Review

We review the trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App.2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997); Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex.Crim.App.1990). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action; rather, it is a question of whether the court acted without reference to any guiding rules or principles, and the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse. Montgomery, 810 S.W.2d at 391. We will not reverse a trial court’s ruling on the admission of evidence as long as the ruling is within the zone of reasonable disagreement. Id.

B. Analysis

Work-product

The United States Supreme Court has described the work-product doctrine as sheltering “[a]t its core ... the mental processes of the attorney, providing a privileged area within which [an attorney] can analyze and prepare his client’s case.” Washington v. State, 856 S.W.2d 184, 187 (Tex.Crim.App.1993) (quoting United States v. Nobles, 422 U.S. 225, 238, 95 5.Ct. 2160, 2170, 45 L.Ed.2d 141 (1975)). The doctrine extends not only to the work-product of the attorney, but to the work-product of his agents. Id. Further, the Texas Court of Criminal Appeals has indicated that the work-product of a court-appointed DNA expert falls within the privilege. See Taylor v. State, 939 S.W.2d 148, 152 (Tex.Crim.App.1996).

While Texas privileges are found in the Texas Rules of Evidence and the Texas Rules of Criminal Procedure, Rule 501 of the Texas Rules of Evidence provides, in relevant part: “Except as otherwise provided by Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory authority, no person has a privilege to ... (2) refuse to disclose any matter; [or] ... (4) prevent another from being a witness or disclosing any matter or producing any object or writing.” Tex.R. Evid. 501.

Article 39.14 of the Texas Code of Criminal Procedure addresses the discovery of work-product in a criminal case. TexUode Crim. Proc. Ann. art. 39.14 (Vernon Supp.2004-05). Article 39.14(a) provides that the “work-product of counsel in the case and their investigators and their notes or report” is exempt from discovery. Id. art. 39.14(a). However, the Texas Code of Criminal Procedure also provides that a trial court may order disclosure of the “name and address of each person the other party may use at trial to present evidence under Rules 702, 703, and 705” of the Texas Rules of Evidence. Id. art. 39.14(b). The State argues that because the Code of Criminal Procedure in article 39.14(a) acknowledges that a party’s work-product is exempt from disclosure, while at the same time providing for the discovery of a testifying expert’s identity in article 39.14(b), the Texas legislature has, by implication, declared that a testifying expert’s identity is not privileged work-product. We agree that a testifying expert’s identity, once disclosed, is not work-product.

As pointed out by the State, the defense designated Dr. Benjamin as their testifying expert for trial. Because they did so, we conclude that Dr. Benjamin’s identity is no longer privileged. See art. 39.14(a) & (b). Further, testimony regarding the witnesses’ knowledge of Dr. Benjamin’s qualifications, and the materials provided to him, cannot be privileged because they do not constitute work-product of the defense. See Nobles, 422 U.S. at 238, 95 S.Ct. 2160 (stating that the work-product doctrine shelters, at its core, the mental processes of an attorney); Washington, 856 S,W.2d at 187 (indicating that the work-product doctrine protects, in addition to the mental processes of the attorney, “material prepared by agents for the attorney as well as those prepared by the attorney himself’). On the other hand, we believe that the testimony elicited by the State regarding Dr. Benjamin’s failure to request additional testing indirectly violated Pope’s work-product privilege because the testimony could have had the effect of disclosing Dr. Benjamin’s mental impressions regarding the absence of a need for further tests. Thus, the trial court abused its discretion in allowing this part of the testimony.

Harm Analysis

We must conduct a harm analysis to determine if the error would call for reversal of the judgment. Tex.R.App. P. 44.2. If the error is constitutional, we apply Rule 44.2(a) and reverse unless we determine beyond a reasonable doubt that the error did not contribute to appellant’s conviction or punishment. Tex.R.App. P. 44.2(a). Otherwise, we apply Rule 44.2(b) and disregard the error if it does not affect the appellant’s substantial rights. Tex.R.App. P. 44.2(b); see Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998) (op. on reh’g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999); Coggeshall v. State, 961 S.W.2d 639, 642-43 (Tex.App.-Fort Worth 1998, pet. ref'd) (en banc).

Pope contends that we should employ a constitutional harm analysis arguing that the State’s violation of his work-product privilege implicates his Sixth Amendment right to effective assistance of counsel. However, constitutional error within the meaning of Texas Rule of Appellate Procedure 44.2(a) is an error that directly offends the United States Constitution or the Texas Constitution, without regard to any statute or rule that might also apply. See Tate v. State, 988 S.W.2d 887, 890 (Tex.App.-Austin 1999, pet. ref'd). Further, with respect to the erroneous admission or exclusion of evidence, constitutional error is presented only if the correct ruling was constitutionally required. Id.

Here the error was in the erroneous admission of evidence in violation of Pope’s work-product privilege. While the work-product privilege may have some relationship to Pope’s Sixth Amendment right to effective assistance of counsel, it is not itself a constitutionally protected right. See Nobles, 422 U.S. at 236-37, 241 n. 15, 95 S.Ct. at 2169-70, 2171 n. 15 (recognizing the work-product privilege in a criminal case is based upon public policy and rejecting the argument that a court order requiring disclosure of work-product violated respondent’s Sixth Amendment right to effective assistance of counsel where order was a result of respondent’s election to make “testimonial use” of report and court order was “limited and conditional”); Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 393, 91 L.Ed. 451 (1947) (recognizing in a civil case the work-product doctrine as a privilege based upon public policy). Further, Pope’s argument is not that he was denied the effective assistance of counsel at trial, but rather that if we allow this type of violation to occur it will make it difficult for attorneys in the future to satisfy their Sixth Amendment duty to fully investigate all possible defenses for fear that their work-product may be used against their clients. Accordingly, we conclude that the error in this case is not constitutional.

