author: DIXON W. HOLMAN, Justice.

text:
    Ex parte Kenneth J. WASHINGTON.
    No. 2-04-408-CR.
    Court of Appeals of Texas, Fort Worth.
    June 23, 2005.

      John Marion Harding, Fort Worth, J., for appellant.

      Tim Curry, Crim. Dist. Atty., Charles M. Mallín, Asst. Crim. Dist. Atty., Chief of the Appellate Section, Edward L. Wilkinson, D.D. Rhoden, Taylor Nguyen, Asst. Crim. Dist. Atty’s, Fort Worth, for Appel-lee.
    PANEL B: HOLMAN, GARDNER, and McCOY, JJ.
   OPINION

DIXON W. HOLMAN, Justice.

After the trial court granted Appellant’s motion for mistrial, Appellant filed an application for writ of habeas corpus alleging further prosecution was barred by double jeopardy. The trial court granted the writ, held a hearing, and denied the relief sought by Appellant. In three issues, Appellant claims the witnesses’ testimony that triggered the granting of the mistrial was attributable to the State because the mens rea of the witnesses in violating the court’s motion in limine is imputed to the prosecution, and the improper statements of the witnesses raise a claim of double jeopardy under the Texas and United States Constitutions. We affirm.

BACKGROUND

Appellant was charged with three offenses arising out of the same incident: aggravated assault causing bodily injury to a public servant while using a deadly weapon (a motor vehicle); aggravated assault causing serious bodily injury to a public servant while using a deadly weapon (a motor vehicle); and failing to stop and render aid after becoming involved in an accident that resulted in injury to a public servant. During pretrial proceedings, the trial court granted Appellant’s request that any matters involving any extraneous offense or extraneous conduct not be presented to the jury until the court had an opportunity to review the proposed testimony.

On April 19, 2004, a jury was chosen and trial on the merits began the next day. As will be discussed in detail herein, after two testifying police officers violated the motion in limine on three separate occasions by mentioning possible extraneous offenses committed by Appellant, the court granted Appellant’s motion for mistrial.

On May 26, 2004, Appellant filed an application writ of habeas corpus contending that because of the improper statements of the State’s witnesses, the case should be dismissed on double jeopardy grounds. The trial court granted the writ and on August 3, 2004 held a writ hearing. At the conclusion of the hearing, the trial court denied the relief sought in Appellant’s application for writ of habeas corpus.

THE THREE INSTANCES OF ALLEGED IMPROPER TESTIMONY

Officer Kelley M. Caruthers from the Fort Worth Police Department testified that on February 13, 2003 he received a police broadcast concerning a possible hit- and-run driver; the broadcast named and described the suspect. The prosecutor then asked Caruthers,

Q. What name did you learn?
A. I haven’t got it handy. It’s a different name, Za’id Shakir, something.
Q. Okay. Did you write a report based on this?
A. No, ma’am.
Q. What did you do after you heard the initial broadcast?
A. I went to the address on Burton.
Q. Whose address did that turn out to be?
A. Kenneth’s mother.
Q. Do you know her name?
A. No, ma’am.
Q. How did you know it was Kenneth’s mother?
A. I found out.
Q. Did she identify herself as his mother?
A. When I went up there and asked the second time.
Q. So you went there twice?
A. Three or four times.
Q. Three or four times. Initially when you went there, what type of information did you learn?
A. I went there originally with that other name, and she said she didn’t know him, and I left, and I found out that Kenneth had been to prison and changed his name. His original name was Kenneth Washington—
MR. HARDING: Your Honor, we’re going to have to object—
THE WITNESS: I’m sorry.
MR. HARDING: — to the last remark that was made by Officer Caruthers, and ask that the jury be instructed to disregard it.
THE COURT: Okay. Jury will disregard the last comment of the officer.
MR. HARDING: And also, Your Honor, we’d like to ask for a mistrial.
THE COURT: Denied.
MR. HARDING: Excuse me one moment.
(Brief pause)
MR. HARDING: Your Honor, can we approach?
(At the bench, on the record)
MR. HARDING: Your Honor, I know it was inadvertent, I’m well aware of that, and I’m sure it was inadvertent on Officer Caruthers part, but I just think it was so prejudicial of this witness, I think we need to be heard outside the presence of the jury on that. That just slipped completely out. I’m—
THE COURT: It was clearly inadvertent.
MR. HARDING: I think it was. I don’t doubt that.
THE COURT: It’s not worth a mistrial, so you’ve got your objection and your adverse ruling.
MS. NGUYEN: And I agree it was inadvertent. I can instruct my witness—
MR. HARDING: I know that. Okay. The only thing I might do, just let everybody know, if I get real ambitious, I might check a little law and see if I can find anything. But for now I guess—
THE COURT: Your request for a mistrial is denied.
MR. HARDING: Is denied, okay. The other thing I’d ask is I think Officer Caruthers knows — I think he knows it slipped out. I got that impression, so—
THE COURT: He mumbled under his breath that he was sorry or oops. It was clearly an inadvertent statement on behalf of the officer based on what he was able to observe and hear.
MR. HARDING: Yeah, I think it was. It still has a terribly prejudicial effect on our guy.
MS. NGUYEN: Okay.
MR. HARDING: And you will instruct them to disregard?
THE COURT: I already have.
MR. HARDING: You did?
THE COURT: Yes.
MR. HARDING: Oh, one more thing. I’m sorry.
MR. DICKSON: He finds our client in a crack house. We don’t want to go into that.
THE COURT: You aren’t going into that, are you?
MS. NGUYEN: I was the location. I believe he can describe the address and location, but—
THE COURT: He can go into the address and location and ask if the Defendant lived there, but that’s about it. We’re not going into anything else. Okay?
MR. DICKSON: Can she just whisper in his ear and make sure that doesn’t slip out either?
MR. HARDING: That would be fíne. I’m just afraid we’re so close to the jury.
THE COURT: She’ll do it quietly.

