source: Caselaw Access Project

author: BOB PEMBERTON, Justice.

license: Public Domain

text:
    John Adam CHANDLER, Appellant, v. The STATE of Texas, Appellee.
    No. 03-03-00612-CR.
    Court of Appeals of Texas, Austin.
    March 24, 2005.
    Rehearing En Banc Overruled May 12, 2005.

      Alexander L. Calhoun, Austin, for Appellant.
    Wesley H. Mau, Assistant District Attorney, San Marcos, for Appellee.
    Before Chief Justice LAW, Justices B.A. SMITH and PEMBERTON.
   OPINION

BOB PEMBERTON, Justice.

John Adam Chandler appeals from the revocation of his deferred-adjudication community supervision term and adjudication of guilt for aggravated assault. Chandler contends that this adjudication was improper because he had already been adjudicated guilty for this offense in 2001 when he was adjudicated guilty on a companion count of deadly conduct. We will affirm the judgment.

BACKGROUND

Chandler’s appeal follows a series of pleas, revocations, and adjudications arising from charges filed in 1996. He was originally indicted for threatening a person with imminent bodily injury by using a firearm, for discharging a firearm at a person, and for discharging a firearm at a habitation with disregard for the substantial risk that the habitation was occupied.

In 1997, Chandler pled guilty to one count of aggravated assault and two counts of deadly conduct. The clerk’s record contains two orders of deferred adjudication community supervision signed on September 4, 1997. By separate orders, the court deferred adjudication of guilt for aggravated assault and for deadly conduct, and placed Chandler on community supervision for six years. Although the term of the community supervision was one year longer than Chandler had agreed to accept, there is no indication in the record that he challenged this term.

On March 9, 1999, the State moved to adjudicate Chandler guilty on the aggravated assault charge. The State alleged that Chandler violated the terms of his community supervision by failing to obey all the orders of the court and his supervision officer, failing to report to his supervision officer once, failing several times to make required payments, and failing to perform required community service. Chandler admitted these violations and waived his right to appeal the conviction and sentence concerning his aggravated-assault offense. By order dated July 15, 1999, the court extended Chandler’s period of supervision by two years through September 3, 2005, although the order does not specify the charge for which the supervision is imposed.

On January 18, 2000, the State moved to adjudicate Chandler guilty on the deadly conduct charge. The State alleged failings similar to those Chandler admitted in 1999. On June 15, 2000, the State filed an amended motion to adjudicate the deadly conduct charge, citing an incident of theft. In a judgment dated November 14, 2000, the court revoked Chandler’s community supervision, adjudicated him guilty of the offense of deadly conduct, and assessed sentence at five years in prison.

On March 20, 2001, Chandler moved to have execution of his prison sentence suspended and to be placed on community supervision. In the body of the motion, he asserted that he had been convicted for the offense of aggravated assault and was eligible for community supervision after having served 180 days in prison pursuant to the court’s sentence. The order of commitment attached to Chandler’s motion, however, recited that he had been adjudged guilty of deadly conduct. The court granted the motion and placed Chandler on community supervision for five years. In its order granting community supervision after a sentence of incarceration, the court did not specify for what offense this term was assessed.

Thereafter, the State filed a series of documents seeking to revoke the different community supervision terms. On January 8, 2003, the State moved to revoke Chandler’s community supervision for the deadly conduct offense for which he had been sentenced to five years in prison in November 2000; the State filed an amended motion to revoke on the same offense on April 7, 2003. On July 30, 2003, the State filed a motion for the court to take judicial notice of Chandler’s conviction on July 1, 2003 for a different offense of aggravated assault. The motion recited that Chandler stood charged with “violating the terms of his Deferred Adjudication in connection with his Aggravated Assault prosecution as well [as] violating the terms of his Community Supervision in connection with his Deadly Conduct prosecution under the above styled cause number.” On that same date, the State filed a motion to adjudicate Chandler guilty of the original aggravated-assault charge.

By judgment signed September 29, 2003, the court revoked Chandler’s community supervision term for the original aggravated-assault offense and adjudicated him guilty of that offense. The court assessed sentence at twenty years in prison. Chandler filed a notice of appeal, but the district court certified that this “is a plea bargain case, and the defendant has NO right of appeal.” There is no indication in this record of whether the district court took any action regarding the motion to revoke on the deadly conduct offense.

DISCUSSION

Chandler contends that, in its November 2000 judgment, the district court adjudicated him guilty of both the deadly conduct and the aggravated-assault offenses. He contends that the district court therefore could not again adjudicate his guilt and sentence him on the aggravated-assault offense in September 2003. He argues that, despite the district court’s refusal to certify his right of appeal, this wrongful re-adjudication and re-sentencing is appealable.

Appeals from guilty pleas are limited. A defendant who pleads guilty and whose punishment does not exceed that which he agreed to accept can appeal only those matters raised by written motion filed and ruled on before trial or after getting the trial court’s permission. Tex.R.App. P. 25.2(a)(2). When a defendant is charged with violation of a term of deferred-adjudication community supervision, he is “entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination.” Tex.Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 2004-05).

But these limitations do not bar appeal in this case. Rule 25.2(a)(2) does not limit a defendant’s right to challenge the process by which he was sentenced. See Vidaum v. State, 49 S.W.3d 880, 885 (Tex.Crim.App.2001). Chandler does not challenge the original 1997 order deferring adjudication, but contends that the district court had no power to adjudicate him in September 2003 because he had already been adjudicated guilty in November 2000. Neither the rule nor the statute limits a defendant’s right to appeal a judgment that the court lacked power to render. See Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim.App.2001); Edwards v. State, 106 S.W.3d 377, 379 (Tex.App.-Fort Worth 2003, no pet.) (post-revocation assessment of sentence in excess of statutory limit is appealable); see also Ex paHe Beck, 922 S.W.2d 181, 182 (Tex.Crim.App.1996). The nature of Chandler’s challenge makes his appeal permissible.

Chandler contends that the district court had no power to adjudicate him guilty of aggravated assault in 2003 because it had already done so three years earlier when it adjudicated him guilty expressly only of deadly conduct. He makes this argument despite the language in the November 2000 judgment that mentions the deadly conduct offense but does not mention the aggravated assault. He notes that, when multiple charges for offenses arising out of the same criminal episode are prosecuted in a single criminal action, the sentences imposed for the separate convictions must be served concurrently. See Tex. Pen.Code Ann. § 3.03(a) (West 2003). He cites language from the court of criminal appeals that this amounts to “treating the separate offenses as one for sentencing purposes.” See Haliburton v. State, 578 S.W.2d 726, 729 (Tex.Crim.App.

1979); see also Tex.Code Crim. Proc. Ann. art. 42.08(a) (West Supp.2004-05) (‘When the same defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction.”). He argues that the district court treated these offenses as one when initially imposing the community supervision: he signed one plea agreement and received a single set of conditions for community supervision under a single cause number. He urges that the district court had no power to impose a sentence for the aggravated-assault conviction that exceeds the sentence previously imposed for the deadly conduct conviction, citing Kimball v. State, 119 S.W.3d 463, 465 (Tex.App.Beaumont 2003, no pet.). In that case, the district court initially imposed a ten-year sentence, suspended execution of that sentence and assessed community supervision, and then revoked the community supervision and imposed a fifteen-year sentence; the Beaumont court concluded that the district court had exceeded its authority by imposing a fifteen-year sentence because that exceeded the ten-year sentence it had imposed originally. Id.

But we find nothing preventing courts from imposing different terms of imprisonment at different times on separate convictions for which identical terms of deferred-adjudication community supervision were originally imposed. Unlike in Kimball, no sentence was pronounced in this case when the original deferred-adjudication community supervision was assessed, so there is no discrepancy between the original and the current sentence. Although the court in this case initially imposed identical community supervision terms for the aggravated assault and deadly conduct offenses, they remain separate offenses. The requirement in article 42.08(a) that the court pronounce judgment and sentence for multiple related convictions “as if’ there were only one conviction does not mean that there is but one conviction. See Tex.Code Crim. Proc. Ann. art. 42.08(a). If the convictions actually melded into a single conviction, there would be no need to require concurrent sentences because there would be only one sentence; we will not reduce the concurrent sentence requirements to surplusage. We also find no requirement that sentences served concurrently be of identical length, even if they arise from simultaneously deferred adjudications that are later adjudicated separately. See id.; Tex. Pen.Code Ann. § 8.08(a). Nor do we find any impediment to the district court separately revoking terms of deferred-adjudication community supervision that were initially imposed at the same time. The only apparent limitation in addition to the concurrence requirement is the range of punishment contained in the statutes. See Tex. Pen.Code §§ 12.33 (second-degree felony punishable by two to twenty years in prison) and 12.34 (third-degree felony punishable by two to ten years in prison); see also id. §§ 22.02(b) (standard aggravated assault is second-degree felony) and 22.05(b), (e) (deadly conduct of discharging firearm at or in direction of people or building with recklessness regarding its occupation is third-degree felony). Both punishments assessed are within these ranges.

Our conclusion might be different if the State were attempting to manipulate the system to effectively stack the sentences for these separate offenses — i.e., by waiting to revoke the deadly conduct offense until after the twenty-year sentence for aggravated assault is served — in order to impose a longer aggregate period of imprisonment than could have been imposed at the time of the original guilty plea. See O’Hara v. State, 626 S.W.2d 32, 35 (Tex.Crim.App.1981) (“court has no power to cumulate any sentence not originally ordered to be served cumulatively”); see also Ex parte Sims, 868 S.W.2d 803, 804 (Tex. Crim.App.1993). But there is no evidence of such manipulation here. Instead, the State and the courts have given Chandler the benefit of an array of community supervision options. Chandler has violated the terms of his community supervision, beginning with his failure to comply with technical provisions of his community supervision (reporting to his supervision officer and paying required fees), and progressing through additional offenses of misappropriation of property, driving while intoxicated, and another aggravated assault. Chandler may have the right to seek credit against the sentence for this aggravated-assault conviction based on pre-shock-probation prison time served on the deadly conduct sentence, but that question is not before us.

