text:
    Pearline Cooper ESTER, Appellant, v. The STATE of Texas, Appellee.
    No. 10-03-00079-CR.
    Court of Appeals of Texas, Waco.
    Oct. 27, 2004.

      James R. Jenkins, Waxahachie, for appellant.
    Joe F. Grubbs, Ellis County Dist. Atty., Waxahachie, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

A jury convicted Pearline Cooper Ester of evading arrest in a vehicle. The court sentenced her to ten years’ imprisonment, suspended imposition of sentence, and placed her on community supervision. Ester contends in four issues that the court erred by: (1) overruling her Batson challenges; (2) overruling her objection to the admission in evidence of a crack pipe taken from her car; (3) failing to define the term “knowingly” in the charge; and (4) overruling her objection to the admission in evidence of a penitentiary packet during the punishment phase. We will affirm.

The evidence in sum is that Ester was driving a car suspected to have been involved in a hit-and-run accident. A Mid-lothian police officer sighted Ester’s car and pursued. Despite the officer activating the overhead lights and siren of his patrol car, Ester failed to stop. Ester fled from the officer at speeds up to 120 miles per hour. She forced other drivers off the road as she led the officer (and others) on a twenty-two-mile chase. When Ester’s car was finally stopped, she remained inside with the windows closed. She was smoking a crack pipe as she sat in the car. Because Ester did not respond to the officers’ commands, they broke the rear window on the driver’s side, unlocked the driver’s door, and removed her from the car. She was “shaking and sweating profusely.” They transported her to the hospital for a medical evaluation before taking her to jail.

BATSON CHALLENGES

Ester contends in her first issue that the court abused its discretion by overruling her Batson challenges made with regard to two African-American veniremembers against whom the State exercised peremptory challenges.

The State responded to Ester’s Batson challenge by explaining that it struck veni-reperson Vann because he had failed to answer several questions on his juror information card, he required “a good minute” to answer the prosecutor’s question about how long he had been a resident of the county, he was slow to acknowledge the prosecutor even when being addressed directly, he nodded in affirmation to several of defense counsel’s statements during voir dire, and he did not seem very coherent at times. These are race-neutral explanations for the State’s peremptory challenge. See Tate v. State, 939 S.W.2d 738, 744-45 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd); Harper v. State, 930 S.W.2d 625, 634 (Tex.App.-Houston [1st Dist.] 1996, no pet.).

Ester did not attempt to rebut these reasons at trial. The court’s ruling with respect to Vann is supported by the record and is not clearly erroneous. See Simpson v. State, 119 S.W.3d 262, 268 (Tex.Crim.App.2003).

The State explained that it struck veni-reperson McDaniel because she indicated that she would have difficulty judging another person because of her religious beliefs. When the State challenged McDaniel for cause, Ester rehabilitated her and she agreed that she would follow the law. Nevertheless, McDaniel’s statements regarding her religious beliefs constitute a race-neutral explanation for the State’s peremptory challenge. See Lee v. State, 860 S.W.2d 582, 585 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd); Dixon v. State, 828 S.W.2d 42, 44-46 (Tex.App.-Tyler 1991, pet. ref'd).

Ester did not attempt to rebut this explanation at trial. The court’s ruling with respect to McDaniel is supported by the record and is not clearly erroneous. See Simpson, 119 S.W.3d at 268. Accordingly, we overrule Ester’s first issue.

ADMISSION OF THE CRACK PIPE

Ester contends in her second issue that the court abused its discretion by admitting in evidence the crack pipe which was seized from her car because its probative value is substantially outweighed by the danger of unfair prejudice. However, Ester objected to the admission of this evidence at trial on the basis of chain of custody. Because Ester’s trial objection does not match her appellate complaint, she has failed to preserve this issue for appellate review. See Ibarra v. State, 11 S.W.3d 189, 197 (Tex.Crim.App.1999); Ortega v. State, 126 S.W.3d 618, 622-23 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). Accordingly, we overrule Ester’s second issue.

THE COURT’S CHARGE

Ester contends in her third issue that the court erred by failing to define the term “knowingly” in the charge. The State responds that no error is shown because the evading arrest statute requires only that a person “intentionally flee[ ]” from an officer. We disagree with the State because the statute also requires that the person “know” that he is fleeing from a peace officer. However, because Ester did not suffer “some harm” as a result of this error, we will overrule the third issue.

The indictment alleges in pertinent part that Ester:

did then and there, while using a vehicle, intentionally flee from Brad Elliott, a person the defendant knew was a peace officer who was attempting lawfully to arrest or detain the defendant.

In the proposed charge the court submitted to the parties for consideration, the court included definitions for the terms intentionally and knowingly. The State objected to the inclusion of a definition for the term knowingly because the allegations were “just intentionally fleeing” rather than “intentionally or knowingly” fleeing. The court responded that it had included that definition because the indictment alleges that Ester “knew [Elliott] was a peace officer.” Nevertheless, the court stated that it would remove that definition from the charge.

Ester objected to the removal of the definition and asked the court to restore it. The court overruled her objection.

Section 38.04 of the Penal Code defines the offense of evading arrest or detention as follows:

A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him.

Tex. Pen.Code Ann. § 38.04(a) (Vernon 2003). The elements of this offense are: (1) a person, (2) intentionally flees, (3) from a peace officer, (4) with knowledge he or she is a peace officer, (5) the peace officer is attempting to arrest or detain the person, and (6) the attempted arrest or detention is lawful. See Johnson v. State, 634 S.W.2d 695, 695 (Tex.Crim.App. [Panel Op.] 1982); Reese v. State, 846 S.W.2d 351, 353 (Tex.App.-Tyler 1992, no pet.); see also Tex. Pen.Code Ann. § 38.04(a).

Section 6.03(b) of the Penal Code defines the term “knowledge.” Tex. Pen. Code Ann. § 6.03(b) (Vernon 2003). This was the definition which Ester asked to be included in the charge.

A statutorily-defined term must be included in the charge. See Arline v. State, 721 S.W.2d 348, 352 n. 4 (Tex.Crim.App.1986); Nejnaoui v. State, 44 S.W.3d 111, 119 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd); Smith v. State, 959 S.W.2d 1, 25 (Tex.App.-Waco 1997, pet. ref'd). Because Ester objected to the omission of this definition from the charge, this error requires reversal if she suffered “some harm” from the omission. Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App.2000) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984)); Minor v. State, 91 S.W.3d 824, 828 (Tex.App.-Fort Worth 2002, pet. ref'd) (same).

[T]he actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.

Here, the primary officer made a video recording of the pursuit, which was offered in evidence. The parties focused their argument on the issue of whether Ester knew a police officer was pursuing her. The State did not argue that such knowledge was unnecessary. Cf. Fisher v. State, 829 S.W.2d 403, 406 (Tex.App.-Fort Worth 1992, pet. refd) (harm found where prosecutor referred to charge and informed jury that State did not have to prove defendant knew he was driving car without owner’s consent).

Because of the strength of the State’s evidence and because the argument properly presented the issue of the defendant’s knowledge to the jury, we conclude that Ester was not harmed by the omission of the statutory definition of the term “knowledge” from the charge. See Mathis v. State, 858 S.W.2d 621, 622-23 (Tex.App.Fort Worth 1993, pet. ref'd); White v. State, 844 S.W.2d 929, 933 (Tex.App.Houston [1st Dist.] 1992, pet. refd). Accordingly, we overrule Ester’s third issue.

PENITENTIARY PACKET

Ester contends in her fourth issue that the court abused its discretion by admitting a penitentiary packet in evidence after the State was unable to prove that her fingerprints matched those on the exhibit.

The State’s fingerprint witness concluded that the prints on the penitentiary packet were not of sufficient quality for a comparison. Nevertheless, Ester took the stand during the punishment phase and admitted on cross-examination that she was “the same Pearline Ester” who was convicted in Tarrant County on December 22, 1997 of delivery of less than one gram of cocaine, that she was given three years’ deferred adjudication community supervision, and that her “probation was revoked” on April 5, 1999 and she was sentenced to 180 days’ confinement. This matches the information contained in the penitentiary packet.

Based on Ester’s testimony, the court did not abuse its discretion by admitting the penitentiary packet in evidence. See Beck v. State, 719 S.W.2d 205, 210 (Tex.Crim.App.1986) (prior conviction can be proved by “the introduction of the pen packet and the testimony of the defendant”). Accordingly, we overrule Ester’s fourth issue.

We affirm the judgment.

Chief Justice GRAY concurring.

TOM GRAY, Chief Justice,

concurring.

If Texas was a dartboard, and Waco was the bull’s-eye, the Court’s opinion on the third issue hits Ardmore, Oklahoma. The Court has raised, briefed, and resolved an issue entirely different than what Ester presented. The Court discusses “whether Ester knew a police officer was pursuing her.” While knowledge that the person in pursuit is a police officer is an element of evading arrest, Ester’s issue is not so limited. Ester’s contention is that she did not have knowledge that she was evading anyone, much less arrest or detention.

Ester’s objection was not about knowledge of a circumstance but about the conduct in which she was engaged. This is evident upon examination of her argument on appeal. As stated in her brief, Ester “objected to the charge for the reason that the charge failed to contain the following language; ⅛ person acts knowingly or with knowledge, with respect to the nature of his conduct when he is aware of the nature of his conduct. A person acts knowingly, comma, or with knowledge, comma, with respect to the result of his conduct when he is aware that his conduct is reasonably certain to cause a result, period.’ That language was requested and denied and overruled (RR, Vol. 5, Page 67 fines 11-21).” (Appellant’s brief, pg 17).