Several minutes later, during the prosecutor’s continued direct examination of Officer Caruthers, the following occurred:

Q. (BY MS. NGUYEN) What did you do when you saw him in the car?
A. I told him that I had a warrant for his arrest for the criminal mischief at 5500—
MR. HARDING: Your Honor, I’m going to have to make another objection based on that, and also — and, of course, the motion in limine, and I would ask that the jury be instructed to disregard that.
THE COURT: All right. Retire to your jury room. Let’s take our midaft-ernoon break.
(Jury not present)
THE COURT: Everyone can be seated. Where is this criminal mischief coming from?
MS. RHODEN: Mr. Harding has a motion to suppress based on his arrest. We know there was a valid warrant for his arrest. He was arrested for this. MR. HARDING: I believe we also have a motion in limine with respect to any other crimes, acts, Your Honor.
THE COURT: Well, it’s my understanding that y’all were going to give me heads up on the motion—
MS. RHODEN: The answer should have just been he had an arrest warrant.
THE COURT: Well, somebody hasn’t prepped the witnesses enough to tell them what to testify to and what not to testify to. This is the second violation that we’ve had here. I suggest we take a break. Tell your witness what he can testify to and what he can’t testify to, and we’re going to come back.
MR. HARDING: Your Honor, for what it’s worth, I’m sure it’s inadvertent, but still, it’s very prejudicial to my client.
THE COURT: So what do you want?
MR. HARDING: Mistrial.
THE COURT: Denied. That’s two strikes, though.

On the next day of trial, the State called Detective Raymond D. Wilson, Jr. of the Fort Worth Police Department. Detective Wilson investigated the hit-and-run accident that occurred on February 13, 2003. He surveyed the scene, took statements from the witnesses involved, and attempted to find the suspect. He was advised that a vehicle matching the description of the hit-and-run car had been found in another location. He testified that he requested that the police tow the car to the Fort Worth auto pound. The prosecutor then continued direct examination as follows:

Q. And did you make any requests or do anything as it related to the car being in the auto pound? Did you send Detective Wangler to collect some evidence?
A. Later in the afternoon, yes.
Q. And for what purpose?
A. I was told that there was some possible identification located in the vehicle, wallet identification. Through a subse quent interview I was also told that there may be narcotics in the vehicle.
MR. HARDING: Your Honor, I’m going to have to object at this point.
THE COURT: The jury will retire to the jury room. (Jury not present)
THE COURT: Mr. Harding?
MR. HARDING: Your Honor, I didn’t have the opportunity since you retired the jury to request obviously an instruction to disregard, and also a mistrial, Your Honor.
THE COURT: Are you asking for that now?
MR. HARDING: Yes, indeed, I am. THE COURT: That’s granted.
MR. HARDING: Thank you, sir.

THE WRIT HEARING

After the trial court granted the mistrial, Appellant filed an application for writ of habeas corpus asserting that because of the three separate instances of police officers improperly testifying about extraneous bad acts and prior offenses or misconduct alleged to have been committed by Appellant, further prosecution was barred under the double jeopardy clauses of the Texas and United States Constitutions. Three witnesses testified at the writ hearing: the trial prosecutors, Dawn Darice Rhoden and Trang Taylor Nguyen, and Detective Raymond D. Wilson, Jr.

Trang Taylor Nguyen, co-prosecutor at Appellant’s trial, testified that she had meetings with Officer Kelley Caruthers before trial. When asked whether she had told Caruthers not to mention any extraneous bad acts, misconduct, or other crimes, she replied, “I believe we warned our officers before trial.” However, upon further questioning, she .acknowledged that the first time she specifically remembers telling Caruthers not to mention any extraneous offense or any sort of misconduct on Appellant’s part was after Caruthers had already told the jury that Appellant had been to prison and changed his name.