The district court acted within its power in adjudicating Chandler’s guilt for aggravated assault and sentencing him to twenty years. The 2000 adjudication of guilt for the offense of deadly conduct did not constitute an adjudication of guilt for the related offense of aggravated assault. Chandler was still under deferred-adjudication community supervision for the aggravated-assault offense in 2003. The court did not err by revoking that term of supervision and adjudicating his guilt for aggravated assault in 2003.

CONCLUSION

Concluding that the district court had the power to revoke the term of deferred-adjudication community supervision imposed for the aggravated-assault offense despite having three years earlier revoked a similar term for a companion offense of deadly conduct, we affirm the judgment.

      . Rather than order the trial court to prepare and file an amended certification at this late stage in the appellate process, the certification in the record shall be deemed amended so as to certify that this “is not a plea-bargain case, and the defendant has the right of appeal.” See Tex.R.App. P. 25.2 comment (West 2003) (containing prescribed certification form).


author: SUE LAGARDE (Retired).

text:
    Reginald Dean VANMETER, Appellant, v. The STATE of Texas, Appellee.
    No. 05-03-01505-CR.
    Court of Appeals of Texas, Dallas.
    April 6, 2005.
    Rehearing Overruled June 28, 2005.
    Melvyn Carson Bruder, Dallas, for Ap-pellee.
    John R. Roach, Collin County Dist. Atty., John A. Stride, Asst. Dist. Atty., McKinney, for State.
    Before Justices FRANCIS, LANG, and LAGARDE.

      . The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

   OPINION

Opinion by Justice

SUE LAGARDE (Retired).

The issue we must decide in this appeal is whether the protections afforded by the Confrontation Clause, as recently interpreted in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), apply at pretrial suppression hearings. For reasons that follow, we conclude they do not. No reversible error having been shown, we affirm the trial court’s judgment.

After the trial court denied appellant Reginald Vanmeter’s pretrial motion to suppress, appellant waived a jury and entered a negotiated guilty plea to the misdemeanor offense of driving while intoxicated (DWI). Implementing the plea bargain, the trial court assessed appellant’s punishment at sixty days’ confinement in jail, probated for one year, and a $300 fíne.

On appeal, appellant presents only one issue: whether the trial court reversibly erred by admitting into evidence at the pretrial suppression hearing documents prepared by a person or persons who did not testify at the pretrial hearing, thereby depriving appellant of his rights of confrontation and cross-examination in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States.

Contending that his arrest was illegal because it was without warrant or probable cause, appellant filed a pretrial motion to suppress evidence, specifically requesting the trial court “to suppress the use, at the trial of this case, of all evidence, physical or testimonial, seized or obtained by the State of Texas in violation of the laws or constitutions of the State of Texas or of the United States.” At the pretrial hearing on appellant’s motion, after the State stipulated that appellant’s arrest was without a warrant, appellant rested, relying on the allegations in his motion without presenting any evidence in support thereof. The State then had the burden to prove appellant’s warrantless arrest was valid.

The officer who made the decision to stop appellant’s motorcycle for speeding and, later, that probable cause existed to arrest appellant for DWI, and who prepared most of the paperwork surrounding the arrest, did not appear in court for the pretrial hearing. Instead, the State offered, and the trial court admitted, an in-car videotape, official records of the Texas Department of Public Safety, and the testimony of another officer who determined, by the use of radar, appellant’s motorcycle was speeding, and who joined the arresting officer and appellant at the scene after appellant was stopped. When the State sought to publish the in-car videotape to the trial judge, the following exchange occurred between appellant’s counsel and the trial judge:

[DEFENSE COUNSEL]: I have no objection to the court looking at the video since it’s something that’s subject to the motion. I am not agreeing it should be admitted as evidence.
THE COURT: But just for the limited purposes of the hearing and the court viewing it, no objection?
[DEFENSE COUNSEL]: That is correct.

After the trial court viewed the in-car videotape recording of events that occurred before, during, and after the arrest, the State offered into evidence State’s exhibit number one, a fifteen-page document. Each page is stamped with a certification under seal stating, in relevant part, “This day, 9/5/02 I certify that the document which bears this certificate is a full, true and correct copy of the official record or report or entry currently on file with the Texas Department of Public Safety.” The certification is attested to and executed by Cindy McDonald, Authorized Deputy Custodian of Records, Driver Improvement and Control Service, Texas Department of Public Safety.

Appellant objected to the admission of State’s exhibit number one in its entirety because “it denie[d] [appellant] confrontation under both [constitutions],” and “on the grounds that it eonstitute[d] hearsay, and probably more importantly it deprive[d] the defendant of his right to confront witnesses and cross-examine witnesses that the State may bring.” (Emphasis added.) Responding to appellant’s objection, and arguing that the rules of evidence do not apply at pretrial suppression hearings, the State referred the trial court to the eases of Granados v. State, 85 S.W.3d 217 (Tex.Crim.App.2002), cert, denied, 538 U.S. 927, 123 5.Ct. 1578, 155 L.Ed.2d 321 (2003), and State v. Brunner, 917 S.W.2d 103, 105 (Tex.App.-San Antonio 1996, pet. refd). Appellant’s counsel responded, correctly, that Granados did not involve the Confrontation Clause.

Initially, we note that on appeal appellant raises only a federal constitutional right to confrontation issue based on the Sixth and Fourteenth Amendments to the Constitution of the United States. See U.S. Const, amends. VI, XIV; Bunton v. State, 136 S.W.3d 355, 368 (Tex.App.-Austin 2004, pet. refd) (citing Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)). Therefore, for the same reasons set forth in Bunton, we do not review appellant’s confrontation complaint under the Texas Constitution.

During the pendency of this appeal, the United States Supreme Court issued its opinion in Crawford v. Washington. In Crawford, the Court held that in-court testimony or its functional equivalent (i.e., “material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prose-cutorially”) may not be used as evidence against an accused unless the accused has an opportunity to confront and cross-examine the maker of the statement. Crawford, 541 U.S. at 51,124 S.Ct. 1354.

Relying on Crawford, appellant contends the documents contained in State’s exhibit number one are testimonial statements of a witness or witnesses who did not testify at the pretrial hearing and whose unavailability was not proved by the prosecution. Thus, appellant argues, those documents were not admissible absent appellant’s opportunity to confront and cross-examine the person or persons who made those statements.

Appellant recognizes that, historically at suppression hearings, courts have been permitted to rely on hearsay and other evidence that would not ordinarily be admissible at trial. See Granados, 85 S.W.3d at 227 n. 29 (citing United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); and Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). Appellant argues, however, that the Sixth Amendment guarantee of confrontation does apply at pretrial suppression hearings. Appellant cites no authority but gives as a basis for his position the following reasons:

(a) None of the cases cited in Granados involved a Sixth Amendment confrontation issue;
(b) At the core of the suppression hearing is the determination of historical facts that are rarely subject to appellate review in light of the required deferential standard of review, and when resolving suppression issues, a trial court is charged with the responsibility to accurately find the relevant facts and to make critical demeanor and credibility assessments; and
(c) Confrontation and cross-examination should apply at pretrial suppression hearings, not because those hearings serve the same purpose as trials, but because the protections provided by the guarantees serve the objectives of suppression hearings — finding reliable facts relevant to, and assessing demeanor and credibility necessary to, resolution of the suppression issues.

In addition to citing pre-Crawford cases stating that confrontation and cross-examination are critical to the reliability of the fact-finding process at trial, appellant cites Manzi v. State, 88 S.W.3d 240, 250-51 (Tex.Crim.App.2002) (Cochran, J., concurring), for the proposition that “assessments of demeanor and credibility cannot realistically be made in the absence of confrontation and cross-examination.”

Appellant concludes, therefore, that the trial court’s admission into evidence of the statements in question, without requiring the State to show unavailability of the witnesses and without allowing appellant the right to confront those witnesses, was reversible error because it violated a structural constitutional guarantee and because it compromised the integrity of the fact finding process inherent in a pretrial suppression hearing.

The State concedes that the cases cited in Granados addressed only the application of the state law rules of evidence to pretrial suppression hearings, and did not address the application of federal constitutional rights afforded by the United States Constitution. However, the State contends that under federal law, even after Crawford, appellant’s right of confrontation is a trial right, not a pretrial right. In support of its position, the State relies on several federal cases, including Pennsylvania v. Ritchie, 480 U.S. 39, 52 & n. 10, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (plurality op.) (noting that to accept a broader interpretation would transform the Confrontation Clause into a constitutionally compelled rule of discovery and further recognizing it “normally has refused to find a Sixth Amendment violation when the asserted interference with cross-examination did not occur at trial”); California v. Green, 399 U.S. 149,157, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) (stating “[It] is this literal right to ‘confront’ the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause”); and Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968) (“The right to confrontation is basically a trial right.”).

The State further argues that although neither the Texas Court of Criminal Appeals nor this Court has decided the specific issue before us, state law, likewise, does not support appellant’s position. The State points to established state law holding that a motion to suppress is simply a specialized pretrial objection, which the trial court is given discretion to decide on affidavits alone, without a hearing, and a defendant who complains on appeal that he was denied a suppression hearing presents no error because he could have raised an appropriate objection at trial.

The State also makes the following contentions: appellant’s remedy was to proceed to trial where he would have had a constitutional right of confrontation of the witnesses against him, and if he were denied that right at trial, and preserved error, he could raise the issue on appeal; by waiving a jury and pleading guilty before the trial court, appellant waived certain constitutional rights, including his right to confrontation under the Sixth and Fourteenth Amendments; and Crawford provides appellant no support because it is procedurally distinguishable from this case because there the violation occurred at trial following a not guilty plea, not at pretrial preceding a guilty plea.

