author: LESLIE BROCK YATES, Justice.

text:
    Joseph Pernell RUTH, Appellant, v. The STATE of Texas, Appellee.
    No. 14-03-01158-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 21, 2005.

      Douglas M. Durham, Houston, for appellants.
    Eric Kugler, Houston, for appellees.
    Panel consists of Justices YATES, EDELMAN, and GUZMAN.
   OPINION

LESLIE BROCK YATES, Justice.

Appellant, Joseph Pernell Ruth, appeals his conviction for the murder of Kenjenea Williams. In seven issues, appellant makes the following claims: the trial court erred in permitting his daughter to be cross-examined with a prior written statement, admission of his wife’s hearsay statements violated his right of confrontation, the trial court erred in admitting appellant’s statements to the police, and the evidence is factually insufficient to support the verdict. We affirm.

Factual and PROCEDURAL Background

Appellant is married to Clara Ruth, and they have four children together. Several years after they were married, appellant began a romantic relationship with the victim, Kenjenea Williams. Appellant and Williams eventually had two children together, and both of these children are the same ages as two of his children with Clara. Appellant and Clara lived in a house on Greencraig Street in Houston, Texas, and appellant rented a nearby apartment for Williams. Sometimes appellant lived on Greencraig with Clara, and sometimes he stayed with Williams. At times, Williams’s children lived with appellant and Clara on Greencraig, and at other times, they lived with Williams in her apartment. Angelica Ruth, appellant and Clara’s oldest daughter, considered Williams’s children to be her brother and sister.

The living arrangements and relationship between appellant and these two women were complex and volatile. After Clara learned of the appellant’s relationship with Williams, Clara, with appellant’s help, tried to physically evict Williams from her apartment. At one point, appellant obtained a restraining order against Williams, which he then ignored to continue his relationship with her.

In early June 2002, Williams was arrested for cocaine possession, and appellant loaned her money to get out of jail. Appellant was very concerned that Williams repay this money, and he told Williams’s cousin, “I promise you, man, if your cousin don’t pay me back this money, y’all going to be missing a family member.” On June 12, 2002 around 6:30 p.m., while Williams was at a car repair shop, appellant came up behind Williams and grabbed her and said, ‘"Where’s my $4,000 b- (expletive).” The car repair shop owner testified that appellant seemed very angry and that Williams seemed scared and appeared to be trying to calm appellant. After he found out that she had paid for her car repair, appellant grabbed Williams’s hand and said, “Let’s go.” Williams was killed shortly thereafter.

According to a written statement by Angelica, who was nine years old at the time, she and her mother and siblings were at their home on Greencraig when appellant and Williams arrived. She heard appellant and Williams arguing and then saw Williams on her knees and appellant standing over Williams with a gun in his hand. Angelica heard Williams say, “Please, no, Joe.” Appellant then said, “You going to take care of the kids?,” and Williams responded, “Yes, I will.” While Clara was gathering the children to take them out of the house, Angelica saw appellant and Williams, still arguing, go into the back yard. Clara, Angelica, and the rest of the children left. Angelica told the police she did not hear or see the shooting.

Clara and the children went to a house where several of Clara’s relatives lived, including her cousin and mother. According to Clara’s cousin, who testified at trial, Clara showed up scared, crying, and hyperventilating and asked to speak to her mother. When Clara’s mother came outside, Clara said to her, “Joseph shot Ken-jenea.” Clara explained that appellant and Williams had been arguing and that she saw appellant shoot Williams nine times in the head and many more times in the body. Clara’s mother called 911 for her, and Clara told the 911 operator, “I left my house and my husband’s girlfriend whatever was in the house and ... they started arguing. He pulled out a gun so I left.... I don’t know what’s going to happen .... They’re arguing. He has a gun.... They always have arguments.”

Police responded and arrived at the house on Greencraig at about 7:26 p.m. They found Williams dead in the back yard with a total of fifteen gunshot wounds, nine of which were in the head and face. Soon, relatives of both appellant and Williams began to gather at the scene. Around 10:30 that evening, appellant approached a parked Houston Police Department patrol car and told the officer, Joel Garza, “Officer, I’m wanted. I just killed my wife, the mother of my kids. Please take me in.” Officer Garza was at the end of his shift completing paperwork so he could go home, and he really did not want to deal with appellant. He asked appellant, “What?,” and appellant stated, “Please, officer, hurry up. They’re coming. Her relatives are coming to kill me. Please, hurry up, take me in.” Officer Garza, who knew nothing about the murder, thought he was dealing with a “nut case,” so he planned on dropping appellant off at the main police station. Garza opened the back of his police car, and appellant got inside. According to Garza, during the drive, appellant was very talkative and told him that he killed the mother of his children because he had taken money out of savings to post bail for her and “he had it” with her. Appellant also told Officer Garza that he had gotten a protective order against her and that he was “tired of her stupid mess.” Officer Garza called homicide and learned of the murder. He then took appellant to the homicide division. Appellant denied that he told Officer Garza that he murdered anyone and claims that he wanted to be taken into custody solely for protection from Williams’s relatives.

At trial, the jury found appellant guilty of murder, and appellant was sentenced to ninety-nine years in prison. This appeal followed.

Analysis

Angelica’s Written Statement

On the night of the murder, Angelica accompanied an officer to the police station and made a statement, which the officer typed. Angelica’s written statement provides in relevant part as follows:

Tonight I was at home doing the dishes when there was a knock at the door. My mom answered it. My dad and [Williams] were there. They both came inside.
I heard my dad and [Williams] begin to argue. They were in the hallway. I was still in the kitchen. My mom was at the doorway to the master bedroom. She called for me to come to her. As I walked past my dad and [Williams] I saw that [Williams] was on her knees and my dad was standing over her with a gun in his hand. I heard [Williams] say, “Please, no, Joe.” I then heard my dad say, “You going to take care of the kids?” [Williams] said, “Yes, I will.” I went into the master bedroom. My mom went to gather the rest of the kids in the house. I peaked out the master bedroom window and saw that my dad and [Williams] had gone into the back yard. They were still arguing.
My mom came and got me. She, my three sisters, my brother and I all got in the van parked out front. Mom drove us away. I did not hear or see any shooting.

Based on the information in her statement, the State called Angelica as a witness during the guilt stage of the trial. Before she could testify, however, appellant’s counsel requested a hearing, claiming Angelica was incompetent to testify and had no relevant testimony to give because she would testify that she could not remember the events on the night of the murder or giving a statement to the police. The prosecutor explained that Angelica and Clara had gotten their own attorney and since that attorney had prevented the prosecutor from speaking to Angelica, she did not know what Angelica’s testimony would be. After the competency hearing, the trial court determined Angelica was competent to testify.

In the presence of the jury, Angelica testified about her family structure, including describing all of appellant’s children with Clara and Williams and explaining where the children lived and who cared for them. Angelica said she knew that Williams was killed and thought it happened at the house on Greencraig, but she said she did not remember anything else about that evening. She examined the written statement and acknowledged that it was her signature on the statement, but she claimed she could not remember going to the police station or making the statement.

When the prosecutor attempted to impeach Angelica with her statement to the police, appellant made several objections, including hearsay and improper impeachment. His principal objection, both in the trial court and on appeal, is that the State could not call Angelica solely for the purpose of impeaching her with otherwise inadmissible evidence. The prosecutor responded that she called Angelica in good faith based on her written statement, that she was surprised by Angelica’s memory failure, and that Angelica’s testimony was needed to establish other important facts, such as the structure and operation of her family. The trial court overruled appellant’s objection, finding that Angelica was not being called solely for impeachment purposes, and gave a limiting instruction that the jury should consider the statement for impeachment purposes only. In his first two issues, appellant complains that the trial court erred in admitting Angelica’s written statement to the police for impeachment purposes.

We review a trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Long v. State, 130 S.W.3d 419, 426 (Tex.App.Houston [14th Dist.] 2004, no pet.). We must uphold the trial court’s decision as long as it is within the zone of reasonable disagreement, giving almost total deference to a trial court’s determination of historical facts that are supported by the record. Wheeler v. State, 67 S.W.3d 879, 888 (Tex.Crim.App.2002); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).

Texas Rule of Evidence 613(a), which concerns examining witnesses regarding a prior inconsistent statement, provides in relevant part:

In examining a witness concerning a prior inconsistent statement made by the witness, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of, such statement may be allowed, the witness must be told the contents of such statement and the time and place and the person to whom it was made, and must be afforded an opportunity to explain or deny such statement.... If the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted.

Tex.R. Evid. 613(a) (emphasis added). If the admission is partial, qualified, or otherwise equivocal, or if the witness claims to not remember making the prior statement, the prior statement is admissible for impeachment purposes. See McGary v. State, 750 S.W.2d 782, 786 & n. 3 (Tex.Crim.App.1988); Staley v. State, 888 S.W.2d 45, 49-50 (Tex.App.-Tyler 1994, no pet.); Miller v. State, 666 S.W.2d 269, 274 (Tex.App.-Dallas 1984, pet. ref'd). Here, when questioned about the statement, Angelica did not unequivocally admit making it; rather, she claimed she could not remember.