Dawn Darice Rhoden testified that she was the lead prosecutor in the case, and in reviewing the case with Detective Raymond Wilson before trial, she stressed to him that under no circumstances was he to mention an extraneous offense or any other bad act possibly committed by Appellant in connection with this case. However, the concept of possible narcotics being in Appellant’s car was central to the State’s case, so Rhoden discussed it in detail with Wilson during their pretrial meetings. During the writ hearing, Rho-den explained that the identity of the driver of the hit-and-run car was a contested issue and that she had anticipated that at some point during the trial, Wilson would testify that Appellant had told the police that his car had been stolen but that he did not report the theft to the police because there were narcotics in the ear and he did not want to get into trouble. Wilson would then tell the jury that because of this statement by Appellant, Wilson looked inside Appellant’s car for narcotics and found none. Rhoden testified that during her pretrial conversations with Wilson, she never specifically instructed him not to gratuitously mention the topic of possible narcotics being in Appellant’s car.

Detective Raymond D. Wilson, Jr. testified at the writ hearing that prior to trial, Rhoden met with him and told him not to mention Appellant’s previous criminal history, or any bad acts or extraneous offenses of Appellant. However, Rhoden never told him not to testify about narcotics. He acknowledged that being in possession of narcotics is against the law. But he stated that when he made the comment in front of the jury that he had been told that there may be narcotics in Appellant’s vehicle, he did not think this was an extraneous or bad act of the Appellant. His reasoning was that if Appellant’s counsel had not objected and Wilson had been permitted to continue with his answer, he would have told the jury that no narcotics were discovered in Appellant’s car; therefore, in his mind, he did not mention an extraneous or bad act on the part of Appellant.

At the conclusion of the writ hearing, the trial court denied the relief requested.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On September 7, 2004, the trial court issued the following findings of fact and conclusions of law:

FINDINGS OF FACT
1. On April 20 and 21, 2003, trial was held in the above styled and numbered cause.
2. The Court granted motion in limine regarding reference to or introduction of extraneous conduct alleged to have been committed by the Defendant to allow the Court to rule on its admissibility.
3. Officer Kelly Caruthers of the Fort Worth Police Department, testifying for the State during the case in chief, testified in response to the question “... initially when you went there, what type of information did you learn?”, the answer of the witness was “I went there originally with that other name, and she said she didn’t know him, and I left, and I found out that Kenneth had been to prison and changed his name. His original name was Kenneth Washington ...” (R. 11-165,166).
4. The defense timely objected, requested an instruction to disregard, and moved for a mistrial. The Court sustained the objection, gave the instruction to disregard and denied the motion for mistrial. The lawyers for the State, the Defendant, and the Court believed, based upon the totality of the circumstances, that the testimony of Officer Carruthers cited above, was inadvertent on the part of the witness. (R.II-166,167,168).
5. Later in his testimony, the following testimony was elicited from Officer Caruthers. ‘What did you do when you saw him in the car?” Officer Caruthers answered “I told him that I had a warrant for his arrest for the criminal mischief at 5500 ...” The Defense timely objected and asked that the jury be instructed to disregard the testimony of the officer. The Court retired the jury, and after admonishing the State to make sure that the witnesses did not violate the motion in limine, denied the Defendant’s motion for mistrial. Again, the Defendant’s counsel told the Court that he believed Officer Caruthers testimony was inadvertent. (R. 11-174,175,176).
6. There was no request for an instruction to disregard in the presence of the jury and no request for a mistrial in the presence of the jury by the Defendant.
7. Counsel for the Defendant additionally informed the Court that he believed that there was [not?] any intentional conduct whatever on the part of the State regarding the testimony of Officer Caruthers. (R. Ill— 9).
8. Officer Raymond Wilson of the Fort Worth Police Department testified in the presence of the jury and the following testimony was elicited. “And for what purpose?” and the answer was “I was told that there was some possible identification located in the vehicle, wallet identification. Through a subsequent interview I was told that there may be narcotics in the vehicle.” (R. HI-19).
9. Counsel for the Defendant timely requested a mistrial which was granted. (R. Ill — 19)
CONCLUSIONS OF LAW
1. Federal law, pursuant to the holding of Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2088, mandates that when a defendant in a criminal trial successfully moves for a mistrial, he may invoke the bar of double jeopardy in a second effort to try him only if the conduct giving rise to the successful motion for mistrial was pros-ecutorial or judicial conduct intended to provoke the defendant into moving for a mistrial.
2. The Texas Constitution prohibits a subsequent trial when the prosecutor caused the mistrial either intentionally or recklessly.
3. Bander v. State, 921 S.W.2d 696 (Tx.Crim.App., 1996) and Ex Parte Bander, 974 S.W.2d 729 (Tx.Crim.App., 1998) also state that the prosecutor is not accountable for mistrials when the trial judge need not have granted the defendant’s motion.
4. The testimony of Officer Caruthers was not presented by the prosecution in a manner to intentionally or recklessly cause a mistrial, nor done in any manner to deliberately or recklessly cross the line between legitimate adversarial gamesmanship and manifestly improper methods to render trial before the jury unfair.
5. The testimony of Officer Wilson was not presented by the prosecution in a manner to intentionally or recklessly cause a mistrial, nor done in any manner to deliberately or recklessly cross the line between legitimate adversarial gamesmanship and manifestly improper methods to render trial before the jury unfair.
6. The trial court need not have granted the defendant’s motion for mistrial based upon the totality of the record. The prosecution is not accountable for the trial court’s action.
7. The Defendant’s Writ of Habeas Corpus is DENIED.

