author: EVA M. GUZMAN, Justice.

text:
    David E. MOORE, Appellant, v. UNIVERSITY OF HOUSTON-CLEAR LAKE, Appellee.
    No. 14-03-01212-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 15, 2005.

      Stephen J. Schechter, League City, for appellant.
    Peter Breece Plotts, III, Austin, for ap-pellee.
    Panel consists of Justices YATES, EDELMAN, and GUZMAN.
   OPINION

EVA M. GUZMAN, Justice.

This is an appeal from the trial court’s grant of a plea to the jurisdiction in a suit filed under the Whistleblower Act. Appellant David E. Moore argues the trial court erred in granting the University of Houston-Clear Lake’s (UHCL) plea because his pleadings demonstrate he initiated action under UHCL’s grievance procedures, and UHCL’s jurisdictional plea was an improper procedural device to challenge the timeliness of his Whistleblower Act claims. We agree. Because we conclude that Moore initiated action under UHCL’s grievance procedures, and this court has previously held that a limitations defense under the Whistleblower Act cannot be raised in a plea to the jurisdiction, the trial court erred in granting UHCL’s plea based on these grounds. Accordingly, we reverse the trial court’s judgment and remand this cause for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Moore was terminated from his position as a UHCL police officer on September 14, 2000, and sued UHCL under the Whistle-blower Act on January 25, 2001. UHCL filed its plea to the jurisdiction, challenging Moore’s suit as untimely under the Act. Moore filed a motion to strike the plea and a conditional response, arguing that (1) his pleadings demonstrated he had pursued UHCL’s grievance procedures; (2) UHCL’s plea was an improper procedural device to challenge his suit based on the Act’s limitations provisions; and (3) even if UHCL’s plea could be construed as a summary judgment motion, it was defective because it was unverified, untimely, and improperly noticed. Moore appeals the trial court’s judgment granting UHCL’s plea and asserts the same issues on appeal as raised in his conditional response.

II. DISCUSSION

In its plea, UHCL argued that (1) because Moore failed to notify UHCL he was appealing his termination “based on whistleblower protection,” he did not initiate a grievance as required under the Act and therefore, his suit was untimely; (2) alternatively, Moore initiated the appeals process on October 19, 2000, rendering his suit untimely; and (3) even assuming Moore initiated an appeal of his termination in September 2000, his suit was untimely. UHCL did not argue that Moore’s pleadings were deficient in any manner.

A. UHCL’s Jurisdictional Argument

This court has previously held that a defendant’s challenge to a claim based on the limitations provisions in the Whistle-blower Act is an affirmative defense, rather than a jurisdictional defect, which cannot be raised in a plea to the jurisdiction. See Univ. of Houston v. Elthon, 9 S.W.3d 351, 356 (Tex.App.-Houston [14th Dist.] 1999, pet. dism’d w.o.j.), disapproved of on other grounds, Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004); Univ. of Tex. Med. Branch at Galveston v. Barrett, 112 S.W.3d 815, 817 (Tex.App.-Houston [14th Dist.] 2003), aff'd 159 S.W.3d 631, 48 Tex. Sup.Ct. J. 472, 2005 WL 563094 (Tex. March 11, 2005) (per curiam). Arguably, all three grounds asserted by UHCL in its plea are limitations arguments, and consequently, could not be raised in a plea to the jurisdiction. However, a claimant’s complete failure to initiate an appeals procedure has been construed as jurisdictional. Therefore, to the extent that UHCL argues Moore wholly failed to initiate action under the Act, we address that portion of UHCL’s claim as though properly raised in its plea.

1. Standard of review

A plea to the jurisdiction challenges the trial court’s subject matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). Because subject matter jurisdiction is a question of law, we review the trial court’s ruling on the plea de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). In deciding a plea to the jurisdiction, a court may not consider the merits of the case, but only the plaintiffs pleadings and the evidence relevant to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002); Berry v. Bd. of Regents of Tex. S. Univ., 116 S.W.3d 323, 324-25 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). We accept the allegations in the pleadings as true in determining whether an incurable jurisdictional defect is apparent, rendering it impossible for the plaintiffs claims to confer jurisdiction on the trial court. Bexar County v. Gant, 70 S.W.3d 289, 292 (Tex.App. CSan Antonio 2002, pet. denied).

2. The Act’s provisions

Under section 554.005 of the Whistle-blower Act, an employee of a governmental entity must file his suit “not later than the 90th day after the date” the alleged adverse personnel action occurred or was discovered by the employee through reasonable diligence. Tex. Gov’t Code ÁNN. § 554.005 (Vernon 2004). Section 554.006 of the Act provides that the employee “must initiate action” under the employer’s grievance or appeal procedures, and the time expended by the employee in pursuing those procedures is excluded from the time period in section 554.005. Id. § 554.006(a), (c). In this case, Moore was terminated on September 14, triggering the ninety day period under the Act. See Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 491 (Tex.1996) (per cu-riam) (holding that adverse employment action occurred on date employee was informed she was being replaced).

3.Did Moore “initiate action” under the Whistleblower Act?

Moore alleged in his pleadings that UHCL’s internal appeals process was concluded on November 8, 2000. UHCL attached, in part, the following evidence pertinent to its assertions in the plea:

(1) a copy of an email from Moore to Katherine Justice, the Executive Director of UHCL’s Human Resources department, dated September 19 advising her that he wished to appeal his termination, and Justice’s responsive email, advising Moore that she would be meeting with three individuals chosen to be on his hearing panel;
(2) a handwritten note, dated September 19, from Moore to Justice advising her that he intended to appeal his termination;
(3) a copy of UHCL’s “Request for a Post-Suspension or Post-Dismissal Hearing” form filled out by Moore on September 20;
(4) a memorandum dated September 28, from Justice to Moore and Chief Herbst stating that Moore had “filed a timely request for a post-dismissal hearing ” and advising them the hearing was scheduled for October 19, 2000;
(5) a memorandum dated October 19, from Justice to William Staples, UHCL’s president, with the panel’s recommendation to uphold Moore’s termination following the hearing;
(6) a memorandum from Justice to Moore, dated October 27 advising Moore that Staples had upheld the termination and stating, “[t]his is the final step in the internal grievance and appeal process according to UHCL policy.”

(Emphasis added). We conclude this evidence establishes that UHCL itself had determined Moore timely filed an appeal of his termination, and the appeals process had been concluded.

Nevertheless, in its plea, UHCL reasoned that, because Moore did not specifically advise UHCL he was appealing his termination based on whistleblower claims, UHCL was deprived of an opportunity to investigate Moore’s allegations, and the appeals procedure was never initiated as intended under the Whistleblower Act.

Although a public employee must initiate action under his employer’s grievance or appeals procedures before filing suit against the employer, the Act does not dictate what actions are required to “initiate” the appeals procedure. See Tex. Gov’t Code Ann. § 554.006(a); City of Austin v. Ender, 30 S.W.3d 590, 594 (Tex.App.-Austin 2000, no pet.); see also Barrett v. Univ. of Tex. Med. Branch at Galveston, No. 14-97-00981-CV, 1999 WL 233341, at * 4 (Tex.App.-Houston [14th Dist.] April 22, 1999, pet. denied) (not designated for publication). The Act does not require that the employee use any particular words when filing his grievance, nor does it require he state that his appeal is based on the Whistleblower Act.

Regardless, the evidence in the record reflects that UHCL had notice of Moore’s whistleblower claims prior to his termination, thus alerting UHCL of Moore’s potential whistleblower claims. In his conditional response to UHCL’s plea, Moore attached a copy of a memorandum prepared on September 6, 2000, concerning an internal investigation into Moore’s entering the office of a UHCL administrator — the reason stated by UHCL for terminating Moore. In the memorandum, it was noted that Moore claimed he had entered the administrator’s office to obtain evidence of “criminal wrongdoing” by the University. It was also stated that Moore previously reported various wrongdoings by Chief Herbst and the investigator advised Herbst as follows;

I strongly urge Chief Herbst and the University to seek legal counsel prior to taking any further action against this employee. If this employee has protection under the Texas Whistleblowers Protection Act, any adverse employment action taken against him within a certain amount of time from his notification of alleged criminal activity to the D.A.’s office can be considered retaliatory and open both Chief Herbst and the University to liability.

Therefore, the evidence relevant to the jurisdictional issue raised by UHCL, construed in Moore’s favor, suggests that UHCL had notice of Moore’s potential whistleblower claims. See City of New Braunfels v. Allen, 132 S.W.3d 157, 161 (Tex.App.-Austin 2004, no pet.) (stating that because the Act is remedial in nature, it should be liberally construed to effect its purpose); cf. Barrett, 112 S.W.3d at 818 (likening the requirements of section 554.006 as notice requirements); Gregg County v. Farrar, 933 S.W.2d 769, 773 (Tex.App.-Austin 1996, writ denied) (same).

Finally, even assuming that UHCL did not have notice of Moore’s whistleblower claims prior to his termination, UHCL acknowledges that Moore asserted he was terminated in retaliation for his whistle-blowing activities at his grievance hearing on October 19. While we agree that the purpose of section 554.006 is to allow the governmental employer an opportunity to “correct its own errors by resolving disputes before being subjected to the expense and effort of litigation,” there is nothing in the record to indicate that UHCL was prevented from investigating Moore’s allegations following his claims at the grievance hearing. Instead, the record reflects that on that same date, the panel recommended to UHCL’s president that Moore’s termination be upheld.

In sum, we reject UHCL’s argument that Moore failed to initiate an appeal of his termination, and the trial court erred in granting UHCL’s plea on that basis. We next address UHCL’s limitations arguments.