Finally, citing State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App.2000), and Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim.App.1990), the State points out that, upon appellate review of a pretrial motion to suppress, if the trial court’s ruling is correct on any theory of law applicable to the case, the decision should be upheld. The State concludes, therefore, that the trial court neither erred nor violated appellant’s right of confrontation by admitting the challenged documents into evidence at the pretrial suppression hearing.

Relying on Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the Supreme Court recently reiterated that when a defendant pleads guilty, he or she foregoes not only a fair trial, but also other accompanying constitutional guarantees. United States v. Ruiz, 536 U.S. 622, 628-34, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002). Included within those forfeited guarantees is the right to confront one’s accusers. Id. at 629, 122 S.Ct. 2450. The issue decided by the Supreme Court in Ruiz was whether the Constitution requires the prosecution to disclose, before a guilty plea, the same material impeachment information that it would be required to disclose at a trial.

The Ninth Circuit had held that a guilty plea is not “voluntary” and a defendant could not, by pleading guilty, waive his right to a fair trial, unless the prosecutors first made the same disclosure of material impeachment information that the prosecutors would have been required to make had the defendant insisted upon a trial. In holding that the prosecution is not required to make such disclosure before a guilty plea is negotiated and entered, the Supreme Court held that impeachment information is special in relation to the fairness of a trial, not in respect to whether a plea is voluntary (‘knowing,’ ‘intelligent,’ and ‘sufficiently] aware’). See id. at 629-33,122 S.Ct. 2450.

Although we recognize that confrontation may be “special in relation to the fairness of a trial court’s pretrial determination of preliminary questions concerning the admissibility of evidence,” whereas it may not be in respect to whether a plea is voluntary, confrontation at the pretrial stage where lesser interests are at stake is not special to the “fairness of a trial.” In Raddatz, the Supreme Court stated that “the interests at stake in a suppression hearing are of a lesser magnitude than those at a criminal trial itself.” Raddatz, 447 U.S. at 679,100 S.Ct. 2406.

At the motion to suppress hearing, the State had the burden only to show probable cause existed for appellant’s arrest, not to show appellant was guilty of the offense of DWI. Federal constitutional law did not mandate that appellant be afforded the “full panoply of trial rights” at the motion to suppress hearing. See id. Nor does current state law.

We agree with the State that it is well established under Texas law that a trial judge may decide preliminary questions concerning the admissibility of evidence on affidavits alone, without hearing any live testimony. See Tex.Code CRiM. PROC. Ann. art. 28.01(6) (Vernon 1989). This is true even when affidavits are contradictory. Manzi, 88 S.W.3d at 253 & n. 10 (Cochran J., concurring).

In Manzi, the court of criminal appeals held that a deferential standard of review applies to a trial court’s determination of historical facts when that determination is based solely upon affidavits. Id. at 244 (majority op.). To the extent appellant is arguing it should be the law that the constitutional right of confrontation applies at pretrial hearings, perhaps Judge Cochran’s concurrence in Manzi could be read as providing appellant some support by signaling a desired change in Texas criminal law to coincide with civil law. However, to the extent appellant is arguing that Judge Cochran’s concurrence in Manzi supports the position that it is currently the law in Texas, it provides him no support. To the contrary, Judge Cochran recognized that it is currently not the law when she stated: “This procedure [dueling affidavits], albeit expressly permitted by statute and not expressly prohibited by constitution, does not inspire confidence.” Id. at 255 (Cochran J., concurring). Although Judge Cochran expressed frustration with such a process and questioned the propriety of a trial judge deciding contested factual matters at a suppression hearing based on “dueling affidavits” alone, she joined the court’s opinion, recognizing that the “illogical method” of “determining the ‘truth’ from the face of conflicting affidavits alone” is “not only permitted, but widely practiced” and that it is countenanced “for the very reasons set out in the Court’s opinion.” Id. at 252-53. She also wrote:

First, these “paper hearings” concern only preliminary rulings or post-conviction matters. They are not permitted at the main event of the trial. There, our constitutions and statutes require witnesses to appear in person and to subject themselves to confrontation and cross-examination. Second, the Texas Legislature has explicitly permitted this “dueling affidavits” process, for both pretrial and post-conviction hearings.

Id. at 253 (footnotes omitted) (emphasis added).

Nor does Crawford support appellant’s position. The violation in Crawford occurred during a trial, and the opinion in Crawford concerned the process by which one is constitutionally entitled to determine trustworthiness of testimonial evidence during trial' — a time when, indisputably, appellant had a constitutional right of confrontation. Put another way, it concerned the manner in which one is entitled to test trustworthiness, i.e., “by testing in the crucible of cross-examination,” Crawford, 541 U.S. at 60,124 S.Ct. 1354. Crawford did nothing to change existing federal law concerning when, procedurally, an appellant has that constitutional right of confrontation.

Appellant relies generally on Crawford and has not pointed to any specific portion of the opinion he believes signals a change in pre-Crawford law that a defendant’s right of confrontation is a trial right, not a pretrial right. We have carefully read Crawford for any signal the Supreme Court intended its holding to apply at pretrial suppression hearings and have found nothing to signal such an intention.

In summary, we conclude that Crawford did not change prior law that the constitutional right of confrontation is a trial right, not a pretrial right which would transform it into a “constitutionally compelled rule of discovery.” See Ritchie, 480 U.S. at 52, 107 S.Ct. 989. We hold, therefore, that Crawford does not apply at pretrial suppression hearings. Consequently, the trial court did not err in admitting State’s exhibit number one into evidence at the hearing on appellant’s motion to suppress.

Moreover, procedurally, because appellant later waived a jury and pleaded guilty before the trial court, thus obviating the necessity of a trial at which his constitutional right of confrontation indisputably would have existed, no issue of a violation of the Confrontation Clause is presented. For the reasons stated above, we resolve appellant’s sole issue against him.

We affirm the trial court’s judgment.

      .The Sixth Amendment's Confrontation Clause states, in relevant part, that "in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. The Confrontation Clause provides criminal defendants with two protections: the right to physically face those who testify against them and the right to conduct cross-examination. See Delaware v. Fensterer, 474 U.S. 15, 18-19, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam).

      . The officer was in. school, and even though he had been subpoenaed, he had confused his cases and inadvertently discarded his subpoena to attend the pretrial hearing. No writ of attachment was issued for him.

      . State’s exhibit number one consists of copies of various documents including a "Peace Officer’s Sworn Report” prepared by Sgt. Henderson; an untitled document prepared by an unidentified person; a “Wylie Police Department Officer’s Field Sobriety Scoring Sheet” prepared by Sgt. Henderson; a "Wylie Police Department DWI Interview Report” prepared by Sgt. Henderson; a "Wylie Police Department DWI Arrest Narrative” prepared by Sgt. Henderson; a "Wylie Police Department DWI Supplement Narrative” prepared by Sgt. Henderson; a "Statutory Warning” prepared by Sgt. Henderson; a "Notice of Suspension Temporary Driving Permit” (front and back) prepared by Sgt. Henderson; a City of Wylie Police Collin County Texas DWI Criminal Complaint” prepared by Sgt. Henderson; a "Supplement” prepared by Cpl. C.A. Smith; a "Wylie Police Department Arrest Report" prepared by an unidentified person; a "Wylie Police Department Prisoner Intake” form prepared by an unidentified person; and a document entitled "Inmate Property” prepared by an unidentified person.

        .Granados holds that under current rule of evidence 101(d)(1)(A), except for privileges, the rules of evidence do not apply to the determination of preliminary questions concerning the admissibility of evidence when the issue is to be determined by the court under rule 104. Granados, 85 S.W.3d at 227-29. Rule 104 includes preliminary questions about the admissibility of evidence. See Tex.R. Evid. 104(a). In Granados, the court pointed out that the holding in McVickers v. State, 874 S.W.2d 662 (Tex.Crim.App.1993), is no longer the law because the rule upon which it was based — rule 101(d)(4) — no longer exists. See Granados, 85 S.W.3d at 227-28.

      . Brunner simply stands for the proposition that under section 1(6) of article 28.01 of the code of criminal procedure, a defendant fulfills his burden on a motion to suppress by announcing ready on his filed motion thereby shifting the burden to the State. And if no controverting evidence is offered, the trial court may properly grant the motion based on allegations in the motion itself. Brunner, 917 S.W.2d at 106.

      . In the trial court, appellant objected that the report was hearsay and it denied him confrontation "under both constitutions.” Appellant’s only issue on appeal, however, is that he was deprived "of his rights of confrontation and cross-examination in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States.”

      . Crawford abrogates Ohio v. Roberts, 448 U.S. 56, 100 S.Ct 2531, 65 L.Ed.2d 597 (1980). In Roberts, the Supreme Court held that the Confrontation Clause does not bar admission of an unavailable witness’s statement against a criminal defendant if the statement bears “adequate 'indicia of reliability.’ ” Id. at 66, 100 S.Ct. 2531.

      . The State does not challenge appellant’s characterization of the documents as containing testimonial statements. Consequently, any issue of whether the documents were admitted to prove testimonial statements of "a witness or witnesses who did not testify at the pretrial hearing,” as opposed to having been admitted as official business records to prove that certain events occurred for the purpose of establishing probable cause, is not addressed in this opinion. We do note, however, the following language in Crawford: “Most of the hearsay exceptions covered statements that by their nature were not testimonial — for example, business records or statements in furtherance of a conspiracy.” Crawford, 541 U.S. at 55, 124 S.Ct. 1354 (emphasis added).