DOUBLE JEOPARDY LAW

Both the Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Article I, section 14 of the Texas Constitution protect a criminal defendant from repeated prosecutions for the same offense. U.S. Const. amend. V; Tex. Const, art. I, § 14; Oregon v. Kennedy, 456 U.S. 667, 671, 102 S.Ct. 2083, 2087, 72 L.Ed.2d 416 (1982); Ex parte Peterson, 117 S.W.3d 804, 810 (Tex.Crim.App.2003). Although a defendant has a “valued right to have his trial completed by a particular tribunal,” neither constitutional provision guarantees that the State “will vindicate its societal interest in the enforcement of the criminal laws in one proceeding.” Oregon, 456 U.S. at 671-72, 102 S.Ct. at 2087; Peterson, 117 S.W.3d at 810. Thus, double jeopardy principles do not forbid multiple trials of a single criminal charge if the first trial resulted in a mistrial that: 1) was justified under the manifest necessity doctrine; or 2) was requested or consented to by the defense, absent prosecutorial misconduct which forced the mistrial. Peterson, 117 S.W.3d at 810-11.

It is this second prong — a mistrial requested by Appellant who asserts that he was compelled to do so because of prosecutorial misconduct — that is at issue in the present case. The underlying principle is that a mistrial which the defense freely chooses to request does not bar retrial. Id. A mistrial that the defense is compelled to request because of manifestly improper prosecutorial conduct may, under certain circumstances, bar retrial. Id.

In Peterson, the Texas Court of Criminal Appeals set out the following three-pronged analysis to be employed by courts in analyzing a double jeopardy mistrial claim:

1) Did manifestly improper prosecutorial misconduct provoke the mistrial?
2) Was the mistrial required because the prejudice produced from that misconduct could not be cured by an instruction to disregard? And
3) Did the prosecutor engage in that conduct with the intent to goad the defendant into requesting a mistrial {Kennedy standard) or with conscious disregard for a substantial risk that the trial court would be required to declare a mistrial (Bonder standard)?

117 S.W.3d at 816-17 (footnotes omitted).

When raising a double jeopardy claim on a pretrial writ of habeas corpus, the applicant bears the burden of proof under a preponderance of the evidence standard. Id. at 818. Therefore, Appellant must satisfy all three prongs of the analysis set out above. See id.

In reviewing the trial court’s decision to grant or deny habeas relief, we must review the facts in the light most favorable to the trial judge’s ruling and should uphold the decision absent an abuse of discretion. See id. at 819. We should afford almost total deference to a trial court’s determination of the historical facts that the record supports, especially when the trial court’s fact findings are based on an evaluation of credibility and demeanor. See id. We also afford that same level of deference to a trial court’s ruling on application of law to fact questions, also known as mixed questions of law and fact, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. See id. But appellate courts review de novo those mixed questions of law and fact that do not depend upon credibility and demeanor. Id. Although reviewing courts should also grant deference to “implicit factual findings” that support the trial court’s ultimate ruling, they cannot do so if they are unable to determine from the record what the trial court’s implied factual findings are. Id.

A prosecutor’s conduct is not manifestly improper if it is the result of inadvertence, sloppiness, or even simple negligence. Id. at 817. A prosecutor’s blunder that precipitates a successful motion for mistrial does not bar a retrial. Id. Prosecutorial misconduct reasonably reaches only that conduct which is qualitatively more serious than simple error and connotes an intentional flouting of known rules or laws. Id. at 816 n. 55. If the prosecutor’s conduct, viewed objectively, was not manifestly improper, then the double jeopardy inquiry ends at this first stage. Id. If, for example, the law itself is unsettled or the application of the law in the particular situation is debatable, the prosecutor’s conduct cannot be said to be manifestly improper. Id.

In Peterson, the court of criminal appeals explained that the proper inquiry is whether Appellant was “required to move for a mistrial because the prosecutor deliberately or recklessly crossed the line between legitimate adversarial gamesmanship and manifestly improper methods that rendered trial before the jury unfair to such a degree that no judicial admonishment could have cured it[.]” Id. at 816 (quoting Ex parte Bander, 974 S.W.2d 729, 732 (Tex.Crim.App.1998)).