B. Challenging Claims as Untimely under the Whistleblower Act

UHCL argued in its plea that, even if Moore initiated the appeals process, his suit was nonetheless untimely. But, as stated, this court has previously determined that a defendant cannot challenge a plaintiffs suit as untimely under the Whistleblower Act in a plea to the jurisdiction. See Elthon, 9 S.W.3d at 356-57 (concluding that a limitations defense under the Whistleblower Act is an affirmative defense that cannot be a basis for sustaining a plea to the jurisdiction); Barrett, 112 S.W.3d at 817. Other intermediate appellate courts have agreed. E.g., Allen, 132 S.W.3d at 160; Tex. Dept, of Mental Health & Mental Retardation v. Olofsson, 59 S.W.3d 831, 833 (Tex.App.Austin 2001, no pet.); Castleberry Indp. Sch. Dist. v. Doe, 35 S.W.3d 777, 782 (Tex. App.-Fort Worth 2001, pet. dism’d w.o.j.); but see Tex. S. Univ. v. Carter, 84 S.W.3d 787, 791-92 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (concluding that failure to timely initiate grievance procedure under Whistleblower Act was jurisdictional defect). Consequently, to the extent UHCL argued in its plea that the trial court lacked jurisdiction over Moore’s suit because it was untimely, the trial court erred in granting the plea. See Elthon, 9 S.W.3d at 356; Barrett, 112 S.W.3d at 817; see also Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex.2003) (stating that the language of section 554.0035 in the Whistleblower Act is a clear waiver of immunity from liability, and also stating that immunity from liability, as opposed to immunity from suit, does not affect a court’s jurisdiction and cannot be raised in a plea to the jurisdiction); Tex. Gov’t Code Ann. §§ 554.005, 554.006(c) (labeling section 554.005 as a “Limitation Period”; section 554.006(c) addresses tolling that period, contributing to the determination of whether a claimant’s suit is timely).

In conclusion, whether the trial court sustained UHCL’s plea based on its argument that Moore failed to initiate action under its grievance procedures or that, even if he had initiated action, his suit was untimely, we conclude the trial court erred in granting UHCL’s plea to the jurisdiction. Accordingly, the judgment of the trial court is reversed and this cause is remanded for further proceedings consistent with this opinion.

      . See Tex. Gov’t Code Ann. § 554.001B.010 (Vernon 2004).

      . See, e.g., Univ. of Houston v. Elthon, 9 S.W.3d 351, 356 (Tex.App.-Houston [14th Dist.] 1999, pet. dism’d w.o.j.), disapproved, of on other grounds, Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004); see also Univ. of Tex. Med. Branch at Galveston v. Barrett, 112 S.W.3d 815, 817 (Tex. App.-Houston [14th Dist.] 2003), affd 159 S.W.3d 631, 48 Tex. Sup.Ct. J. 472, 2005 WL 563094 (Tex. March 11, 2005) (per cu-riam); Tex.R. Civ. P. 94 (stating that limitations is an affirmative defense).

      . This motion is not contained in the record.

      . We acknowledge that, generally, we should look to the substance of a pleading rather than its caption or format to determine its nature. See Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex.1999); Wilie v. Signature Geophysical Servs., Inc., 65 S.W.3d 355, 362 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). However, we agree with Moore that even were we to construe the plea as a summary judgment motion, it was untimely noticed. In this case, UHCL filed its plea on September 12, 2003, and a hearing was held on the plea on September 26. Under Rule 166a(c), a motion for summary judgment "shall be filed and served at least twenty-one days before the time specified for hearing." Tex.R. Civ. P. 166a(c). Because summary judgment is a harsh remedy, the notice provisions of Rule 166a(c) are strictly construed. Stephens v. Turtle Creek Apartments, Ltd., 875 S.W.2d 25, 27 (Tex.App.Houston [14th Dist.] 1994, no writ). In addition to his motion to strike the plea and his conditional response, Moore reasserted his objections to the plea during the hearing.

      . In its order, the trial court granted the plea in its entirety.

        .See Elthon, 9 S.W.3d at 355. Texas's appellate courts disagree whether initiating action under the Act is a jurisdictional defect, which can be raised in a plea to the jurisdiction, or an affirmative defense, which cannot be raised in a plea. Compare Tex. S. Univ. v. Carter, 84 S.W.3d 787, 790 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (arguing that the timely initiation of a grievance under the Whistleblower Act is a jurisdictional defense), with Barrett, 112 S.W.3d at 818-19 (examining the language of section 554.006(a), which states an employee "must initiate action,” and disapproving of previous cases finding noncompliance with the provision as jurisdictional). In Barrett, this court noted that the only reference within the Whistleblower Act to sovereign immunity was in section 554.0035, which provides:
      A public employee who alleges a violation of this chapter may sue the employing state or local governmental entity for the relief provided by this chapter. Sovereign immunity is waived and abolished to the extent of liability for the relief allowed under this chapter for a violation of this chapter.

        Id. at 817. We then stated that the plain language of the provision “fits all claims alleged under the chapter-big or little, early or late.” Id. We concluded that, because the appellee had alleged a violation under the Act and sought relief allowed by the Act, sovereign immunity was waived, suggesting that the failure to initiate a grievance procedure — ■ timely or otherwise — was not jurisdictional. Id. at 818-19. In its recent per curiam opinion affirming Barrett, the Texas Supreme Court declined to decide whether the failure to meet the requirements of section 554.006 is jurisdictional, noting that "the purpose [of the requirements] is adequately protected by abating a prematurely filed action.” 159 S.W.3d 631, 48 Tex. Sup.Ct. J. 472, 473, 2005 WL 563094, at *1. Because the issue remains unclear, for the purposes of this appeal we distinguish between a claimant's complete failure to initiate action under the employer’s appeals procedure, which we address as a jurisdictional defect, and the failure to timely initiate action under the appeals procedure, which we address as a limitations argument.

      . There is no dispute that Moore received notice of the conclusion of the appeals procedure on November 8, 2000.

      . Moore had alleged wrongdoings by UHCL’s Police Chief Michael J. Herbst. It was Herbst who informed Moore that he was being terminated from his position as a UHCL police officer.

      . See Barrett, 112 S.W.3d at 818 (noting that purpose is to encourage parties to resolve disputes without litigation); see also City of Austin v. Ender, 30 S.W.3d 590, 594 (Tex. App.-Austin 2000, no pet.).

      .Also, UHCL did not contend in its plea that Moore had failed to initiate action under UHCL’s grievance procedures, only that his failing to advise UHCL of his whistleblower claims thwarted the purpose of the statute.

      . The Act has two legislative purposes: (1) to protect public employees from retaliation by their employer when, in good faith, employees report a violation of the law; and (2) to secure lawful conduct on the part of those who direct and conduct the affairs of public bodies. City of New Braunfels v. Allen, 132 S.W.3d 157, 161 (Tex-App.-Austin 2004, no pet.)

      . Gregg County v. Farrar, 933 S.W.2d 769, 775 (Tex.App.-Austin 1996, writ denied).

      . Cf. Martinez v. Val Verde County Hosp. Dist., 110 S.W.3d 480, 485 (Tex.App.-San Antonio 2003) (concluding that Tort Claims Act notice requirement was an affirmative defense and therefore, should not have been raised in a plea to the jurisdiction), off d on other grounds, 140 S.W.3d 370 (Tex.2004);
        Baylor Coll, of Med. v. Tate, 77 S.W.3d 467, 471-72 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (noting that immunity from suit and from liability are two distinct protections with entirely different procedural postures; immunity from liability is an affirmative defense and the appropriate mechanism to assert immunity from liability is in a motion for summary judgment).


source: Caselaw Access Project

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

license: Public Domain

text:
    Douglas Wayne MATTHEWS, Appellant, v. The STATE of Texas, State.
    No. 2-03-149-CR.
    Court of Appeals of Texas, Fort Worth.
    April 28, 2005.

      Richard Charles Kline, Fort Worth, TX, for Appellant.
    Tim Curry, Criminal District Attorney, Charles M. Mallín, Curtis Jenkins, Elizabeth Bourland and Theresa Austin, Assistant Criminal District Attorneys, Fort Worth, TX, for Appellee.
    PANELA: LIVINGSTON, DAUPHINOT, and McCOY, JJ.
   OPINION

LEE ANN DAUPHINOT, Justice.

Appellant Douglas Wayne Matthews appeals from a pretrial ruling denying his motion to suppress, after which he entered his plea of guilty pursuant to a plea bargain agreement to the charge of possessing four or more grams but less than two hundred grams of cocaine with the intent to deliver. The trial court convicted him and sentenced him to thirty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. Because we hold that the trial court erred in denying Appellant’s motion to suppress, we reverse the trial court’s judgment and remand this case for a new trial.

Background Facts

The Search and Arrest

The record before us reveals three searches — the search of a truck, the search of a gym bag located within the truck, and the search of a shaving kit inside the gym bag.

The police arrived with a warrant to search Appellant’s cousin’s house, including all vehicles and detached buildings within the curtilage, and to arrest a man named “Doug.” While executing the warrant, the police did not find anyone in the house. They did find people in the detached garage within the fence surrounding the lot on which the house was located. The police patted down all the people in the garage, laid them face down on the floor, and cuffed them. The police asked Appellant for his name and he said, “Doug.” The police noticed that a green truck was parked on the curb and searched the truck. The truck was driven by Appellant but was owned by his mother. The police arrested Appellant for possession of crack cocaine they found in a shaving kit inside a gym bag inside the truck.

Appellant was indicted on two counts of possession of a controlled substance, namely cocaine, of four grams or more, but less than two hundred grams, with the intent to deliver. The indictment also contained a repeat offender notice. Appellant filed a motion to suppress the evidence, which the trial court denied. Appellant then agreed to a plea bargain, reserving the right to appeal the denial of the motion to suppress.

The Warrant and Suppression Hearing

The warrant authorized the search of “all vehicles and detached buildings within the curtilage therein named.” Sergeant Stanford testified for the State that there were several vehicles parked in the street and that Appellant’s truck, also parked in the street, had one wheel in the driveway. He testified that Appellant admitted that it was his truck. When he asked Appellant his name, Appellant replied that it was Doug. Sergeant Stanford testified,

I knew that the search warrant listed a man by the name of Doug, that the descriptions given to me on the search warrant and by Officer Broadwater closely matched the Defendant. I then asked the Defendant if he would mind if I searched his truck. He said “Go ahead.”
I asked him where the keys were. He said his right front pocket, so I reached into his right front pocket and removed the keys.