Because we determine that the error is not constitutional, Rule 44.2(b) is applicable. Therefore, we are to disregard the error unless it affected appellant’s substantial rights. Tex.R.App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence on the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)); Coggeshall, 961 S.W.2d at 643. In making this determination, we review the record as a whole. Kotteakos, 328 U.S. at 764-65, 66 S.Ct. at 1248.

As previously discussed, Dr. Benjamin’s identity and qualifications are not work-product, and the testimony regarding the materials provided to Dr. Benjamin was not work-product. In addition, the State’s comments regarding Pope’s failure to call a DNA expert were not improper because the State is entitled to comment on an accused’s failure to produce testimony from sources other than himself when it is relevant to a disputed issue, and here Pope placed the State’s evidence into dispute. See Jackson v. State, 17 S.W.3d 664, 674 (Tex.Crim.App.2000); Patrick v. State, 906 S.W.2d 481, 490-91 (Tex.Crim.App.1995), cert. denied, 517 U.S. 1106, 116 S.Ct. 1323, 134 L.Ed.2d 475 (1996); Carrillo v. State, 566 S.W.2d 902, 912 (Tex.Crim.App. [Panel Op.] 1978). Further, the testimony regarding Dr. Benjamin’s failure to request additional testing did not directly disclose what Dr. Benjamin’s mental impressions were, rather, the testimony addressed his lack of action, which one might conclude was due to an opinion he held. Finally, Pope’s assertion that the jury could have only come to the conclusion that the defense’s expert agreed with the State’s experts is a logical conclusion the jury could have reached from admissible evidence; that is, there was a DNA expert who reviewed the state’s materials but was not called as a witness by the defendant.

Evidence of a defendant’s guilt is also a factor to be considered in any thorough harm analysis. See Motilla v. State, 78 S.W.3d 352, 358 (Tex.Crim. App.2002). Factors to be considered in weighing the defendant’s guilt in the harm analysis include the following: (1) the sufficiency of the evidence to support the conviction; (2) the character of the error and its connection with other evidence; and (3) whether the State emphasized the error. See id. at 358-59. In this case, there was significant circumstantial evidence of Pope’s guilt. Pope admitted to meeting with the victim shortly before he was killed, he failed to keep an appointment that he and the victim had with another person later that evening, he possessed an unusual knife consistent with the victim’s wounds, and he failed to appear when trial was scheduled to begin. Further, as previously discussed, Pope’s work-product privilege was violated only indirectly, and there was sufficient admissible evidence from which the jury could have reached the same conclusion. Finally, although the State in its closing commented that if there had been a problem with the results, Pope would have had Dr. Benjamin or another expert testify, the State did not specifically mention Dr. Benjamin’s failure to request additional testing.

Therefore, after reviewing the record, we conclude that, in the context of the entire case against appellant, the trial court’s error in admitting the testimony in question did not have a substantial or injurious effect on the jury’s verdict and did not affect appellant’s substantial rights. See King, 953 S.W.2d at 271. We conclude that the error was harmless. See Tex. R.App. P. 44.2(b).

Because we determine that any error by the State in eliciting testimony regarding Dr. Benjamin’s failure to request additional testing was hannless, we need not address Pope’s contention that the testimony elicited by the State regarding Dr. Benjamin’s failure to request additional testing, when combined with the State’s comments regarding the defense’s failure to call a DNA expert, constituted a violation of Pope’s work-product. Accordingly, we overrule Pope’s first point.

EXCLUDED TESTIMONY OF CARMICHAEL AND WATTS

In points two and three, Pope complains that the trial court erred by excluding certain testimony of State witnesses Carmichael and Watts in violation of Pope’s Sixth Amendment right to confrontation. Pope claims that the trial court’s exclusion of this testimony violated his Sixth Amendment right to confrontation because the excluded testimony “weighed on” the witnesses’ qualifications and credibility. Pope argues that this testimony should have been presented to the jury because the DNA evidence was the primary evidence presented against him at trial, and “proof of the ongoing problems with mislabeling and mishandling [of] evidence” was the only meaningful way for Pope to attack Carmichael’s and Watts’s credibility and qualifications. The State responds that the trial court did not err because the evidence is not relevant or admissible under Rules 401, 402, 403, 404(b), and 608(b) of the Rules of Evidence. We agree that the trial court did not err in excluding the proffered testimony.

A. Standard of Review

As previously stated, we review the trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Burden, 55 S.W.3d at 608; Green, 934 S.W.2d at 101-02; Montgomery, 810 S.W.2d at 379-80.

Further, the standard for reviewing the trial court’s decision to limit cross-examination of a witness regarding credibility is whether the trial court abused its discretion. Cantu v. State, 939 S.W.2d 627, 635 (Tex.Crim.App.), cert. denied, 522 U.S. 994, 118 S.Ct. 557, 139 L.Ed.2d 399 (1997).

B. Analysis

The Texas Rules of Evidence provide that to be admissible evidence must be relevant. Tex.R. Evid. 402. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex.R. Evid. 401. In determining whether evidence is relevant, courts look to the purpose for offering the evidence and whether there is a direct or logical connection between the offered evidence and the proposition sought to be proved. Reed v. State, 59 S.W.3d 278, 281 (Tex.App.-Fort Worth 2001, pet. ref d). Further, even if the evidence is relevant, Rule 403 mandates its exclusion “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Tex.R. Evid. 403; see also Jones v. State, 944 S.W.2d 642, 651 (Tex.Crim.App.1996), cert. denied, 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997).

The Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. U.S. Const. amend. VI; Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 1359, 158 L.Ed.2d 177 (2004); Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974); Rankin v. State, 41 S.W.3d 335, 344 (Tex.App.-Fort Worth, 2001 pet. ref'd). The right of confrontation encompasses more than the opportunity to physically confront the witnesses. Davis, 415 U.S. at 315, 94 S.Ct. at 1110. A primary interest secured by the Confrontation Clause is the right of cross-examination. Id., 415 U.S. 308, 94 S.Ct. at 1110.

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Id. at 316, 94 S.Ct. at 1110. The cross-examiner not only is permitted to delve into the witness’s story to test the witness’s perceptions and memory, but also is traditionally allowed to impeach, i.e., discredit, the witness. Id. Hence, the right to cross-examine a testifying state witness extends to any matter that could reflect on the witness’s credibility. Virts v. State, 739 S.W.2d 25, 28-29 (Tex.Crim.App.1987). This includes impeaching the witness with relevant evidence that might reflect bias, interest, prejudice, inconsistent statements, traits of character affecting credibility, or evidence that might go to any impairment or disability affecting the witness’s credibility. Id. at 29; Rankin, 41 S.W.3d at 345; Alexander v. State, 949 S.W.2d 772, 774-75 (Tex.App.-Dallas 1997, pet. ref'd). The trial judge should allow the accused great latitude to show any relevant fact that might tend to affect the witness’s credibility. Virts, 739 5.W.2d at 29; Koehler v. State, 679 S.W.2d 6, 9 (Tex.Crim.App.1984). Nevertheless, there are several areas where cross-examination may be inappropriate, and in those cases, the trial judge has the discretion to limit cross-examination. See Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986). A trial judge may limit cross-examination based on concerns about harassment, prejudice, confusion of the issues, the safety of the witness, or interrogation that is repetitive or only marginally relevant. See id.

Here the excluded testimony was not directed at the credibility or qualifications of the witnesses, but was offered to prove that there were problems with the identification and handling of evidence at the Crime Lab. In that regard, the elicited testimony of Crime Lab employee Carmichael only established her knowledge of problems involving DNA testing at the Crime Lab, and the DNA testing in this case was not performed by the Crime Lab.

In addition, although former Crime Lab employee Watts acknowledged that there had been some problems with the mishandling of evidence at the Crime Lab and that there had been some investigation into the mishandling of evidence at the lab, she stated that she did not know if the accusations had ever been substantiated. Further, although Watts testified that there existed the possibility that the evidence in Pope’s case had been mishandled, her testimony was based upon the supposition that if some evidence had been mishandled at the Crime Lab, it was possible that evidence in this case could have also been mishandled, and that not only was she unaware of its mishandling, but she did not believe the evidence in this case had been mishandled.

Therefore, we conclude that although the testimony may have been relevant to establishing that there were problems with the handling of evidence at the Crime Lab, the trial court could have found the evidence to be irrelevant because neither Carmichael nor Watts testified that there were problems vrith the handling of the evidence in this case, and the testimony of Carmichael indicated that the problems at the Crime Lab involved DNA testing, which the Crime Lab did not conduct in this case. See Tex.R. Evid. 402. Likewise, to the extent that the evidence may have “weighed on” the credibility and qualifications of the witnesses, we conclude that trial court could have found the excluded evidence irrelevant and therefore inadmissible. See id; Reed, 59 S.W.3d at 281. Further, we believe that the trial court could have found that the evidence was inadmissible under Rule 403 because the trial court could have found that the probative value of the testimony regarding the Crime Lab’s alleged mishandling of evidence was substantially outweighed by the danger of misleading the jury or confusion of the issues. See Tex.R. Evid. 403; Montgomery, 810 S.W.2d at 391-93 (indicating that an appellate court should afford deference to a trial court’s Rule 403 balancing determination, reversing only where the ruling lies outside the zone of reasonable disagreement, and providing relevant factors an appellate court should consider in reviewing a trial court’s Rule 403 decision).

Accordingly, we hold that the trial court did not abuse its discretion in excluding the proffered testimony, thereby limiting Pope’s right of cross-examination. Pope’s second and third points are overruled.

JURY INSTRUCTIONS

In his fifth point, Pope complains that the trial court erred in its instruction to the jury on the State’s burden of proof, arguing that the jury instruction improperly contained a definition of beyond a reasonable doubt. The State responds, and Pope concedes, that this court has previously ruled on this issue and found the instruction not to be improper. Pope requests, however, that the court reconsider the issue. We decline to do so.

The trial court included the following in its charge to the jury regarding the burden of proof:

It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution’s proof excludes all “reasonable doubt” concerning the Defendant’s guilt.

As both Pope and the State acknowledge, this court has addressed the propriety of such an instruction on numerous occasions and found it not to be improper. See, e.g., Best v. State, 118 S.W.3d 857, 865 (Tex.App.-Fort Worth 2003, no pet.) Accordingly, we hold that the instruction given was not improper. Pope’s fifth point is overruled.

IMPROPER JURY ARGUMENT

In his sixth point, Pope complains that the trial court erred in overruling his objection to improper jury argument by the prosecutor. Specifically, Pope argues that the State’s remarks during closing argument were improper because they had the effect of accusing defense counsel of “bad faith and insincerity,” striking at Pope over the shoulder of his defense counsel. The State contends that its remarks were a proper response to closing arguments made by the defense.