Trial and appellate courts should focus primarily upon the objective facts and circumstances surrounding the events that led to the mistrial in deciding whether the prosecutor’s alleged misconduct was committed with the requisite intent or recklessness. Id. at 818. The court of criminal appeals provided some factors for trial and appellate courts to consider in assessing the prosecutor’s mens rea, including:

1) Was the misconduct a reaction to abort a trial that was “going badly for the State”? In other words, at the time that the prosecutor acted, did it reasonably appear that the defendant would likely obtain an acquittal?
2) Was the misconduct repeated despite admonitions from the trial court?
8) Did the prosecutor provide a reasonable, “good faith” explanation for the conduct?
4) Was the conduct “clearly erroneous”?
5) Was there a legally or factually plausible basis for the conduct, despite its ultimate impropriety?
6) Were the prosecutor’s actions leading up to the mistrial consistent with inadvertence, lack of judgment, or negligence, or were they consistent with intentional or reckless misconduct?

Id. at 818-19.

DISCUSSION

Is the alleged misconduct of the witnesses imputed to the prosecution?

In his first issue, Appellant asserts that the “gross misconduct” of the two police officer witnesses should be imputed to the prosecutors and constitutes prosecutorial misconduct which precludes retrial. In support of his contention, Appellant relies solely upon Ex parte Castellano, 863 S.W.2d 476 (Tex.Crim.App.1993). The issue presented in Castellano was whether knowledge of a police officer’s perjured testimony could be imputed to the State. Id. at 481. The court of criminal appeals stated that the State violates a defendant’s right to due process when it actively or passively uses perjured testimony to obtain a conviction. Id. The court held that under the facts of the case, the police officer “acted under color of law and was, therefore, a member of the prosecution team in the investigation of the instant case and as such his knowledge of the perjured testimony was imputable to the prosecution.” Id. at 485; see also Ex parte Fierro, 934 S.W.2d 370, 372 n. 2 (Tex.Crim.App.1996) (“Due process prohibits prosecutors from presenting testimony that any member of the ‘prosecution team,’ including both investigative and prosecuto-rial personnel, knows to be false.”), cert. denied, 521 U.S. 1122, 117 S.Ct. 2517, 138 L.Ed.2d 1019 (1997).

We find Castellano clearly distinguishable from the instant case because that case dealt with whether the alleged improper conduct of the police officer was a violation of due process under the Fourteenth Amendment. The court of criminal appeals held that habeas relief was properly granted, and the case was remanded to the trial court for a new trial. Castellano, 863 S.W.2d at 486. The case before us deals with an alleged violation of the Fifth Amendment which if proven would result in subsequent prosecution being jeopardy barred — this is significantly different from the claims raised in Castellano.

Appellant has not cited us to any case dealing with the issue of whether the state of mind of a State’s witness could be imputed to the State so as to preclude further prosecution under the double jeopardy principles of the Fifth Amendment to the United States Constitution or Article I, section 14 of the Texas Constitution. Indeed, in its comprehensive briefing of this issue the State has not located any Texas case dealing with this legal issue. The State points out that every federal or state court that has addressed the issue of whether a witness’s state of mind should be attributed to the prosecution for the purposes of Fifth Amendment analysis has rejected such imputation.

Absent any persuasive authority or rationale for enacting such a rule in Texas, we decline to hold that the knowledge of a State’s witness may be imputed to the prosecution so as to constitute prosecutorial misconduct which would preclude retrial of a defendant under the Fifth Amendment to the United States Constitution or Article I, section 14 of the Texas Constitution when a claim of double jeopardy is raised following the trial court granting a mistrial. We overrule Appellant’s first issue.

Was there prosecutorial misconduct that violated State and Federal double jeopardy principles?

In its findings of fact, the trial court found that the two complained-of comments by Officer Caruthers were inadvertent. We have thoroughly reviewed the complained-of trial testimony that resulted in the court granting a mistrial and the evidence from the writ hearing. While we certainly cannot condone any violation of a motion in limine by any witness, we agree with the trial court that the two comments by Officer Caruthers were inadvertent, as acknowledged at the time by the prosecutor, the trial judge, and Appellant’s own counsel at trial. Accordingly, these comments do not constitute a basis for barring retrial under double jeopardy principles.