Ester does not argue that the word, “knew,” in reference to whether the State proved she knew the person was a police officer, as used in the charge, had to be defined. Her complaint is that “knowingly” was not used in the charge in reference to the conduct in which she had engaged. And if “knowingly” had been used, it needed a definition.

Ester’s theory of the case is that she was so high from smoking crack cocaine that she did not know she was evading anyone, much less police officers. This is readily apparent from Ester’s brief. She states, “The Appellant stated that she was not really aware that the police was trying to stop her (RR, Vol. 6, Page 42 fines 12-23).” And then, “[u]pon cross-examination, the Appellant stated that she was not really aware that the police were trying to stop her (RR, Vol. 6, Page 43 fines 1-6).” Note, she never testified she did not know they were police officers.

Ester’s entire appellate argument is as follows:

This was error, as the evidence introduced at the trial at that point showed that the Appellant did not know what she was doing and the Appellant’s position is that the State had the burden of proving knowledge in this particular offense. Evading by its very nature requires a conscious decision in an act or series of acts. Since this element is necessary and since it was not included as an element to be considered by the jury, Appellant was in fact not fairly convicted. She was convicted of driving recklessly with police officers behind her, as that was all the State proved. The jury was not instructed to consider the element of knowledge of intent. Said ruling was error.
The Appellant would show the court that the State had not proven beyond a reasonable doubt that the Appellant was aware of her actions. The State had the burden of proving that at the time the Appellant knew that she was in fact evading arrest. The due process clause of the United States Constitution protect the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which she is charged, In Re Winship, 397 U.S., 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. In this case the District Attorney’s Office failed to prove, and the jury was not told to consider, whether beyond a reasonable doubt that Appellant had knowledge. Factual insufficiency of the evidence is clear in this case. The due process clause protects the Appellant against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime of which she has been charged, Lowry v. State, 671 S.W.2d 601.
Section 6.03 of the Penal Code states that a person acts intentionally or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause a result. The State had to prove knowledge or intent in this case and they had to prove it beyond a reasonable doubt. The jury should have been so instructed.

The State’s response is also informative. It provides the proper rationale as to why the word “knowingly” was not used in the charge, and therefore, why the trial court properly refused to define it. The State’s response to Ester’s argument is that the Court had to charge her under the language of the indictment, that she intentionally evaded arrest, rather than the lesser culpable mental state of only knowingly evading arrest. The State alleged intentional conduct. As such, the charge did not, and could not, include criminal liability for conduct done knowingly. See Reed v. State, 117 S.W.3d 260, 265 (Tex.Crim.App.2003). Because the term “knowingly” was not used in the charge, there was no need to define it. Thus, the trial court did not err in failing to include the definition in the charge.

This proper analysis also reveals another flaw in the Court’s opinion. The objection was about the exclusion of the definition of a term not used in the charge. The complaint on appeal is about the failure to charge on knowingly, as opposed to intentionally, engaging in the conduct which constitutes evading arrest. The complaint on appeal does not comport with the objection made at trial, and thus presents nothing for our review. Tex.R.App. P. 33.1; see Jenkins v. State, 912 S.W.2d 793, 814-15 (Tex.Crim.App.1993).

The closing sentence of Ester’s argument brings home both problems with the Court’s analysis when she asserts, “The State had to prove knowledge or intent in this case and they had to prove it beyond a reasonable doubt.” (Appellant’s brief, pg 18). The State proved intent; intentional conduct is all that was alleged. And the State proved intent beyond a reasonable doubt.

I would hold the trial court did not err in refusing to define “knowingly.” Because the Court determines the error was harmless, we reach the same conclusion to affirm the trial court’s judgment. Accordingly, I concur in the result but not the rationale of the Court’s judgment.

      . "A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.” Tex. Pen.Code Ann. § 6.03(b) (Vernon 2003).

      . We acknowledge that Mathis and White involved the question of “egregious harm” under Almanza rather than "some harm.” See Mathis v. State, 858 S.W.2d 621, 622 (Tex.App.-Fort Worth 1993, pet. refd); White v. State, 844 S.W.2d 929, 932 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd). Nevertheless, we find these cases to be instructive on the issue presented.


source: Caselaw Access Project

author: BILL VANCE, Justice. GRAY, Chief Justice,

license: Public Domain

text:
    DAUGHTERS OF CHARITY HEALTH SERVICES OF WACO, A Texas Corporation d/b/a Providence Health Center, Appellant, v. Donald LINNSTAEDTER and Kenneth Bolen, Appellees.
    No. 10-02-00326-CV.
    Court of Appeals of Texas, Waco.
    Oct. 27, 2004.
    Rehearing Overruled Dec. 28, 2004.
    Colin H. O’Neill, Andy McSwain, Melinda L. Reyna, Fulbright & Winniford, P.C., Waco, for appellant.
    Rod S. Squires, Derek T. Gilliland, Williams, Squires & Wren, L.L.P., Waco, for appellees.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

This appeal involves a question of first impression: Do the limits on amounts a health care provider can charge for services rendered to a workers’ compensation claimant under the Labor Code preclude the provider from attempting to collect additional sums by filing a hospital hen under the Property Code?

Donald Linnstaedter and Kenneth Bolen (the Employees) were injured in their employer’s vehicle while in the course of their work. Both were treated at Providence Health Center. The driver of the other vehicle was John Paul Jones.

Providence filed a “hospital lien” for the balance it claims was owed for its services. See Tex. Peop.Code Ann. §§ 55.001-008 (Vernon Supp.2004). Providence was then paid by the workers’ compensation carrier the amounts due under the Labor Code for the services provided. See Act of May 22, 1993, 73d Leg., R.S., ch. 269, § 1, sec. 413.011, 1993 Tex. Gen. Laws 987, 1223-24 (current version at Tex. Lab.Code Ann. § 413.011 (Vernon Supp.2004)). The Code prohibits Providence from attempting to collect additional sums directly from the Employees. See id. § 413.042 (Vernon 1996). The relevant amounts are:

Total Amt. Amt.

Employee Claimed Hosp. Lien Camer Paid Linnstaedter $13,406.85 $12,777.85 $5,797.72

Bolen $ 9,297.40 $ 8,889.00 $3,939.82

The Employees sued Jones’s Estate for their injuries. Following a settlement, Jones’s insurer reimbursed the compensation carrier for amounts it had paid to Providence and paid Providence amounts necessary to discharge the hospital liens. The Employees then sued Providence for a declaratory judgment that the filing of the hospital liens violated the Property Code, seeking recovery of sums paid Providence by virtue of the liens. The case was submitted to the judge for decision on a joint motion based on an agreed statement of facts. The court entered judgment for the Employees.

On appeal, Providence says that the Legislature’s intent in passing the hospital lien statute was to give hospitals a separate cause of action, so that accident victims will be treated and hospitals paid for their services. The Employees say that the Labor Code fixes the maximum that a hospital can charge for services to a compensation claimant and therefore, because the Employees could not be charged more than the compensation carrier paid, there were no debts owed by them to Providence that would support the filing of the liens.

We agree with the Employees. The Labor Code fixes the amount to which Providence was entitled for the services it rendered. It could not collect more from the Employees. Thus, it had no right to file hospital liens under the Property Code. See Satsky v. United States, 993 F.Supp. 1027, 1029 (S.D.Tex.1998) (prepaid health care plan between insurance company and hospital; a lien can only legally attach if there is an underlying debt secured by the lien); see also Dorr v. Sacred Heart Hospital, 228 Wis.2d 425, 597 N.W.2d 462, 468-70 (App.1999, pet.dism’d) (payment agreement between hospital and HMO; no debt by person receiving medical services, so lien precluded).

We affirm the judgment.

Chief Justice GRAY dissenting.

GRAY, Chief Justice,

dissenting.

Appellees, Linnstaedter and Bolen, sued the estate of Jones, a third-party tortfea-sor, and settled with it, for damages including “their reasonable and necessary medical expenses incurred in the past.” Appellees now claim that they were not liable to Appellant, Providence Health Center, for past medical expenses, so that no valid hospital lien attached to settlement proceeds for those expenses. Cf. Act of May 26, 1983, 68th Leg., R.S., ch. 576, § 1, sec. 55.002,1983 Tex. Gen. Laws 3475, 3562 (amended 2003) (current version at Tex. Prop.Code Ann. § 55.002 (Vernon Supp.2004-2005)). For Appellees to receive a settlement in this way is a windfall to them, if not fraud by them. We should hold that Providence’s hospital hen attached to the settlement proceeds, and reverse and render judgment for Providence. Because the majority does not do so, I respectfully dissent.

The majority goes astray from its first sentence, in referring to “the limits on amounts a health care provider can charge for services rendered to a workers’ compensation claimant under the Labor Code.” See Daughters of Chanty Health Servs. of Waco v. Linnstaedter, 151 S.W.3d 667, No. 10-02-00326-CV (Tex.App.—Waco Oct. 27, 2004, no pet. h.) (mem.op.) (majority op.) (“slip op.”). I find no authority for the proposition that the Texas Labor Code limits charges for emergency hospital care. The majority cites no authority except Ap-pellees’ statement and the majority’s own belief:

The Employees say that the Labor Code fixes the maximum that a hospital can charge for services to a compensation claimant and therefore, because the Employees could not be charged more than the compensation earner paid, there were no debts owed by them to Providence that would support the filing of the liens.

We agree with the Employees.

Op. at 668. The majority’s only citation to the Labor Code is to former section 413.011.