A different officer, Officer Blaydes, actually conducted the search of the truck. Behind the driver’s seat, between the driver and passenger seats, he found a gym bag that contained a shaving kit. Inside the shaving kit, he located a rock of crack cocaine. Officer Blaydes said the truck was on the edge of the driveway and curb line, straddling the curb line and the end of the driveway. He could not say how many tires were actually on the driveway. Blaydes did know that there were several cars parked on and around the property and testified that there might have been another vehicle in the driveway.

Although Officer Blaydes testified that someone ran the plates of the truck to determine the registered owner, there was no evidence of the result of the record search. He did not know who provided the keys to the truck.

Appellant testified that his truck was parked on the street with no part of it in the driveway. Two cars were in the driveway. One had been there a couple of months at the time of the arrest, and State’s exhibits 2 and 3, photographs taken at a later time, showed that it had three flat tires. The State and Appellant agreed that the truck Appellant drove belonged to his mother and that Appellant and his mother lived at the same address. His testimony that he drove the truck with his mother’s permission was uncontroverted. Appellant testified that he did not give anyone consent to search the truck.

At the suppression hearing, the State argued,

First of all, it’s our contention that it was a consensual search; and secondly, the officers had probable cause to search this vehicle. It’s in the search warrant, which has been admitted as State’s Exhibit 1, that they listed all vehicles within the curtilage. And they had probable cause because they knew it was his car. They knew that this car was driven by a person who in the past had dealt drugs at this location. They know this because there’s an undercover buy that they set up.
It’s parked half in the curtilage, little bit in the street. It was partially in the street, partially in the driveway. It’s within the curtilage.
In addition, the automobile exception, because of the mobility of vehicles and the destructibility of evidence, it is also our contention that this was a good search.

The State also argued in the trial court, as it does on appeal, that Appellant lacked standing to challenge the search because the truck was not Appellant’s. That is, the State argued that the police search of the truck was lawful because the truck was Appellant’s but that Appellant lacked standing to challenge the search because the truck was not his.

The trial court found that the accepted definition of curtilage was inappropriate in an urban setting and redefined curtilage to include the public street running beside the property described in the warrant. The court found that the vehicle parked in the street was parked within the curtilage of the house because it was parked on the street that touched the property discussed in the search warrant.

The trial court also found that the automobile could be searched pursuant to the automobile exception to the warrant requirement. The court declined to find that Appellant voluntarily consented to the search. The court limited its ruling to a finding that the truck was searched within the scope of the warrant because the street was part of the curtilage and “lawful to be searched independent of the scope of the warrant based upon the information known to the officers and the circumstances ... which is implied in the record.” The trial judge also stated, “It’s inferential in the record that other substances were found on the persons, the details of which are not in the record, so I wouldn’t speculate by adding more fat to the fire of the issue of probable cause to search the vehicle at the scene.” The trial court found the record insufficient to show Appellant was the person named in the warrant. The court also found the record insufficient to determine whether Appellant had standing and consequently assumed standing in hearing and denying Appellant’s motion to suppress.

Legal Analysis

Standing

Before we reach the merits of Appellant’s complaints, we must first address the issue of standing. The State argues on appeal, as it did in the trial court, that Appellant had no standing to challenge the search of the truck he was driving. Yet at the hearing on the motion to suppress, the State argued, “[I]t’s our contention that it was a consensual search; and secondly, the officers had probable cause to search this vehicle.... [T]hey had probable cause because they knew it was his car.”

The State adopts inconsistent positions. It argues on the one hand that Appellant had no standing to contest the search of the truck because it was not his truck and at the same time that Appellant exercised sufficient exclusive care, custody, and control of the truck to establish the nexus between the contents, including the contents of a shaving kit inside a gym bag inside the truck, and himself. While a party may take alternative positions, a party may not take inconsistent positions in a judicial proceeding.

We addressed the circumstances under which a party may be judicially estopped from taking inconsistent positions in judicial proceedings in Goldman v. White Rose Distributing Company:

Judicial estoppel holds that a party who has made a sworn statement in a pleading, a deposition, oral testimony, or affidavits in a judicial proceeding is judicially estopped from maintaining a contrary position in a subsequent proceeding. The doctrine is based on public policy that prohibits a litigant from maintaining inconsistent positions in separate judicial proceedings. The purpose of the doctrine is “to uphold the sanctity of the oath and to prevent abuse of the judicial process.”
White Rose claims that the statements made by its attorney during the first trial cannot be considered in determining judicial estoppel because that doctrine only applies to statements made under oath. However, an attorney is an officer of the court and, as such, is “an instrument or agency to advance the ends of justice.” An attorney may bind a party to a particular position. Indeed, courts routinely rely on counsel’s statements during oral argument and rely on these representations when deciding cases.

We hold that the State is judicially estopped from arguing that Appellant lacked standing to challenge the search of the vehicle that the State argued in the trial court belonged, in the legal sense, to Appellant. In an abundance of caution, we nevertheless address the issue of Appellant’s standing to challenge the search of the vehicle.

Generally, the right to challenge the lawfulness of a search is limited to persons with “standing,” that is, to those who have been aggrieved by a search and seizure. When a search is contested, the accused establishes standing, or his right to complain of the search, by showing that he had a reasonable expectation of privacy in the area searched. A mere allegation by an accused that he was a victim of an illegal search or seizure, if not disputed by the State, is sufficient to establish standing to challenge a search or seizure. Once the State challenges the allegation, the accused carries the burden of proof. The Court of Criminal Appeals recently explained in Kothe v. State,

Proof of “a reasonable expectation of privacy” is at the forefront of all Fourth Amendment claims. Any defendant seeking to suppress evidence obtained in violation of the Fourth Amendment must first show that he personally had a • reasonable expectation of privacy that the government invaded. He must prove that he was a “victim” of the unlawful search or seizure. He has no standing to complain about the invasion of someone else’s personal rights. Only after a defendant has established his standing to complain may a court consider whether he has suffered a substantive Fourth Amendment violation. Although we defer to the trial court’s factual findings and view them in the light most favorable to the prevailing party, we review the legal issue of standing de novo.
In this case, the State failed to challenge Mr. Kothe’s standing to complain about the present search or seizure in the trial court. Mr. Kothe argues that the State cannot raise the issue on appeal in the context of a warrantless search when the State was the losing party in the trial court. We disagree. This Court has previously stated that, because standing is an element of a Fourth Amendment claim, the State may raise the issue of standing for the first time on appeal, even when the defendant is the prevailing party in the trial court. The appellate court may raise the issue of standing on its own; it may analyze that issue as a part of the Fourth Amendment claim presented; or it may conclude that the State has forfeited that argument because it failed to raise it in the trial court.,

The owner of a vehicle has standing to contest the search because the owner has an expectation of privacy. A defendant also has standing to challenge the search of a car he does not own if he shows that he gained possession of the car from the owner with the owner’s consent or from someone authorized to give permission to drive it.

In the case before us, the trial court found that Appellant was driving his mother’s car, that they lived at the same address, and that the car was usually driven by Appellant and his wife. Appellant testified without contradiction that the vehicle was never driven by his mother. This evidence is uncontroverted, and there is no evidence that the truck was stolen. Deferring to the trial court’s determination of facts, and reviewing the determinations of law de novo, we hold that Appellant has satisfied his burden to show standing to contest the search of the truck.

The Validity of the Search Pursuant to the Search Warrant

Appellant does not challenge the validity of the warrant. Instead, in his first point, he argues that the search exceeded the scope of the warrant. The warrant commanded peace officers to search

the premise, to include all vehicles and detached buildings within the curtilage therein named and described at 3521 Ave D ... and ... arrest ... a black male described as follows: approximately 40 years of age, 6'-04" and 270 lbs., short black hair, thin beard, and uses the name “Doug”, and others accused of concealing said controlled substance, namely “crack” cocaine.

The question here is whether Appellant’s vehicle was located within the curtilage of 3521 Ave. D when the police entered it. The answer is no.

Curtilage is “the land immediately surrounding and associated with the home” and “warrants the [same] Fourth Amendment protections that attach to the home.” The U.S. Supreme Court has recognized that the Fourth Amendment protects the curtilage of a house and identified curtilage as “the area [that] harbors the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life.’ ” “Whenever government agents enter into the curtilage, they necessarily intrude upon the individual’s reasonable expectation of privacy.”

Whether a particular area is included within the curtilage of a home is determined by whether the defendant had a reasonable expectation of privacy in the area. Factors considered are the proximity of the area to the home, whether the area is included within an enclosure surrounding the home, the nature of the use to which the area is put, and the steps taken to protect the area from observation by passersby. A public place is not within the curtilage of a home. In the Texas Penal Code, a “public place” is defined as “any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.”

In the case now before this court, Appellant’s truck was parked on the curb in the public street. The trial court found as a fact that a small percentage of the vehicle was on the “actual property of the premises.” Only Officer Stanford testified that any portion of the truck was in the driveway. He testified that one wheel was in the driveway. The trial court also concluded as a matter of law that the street, public street, touching the property of a vehicle parked at the premises is part of the curtilage stretching beyond the common law definition of curtilage, which included the farm and the premises and property and fence; that under an urban setting, the lawful parking area of the curb in front of a residence is within lawful curtilage for purposes of a reasonable scope of a search warrant under the Fourth Amendment to the United States Constitution, as well as the Texas Constitution, and that that would be curtilage, the same as the hitching post outside, adjacent to the fence of the old homestead would be part of the curtilage if it adjoins the property. Even though it is public land, it’s the curtilage of the property. And being public property and land, there’s no reasonable expectation of privacy on what could be seen on a vehicle on a public street, and I find that’s the curtilage of the property that is immediately adjacent to that part of the street, if it’s lawful parking.