Although Angelica’s statement was admissible for impeachment purposes, appellant is correct that the State cannot call a witness for the primary purpose of impeachment and thus use impeachment as a subterfuge to present otherwise inadmissible evidence. See Barley v. State, 906 S.W.2d 27, 37 n. 11 (Tex.Crim.App.1995); Armstead v. State, 977 S.W.2d 791, 795-96 (Tex.App.-Fort Worth 1998, pet. ref'd). However, the State must know in advance that the witness will recant. See Barley, 906 S.W.2d at 37 n. 11 (summarizing prior cases on the issue, noting that “in each of those cases, the witness had already recanted his or her statement in prior sworn testimony at a previous trial or hearing”); Kelly v. State, 60 S.W.3d 299, 302 (Tex.App.-Dallas 2001, no pet.) (finding no abuse of discretion in allowing State to impeach with prior statement when prosecutor suspected, but did not know for certain, that witness would recant). The prosecutor had not been able to speak with Angelica before calling her and had a good faith belief that Angelica would testify according to the statement she gave to the police. Though appellant’s counsel told the court he suspected she did not recall giving the statement, the State is not required to accept defense counsel’s representation at face value. Further, the trial court explicitly found that Angelica was not being called solely for impeachment purposes, and that finding is supported by the record. Thus, the trial court did not abuse its discretion in admitting the statement.

Even if the trial court erred in admitting Angelica’s statement, any such error is harmless in this case. The most damaging portion of Angelica’s statement — that appellant was standing over Williams with a gun in his hand — was also admitted after appellant opened the door during his case-in-chief, and appellant does not complain on appeal about the admission of that testimony. “[0]verrul-ing an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling.” Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App.1998).

We overrule appellant’s first and second issues.

Clara’s Hearsay Statements

As detailed above, when Clara arrived at her cousin’s house, Clara told her mother that appellant and Williams had been arguing and that appellant had shot Williams multiple times in the head and body. Appellant objected to Clara’s cousin’s testimony regarding Clara’s statements based on hearsay. The trial court overruled appellant’s objection, concluding the statements were excited utterances under Texas Rule of Evidence 803(2), and appellant does not dispute on appeal that these statements were excited utterances. Clara’s cousin then authenticated the tape of the 911 call, on which Clara tells the 911 operator that appellant and Williams were arguing and that appellant had a gun. Appellant objected to admission of the 911 tape on multiple grounds, including hearsay and violation of his right to confront witnesses under the state and federal constitutions. The trial court overruled these objections as well and admitted the 911 tape.

In his third and fourth issues, appellant complains that the trial court’s admission of Clara’s hearsay statements violated his right of confrontation. At trial, however, appellant objected to Clara’s statements to her mother only on the basis of hearsay. It is well established that a hearsay objection does not preserve a Confrontation Clause argument for appeal. See Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App.2000); Saldivar v. State, 980 S.W.2d 475, 496 (Tex.App.Houston [14th Dist.] 1998, pet. ref'd). Thus, as to Clara’s statements to her mother implicating appellant, any Confrontation Clause complaint is waived. Accordingly, we address only whether the admission of the 911 tape violated appellant’s constitutional right to confront witnesses.

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court established a new framework for analyzing Confrontation Clause claims. If the statement at issue is “testimonial,” it is inadmissible unless the declarant is unavailable and the accused has had a prior opportunity for cross-examination. Id. at 53-54, 124 S.Ct. 1354. Thus, the threshold issue under Crawford is whether the statement to be admitted is testimonial. Spencer v. State, 162 S.W.3d 877, 879 (Tex.App.-Houston [14th Dist.] 2005, no pet. h.). The Crawford Court did not define “testimonial,” but it noted three formulations of “core” testimonial evidence: (1) “ex parte in-court testimony or its functional equivalent,” such as affidavits, custodial examinations, prior testimony' not subject to eross-examination, or “similar pretrial statements that declarants would reasonably expect to be used prosecutorially,” (2) “extrajudicial statements” of the same nature “contained in formalized testimonial materials,” and (3) “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” 541 U.S. at 51-52, 124 S.Ct. 1354. The Court further explained that the term “testimonial” applies “at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id. at 68, 124 S.Ct. 1354.

In Spencer, we reviewed the relevant authority from Texas and other jurisdictions in deriving several principles for use in determining whether a statement is testimonial:

(1) Testimonial statements are official and formal in nature.
(2) Interaction with the police initiated by a witness or the victim is less likely to result in testimonial statements than if initiated by the police.
(3) Spontaneous statements to the police are not testimonial.
(4) Responses to preliminary questions by police at the scene of a crime while police are assessing and securing the scene are not testimonial.

Spencer, 162 S.W.3d 877, at 881-83. Using these principles, we determined that statements to the police, whether spontaneous or in response to preliminary questions, when police are called to a crime scene shortly after a crime are not testimonial because such interactions are not initiated by the police and are not formal or structured. Id. at 882-83.

Though no Texas court has yet addressed this situation, statements made during 911 calls are similar in nature to the situation we addressed in Spencer. Such statements are not given in response to structured police questioning or with an eye to future legal proceedings but are initiated by a victim or witness to obtain police assistance. See People v. Corella, 122 Cal.App.4th 461, 18 Cal.Rptr.3d 770, 776 (Ct.App.2004); People v. Moscat, 3 Misc.3d 739, 777 N.Y.S.2d 875, 879-80 (Crim.Ct.2004); State v. Davis, 111 P.3d 844, 849 (Wash.2005). They usually do not bear any of the official, formal qualities of the police interactions the Confrontation Clause was intended to protect against. See Corella, 18 Cal.Rptr.3d at 776; Moscat, 111 N.Y.S.2d at 879-80; Davis, 111 P.3d at 850-51. Some courts have held that statements made during 911 calls should be analyzed on a case-by-case basis because some statements could be testimonial under certain circumstances. See People v. West, 355 Ill.App.3d 28, 291 Ill.Dec. 72, 823 N.E.2d 82, 91 (2005) (holding that 911 calls should be analyzed on a case-by-case basis to determine whether statements at issue were volunteered to obtain police action or the result of interrogation to gather evidence for use in a criminal prosecution); People v. Mackey, 5 Misc.3d 709, 785 N.Y.S.2d 870, 872 (Crim.Ct.2004) (noting that “[vjarious courts have begun to adopt a fact-specific analysis of the particular call and the caller’s motive for making the call” in conducting Crawford analyses); Davis, 111 P.3d at 850 (“In most cases, one who calls 911 for emergency help is not ‘bearing witness,’ whereas calls made to the police simply to report a crime may conceivably be considered testimonial. It is necessary to look at the circumstances of the 911 call in each case to determine whether the declarant knowingly provided the functional equivalent of testimony to a government agent.”). But see People v. Cortes, 4 Misc.3d 575, 781 N.Y.S.2d 401, 415 (Sup.Ct.2004) (categorically concluding that “[e]alls to 911 to report a crime are testimonial under [Crawford ]”).

We agree with those courts that have determined that it is necessary to look at the circumstances of each case to determine whether statements made in a 911 call are testimonial in nature. Here, however, appellant provides no analysis as to why Clara’s statements to the 911 operator were testimonial, and we see nothing in the record suggesting that this call, in which a witness to a crime in progress at her home summoned the police, deviates from the typical, nontestimonial 911 call. We hold that Clara’s statements to the 911 operator were not testimonial, and therefore the trial court’s admission of testimony regarding these statements did not violate appellant’s confrontation rights.

In any event, error, if any, in the admission of the 911 tape is harmless. Constitutional error is not reversible if we determine beyond a reasonable doubt that the error did not contribute to the conviction. Tex.R.App. P. 44.2(a); see also Simpson v. State, 119 S.W.3d 262, 269-71 (Tex.Crim.App.2003) (applying Rule 44.2(a) standard to a Confrontation Clause claim), cert. denied, — U.S. -, 124 S.Ct. 2837, 159 L.Ed.2d 270 (2004). Clara’s statements to her mother that appellant shot Williams multiple times in the head and body are very specific and much more incriminating than the statements to the 911 operator that appellant and Williams were arguing and that he had a gun. In light of this evidence as well as the other evidence in the record, including appellant’s own statements to the police, we conclude beyond a reasonable doubt that admission of the 911 tape did not contribute to appellant’s conviction. See Simpson, 119 S.W.3d at 271 (finding Confrontation Clause violation to be harmless error where evidence of guilt was strong and erroneously admitted statement was corroborated by other evidence).

We overrule appellant’s third and fourth issues.

Appellant’s Statements to the Police

In issues five and six, appellant claims the trial court erred in denying his motion to suppress his oral statements to Officer Garza that he killed Williams. At the suppression hearing, Officer Garza testified that appellant approached him while Officer Garza was in his patrol car and said that he had just “killed my wife, the mother of my kids” and asked to be taken in. Officer Garza asked ‘What?,” and appellant again asked to be taken in. After appellant was in the back of Officer Garza’s patrol car, he continued to repeat his prior statements and gave more detail, such as that he had just posted bail for the woman he killed and that he had “had it” with her. Officer Garza testified that during this time, the only questions he asked appellant were for his name and date of birth.

We review a trial court’s ruling on a motion to suppress for an abuse of discretion. Mason v. State, 116 S.W.3d 248, 256 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). We give almost total deference to a trial court’s findings of historical fact when those findings are supported by the record. Guzman, 955 S.W.2d at 89. “When, as here, there are no written findings in the record, we view the evidence in the light most favorable to the trial court’s ruling and uphold the ruling on any theory of law applicable to the case. Mason, 116 S.W.3d at 256.

The Fifth Amendment to the United States Constitution protects against custodial interrogation by the police without proper procedural safeguards. See Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Similarly, Article 38.22 of the Texas Code of Criminal Procedure makes any statement made as a result of custodial interrogation inadmissible unless certain procedural steps are followed. Tex.Code CRiM. PROC. Ann. art. 38.22, § 3(a) (Vernon 2005).