      .In Raddatz, the issue was a Fifth Amendment due process issue of whether a district judge could review a suppression hearing conducted by a magistrate. Raddatz, 447 U.S. at 677, 100 S.Ct. 2406. In Matlock, the challenge to certain out-of-court statements was based on hearsay under the rules of evidence and was decided on that basis. Mat-lock, 415 U.S. at 172-77, 94 S.Ct. 988.

      . Galitz v. State, 617 S.W.2d 949, 952 n. 10 (Tex.Crim.App.1981) (op. on reh’g) (en banc).

      . Tex.Code Crim. Proc. Ann art. 28.01(6) (Vernon 1989).

      . Wade v. State, 814 S.W.2d 763, 764 (Tex. App.-Waco 1991, no pet.).

      . We note that on appeal appellant does not claim his plea of guilty was not "voluntary,” nor does he claim the required waivers related thereto were not made "knowingdy], intelligently], [and] with sufficient awareness of the relevant circumstances and likely consequences.” See Ruiz, 536 U.S. 622, 629, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002) (citing Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), and Boy-kin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)).

      . Of course, here, appellant does not challenge the voluntariness of his guilty plea.


author: W. KENNETH LAW, Chief Justice.

text:
    Jonathan BARNES, Appellant, v. The STATE of Texas, Appellee.
    No. 03-04-00059-CR.
    Court of Appeals of Texas, Austin.
    April 7, 2005.
    Rehearing Overruled May 12, 2005.

      Alexander L. Calhoun, Austin, for Appellant.
    Melinda E. O’Neil, Asst. Crim. Dist. Atty., Lockhart, for Appellee.
    Before Chief Justice LAW, Justices B.A. SMITH and PURYEAEt.
   OPINION

W. KENNETH LAW, Chief Justice.

A jury found appellant Jonathan Barnes guilty of three counts of aggravated sexual assault of a child, for each of which it assessed punishment at ninety-nine years’ imprisonment and a $10,000 fine. See Tex. Pen.Code Ann. § 22.021 (West Supp.2004-05). Appellant brings forward nine points of error complaining of the admission of hearsay, unqualified expert testimony, and extraneous misconduct evidence; a violation of the witness exclusion rule; the denial of his right of confrontation; improper jury argument; and double jeopardy. Finding appellant’s double jeopardy claim to be well-taken, we will reform the judgment of conviction to set aside the conviction on one of the three counts. We will overrule appellant’s remaining points of error and affirm the judgment of conviction as reformed.

Background

In July 2002, appellant was living in Lockhart with his two daughters, his girlfriend Jamie Corley, and Corley’s son. On July 8, Corley and the children went to visit a friend in Manchaca. Corley testified that during a private moment that night, appellant’s ten-year-old daughter, C.B., asked Corley “if she could tell me something.” C.B. then told Corley that “her dad was doing stuff to her, and I asked her what. And she said it was — his penis and balls were put in her mouth.” C.B. added that she “was touched down in her personal area and on her mouth.” Corley testified that C.B. had pointed to her vaginal area when she said “down there” and had said that “it bled and it hurt.” C.B. told Corley that this had happened more than once, soon after her mother died in 1997.

After returning to Lockhart on the morning of July 9, Corley told appellant what C.B. had said. They argued, and appellant ordered Corley and her son out of the house. Corley went to a neighbor’s house and called the police.

Lockhart police officer Tara Tippie was one of the officers who responded to the call. Tippie testified that appellant remained calm when told why the officers were there. He admitted Tippie into the house, introduced her to his daughters, and remained outside while Tippie spoke to the girls. Tippie testified that C.B. told her that “her dad had made her have sex ■with him.” More specifically, Tippie testified that C.B. said that “her father had put his penis in her mouth” and “also she pointed down to her vagina area.”

Tippie’s patrol car was equipped with video recording equipment and the officer was wearing a microphone. Her conversation with C.B. was recorded, and the recording was introduced in evidence by the defense and played for the jury. The court reporter’s record reflects that C.B. told Tippie, “Daddy forced me to have sex with him.” Asked when, C.B. answered, “When I was — back before. I was four or five or six.” Asked how often this had happened, C.B. replied, “It was three or four times.” Asked what he had made her do, C.B. said, “He put his — he put his penis in my mouth and here.”

Dr. Beth Nauert, a pediatrician, examined C.B. at the Children’s Advocacy Center two weeks after her outcry. Nauert testified that during a preliminary interview, C.B. told her that when she was “4 or 5 or 6,” her father “took [her] clothes off’ and touched her with “his hands and his nuts.” Nauert said that C.B. described being touched “both in her mouth and her vaginal area.” Asked by the prosecutor “whether or not there had been actual penetration of the vaginal area,” Nauert replied, “She said ‘inside.’ I didn’t spend any time trying to determine, you know, how far inside that was.” Later, during cross-examination, Nauert testified that she was unsure whether C.B. had said that she was touched “in” or “inside” her vaginal area. Nauert also said that she and C.B. did not discuss how often this had happened.

Nauert testified that C.B.’s physical examination was normal. Specifically, “her vaginal area had a normal-sized opening. There were not any tears or scars in her rectal examination, and mouth examination was also normal.” C.B.’s hymen was intact and there was no physical indication of sexual abuse. Nauert testified that the physical examination did not rule out the possibility of sexual abuse, but did not confirm it.

C.B., who was eleven at the time of trial, testified by closed-circuit television. She was a reluctant witness. She acknowledged having received “bad touches,” but refused to elaborate. At the State’s request, the court allowed C.B. to answer questions by writing on a legal pad. In this manner, C.B. testified that she was mad at appellant because “he raped me.” She also testified that she had seen a penis only once, during a fifth-grade class.

In his own testimony, appellant denied committing the alleged offenses. He and other defense witnesses testified that Cor-ley was mentally unstable and not credible. Appellant believed that Corley had caused C.B. to make the false accusations against him.

Hearsay

Statements to Tippie

Appellant contends the trial court erred by admitting Officer Tippie’s testimony describing C.B.’s statements to her on the morning of July 9. The court overruled appellant’s hearsay objection after the State invoked the excited utterance exception. Tex.R. Evid. 803(2). We review evidence rulings for an abuse of discretion. See Montgomery v. State, 810 S.W.2d 372, 390 (Tex.Crim.App.1991) (op. on reh’g).

Rule 803(2) permits the admission of an out-of-court statement “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” The exception is founded on the belief that a statement made as a result of a startling event or condition is involuntary and does not allow the declarant an opportunity to reflect or fabricate, thereby ensuring its trustworthiness. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App.2003); Gutierrez v. State, 85 S.W.3d 446, 455 (Tex.App.-Austin 2002, pet. ref'd). It is not dispositive that the statement was made in answer to a question or that it was separated by a period of time from the startling event, but these are factors to be considered in applying the rule. Salazar v. State, 38 S.W.3d 141, 154 (Tex.Crim. App.2001). The critical determination is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition at the time of the statement. Id.

Tippie testified that C.B. was crying and “just very withdrawn from me, very upset.” There is no evidence, however, that C.B.’s emotional state was due to the stress of excitement caused by some startling event or condition. Appellant’s conduct was doubtlessly shocking or startling when it occurred, but there is nothing in the record to indicate that, five years later, C.B. was still dominated by the emotions it produced. It has been held that the startling event that triggers an excited utterance need not be the crime itself. Hunt v. State, 904 S.W.2d 813, 816 (Tex.App.-Fort Worth 1995, pet. ref'd). Assuming this is correct, there is no evidence of any other startling event or condition that triggered C.B.’s statements to Tippie. The circumstances shown by this record do not reflect that C.B.’s statements to the officer “resulted from impulse rather than reason and reflection.” Zuliani, 97 S.W.3d at 596 (quoting Fowler v. State, 379 S.W.2d 345, 347 (Tex.Crim.App.1964)); and see Harvey v. State, 123 S.W.3d 623, 631 (Tex.App.-Texarkana 2003, pet. refd) (outcry six years after assault not shown to be excited utterance). Finding no other grounds for admission, we agree with appellant that the trial court abused its discretion by admitting Tippie’s hearsay testimony.

Although Tippie’s hearsay testimony was erroneously admitted, reversible error is not presented. The erroneous admission of evidence will not result in reversal when the same evidence was elsewhere received without objection. Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim. App.1998); Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim.App.1984); Perez v. State, 113 S.W.3d 819, 831 (Tex.App.-Austin 2003, pet. ref'd). During his cross-examination of Tippie, appellant offered in evidence the recording of the officer’s conversation with C.B. in which C.B. made the objected-to statements. By introducing C.B.’s statements to Tippie in this manner, appellant waived or forfeited his objection to their earlier admission, or alternatively rendered the earlier error harmless. Le-day, 983 S.W.2d at 718. Point of error three is overruled.

Outcry to Corley

Appellant contends the trial court erred by admitting Corley’s outcry testimony without holding a hearing to determine its reliability. See Tex.Code Crim. Proc. Ann. art. 38.072 (West Supp.2004-05). Article 38.072 creates an exception to the hearsay rule for the outcry statements of children who are victims of certain sexual and assaultive offenses. As a predicate for the admission of such testimony, the statute requires the trial court to conduct a hearing outside the jury’s presence to determine the outcry statement’s reliability based on the time, content, and circumstances of the statement. Id. art. 38.072, § 2(b)(2).

Although appellant did not request a hearing or object to its absence, he did timely object to Corley’s testimony as hearsay. This placed the burden on the State, as the proponent of the outcry testimony, to show that the evidence was admissible under article 38.072 or some other exception to the hearsay rule. Long v. State, 800 S.W.2d 545, 548 (Tex.Crim.App.1990). The State concedes that the only basis for admitting Corley’s testimony was article 38.072. Because the trial court immediately overruled appellant’s objection instead of conducting a hearing, the State was not required to prove that the testimony was reliable. See id. The court’s failure to conduct the section 2(b)(2) hearing was error, as was the admission of Cor-ley’s outcry testimony without a showing of reliability.