As the trial court pointed out, the street is a public place. As a public place, it is by definition not part of “the area [that] harbors the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life.’ ”

Examining the photograph of the street beside the property in question, we note that a fence separates the backyard from the public sidewalk and stretches from the house to the detached garage. Between the fence and the street are a sidewalk, grass, and a curb.

A sidewalk is defined as that portion of a street that is between a curb or lateral line of a roadway and the adjacent property line and is intended for pedestrian use. Sidewalks in a city are a part of the street and subject primarily to the control of the city rather than the abutting property owners. For purposes of public intoxication, a street and any adjoining sidewalk are clearly public places.

The driveway in the photograph crosses the sidewalk and joins the street at the curb. Even if, as Stanford testified, a wheel of Appellant’s truck was in the driveway, the truck was nevertheless in a public place and not within the curtilage because the wheel could not have extended beyond the portion of the driveway touching the curb and sidewalk. The trial court erred in finding that the public sidewalk, curb, and street were within the curtilage of the home in question. Because the warrant authorized the search of vehicles within the curtilage of the home only, and because the truck was not located within the curtilage of the home, the search of Appellant’s truck exceeded the scope of the warrant. We sustain Appellant’s first point.

The Automobile Exception

In his second point, Appellant contends that the trial court erred in denying his motion to suppress on the basis of the automobile exception. We agree. When a warrant is determined to be invalid, we review the search to determine if it can be upheld under an exception to the warrant requirement. We do likewise when a search exceeds the scope of the warrant, as is the case here. The State bears the burden to show that the search falls within one of the narrow exceptions to the warrant requirement for the search to be constitutionally permissible. Applicable in this case is the automobile exception, which permits officers to conduct a war-rantless search of an automobile so long as there is probable cause to believe that a

crime has been committed and that there is contraband located in the vehicle.

“The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Probable cause is still required to justify the search of an automobile, even if a warrant is not. “[T]he presence of an automobile on suspected premises, without more, does not give rise to search that automobile.” Probable cause exists where officers have reasonably trustworthy information sufficient to warrant a reasonable belief that an offense has been or is being committed.

In the case now before this court, the record reflects, and the trial court recognized, that there is no evidence that Appellant was the person named in the warrant and no evidence that any contraband was found on any person or on the premises named in the warrant as a result of the execution of the warrant or otherwise. The trial court found that, even though the record did not show probable cause to search the truck, the search of Appellant’s truck was lawful “independent of the scope of the warrant based upon the information known to the officers and the circumstances ... which is implied in the record.” The trial judge also stated, “It’s inferential in the record that other substances were found on the persons, the details of which are not in the record, so I won’t speculate by adding more fat to the fire on the issue of probable cause to search the vehicle at the scene.”

That is, the trial court concluded the search was lawful independent of the scope of the warrant because, although not included in the record, the court could infer information known to the officers and that drugs were found on other persons at the scene. The trial court misstated and misapplied the law. The State bears the burden of justifying a search. In this case, the burden is more onerous because the State must justify a warrantless search. The justification for the search must appear in the record. We are not allowed to supplement an insufficient record by inferring information necessary to the State’s sustaining its burden. Because the State failed to sustain its burden of showing probable cause to justify the warrantless search, the search of Appellant’s truck is not justified under the automobile exception. We sustain Appellant’s second point.

Consent

We must uphold a trial court’s ruling on a motion to suppress if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Even though the State does not raise the consent exception on appeal, because it was raised below, we address it here.

The Texas and U.S. Constitutions both guarantee the right to be secure from unreasonable searches and seizures made without probable cause. Under the Fourth and Fourteenth Amendments, “a search conducted without a warrant issued upon probable cause is ‘per se unreasonable ... subject only to ... specifically established and well-delineated exceptions.’ ” A search conducted with the consent of the suspect is one such exception, so long as the consent is voluntary. The validity of a consent to search is a question of fact to be determined from all the circumstances. The federal constitution requires the State to prove the validity of the consent by a preponderance of the evidence; the Texas Constitution requires the State to show by clear and convincing evidence that the consent was valid. At a suppression hearing, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses and their testimony. In reviewing a trial court’s ruling on a motion to suppress, we give almost total deference to a trial court’s determination of historical facts, and we review de novo the court’s application of the law.

In the case now before this court, the trial judge considered the witnesses and their testimony and announced that he was not convinced that Appellant voluntarily consented to the search of his truck. He found that the State failed to sustain its burden of showing free and voluntary consent to search. Applying the appropriate standard of review, we will not disturb the trial court’s determination.

Conclusion

Having held that the search of Appellant’s truck exceeded the scope of the warrant and is not justified by either the automobile or consent exception to the warrant requirement, we hold that the trial court abused its discretion in overruling Appellant’s motion to suppress the fruits of the search of his truck. We reverse the trial court’s judgment and remand this cause to the trial court for trial without the illegally seized evidence.

LIVINGSTON, J. filed a dissenting' opinion.

TERRIE LIVINGSTON, Justice,

dissenting.

I respectfully dissent from the majority’s opinion in several respects. First, as to the question of appellant’s standing, the majority points to inconsistent positions the State has taken regarding standing. However, it is really appellant who has taken inconsistent positions on standing.

When appellant testified at the suppression hearing, he denied giving officers consent to search and said that if he had been asked for consent to search he would have told them to ask his mother because it was

not his truck. “Because it wasn’t my vehicle.... I can’t consent [sic] something that’s not mine.... I don’t have possession of the truck.” Therefore, while I agree with the majority’s position that the appellant had standing to contest to the search because the trial court found he had permission to drive the truck, I cannot agree that the State was the only party that took inconsistent positions.

In appellant’s first point he challenges the validity of the search pursuant to the search warrant claiming that the vehicle was not located within the scope of the warrant. The majority goes to great lengths to conclude that the trial court erroneously determined that the vehicle was “within the curtilage of the home,” the language used in the description for location for vehicles in the search warrant. While I agree with the majority that a street is a public place, I do not agree that a sidewalk, on this record, is. Further, whether the sidewalk is within the curti-lage of the premises to be searched is irrelevant. The vehicle was located partially in the driveway of the premises and partially in the adjacent public street. Therefore, the only question to be addressed by the trial court and now by us was whether a vehicle that is partially parked on a street and partially parked in a driveway is within the “premises” of the subject house as described.

The trial court specifically found, as a matter of fact, that the truck was partially located in the driveway of the subject premises and therefore actually within the “premises to be searched.” The trial court found

based upon a part of the vehicle actually extending onto the property, the amount of the vehicle in the Court’s mind doesn’t matter, but the Court finds that a small percentage of the vehicle was placed on — was on the actual property of the premises, therefore justifying a search of the remainder of the vehicle that extended onto the public street parking area.
So even if it’s not curtilage, the vehicle is still partially on the premises as premises is defined, versus curtilage of the property.

The search warrant authorized a search of the “premise, to include all vehicles and detached buildings within the curtilage therein named and described [as] 3521 Ave D.” Two officers testified the truck was partially in the driveway, which is actually on the premises and which is within the warrant. Therefore, we do not need to reach the question of whether the vehicle was located within the curtilage because the trial court found, as a matter of fact, that the truck was located in the driveway. This finding is supported by the testimony of the two officers. From this factual finding flows the inescapable legal conclusion that the vehicle was located on the premises.

Therefore, I would conclude that the search warrant itself authorized the search of the vehicle because it was located on the premises described within the search warrant. Because I would uphold the search of the vehicle on this basis, I believe the discussion regarding the automobile exception and consent is unnecessary. For all these reasons, I would affirm the judgment of the trial court.

      . 936 S.W.2d 393 (Tex.App.-Fort Worth 1996), vacated pursuant to settlement agreement, 949 S.W.2d 707 (Tex. 1997).

      . Id. at 397-98 (citations omitted).

      . Goehring v. State, 627 S.W.2d 159, 164 (Tex. Crim.App.1982).

      . Chapa v. State, 729 S.W.2d 723, 725-29 (Tex.Crim.App. 1987).

      . Russell v. State, 717 S.W.2d 7, 9 n. 6 (Tex. Crim.App.1986).

      . Id.

      . 152 S.W.3d 54 (Tex.Crim.App.2004).

      . See Raleas v. Illinois, 439 U.S. 128, 139, 99 S.Ct. 421, 428, 58 L.Ed.2d 387 (1978) (noting that issue of standing involves two inquiries: first, whether defendant has alleged an "injury in fact”; and second, "whether the proponent is asserting his own legal rights and interests rather than basing his claim for relief upon the rights of third parties”). "Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.” Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966-67, 22 L.Ed.2d 176 (1969).

      . See generally 5 Wayne R. Lafave, Search and Seizure § 11.3, at 118 (3d ed.1996).

      . United States v. Salvucci, 448 U.S. 83, 84-85, 100 S.Ct. 2547, 2549, 65 L.Ed.2d 619 (1980); Villarreal v. State, 708 S.W.2d 845, 849-50 (Tex.Crim.App.1986).

      . See Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996); United States v. Pierce, 959 F.2d 1297, 1303 (5th Cir.1992); United States v. Brazel, 102 F.3d 1120, 1147 (11th Cir.), cert, denied, 522 U.S. 822 (1997). Because warrantless searches and seizures are presumed to be unreasonable, the prosecution must establish that any search or seizure was justified under an exception to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971).

      . State v. Johnson, 896 S.W.2d 277, 285 (Tex.App.-Houston [1st Dist.] 1995), aff d, 939 S.W.2d 586 (Tex.Crim.App.1996); see United States v. Phillips, 382 F.3d 489, 494 (5th Cir. 2004) (noting that "[wjhether a defendant has standing to contest an allegedly illegal search is a question of law” and is reviewed de novo); United States v. DeLuca, 269 F.3d 1128, 1131 (10th Cir.2001) (stating that courts review de novo the issue of whether a defendant has standing to challenge a search).