We need not determine whether appellant was in fact in custody when making his various statements to Officer Garza because we conclude that Officer Garza did not interrogate appellant. Under both the Fifth Amendment and Article 38.22, voluntary statements not made in response to police interrogation are admissible. See Miranda, 384 U.S. at 478, 86 S.Ct. 1602 (“Volunteered statements of any kind are not barred by the Fifth Amendment. ...”); Stevens v. State, 671 S.W.2d 517, 520 (Tex.Crim.App.1984) (finding appellant’s statements to be admissible under Article 38.22 because “the statements were voluntary statements, made while in custody but not in response to interrogation”). Appellant’s initial statement upon approaching Officer Garza that he “killed my wife, the mother of my kids” and requesting to be taken in was completely spontaneous and therefore not the product of interrogation. Likewise, when Officer Garza said “What?” and appellant repeated a portion of his prior voluntary statement, that was also not the product of interrogation. Further, general and routine questions do not constitute interrogation. Daniels v. State, 25 S.W.3d 893, 897 (Tex.App.-Houston [14th Dist.] 2000, no pet.). After appellant was in Officer Garza’s patrol car, Officer Garza merely asked for appellant’s name and date of birth. Such routine questions are not interrogation. Jones v. State, 795 S.W.2d 171, 173, 176 (Tex.Crim.App.1990) (questions by officer conducting a field sobriety test, including asking name and date of birth, were not interrogation); Townsend v. State, 813 S.W.2d 181, 186 (Tex.App.Houston [14th Dist.] 1991, pet. ref'd) (“Inquiries by the custodial officer regarding a defendant’s name, address, height, weight, place of employment, or physical disabilities are the type of questions normally attendant to arrest and custody and do not constitute interrogation under the fifth amendment.”). We conclude that appellant’s statements were not the product of interrogation, and thus, the trial court did not abuse its discretion in denying appellant’s motion to suppress. We overrule appellant’s fifth and sixth issues.

Sufficiency of the Evidence

In his seventh issue, appellant contends the evidence is factually insufficient to support his conviction because, without considering all of the evidence he challenges in his first six issues, the remaining evidence is “obviously so weak as to undermine confidence in the jury’s determination and is greatly outweighed by the contrary proof.” However, in conducting a factual sufficiency review, we consider all evidence admitted, even if later determined to be inadmissible. See Rodriguez v. State, 819 S.W.2d 871, 872-73 (Tex.Crim.App.1991); Pine v. State, 889 S.W.2d 625, 630 n. 3 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd). Further, we have concluded that the trial court did not abuse its discretion in admitting all of the challenged evidence. That evidence is more than sufficient to support the jury’s verdict. We overrule appellant’s seventh issue.

Having overruled all of appellant’s issues, we affirm the trial court’s judgment.

      . Appellant complains that the State did not voir dire Angelica to verify his representation. Appellant cites no authority that the State is required to voir dire its own witness, and appellant does not argue on appeal that he was denied any opportunity to conduct his own voir dire examination.

      . During his case-in-chief, appellant called a detective to the stand and asked him, "Did Clara Ruth ever say in her statement that she saw Kenjenea Williams kneeling at Joseph Ruth’s feet while he held a gun on her?,” to which the detective answered in the negative. The State claimed that appellant had opened the door to Angelica's statement because he implied Clara had made an assertion that was contained only in Angelica’s statement. The detective was then allowed to clarify that Angelica, not Clara, was the person who had made the assertion.

      . See U.S. Const, amend. VI; Tex. Const, art. 1, § 10. Where, as here, the parties have not argued that differences in state and federal constitutional guarantees are material to the case, and none is apparent, we limit our analysis to the United States Constitution and assume that its concerns are congruent with those of the Texas Constitution. In re Commitment of Fisher, 164 S.W.3d 637, 645, No. 04-0112, 2005 WL 1185511, at *6 (Tex. May 20, 2005).

      . Appellant is unclear in his briefing whether he is also complaining about the statements Clara made to her mother or only the 911 call, but we will liberally construe his argument to include both sets of statements.

      . Over twenty pages in the record later, when discussing his objections to the 911 tape, appellant’s counsel attempted to clarify his objection to the prior testimony regarding Clara’s statements to her mother, stating: "I hope the Court appreciates that when I stand up and say hearsay in the heat of a series of questions, I'm also complaining about my confrontation rights. And I didn't expressly state that when I made my objection, but I think in light of all the discussion we’re having about Clara’s and Angelica's statements, that was apparent." Appellant does not contend on appeal that this retroactive clarification preserved a confrontation objection to this testimony, and correctly so. Confrontation and hearsay are distinct objections, and an objection made after evidence has been admitted does not preserve error. See Atl. Richfield Co. v. Misty Prods., Inc., 820 S.W.2d 414, 421 (Tex.App.-Houston [14th Dist.] 1991, writ denied) (noting that "[t]he party waives any complaint if an objection is made after admission of the evidence” and finding appellant waived hearsay objection when he failed to include a hearsay objection with his other objections until the third time the evidence was admitted).

      . Even if a confrontation complaint regarding Clara’s statements to her mother had been preserved, it is without merit because spontaneous statements to acquaintances do not implicate the right to confrontation. See Woods v. State, 152 S.W.3d 105, 114 (Tex.Crim.App.2004) (finding “casual remarks that [the defendant] spontaneously made to acquaintances” to be nontestimonial), cert. denied, - U.S. -, 125 S.Ct. 2295, 161 L.Ed.2d 1092 (2005).


source: Caselaw Access Project

author: Opinion by Justice LANG-MIERS.

license: Public Domain

text:
    Margaret THOMPSON, Appellant, v. THE CITY OF DALLAS, Appellee.
    No. 05-04-01174-CV.
    Court of Appeals of Texas, Dallas.
    June 22, 2005.
    Rehearing Overruled Aug. 4, 2005.

      Gary Johnson, Foreman Boudreaux Smith & Johnson, Dallas, for Appellant.
    Johnanna Greiner, City of Dallas Atty., Barbara E. Rosenberg, Asst. City Atty., Dallas, for Appellee.
    Before Justices MORRIS, FRANCIS, and LANG-MIERS.
   OPINION

Opinion by Justice LANG-MIERS.

Margaret Thompson sued the City of Dallas for personal injuries sustained when she tripped and fell as she was walking across the floor at Dallas Love Field. Thompson appeals the trial court’s order granting the City’s plea to the jurisdiction based on sovereign immunity. In her sole issue, Thompson contends that the trial court erred in granting the plea because she raised a fact issue that the City had actual knowledge of the hazardous condition that caused her injuries and that the City waived sovereign immunity under the Texas Tort Claims Act. We reverse and remand.

BACKGROUND

Thompson filed suit against the City for personal injuries she sustained when she tripped and fell while walking across the lobby of Dallas Love Field. She claimed that a metal threshold/eoverplate that was not properly secured and was protruding upwards caused her to trip and injure her left shoulder. She ultimately underwent shoulder replacement surgery.

In her petition, Thompson asserted that the City waived its sovereign immunity under the Texas Tort Claims Act because (1) her injuries and damages were proximately caused by the wrongful act, omission, or negligence of one or more of the City’s employees, agents or representatives and that her injuries and damages were caused by the condition or use of tangible personal or real property, and (2) the City’s “failure to add a screw in the cover plate in question next to the seam to prevent it from protruding upwards constitutes a lack of an integral safety component which was the proximate cause of [Thompson’s] injuries and damages.” The City filed a plea to the jurisdiction alleging that because the City did not have actual knowledge of a defect in the metal threshold on which Thompson claimed to have tripped, Thompson’s claim did not fall within a waiver of sovereign immunity under the Texas Tort Claims Act. The trial court granted the City’s plea to the jurisdiction.

PLEA TO THE JURISDICTION

Sovereign immunity from suit defeats a trial court’s subject matter jurisdiction and is properly asserted in a plea to the jurisdiction. Tex. Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004). When a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties to the extent necessary to resolve the jurisdictional issues raised. Id. at 227. If the evidence creates a fact question regarding the jurisdictional issue, a plea to the jurisdiction should not be granted and the fact finder should resolve the fact issue. Id. at 228. However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the plea to the jurisdiction may be ruled on as a matter of law. Id.

We review a challenge to a trial court’s subject matter jurisdiction de novo. Id. When reviewing a plea to the jurisdiction in which the pleading requirement has been met and evidence that implicates the merits of the case has been submitted to support that plea, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Id.

Under the Texas Tort Claims Act, a governmental unit’s sovereign immunity is waived for personal injury “so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” Tex. Civ. Prac. & Rem.Code Ann. § 101.021(2) (Vernon 2005). If the claim arises from a premises defect, “the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.” § 101.022(a). Therefore, to recover against a governmental entity for a premises defect, when the plaintiff has not paid for use of the property, a plaintiff must prove that (1) a condition of the premises created an unreasonable risk of harm to the licensee, (2) the owner actually knew of the condition, (3) the licensee did not actually know of the condition, (4) the owner failed to exercise ordinary care to protect the licensee from danger, and (5) the owner’s failure was a proximate cause of the injury. See State Dept. of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237(Tex.1992); Corbin v. City of Keller, 1 S.W.3d 743, 748 (Tex.App.-Fort Worth 1999, pet. denied).

Thompson contends that the trial court erred in granting the City’s plea to the jurisdiction because she raised a fact issue that the City had knowledge of the dangerous condition caused by the coverp-late. Thompson submitted depositions and other discovery in support of her response to the City’s plea to the jurisdiction. She contends that the evidence shows that the coverplate loosened and worked upward over time, the coverplate was a tripping hazard, and there had been prior reports of tripping on the coverplate in question. She also states that because numerous City employees walked across the coverp-late daily and were to inspect the coverp-late as part of their job duties, the City’s employees must have noticed the dangerous coverplate. The City argues that Thompson’s evidence does nothing more than show that the City’s employees “should have known” of the dangerous condition caused by the coverplate and does not constitute evidence of actual knowledge.