Id. at 668. That statute provided:

(a)The [Texas Workers’ Compensation Cjommission by rule shall establish medical policies and guidelines relating to:
(1)fees charged or paid for medical services for employees who suffer com-pensable injuries, including guidelines relating to payment of fees for specific medical treatments or services;
(2) use of medical services by employees who suffer compensable injuries; and
(3) fees charged or paid for providing expert testimony relating to an issue under [the Texas Workers’ Compensation Act].
(b) Guidelines for medical services must be fair and reasonable and designed to ensure the quality of medical care and to achieve effective medical cost control. The guidelines may not provide for payment of a fee in excess of the fee charged for similar treatment of an injured individual of an equivalent standard of living and paid by that individual or by someone acting on that individual’s behalf.
(c) Medical policies adopted by the commission must be consistent with [Labor Code] Sections 413.013, 413.020, 413.052, and 413.053.
(d) The commission by rule shall establish medical policies relating to necessary treatment for injuries. Medical policies shall be designed to ensure the quality of medical care and to achieve medical cost control.

Labor Code, 73d Leg., R.S., ch. 269, § 1, sec. 413.011, 1993 Tex. Gen. Laws 987, 1223-24 (amended 2001, 2003) (current version at Tex. Lab.Code Ann. § 413.011 (Vernon Supp.2004-2005)). Nowhere does that section set “the amounts due ... for the services provided.” Cf op. at 668. Pursuant to Section 413.011, the Workers’ Compensation Commission promulgated a Medical Fee Guideline including Maximum Allowable Reimbursements (“MARs”) in 1996. Tex. Workers’ Comp. Comm’n v. Patient Advocates, 136 S.W.3d 643, 647, 652 (Tex.2004); see 28 Tex. Admin. Code § 134.201(a) (2004); Tex. Workers’ Comp. Comm’n, Medical Fee Guideline (1996).

Rule 134.201 establishes guidelines for reimbursements made for medical treatments or services rendered by health care providers. When a MAR is established for a particular medical treatment or service, the amount of reimbursement payable to a health care provider is the lesser of the provider’s usual fees and charges or the MAR established in the Medical Fee Guideline.

Patient Advocates at 652 (citing 21 Tex. Reg. 2361, 2361 (1996) (adopting 28 Tex. Admin. Code § 134.201)). That is, the Medical Fee Guideline “set[s] máximums on the amounts insurance carriers can reimburse health care providers for specific medical procedures.” Id. (citing Tex. Lab. Code § 413.011(b)). Under Rule 134.201, “items for which an MAR is not established shall be reimbursed at fair and reasonable rates.” 21 Tex. Reg. at 2361. And the Guideline does not set MARs for “inpatient hospitalization.” Id. Neither the statute, nor the rule or the guideline promulgated pursuant to the statute, limits a hospital’s “usual fees and charges”; they limit only what a workers’ compensation insurance carrier may pay for treatment of a workers’ compensation claimant. Here, the agreed statement of facts stipulates that the “reasonable and necessary charges” for treating each Appellee was greater than the amount of the lien that attached for each Appellee’s treatment.

Moreover, the cases cited by the majority as persuasive authority are not on point. See op. at 668 (citing Satsky v. United States, 993 F.Supp. 1027 (S.D.Tex.1998) (order); Dorr v. Sacred Heart Hosp., 228 Wis.2d 425, 597 N.W.2d 462 (Wis.Ct.App.1999)). In both cases, the hospital agreed to accept less than the amount of its usual charges as payment in full. In Satsky, the private insurer had a “prepaid health care plan” contractual agreement with the hospital. Satsky at 1028. Under that agreement, the hospital “agreed ‘to accept the compensation set forth in ... the Agreement as payment in full for all Hospital Services rendered to Members’ ” of the insurer’s plan. Id. (quoting agreement). As the Supreme Court of Nebraska has noted in distinguishing Satsky, “[t]he hospital in Satsky had agreed to accept partial payment under the terms of an agreement with the insurance company and, therefore, had received all the payments to which it was entitled.” Alegent Health v. Am. Family Ins., Inc., 265 Neb. 312, 656 N.W.2d 906, 911 (Neb.2003). In Dorr, likewise, the private insurer contractually agreed with the hospital that the insurer’s insureds would be admitted to the hospital for covered hospitalization. Dorr, 599 N.W.2d at 468. In exchange, the hospital agreed to bill the insurer at a reduced, flat, “per diem” rate, and the hospital “agreed to accept the per diem rates as full payment for the medical services rendered.” Id. In the instant cause, to the contrary, the majority does not point to a contractual agreement that would render payment under the Commission’s MARs payment in full.

This issue is not, as the majority states, “a question of first impression.” Cf. op. at 668. The “reasonable and necessary charges” for emergency hospital care for Appellees exceeded the amounts reimbursed by the workers’ compensation insurance carrier by some $13,000. Providence’s hospital liens attached to the proceeds of Appellees’ settlements with the estate of Jones, the third-party tort-feasor. See Act of May 26, 1983, 68th Leg., R.S., ch. 576, § 1, sec. 55.003(a)(3), 1983 Tex. Gen. Laws at 3562 (amended 2003) (current version at Tex. Prop.Code Ann. § 55.003(a)(3) (Vernon Supp.2004-2005)). To the extent that the lien for those charges was unsatisfied, Jones’s estate and his insurer owed the funds to Providence, not to Appellees. See McCollum v. Baylor Univ. Med. Ctr., 697 S.W.2d 22, 25 (Tex.App.—Dallas 1985, writ ref'd n.r.e.). Indeed, without the satisfaction of the hospital lien, no settlement would have been valid. Act of May 26, 1983, 68th Leg., R.S., ch. 576, § 1, sec. 55.007, 1983 Tex. Gen. Laws at 3564 (amended 2003) (current version at Tex. Prop.Code Ann. § 55.007 (Vernon Supp. 2004-2005)).

Labor Code Section 417.002 governs recoveries in third-party actions. See Tex. Lab.Code Ann. § 417.002 (Vernon 1996). Subsection (a) provides, “The net amount recovered by a claimant in a third-party action shall be used to reimburse the insurance carrier for benefits, including medical benefits, that have been paid for the compensable injury.” Id. (a). Subsection (b) provides, “Any amount recovered that exceeds the amount of the reimbursement required under Subsection (a) shall be treated as an advance against future benefits, including medical benefits, that the claimant is entitled to receive under” the Act. Id. (b). The “net amount recovered” does not include the claimant’s attorney’s fees or court costs. Tex. Workers’ Comp. Ins. Fund v. Alcorta, 989 S.W.2d 849, 852 (Tex.App. — San Antonio 1999, no pet.) (citing Tex. Lab.Code Ann. § 417.003 (Vernon 1996)); Bridges v. Tex. A & M Univ. Sys., 790 S.W.2d 831, 833 (Tex.App.—Houston [14th Dist.] 1990, no writ). Likewise, “[rjeasonable and necessary medical expenses incurred by the claimant on account of the injury must be deducted from the advance in the same manner as benefit payments.” Robert L. LeBoeuf, Remedies Against Third Parties, in Texas Workers’ Compensation Law: A Guide to PRACTICE BEFORE COMMISSION & COURT 63-1, at § 63.06 (John C. Kilpatrick ed., May 2004) (citing Tex. Lab.Code § 417.002).

The purposes and structure of the Workers’ Compensation Act support this conclusion. The purpose of the Act is “compensating injured workers and their dependents.” Patient Advocates, 136 S.W.3d at 652. This conforms with the purpose of the hospital lien statute, which is “encouraging the prompt and adequate treatment of accident victims” by “providing] hospitals an additional method of securing payment for medical services.” Bashara v. Baptist Mem. Hosp. Sys., 685 S.W.2d 307, 309 (Tex.1985). But the “workers’ compensation act was not intended to provide double recoveries.” Foreman v. Sec. Ins. Co., 15 S.W.3d 214, 219 (Tex.App.—Texarkana 2000, no pet.). Though the Act strictly limits hens against workers’ compensation income benefits and death benefits, it does not set such limits on liens against medical benefits. See Tex. Lab.Code Ann. § 408.203(a) (Vernon Supp.2004-2005).

Accordingly, we should sustain Providence’s issue, and reverse the trial court’s judgment and render judgment that Providence take under its valid hospital liens. Because the majority does otherwise, I respectfully dissent.

      . The Employees also call our attention to Parnell v. Adventist Health System/West, 131 Cal.Rptr.2d 148, 160 (Cal.Ct.App. 5th Dist. Feb. 25, 2003, pet.granted) ("[W]e conclude a hospital that has received full payment for services under the terms of its contract with a medical insurance provider is not entitled to file a lien to recover the difference between that payment and the hospital's 'usual and customary’ charges for similar services.”). We note, however, that the grant of review includes the notation "Opinion Superseded.”

      . Moreover, although not part of the law governing the instant cause, the Legislature has twice amended the Labor Code since the time of Appellees' treatment to draw distinctions among liens by hospitals on the one hand, and by physicians and emergency medical service providers on the other. In 2001, the Legislature amended the statute to provide for liens for physicians’ charges for emergency hospital care services. See Tex. Prop.Code Ann. § 55.004(a), (c) (Vernon Supp.2004-2005). The hospital lien may include the amount of charges for such services. Id. § 55.004(c). However, the hospital lien does not attach to such charges "for which the physician has accepted insurance benefits or payment under a private medical indemnity plan or program, regardless of whether the benefits or payment equals the full amount of the physician’s charges for those services.” Id. § 55.004(d)(2) (Vernon Supp.2004-2005) (emphasis added). In 2003, the Legislature created a lien for emergency medical service providers, including a similar limitation on the lien, limiting it to amounts beyond those paid by insurance or private programs. See

        id. §§ 55.002(c), 55.004(g)(2) (Vernon Supp. 2004 — 2005). Yet the Legislature has not put such a limitation on general hospital liens.


author: FELIPE REYNA, Justice.

text:
    Tracy HICKS, Appellant, v. The STATE of Texas, Appellee.
    No. 10-03-00083-CR.
    Court of Appeals of Texas, Waco.
    Oct. 27, 2004.