Once again, however, reversible error is not presented. C.B.’s outcry to Corley was substantially identical to the statements she made a few hours later to Tippie. The introduction in evidence of the recording of C.B.’s statements to the officer forfeited, waived, or rendered harmless the error in admitting Corley’s outcry testimony. Leday, 983 S.W.2d at 718. Point of error one is overruled.

Statements to Nauert

Appellant also contends that the trial court erred by admitting Dr. Nauert’s account of C.B.’s statements to her at the Children’s Advocacy Center. The court overruled appellant’s hearsay objection without requiring the State to identify a basis for admission, but the State now argues that C.B.’s statements to Nauert were made for the purpose of medical diagnosis or treatment. Tex.R. Evid. 803(4). Anticipating this argument, appellant urges that the statements were elicited for the purpose of litigation, not medical diagnosis or treatment. Appellant further argues that C.B. was not shown to have appreciated the importance of being truthful in her statements to the doctor.

Rule 803(4) excepts from the general hearsay rule statements “made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” Id. For a statement to be admissible under this exception, the declarant must make the statement for the purpose of receiving medical treatment and the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis. Jones v. State, 92 S.W.3d 619, 623 (Tex.App.-Austin 2002, no pet.).

This Court has recognized that a child’s statements to a physician or other health care professional describing sexually abusive acts and identifying the abuser can be admissible under rule 803(4). Id.; Fleming v. State, 819 S.W.2d 237, 247 (Tex.App.-Austin 1991, pet. refd). But these opinions do not broaden the medical diagnosis or treatment exception to encompass every statement made by a child victim of sexual abuse, or support the blanket conclusion that every statement made by a child to a physician regarding a sexual offense was made for the purpose of treatment or diagnosis. See Jones, 92 S.W.3d at 623. We have also pointed out that a child may not understand the need to be truthful with a physician, and therefore the assumption underlying the medical diagnosis and treatment exception may not apply when the declarant is a child. Fleming, 819 S.W.2d at 247.

C.B. was referred to Nauert by Child Protective Services. C.B. was brought to the center by her maternal grandmother, but Nauert was alone with the child during the examination. The examination consisted of three parts: interview, physical examination, and laboratory testing. Nauert stated that it is important that a patient be truthful 'with her doctor in the interview, but she was not asked if she believed that C.B. understood this. After the interview, Nauert conducted the physical examination, which included an examination of C.B.’s genitals with a culdoscope. The doctor also took vaginal, rectal, and throat cultures to test for sexually transmitted diseases. These tests were negative.

Appellant argues that because the alleged abuse had taken place five years earlier and the children had already been removed from appellant’s custody, there was no medical justification for Nauert’s examination. See Fleming, 819 S.W.2d at 247. But while Nauert knew that C.B. had made an outcry regarding sexual abuse, it is not clear from the record how much Nauert knew of the allegations. Moreover, even if Nauert knew that C.B.’s outcry described abuse five years in the past, it was appropriate for the doctor to examine C.B. to determine if the abuse was continuing or if the child suffered from a sexually transmitted disease as a result of the prior abuse. Thus, while Nauert was clearly gathering evidence for a possible prosecution, she was also conducting a legitimate medical examination. See Hughbank v. State, 967 S.W.2d 940, 943 (Tex.App.-Fort Worth 1998, no pet.). Nor was it necessary for Nauert to specifically inquire whether C.B. appreciated the need to be truthful. C.B. was ten years old, and Nauert testified that C.B. was sufficiently mature to be interviewed outside her grandmother’s presence. The evidence supports a finding that C.B. understood the need to be truthful. See Beheler v. State, 3 S.W.3d 182, 189 (Tex.App.-Fort Worth 1999, pet. refd). We conclude that it was not an abuse of discretion to admit Nauert’s hearsay testimony under rule 803(4). Point of error five is overruled.

Expert Opinion

Appellant contends the trial court erred by allowing Dr. Nauert to express an opinion on a matter outside her area of expertise. See Tex.R. Evid. 702. After establishing that the doctor had examined children who had been abused by family members and children who had been abused by strangers, the State asked if she had “notice[d] a difference between a delayed outcry between those who have been abused by a family member and those who have been abused by a stranger.” Over appellant’s objection that Nauert was not qualified to answer this question, she replied, “Not necessarily. The delay in outcry does have to do with often whether or not the person is still in contact with the perpetrator, and sometimes whatever situation comes up that makes them feel comfortable to finally tell somebody about it.”

Before this question was asked and answered, Nauert testified that over a period of twenty years she had examined hundreds of children who were suspected of being physically or sexually abused. She also testified that in her experience, it was not unusual for children to delay their outcry. The question to which appellant objected did not ask Nauert to express an opinion on the psychological or social reasons for a child to delay her outcry, but instead asked Nauert to state what she had observed during the course of her career. Even if the question is construed as calling for an opinion, the trial court did not abuse its discretion by concluding that Nauert was qualified by her experience to answer it. See id. Point of error six is overruled.

Extraneous Misconduct

In point of error four, appellant complains of the admission of what he contends was improper character conformity evidence. See Tex.R. Evid. 404(b).

During her direct examination, Jamie Cor-ley was asked by the prosecutor if, and how often, she had sex with appellant while living with him. She said that they had sex almost every night. The prosecutor then asked, “Was that your choice?” Corley replied, “He — he would get angry a lot of times if — he would get upset if we didn’t — .” At this point, appellant voiced a relevance objection. The objection was overruled and Corley continued, “He would get upset. I mean, it was just better to go ahead and clear the air than to argue.” The testimony then turned to other matters.

Appellant asserts that evidence he pressured Corley to have sex with him on a nightly basis was irrelevant to any issue in this case and served only to suggest that he was likely to have sexually assaulted his daughter because of his sexually aggressive character. Appellant did not, however, promptly object to this line of questioning. See Tex.R.App. P. 33.1; Tex.R. Evid. 103. Moreover, in his own testimony, appellant said that he and Corley had a “nonstop” sexual relationship, although he characterized her as being the more aggressive partner. Given the brevity of the complained-of testimony, appellant’s own testimony, and the lack of any emphasis on this subject during argument, we conclude that the admission of the challenged testimony, if error, did not harm a substantial right. See Tex.R.App. P. 44.2(b). Point of error four is overruled.

Confrontation

Appellant contends that by allowing C.B. to testify by means of a closed-circuit television system, the trial court denied him his Sixth Amendment right to confront the witnesses against him. U.S. Const, amend. VI. The use of closed-circuit television to take the testimony of a child victim is authorized by statute under certain circumstances. Tex.Code Crim. Proc. Ann. art. 38.071, §§ 1, 3 (West Supp. 2004-05). Because this procedure denies face-to-face confrontation, a trial court is constitutionally required to first hear evidence and make a case-specific determination that: (1) the use of the closed-circuit television system is necessary to protect the welfare of the particular child witness; (2) the child witness would be traumatized by the presence of the defendant; and (3) the emotional distress suffered by the child witness in the presence of the defendant is more than mere nervousness or excitement or some reluctance to testify. Maryland v. Craig, 497 U.S. 836, 855-56, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990); Hightower v. State, 822 S.W.2d 48, 51 (Tex.Crim.App.1991).

The trial court conducted a hearing on the necessity for using closed-circuit television, but did not make express findings of fact and conclusions of law. By permitting the use of the closed-circuit television system, however, the court implicitly made the constitutionally required findings. Appellant urges that the evidence adduced at the hearing is not sufficient to support these findings. We will review the court’s ruling for an abuse of discretion. Hightower, 822 S.W.2d at 53.

The only testimony adduced at the hearing was that of Christina Mason, a licensed professional counselor employed by a foster-care agency. Mason began counseling C.B. on a weekly basis in October 2002, one year before trial, when the child was temporarily placed in a foster home. Although C.B. had since gone to live with her grandmother, the weekly counseling sessions had continued. Responding to questions by the prosecutor, Mason testified:

Q Have you spoken with [C.B.] regarding testifying in court?
A Yes, I have.
Q Okay. What has her emotional reaction been when you discussed that with her?
A She gets very anxious. She says that she doesn’t want to have to testify in front of her father. She has become tearful on a couple of occasions when we’ve talked about it.
Q To what extent — well, let me say this: Do you believe that going through this trial process is — has important therapeutic value for [C.B.]?
A Yes, I do, because I think she’s going to get some closure on this whole situation and to really validate that this is not her fault.
Q Okay. With that said, what impact, if any, do you think it would have on [C.B.] to be called in to testify here in open court with her father in the room?
A She’s going to probably become very upset and anxious. In a sense, it might even be retraumatizing for her to have to deal with her father while — to have to see her father again.
Q Okay. Has she been advancing in her treatment as you’ve given it to her?
A Yes, she has. And the kids actually made a lot of advancement as soon as their visits with their father had stopped, and they were no longer seeing him regularly.
Q Okay. What effect on that advancement do you think testifying in front of her father would have?
A I think we would see a regression. We would probably see an increase in her anxiety and depressed mood again.

During cross-examination, Mason testified that when she first began working with C.B., the child would “become very anxious” and “would start to shut down” when asked to discuss her father. Mason said that she had seen “that same sort of knee-jerk anxiety” and “shutting-down reaction” when speaking to C.B. about testifying at appellant’s trial. Mason acknowledged that she did not “know for a fact” that testifying in front of her father would traumatize C.B., but she believed that it was “a strong possibility.” Mason also mentioned that C.B. had recently experienced an episode of bed-wetting, which Mason attributed to her anxiety about testifying.