Several City employees testified in their depositions that, prior to Thompson’s fall, they had not personally noticed that the coverplate was in a condition that would cause a tripping hazard and that they would have reported any hazardous condition they had noticed. Testimony revealed, however, that coverplates at the airport were routinely tightened to keep them secure, but through “normal wear and tear,” the coverplate screws would become loose or their heads would break off. An operations officer and the facilities manager from Dallas Love Field both testified that they were not aware of anyone other than Thompson ever tripping on the coverplate. An answer to an interrogatory stated that a review of the building records from the three years prior to Thompson’s fall was conducted and that there were no reports of anyone other than Thompson tripping and falling over the coverplate. However, in its response to request for admission number 4, the City admitted that some of its employees testified that there had been prior reports of tripping somewhere on the coverplate in question in the past.

The City argues, and we agree, that evidence of the City’s constructive knowledge of the condition of the coverp-late cannot alone create a duty to warn Thompson of a dangerous condition or to make the condition reasonably safe. See Barker v. City of Galveston, 907 S.W.2d 879, 885 (Tex.App.-Houston [1st Dist.] 1995, writ denied). However, taking as true all of the evidence favorable to Thompson as nonmovant, including the City’s admission that some of its employees knew of past reports of tripping on the coverplate in question, we conclude that the evidence submitted by the parties raises a fact issue on the City’s actual knowledge. As a result, we hold that the trial court erred in granting the City’s plea to the jurisdiction and sustain appellant’s sole issue.

CONCLUSION

Having sustained appellant’s sole issue, we reverse the trial court’s grant of the plea to the jurisdiction and remand the case for proceedings consistent with this opinion.


author: J. HARVEY HUDSON, Justice.

text:
    Kenneth BARCHUS, Appellant, v. STATE FARM FIRE & CASUALTY COMPANY, Appellee.
    No. 14-04-00320-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 28, 2005.

      Jeffrey L. Raizner, Houston, for appellants.
    Scot A. Schwartzberg, Houston, for ap-pellees.
    Panel consists of Chief Justice HEDGES and Justices HUDSON and FROST.
   OPINION

J. HARVEY HUDSON, Justice.

Appellant, Kenneth Barchus, appeals the trial court’s judgment in favor of appellee, State Farm Fire & Casualty Company, in his appeal from the Texas Workers’ Compensation Commission’s (the “Commission”) decision denying him lifetime income benefits for a work-related injury sustained in 1995. We reverse and render judgment that Barchus is entitled to lifetime income benefits.

On February 11, 1995, Barchus was on his way to the bank to make a deposit in the course and scope of his employment for Barchus Barber Shop when he fell and struck his head. Barchus sustained post-traumatic encephalopathy, a traumatic brain injury. After his initial income benefits were exhausted, Barchus sought lifetime income benefits (“LIBs”) under the Texas Workers’ Compensation Act (“the Act”). See Tex. Lab.Code Ann. § 408.161 (Vernon Supp.2004-05).

A hearing was held before a hearing officer, who determined that Barchus was not entitled to LIBs. Barchus appealed the hearing officer’s decision to a Commission appeals panel, which affirmed the hearing officer’s decision. Barchus appealed the Commission panel’s decision to the trial court. After a bench trial, the trial court entered a final judgment that Barchus was not entitled to recover LIBs under the Act.

Section 408.161 provides the circumstances under which a claimant is entitled to receive LIBs. Tex. Lab.Code Ann. § 408.161. The version of section 408.161(a)(6) that was in effect at the time Barchus sustained his injuries in 1995, provided LIBs for

an injury to the skull resulting in incurable insanity or imbecility.

Act of May 22, 1993, 73rd Leg., R.S., ch. 269, § 1, 1993 Tex. Gen. Laws 1188, amended by Act of June 20, 1997, 75th Leg., R.S., ch. 1443, § 7, 1997 Tex. Gen. Laws 5524 (emphasis added). Section 408.161(a)(6) was amended in 1997. Id. The current version of section 408.161(a)(6) provides for LIBs for

a physically traumatic injury to the brain resulting in incurable insanity or imbecility.

Tex. Lab.Code Ann. § 408.161(a)(6) (emphasis added). The current version of section 408.161(a)(6), therefore, omits the requirement that the claimant must suffer an injury to the skull and, instead, requires a physically traumatic injury to the brain. Both versions require that the claimant’s injury result in incurable insanity or imbecility. Because Barchus was injured in 1995, he was subject to the pre-1997 version of section 408.161(a)(6).

In its findings of fact, the trial court found, among other findings, that:

4. As a result of the February 11, 1995 incident, Plaintiff did not fracture the bony structure of his skull.
5. As a result of the February 11, 1995 incident, Plaintiff did sustain an injury to the skull structures, including and causing damage to the brain.
7. As a result of the February 11, 1995 incident, Plaintiff suffered “incurable insanity or imbecility” within the meaning of Tex. Lab.Code Section 408.161(a)[6].

In its conclusions of law, the trial court stated, among other conclusions, that:

2. Plaintiff did not suffer an injury to his skull within the meaning of the pre-1997 version of Tex. Lab.Code § 408.161(a)(6). Accordingly], Plaintiff Kenneth Barchus is not entitled to lifetime income benefits.
3. Pursuant to Texas Workers’ Compensation Commission Appeals Panel, Appeal No. 951336 (See, 1995 WL 571372), an “injury to the skull” requires a fracture of the bony structure of the skull.
6.Despite the Court’s finding that the injury resulted in incurable insanity or imbecility, the Court concludes that such injury did not rise to the level of an “injury to the skull” as required by the pre-1997 version of Tex. Lab.Code Section 408.161(a)(6).

Thus, while finding that Barchus had sustained an injury to the “skull structures” and suffered from “incurable insanity or imbecility,” the trial court concluded that Barchus was required to show that he had sustained a fracture to his skull in order to satisfy the “injury to the skull” requirement so as to be entitled to LIBs under the pre-1997 version of section 408.161(a)(6).

State Farm asserts that Barchus argues on appeal that the “skull” and the “brain” are the same or interchangeable. We observe that the “skull” and the “brain” are not the same. However, Bar-chus does not contend that “skull” and “brain” are the same, but that an “injury” to the skull is required under the statute, not a “fracture” of the skull. Therefore, the crux of the dispute in this case is whether the pre-1997 version of section 408.161(a)(6) requires a fracture of the skull to satisfy its requirement that there be an “injury to the skull” to be entitled to LIBs.

Statutory construction is a question of law subject to de novo review. Texas Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002); Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex.2002). In construing a statute, our objective is to determine and give effect to the Legislature’s intent as expressed in the words of the statute. In re Entergy Corp., 142 S.W.3d 316, 322 (Tex.2004); City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003). In determining the Legislature’s intent, we may consider other matters such as the objective of the law, legislative history, and consequences of a particular construction. Warner v. Glass, 135 S.W.3d 681, 684 (Tex.2004) (per curiam). When the statute’s meaning is unambiguous, we interpret it according to its plain language. In re Entergy Corp., 142 S.W.3d at 322; City of San Antonio, 111 S.W.3d at 25. The court “ ‘will not give an undefined statutory term a meaning that is out of harmony or inconsistent with other provisions of the statute.’ ” Warner, 135 S.W.3d at 684 (quoting McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003)).

Whether or not the statute is ambiguous, we may consider, among other matters, the administrative agency’s construction of the statute. Tex. Gov’t Code Ann. § 311.023(6) (Vernon 2005). If the construction given to a statute by the agency charged with its enforcement is reasonable and does not contradict the plain language of the statute, then it is entitled to serious consideration. Continental Cas. Co. v. Downs, 81 S.W.3d 803, 807 (Tex.2002); see also FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 883 (Tex.2000) (“Although we defer to administrative interpretations of legislation, we do so only when they are reasonable interpretations.”). However, even then, an agency’s interpretation is a legal determination that is not binding on the courts, and no presumption of validity attaches to it. Insurance Co. of State of Pennsylvania v. Moore, 43 S.W.3d 77, 82 (Tex.App.Fort Worth 2001, no pet.). An administrative construction will not control over the clear and express provisions of a statute, no matter how long it has been applied. Liberty Mut. Ins. Co. v. Montana, 49 S.W.3d 599, 601 (Tex.App.-Fort Worth 2001, no pet.).

The primary purpose of the Texas Workers’ Compensation Act is to benefit and protect injured employees. National Union Fire Ins. Co. v. Burnett, 968 S.W.2d 950, 957 (Tex.App.-Texarkana 1998, no pet.). Thus, the Act should be construed liberally in the worker’s favor. Lujan v. Houston Gen. Ins. Co., 756 S.W.2d 295, 297 (Tex.1988); Yeldell v. Holiday Hills Retirement & Nursing Ctr., 701 S.W.2d 243, 245 (Tex.1985).

A Commission appeals panel decision addressed the pre-1997 version of section 408.161(a)(6). See Tex. Workers’ Comp. Comm’n, Appeal No. 951336, 1995 WL 571372 (Sept. 20, 1995). In that case, the claimant sustained an electrocution injury causing portions of his brain to die after his truck, which he was driving with his left arm resting on the door with the window open, had been struck by lightning. Id. at *2. The appeals panel observed there was no evidence that the claimant had sustained a blow to his skull, or any injury to the skull. Id. at *6. The appeals panel concluded that under either a plain or technical interpretation of the pre-1997 version of section 408.161(a)(6), “only insanity or imbecility resulting from an injury which also involves the skull is currently eligible for LIBS.” Id.