      Tracy Hicks, Iowa Park, pro se.
    Dale S. Hanna, Johnson County Dist. Atty., David W. Vernon, Johnson County Asst. Dist. Atty., Cleburne, for appellee.

      Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

In 1998, Tracy Hicks pleaded guilty to three counts of sexual assault and true to an enhancement allegation paragraph. As a result, he was sentenced to forty years’ incarceration. In 2001, Hicks filed a motion for post-conviction DNA testing. The trial court granted Hicks’s motion and ordered the testing. After the testing was completed, the trial court found that the DNA results were unfavorable to Hicks. Hicks appeals from this ruling. We affirm.

ISSUES RELATING TO HICKS’S 1993 CONVICTION

Hicks’s first and second issues and his fourth through seventh issues directly attack his 1993 conviction. At the time that Hicks filed his DNA motion, this Court’s jurisdiction was confined to appeals of “findings” under articles 64.03 and 64.04 regarding post-conviction DNA hearings. See Wolfe v. State, 120 S.W.3d 368, 372 (Tex.Crim.App.2003); Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2 § 2, 2001 Tex. Gen. Laws 2, 4 (amended 2003) (current version at Tex.Code CRIM. Proc. Ann. art. 64.05 (Vernon Supp.2004)). The jurisdiction granted under chapter 64 does not extend to collateral attacks on the judgment of conviction. Lopez v. State, 114 S.W.3d 711, 714-15 (Tex.App.-Corpus Christi 2003, no pet.). Hicks’s issues relating to the 1993 conviction do not arise from a chapter 64 proceeding, and as a result, we do not have jurisdiction over them. Id. Therefore, we dismiss Hicks’s first and second issues and his fourth through seventh issues for want of jurisdiction. See Gray v. State, 134 S.W.3d 471, 472 (Tex.App.-Waco 2004, no pet.).

FARETTA HEARING

Hicks argues in his eighth issue that the trial court erred in failing to hold a Faretta hearing before allowing him to represent himself. Counsel was appointed to represent Hicks during the post-conviction DNA hearing. After the hearing, the court allowed counsel to withdraw and appointed new counsel for this appeal. Hicks became dissatisfied with his appellate counsel and filed a motion with this Court to proceed pro se and a motion with the trial court to allow his appellate counsel to withdraw. Hicks also sent letters to his appellate counsel asking him to withdraw. Without conducting a hearing, the trial court allowed counsel to withdraw, and Hicks was permitted to represent himself.

Hicks’s motions and letters indicate that he understands the dangers and disadvantages of self-representation. A defendant’s right to self-representation “cannot be manipulated in such a manner as to throw the trial process into disarray.” Fulbright v. State, 41 S.W.3d 228, 235 (Tex.App.-Fort Worth 2001, pet. ref'd) (citing Dunn v. State, 819 S.W.2d 510, 520 (Tex.Crim.App.1991)).

Hicks indicates in his motions that he intended to represent himself regardless of whether the trial court allowed his appellate counsel to withdraw. Hicks claimed that his appellate counsel would not present certain issues to this Court that Hicks felt was relevant to his conviction. Because of this Hicks felt that it would be in his best interest and in the best interest of the State that he represent himself. In addition, because of the conclusiveness of the DNA evidence and the restriction of this appeal to chapter 64, the outcome of this proceeding would be no different had Hicks chosen not to represent himself. Therefore, any error in the trial court’s failure to hold a hearing is harmless. See Tex.R.App. P. 44.2; Fulbright, 41 S.W.3d at 235-36. Accordingly, we overrule Hicks’s eighth issue.

POST-CONVICTION DNA REVIEW

Hicks argues in his third issue that a proper chain of custody was not established for the evidence tested and that the test results do not support the trial court’s finding that the DNA results was unfavorable.

Chain of Custody

Hicks argues that the evidence of the DNA results should not have been admitted because a proper chain of custody was not established. In his motion to the trial court requesting DNA testing, Hicks asked the court to find that the DNA evidence had been properly collected and remained in proper custody. As a result, the trial court found there was a proper chain of custody and ordered the tests.

Because Hicks requested that the trial court find a proper chain of custody, and the court did so, he is estopped from complaining about it. The law of invited error estops an appellant from complaining of error that he induced. Jones v. State, 119 S.W.3d 766, 784 (Tex.Crim.App.2003) (citing Benson v. State, 496 S.W.2d 68, 70 (Tex.Crim.App.1973)). Hicks cannot now complain that the trial court granted his request.

Unfavorable DNA Evidence

Hicks argues that the test results do not support the trial court’s finding under article 64.04 that the results were unfavorable. Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2 § 2, 2001 Tex. Gen. Laws 4 (amended 2003) (current version at Tex. Code CRIM. PROC. art. 64.04 (Vernon Supp. 2004)). Because the language of article 64.03 is similar to that of article 64.04, appellate courts have applied the article 64.03 standard of review when analyzing article 64.04 appeals. Fuentes v. State, 128 S.W.3d 786, 787 (Tex.App.-Amarillo 2004, pet. ref d). Therefore, we review de novo the ultimate question of whether a reasonable probability exists that DNA results are favorable, i.e. if it is reasonably probable that, had the DNA results been available before or during trial, appellant would not have been prosecuted or convicted. Id. (citing Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App.2002)).

Courts have found the requirement in article 64.03 that the appellant establish by a preponderance of the evidence that a “reasonable probability exists that [he] would not have been prosecuted or convicted” to mean that an appellant must show a reasonable probability that exculpatory DNA tests would prove his innocence. Kutzner v. State, 75 S.W.3d 427, 438-39 (Tex.Crim.App.2002); see also Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2 § 2, 2001 Tex. Gen. Laws 3 (amended 2003) (current version at Tex.Code CRiM. PROC. art. 64.03 (Vernon Supp.2004)). This is accomplished by showing that there is a probability of innocence sufficient to undermine confidence in the outcome. Baggett v. State, 110 S.W.3d 704, 706 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (citing Kutzner, 75 S.W.3d at 438-39). Therefore, we must review de novo whether the DNA results create a probability of innocence sufficient to undermine our confidence in the outcome of Hicks’s 1993 trial. Fuentes, 128 S.W.3d at 787; Baggett, 110 S.W.3d at 706.

The test results show that the DNA of Hicks was “consistent” with the DNA taken from the semen present on the vaginal swab of the victim. The probability that Hicks was not the source of the DNA was 1 in 37.04 quintillion for Caucasians, 1 in 12.8 quintillion for African Americans, and 1 in 11.2 quintillion for Hispanics. Because the odds that Hicks was not the contributor of the DNA exceeds the world’s population, we find that these results do not create a probability of innocence sufficient to undermine our confidence in Hicks’s conviction. Fuentes, 128 S.W.3d at 788. Accordingly, we overrule Hicks’s third issue.

CONCLUSION

Having dismissed or overruled all of Hicks’s issues, we affirm the judgment of the trial court.

      . In 2003, the Legislature changed the law to allow an appeal under chapter 64 in its entirety. Tex Code Crim. Proc. art. 64.05 (Vernon Supp.2004). The current law applies to appellants who submit a motion for DNA testing on or after September 1, 2003. Hicks submitted his motion in 2001. Therefore, the former law applies to Hicks’s case. See Wolfe v. State, 120 S.W.3d 368, 370-72 (Tex.Crim.App.2003).

      . When, a defendant wishes to represent himself, a Faretta hearing is required to advise him of the dangers and disadvantages of self-representation. See Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 2534, 45 L.Ed.2d 562 (1975); see also Tex.Code Crim. Proc. Ann. 1.051(g) (Vernon Supp.2004).

      . We apply the standard of review as interpreted by the courts under former chapter 64, as explained above; yet, we note that the Legislature has changed the standard of review for appeals filed under articles 64.03 and 64.04. See TexCode Crim. Proc. arts. 64.03, 64.04 (Vernon Supp.2004).


text:
    Lynnwood Anthony VRBA, Appellant, v. The STATE of Texas, Appellee.
    No. 10-03-00070-CR.
    Court of Appeals of Texas, Waco.
    Oct. 27, 2004.
    Rehearing Overruled Jan. 4, 2005.

      Stan Sehwieger, Waco, for appellant.
    John W. Segrest, McLennan County Dist. Atty., Waco, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

A jury convicted Lynwood Anthony Vrba of felony driving while intoxicated. Vrba pleaded “true” to enhancement allegations increasing his punishment to that for an habitual offender, and the jury assessed his punishment at sixty years’ imprisonment. Vrba contends in three issues that the court abused its discretion by: (1) admitting into evidence his stipulation to two prior DWI convictions; (2) permitting the State to mention this stipulation in closing argument; and (8) permitting the State to ask improper commitment questions during voir dire. Because the stipulation was admissible and because the voir dire questions were not improper, we will affirm.

Vrba contends in his first issue that the court abused its discretion by admitting in evidence his stipulation that he had been previously convicted twice of DWI. He contends in his second issue that the court abused its discretion by permitting the State to mention this stipulation in closing argument.

The Court of Criminal Appeals has held that such a stipulation may be admitted in evidence. Hollen v. State, 117 S.W.3d 798, 802 (Tex.Crim.App.2003). It is appropriate for a prosecutor to provide a “summation of the evidence” in closing argument. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App.2000). Thus, the reference to the stipulation in closing argument was not objectionable.

Accordingly, we overrule Vrba’s first and second issues.

Vrba contends in his third issue that the court abused its discretion by permitting the State to ask improper commitment questions during voir dire. Vrba specifically complains of the following questions:

“What are some signs that somebody is intoxicated?”
“Who thinks that the process of being arrested would be something that might sober you up a little bit?”
“Why do you think someone should be punished?”
“[W]hich one of these [four theories of punishment] is most important to you in trying to determine how someone should be punished and how much punishment they should receive?”