Appellant argues that Mason’s testimony shows no more than that C.B. was reluctant to testify and would be nervous and uncomfortable in the courtroom. We disagree. Mason clearly testified to her belief that C.B. would be traumatized if she were required to appear in open court and testify in appellant’s presence. We conclude that Mason’s testimony supports findings that C.B. would be traumatized by appellant’s presence and not just by the courtroom generally, that the emotional distress that C.B. would suffer in appellant’s presence would be more than de minimis, and that the use of the closed-circuit television system was therefore necessary to protect C.B.’s welfare. On this record, the trial court did not abuse its discretion by overruling appellant’s Sixth Amendment objection and permitting C.B. to testify by means of closed-circuit television. Point of error seven is overruled.

Witness Rule

Appellant urges that the trial court erred by excusing Mason from the witness exclusion rule. Tex.R. Evid. 614. The rule requires a trial court, at the request of a party, to exclude witnesses from the courtroom so that they cannot hear each other’s testimony. During a break in C.B.’s testimony, the State asked the court to excuse Mason from the rule “for purposes of this witness’s testimony.” The court granted the motion over appellant’s objection and Mason later testified for the State.

The State asserts that appellant did not preserve error because he failed to object when Mason was called to testify. The State argues that when he objected to Mason’s presence in the courtroom during C.B.’s testimony, “he only had an assumption that she would later be called as a witness.” But since the State had taken the trouble to ask the court’s permission to excuse Mason from the rule, the assumption was well-founded. Appellant’s objection to Mason’s presence during C.B.’s testimony was sufficient to preserve the error.

The State made no effort to demonstrate that Mason’s presence in the courtroom was essential to the presentation of the State’s case. Tex.R. Evid. 614(3). She was not otherwise exempt from the rule. Under the circumstances, the court abused its discretion by permitting Mason to remain in the courtroom during C.B.’s testimony. See Moore v. State, 882 S.W.2d 844, 848 (Tex.Crim.App.1994).

Appellant argues that the violation of the rule was harmful because Mason’s testimony, during which she described C.B.’s reluctance to discuss the sexual abuse allegations during counseling sessions, “mirrored the complainant’s behavior while testifying.” Appellant urges that because Mason saw C.B. testify, she was able “to provide a psychological spin during her own testimony.” As we have already discussed, however, Mason first testified at the hearing on the State’s request to use closed-circuit television. Mason’s testimony at that hearing, which was before she heard C.B. testify, was substantially identical to her later trial testimony. On this record, we can state with fair assurance that hearing C.B. testify did not materially affect Mason’s testimony, and thus did not affect appellant’s substantial rights. Tex.R.App. P. 44.2(b); see Ladd v. State, 3 S.W.3d 547, 566 (Tex.Crim.App.1999). Point of error two is overruled.

Jury Argument

Appellant urges that the prosecutor improperly expressed his personal opinion regarding appellant’s guilt during jury argument. Immediately before he concluded his final argument at the guilt-innocence stage, the prosecutor stated, “I don’t know why he did this. I don’t want to know. I know he did this. Find him guilty, come back, and we’ll talk about what to do about it.” At this point, appellant’s counsel objected, “Objection, Your Honor, impermissible jury argument. The defense moves for a mistrial. That is ridiculous.” The motion for mistrial was overruled.

Assuming that the prosecutor’s remark was improper and that appellant’s objection was sufficient to bring the impropriety to the court’s attention, we conclude that an instruction to disregard would have been sufficient to cure the error. See Dinkins v. State, 894 S.W.2d 330, 357 (Tex.Crim.App.1995) (instruction to disregard will generally cure error in jury argument). The argument was not so extreme or manifestly improper as to render futile an instruction to disregard. See Hernandez v. State, 819 S.W.2d 806, 820 (Tex.Crim.App.1991). Because the error could have been cured by instruction, the court’s failure to grant a mistrial was not error. See Young v. State, 137 S.W.3d 65, 70 (Tex.Crim.App.2004). Point of error eight is overruled.

Double Jeopardy

The indictment in this cause contained nine counts. Counts one, four, and seven alleged that appellant intentionally or knowingly penetrated C.B.’s sexual organ with his penis on or about July 1, 1997, 1998, and 1999, respectively. See Tex. Pen.Code Ann, § 22.021(a)(l)(B)(I) (West Supp.2004-05). Counts two, five, and eight alleged that, on the same three dates, appellant intentionally or knowingly penetrated C.B.’s mouth with his sexual organ. See id. § 22.021(a)(l)(B)(ii). Counts three, six, and nine alleged that, on the same three dates, appellant intentionally or knowingly caused C.B.’s sexual organ to contact his sexual organ. See id. § 22.021(a)(l)(B)(iii).

Before testimony began, the State abandoned counts seven, eight, and nine. The remaining counts were submitted to the jury, which was instructed that the State was not required to prove the exact dates alleged in the indictment but could prove that the offenses occurred at any time prior to the presentment of the indictment and within the applicable limitations period. See Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App.1997). While deliberating appellant’s guilt, the jury sent a note to the court saying there was a disagreement among them regarding Nauert’s testimony as to “how many times that [C.B.] told her it happened.” The court had the reporter read to the jury Nauert’s testimony that she did not discuss this subject with C.B. The jury thereafter returned verdicts convicting appellant on counts one, two and three and acquitting him on counts four, five, and six.

The Double Jeopardy Clause protects against a second prosecution for the same offense following a conviction, a second prosecution for the same offense following an acquittal, and multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 415,100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Cervantes v. State, 815 S.W.2d 569, 572 (Tex.Crim.App.1991). Appellant contends that his conviction on counts one and three violated the guarantee against multiple punishments for the same offense because there is no evidence of genital-to-genital contact as alleged in count three other than that incident to the vaginal penetration for which he was convicted under count one.

A person who commits more than one discrete sexual assault against the same complainant may be convicted and punished for each separate act, even if the acts were committed in close temporal proximity. Vick v. State, 991 S.W.2d 830, 833 (Tex.Crim.App.1999); Vernon v. State, 841 S.W.2d 407, 410 (Tex.Crim.App.1992). The statutes do not, however, authorize “ ‘stop-action’ prosecutions.” Patterson v. State, 152 S.W.3d 88, 92 (Tex.Crim.App. 2004). A conviction for a completed sexual assault bars conviction for conduct that is demonstrably part of the commission of that offense. Id. Thus, penile contact with mouth, genitals, or anus in the course of penile penetration is subsumed in a conviction for the penetration. Id.

In Hutchins v. State, 992 S.W.2d 629, 632 (Tex.App.-Austin 1999, pet. ref'd), the defendant was convicted of aggravated sexual assault of a child and indecency with a child by contact based on evidence showing only a single act of penetration. Because the only contact proved was that incident to the penetration, this Court set aside the indecency by contact conviction on double jeopardy grounds. Id.; see also Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim.App.1998). In Patterson v. State, 96 S.W.3d 427, 432 (Tex.App.-Austin 2002), aff'd, 152 S.W.3d 88 (Tex.Crim.App.2004), the defendant was convicted of aggravated sexual assault of a child by penetration, indecency with a child by contact, and indecency with a child by exposure based on evidence showing that the only contact or exposure was that incident to the penetration. This Court held that the indecency convictions were jeopardy-barred. Id. at 432-33.

Although Hutchins and Patterson involved convictions for greater inclusive and lesser included offenses, the same principle applies to convictions for aggravated sexual assault by penetration and by genital-to-genital contact. If both convictions are based on the same act, they constitute impermissible multiple convictions for the same offense. Genital-to-genital contact in the course of penile penetration is subsumed in the act of penetration. Patterson, 152 S.W.3d at 92.

The court’s charge in this cause authorized the jury to convict appellant of two separate acts of sexual assault by genital penetration, two separate acts of sexual assault' by oral penetration, and two separate acts of sexual assault by genital-to-genital contact. The prosecutor explained the court’s charge to the jury during his argument:

[W]hen he puts it in her mouth and then he pulls away and then he puts it against and presses and doesn’t quite make it in, and then a little later, comes back and forces his penis inside of her, that’s three different acts. That’s three different charges. That’s three different guilty verdicts. And if he did it more than one time, that’s four and five and six.

The jury’s note to the trial court clearly shows that the jury was concerned with whether the State proved that each alleged act was in fact committed twice. On this record, the jury’s decision to convict appellant of the acts alleged to have been committed on or about July 1, 1997, but acquit him of the acts alleged to have been committed on or about July 1, 1998, compels the conclusion that the jury found appellant guilty of committing each of the three alleged acts only once.

The State does not refer us to any evidence that appellant touched C.B.’s sexual organ with his sexual organ without penetration. C.B; told Corley that she “was touched in her vaginal area” and “it bled and hurt.” This testimony suggests penetration. C.B. told Officer Tippie that appellant “forced me to have sex with him” and “put his penis in my mouth and here.” Once again, the evidence suggests penetration. Doctor Nauert testified that C.B. described being touched “in her mouth and her vaginal area,” and that she, Nauert, understood this to mean penetration. C.B.’s own testimony was that appellant “raped me,” which in lay terms again suggests penetration. We do not find any evidence supporting the conclusion that appellant touched C.B.’s sexual organ with his sexual organ except as an incident to the penetration of C.B.’s sexual organ. Because the jury convicted appellant of only one act of genital penetration, it necessarily follows that the convictions on that count and on the genital-to-genital contact count were based on the same act. Appellant’s conviction on count three therefore constituted an unauthorized second conviction for the same offense in violation of the Double Jeopardy Clause. Patterson, 152 S.W.3d at 92; Patterson, 96 S.W.3d at 432-33; Hutchins, 992 S.W.2d at 632.

We sustain point of error nine. When a defendant is convicted of two offenses in violation of the double jeopardy guarantee, the general rule is to set aside the conviction for the offense carrying the less serious punishment. Landers v. State, 957 S.W.2d 558, 560 (Tex.Crim.App.1997). In the instant cause, the two offenses carry the same punishment. Therefore, we will set aside the conviction on count three.