Detective Wilson’s testimony at trial presents a different scenario. He told the jury that “Through a subsequent interview I was also told that there may be narcotics in the vehicle,” referring to the vehicle alleged to have been driven by Appellant and that was involved in the hit- and-run accident. At the writ hearing, Wilson explained to the court that he made this statement because he intended to rebut what he anticipated would be Appellant’s alibi: that Appellant’s car had been stolen and therefore he couldn’t have been the driver involved in the hit-and-run accident, but that Appellant did not report his car as having been stolen because Appellant had drugs in the car. Detective Wilson testified that had he been permitted to fully explain his answer, he would have conveyed these facts to the jury and that he did not believe he was improperly testifying to extraneous or bad acts on the part of Appellant.

Assistant District Attorney Rhoden testified at the writ hearing that in her pretrial meetings with Detective Wilson she had stressed that he should not mention any extraneous or bad acts committed by Appellant. However, she acknowledged that the issue of the identity of the driver of the hit-and-run car was hotly contested and was central to the State’s case against Appellant. Therefore, the issue of narcotics being in Appellant’s car was pivotal to the State’s ease. Rhoden discussed this issue in detail with Wilson before trial and she anticipated that sometime during trial Wilson would testify regarding the reason he searched Appellant’s car for narcotics.

Although Wilson acknowledged that he intentionally made his complained-of comment, having reviewed the explanations of Wilson and the prosecutors at the writ hearing, we conclude that Appellant did not meet his burden of establishing that any manifestly improper prosecutorial misconduct provoked the request for mistrial, that the mistrial was required because the prejudice produced from that misconduct could not be cured by an instruction to disregard, and that the prosecutor engaged in that conduct with the intent to goad Appellant into requesting a mistrial or with conscious disregard for a substantial risk that the trial court would be required to declare a mistrial. See Peterson, 117 S.W.3d at 816-17. Accordingly, a subsequent retrial would not be barred under the Fifth Amendment to the United States Constitution or Article I, section 14 of the Texas Constitution. We overrule Appellant’s second and third issues.

CONCLUSION

Because we have overruled all three of Appellant’s issues, we conclude the trial court did not err in denying the habeas corpus relief sought by Appellant. We affirm the judgment of the trial court.

      . All emphasis in the quoted testimony in this opinion is supplied by the author.

      . The parties’ attorneys and the trial judge had previously been provided a copy of the reporter's record from the trial on the merits. That record has been filed as a part of the appellate record in this appeal.

      . See United States v. Ford, 17 F.3d 1100, 1103 (8th Cir. 1994); United States v. McCevers, 731 F.2d 423, 431 (7th Cir. 1984); United States v. Green, 636 F.2d 925, 928-29 (4th Cir.1980), cert. denied, 451 U.S. 929, 101 S.Ct. 2005, 68 L.Ed.2d 316 (1981); United States v. Cyphers, 553 F.2d 1064, 1068 n. 1 (7th Cir.), cert. denied, 434 U.S. 843, 98 S.Ct. 142, 54 L.Ed.2d 107 (1977); State v. Barnes, 222 Ga.App. 875, 476 S.E.2d 646, 647 (1996); State v. Maddox, 185 Ga.App. 674, 365 S.E.2d 516, 517-18 (1988); People v. Walker, 308 Ill.App.3d 435, 241 Ill.Dec. 842, 720 N.E.2d 297, 299-301 (1999), appeal denied, 189 Ill.2d 678, 246 Ill.Dec. 921, 731 N.E.2d 770 (2000); State v. Wittsell, 275 Kan. 442, 66 P.3d 831, 837-39 (2003); Commonwealth v. Deloney, 20 S.W.3d 471, 474-75 (Ky.2000); Commonwealth v. Mitchell, 488 Pa. 75, 410 A.2d 1232, 1237 (1980); Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296, 1298-1300 (1979); Commonwealth v. Johnson, 417 Pa.Super. 159, 611 A.2d 1315, 1316-17 (1992); Commonwealth v. Yost, 305 Pa.Super. 316, 451 A.2d 549, 550-52 (1982); State v. Hopson, 113 Wash.2d 273, 778 P.2d 1014, 1018-19 (1989). See also United States v. Parton, No. 96-5703, 1996 WL 733131, at *4 (6th Cir. Dec.18, 1996) (not designated for publication); Berry v. Commonwealth, No.2001-SC-0457-MR, 2003 WL 22415627, at *4 (Ky. Oct.23, 2003) (not designated for publication). Cf. Commonwealth v. Arelt, 308 Pa.Super. 236, 454 A.2d 108, 111-12 (1982) (misconduct of victim's family could not be imputed to prosecution); State v. Clements, 175 W.Va. 463, 334 S.E.2d 600, 604-05 (1985) (misconduct of sheriff's department during trial not attributable to prosecution), cert. denied, 474 U.S. 857, 106 S.Ct. 165, 88 L.Ed.2d 137 (1985).


source: Caselaw Access Project

license: Public Domain

text:
    Gary Lynn JACKSON, Appellant, v. The STATE of Texas, State.
    No. 2-05-103-CR.
    Court of Appeals of Texas, Fort Worth.
    June 23, 2005.