A voir dire question is a “commitment question” “if it attempts to commit the juror to a particular verdict based on particular facts.” Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App.2002) (citing Standefer v. State, 59 S.W.3d 177, 181 (Tex.Crim.App.2001)). A commitment question is improper if it does not “include only those facts that lead to a valid challenge for cause.” Lydia v. State, 109 S.W.3d 495, 497-98 (Tex.Crim.App.2003) (citing Standefer, 59 S.W.3d at 182).

Notwithstanding these principles however, litigants are given “broader latitude” to “inquire into a prospective juror’s personal background for the purpose of determining whether that background will adversely affect the juror’s ability to decide the case in an impartial manner” and to inquire “into a prospective juror’s general philosophical outlook on the justice system.” Sells v. State, 121 S.W.3d 748, 756 n. 22 (Tex.Crim.App.2003).

Vrba first challenges the question, “What are some signs that somebody is intoxicated?” The prosecutor did not ask, “What signs of intoxication in your opinion warrant a conviction for driving while intoxicated?” The latter would be a commitment question. See Standefer, 59 S.W.3d at 180 (“What circumstances in your opinion warrant the imposition of the death penalty?” is a commitment question.). The question at issue is not a commitment question because it seeks only the jurors’ general views on signs of intoxication. Cf. id. at 180 n. 7 (“Do you think there might be circumstances that would mitigate against the death penalty?” is not a commitment question.).

Vrba next challenges the question, “Who thinks that the process of being arrested would be something that might sober you up a little bit?” This question is closer to the question at issue in Standefer, ‘Would you presume someone guilty if he or she refused a breath test on their refusal alone?” The question is closer to the question in Standefer because it focuses on a particular piece of evidence. However, the question did not ask the jurors to resolve (or “refrain from resolving”) the issue of intoxication on the basis of this evidence. Nor did it ask the jurors “to set the hypothetical parameters for [their] decision-making” on the issue of intoxication. See id. at 179-80. Thus, the second question at issue is not a commitment question.

Finally, Vrba challenges the questions, “Why do you think someone should be punished?”, and “[W]hich one of these [four theories of punishment] is most important to you in trying to determine how someone should be punished and how much punishment they should receive?” These questions inquired into the jurors’ “general philosophical outlook on the justice system.” See Sells, 121 S.W.3d at 756 n. 22. The parties are given “broader latitude” to ask questions of this sort. Id. Thus, we conclude that the court did not abuse its discretion by overruling Vrba’s objections to these questions.

Accordingly, we overrule Vrba’s third issue.

We affirm the judgment.

      . The four theories of punishment referred to by the prosecutor were general deterrence, specific deterrence, rehabilitation, and retribution.


author: FELIPE REYNA, Justice. TOM GRAY, Chief Justice,

text:
    Alice and Lloyd KOFAHL, Appellants, v. RANDALL’S FOOD & DRUGS, INC., formerly d/b/a Tom Thumb Food & Drugs, Appellee.
    No. 10-02-00053-CV.
    Court of Appeals of Texas, Waco.
    Oct. 27, 2004.

      Keith R. Verges, Figari, Davenport & Graves, L.L.P., Dallas, for appellants.
    Lance C. Travis, Jeffrey W. Shell, Bur-ford & Ryburn, L.L.P., Dallas, for appel-lee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

Alice and Lloyd Kofahl filed this slip- and-fall case against Randall’s Food & Drugs, formerly dba Tom Thumb Food & Drugs, after Alice slipped in an unidentified liquid on the grocery’s floor, fell, and broke her hip. The trial court granted Randall’s no-evidence summary judgment motion which alleges that the Kofahls can produce no evidence that Randall’s had actual or constructive knowledge of the spilled liquid.

The Kofahls contend in four issues that the court erred by granting the summary judgment because: (1) Randall’s can be held liable under “the Corbin rule” due to inadequate safety policies and procedures regardless of whether it had actual or constructive knowledge of the spill; (2) Randall’s “created unreasonably dangerous premises” by failing to have adequate policies and procedures; (3) they presented more than a scintilla of evidence that the spill had been on the floor long enough to charge Randall’s with constructive knowledge; and (4) they should not be required to prove actual or constructive knowledge under the facts of this case. The Kofahls contend in an additional issue that the court should have permitted further discovery regarding Randall’s policies and procedures.

Randall’s contends in a cross-issue that, regardless of the merits of Alice’s claim, the judgment must be affirmed as to Lloyd because the Kofahls have not presented a separate issue challenging the judgment with respect to Lloyd’s claim.

Because the Kofahls presented more than a scintilla of evidence that the liquid had been on the floor long enough to give Randall’s constructive knowledge of its presence and because Randall’s did not present an “independent ground” for summary judgment on Lloyd’s claim, we will reverse and remand.

CONSTRUCTIVE KNOWLEDGE

The Kofahls contend in their third issue that they presented more than a scintilla of evidence that the liquid had been on the floor long enough to charge Randall’s with constructive knowledge of its presence. Under settled premises liability law, if the premises owner did not place the substance in question on the floor and did not have actual knowledge of its presence, the plaintiff must establish that “it is more likely than not that [the substance was on the floor] long enough to give the premises owner a reasonable opportunity to discover it.” Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex.2002).

Alice provided deposition testimony that the edges of the “large” puddle of liquid she slipped in were “very tacky and gummy” as if the puddle was “starting to dry up.” Although our research has not disclosed any recent cases addressing this type of evidence, it has been held that this type of testimony will support a finding that a liquid on the floor has been there for a sufficient length of time to charge the premises owner with constructive knowledge of its presence. See Kroger Stores, Inc. v. Hernandez, 549 S.W.2d 16, 16-17 (Tex.Civ.App.-Dallas 1977, no writ); Furr’s, Inc. v. McCaslin, 335 S.W.2d 284, 286-87 (Tex.Civ.App.-El Paso 1960, no writ); Furr’s, Inc. v. Bolton, 333 S.W.2d 688, 689-90 (Tex.Civ.App.-El Paso 1960, no writ). Even those these decisions are not recent, more recent decisions of the Supreme Court seem to affirm their continuing validity. See e.g. Reece, 81 S.W.3d at 817 (affirming judgment in part because there was no “evidence concerning the condition of the spilled liquid that might indicate how long it had been there”); Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 937 (Tex.1998) (affirming judgment in part because there was no evidence “that the dirt on the macaroni salad had dried, suggesting that it had been there for a prolonged period of time”).

Randall’s cites a number of cases to support its contention that Alice’s testimony constitutes no more than a mere scintilla of evidence to establish constructive knowledge. See Richardson v. Wal-Mart Stores, Inc., 963 S.W.2d 162 (Tex.App.-Texarkana 1998, no pet.); Safeway Stores, Inc. v. Harkless, 601 S.W.2d 534 (Tex.Civ.App.-Tyler 1980, writ ref'd n.r.e.); Robledo v. Kroger Co., 597 S.W.2d 560 (Tex.Civ.App.-Eastland 1980, writ ref'd n.r.e.); Franklin v. Safeway Stores, Inc., 504 S.W.2d 514 (Tex.Civ.App.-Dallas 1973, writ ref'd n.r.e.); Furr’s Supermarkets, Inc. v. Arellano, 492 S.W.2d 727 (Tex.Civ.App.-El Paso 1973, writ refd n.r.e.).

Unlike the Kofahls, the plaintiffs in most of the cases cited by Randall’s presented evidence of a liquid on the floor but failed to present any evidence that the liquid had begun to dry. See Richardson, 963 S.W.2d at 164-65 & n. 1; Harkless, 601 S.W.2d at 537-38; Robledo, 597 S.W.2d at 560. In some of the cases cited, the plaintiffs presented evidence that the liquid was dirty or had shopping cart tracks running through it. See Harkless, 601 S.W.2d at 537-38; Robledo, 597 S.W.2d at 560. However, this type of evidence has consistently been considered inadequate to establish constructive knowledge. See Gonzalez, 968 S.W.2d at 937; Harkless, 601 S.W.2d at 537-38; Robledo, 597 S.W.2d at 560-61.

In Franklin, the plaintiff testified that she slipped in a “dry syrupy looking substance.” 504 S.W.2d at 517. The court concluded that this testimony was inadequate to establish constructive knowledge because it did not account for the fact that the substance may have been “dry” and “syrupy” when it spilled. Id. (citing Bolton, 333 S.W.2d at 690). Here however, Alice testified that the liquid in which she slipped and fell was drying around the edges, not that it was the same consistency throughout. See Bolton, 333 S.W.2d at 690.

For the foregoing reasons, we conclude that the authorities relied on by Randall’s do not apply to the facts of this case. Thus, we hold that the Kofahls presented more than a scintilla of evidence to show constructive knowledge. See Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex.2003) (nonmovant must produce more than a scintilla of evidence to defeat no-evidence summary judgment motion).

Accordingly, we sustain the Kofahls’ third issue.

BECAUSE RANDALL’S DID NOT ASSERT AN “INDEPENDENT GROUND” FOR SUMMARY JUDGMENT ON LLOYD’S CLAIM, WE WILL REVERSE THE JUDGMENT ON LLOYD’S CLAIM AS WELL

Randall’s contends in its sole cross-issue that, notwithstanding our disposition of the Kofahls’ third issue, we must affirm the judgment as to Lloyd’s claim for loss of consortium because the Kofahls have not presented a separate issue on appeal challenging “the summary judgment ground addressed to [Lloyd’s] claims.”