A. Standard of Review

The purpose of closing argument is to facilitate the jury’s proper analysis of the evidence presented at trial in order to arrive at a just and reasonable conclusion based solely on the evidence. Barnes v. State, 70 S.W.3d 294, 308 (Tex.App.-Fort Worth 2002, pet. ref'd). To be permissible, the State’s jury argument must fall within one of the following four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4) pleas for law enforcement. Felder v. State, 848 S.W.2d 85, 94-95 (Tex.Crim.App.1992), cert. denied, 510 U.S. 829, 114 S.Ct. 95, 126 L.Ed.2d 62 (1993);. Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Crim.App.1973). If a jury argument exceeds the bounds of proper argument, the trial court’s erroneous overruling of a defendant’s objection cannot be reversible error unless, in light of the record as a whole, the argument had a substantial and injurious effect or influence on the jury’s verdict. Tex.R.App. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App.2000); Mosley, 983 S.W.2d at 259.

B. Analysis

The State may not strike at a defendant over the shoulders of his counsel or accuse defense counsel of bad faith or insincerity during argument. Wilson v. State, 938 S.W.2d 57, 61 (Tex.Crim.App.1996), abrogated on other grounds by Motilla v. State, 78 S.W.3d 352 (Tex.Crim.App.2002). Uninvited and unsubstantiated accusations of misconduct directed at a defendant’s attorney are manifestly improper because they serve to inflame the minds of the jury to the defendant’s prejudice. McMurrough v. State, 995 S.W.2d 944, 947 (Tex.App.-Fort Worth 1999, no pet.). A prosecutor runs a risk of improperly striking a defendant over the shoulder of counsel when the argument personally impugns opposing counsel’s character. Mosley, 983 S.W.2d at 259.

While defense counsel is protected from unwarranted attack by the prosecution, the prohibition “does not create a sanctuary to which defense counsel may retreat with immunity and thereby deny the prosecutor the right to reply to counsel’s argument.” Stokes v. State, 506 S.W.2d 860, 864 (Tex.Crim.App.1974). Further, a prosecutor is entitled to respond to an argument by defense counsel that suggests, impropriety on the part of the State. See Lange v. State, 57 S.W.3d 458, 467 (Tex.App.-Amarillo 2001, pet. ref'd) (holding that prosecutor’s reference to having taken an oath to uphold justice was permissible response to defense counsel’s suggestion that prosecution had improperly coached witness); Sandoval v. State, 52 S.W.3d 851, 858 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd) (holding that it was permissible for the prosecutor to respond to defense counsel’s suggestion that the prosecution manipulated the testimony of a witness).

During its closing, Pope’s defense counsel attacked the State’s DNA evidence and the presentation of the evidence by the State. They asserted that the technology used to test the known DNA samples was “not very reliable” and that every sample that the State believed to be a known sample had been “mislabeled or misidentified at some point in the case.” Defense counsel attacked the State’s presentation of evidence, implying that the State had acted improperly by stating that the State had done its “best to fix every little thing” before it was presented to the jury, that the State did not want the jury to “look at the work,” and that the State had allowed people to testify to things to which that they could not testify. The defense also suggested that the DNA samples in this case could have been mixed up with the samples from another suspect.

The State responded by commenting that it was the job of defense counsel to attack the DNA — referring to defense counsel’s attacks on the DNA evidence as amounting to “smoke and mirrors,” “red herrings or rabbit trails” designed to throw the jury off — and by cautioning the jury not to be “hoodwinked, ... buffaloed, ... [or] spooked” by the defense’s arguments.

We conclude that the State’s closing remarks were not suggestive of bad faith or insincerity on the part of opposing counsel, but were responsive to arguments of the defense and therefore not improper. Accordingly, we overrule Pope’s sixth point.

MOTION FOR NEW TRIAL

In his fourth point, Pope complains that the trial court abused its discretion by failing to grant his motion for new trial based upon the discovery of new information relating to State witness Carmichael’s employment status with the Crime Lab. The State responds that Pope failed to establish that he was entitled to a new trial based upon this newly discovered evidence and that if any error is deemed to exist, Pope failed to preserve it. We agree that any alleged error was not preserved.

To preserve error, the complaint on appeal must comport with the objection made at trial. See Thomas v. State, 723 S.W.2d 696, 700 (Tex.Crim.App.1986); Cate v. State, 124 S.W.3d 922, 933 (Tex.App.-Amarillo 2004, pet. ref'd); Brown v. State, 6 S.W.3d 571, 582 (Tex.App.-Tyler 1999, pet. ref'd).

Pope’s Motion for New Trial complains, in relevant part, that Pope’s due process rights were violated when the State failed to correct the false testimony of two of the State’s witnesses, Sundaye Lopez and Karla Carmichael. In-his motion, Pope alleges that Lopez and Carmichael testified falsely about whether there were any problems with Carmichael’s work at the Crime Lab and whether Carmichael was the subject of any internal investigation. Pope based his assertions on information obtained after trial, which revealed that on the day the jury returned its verdict Carmichael was placed on administrative leave from her employment at the Crime Lab and that she was subsequently terminated. In response, the State filed an affidavit from Robert L. Adkins, the Acting Laboratory Supervisor for the Fort Worth Police Department Forensics Laboratory, which indicated that “[t]here was not an investigation into the handling of evidence in the Fort Worth Police Department Forensic Laboratory”; that “[t]here was not an investigation of Sundaye Lopez”; and that “Karla Carmichael was investigated for failing and altering a proficiency test.” Further, Adkins’s affidavit provided the reasons for Carmichael’s termination, which included, among other things, her “failure to perform assigned work in a satisfactory manner” and her “carelessness or negligence in performing work.”