      Dale Heisch, Fort Worth, for Appellant.
    Tim Curry, Criminal District Attorney, Charles M. Mallín, Assistant Criminal District Attorney and Chief of The Appellate Section, Fort Worth, for Appellee.
    Panel D: HOLMAN, GARDNER, and WALKER, JJ.
   OPINION

DIXON W. HOLMAN, Justice.

Appellant Gary Lynn Jackson seeks to appeal from the trial court’s February 22, 2005 judgment adjudicating his guilt and sentencing him to seven years’ confinement. We dismiss this appeal.

In its certification of Appellant’s right to appeal, the trial court stated that this is a plea bargain case and Appellant has no right of appeal, and that Appellant waived his right of appeal. See Tex.R.App. P. 25.2(a)(2) (providing that trial court shall enter a certification of a defendant’s right of appeal in every case in which it enters a judgment of guilt or other appeal-able order).

The purpose of the certification requirement is to efficiently sort appeal-able cases from non-appealable cases. Greenwell v. Court of Appeals for the Thirteenth Judicial District, 159 S.W.3d 645, 649 (Tex.Crim.App.2005) (orig.proeeeding). Certification allows appealable cases to move through the system unhindered while eliminating, at an early stage, the time and expense associated with non-ap-pealable cases. Id. When an appeal is barred by Rule 25.2(a)(2), the clerk’s and court reporter’s records need not be prepared, counsel need not be appointed, and briefs need not be filed. Id. On the other hand, if there is something in whatever record does exist that indicates that an appellant has the right to appeal, the court of appeals must determine whether the certification is deficient and resolve the conflict. Id.

The clerk’s record has been filed in the instant case. Therefore, we have a duty to examine the certification and compare its recitations to the record to determine whether the certification is defective. See Dears v. State, 154 S.W.3d 610, 613-15 (Tex.Crim.App.2005).

BACKGROUND

On May 22, 1995, Appellant pled guilty to burglary of a habitation pursuant to a plea bargain agreement. The trial court found that the evidence substantiated Appellant’s guilt, deferred further proceedings without entering an adjudication of guilt, imposed a fine of $1,000, and placed Appellant on community supervision for ten years. See Tex.Code CRIm. PROC. Ann. art. 42.12, § 5(a) (Vernon Supp.2004-05).

On July 12, 2004, the State filed a petition to proceed to adjudication. See id. § 5(b). A hearing on the State’s petition was held on February 22, 2005, at which time Appellant pled true to the allegations in the petition. Appellant filed a pro se notice of appeal from the trial court’s February 22, 2005 judgment that adjudicated Appellant’s guilt and assessed punishment.

PLEA BARGAIN AGREEMENT

The trial court’s certification states that Appellant has no right to appeal because this is a plea bargain case. By its express terms, Rule 25.2(a)(2) places limitations on a defendant’s right to appeal from a plea bargain agreement that was followed by the trial court. See Tex.R.App. P. 25.2(a)(2). However, the rule specifies that it applies only to a plea of guilty or nolo contendere. Id. When a defendant is alleged to have violated the terms and conditions of community supervision and the State seeks to proceed to adjudication, the defendant does not enter a new plea of guilty or nolo contendere — the defendant enters a plea of true or not true.' Tex. Code Crim. PROC. Ann. art. 42.12, § 5(b). Accordingly, Rule 25.2(a)(2) does not apply so as to limit a defendant’s ability to appeal from a subsequent plea of true to a revocation motion or a plea of true to a petition to proceed to adjudication. See Dears, 154 S.W.3d at 613.

Although the trial court’s certification specifies that Appellant has no- right of appeal because this is a plea bargain case, there was no plea bargain agreement that would preclude Appellant from appealing from the trial court’s judgment adjudicating his guilt. Accordingly, the record fails to support the recital in the trial court’s certification that Appellant does not have a right to appeal because this is a plea bargain case.

WAIVER

A defendant may not appeal from the trial court’s determination of whether it proceeds with an adjudication ■ of guilt on the original charge. Tex.Code Crim. Proc: Ann. art. 42.12, § 5(b). However, “[ajfter an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant’s appeal continue.as if. the adjudication of guilt had not been deferred.” Id.

■ The trial court’s certification recites that Appellant has. waived his right of appeal. On February 22, 1995, Appellant signed a Judicial Confession pleading true to every allegation in the State’s petition to proceed to adjudication. The document containing the court’s written admonishments states that it applies either to a petition to revoke community supervision or to a petition to proceed to adjudication. Some of the written admonishments pertain to revocation of community supervision, some pertain to adjudication of deferred adjudication, and some pertain to both types of proceedings.