“[W]hen an appellant does not properly challenge each independent ground asserted for summary judgment as to a claim, the claim will be affirmed.” City of Glenn Heights v. Sheffield Dev. Co., 55 S.W.3d 158, 163 (Tex.App.-Dallas 2001, pet. denied); accord Wrenn v. G.AT.X. Logistics, Inc., 73 S.W.3d 489, 493 (Tex.App.-Fort Worth 2002, no pet.).

Randall’s summary judgment motion states:

Defendant moves for summary judgment on the ground that there is no evidence of an essential element of Plaintiff Alice Kofahl’s negligence claim on which she will have the burden of proof at trial. Specifically, there is no evidence regarding whether Defendant knew or should have known of a premises condition which posed an unreasonable risk of harm to Mrs. Kofahl. Therefore, Defendant is entitled to judgment as a matter of law on this claim. Defendant further moves for summary judgment on Plaintiff Lloyd Kofahl’s loss of consortium claim on the ground that such claim is wholly derivative of his wife’s claim. Because her claim must fail as a matter of law, Mr. Ko-fahl’s claim must likewise fail.

From this quoted excerpt, it is apparent that Randall’s ground for summary judgment as to Lloyd’s claim depends entirely on a favorable finding on its ground for summary judgment on the issue of constructive knowledge. Therefore, it cannot be properly characterized as an “independent ground” for summary judgment. Cf. Wrenn, 73 S.W.3d at 493; City of Glenn Heights, 55 S.W.3d at 163. Accordingly, we overrule Randall’s sole cross-issue.

Because of our disposition of these issues, we need not address the remainder of the issues presented. We reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion.

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice,

dissenting.

This is a slip and fall case.

Based upon Wal-Mart Stores v. Gonzalez, 968 S.W.2d 934, 937-938 (Tex.1998), I would hold that the meager statements describing the liquid in which Alice Kofahl allegedly slipped are no evidence to support constructive notice of its presence on the floor.

Lloyd Kofahl filed a joint notice of appeal with his wife, Alice. The judgment as to Lloyd, however, was not attacked in any manner on appeal, and, therefore, the appeal as to that portion of the judgment should be affirmed.

For the foregoing reasons, the judgment of the trial court should be affirmed. Because the Court reverses the judgment in part, I respectfully dissent.

      . Notably, our research has disclosed no cases (recent or otherwise) concluding that such evidence is inadequate to show constructive knowledge.


text:
    Regina KELLY, Appellant, v. The STATE of Texas, Appellee.
    No. 10-04-00283-CR.
    Court of Appeals of Texas, Waco.
    Nov. 3, 2004.

      Rebecca Bernhardt, American Civil Liberties Union Foundation, Santa Cruz, CA, for appellant.
    John C. Paschall, Robertson County Dist. Atty., Franklin, Douglas M. Becker, Gray & Becker, Austin, Michael W. Dixon, Haley & Davis, P.C., Keith Dorsett, Waco, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

Regina Kelly filed a motion for disclosure of grand jury proceedings under article 20.02(d) of the Code of Criminal Procedure three years after the trial court granted the State’s motion to dismiss its case against Kelly. The trial court denied Kelly’s motion, and she filed this appeal. Because this is a criminal law matter and because no statute authorizes such an appeal, we will dismiss this appeal for want of jurisdiction.

Article 20.02 provides in pertinent part that a defendant may file a petition in the district court in which his or her prosecution is pending to obtain the disclosure of information relating to a grand jury proceeding which is otherwise made secret by statute “on a showing by the defendant of a particularized need.” Tex.Code Crim. PROC. Ann. art. 20.02(d), (e) (Vernon Supp. 2004-2005).

When an issue is raised regarding the disclosure of grand jury information in an appeal from a conviction, the issue is plainly a matter of criminal law governed by the statutes and rules generally applicable to appeals in criminal cases. See e.g. Bynum v. State, 767 S.W.2d 769, 781-83 (Tex.Crim.App.1989); Legate v. State, 52 S.W.3d 797, 803-04 (Tex.App.-San Antonio 2001, pet. refd). The question presented here is whether such an issue becomes a civil law matter if it is pursued after a criminal prosecution has been dismissed.

Kelly contends that this proceeding is “civil in nature” because: (1) the San Antonio Court of Appeals has treated a similar proceeding in this fashion; (2) this proceeding did not arise during the pen-dency of a criminal prosecution; (3) this proceeding does not “concern the administration of penal justice;” (4) the State has not participated in this proceeding and only “private parties to underlying federal civil litigation” have appeared in opposition to her request for disclosure; and (5) she cannot obtain the relief sought via habeas corpus. Although we agree that some of these statements are true, we do not agree that they state a valid basis for concluding that a post-dismissal request for disclosure of grand jury proceedings under article 20.02 is a civil matter or that this Court has appellate jurisdiction to review the denial of such a request.

Kelly places primary reliance on the decision of the San Antonio Court of Appeals in In re Grand Jury Proceedings 198.-GJ.20. 129 S.W.3d 140 (Tex.App.-San Antonio 2003, pet. denied). Kelly is correct that the San Antonio court docketed that appeal as a civil matter and that it too involved a post-dismissal request for disclosure of grand jury proceedings. However, the court addressed the merits of the appellant’s request for disclosure without discussing whether it had jurisdiction to do so. Kelly characterizes the decision as a “sub silentio holding that jurisdiction existed.”

However, this Court cannot imply the existence of its jurisdiction. Rather, this Court has appellate jurisdiction in a criminal case only when expressly provided by law. See Ex parte McGregor, 145 S.W.3d 824, 825, 2004 Tex.App. LEXIS 8797, at *2 (Tex.App.-Dallas 2004, no pet. h.); Sanchez v. State, 112 S.W.3d 311, 311 (Tex.App.Corpus Christi 2003, no pet.) (per curiam); Everett v. State, 82 S.W.3d 735, 735 (Tex.App.-Waco 2002, pet. dism’d); see also Rushing v. State, 85 S.W.3d 283, 285 (Tex.Crim.App.2002) (right to appeal “is derived entirely from statute”).

Similarly, this Court has appellate jurisdiction in a civil case under “either (1) the general constitutional grant, subject to any restrictions or regulations imposed by the Legislature; or (2) a specific statutory grant of jurisdiction.” Tune v. Tex. Dept. of Pub. Safety, 23 S.W.3d 358, 361 (Tex.2000). The “general constitutional grant” of appellate jurisdiction in civil cases is limited to those cases in which the amount in controversy exceeds $100. See Tex. Civ. Prac. & Rem.Code Ann. § 51.012 (Vernon 1997); Tex. Gov’t Code Ann. § 22.220(a) (Vernon 2004); Tune, 23 S.W.3d at 361 & n. 13. Kelly’s case does not satisfy the amount-in-controversy requirement. Nor does article 20.02 provide a specific grant of appellate jurisdiction in such cases. See Tex.Code CRIM. PROC. Ann. art. 20.02 (Vernon Supp.2004-2005); Tune, 23 S.W.3d at 361. '

Kelly contends that this is a civil matter because she did not file her motion for disclosure during the pendency of a criminal prosecution. The Court of Criminal Appeals has rejected similar reasoning in an appeal from the denial of a motion for postconviction DNA testing under Chapter 64 of the Code of Criminal Procedure. See Kutzner v. State, 75 S.W.3d 427, 429-31 (Tex.Crim.App.2002).

The State contended in Kutzner that the Court of Criminal Appeals did not have appellate jurisdiction because it was not a “criminal case.” The State argued that it was not a “criminal case” because the appellant had “not been found guilty of anything and no punishment ha[d] been assessed.” Id. at 429. The Court rejected this contention, holding that a proceeding under Chapter 64 “is a ‘criminal case’ because it ⅛ too closely connected’ with the criminal case in which appellant was convicted. ...” Id.

Although Kelly’s case is not “closely connected” to a conviction, it is “closely connected” to the criminal case in which she was prosecuted. Cf. id. In addition, the longstanding common law and statutory rule that grand jury proceedings are secret is a fundamental component of our system of criminal justice. See Stern v. State ex rel. Ansel, 869 S.W.2d 614, 619-23 & nn. 2-7 (Tex.App.Houston [14th Dist.] 1994, writ denied) (discussing historical underpinnings for secrecy of grand jury proceedings). Accordingly, a motion to disclose grand jury-proceedings under article 20.02 is, in our view, a “criminal law matter” which should be addressed as such in an intermediate court of appeals. For the same reason, the Court of Criminal Appeals should be the court of last resort in this state to address issues regarding the disclosure of grand jury proceedings.

Because the secrecy of grand jury proceedings is a fundamental component of our criminal justice system, we expressly reject Kelly’s contention that this proceeding does not “concern the administration of penal justice.”

Kelly also contends that this is a civil matter because the State has not participated in this proceeding and only “private parties to underlying federal civil litigation” have appeared in opposition to her request for disclosure. However, the clerk’s record reflects that Robertson County (a political subdivision of the State), the district attorney (the attorney representing the State in criminal law matters), and numerous law enforcement officials filed a response in opposition to Kelly’s motion to disclose. Thus, the State has participated in this proceeding.

Finally, Kelly contends that this is a civil matter because she cannot obtain the relief sought via habeas corpus. However, appeal and habeas corpus are not the only avenues for relief in criminal law matters. See e.g. DeLeon v. Aguilar, 127 S.W.3d 1 (Tex.Crim.App.2004) (orig.proceeding).

For the foregoing reasons, we hold that a post-dismissal motion for disclosure of grand jury proceedings under article 20.02 is a criminal law matter.