      . State v. Klima, 934 S.W.2d 109, 110-11 (Tex.Crim.App. 1996).

      . See State v. Brady, 763 S.W.2d 38, 42 (Tex. App.-Corpus Christi 1988, no pet.) (addressing issue of defendant’s standing to challenge search although not raised by either State or defendant in trial or appellate court).

      . See Klima, 934 S.W.2d at 110-11.

      . See, e.g., United States v. Price, 54 F.3d 342, 346 (7th Cir.1995) (stating that "[b]e-cause Rakas’ principle of 'standing' is rooted in the substantive law of the Fourth Amendment and not Article III [jurisdiction of courts], the government may waive these types of standing objections”) (citation omitted); see also United States v. DeGasso, 369 F.3d 1139, 1143 n. 3 (10th Cir.2004) (concluding that standing issue was waived because government had never raised it).

      . Kothe, 152 S.W.3d at 59-60 (footnotes in original).

      . See Villarreal, 935 S.W.2d at 138.

      . State v. Crisp, 74 S.W.3d 474, 480-81 (Tex. App.-Waco 2002, no pet.); Rovnak v. State, 990 S.W.2d 863, 867 (Tex.App.-Texarkana 1999, pet. ref'd); Stine v. State, 787 S.W.2d 82, 85 (Tex.App.-Waco 1990, pet. ref'd) (holding defendant who had authority to test drive vehicles left for repairs at car repair shop had standing to challenge search of car which he had used to commit murder).

      . Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214 (1984); accord Gonzalez v. State, 588 S.W.2d 355, 360 (Tex.Crim.App.1979).

      . United States v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326 (1987) (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886)).

      . Bower v. State, 769 S.W.2d 887, 897 (Tex. Crim.App.) (quoting Kann v. State, 694 S.W.2d 156, 160 (Tex.App.-Dallas 1985, pet. ref'd)), cert, denied, 492 U.S. 927, 109 S.Ct. 3266, 106 L.Ed.2d 611 (1989), overruled on other grounds, Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991).

      . Id. at 896.

      . Dunn, 480 U.S. at 301, 107 S.Ct. at 1139.

      . Evans v. State, 995 S.W.2d 284, 285-86 (Tex.App.-Houston [14th Dist.] 1999, pet. ref’d).

      . Tex. Penal Code Ann. § 1.07(a)(40) (Vernon Supp.2004-05).

      . Id.

      . Dunn, 480 U.S. at 300, 107 S.Ct. at 1139.

      . Tex. Transp. Code Ann. § 541.302(16) (Vernon 1999); City of El Paso v. Chacon, 148 S.W.3d 417, 423 (Tex.App.-El Paso 2004, pet. denied); City of Wichita Falls v. Ramos, 596 S.W.2d 654, 657 (Tex.Civ.App.-Fort Worth 1980, writ ref d n.r.e.).

      . Hixon v. State, 523 S.W.2d 711, 713 (Tex. Crim.App.1975); Gray otte v. Adams, 130 Tex. 587, 111 S.W.2d 690, 691 (1938); Parra v. F.W. Wool-worth Co., Inc., 545 S.W.2d 596, 598 (Tex.Civ.App.-El Paso 1977, no writ); Richardson v. Walsh, 292 S.W.2d 855, 856 (Tex.Civ.App.-San Antonio 1956, no writ).

      . Loera v. State, 14 S.W.3d 464, 468 (Tex. App.-Dallas 2000, no pet.); King v. State, 732 S.W.2d 796, 803 (Tex.App.-Fort Worth 1987, pet. ref d).

      . Adkins v. State, 717 S.W.2d 363, 365-66 (Tex.Crim.App.1986).

      . See Snider v. State, 681 S.W.2d 60, 62-63 (Tex.Crim.App.1984); see also United States v. Watkins, 179 F.3d 489, 494-95, 499 (6th Cir. 1999).

      . United States v. Robinson, 414 U.S. 218, 243, 94 S.Ct. 467, 480, 38 L.Ed.2d 427 (1973); Russell, 717 S.W.2d at 9-10.

      . Chambers v. Maroney, 399 U.S. 42, 48-49, 90 S.Ct. 1975, 1979-80, 26 L.Ed.2d 419 (1970); Amos v. State, 819 S.W.2d 156, 160-61 (Tex.Crim.App.), cert, denied, 504 U.S. 917, 112 S.Ct. 1959, 118 L.Ed.2d 561 (1992).

      . Coolidge, 403 U.S. at 461, 91 S.Ct. at 2035.

      . State v. Barnett, 788 S.W.2d 572, 575 (Tex. Crim.App.1990).

      . McGee v. State, 105 S.W.3d 609, 614 (Tex. Crim.App.), cert, denied, 540 U.S. 1004, 124 S.Ct. 536, 157 L.Ed.2d 410 (2003).

      . Robinson, 414 U.S. at 243, 94 S.Ct. at 480; Russell, 717 S.W.2d at 9-10.

      . See O’Hara v. State, 27 S.W.3d 548, 551 (Tex.Crim.App.2000).

      . State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim.App.2002); Romero v. State, 800 S.W.2d 539, 543-44 (Tex.Crim.App.1990).

      . U.S. Const, amend. IV; Tex. Const, art. I, § 9.

      . Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967)); Rayford v. State, 125 S.W.3d 521, 528 (Tex.Crim.App.2003), cert, denied, - U.S. -, 125 S.Ct. 39, 160 L.Ed.2d 35 (2004).

      . Schneckloth, 412 U.S. at 219, 248-49, 93 S.Ct. at 2059.

      . Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996); Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim. App.), cert, denied, 537 U.S. 1051, 123 S.Ct. 603, 154 L.Ed.2d 527 (2002).

      . Maxwell, 73 S.W.3d at 281.

      . Id.

      . Id.; Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).

      . Maxwell, 73 S.W.3d at 281; Guzman, 955 S.W.2d at 89.


author: ANNE GARDNER, Justice.

text:
    Vernon Eugene MOORE, Appellant, v. The STATE of Texas, State.
    No. 2-03-158-CR.
    Court of Appeals of Texas, Fort Worth.
    April 28, 2005.

      The Kearney Law Firm and Wm. Reagan Wynn, Fort Worth, TX, for Appellant.
    Tim Curry, Criminal District Attorney, Charles M. Mallín, Chief Appellate Division, and Anne Swenson, David M. Curl, Steven Jumes and James Renforth, Assistant District Attorneys for Tarrant County, Fort Worth, TX, for Appellee.
    Panel A: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.
   OPINION

ANNE GARDNER, Justice.

INTRODUCTION

Vernon Eugene Moore appeals his conviction for felony assault causing bodily injury to a family member. In his sole point on appeal, he asserts that the trial court erred by failing to sua sponte instruct the jury at the punishment phase of the trial that they could consider only extraneous offenses proven beyond a reasonable doubt. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was indicted for assault causing bodily injury to his wife. In the indictment, the State asserted that Appellant had a prior conviction for assault causing bodily injury to a family member, and, in the habitual offender notice, that Appellant had been convicted for burglary of a habitation and assault causing bodily injury to a child. During the guilt/innocence phase of the trial, Appellant testified on direct examination that on the day and night he assaulted his wife, he had been drinking, driving drunk, and taking methamphetamine and marijuana. He also testified on direct examination that he had pleaded guilty and been convicted twice for escape, three times for theft over $20,000, twice for injury to a child, twice for assault, twice for failure to identify himself to a police officer, and once for burglary of a habitation. Further, on cross-examination, he testified that he had previously been convicted of assault causing bodily injury to a family member.

During the punishment phase of the trial, the State admitted into evidence three penitentiary packets. State’s exhibit 6 is a pen packet for a 2001 conviction for burglary of a habitation. State’s exhibit 7 is a pen packet for two separate 1990 convictions for intentionally and knowingly causing bodily injury to a child. These two exhibits were admitted to prove the allegations in the habitual offender notice in the indictment. State’s exhibit 8 established that Appellant had three prior convictions for theft of property over $20,000. Appellant’s attorney did not object to the admission of the pen packets. In the court’s charge to the jury on punishment, the trial court instructed the jury that it could take into consideration all of the evidence admitted in the full trial. The trial court further instructed the jury of its choices concerning the range of punishment depending on whether the jury found beyond a reasonable doubt that Appellant had committed the offenses set out in the habitual offender notice: if it found beyond a reasonable doubt that Appellant was the same person who was convicted of the offenses set out in the habitual offender notice, the range of punishment would be twenty-five to ninety-nine years, but if it did not, the range of punishment would be two to ten years.

Appellant does not complain about his assault conviction but instead attacks his thirty-five year sentence. In his sole point on appeal, Appellant asserts that article 37.07, section 3(a) of the code of criminal procedure requires the trial court to instruct the jury that the State has the burden to prove extraneous offenses beyond a reasonable doubt before those extraneous offenses can be considered as evidence at punishment, and that the trial court erred by failing to so instruct the jury at the punishment phase of his trial.

EXTRANEOUS OFFENSE EVIDENCE

Prior Criminal Record

Article 37.03, section 3 provides, Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or had act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

Tex.Code Crim. PROC. Ann. art. 37.07, § 3(a)(1) (Vernon Supp.2004-05) (emphasis added).

The Texas Court of Criminal Appeals recently addressed whether a beyond-a-reasonable-doubt instruction is required for prior convictions introduced at punishment. In Bluitt v. State, the court held that the trial court need not give a beyond-a-reasonable-doubt instruction concerning extraneous offenses when those offenses resulted in either a final conviction, probation, or deferred adjudication. 137 S.W.3d 51, 54 (Tex.Crim.App.2004). The court of criminal appeals stated,

While the prior convictions must be properly proved, to require that prior convictions be re-proved beyond a reasonable doubt would be an absurd result, as the very fact of conviction is evidence that the burden of proving guilt beyond a reasonable doubt has already been met in a prior proceeding. The critical issue is that testing of the proof. If an offense has been subject to such scrutiny and the burden of proof has been met, regardless of whether the judicial proceeding concluded with a final conviction, it is part of a defendant’s criminal record, and Art. 37.03, § 3, does not require further proof of guilt beyond a reasonable doubt.