There is a single judgment of conviction. The judgment is reformed to reflect convictions on counts one and two only and to delete all references to conviction and sentence on count three, and that count is dismissed. As reformed, the trial court’s judgment is affirmed.

      . Appellant's wife, the mother of his two daughters, was fatally struck by an automobile in 1997.

      . Appellant did not object to the absence of the findings or request that they be made, although he now complains of their absence.

      . We infer from the State’s request that the rule had been invoked.


author: WANDA McKEE FOWLER, Justice.

text:
    Jacqueline M. POLK, Appellant v. SOUTHWEST CROSSING HOMEOWNERS ASSOCIATION, Sammy Deleon, W. Austin Barsalou, Parker & Company, Inc., Consulting Management and Investments, Vicki Ward, Dora M. Parker, and Joel C. Clouser, Sr., Appellees.
    No. 14-04-00499-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 12, 2005.

      Sandy C. Robinson, III, Huntsville, AL, for appellants.
    Mark E. Roberts, Marc D. Markel, M. David Frock, W. Austin Barsalou and John Bradley Mitchell, Houston, for appellees.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and FROST.
   OPINION

WANDA McKEE FOWLER, Justice.

Appellant Jacqueline Polk contends the trial court lacked jurisdiction because her case’s transfer to another district court did not comply with local rules. Additionally, Polk asserts the trial court erred when it dismissed Polk’s case without giving her notice and a hearing, and further erred when it denied her motion to reinstate. We affirm.

Factual and Procedural Background

Polk Files Suit

The following events led Polk to file the lawsuit that forms the basis of this appeal. Appellee Southwest Grossing Homeowners Association initially filed a suit to foreclose on Polk’s home after Polk failed to pay her homeowners association dues. Prior to this initial lawsuit by Southwest Crossing, Polk had commenced bankruptcy proceedings and a stay was imposed. Despite the stay imposed by Polk’s bankruptcy proceedings, appellee DeLeon was able to purchase the property at a foreclosure sale. DeLeon then filed his own suit, a forcible detainer action against Polk. In the third suit, which underlies this appeal, Polk sued Southwest Crossing and De-Leon, along with others, seeking declaratory and injunctive relief along with money damages. Polk contended the defendants violated the automatic stay imposed by her bankruptcy proceedings and, as a consequence, the foreclosure was improper.

The 268th District Court Transfers Polk’s Case

Polk filed her lawsuit in the 268th District Court of Fort Bend County on July 29, 1999. All defendant-appellees filed general denials. Later, Southwest Crossing filed a Suggestion of Bankruptcy and requested that the 268th District Court stay its proceedings until further order of the bankruptcy court. Only very limited discovery occurred until late 2003.

The last document filed by Polk was her response to Southwest Crossing’s Request for Admissions in 2001. Importantly, Polk’s attorney, Mr. Sandy Robinson, had moved from Houston and this document reflected his new Alabama address. However, the record does not reflect that Mr. Robinson notified the court of his new address until 2004. In August of 2003, the bankruptcy court lifted its stay to allow Southwest Crossing to resume the lawsuit filed in the 268th District Court.

At some point, the case was transferred from the 268th District Court to the 400th District Court of Fort Bend County. Although the local rules of Fort Bend County require a written order for such a transfer, the record does not contain one, nor do any of the parties contend that such an order otherwise exists. Despite the lack of a written transfer order, the 400th District Court handled the remainder of Polk’s case.

The 400th District Dourt Dismisses Polk’s Case

On December 29, 2003, appellees Parker <& Company, Vicki Ward and Dora Parker filed a Motion to Dismiss for Want of Prosecution. Appellees asserted the case had been pending for over four years and that Polk had failed to take affirmative action to secure an adjudication on the merits. The 400th District Court submitted the motion to dismiss without oral hearing on January 26, 2004. In February of 2004, the 400th District Court judge granted the motion and dismissed Polk’s case without prejudice.

Following the dismissal, the District Clerk sent notices to each attorney of record, notifying them that the case had been dismissed. But Polk’s attorney, Mr. Robinson, did not receive the first notice, which was sent to his former Houston address. The clerk mailed a second notice to the attorney’s Alabama address. When Polk’s attorney became aware of the dismissal, he filed a Notice of Change of Address along with a Motion for Reinstatement. The motion was deemed overruled by operation of law. Polk then filed a motion for reconsideration and requested a hearing. The 400th District Court held a hearing on Polk’s motion for reinstatement and signed an order denying the motion on May 10, 2004.

Polk Appeals

On appeal, Polk raises four issues. First, Polk contends the 400th District Court lacked jurisdiction to dismiss her case because there was no written transfer order as the local rules require. Second, Polk asserts the trial court abused its discretion by failing to give her notice and an oral hearing regarding appellees’ Motion to Dismiss for Want of Prosecution. Third, Polk urges us to find that the trial court’s subsequent hearing on her motion to reinstate failed to cure the lack of notice and a hearing on the motion to dismiss. Fourth, Polk asserts the trial court abused its discretion when it denied her motion to reinstate.

Analysis

The 100th District Comt Had Jurisdiction Over Polk’s Case

Polk initially urges us to find that the lack of a written transfer order, which the local rules of Fort Bend County require, deprived the 400th District Court of jurisdiction to decide Polk’s case. Consequently, Polk argues the trial court’s order dismissing her claim for want of prosecution was void. We disagree that the lack of a transfer order deprived the 400th District Court of jurisdiction over Polk’s case.

Texas Rule of Civil Procedure 830(e) allows district judges to transfer a case from one court to another. Tex.R. Civ. PROC. 330(e). “By force of Rule 330 the jurisdictions of [the district] courts and the functions of the judges thereof have been integrated.... ” Harkness v. McQueen, 207 S.W.2d 676, 679 (Tex.Civ. App.-Galveston 1947, no writ). Consequently, Polk does not have a protected proprietary interest in having her case heard by a particular district judge. In re Rio Grande Valley Gas Co., 987 S.W.2d 167, 173 (Tex.App.-Corpus Christi 1999, no pet.). Counties may adopt local rules to further govern the transfer of cases from one district court to another if they are not inconsistent with Rule 330(e). See Centennial Ins. Co. v. Commercial Union Ins. Cos., 803 S.W.2d 479, 482 (Tex.App.-Houston [14th Dist.] 1991, no writ) (“[N]o [] court in Texas is authorized or empowered to enact or amend rules of civil procedure that would be inconsistent with the rules promulgated by the supreme court.”); see also Mayad v. Rizk, 554 S.W.2d 835, 837 (Tex.Civ.App.-Houston [14th Dist.] 1977, writ refd n.r.e.) (stating local rules that conflict with rules of civil procedure cannot be given effect). Fort Bend County’s local rules provide the following:

Any case may be transferred from one court to another by written order of the judge of the court from which the case is transferred; provided, however, that the transfer must be with the written con sent of the court to which the case is transferred.

FoRT Bend (Tex.) Civ. Dist. Ct. Loa R. 3.2.5 (emphasis added).

Polk correctly points out that the transfer of her case did not comply with Fort Bend County’s local rule — no written order of the 268th District Court judge, or a written consent of the 400th District Court judge, appears in the record. However, Polk provides no legal authority to support her contention that the lack of a written transfer order deprived the 400th District Court of jurisdiction. If a district court transfers a case that substantively does not qualify for transfer, the court that receives the improperly transferred case lacks jurisdiction and the error is reversible on appeal. See In re Rio Grande Valley Gas Co., 987 S.W.2d at 175-76 (finding local rules did not authorize a unilateral transfer and holding that judge’s attempt to effect such a transfer was void).

But, a failure to comply with the local rule’s procedural requirements does not deprive a court of its jurisdiction. See Garcia v. State, 901 S.W.2d 731, 732-33 (Tex.App.-Houston [14th Dist.] 1995, pet. ref d) (finding trial court’s mistake, in failing to file written transfer order, was a procedural mistake and did not deprive the court of jurisdiction); see also Ex parte Bowers, 671 S.W.2d 931, 935-36 (Tex.App.Amarillo 1984, no writ) (holding untimely filed motion to transfer was procedurally erroneous but that the procedural error did not deprive the court of jurisdiction); see also Starnes v. Holloway, 779 S.W.2d 86, 96 (Tex.App.-Dallas 1989, writ denied) (finding local rule was purely procedural, rather than jurisdictional, in light of fact that rules of civil procedure allow judges to freely transfer cases). While the transferring and receiving courts should have complied with their own local rules regarding the transfer of cases, their failure to do so did not deprive the 400th District Court of jurisdiction over Polk’s case. We overrule Polk’s first issue.

Polk Was Entitled to Notice and a Hearing on the Motion to Dismiss

Polk asserts, in her second issue, that the trial court’s failure to provide notice that her case might be dismissed and an opportunity to be heard requires reversal. The rules of civil procedure and due process require courts to provide litigants with notice and an opportunity to be heard before the court dismisses the case. Tex.R. Civ. P. 165a (providing for notice and a hearing before a case is dismissed); Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.1999) (requiring notice and an opportunity to be heard); Dispensa v. Univ. State Bank, 987 S.W.2d 923, 926-27 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (same) (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) and Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). However, as we explain below in response to Polk’s third issue, any error in failing to provide Polk with notice and a hearing was cured. Polk ultimately received notice and an opportunity to be heard in connection with her motion for reinstatement. Therefore, she was not harmed by the lack of notice and a hearing on the motion to dismiss. See Jimenez v. Transwestern Prop. Co., 999 S.W.2d 125, 128-29 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Because Polk cannot demonstrate any harm, Tex.R.App. P. 44.1(a), we overrule her second issue.