In concluding that Barchus was required to establish that he had suffered a fracture of his skull, the trial court relied on the 1995 Commission appeals panel decision. The issue in that case, however, was whether brain injuries resulting in incurable insanity and imbecility, but not involving any injury to the skull, entitled the claimant to LIBs. Id. at *6-7. In that case, there was no “injury to the skull,” and, therefore, the claimant was not entitled to LIBs. Id. Nowhere in that decision does the Commission appeals panel require a “fracture” of the skull. Other Commission decisions have similarly considered whether the claimant had the requisite “injury to the skull” — not whether a “fracture” to the skull was sustained — or if there were an injury to the skull, whether such injury resulted in incurable insanity or imbecility. However, a later Commission appeals panel decision affirmed the denial of LIBs, specifically noting that the claimant failed to produce “medical evidence of a skull fracture or other damage or harm to the skull.” Tex. Workers’ Comp. Comm’n, Appeal No. 012250, 2001 WL 1472175, at *1 (Oct. 31, 2001).

The pre-1997 version of section 408.161(a)(6) of the statute clearly has two requirements: (1) an injury to the skull, (2) which results in insanity or imbecility. However, we do not believe that “injury to skull” demands a “fracture of the skull.” The Act broadly defines the term “injury” as “damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm. The term includes an occupational disease.” Tex. Lab.Code Ann. § 401.011(1) (Vernon Supp.2004-05). To read into the statute a more narrow requirement that a claimant must suffer a fracture to the skull is inconsistent with the plain language of the statute. If the Legislature had intended to specify that a claimant must sustain a fracture of the skull, rather than a more broadly defined “injury,” it could have done so.

To the extent the Commission has concluded that a claimant must show evidence that he fractured his skull to be entitled to LIBs, we find that such conclusion is inconsistent with the plain language of the statute. Therefore, it was error for the trial court to conclude that Barchus did not satisfy the “injury to the skull” requirement because he did not suffer a fracture of his skull. We sustain this issue.

The trial court found that Barchus “did sustain an injury to the skull structures,” and that he “suffered ‘incurable insanity or imbecility’ within the meaning of Tex. Lab. Code Section 408.161(a)[6].” These factual findings have not been challenged on appeal. Accordingly, we reverse the judgment of the trial court and render judgment that Barchus is entitled to LIBs for the injury he sustained on February 11, 1995.

      . Emphasis added.

      . The brain is defined as “The portion of the central nervous system (CNS) located within the skull that is responsible for the coordination and control of all vital activities....” American Jurisprudence Proof of Facts, 3d Series, Attorney’s Illustrated Medical Dictionary B32 (2002). The skull is defined as "The bony framework of the head; includes the bones encasing the brain and the bones of the face.” Id. at S37.

      . This very issue was addressed by the Legislature when it amended the statute after the 1995 appeals panel decision. The Senate debate, in part, on the amendment reflects the change:
      Sen. Barrientos: Mr. President, Members, one of the provisions of the bill that was to address a problem case that exists now arose in the lifetime income benefits. A worker had brain damage from an electrocution, but because the statufte] requires an injury to the skull, lifetime benefits were denied. This amendment addresses that case by changing an injury to the skull to a physically traumatic injury to the brain. And that language will insure that those whose condition would otherwise qualify for lifetime benefits will not be denied those benefits [because] there was not a blow to the skull ...
      Sen. Ratliff: Sen. Barrientos, you and I have — and our staffs have worked together on this and the amendment will be acceptable. We're talking about a brain injury that is the result of a traumatic injury and so the amendment is acceptable.
      Debate on Tex. H.B. 3522 on the Floor of the Senate, 75th Leg., R.S. (May 22, 1997).

      . See, e.g., Tex. Workers’ Comp. Comm’n, Appeal No. 030324, 2003 WL 21234967, at *2 (Apr. 2, 2003) (reversing award of LIBs where although claimant had established injury to skull, evidence established it was trauma to brain, not injury to skull that led to his mental deterioration); Tex. Worker’s Comp. Comm’n, Appeal No. 011856, 2001 WL 1344697, at *2 (Sept. 25, 2001) (reversing hearing officer’s finding that claimant had met burden for injury to skull, instead, concluding that such finding was against overwhelming weight of evidence as to be clearly wrong or manifestly unjust where there was no specific diagnosis of injury to claimant’s skull or other physical damage to bony structure); Tex. Workers’ Comp. Comm’n, Appeal No. 992869, 1999 WL 1567551, at *3 (Feb. 4, 2000) (affirming denial of LIBs and finding evidence supported hearing officer's factual findings that claimant did not sustain injury to his skull in his fall at work, and that while claimant did not suffer from imbecility, he was insane, but that his insanity was not incurable).


author: KEM THOMPSON FROST, Justice.

text:
    Robert KNIGHT, Appellant, v. CITY STREETS, L.L.C., Appellee.
    No. 14-04-00302-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 28, 2005.

      Daniel Kistler, Houston, for appellants.
    Marjorie Jane Lea, Michael S. Hays, Ruth Ellen Piller, Houston, for appellees.
    Panel consists of Justices ANDERSON, HUDSON, and FROST.
   OPINION

KEM THOMPSON FROST, Justice.

In this case a nightclub patron, the plaintiff below, challenges the trial court’s granting of a no-evidence motion for summary judgment in favor of the defendant nightclub on his claims for an alleged assault upon him by three of the nightclub’s employees and for the nightclub’s alleged negligent supervision, training, and hiring of its employees. We affirm the trial court’s judgment.

I. Factual and PROCEDURAL Background

After a night out at City Streets, L.L.C. (“City Streets”), a Houston nightclub, appellant/plaintiff Robert Knight returned to his car in the parking lot of City Streets and found it had been burglarized. At around 3:30 a.m., Knight went back to the nightclub, which was then closed, to get help from Andrew Sanchez, an off-duty Houston police officer Knight had seen working at the nightclub earlier in the evening. Knight banged on the door and yelled at Sanchez in an effort to get his attention. Sanchez and two other employees, Manuel Saenz and Chris Aquino, emerged from the nightclub. These three men allegedly assaulted Knight, and Sanchez arrested Knight for public intoxication and use of profane language. Knight allegedly sustained multiple injuries as a result of the incident.

Knight filed suit against City Streets, alleging that City Streets (1) was negligent in its supervision, hiring, and training of its employees, and (2) was liable for the assault on Knight by its employees under the theory of respondeat superior. City Streets filed a no-evidence motion for summary judgment, asserting the following grounds:

(1) There was no evidence as to each of the essential elements of Knight’s claims for negligent hiring, supervision, and training; and
(2) There was no evidence that City Streets was liable for the assault on Knight under the theory of responde-at superior because
(a) there was no evidence that Sanchez was a City Streets employee at the time of the assault; and
(b) there was no evidence that Sanchez, Saenz, and Aquino were acting within the course and scope of their employment when they assaulted Knight.

City Streets also argued that Sanchez was not a City Streets employee at the time of the incident because there was no evidence to show that Sanchez (1) was anything more than an independent contractor, and (2) was not performing a public duty as an on-duty police officer because, as a matter of law, an off-duty police officer becomes an on-duty officer the moment he observes a crime. The trial court granted City Streets’s no-evidence motion for summary judgment without specifying the grounds.

II. Standard of Review

In reviewing a no-evidence motion for summary judgment, we ascertain whether the non-movant produced any evidence of probative force to raise a genuine issue of fact as to the essential elements attacked in the no-evidence motion. Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). We take as true all evidence favorable to the non-movant, and we make all reasonable inferences therefrom in the non-mov-ant’s favor. Id. A no-evidence motion for summary judgment must be granted if the party opposing the motion does not respond with competent summary-judgment evidence that raises a genuine issue of material fact. Id. at 917. Because the trial court did not specify the grounds for its ruling, we will affirm if any of the grounds advanced in the motion has merit. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001).

III. Issues and Analysis

A; Respondeat Superior

Did the nightclub patron present sufficient summary-judgment evidence to raise a genuine fact issue as to each challenged element of his respondent-superior claim?

In its no-evidence motion for summary judgment, City Streets asserted that it was not hable for the assault on Knight under the theory of respondeat superior because there was no evidence that Sanchez, Saenz, or Aquino was acting within the course and scope of their employment when they assaulted Knight. To hold an employer liable for the actions of its employee, a claimant must prove (1) an agency relationship existed between the employee (the tortfeasor) and the employer (the defendant); (2) the employee committed a tort; and (3) the tort was in the course and scope of the employee’s authority. See Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex.1998). A tort is within the course and scope of the employee’s authority if his action (1) was within the employee’s general authority; (2) was in furtherance of the employer’s business; and (8) was for the accomplishment of the object for which the employee was hired. Ginther v. Domino’s Pizza, Inc., 98 S.W.3d 300, 303 (Tex.App.-Houston [14th Dist.] 2002, no pet.).

Generally, committing an assault is not within the course and scope of an employee’s authority. Tex. & Pac. Ry. Co. v. Hagenloh, 151 Tex. 191, 247 S.W.2d 236, 239 (1952). An assault by an employee will be found to be within the scope of his employment when the assault is of the same general nature as the conduct authorized by the employer or is incidental to the conduct authorized. See Smith v. M. Sys. Food Stores, Inc., 156 Tex. 484, 297 S.W.2d 112, 114 (1957). Therefore, if the employer places his employee in a position that involves the use of force, so that the act of using force is in the furtherance of the employer’s business, the employer can be found liable for its employee’s actions even if the employee uses greater force than is necessary. Hagenloh, 247 S.W.2d at 239.

In response to City Streets’s no-evidence motion for summary judgment, Knight offered the following evidence: (1) a Houston Police Department offense report from the night of the alleged assault; (2) excerpts from Knight’s deposition in which he described what happened that night; and (3) medical records related to the injuries Knight sustained as a result of the incident. The offense report describes Saenz as a City Streets employee and Sanchez as an off-duty police officer working a second job at City Streets. In his deposition, Knight stated that he was assaulted by three men he had seen on previous visits to City Streets. Knight also stated that he knew that the three men who assaulted him were City Streets employees because they were wearing black jeans and City Streets shirts. This evidence may raise a genuine issue of material fact as to whether Sanchez, Saenz, and Aquino were City Streets employees, but it does not create a fact issue as to whether the three men were acting within the scope of their employment when they allegedly assaulted Knight.