Id.

Therefore, the trial court was not required to instruct the jury that it must find beyond a reasonable doubt that Appellant was convicted of the numerous offenses to which he testified or the State proved had resulted in final convictions.

We now turn to the extraneous offenses of drunk driving and drug use on the day Appellant assaulted his wife. The State contends that evidence of these extraneous offenses is admissible as same transaction contextual evidence and therefore a beyond-a-reasonable-doubt instruction is not required for these acts. In consideration of this argument, it is helpful to provide some background regarding the development of same transaction contextual evidence.

Texas Rule of Evidence 404(b) and Same Transaction Contextual Evidence

Rule 404(b) provides,

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case reasonable notice is given in advance of trial of intent to introduce in the State’s case-in-chief such evidence other than that arising in the same transaction.

Tex.R. Evid. 404(b) (emphasis added).

The doctrine of admissibility of same transaction contextual evidence arose from what has been termed as evidence of the “res gestae” of an offense. It has long been established that extraneous offense evidence is admissible

[t]o show the context in which the criminal act occurred — what has been termed the ‘res gestae’ — under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that they may realistically evaluate the evidence.

Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim.App.1972). In Mayes v. State, the Texas Court of Criminal Appeals noted that “background evidence, once called ‘res gestae’ of the offense, has also come to refer to other offenses indivisibly connected with the offense charged, and not only general background evidence which is helpful to the jury’s understanding.” 816 S.W.2d 79, 86 (Tex.Crim.App.1991). The court further recognized that the broadening of the term res gestae led to confusion as to what exactly constitutes res gestae evidence. See id. (“Furthermore, the absence of jurisprudence on the infrequently litigated subject of background evidence has also created an analytical void, confusing the distinction between other offenses connected with a primary offense, and general background evidence.”). Therefore, the court took the opportunity to distinguish between background evidence and evidence of “other offenses connected with a primary offense,” which the court referred to as “same transaction” contextual evidence. Id. at 86.

Same transaction contextual evidence is admissible as an exception under Rule 404(b) where such evidence is necessary to the jury’s understanding of the instant offense. Rogers v. State, 853 S.W.2d 29, 33 (Tex.Crim.App.1993). The court of criminal appeals has stated,

Same transaction contextual evidence is deemed admissible as a so-called exception to the propensity rule where “several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others.” The reason for its admissibility “is simply because in narrating the one it is impracticable to avoid describing the other, and not because the other has any evidential purpose.” Necessity, then, seems to be one of the reasons behind admitting evidence of the accused’s acts, words and conduct at the time of the commission of the offense.
Mayes, 816 S.W.2d at 86 n. 4 (citations omitted), quoted in Rogers, 853 S.W.2d at 33. Necessity, then, is an “other purpose” for which same transaction contextual evidence is admissible under Rule 404(b). Rogers, 853 S.W.2d at 33.

Extraneous Offense Evidence Under Rule 404(b) and Jury Instructions

The court of criminal appeals has held that if the defendant so requests at the guilt/innocence phase of trial, the trial court must instruct the jury not to consider extraneous offense evidence admitted for a limited purpose under Rule 404(b) unless it believes beyond a reasonable doubt that the defendant committed the extraneous offense. George v. State, 890 S.W.2d 73, 76 (Tex.Crim.App.1994). Therefore, an instruction limiting the jurors’ consideration of extraneous offense evidence to one of the purposes allowed by Rule 404(b), when requested, must include a beyond-a-reasonable-doubt instruction. Id.; see Norrid v. State, 925 S.W.2d 342, 349 (Tex.App.-Fort Worth 1996, no pet.). However, the court of criminal appeals has held that such a limiting instruction is not required when extraneous offense evidence is admitted as same transaction contextual evidence during the guilt/innocence phase of a trial. Camacho v. State, 864 S.W.2d 524, 535 (Tex.Crim.App.1993), cert, denied, 510 U.S. 1215, 114 S.Ct. 1339, 127 L.Ed.2d 687 (1994). In Camacho, the appellant sought a “limiting instruction” on the extraneous offenses of kidnapping and murder, requesting that

any evidence of an offense other than that charged in the indictment if any, may not be considered for any purpose by the jury unless and until they believe from the evidence beyond a reasonable doubt that the defendant committed such other offense, if any, and then such may be considered only for the limited purpose for which it was offered and admitted.

Id. at 534.

The court of criminal appeals held that “those acts fall within the language of Rule 404(b) ... which applies to proof of offenses ‘... arising in the same criminal transaction.’ ” Id. The court further held that “[t]he proof of the kidnapping and of the subsequent murders of two persons found in the house which appellant entered is same transaction contextual evidence. It was admissible as such and was not subject to the requirement of a limiting instruction.” Id. at 535; see also Hoffert v. State, 623 S.W.2d 141, 145 (Tex.Crim. App. [Panel Op.] 1981) (“The Court has ... consistently held that it is not necessary to give a limiting instruction on an extraneous offense which is admitted as part of a transaction which includes the offense on trial.”)

Extraneous Offense Evidence Under Article 37.07 and Jury Instructions

As set out above, article 37.07, section 3(a) allows the admission at punishment of “any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant.” Tex.Code CRiM. Proc. AnN. art. 37.07, § 3(a). In Huizar v. State, the court of criminal appeals held that Article 37.07, section 3(a) requires a trial court to sua sponte give a beyond-a-reasonable-doubt instruction when evidence of extraneous offenses or bad acts is admitted at punishment. 12 S.W.3d 479, 484 (Tex.Crim.App.2000). The court reasoned that

[s]ection 3(a)’s requirement that the jury be satisfied of the defendant’s culpability in the extraneous offenses and bad acts is thus ‘law applicable to the case’ in the non-capital punishment context.... As this was ‘law applicable to the case’ appellant was not required to make an objection or request under section 3(a) in order for the trial court to instruct the jury thereunder.

Id.

However, the Texas Court of Criminal Appeals has not addressed whether a beyond-a-reasonable-doubt instruction is required when evidence of other offenses is admitted during the guilt/innocence phase and reoffered at the punishment phase of a trial as same transaction contextual evidence. King v. State, 125 S.W.3d 517, 519-20 (Tex.Crim.App.2003) (Cochran, J., concurring in refusal of appellant’s petition for discretionary review) (noting that court of criminal appeals has not expressly addressed issue of whether article 37.07, section 3(a) requires beyond-a-reasonable-doubt punishment instruction for extraneous offenses admitted as same transaction contextual evidence at guilt/innocence and re-offered at punishment).

ANALYSIS

Given this backdrop, we turn to the present case. As detailed above, Appellant testified on direct examination regarding the events surrounding the assault of his wife. This included extensive testimony regarding drug and alcohol use and drunk driving by Appellant. As Appellant himself testified, he and his wife got into an argument on their way home about people they had dated in the past. Appellant agreed with his counsel that they were both “drunk and probably not being too rationale [sic].” It was during this car ride home that Appellant stated he first struck his wife when she grabbed the steering wheel. Appellant’s counsel then asked, “So you guys, fair to say, are in a very drunken, heated argument as you’re driving?”, to which Appellant replied, “Yes, ma’am.” Appellant related that when he and his wife got back to their motel room, they continued to argue about the room they were staying in. Appellant stated, ‘You know, I was drunk and she was drunk and we started arguing about it.” Appellant admitted that he assaulted his wife again during this time. Appellant concluded, “If we hadn’t both been drunk, you know, and high on drugs, I would have never done it.”

Appellant seems to have offered the evidence of his own drug and alcohol use to explain the circumstances surrounding the reason he and his wife got into an argument and why he assaulted her. Appellant himself intertwined the drug and alcohol use with the assault of his wife, explaining that he would not have done it if he hadn’t been high. We conclude that the testimony describing the extensive drug and alcohol use on the day Appellant assaulted his wife was necessary to explain the circumstances surrounding the instant offense and constituted same transaction contextual evidence. See Jackson v. State, 927 S.W.2d 740, 742-43 (Tex. App.-Texarkana 1996, no pet.) (holding that in defendant’s trial for attempted murder, evidence of drug activity involving defendant at location where shooting occurred was same transaction contextual evidence); Heiman v. State, 923 S.W.2d 622, 626 (Tex.App.-Houston [1st Dist.] 1995, pet. refd) (stating that evidence that defendant in indecency with a child offense injected himself and complainant with cocaine at the time of the offense was same transaction contextual evidence); see also Morgan v. State, Nos. 14-01-00809-CR, 14-01-00810-CR, 2002 WL 1438680, at *5 (Tex.App.-Houston [14th Dist.] July 3, 2002, pet. refd) (not designated for publication) (holding that evidence of appellant’s cocaine and aleo-hoi use was admissible and relevant as same transaction contextual evidence: “Appellant himself ‘blended’ his cocaine and alcohol use with the sexual abuse allegations by stating that if he did commit the sexual abuse, it was while he was under the influence of cocaine and alcohol.”).

The State argues that because the evidence of Appellant’s drug use and drunk driving constituted same transaction contextual evidence, no reasonable doubt instruction was required. However, we do not necessarily agree. As pointed out by Justice Cochran in King, article 37.07, section 3(a) “does not set out any ‘same transaction contextual evidence’ exception to the statutorily-required reasonable-doubt jury instruction.” King, 125 S.W.3d at 519. Therefore, article 37.07, section 3(a) is distinguishable from rule 404(b), which does contain an express exception for evidence “arising in the same transaction.” Tex.R. Eved. 404(b); see also Rogers, 853 S.W.2d at 33 (holding that necessity is an “other purpose” for which same transaction contextual evidence is admissible under Rule 404(b)). Under the normal approach to statutory interpretation, we look solely to the literal text of the statute for its meaning unless the text is ambiguous or application of the statute’s plain language would lead to an absurd result that the legislature could not possibly have intended. Fryer v. State, 68 S.W.3d 628, 629 (Tex. Crim.App.2002). Given that article 37.07, section 3(a) is not ambiguous, we hesitate to read into it an exception to the burden of proof for extraneous offenses or bad acts offered as same transaction contextual evidence.