This Court has jurisdiction in a criminal case only when expressly provided by law. See McGregor, 145 S.W.3d at 825, 2004 Tex.App. LEXIS 8797, at *2; Sanchez, 112 S.W.3d at 811; Everett, 82 S.W.3d at 735; see also Rushing, 85 S.W.3d at 285. No statute authorizes an appeal from the denial of a post-dismissal motion for disclosure of grand jury proceedings. Accordingly, we dismiss this appeal for want of jurisdiction.

Chief Justice GRAY concurs.

TOM GRAY, Chief Justice,

concurring.

“Yeah, everything that guy just said is [dicta].... ” My Cousin Vinny (Twentieth Century Fox 1992)(motion picture).

The proceeding was purportedly filed under article 20.02 of the Code of Criminal Procedure. This article provides, in part, that a defendant may file a petition in the district court in which the defendant’s prosecution is pending. Tex.Code CRiM. PROC. Ann. art. 20.02(e) (Vernon Supp. 2004-2005)(emphasis added). Because Kelly had no prosecution pending in the district court where the proceeding was filed, the trial court had no jurisdiction to rule on the merits of the motion.

When the trial court has no jurisdiction, the proper procedure for the appellate court is to vacate the lower court’s judgment and dismiss the proceeding for want of jurisdiction. Tex.R.App. P. 43.2(e).

Thus, I concur only in the dismissal of this appeal.

      . The "general constitutional grant” of appellate jurisdiction is that found in article V, § 6 of the Texas Constitution. See Tune v. Tex. Dept. of Pub. Safety, 23 S.W.3d 358, 361 (Tex.2000) (citing Tex. Const, art. V, § 6). Article V, § 6 provides in pertinent part:
      Said Court of Appeals shall have appellate jurisdiction co-extensive with the limits of their respective districts, which shall extend to all cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law. Provided, that the decision of said courts shall be conclusive on all questions of fact brought before them on appeal or error. Said courts shall have such other jurisdiction, original and appellate, as may be prescribed by law.
      Tex Const, art. V, § 6(a).

      . For these reasons, even if this were considered a civil matter, this Court would not have jurisdiction.

      . Although Stem was docketed as a civil appeal, it was an appeal from a jury verdict removing a prosecutor from office for official misconduct (releasing transcripts of grand jury testimony) rather than an appeal from a trial court’s denial of a motion for disclosure of grand jury proceedings. See Stem v. State ex rel. Ansel, 869 S.W.2d 614, 618 (Tex.App.Houston [14th Dist.] 1994, writ denied).

      . In fact, our research has disclosed no Texas Supreme Court case addressing the disclosure of grand jury proceedings under article 20.02 or its predecessors. Cf. U.S. v. Marks, 949 S.W.2d 320 (Tex. 1997) (reviewing propriety of trial court receiving information from federal prosecutor ex parte to justify the federal government’s assertion that information sought in a deposition under Texas Rule of Civil Procedure 187 was shielded from discovery by Federal Rule of Criminal Procedure 6(e), which governs the secrecy of federal grand jury proceedings); State ex rel. Hightower v. Smith, 671 S.W.2d 32, 35-36 (Tex.1984) (holding in appeal from jury verdict removing sheriff from office for official misconduct that sheriff who was impeached with portions of his grand jury testimony had a right to review any additional portions of the transcript of his testimony which covered the subject matter on which he was impeached, notwithstanding the general “exemption” of grand jury testimony from disclosure); see also Tex. Const. art. V, § 3(a) (Supreme Court does not have jurisdiction over "criminal law matters”).

      . Even if there were no other legal remedy available, there is no general constitutional right of appeal. See Lackawanna County Dist. Atty. v. Coss, 532 U.S. 394, 402-03, 121 S.Ct. 1567, 1573, 149 L.Ed.2d 608 (2001); Rushing v. State, 85 S.W.3d 283, 285 (Tex.Crim.App.2002).


text:
    Hunter Lee YARBROUGH, Appellant, v. Julia Walsh YARBROUGH, Appellee, and In the Interest of P.A.Y. and S.L.Y., Children.
    No. 10-03-00046-CV.
    Court of Appeals of Texas, Waco.
    Nov. 3, 2004.

      Sandy S. Gately, Gatesville, for appellant.
    Nancy Anglin Yates, Hamilton, for ap-pellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

This appeal concerns the trial court’s decree that Hunter Lee Yarbrough pay spousal maintenance to Julia Walsh Yar-brough for one year after their divorce and the amount of child support the court ordered Hunter to pay. Hunter contends in two points that the court abused its discretion: (1) by ordering spousal maintenance because Julia failed to present evidence (A) to overcome the statutory presumption against spousal maintenance, (B) that their daughter S.L.Y. requires special care which prevents Julia from obtaining a full-time job, and (C) of her “minimmn reasonable needs”; and (2) by ordering child support from his net monthly resources in excess of $6,000 because Julia failed to present evidence of the children’s needs. Because the record contains adequate information to support the court’s decision to order spousal maintenance and to support the amounts of spousal maintenance and child support awarded, we will affirm.

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY ORDERING SPOUSAL MAINTENANCE

Hunter contends in his first point that the court abused its discretion by ordering him to make spousal maintenance payments for one year after the divorce because Julia failed to present evidence (1) to overcome the statutory presumption against spousal maintenance, (2) to show that S.L.Y. requires special care which prevents Julia from obtaining a full-time job, and (3) to show Julia’s “minimum reasonable needs.”

Julia responds that Hunter has not preserved this point for review because he failed to raise these arguments at trial. However, the essence of Hunter’s complaint is that the court abused its discretion because Julia failed to present sufficient evidence to support the court’s findings. When an appellant challenges the sufficiency of the evidence following a bench trial, no preservation is required. See Tex.R.App. P. 33.1(d). We likewise believe that no preservation is required when an appellant contends that a trial court abused its discretion because the appellee presented insufficient evidence to support the court’s exercise of discretion.

Because no findings of fact were requested or made, we must presume that the court made all findings necessary to support its judgment, and the judgment must be affirmed if it can be upheld on any legal theory supported by the evidence. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990) (per curiam); Treadway v. Shanks, 110 S.W.3d 1, 5 (Tex.App.-Dallas 2000), aff'd, 110 S.W.3d 444 (Tex.2003).

We review an order for spousal maintenance under an abuse-of-discretion standard. Limbaugh v. Limbaugh, 71 S.W.3d 1, 12 (Tex.App.-Waco 2002, no pet.); Pickens v. Pickens, 62 S.W.3d 212, 214 (Tex.App.-Dallas 2001, pet. denied.). We do not conduct an independent review of findings of fact in such a case under traditional legal and factual sufficiency standards. In re J.C.K., 143 S.W.3d 131, 135 (Tex.App.-Waco 2004, no pet.); London v. London, 94 S.W.3d 139, 143-44 (Tex.App.-Houston [14th Dist.] 2002, no pet.). Rather, legal and factual sufficiency are factors which can be considered in determining whether an abuse of discretion has occurred. J.C.K, 143 S.W.3d at 135; London, 94 S.W.3d at 143-44; accord Beaumont Bank, N.A. v. Butter, 806 S.W.2d 223, 226 (Tex.1991).

Julia Presented Sufficient Evidence that She Exercised Diligence In Obtaining the Best Job Available Under The Circumstances

There is. a statutory presumption that spousal maintenance “is not warranted.” Tex. Fam.Code Ann. § 8.053 (Vernon Supp.2004). To overcome this presumption, Julia had to prove that she exercised diligence in seeking suitable employment. Id. § 8.053(a)(1).

Resolution of this issue revolves primarily .around S.L.Y.’s condition, known as Sturge-Weber Syndrome, and the curative impact of an operation S.L.Y. had in May 2002, about one month after Hunter filed for the divorce. This condition caused S.L.Y. to experience frequent seizures. It is undisputed that S.L.Y. required constant parental attention because of her condition before the operation. From the time of the operation until the divorce trial in January 2003, S.L.Y. experienced no seizures.

According to the temporary orders agreed to by the parties, the parties had possession of the children every other week. The Yarbroughs took S.L.Y. to Detroit for the operation in early May 2002 and spent most of the month there. From June through December 2002, they alternated possession of the children according to the temporary orders. Hunter worked at home during the weeks he had the children.

Julia testified that she was unable to locate a job that would enable her to work only every other week. The best job she could locate under the circumstances was as a bus attendant with the school district, which paid $50 per week. From this testimony, the court was within its discretion to conclude that Julia exercised diligence under the circumstances to find the best employment available. Cf. Limbaugh, 71 S.W.3d at 15 (spouse presented sufficient evidence to overcome presumption against spousal maintenance with testimony that she was cleaning all available houses in the area).

The RecoRD Contains Sufficient Evidence that Julia Cannot Presently Obtain A Full-Time Job Because S.L.Y. Still Requires Substantial Care

Hunter contends that Julia failed to prove that S.L.Y. still “requires substantial care and personal supervision” because of her condition which prevents Julia from obtaining a full-time job. See Tex. Fam. Code Ann. § 8.051 (2)(B) (Vernon Supp. 2004). To support his assertion that S.L.Y. no longer requires the level of care which would prevent Julia from obtaining a full-time job, Hunter points to the fact that S.L.Y. has had no seizures since her operation and that they plan to reduce her medications over an unspecified period of time until at some point the medications may no longer be necessary.

S.L.Y.’s physician testified that S.L.Y. “seems to be” “functioning as well as she was before [the operation] or better.” Julia testified that S.L.Y. requires one and one-half hours of therapy on a daily basis. The court ordered spousal maintenance for only twelve months. See Tex. Fam.Code Ann. § 8.054(a)(2) (Vernon Supp.2004) (limiting duration of spousal maintenance order “to the shortest reasonable period”). From the testimony presented, the court was within its discretion to conclude that S.L.Y.’s level of improvement did not justify as abrupt a departure from the amount of personal care and attention Julia provided S.L.Y. as Hunter would prefer. Accordingly, we cannot say that the court abused its discretion in concluding that S.L.Y.’s condition prevented Julia from obtaining a full-time job.