On appeal, Pope complains that the trial court erred by not granting a new trial based upon the newly discovered evidence that Carmichael had been placed on administrative leave, was under investigation at the time of trial, and was subsequently terminated for her “failure to perform assigned work in a satisfactory manner” and her “carelessness or negligence in performing work.” Thus, Pope’s complaint on appeal is that he was not allowed to fully and fairly litigate Carmichael’s credibility and qualifications before the jury. But, his Motion for New Trial complained that his due process rights were violated because the State failed to correct the alleged false testimony of two of the State’s witnesses. We conclude that Pope’s complaint on appeal does not comport with Pope’s Motion for New Trial. Accordingly, we need not address whether the trial court abused its discretion in denying the motion. Pope’s fourth point is overruled.

CONCLUSION

Because we overrule Pope’s six points, we affirm the trial court’s judgment.

      . We address Pope’s points in this order for ease of discussion.

      . The defense also solicited testimony from Crime Lab employee Sundaye Lopez, but does not raise the issue of her excluded testimony on appeal.

      . Formerly known as GeneScreen.

      . Although Pope refers to the work-product privilege as a component of the attorney-client privilege, we note that these two privileges protect separate interests. See Carmona v. State, 941 S.W.2d 949, 953 (Tex.Crim.App.1997).

      .We find nothing in the record to indicate that the State elicited testimony regarding Dr. Benjamin’s failure to "question the testing.”

      . The State also argues that by filing a motion requesting the trial court to order that Dr. Benjamin be permitted to receive "all reports and testing already performed” by one of the State’s experts, Pope "affirmatively waived” any privilege he might have had in the identity of Dr. Benjamin and in whether he received the reports.


author: TERRIE LIVINGSTON, Justice. LEE ANN DAUPHINOT, Justice,

text:
    Gary Michael BARNETT, Appellant, v. The STATE of Texas, State.
    No. 2-03-134-CR.
    Court of Appeals of Texas, Fort Worth.
    Jan. 20, 2005.
    Rehearing Overruled Feb. 17, 2005.

      William H. “Bill” Ray, Fort Worth, for Appellant.
    Tim Curry, Crim. Dist. Atty., Charles M. Mallín, Sylvia Mandal, Dixie Bersano, Phelesa Guy, Asst. Crim. Dist. Atty’s, Fort Worth, for State.
    Panel B: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

I. Introduction

Gary Michael Barnett appeals from his conviction by a jury for the offenses of indecency with a child and aggravated sexual assault of a child. See Tex. Penal Code Ann. § 21.11 (Vernon 2003), § 22.021 (Vernon Supp.2004-05). In his first point, appellant argues that the trial court erred by conversing with the jurors during polling about their propensity to change their verdicts. In his second point, appellant argues that the trial court erred by overruling his motion to quash the indictment. We affirm in part and reverse and remand in part.

II. Background

Appellant was tried on two counts of aggravated sexual assault of a child (counts one and two) and two counts of indecency with a child (counts three and four). The jury originally found appellant not guilty of counts one and two and guilty of counts three and four. Appellant asked the court to poll the jury. In response to appellant’s request, the trial court began asking each juror whether the verdict was his or her own. The second juror polled responded that the verdict was not hers. This prompted the trial court to inquire of each juror his or her verdict on each count. From this, the trial court discovered that the verdicts for counts one and two were not unanimous; the jurors were split eleven-to-one in favor of not guilty on count one and eleven-to-one in favor of guilty on count two. The trial court then informed the two hold-out jurors that “we do have a problem with both of you” and asked them whether, if sent back to the jury room to deliberate, they would be able to change their votes, or would they still maintain their votes “as it is.” Both jurors said that a change was possible.

After the trial court sent the jurors back to the jury room to deliberate further, appellant made his first request for a mistrial on counts one and two, stating

Article 37.05 says that the Court can — when you’re polling a jury, you can ask them if it’s their verdict, and if they answer in the affirmative, then you go on; and if it’s not, you send them back in the jury room. And the Court’s done that, and I certainly don’t have any complaint about the Court even going over it with them in detail like you did here a second time.
But what has concerned me, just kind of by the way it’s come out, is now we have two jurors who basically have opposite feelings in the way they voted on these two counts. One of them, Mr. Etheridge, voted not guilty to both Count One and Two. Mr. Jones voted guilty to Count One and Two. But the way it all plays out, the entirety of the rest of the jury has voted guilty on Count Two. So we have 11 to 1 for guilty there; we have 11 to 1 for not guilty on Count One.
It appears to me that those two jurors may compromise their verdict in order to achieve a liken result, and that concerns me. I’m not sure it will be unanimous.

The trial court denied appellant’s request for a mistrial.

Nineteen minutes later, the jury found appellant not guilty on count one and guilty on counts two, three, and four. Appellant made his second request for a mistrial, voicing his concern that the verdicts may have been compromised, and again the trial court denied his request. The jury assessed appellant’s punishment at twenty years’ confinement for count two and ten years’ confinement, probated, for count three and count four.