The Subsequent Hearing Cured the Failure to Provide Notice and a Hearing on the Motion to Dismiss

In her third issue, Polk urges this comet to find that the subsequent hearing on her motion to reinstate did not cure the failure to provide notice and a hearing on appellees’ motion to dismiss. Polk concedes we have already held that a subsequent hearing on a party’s motion to reinstate cures any error in failing to provide notice or to hold a hearing on a previous motion to dismiss. Jimenez, 999 S.W.2d at 129. But Polk urges us to carve an exception from this rule when, as in her case, the hearing on the motion to reinstate is not held until after 75 days have elapsed from the trial court’s signing of the order of dismissal. Because the trial court retained plenary jurisdiction when it held the hearing on Polk’s motion to reinstate, we decline to do so. Id. (finding due process satisfied when hearing on motion to reinstate was held at a time when trial court had full control of the judgment).

As long as the trial court had control of the judgment when it held the hearing on Polk’s motion to reinstate, this satisfies Polk’s due process rights applicable to the dismissal of her case. See id. A verified motion to reinstate extends the trial court’s plenary power to the same extent as a motion for new trial. Id. (citing Macarangal v. Andrews, 838 S.W.2d 632, 633 (TexApp.-Dallas 1992, orig. proceeding)). Polk filed her motion to reinstate on March 2, 2004, which is within the time frame Rule 165a requires. Tex.R. Civ. P. 165a(3) (requiring motion to reinstate to be filed within 30 days from date trial court signs the order of dismissal). The motion to reinstate was deemed overruled by operation of law 75 days later, on May 17, 2004. Tex.R. Civ. P. 165a(3). Because Polk timely filed her motion to reinstate, the trial court’s plenary power continued to June 16, 2004, which was 30 days beyond the date Polk’s motion to reinstate was deemed overruled by operation of law. Tex.R. Civ. P. 165a(3) (“If a motion to reinstate is timely filed ... the trial court, regardless of whether appeal has been perfected, has plenary power to reinstate the case until 30 days after all such timely filed motions are overruled, either by a written and signed order, or by operation of law, whichever occurs first.”). The trial court held a hearing on Polk’s motion to reinstate on May 10, 2004 while it still had control of the judgment; therefore, under Jimenez, this hearing cured the lack of notice and hearing on appellee’s motion to dismiss. We overrule Polk’s third issue.

Denying Polk’s Motion to Reinstate Was Not an Abuse of Discretion

Finally, we turn to Polk’s fourth issue to determine whether the trial court erred in denying Polk’s motion to reinstate. At the reinstatement hearing, Polk received the same hearing with the same burden of proof she would have received had there been a hearing on appellee’s motion to dismiss. Jimenez, 999 S.W.2d at 129 (citing State v. Rotello, 671 S.W.2d 507, 508 (Tex.1984)). We review a trial court’s decision on a motion to reinstate for an abuse of discretion. Id. (citing City of Houston v. Malone, 828 S.W.2d 567, 568 (Tex.App.-Houston [14th Dist.] 1992, no writ)).

A trial court abuses its discretion when it acts arbitrarily or without reference to guiding rules and principles. Id. (citing Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex.1986)(per curiam)). In this case, neither the order of dismissal nor the order denying reinstatement specified the grounds on which they were based. Polk did not request findings of fact and conclusions of law and the trial court did not make them. Therefore, we will uphold the trial court’s decision if any theory of law applicable to the case has support in the evidence. Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 252 (TexApp.-Houston [14th Dist.] 1999, pet. denied) (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990)(per curiam)). “The trial court’s authority to dismiss for want of prosecution stems from two sources: (1) Rule 165a of the Texas Rules of Civil Procedure, and (2) the court’s inherent power.” Villarreal, 994 S.W.2d at 630. Appellees’ motion to dismiss raised both sources and we must affirm if we find either source would have authorized the trial court to dismiss Polk’s case.

The trial count could not properly dismiss under rule 165a.

The trial court can dismiss under Rule 165a in two circumstances — if a party fails to appear for a hearing or trial of which the party had notice, or if the case is not disposed of within the time standards promulgated by the Texas Supreme Court. Tex.R. Civ. P. 165a(l), (2). Under Rule 165a, the court must dismiss unless good cause is shown for the case to be maintained. Tex.R. Civ. P. 165a(l). The trial court should reinstate the case if it finds the party or the party’s attorney’s failure “was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained.” Tex.R. Civ. P. 165a(3).

Because Polk and her attorney did not have notice of the prospect of dismissal, a dismissal under Rule 165a would only be proper for failing to comply with the time standards promulgated by the Texas Supreme Court. Rule 6 of the Judicial Rules of Administration requires judges to ensure, so far as reasonably possible, that civil non-jury cases are brought to trial or final disposition within 12 months from appearance date, and that civil jury cases are brought to trial or final disposition within 18 months from appearance date. Tex.R. Jud. Admin. 6. Polk’s case had not been brought to trial or disposition for almost five years from the defendants’ appearance dates. Therefore, the trial court did not abuse its discretion in granting appellees’ motion to dismiss.

However, at the motion for reinstatement, Polk’s attorney’s stated that the failure to prosecute the case was a result of his move from Houston to Alabama, and not intentional or the result of conscious indifference. This is the type of accident or mistake contemplated by Rule 165a and, if failure to comply with the time standards set forth in the judicial rules of administration were the sole reason for dismissal, Rule 165a would require the trial court to reinstate the case. See Mayad, 554 S.W.2d at 838 (holding Craddock standard should be used for Rule 165a); Ferguson & Co. v. Roll, 776 S.W.2d 692, 698 (Tex.App.-Dallas 1989, no writ) (finding loss of lawsuit papers was an accident or mistake and not the result of an intentional act or conscious indifference). However, in the absence of a statement to that effect by the trial court, either in the order of dismissal, the order denying reinstatement, or conclusions of law, we cannot presume that was the reason. Instead, we turn now to whether the court’s inherent authority permitted dismissal.

The trial court’s inherent authority permitted dismissal

As mentioned previously, Polk has not negated the possibility that the trial court dismissed her case and denied reinstatement based on its inherent authority. When the court relies on its inherent authority to dismiss a case, the trial court may dismiss the case if it has not been prosecuted with due diligence. Villarreal, 994 S.W.2d at 630; Jimenez, 999 S.W.2d at 129 (citing Rotello, 671 S.W.2d at 509). “In determining whether a party has demonstrated a lack of diligence in prosecuting a claim, a trial court may consider the entire history of the case, including the length of time the case was on file, the extent of activity in the case, whether a trial setting was requested, and the existence of reasonable excuses for delay.” Id. Polk’s case was filed in 1999 and was on file nearly five years before it was dismissed. No discovery occurred after 2001. The record does not reflect that Polk ever requested a trial setting and the only excuse offered for the delay was that Polk’s attorney forgot about the case after he moved to Alabama. Under these facts, we cannot say the trial court abused its discretion in denying Polk’s motion to reinstate. Because the trial court could have properly dismissed Polk’s case and denied her motion to reinstate under its inherent power, we overrule Polk’s final issue.

Conclusion

The 400th District Court had jurisdiction over Polk’s case. Any error in failing to provide Polk with notice and a hearing on the motion to dismiss was cured by the subsequent hearing on Polk’s motion to reinstate. The trial court did not abuse its discretion when it denied Polk’s motion to reinstate after granting appellees’ motion to dismiss. Because we have overruled all of Polk’s issues, we affirm the judgment of the trial court.

      . In addition to declaratory and injunctive relief, Polk alleged negligence, negligent misrepresentation, wrongful foreclosure, civil conspiracy, and violations of the Deceptive Trade Practices Act and Texas Finance Code.

      . The record contains defendant-appellees’ requests for admissions and Polk’s responses to one set of requests for admissions.

      . Had Polk complained in the trial court about the improper transfer, our answer might have been different, but Polk failed to raise this issue before submitting to the 400th District Court's jurisdiction. See Garcia, 901 S.W.2d at 733 (finding the failure to timely file a plea to the jurisdiction waives a complaint that there is no transfer order, and, further finding that later complaints about the court’s jurisdiction could not preserve error if appellant had already appeared and submitted to the court’s jurisdiction) (citing Daniels v. State, 171 Tex.Crim. 596, 352 S.W.2d 267, 268 (1961)); see also Davis v. Davis, No. 13-01-707-CV, 2003 WL 21355239, *1 (Tex. App.-Corpus Christi June 12, 2003, no pet.) (not designated for publication) (finding any error in transfer of case without proper motion was waived by failure to make a timely plea to the jurisdiction). Polk filed a motion for reinstatement in the 400th District Court in early March of 2004. This motion contained no complaints about the lack of a transfer order or the trial court’s purported lack of jurisdiction. From the record, it appears Polk first suggested the improper transfer deprived the court of jurisdiction in her motion for reconsideration, which was filed in May of 2004.

      . These two sources of authority provide three potential vehicles for a trial court to dismiss a case for want of prosecution — two are provided for in Rule 165a and the third is the trial court’s inherent authority. See 3V, Inc. v. ITS Enters., Inc., 40 S.W.3d 533, 541 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (listing the three circumstances when a trial court may dismiss for want of prosecution and stating the authority for these dismissals is derived from Rule 165a and the court's inherent power to manage its own docket).

      . Although appellees filed a suggestion of bankruptcy in this lawsuit, automatically staying the case, and Polk's bankruptcy proceedings were not dismissed until August of 2003, Polk still could have prosecuted her suit. This is so because Polk initiated this lawsuit and a plaintiff involved in bankruptcy proceedings can still prosecute the lawsuit. MacGregor v. Rich, 941 S.W.2d 74, 76 n. 1 (Tex. 1997) (per curiam) (“An automatic stay under federal law applies to suits and claims brought against a bankruptcy debtor, but not to claims brought on the debtor’s behalf.”) (citing 11 U.S.C. § 362).