The Record Contains Sufficient Evidence Of Julia’s “Minimum Reasonable Needs”

Hunter contends that Julia failed to establish what are her “minimum reasonable needs.” See Tex Fam.Code Ann. § 8.051(2). Section 8.052 provides several factors for a court to consider in determining “the nature, amount, duration, and manner of periodic payments” for an award of spousal maintenance. Id. § 8.052 (Vernon Supp.2004). The determination of a spouse’s “minimum reasonable needs” is a “fact-specific determination” which must be made on a case-by-case basis. Amos v. Amos, 79 S.W.3d 747, 749 (Tex.App.-Corpus Christi 2002, no pet.); Limbaugh, 71 S.W.3d at 14.

Based on the court’s division of the marital debts, it appears that the court relied on prior filings (particularly, an attachment to the agreed temporary orders and a contempt motion filed by Julia shortly before trial) to determine the amount of the parties’ debts and their monthly living expenses. See Tex.R. Evid. 201(c); Dutton v. Dutton, 18 S.W.3d 849, 856 (Tex.App.-Eastland 2000, pet. denied) (court can take judicial notice of its own records sua sponte). From the attachment and the court’s division of the debts, it can be ascertained that Julia’s monthly expenses, post-divorce, exceed $2,700. This constitutes adequate evidence of Julia’s “minimum reasonable needs.”

Working every other week, Julia earns about $108 per month. Thus, her monthly income is about $2,600 less than her monthly expenses. For these reasons, we cannot say that the court abused its discretion by awarding bi-monthly spousal maintenance payments of $664.50 to Julia for one year. Accordingly, we overrule Hunter’s first point.

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY ORDERING CHILD SUPPORT PAYMENTS FROM HUNTER’S NET MONTHLY RESOURCES OYER $6,000

Hunter contends in his second point that the court abused its discretion by ordering child support in excess of the presumptive guidelines (for net monthly resources of $6,000 or less) without evidence that “the proven needs of the children” required such an increase.

Julia responds that Hunter has failed to preserve this issue because: (1) he failed to request findings under section 154.130 to give the court an opportunity to articulate the basis for the “variance”; and (2) he failed to challenge the “variance” by motion for new trial.

The Findings RequiRed By Section 154.130 Are Not RequiRed For Child Support Ordered From Net Monthly Resources Exceeding $6,000

It is undisputed that Hunter’s net monthly resources exceed $6,000, and Hunter does not contend that that the court abused its discretion by requiring him to pay 25% of the first $6,000 of his net monthly resources ($1,500) consistent with the guidelines as support for the parties’ two children. See Tex. Fam.Code Ann. § 154.125 (Vernon 2002). His complaint goes to the amount of child support ordered in excess of this presumptive sum, which, totals an additional $171 per month.

The award of child support from net monthly resources which exceed $6,000 is determined “[w]ithout further reference to the percentage recommended by [the] guidelines.” Id. § 154.126(a) (Vernon 2002). Conversely, a court must make findings under section 154.130 when requested or when the child support award varies from the percentage guidelines. Id. § 154.130(a) (Vernon 2002). Because the percentage guidelines do not apply to net monthly resources exceeding $6,000, section 154.130 does not apply to child support awarded from those resources. See Hatteberg v. Hatteberg, 933 S.W.2d 522, 528-29 (Tex.App.-Houston [1st Dist.] 1994, no writ). Thus, Hunter did not fail to preserve this issue for review by failing to request findings under section 154.130.

No Motion For New Trial Was Necessary to Preserve this Complaint

Because Hunter’s second point, likes his first, focuses on the sufficiency of the evidence to support the court’s exercise of discretion, no motion for new trial was required to preserve this issue for review. Cf Tex.R.App. P. 33.1(d).

The List of Monthly Expenses Attached to the Agreed Temporary Orders and Julia’s Testimony Constitute Sufficient Evidence of the Children’s Needs

Section 154.126(b) provides the formula which a court must follow when awarding child support from net monthly resources which exceed $6,000.

The proper calculation of a child support order that exceeds the presumptive amount established for the first $6,000 of the obligor’s net resources requires that the entire amount of the presumptive award be subtracted from the proven total needs of the child. After the presumptive award is subtracted, the court shall allocate between the parties the responsibility to meet the additional needs of the child according to the circumstances of the parties. However, in no event may the obligor be required to pay more child support than the greater of the presumptive amount or the amount equal to 100 percent of the proven needs of the child.

Tex. Fam.Code Ann. § 154.126(b) (Vernon 2002).

From the list of monthly expenses noted above, the trial court had before it sufficient information to determine that the needs of the children amounted to more than $1,600 if the court considered two-thirds of the monthly expenses for the Suburban, for housing, and for utilities to be the expenses of the children. Cf. Nordstrom v. Nordstrom, 965 S.W.2d 575, 579 (Tex.App.-Houston [1st Dist.] 1997, pet. denied). In addition, the list recites monthly school lunch expenses of $75. Julia testified that she has a $10 copayment for each prescription and that S.L.Y. currently requires five or six prescription medications, though she offered no testimony regarding the frequency with which these prescriptions must be refilled.

To be certain, the parties devoted little of their testimony and documentary evidence to proof of their expenses. Moreover, the court advised the parties at the conclusion of the trial that it would order Hunter to pay twenty-five percent of his net monthly resources as child support. In so doing, the court made no differentiation regarding Hunter’s net monthly resources exceeding $6,000.

Nevertheless, the court had sufficient information before it from which it could make a fair determination of the pertinent expenses. That information provides an adequate basis for the child support awarded. Accordingly, we cannot say that the court abused its discretion by awarding $171 of child support from Hunter’s net monthly resources in excess of $6,000. See Guaranty County Mut. Ins. Co. v. Reyna, 709 S.W.2d 647, 648 (Tex.1986) (per curiam); Conseco Fin. Servicing Corp. v. J & J Mobile Homes, Inc., 120 S.W.3d 878, 880-81 (Tex.App.-Fort Worth 2003, pet. denied) (both holding that judgment must be affirmed on any theory supported by the pleadings and evidence, even when the trial court states an incorrect legal basis for its judgment). Thus, we overrule Hunter’s second point.

We affirm the judgment.

Chief Justice TOM GRAY concurring.

TOM GRAY, Chief Justice,

concurring.

As in calculus, the Court can sometimes get the right answer because the mistakes made during the course of solving the problem cancel out each other. In school, that type of result is not credited as a correct answer.

There are two off-setting errors in the Court’s opinion. First, the Court holds the issues were preserved. They were not. Second, the Court holds the trial court could have, sua sponte, considered information in documents in its file without telling anyone that it was going to base its decision on them. It cannot.

PRESERVATION

For purposes of this concurring opinion, I will assume that the standard of review is abuse of discretion. The Court holds that a complaint that the trial court abused its discretion does not need to be preserved for review on appeal. Abuse of discretion is not one of the exceptions to the preservation requirement. See Tex. R.App. P. 33.1. This appeal should be resolved on the failure to preserve either issue.

Reliance on List Not in Evidence

The Court does not hide its reliance on evidence not properly within the scope of review. In resolving both issues, the Court references documents in the Clerk’s Record that the Court believes the trial court relied upon. In particular, the Court states, “... it appears that the trial court relied on prior filings (particularly, an attachment to the agreed temporary orders and a contempt motion filed by Julia shortly before trial).... ” The citation is to the evidentiary rule on judicial notice. See Tex.R. Evid. 201(c). This should make every trial lawyer shudder. Under this holding, the trial court need not advise the party what document in the Clerk’s Record, filed by whom or attached to what, the trial court is going to take judicial notice of, and rely upon, in resolving a disputed issue.

For the sake of completeness even in this summary concurring opinion, I note that the Court uses the same holding in resolving the second issue. The Court specifically states that “[fjrom the list of monthly expenses noted above, the trial court had before it sufficient information. ...” I think most trial attorneys will be aghast at. the trial court’s ability to consider something in making a determination without telling the parties it is taking judicial notice of it.

Finally, this type schedule does not contain the type information appropriate for judicial notice: It does- not meet either criteria under Texas Rule of Evidence 201(b).

Conclusion

But like the calculus student that got the right answer the wrong way, this Court’s affirmation of the judgment is the correct answer. I, however, believe the proper route to get to that answer is by determining the issues on appeal were not preserved. Accordingly, I concur in the result but not in the rationale of the Court.

      . Subdivision (a)(2) also provides that a spouse can overcome the presumption by showing the exercise of diligence in developing necessary job skills during the parties' separation and the pendency of the divorce. Tex. Fam.Code Ann. § 8.053(a)(2) (Vernon Supp.2004). However, Julia does not contend that she lacks adequate job skills.

      . The attachment lists the parties’ various debts and other monthly expenses for vehicles, housing, and utilities. The contempt motion alleges among other things that Hunter failed to comply with the requirement of the temporary orders that he make the monthly payments on certain of the parties’ debts. Thus, the contempt motion contains updated information as to some of the balances then owed on these debts.

      . There are approximately 4.33 weeks in a month. (52 weeks divided by 12 months).

      . The court awarded Hunter the parties' residence in the divorce decree. We will nevertheless presume that the court found that Julia’s expenses for housing and utilities would roughly equate what those expenses were before the divorce. See Worford v. Stamper, 801 S.W.2d 108, 1(39 (Tex.1990) (per curiam); Treadway v. Shanks, 110 S.W.3d 1, 5 (Tex.App.-Dallas 2000), aff'd, 110 S.W.3d 444 (Tex.2003).