Additionally, we do not believe that there is a “necessity” of showing the surrounding circumstances in order to present a complete picture to the jury at the punishment phase. When same transaction contextual evidence is admitted at the guilt/innocence phase, it is deemed an exception to rule 404(b) because “the jury is entitled to know all relevant surrounding facts and circumstances of the charged offense.” Prible v. State, No. AP-74487, 2005 WL 156555, at *6 (Tex.Crim.App. Jan.26, 2005). However, this is not the case when this evidence is admitted at punishment because the jury has already determined guilt. “[Wjhen the State offers same transaction contextual evidence at punishment, it is offering the evidence to prove the defendant’s character, not simply the circumstances surrounding the crime.” King, 125 S.W.3d at 519-20. Moreover, as discussed by the court of criminal appeals in Fields v. State,

At the punishment phase, the defendant has already been found guilty beyond a reasonable doubt of each element of the offense charged.... Prior crimes or bad acts are introduced to provide additional information which the jury may use to determine what sentence the defendant should receive. The statute requires that such evidence may not be considered in assessing punishment until the fact-finder is satisfied beyond a reasonable doubt that these prior acts are attributable to the defendant. Once this requirement is met, the fact-finder may use the evidence however it chooses in assessing punishment. Thus, this evidence serves a purpose very different from evidence presented at the guilt-innocence phase.

1 S.W.3d 687, 688 (Tex.Crim.App.1999). Clearly, the one purpose for which evidence of extraneous offenses is not admissible at the guilt/innocence phase — to show the character of the defendant — is the one purpose for which that evidence is allowed to assist the jury in determining punishment under article 37.07, section 3(a).

However, even if we assume that the trial court did err in failing to sua sponte provide a beyond-a-reasonable-doubt jury instruction regarding Appellant’s drug use and drunk driving, Appellant was not harmed.

We review the erroneous failure to give a punishment-phase reasonable doubt instruction under Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985) (op. on reh’g). Martin v. State, 42 S.W.3d 196, 200 (Tex.App.-Fort Worth 2001, pet. ref'd) (citing Huizar, 12 S.W.3d at 484-85). Because Appellant did not request an instruction or object to its omission, we must decide whether “the error is so egregious and created such harm that he ‘has not had a fair and impartial trial’ — in short ‘egregious harm.’ ” Almanza, 686 S.W.2d at 171; Martin, 42 S.W.3d at 200. In making this determination, the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171; Martin, 42 S.W.3d at 200. Egregious harm is a difficult standard to prove and must be determined on a case-by-case basis. Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996); Martin, 42 S.W.3d at 200.

Appellant himself testified on direct examination to his drug use and drunk driving on the day of the assault. Therefore, there can be no doubt as to his connection to these extraneous offenses. See Martin, 42 S.W.3d at 201 (concluding that the omission of a reasonable doubt instruction was not harmful because there could be little doubt as to defendant’s connection with the bad acts to which he voluntarily admitted at guilt/innocence). Moreover, the jury was also able to consider the substantial list of prior convictions to which Appellant himself testified and which the State presented to prove the habitual offender allegation. Furthermore, Appellant faced a sentence range of twenty-five to ninety-nine years and received a sentence of thirty-five years’ confinement, which was towards the lower end of the punishment range. Indeed, this was much lower than the State’s request that the jury not consider anything less than fifty years. See Batiste v. State, 73 S.W.3d 402, 408 (Tex.App.-Dallas 2002, no pet.) (concluding that appellant did not show egregious harm by failure to give a reasonable doubt instruction when jury assessed punishment far below the maximum punishment available, despite the State’s suggestion that it “start at the top”); Brown v. State, 45 S.W.3d 228, 232-33 (Tex.App.-Fort Worth 2001, pet. ref'd) (asserting that fact that appellant received punishment at low end of punishment range, in contradiction of the State’s request, militated towards showing appellant was not harmed by lack of reasonable doubt instruction).

Therefore, based on the record as a whole, we hold that Appellant has not shown that he suffered egregious harm.

CONCLUSION

We hold that even if we assume that a beyond-a-reasonable-doubt instruction was required in this situation, the trial court’s failure to sua sponte provide one did not deprive Appellant of a fair and impartial trial. Accordingly, we overrule Appellant’s sole point on appeal and affirm the trial court’s judgment.

CAYCE, C.J. concurs without opinion.

      . In oral argument, Appellant’s attorney raised two new extraneous offenses not mentioned in his brief: pulling a phone out of a hotel room wall and threatening to kill his wife. An appellant may not raise new points during oral argument; therefore, we will not address these previously unmentioned offenses because they were not included in the written argument of Appellant’s brief. See Tex.R.App. P. 39.2.


author: Justice JOHNSTONE.

text:
    COMMONWEALTH of Kentucky, Appellant, v. Lorrie MITCHELL, Appellee.
    No. 2003-SC-0927-DG.
    Supreme Court of Kentucky.
    June 16, 2005.

      Gregory D. Stumbo, Attorney General of Kentucky, Dennis W. Shepherd, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, Counsel for Appellant.
    Joseph R. Lane, Ned Barry Pillersdorf, Pillersdorf, Derossett & Lane, Prestons-burg, Counsel for Appellee.
   Opinion of the Court by

Justice JOHNSTONE.

On February 15, 2001, Appellee, Lorrie Mitchell, sold six Oxycontin pills to police informant Kevin Bowling. Mitchell was thereafter indicted by a Floyd County Grand Jury on one count of first-degree trafficking in a controlled substance (Oxy-contin). At trial, the Commonwealth played for the jury an audio recording of the undercover drug buy. In addition, Kentucky State Police Detective Randy Hunter, who was in charge of the investigation and who coordinated the undercover buy between Bowling and Mitchell, testified about the transaction, as well as about the effects of Oxycontin. The defense did not present any evidence, choosing instead to attack the quality of the audiotape and Bowling’s credibility as a paid informant and former drug user. The jury returned a verdict of guilt and, pursuant to an agreement with the Commonwealth, Mitchell was sentenced to seven and a half years’ imprisonment.

The Court of Appeals reversed Mitchell’s convictions and remanded the matter for a new trial. The three-judge panel found that the prosecutor’s use of a “send a message” closing argument was improper, but unpreserved. The court declined to address the error under RCr 10.26, determining that other errors rendered the analysis unnecessary. Specifically, the court opined that Detective Hunter’s testimony as to the effects of Oxycontin on the human body was of “questionable relevance” because its admission made it no more or less likely that Mitchell sold Oxy-contin to an undercover informant. And even if the Commonwealth could demonstrate that the nature of Oxycontin was relevant, only a qualified toxicologist or other expert could provide such testimony. Finally, the court held that it was improper for Detective Hunter to testify about prior drug transactions between Mitchell and Bowling because there was no question raised as to why the investigation proceeded in the manner that it did. The Court of Appeals concluded that although none of the errors warranted reversal in and of themselves, their cumulative effect denied Mitchell a fair trial.

This Court thereafter granted the Commonwealth’s motion for discretionary review. After hearing oral arguments and reviewing the record, we reverse the decision of Court of Appeals and reinstate the judgment and sentence of the Floyd Circuit Court. Additional facts are set forth as necessary.

I. Commonwealth’s Closing Argument

The Court of Appeals took issue with the following four paragraphs contained within the twenty-three pages of the transcribed prosecutor’s closing argument:

Prescription drug problem is out of control. That’s something everybody knows. It’s a huge problem, and I’ve touched on that. It’s ruined lives. It’s torn apart families. Oxycontin in particular. Hillbilly Heroine, that’s what CNN calls it. And the problem with these pills is, and we all know it, it goes to someone with a lawful prescription and that person turns around and sells it to someone else or gives them to someone else, and that person turns around and gives them to someone else or sells them to someone else, and that’s how the problems start, and that’s why the face of the drug dealers change so much. It’s not like it used to be. You don’t have the long-haired hippy guys with the marijuana anymore like back in the 60’s or something like that. The access to it is so much easier. You can get them from the bathroom cabinet, trade them, sell them to someone else. That’s how the faces of the drug dealers change.
Now here’s something else real significant I think. Detective Hunter said that the Defendant has never had a prescription for Oxycontin. But she had it, didn’t she? She obviously had it, she knew where to get it, she had it on her and she sold it as well. She sold it to somebody without a prescription. That’s the problem. Is that dangerous? You bet. You also hear on the tape, near the end of the tape, that she even says she knows of a girl up around Ashland that O.D.ed on Oxycontin just days before this sale. She knew that. She knew the girl O.D.ed on Oxycontin. Did that stop her from selling to Kevin Bowling? No. Did that stop her from snorting eleven (11) pills the day before? No. That’s why the work of detectives such as Randy Hunter and the Kentucky State Police are so important, because they are the ones that are out trying to get these drug dealers off the street. That’s their job. That’s what Detective Hunter did here, and he did it by the book.
The point I want to make is, Ladies and Gentlemen, if we are ever to make a dent in a terrible drug problem we’ve got, prescription drugs with Oxycontin, it’s time to send a message to this defendant and to this community that we’re going to punish drug dealers for doing what they’re doing. It’s time we send a message. You know, I hear it all the time, it’s hard not to. It’s on t.v., it’s in the newspapers, you talk to people on the street in the community. Tell them something needs to be done. Well, what can be done about this problem? Something can be done and something can be done today. Something can be done now.
There’s nothing more that I can do or we can do. The case is in your hands, and it’s only you that can hold the Defendant accountable for doing what she did, selling Oxycontin. Folks, it’s time we take a stand on drugs. It’s time we made a stand on prescription pills. It’s time we make a stand on Oxycontin. There’s one way to do that. Everybody else has done their job. It’s time for you to do your job. And you make sure the Defendant is punished for what she did in selling Oxycontin.