III. Jury Coercion

In his first point, appellant complains that the trial court erroneously conversed with the jurors about their propensity to change their verdicts during polling at the guilt/innocence phase of the trial. Appellant argues that the trial court’s actions violated article 37.05 of the Code of Criminal Procedure and forced a jury verdict that might not have occurred otherwise. See Batten v. State, 549 S.W.2d 718, 721 n. 5 (Tex.Crim.App.1977) (holding that polling of the jury should not extend beyond asking each juror whether the verdict is his or hers). Appellant contends he was harmed by the trial court’s improper polling of the jurors because the jury ultimately found him not guilty on count one, but guilty on count two, assessing him twenty years’ confinement on count two, but community supervision on count’s three and four. Lastly, appellant asks this court to reverse and dismiss his conviction as to count two only, arguing that a retrial is barred by double jeopardy principles because the trial court forced a verdict when the jury never stated it was deadlocked, and the jury could have ultimately found appellant not guilty on count two, which is what the original verdict was. We will construe his point as asserting that the trial court erred in failing to grant his request for a mistrial in light of the trial court’s improper polling of the jury. See Tex.R.App. P. 38.9; White v. State, 50 S.W.3d 31, 45 (Tex.App.Waco 2001, pet. ref'd) (construing points liberally to serve the interests of justice).

A. Preservation of Error

To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex.R.App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App.1998) (op. on reh’g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court’s refusal to rule. Tex.R.App. P. 33.1(a)(2).

1. Timeliness

To be timely, an objection must be made as soon as the basis for the objection becomes apparent. Lagrone v. State, 942 S.W.2d 602, 618 (Tex.Crim.App.), cert. denied, 522 U.S. 917, 118 S.Ct. 305, 139 L.Ed.2d 235 (1997). The purpose for requiring a timely objection is to “allow the trial court to have the opportunity to make a determination and ruling on the complained of point and then to proceed with the trial under the proper procedural and substantive manners, as appropriately corrected by the trial court.” Janecka v. State, 823 S.W.2d 232, 244 (Tex.Crim.App.1992) (op. on reh’g), cert. denied, 522 U.S. 825, 118 S.Ct. 86, 139 L.Ed.2d 43 (1997).

The State argues that appellant did not preserve error because he failed to object when the trial court first exceeded the scope of article 37.05’s polling procedure by asking each juror’s verdict on each count instead of immediately sending the jury back to deliberate once it became clear that the verdict was not unanimous. However, article 37.05 specifically grants the court authority to individually determine whether the verdict comports with each juror’s verdict. Also, appellant does not complain that the trial court violated article 37.05 by inquiring into each juror’s verdict on each count. Rather, appellant specifically complains of the trial court’s asking the two hold-out jurors whether they could change their votes. It is in relation to this alleged error that we will analyze the timeliness of appellant’s request for a mistrial.

Here, the trial court questioned the two hold-out jurors about changing their votes and sent the jury back to the jury room to deliberate. Appellant then requested a mistrial. Allowing appellant to make his request when he did does not run afoul of the purpose for requiring a timely objection. The trial court was in no better position to grant a mistrial immediately after the improper questioning than it was immediately after the jury was sent back to deliberate, when appellant actually made his request. Cf. Lagrone, 942 S.W.2d at 618 (requiring that an objection to the admission of evidence be made as soon as the question calling for an objectionable answer is asked and before the answer is given, thereby allowing the trial court to sustain the objection and to prevent the objectionable answer). Further, unlike an evidentiary objection that is best made before an answer is given, it is the asking of the question itself that creates the error when polling a jury. Therefore, we hold that appellant’s request for a mistrial was sufficiently timely to preserve error.

2. Specificity

In his first request for a mistrial, appellant cited article 37.05 and expressed his concern that the two hold-out jurors may compromise their verdicts. Likewise, as soon as the jury sent out notes naming the two jurors and stating that they had changed their votes accordingly, appellant made his second request for a mistrial, again asserting that the verdicts may have been compromised. Although appellant’s requests were vague, they were more than adequate to apprise the trial court of the nature of appellant’s complaint. See Eisenhcmer v. State, 754 S.W.2d 159 (Tex.Crim.App.1988) (holding that imprecise objection will be sufficient to preserve error if grounds for the objection are obvious to the court or opposing counsel). We therefore conclude that appellant’s requests for a mistrial were sufficient to give the trial court notice as to the nature of his complaint, and we will address his point.

B. Standard of Review for Jury Coercion

Claims of jury coercion often arise when a trial court attempts to encourage a deadlocked jury to reach a verdict. See Hollie v. State, 967 S.W.2d 516, 518 (Tex.App.Fort Worth 1998, pet. ref'd). In those situations, the trial court, administering what is known as an Allen charge, informs the jury, among other things, that if the jury is unable to reach a verdict, a mistrial will result, the indictment will still be pending, and there is no guarantee that a subsequent jury will find the questions easier to answer. See Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 157, 41 L.Ed. 528 (1896); Odom v. State, 682 S.W.2d 445, 447 (Tex.App.-Fort Worth 1984, pet. ref'd). While an Allen charge is a generally accepted method of securing jury unanimity, a court must be careful to administer the charge in a manner that does not have an improperly coercive effect on jury deliberation. See Lowenfield v. Phelps, 484 U.S. 231, 237, 108 S.Ct. 546, 550, 98 L.Ed.2d 568 (1988); Howard v. State, 941 S.W.2d 102, 123 (Tex.Crim.App.1996).