Knight presented no evidence that the use of force was within Sanchez, Saenz, and Aquino’s scope of employment. In his deposition, Knight referred to each of the three men as a bouncer, a position that could involve the use of force. However, Knight did not provide any facts to support his belief that these men, in fact, were employed as bouncers. Conclusory statements, unsupported by facts that reasonably would support the inference, do not constitute probative summary-judgment evidence. See McIntyre v. Ramirez, 109 S.W.3d 741, 749-50 (Tex.2003). At one point in his deposition, Knight stated that he was not sure that all the men involved in the assault were bouncers. More importantly, however, Knight presented no evidence indicating the scope of the three men’s authority or that the use of force was within their general authority as City Streets employees. See generally G.T. Mgmt., Inc. v. Gonzalez, 106 S.W.3d 880, 885-86 (Tex.App.-Dallas 2003, no pet.) (affirming trial court’s judgment holding employer liable for a bouncer’s assault on a patron when evidence that bouncers were authorized to use force was offered at trial); Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 494-95 (Tex.App.-Fort Worth 2002, no pet.) (upholding trial court’s grant of employer’s traditional motion for summary judgment when movant conclusively established that employee who assaulted another employee was not authorized by employer to utilize physical force); Country Roads, Inc. v. Witt, 737 S.W.2d 362, 364-65 (Tex.App.-Houston [14th Dist.] 1987, no writ) (finding evidence legally and factually sufficient to support jury’s finding that doorman at a bar acted within the scope of his employment when he assaulted a patron because evidence was presented that doorman was permitted to use force).

Knight failed to produce any summary-judgment evidence to raise a genuine issue of material fact as to whether Sanchez, Saenz, and Aquino were acting within the course and scope of their employment when they allegedly assaulted Knight. Therefore, we conclude the trial court did not err in granting summary judgment against Knight on his respondeat-superior claim. Accordingly, we overrule Knight’s first issue.

B. Negligent Supervision

Did the nightclub patron present sufficient summary-judgment evidence to raise a genuine issue of material fact as to each challenged element of his negligent-supervision claim?

In its no-evidence motion for summary judgment, City Streets asserted that there was no evidence as to each of the essential elements of Knight’s claims for negligent supervision, hiring, and training. On appeal, Knight concedes that there is no evidence proving that City Streets breached its legal duty to hire and train its employees. To prevail on his remaining claim of negligent supervision, Knight had to prove (1) City Streets owed him a legal duty to supervise its employees; (2) City Streets breached that duty; and (3) that breach proximately caused his injuries. See Morris v. JTM Materials, 78 S.W.3d 28, 49 (Tex.App.-Fort Worth 2002, no pet.). The components of proximate cause are cause-in-fact and foreseeability. Doe v. Boys Club of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). To establish that City Streets’s actions were the proximate cause of his injuries, Knight must show that City Streets’s actions in supervising Sanchez, Saenz, and Aquino were the cause-in-fact of his injuries and that Knight’s assault and resulting injuries were a foreseeable consequence of City Streets’s supervision of these three individuals. See Wrenn, 73 S.W.3d at 496.

City Streets argues that a claim for negligent supervision cannot exist in the absence of a claim of negligent hiring. See Castillo v. Gared, Inc., 1 S.W.3d 781, 785 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (noting that a claim for negligent supervision is often linked with a claim for negligent hiring and refusing to recognize a separate cause of action for negligent supervision). We need not address this issue because, even if a claim for negligent supervision could exist absent a claim for negligent hiring, Knight failed to produce any evidence that City Streets breached its legal duty to supervise its employees.

On appeal, Knight asserts there is a genuine issue of fact as to his negligent supervision claim because the summary-judgment evidence allegedly shows that Chris Chelley, a City Streets manager, was present during the incident and failed to stop Sanchez, Saenz, and Aquino from assaulting Knight. Knight argues that Chelley, armed with managerial authority, had a duty to stop the assault. Knight also argues that Knight’s injuries were foreseeable to Chelley because Chelley was allegedly present while Knight was being assaulted. Chelley’s failure to intervene, Knight argues, was a substantial factor in bringing about Knight’s injuries.

The summary-judgment proof offered by Knight, however, fails to raise a genuine issue of material fact as to whether Chelley breached his alleged legal duty to supervise Sanchez, Saenz, and Aquino. There is no evidence that Chelley was actually present during the assault or that he had prior knowledge that these three men had a propensity for aggression. There is also no evidence that Chelley observed the assault or that he could have intervened to stop it. In the Houston Police Department offense report attached to Knight’s summary judgment response, Chelley is described as a City Streets manager. The report also states that Chelley was offended by Knight’s language, could identify Knight, and would testify in court, if needed. It does not, however, state that Chelley witnessed any alleged assault. In his deposition, Knight stated that there were four others present when the assault started and seven others present when the assault was over. He did not identify any of the individuals as Chelley and did not mention Chelley at any point in his deposition. In Knight’s deposition, he asserted that Aquino stated that Saenz was an “aggressive bully.” Even viewing this evidence in Knight’s favor, we conclude it establishes nothing more than that Saenz may have been aggressive. It does not establish that Chelley or City Streets knew of Saenz’s alleged propensity for aggression.

Because Knight did not produce any summary-judgment evidence to raise a genuine issue of material fact that City Streets or Chelley breached a legal duty to Knight, the trial court properly granted summary judgment on Knight’s negligent-supervision claim. We overrule Knight’s second issue.

Having overruled both of Knight’s issues on appeal, we affirm the trial court’s judgment.


author: STEVE McKEITHEN, Chief Justice.

text:
    Kevin MAYFIELD, Appellant, v. The STATE of Texas, Appellee.
    No. 09-04-509 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted June 9, 2005.
    Decided June 29, 2005.

      Bruce A. Hoffer, Beaumont, for appellant.
    Tom Maness, Criminal Dist. Atty., Philip Babin, Asst. Criminal Dist. Atty., Beaumont, for state.
    Before McKEITHEN, C.J., KREGER and HORTON, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

This is an appeal from the revocation of Kevin Mayfield’s community supervision. Except for one vital fact, the procedural circumstances surrounding the cause are not in dispute. Appellant was indicted for delivery of a controlled substance of less than one gram, a state jail felony,-with the offense date listed as on or about February 24, 1998. Subsequently, appellant pleaded guilty and on June 1,1999, he was found guilty by the trial court and assessed two years’ confinement in a state jail facility of the Texas Department of Criminal Justice — Institutional Division. The trial court suspended imposition of the sentence of confinement and placed appellant on community supervision for a term of five years, and fined appellant $500.00. Appellant’s only issue contends that the trial court was without jurisdiction to revoke appellant’s probation.

Included within the community supervision order and on the same page as his signature is the following language:

The Court authorizes your community supervision officer to modify conditions of community supervision and to transfer you to any community supervision program or residential facility deemed appropriate based upon your risk to the community and the level of your rehabilitation needs. If you do not agree to the modification in writing, the community supervision officer will refer the case to the Court so that a hearing may be conducted.

The record indicates that over the course of the next five years the trial court was provided with a number of administrative hearing referrals which alleged various violations by appellant of the terms and conditions in his community supervision order. In January of 2000, the State filed a motion to revoke appellant’s community supervision alleging commission of a new offense as well as a number of administrative violations. In September of 2000, appellant’s community supervision order was amended to add placement on “Surveillance Probation” until further order by the trial court and to add a requirement of entry and successful completion of a local drug diversion/intervention program. The revocation motion was “held in abeyance.”

Appellant’s problems with compliance continued into 2001 and 2002, and on August 28, 2002, the trial court entered an order again modifying appellant’s eommu-nity supervision order by requiring appellant to “serve a term of confinement and treatment in a substance abuse treatment facility ... for a term of not less than 90 days or more than 1 year.” Subsequently, on May 12, 2003, the trial court entered an order releasing appellant from the substance abuse facility but placing him under the care of a recovery agency.

Thereafter, our record contains an administrative hearing referral document dated May 4, 2004, in which the community supervision hearing officer recommended to the trial court that appellant’s community supervision be extended an additional year so that appellant could complete his community service hours and so that he could become current on his delinquent probation fees. This administrative hearing document also indicates that “Probationer DOES AGREE with this recommendation.” The trial court entered an order approving the administrative hearing officer’s recommendation to extend appellant’s probation term for an additional year, with the order being signed on May 4, 2004. Therefore, instead of appellant’s community supervision expiring on June 1, 2004, the trial court’s extension order resulted in a new expiration date of June 1, 2005. Appellant’s brief fails to take any note of the trial court’s May 4, 2004, order extending appellant’s probation for an additional year.

Tex.Code Crim. Proc. Ann. art. 42.12, § 15(b) (Vernon Supp.2005) provides that while the maximum period of community supervision a judge may impose on state jail felony defendants is five years, an exception provides that “the judge may extend the maximum period of community supervision under this section to not more than 10 years.” Furthermore, “[a] judge may extend a period of community supervision under this section at any time during the period of community supervision, or if a motion for revocation of community supervision is filed before the period of community supervision ends, before the first anniversary of the expiration of the period of community supervision.” Id.

In the instant case, appellant is simply mistaken in arguing the filing of the State’s final motion to revoke community supervision and the subsequent revocation were after appellant’s community supervision had expired. Appellant does not attack the trial court’s May 4, 2004, extension of probation order. Indeed, appellant appears oblivious to the order’s existence.

On the face of the record, therefore, appellant is incorrect in urging that he was revoked after his term of community supervision had expired. The judgment revoking appellant’s community supervision was entered on November 12, 2004, well within the trial court’s one-year extension period. From the face of the record, we find no error nor abuse of discretion of any kind. Appellant’s issue is overruled. The judgment revoking appellant’s probation is affirmed.