At no point during the prosecutor’s argument did defense counsel raise an objection. It was not until the jury had begun its deliberations that defense counsel informed the trial court, “I want to go on the record that I didn’t think that the proselytizing by [the prosecutor] about the evils of Oxycontin was a proper part of his argument.” The trial court responded that it had instructed the jury not to consider closing arguments as evidence. Further, the trial court noted that jurors are permitted to draw any reasonable inferences and “they can bring their life experiences in with them.” The court treated defense counsel’s comment as a motion for a mistrial and denied it.

Despite the total lack of preservation in the trial court, the Court of Appeals concluded that the prosecutor’s “send a message” argument was improper because it “suggested that the jury had some obligation to cure the community’s problems through its verdict and thereby divert[ed] attention from the jury’s true function of evaluating whether the evidence presented established Mitchell’s guilt.” Even so, it did not go so far as to determine whether the argument constituted palpable error affecting Mitchell’s substantial rights.

As noted by the lower court, “send a message” closing arguments have, in fact, been prohibited in some jurisdictions. See Payton v. State, 785 So.2d 267 (Miss.1999); State v. Apilando, 79 Hawai’i 128, 900 P.2d 135 (1995); Coreas v. United States, 565 A.2d 594 (D.C.App.1989). But compare People v. Chavez, 265 Ill.App.3d 451, 201 IlLDec. 880, 637 N.E.2d 469 (1994) and Bryant v. State, 249 Ga. 242, 290 S.E.2d 75 (1982). Kentucky courts have not drawn a bright line rule prohibiting such statements, but rather have analogized them to remarks which tend to cajole or coerce a jury to reach a verdict that would meet the public favor, Jackson v. Commonwealth, 301 Ky. 562, 192 S.W.2d 480 (1946), or suggestions that a jury convict on grounds not reasonably inferred from the evidence. Wallen v. Commonwealth, 657 S.W.2d 232 (Ky.1983). In Ice v. Commonwealth, 667 S.W.2d 671 (Ky.1984), cert, denied, 469 U.S. 860, 105 S.Ct. 192, 83 L.Ed.2d 125 (1984), however, this Court did hold that a prosecutor’s request that the jury make an example of the defendant constituted pros-ecutorial misconduct.

In this instance, we are of the opinion that no manifest error resulted from the prosecutor’s comments because they were made in direct response to defense counsel’s closing argument. See generally Young v. Commonwealth, 25 S.W.3d 66 (Ky.2000). Mitchell’s entire defense was that she had no participation in the drug buy and that Bowling had somehow “set her up.” Despite the total innocence theory, defense counsel nonetheless stated:

And even if you believe that my client sold six (6) little pills that look about like this, don’t send her to prison. This is a first-degree offense. You’d have to send her for a long time. Look at her. Does she look like a drug dealer?

Undoubtedly, the Commonwealth believed it necessary to counter defense counsel’s entreaty to the jury to acquit Mitchell even if it believed she was, in fact, a drug trafficker, simply because she did not look like the typical drug dealer. This Court has repeatedly held that a prosecutor is permitted wide latitude during closing arguments and is entitled to draw reasonable inferences from the evidence, Lynem v. Commonwealth, 565 S.W.2d 141 (Ky.1978), as well as respond to matters raised by the defense. Hunt v. Commonwealth, 466 S.W.2d 957 (Ky.1971). Defense counsel’s comments trivialized Mitchell’s actions and the dangers of Oxy-contin. The Commonwealth was well within its bounds to respond.

However, we again caution the Commonwealth that it is not at liberty to place upon the jury the burden of doing what is necessary to protect the community. King v. Commonwealth, 253 Ky. 775, 70 S.W.2d 667 (1934); see also Stasel v. Commonwealth, 278 S.W.2d 727 (Ky.1955), and Ice, supra. While it is the duty of the prosecutor to advance the Commonwealth’s ease with persuasiveness and force, he or she has a concomitant duty not to derogate from a fair and impartial criminal proceeding.

Reviewing the Commonwealth’s closing argument in its entirety, we characterize the prosecutor’s comments as responsive commentary to defense counsel’s closing argument. As the trial court noted, the Commonwealth was probably “preaching to the choir.” The comments neither prejudiced Mitchell’s right to a fair trial, nor unduly pressured the jury to punish her. As such, any error must be deemed harmless. RCr 9.24.

II. Detective Hunter’s Testimony

The Court of Appeals found error in two aspects of Detective Hunter’s testimony. First, the court held that testimony concerning the effects of Oxycontin on the human body was “questionably relevant” and improperly introduced. Second, the court opined that Detective Hunter testified to improper KRE 404(b) evidence. Effects of Oxycontin

Detective Hunter testified on direct examination that Oxycontin is a synthetic Morphine tablet with a pharmaceutical name of Oxycodone. Detective Hunter stated that the drug is more potent and addictive if the pills are crushed and either snorted or injected. He further noted that an addict would require increasing amounts of the drug to continue to achieve the same level of intoxication.

While we would agree with the Court of Appeals that evidence of the nature of Oxycontin has little, if any, relevance to whether or not Mitchell sold the drug to an undercover informant, we disagree that the substance of Detective Hunter’s testimony contained “matters of specialized scientific knowledge.” See KRE 702. Detective Hunter informed the jury of his specialized training in narcotics police work, the number of Oxycontin cases he had handled, and the seminar training he had received on Oxycontin. The crux of Detective Hunter’s testimony concerned the manner in which users consume Oxycontin, which was within the scope of his training and experience. At no point did he venture into the realm of the true medical effects of the drug. In fact, the trial court summed it up by stating, “This is something that’s in the realm of common knowledge of this day and time and it’s not offered for expert [sic].”

Defense counsel did not object to the substance of Detective Hunter’s testimony, but rather that he was being portrayed as an expert. That Oxycontin is addictive is a known fact. Notwithstanding, this testimony could not have prejudiced Mitchell because it was not relevant to the issue of whether she sold Oxycontin. Thus, we do not conclude that Detective Hunter’s testimony warrants reversal of Mitchell’s conviction.

Prior Bad Acts

The following colloquy took place during the Commonwealth’s direct examination of Detective Hunter:

Commonwealth: And how did the Defendant become the subject of this investigation?
Det. Hunter: Upon the initial interview of the informant, he identified several targets that he had conducted transactions with that he had purchased narcotics from. Generally, what I would do is I make a list somewhere in some personal notes and we’ll — I’ll verify some of the information that he’s told me, and then we’ll start working from that. Ms. Mitchell over there was identified by the informant. I had received some other complaints.
Defense Counsel: Object.
Trial Court: Overruled.
Det. Hunter: I had received some other complaints, thus verifying the informant’s information that he told me, and then we decided to set up a transaction with Ms. Mitchell.

The Court of Appeals not only concluded that the Commonwealth failed to demonstrate that the above testimony fell within an exception to KRE 404(b), but also that the testimony constituted inadmissible investigative hearsay under Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky.1988). We disagree.

Interestingly, this case is analogous to the Court of Appeals’ decision in Castle v. Commonwealth, 44 S.W.3d 790 (Ky.App. 2000). In Castle, a detective testified that he had received information from a confidential informant that the defendant was trafficking in marijuana. Although the defendant did not object to the testimony, she later claimed on appeal that the admission of improper investigative hearsay was palpable error. The Court of Appeals relied on this Court’s decision in Gordon v. Commonwealth, 916 S.W.2d 176, 179 (Ky. 1995), wherein we held:

[I]t was not improper to admit evidence that appellant had become a suspect in the county-wide drug investigation. This avoided any implication that appellant had been unfairly singled out and explained why the police equipped an informant with a recording device and money with which to attempt a drug buy from appellant. The next question, however, was utterly unnecessary and unfairly prejudicial. There was no legitimate need to say or to imply that appellant was a drug dealer or that he was suspected by the police department of selling drugs in a particular vicinity.

Unlike Castle (and this case), the error in Gordon was adequately preserved. Gordon, supra, at 178. Noting this distinction, the Court of Appeals in Castle held that while the detective’s testimony constituted improper hearsay, the unpre-served error did not meet the palpable error test under RCr 10.26. “We do not believe the isolated testimony was so persistent and prejudicial to cause a manifest injustice.” Castle, supra, at 794.

Similarly, given the ambiguous nature of defense counsel’s objection, this issue is not adequately preserved for review. Nor do we find Detective Hunter’s comments as egregious as those made in either Castle or Gordon. Detective Hunter gave no explanation of the “complaints” that he had received pertaining to Mitchell. Further, his isolated reference to the informant having identified targets he had previously conducted transactions with was not descriptive enough to fall within the guise of KRE 404(b) and be construed as a prior bad act on the part of Mitchell. We simply cannot conclude that this testimony was so prejudicial as to constitute a manifest injustice. Upon consideration of the case as a whole, we do not find that a substantial possibility exists that the result would have been any different.

III. Cumulative Error

Not only do we fail to perceive that any one error warrants reversal of Mitchell’s conviction, but we do not conclude that their cumulative effect denied Mitchell a fair trial. Cf Funk v. Commonwealth, 842 S.W.2d 476 (Ky.1992). None of the errors discussed by the Court of Appeals, taken alone or considered together, resulted in manifest injustice that affected Mitchell’s substantial rights or entitles her to a new trial.

Accordingly, we reverse the decision of the Court of Appeals and reinstate the judgment and sentence of the Floyd Circuit Court.

LAMBERT, C.J.; COOPER, GRAVES, JOHNSTONE, SCOTT, and WINTERSHEIMER, JJ., sitting.

All concur.