Although not in the form of a traditional Allen charge, the trial court’s actions in the present case had the purpose and effect of encouraging a verdict. Therefore, we will focus our analysis on the coercive effect the trial court’s actions may have had on jury deliberation by examining the trial court’s actions “in [their] context and under all circumstances.” See Howard, 941 S.W.2d at 123 (quoting Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 1060, 13 L.Ed.2d 957 (1965)). We must determine whether the trial court’s conversation with the two hold-out jurors pressured them into reaching a particular verdict or improperly conveyed the trial court’s opinion of the case. See Arrevalo v. State, 489 S.W.2d 569, 571 (Tex.Crim.App.1973); Martinez v. State, 131 S.W.3d 22, 41 (Tex.App.San Antonio 2003, no pet.). Factors to be considered include the nature of the case, the amount of evidence considered by the jury, and the time spent in further deliberation. See Lindsey v. State, 393 S.W.2d 906, 908 (Tex.Crim.App.1965).

Courts have found jury coercion when, like the present case, the trial court continues to poll the jury after a lack of unanimity is revealed. See, e.g., United States v. Spitz, 696 F.2d 916, 917 (11th Cir.1983). In Spitz, the 11th Circuit held that “[t]he questioning of the remaining jurors after the [dissenter] stated that the published verdict was not her verdict could have been perceived as attempted coercion of her.” Id. at 918. Also, the Texas Court of Criminal Appeals has said that a trial court might coerce a jury by identifying dissenting jurors and instructing them to reexamine their viewpoints. Howard, 941 S.W.2d at 124.

Here, the trial court continued to extensively poll the jury even after the lack of unanimity was revealed. This violated article 37.05, but was not objected to by appellant. See Tex.Code Crim. Proc. Ann. art. 37.05; Batten, 549 S.W.2d at 721 n. 5. More importantly, however, the trial court singled out the two hold-out jurors, informed them that it had a “problem” with them, and asked them whether they could change their votes if sent back to deliberate further. The two jurors changed their votes in less than twenty minutes and specifically informed the court of their changed votes individually. We conclude that jury coercion is apparent from the trial court’s final conversation with the two hold-out jurors. Therefore, we hold that the trial court erred by conversing with the hold-out jurors beyond the scope of article 37.05 and in a manner that had a coercive effect on the jury’s verdict. We next examine whether the trial court should have granted appellant a mistrial because of this error.

C. Standard of Review for a Mistrial

We review a trial court’s denial of a request for a mistrial for abuse of discretion. See Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000). A trial court does not abuse its discretion if its decision is at least within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991) (op. on reh’g). A mistrial is as an extreme remedy for prejudicial events occurring during the trial process and should be granted only when residual prejudice remains after objections are sustained and curative instructions given. West v. State, 121 S.W.3d 95,106 (Tex.App.-Fort Worth 2003, pet. ref d).

An appellant need not request a curative instruction, such as an instruction to disregard, to preserve error. See Young v. State, 137 S.W.3d 65, 70 (Tex.Crim.App.2004). However, an appellant who requests a mistrial without first requesting a curative instruction forfeits appellate review of that class of events that could have been cured by such an instruction. Id. Therefore, we must determine whether the “error [was] so prejudicial that expenditure of further time and expense would [have been] wasteful and futile.” Ladd, 3 S.W.3d at 567.

Here, the trial court singled out the two hold-out jurors, told them that it had a problem with them, and asked them whether they could change their votes. By doing so, the trial court indirectly communicated to the hold-out jurors that it wanted them to change their votes. A jury typically gives particular weight to the language and conduct of a trial court. See Blue v. State, 41 S.W.3d 129, 131 (Tex.Crim.App.2000). Moreover, unlike situations in which an instruction to disregard was held to have cured the harm caused by improper comments from the trial court on the weight of the evidence, the present case involves comments by a trial court that directly influenced the jury’s verdict. See Fletcher v. State, 960 S.W.2d 694, 701 (Tex.App.Tyler 1997, no pet.) (holding that the trial court’s instruction to disregard its comment was sufficient to remedy the harm, if any, to appellant by the comment). Accordingly, we conclude that an instruction to disregard would not have cured the harm caused by the trial court, and therefore the trial court abused its discretion by denying appellant’s request for a mistrial.

D. Harmless Error

Having found error, we must also conduct a harm analysis to determine whether the error requires reversal of the trial court’s judgment. Tex.R.App. P. 44.2; Lopez v. State, 71 S.W.3d 511, 514 (Tex.App.Fort Worth 2002, no pet.). If the error is constitutional in nature, we must reverse the judgment unless we determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment. See Tex.R.App. P. 44.2(a); Franklin v. State, 138 S.W.3d 351, 354 (Tex.Crim.App.2004). We must disregard other types of error unless they affect appellant’s substantial rights. Tex.R.App. P. 44.2(b); Franklin, 138 S.W.3d at 354.

Claims of jury coercion implicate the right to a fair and impartial jury as guaranteed by the Sixth Amendment to the United States Constitution, as well as article V, section 10 of the Texas Constitution. See U.S. Const, amend. VI; Tex. Const. art. V, § 10; Franklin, 138 S.W.3d at 354; Odom, 682 S.W.2d at 449. Accordingly, we must reverse appellant’s conviction unless we find beyond a reasonable doubt that the trial court’s actions did not contribute to appellant’s conviction. We are unable to make such a finding. Had the trial court granted appellant’s request for a mistrial, appellant would have received a new trial on count two. See Tex. R.App. P. 21.3. Had a new trial been granted, the case against appellant would have been restored to its position before the former trial, and a subsequent jury might have found appellant not guilty as to count two. See Tex.R.App. P. 21.9; State v. Bates, 889 S.W.2d 306, 310 (Tex.Crim.App.1994). Therefore, we sustain appellant’s first point.