AFFIRMED.

      . See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 2.02, 1993 Tex. Gen. Laws 3586, 3705. The current version is found in Tex. Health & Safety Code Ann. § 481.112(a), (b) (Vernon 2003).

      . Now the Texas Department of Criminal Justice — Correctional Institutions Division.


text:
    Tobias D-Hun KELSON, Appellant, v. The STATE of Texas, Appellee.
    No. 09-04-146 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted May 11, 2005.
    Decided June 29, 2005.

      Norman A. Desmarais, Jr., Law Office of Norman A. Desmarais, Jr., Port Arthur, for appellant.
    Tom Maness, Criminal Dist. Atty., Asst. Criminal Dist. Atty., Beaumont, for state.
    Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

Appellant, Tobias D-Hun Kelson, prosecutes this direct appeal from his conviction for Aggravated Assault. Appellant’s guilt was determined by a jury with his punishment set by the trial court at confinement for life in the Texas Department of Criminal Justice — -Correctional Institutions Division. Appellant raises two issues for our consideration:

1. Whether the trial court abused its discretion in its denial of Appellant’s Special Plea of Double Jeopardy and Pre-Trial Application for Habeas Corpus Seeking Relief From Double Jeopardy.
2. Whether the trial court erred by denying Appellant’s Motion For Mistrial.

The record reflects that the trial from which this appeal proceeds was the State’s second attempt to obtain a conviction on the aggravated assault charge. Appellant moved for and was granted a mistrial in the first trial. Prior to commencement of the second trial, appellant filed a “Special Plea of Double Jeopardy,” and a “PreTrial Application for Writ of Habeas Corpus Seeking Relief From Double Jeopardy.” Both instruments were filed under the same trial cause number, “87401.” The trial court later conducted a brief hearing on appellant’s special plea and writ application at which time appellant tendered a transcribed copy of the recorded testimony taken at the first trial. No further evidence was tendered either by appellant or the State. By agreement of the parties and the trial court, the cause was reset to allow the State to respond to certain case-authority provided to the court by appellant.

The record before us contains a written reply by the State along with an affidavit from the prosecuting attorney whose questioning triggered the events that ultimately led to the mistrial being declared. On November 25, 2003, the trial court issued a written order. This order carefully analyzed the extant authority on whether retrial of a criminal defendant is proper in the face of a mistrial granted upon request of a defendant based on prosecutorial misconduct. The trial court concluded the written order by denying relief on both the special plea and the separate habeas corpus request. Thereafter, a jury trial was conducted resulting in appellant’s conviction for aggravated assault and life sentence in the penitentiary. His first issue complains of trial court error in the denial of his special plea and his writ relief, but combines argument and authority in presenting the issue to us. Relying on a line of cases from the United States Supreme Court and the Court of Criminal Appeals, appellant contends his second trial was barred by the doctrine of double jeopardy because: 1) the prosecutor’s misconduct was manifestly improper; 2) it was committed with the requisite mental state; and, 3) therefore violated the standards discussed in Ex parte Peterson, 117 S.W.3d 804, 817-19 (Tex.Crim.App.2003). Prior to addressing the merits of issue one, we must first resolve the threshold inquiries of jurisdiction and cognizability. See Castaneda v. State, 138 S.W.3d 304, 307 (Tex.Crim.App.2003) (appellate courts have authority to consider and address issues which are not directly raised by the parties but must be considered and decided in the course of reviewing the issues presented).

The prohibition against double jeopardy is found in the Fifth Amendment to the United States Constitution. A similar provision is set forth in art. I, § 14 of the Texas Constitution. The Fifth Amendment prohibition against double jeopardy is fully applicable to the States through the Fourteenth Amendment to the United States Constitution. See Benton v. Maryland, 395 U.S. 784, 787, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). While the State and Federal double jeopardy provisions have similar language, their application has taken divergent paths since the Court of Criminal Appeals’ opinion in Bander v. State, 921 S.W.2d 696 (Tex.Crim.App.1996) (“Bander I”). See Peterson, 117 S.W.3d at 813-16.

The Double Jeopardy Clause provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. This has been interpreted so as to prevent: 1) a second prosecution for the same offense after acquittal or after conviction (successive prosecutions); and 2) multiple punishments for the same offense. See Monge v. California, 524 U.S. 721, 727-28, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998); United States v. Dixon, 509 U.S. 688, 695-96, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993); Bailey v. State, 87 S.W.3d 122, 126 (Tex.Crim.App.2002). Although originating from the same source, the nature of these two areas of protection are not necessarily coextensive. The contrast was noted in Gonzalez v. State, 8 S.W.3d 640, 643 n. 9 (Tex.Crim.App.2000):

We have decided that a pretrial writ of habeas corpus is usually the procedural vehicle by which a defendant should raise a “successive prosecutions for the same offense” double jeopardy claim. See Ex parte Robinson, 641 S.W.2d 552, 553-56 (Tex.Cr.App.1982) (defendant may in pretrial writ of habe-as corpus proceeding raise and appeal a successive prosecutions claim before the trial of the indictment which he attacks); see also Ex parte Apolinar v. State, 820 S.W.2d 792, 793-94 (Tex.Cr.App.1991). This is because requiring a defendant to go through trial before appealing a successive prosecutions claim is inconsistent with one double jeopardy guarantee against being consecutively tried for the same offense. See Robinson, 641 S.W.2d at 554. These considerations do not apply to a multiple punishments claim because it “can be fully vindicated on an appeal following final judgment.” See id.

The Apolinar decision goes directly to the heart of our threshold inquiries. Apolinar, 820 S.W.2d at 792. The defendant in Apolinar filed a special plea in the trial court alleging his first trial, which resulted in a mistrial, was improperly terminated and, therefore, a second trial was prohibited as a successive prosecutions double jeopardy violation. See id. at 793. Apoli-nar’s “special plea” was filed pursuant to Tex.Code Ceim. PROC. Ann. art. 27.05(3) (Vernon 1989), which provides, in pertinent part:

A defendant’s only special plea is that he has already been prosecuted for the same or a different offense arising out of the same criminal episode that was or should have been consolidated into one trial, and that the former prosecution: ... (3) was improperly terminated!)]

Thereafter, the trial judge, in a pretrial determination, denied Apolinar’s special plea. Apolinar, 820 S.W.2d at 793. Apolinar appealed this interlocutory ruling directly to the San Antonio Court of Appeals. Id. The San Antonio Court interpreted the “special plea” as a pretrial writ of habeas corpus, found jurisdiction, and addressed the merits of the appeal. Id. In holding the court of appeals did not have jurisdiction to entertain Apoli-nar’s appeal, the Court of Criminal Appeals discussed the nature and scope of a defendant’s “special plea” under article 27.05:

A defendant may file a special plea in order to assert a former jeopardy claim. Article 27.05, V.A.C.C.P. However, all issues of fact presented in the special plea are to be tried by the trier of fact on the trial on the merits. Article 27.07, V.A.C.C.P. The appellant in this case appealed from the trial court’s ruling on the special plea prior to trial on the merits.

Id. Indeed, as the Court further noted, special pleas of former jeopardy are only applicable when the former jeopardy claim involves successive “punishments claims, not successive prosecutions claims. Id. at 794. In support of this observation, the Court quoted the following from the Fifth Circuit case, Robinson v. Wade, 686 F.2d 298, 302 n. 3 (5th Cir.1982):

Texas law provides that a claim of former jeopardy may be raised at the inception of the prosecution under attack, but that the facts concerning the special Plea are determined in the course of the trial on the merits, See Vernon’s Ann. C.C.P. art. 27.05 & 27.07 (1966 & Supp. 1981). The Plea is a mechanism for avoidance of reconviction, not retrial. In its limited function, it falls short of the protections extended to criminal defendants by the double jeopardy clause of the fifth amendment, Baker v. Metcalfe, 633 F.2d 1198, 1200 n. 3 (5th Cir.), cert. denied, 451 U.S. 974, 101 S.Ct. 2055, 68 L.Ed.2d 354 (1981), citing Abney v. United States, 431 U.S. 651, 661, 97 S.Ct. 2034, 2041, 52 L.Ed.2d 651 (1977), as applicable to the states through the fourteenth amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

Apolinar, 820 S.W.2d at 794 (emphasis added).

The Court then discussed the proper procedural method for defendants to utilize when seeking relief by way of a claim of double jeopardy based upon successive prosecutions:

The pretrial writ of habeas corpus, however, provides relief. Article 11.01, et seq., V.A.C.C.P. In Ex Parte Robinson, 641 S.W.2d 552 (Tex.Cr.App.1982), relying on Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), this Court wrote, “We are compelled to hold that there is a Fifth Amendment right not to be exposed to double jeopardy, and that it must be reviewable before that exposure occurs.” Id. at 555; U.S. Const, amends. V and XIV; Art. 1, sec. 10, Tex. Const. This Court then explained that a pretrial writ under Chapter 11, V.A.C.C.P. was the mechanism to be utilized in seeking relief from exposure to double jeopardy.
Because the special plea procedure does not protect against retrial, use of the pretrial writ of habeas corpus is the only way to protect a defendant’s fifth amendment right against twice being put to trial.

Id. (emphasis added). Accord Lindley v. State, 838 S.W.2d 257, 258 n. 1 (Tex.Crim.App.1992).