IV. Indictment

In his second point, appellant asserts that the trial court erred in failing to quash the indictment. On March 17, 2003, appellant filed a motion to quash the indictment, which the trial court denied. Appellant argues that the indictment was not sufficiently specific to ensure that he would be tried for the same conduct that the grand jury considered and that therefore the trial court erred in denying his motion to quash. Appellant contends that his complaint is not with the “on or about” language in the indictment regarding the offense date, but rather with the specificity with which the actual conduct was alleged. On its face, an indictment must allege “the facts necessary (1) to show that the offense was committed, (2) to bar a subsequent prosecution for the same offense, and (3) to give the defendant notice of precisely what he is charged with.” Terry v. State, 471 S.W.2d 848, 852 (Tex.Crim.App.1971). Generally, an indictment provides suffi-dent notice if it tracks the language of the statute. Olurebi v. State, 870 S.W.2d 58, 62 (Tex.Crim.App.1994). We review a trial court’s denial of a motion to quash an indictment for an abuse of discretion. County v. State, 812 S.W.2d 303, 312 (Tex.Crim.App.1989).

Here, all four counts of the indictment track the language of the statutes. See Tex. Penal Code Ann. §§ 21.11, 22.021. Appellant does not indicate exactly how the indictment failed to sufficiently specify the conduct in question, nor does he point to anything in the record to suggest that the evidence presented to the grand jury related to conduct other than that proven at trial. See Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App.1997). Appellant correctly notes that, in cases involving-more than one act of sexual misconduct against a child, the State can be required to choose the act for which it will seek a conviction. See Crawford v. State, 696 S.W.2d 903, 905 (Tex.Crim.App.1985). However, appellant offers no evidence that this was not done in the present case. Therefore, we hold that the trial court did not err in denying appellant’s motion to quash. We overrule appellant’s second point.

Y. Conclusion

We reverse the trial court’s judgment as to count two only and remand that portion of this cause for a new trial. We affirm the trial court’s judgment as to counts three and four.

DAUPHINOT, J. filed a concurring opinion.

LEE ANN DAUPHINOT, Justice,

concurring.

While I agree with the outcome, I write separately because the improper Allen charge should have been addressed under the Almanza standard. Appellant complains that the trial court gave an improper oral instruction that was coercive. The majority discusses his complaint in terms of constitutional error and forfeiture. As the Texas Court of Criminal Appeals affirmed recently, it is settled law in Texas that jury charge error is to be reviewed under the Almanza standard, not Texas Rule of Appellate Procedure 44.2. Under Almanza, forfeiture does not occur. Instead, properly preserved error requires reversal as long as the defendant suffers some harm; error that is not properly preserved requires reversal only if the defendant suffered egregious harm.

Although Appellant argues that he objected to the erroneous charge, the objection did not clearly inform the trial court that he was complaining of the erroneous jury instruction. It was couched in terms of fearing “those two jurors may compromise their verdict in order to achieve a liken result.” As to the procedure of discussing their verdicts, at trial, Appellant’s counsel stated, “I certainly don’t have any complaint about the Court even going over it with them in detail like you did here a second time.” Appellant did not object to the charge being given orally. If Appellant lodged a timely objection to the supplemental jury charge, it was too subtle for me to discern. Consequently, I would analyze the trial court’s error under the egregious harm standard of Almanza.

As harm, Appellant points out that the jury assessed twenty years’ penitentiary time on count two, the problematic verdict, but then granted community supervision on counts three and four. Note that had the verdict remained deadlocked, Appellant would have received a mistrial on count two, not a conviction. The jury assessed a prison sentence only on count two. In the context of the entire case against Appellant, the trial court’s error in orally singling out the hold-out jurors and asking if they could change their votes caused Appellant egregious harm. I would sustain Appellant’s first point and reverse and remand on this ground.

Because the majority improperly addresses Appellant’s jury charge complaint under Texas Rule of Appellate Procedure 44.2 and forfeiture, rather than Almanza, I can concur only in the result.

      . See Tex.Code Crim. Proc. Ann. art. 37.05 (Vernon 1981). This article states,

        The State or the defendant shall have the right to have the jury polled, which is done by calling separately the name of each juror and asking him if the verdict is his. If all, when asked, answer in the affirmative, the verdict shall be entered upon the minutes; but if any'juror answer[s] in the negative, the jury shall retire again to consider its verdict.

        Id.

      .Appellant offers no support for his argument that his retrial is barred by double jeopardy principles. Moreover, the court of criminal appeals has held that even if judicial error prompted a criminal defendant to request a mistrial, the double jeopardy clause does not bar a retrial, as long as the error was not committed in bad faith in an attempt to provoke the defendant into requesting a mistrial. Fields v. State, 627 S.W.2d 714, 720 (Tex.Crim.App.), cert. denied, 459 U.S. 841, 103 S.Ct. 91, 74 L.Ed.2d 84 (1982).

      . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

      . Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985) (op. on reh’g).

      . Guevara v. State, No. 0424-03, 2004 WL 2347793, at *6-7 (Tex.Crim.App. Oct.20, 2004); Huizar v. State, 12 S.W.3d 479, 484-85 (Tex.Crim.App.2000) (op. on reh'g).

      . Bluitt v. State, 137 S.W.3d 51, 53 (Tex.Crim.App.2004).

      . Almanza, 686 S.W.2d at 171.

      . Id..; see Tex.Code Crtm. Proc. Ann. art. 36.19 (Vernon 1981); Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996).

      . See Tex.Code Crim. Proc. Ann. art. 36.31.