In the instant case, it is clear that appellant was seeking relief from “twice being put to trial,” and not from “multiple punishments.” In Waldie v. State, 923 S.W.2d 152, 156 (Tex.App.-Beaumont 1996, no pet.), the trial court denied a pretrial “motion of double jeopardy” based upon a claim of multiple punishments. In analyzing the appellant’s claim of trial error we stated:

Double jeopardy may be raised either by a pretrial special plea pursuant to Tex. Code Ceim. PROC. Ann. art. 27.05 (Vernon 1989) or by a pretrial writ of habeas corpus. The special plea protects only against reconviction, not retrial. A defendant who seeks protection from retrial must file a writ of habeas corpus. If the court grants the writ and thereafter denies the relief requested, the defendant may take an immediate appeal.

Id. at 157. Accord State v. Lara, 924 S.W.2d 198, 201-02 (Tex.App.-Corpus Christi 1996, no pet.).

As previously indicated, threshold inquiries of jurisdiction and cognizability must be disposed of before moving on to any substantive issues raised by the parties. This is so because subject matter jurisdiction cannot be conferred by agreement of the parties; jurisdiction must be vested in a court by constitution or statute. See State v. Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App.1996), overruled on other grounds, State v. Medrano, 67 S.W.3d 892, 903 (Tex.Crim.App.2002). In the instant case, appellant is prosecuting this appeal from the final judgment of conviction for aggravated assault. Our appellate jurisdiction to consider the denial of his special plea by the trial court prior to commencement of trial was invoked by appellant’s timely notice of appeal. See State v. Riewe, 13 S.W.3d 408, 410 (Tex.Crim.App.2000). However, as noted above, because a defendant’s special plea is cognizable only as to former jeopardy claims of successive punishments, appellant’s special plea complaining of successive prosecutions failed to present a legally cognizable issue for the trial court to submit to the jury. See Apolinar, 820 S.W.2d at 793; Collins v. State, 640 S.W.2d 288, 288-89, 291 (Tex.Crim.App.1982); Arredondo v. State, 582 S.W.2d 457, 459 (Tex.Crim.App.1979); Lara, 924 S.W.2d at 201-02. Although its basis for denying appellant’s special plea differs from our analysis and conclusion, the trial court did not err in its ruling.

With regard to the trial court’s denial of appellant’s habeas corpus relief we note that following the trial court’s pretrial ruling on the writ, appellant had an immediate right to appeal. See Ex parte McCullough, 966 S.W.2d 529, 531-32 (Tex.Crim.App.1998); Bowen v. State, 131 S.W.3d 505, 507-08 (Tex.App.-Eastland 2004, pet. ref'd); Green v. State, 999 S.W.2d 474, 476 (Tex.App.-Fort Worth 1999, pet. ref'd); Waldie v. State, 923 S.W.2d at 157. Appellant, however, did not attempt an immediate appeal but instead proceeded with a jury trial which resulted in his conviction. Only now, after he has permitted himself to be subjected to a full and complete second trial, does he prosecute an appeal the basis of which is that the double jeopardy clause provided him with an absolute bar to a second trial.

It is not apparent from the record that the full import of a habeas corpus action was appreciated by the parties. Habeas corpus proceedings are separate and distinct proceedings independent of the cause instituted by the presentation of an indictment or other forms of the State’s pleadings. See Green, 999 S.W.2d at 477. Such habeas corpus proceedings should be docketed separately from the substantive cause and given a different cause number. Id. An appeal from an order denying relief is not an interlocutory appeal from the substantive cause arising out of an indictment, felony information, or complaint and information. Id. Furthermore, the purpose of a pretrial habeas corpus application is not to facilitate some defensive position at the trial, but to stop the trial and secure immediate release from confinement. Id. See also Apolinar, 820 S.W.2d at 794 (“Because the special plea procedure does not protect against retrial, use of the pretrial writ of habeas corpus is the only way to protect a defendant’s fifth amendment right against twice being put to trial.”)(emphasis added).

As noted above, the trial court’s order denying appellant’s habeas corpus relief was rendered on November 25, 2003. Under the current rales of appellate procedure, appeal must be perfected within 30 days of the date an appealable order is entered. See Tex.R.App. P. 26.2(a)(1). No motion for new trial was timely filed with regard to the trial court’s November 25, 2003, order. Therefore, appellant’s notice of appeal from the order denying him ha-beas corpus relief was due on or before December 29, 2003. Notice of appeal was filed in the instant cause on March 5, 2004. Appellant’s notice of appeal with regard to the order denying habeas corpus relief is untimely and does not invoke this Court’s appellate jurisdiction. See White v. State, 61 S.W.3d 424, 427-28 (Tex.Crim.App.2001). We therefore dismiss that part of issue one complaining of the trial court’s order denying habeas corpus relief for lack of appellate jurisdiction. Furthermore, we find no error by the trial court in denying that part of issue one complaining of the denial of the special plea to the jurisdiction as special pleas are cognizable only as to former jeopardy claims of successive punishments, not successive prosecutions as was the circumstance facing appellant. Issue one is overruled.

The basis for issue two stems from “bewildering” circumstances which took place during appellant’s second trial. Following the lunch-time recess, it was discovered that a non-attorney, student-intern with the District Attorney’s Office, was seated among the jury panel in the jury deliberations room waiting for the trial to re-commence. The trial court permitted both parties to question the student-intern under oath. The student-intern testified that she came back from lunch, entered the jury room, said “hello,” and sat down. She recalled that the extent of any “conversation” with any of the jurors consisted of saying “hello, and then a few people had conversations about the weather and just general things, but nothing concerning this case.” As she had been introduced to the jury by one of the prosecuting attorneys prior to the start of testimony, the panel presumably knew of the student-intern’s connection with the District Attorney’s Office. On cross-examination, her sworn testimony was that she was unaware she was not supposed to be in the room with the jurors, although she did recall being present during voir dire when the State’s attorney explained to the venire that the parties could not converse nor have any contact with the jury during the trial. No other witnesses were called to testify nor requested by either party. Appellant’s motion for mistrial was tentatively denied subject to further authority presented to the trial court at a later time.

“No person shall be permitted to be with a jury while it is deliberating. No person shall be permitted to converse with a juror about the case on trial except in the presence and by the permission of the court.” Tex.Code Ceim. PROC. Ann. art. 36.22 (Vernon 1981). “When a juror converses with an unauthorized person about the case, ‘injury to the accused is presumed’ and a new trial may be warranted.” See Quinn v. State, 958 S.W.2d 395, 401 (Tex.Crim.App.1997). “However, appellant has the burden of proving the allegation of juror misconduct.” See Hughes v. State, 24 S.W.3d 833, 842 (Tex.Crim.App.2000); Patrick v. State, 906 S.W.2d 481, 498 (Tex.Crim.App.1995). “Determinations of historical fact and assessment of witness credibility and believability are left almost entirely to the discretion of the trial judge, and where there is conflicting evidence there is no abuse of discretion if the motion for mistrial is overruled.” See Hughes, 24 S.W.3d at 842. In the instant case, the testimony of the student-intern was not contradicted. Her testimony indicated that there was no discussion of the case in her presence during the time she sat amongst the jury panel. Furthermore, there was no indication that anything prejudicial to appellant was said by anyone during the incident in question. Accordingly, the presumption of harm that arose from the unauthorized conversation between the student-intern and the members of the jury panel was rebutted by a showing that nothing regarding the case was discussed. See Alba v. State, 905 S.W.2d 581, 587 (Tex.Crim.App.1995).

During the charge conference, the trial court definitively denied appellant’s motion for mistrial with the comment that nothing in the record indicated there was any improper conversation or improper influence on the jury as a result of the student-intern’s unauthorized contact with the panel. Without objection from appellant, a curative instruction was included in the written charge provided to the jury during them deliberations. Said instruction reads as follows:

PRESENCE OF INTERN:

During the trial, the prosecutors [sic] intern [student-intern’s name] entered the jury room. You are instructed that you must completely disregard the intern’s presence in the jury room or any remarks made by the intern while there in reaching a verdict in this case.

“A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile.” See Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999); Adams v. State, 156 S.W.3d 152, 157 (Tex.App.-Beaumont 2005, no pet.). “We review the denial of a motion for mistrial under an abuse of discretion standard.” Adams, 156 S.W.3d at 157 (citing Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App.2004)). “To determine whether a given error necessitates a mistrial, the reviewing court examines the particular facts of the case.” Id. “In most instances, the trial court’s instruction to disregard cures any harm.” Id. Appellant did not object at trial that the curative instruction was insufficient. When a trial court instructs a jury to disregard something which has occurred in its presence, an appellate court must presume the jury followed the trial court’s instructions. See Waldo v. State, 746 S.W.2d 750, 752-53 (Tex.Crim.App.1988). Only for “highly prejudicial and incurable errors” is a mistrial appropriate. See Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App.2003), cert. denied, Simpson v. Texas, — U.S. -, 124 S.Ct. 2837, 159 L.Ed.2d 270, 72 U.S.L.W. 3749 (2004).

There was no abuse of discretion by the trial court in denying appellant’s motion for mistrial. Issue two is overruled. The judgment of the trial court is affirmed.

AFFIRMED.

      . Appellant's punishment exposure was raised to a first degree felony as he pleaded true to a prior felony conviction alleged in his indictment for enhancement purposes. See Tex. Pen.Code Ann. §§ 22.02(a)(2), (b) & 12.42(b) (Vernon Supp.2005).

      . As there is the notation “No File Mark” on the State’s written reply, it is unclear if it was ever before the trial court for consideration. As our decision in this appeal is not dependent on this reply, the legal significance of the missing file mark is of no consequence.

      . If the act to be done is filing a document, and if the clerk's office where the document is to be filed is closed or inaccessible during regular business hours on the last day for filing the document, the period for filing the document extends to the end of the next day when the clerk’s office is open and accessible. See Tex.R.App. P. 4.1(b). We take note of the fact that all offices in the Jefferson County Courthouse were closed on Thursday, December 25, 2003, and on Friday, December 26, 2003, and did not reopen until Monday, December 29, 2003.