On the same date, Appellant also signed a document entitled “WAIVER OF RIGHTS TO APPEAL COMMUNITY SUPERVISION REVOCATION.”' The title of this document obviously pertains to waiver of Appellant’s right to appeal from the revocation of his community supervision. Neither the title nor the text of the document specifically mentions that Appellant is waiving anything that he might be entitled to appeal from the February 22, 2005 proceeding adjudicating his guilt, assessing punishment, and sentencing him.

However, when we review the full text of the waiver, Appellant acknowledges that he has “been convicted of the offense of Burglary of Habitation and sentenced therein” and “I know that I have the legal right of appeal from this conviction.” It further recites that Appellant does “not desire to appeal and expressly waive[s] any appeal in this case, and I hereby accept as final the judgment of conviction and sentence herein and I request that I be allowed to commence serving the same without further delay.”

Although the waiver document is mistitled and does not expressly mention waiver of appeal from the adjudication decision or the subsequent punishment or sentencing, it does contain Appellant’s acknowledgment that he has been convicted and sentenced, which event could not have occurred until after the trial court adjudicated Appellant’s guilt, held a punishment hearing, and sentenced him. Further, the waiver recites that Appellant accepts as final the judgment of conviction and sentence of the trial court. The waiver document was signed by Appellant and his attorney on the day of the hearing on the State’s petition to proceed to adjudication.

For us to find that by signing the waiver document Appellant did not waive his right to appeal from the trial court’s February 22, 2005 judgment adjudicating his guilt and sentencing him would be to elevate form over substance. Accordingly, we conclude that the record supports the recital in the trial court’s certification that Appellant has waived his right to appeal the trial court’s February 22, 2005 judgment.

CONCLUSION

Because Appellant has no right to appeal, we dismiss the appeal. See Tex. R.App. P. 25.2(d), 43.2(f).

      . The trial court’s certification, signed February 22, 2005, is in the format promulgated by the court of criminal appeals in 2003. See Tex.R.App. P. 25.2 [Form included in Appendix] (Vernon 2003). However, this form is not an exclusive listing of all situations that might arise wherein a defendant has a right to appeal. Accordingly, a trial court may modify the certification contained in the appendix to the rules of appellate procedure to accurately reflect that a defendant has the right of appeal under circumstances not addressed by the form provided in the appendix. Carroll v. State, 119 S.W.3d 838, 841 (Tex.App.-San Antonio 2003, no pet.). Indeed, this court has revised the certification form preferred by this court to add categories for the trial court to indicate that the case: "is a deferred adjudication case, and the defendant has a limited right of appeal,” or "involves another appeal-able order (specify: _).”
      On November 3, 2004, the Clerk of this court sent a cover letter and the revised certification form to all criminal trial court clerks and judges within the district of the Second Court of Appeals. We encourage trial judges to use the revised certification form provided by this court inasmuch as it is more inclusive than the form included in the appendix to the rules of appellate procedure.

        . There is no indication in the record that Appellant entered into a plea bargain agreement regarding the State's petition to proceed to adjudication.

      . A valid waiver of appeal prevents a defendant from appealing without the trial court’s consent. Monreal v. State, 99 S.W.3d 615, 622 (Tex.Crim.App.2003).

      . It is entitled “WRITTEN PLEA ADMONISHMENTS ON PETITION TO REVOKE COMMUNITY SUPERVISION OR TO PROCEED TO ADJUDICATION.”


author: ANNE GARDNER, Justice.

text:
    Shaun MALONE, Appellant, v. Barbara SEWELL, Appellee.
    No. 2-03-080-CV.
    Court of Appeals of Texas, Fort Worth.
    June 23, 2005.

      Mateer & Shaffer, LLP and Randal C. Shaffer, Dallas, for Appellant.
    Kelly, Hart & Hallman, P.C., William N. Warren, Brian Stagner, Fort Worth, for Appellee.
    PANEL A: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.
   OPINION

ANNE GARDNER, Justice.

I. Introduction

Shaun Malone appeals from the trial court’s grant of summary judgment in favor of Barbara Sewell on Malone’s claims for sexual exploitation, breach of fiduciary duty, fraud, and sexual assault. We will affirm in part and reverse and remand in part.

II. Factual and procedural background

Sewell was Malone’s psychotherapist from November 1995 until June 1996. Shortly after their therapeutic relationship ended, Malone and Sewell commenced a sexual relationship. The sexual relationship began in Fort Worth, then continued when Malone and Sewell moved to Seattle in late 1996. It ended when Malone moved back to Texas in April 1998.

Malone sued Sewell in August 2001 for sexual exploitation, breach of fiduciary duty, fraud, and sexual assault. Sewell filed a traditional motion for summary judgment, primarily on limitations grounds. The trial court granted Sewell’s motion. Malone filed this appeal.

III. Standard of review

In a summary judgment case, the issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R. Crv. P. 166a(c); S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. S.W. Elec. Power Co., 73 S.W.3d at 215; Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). Therefore, we must view the evidence and its reasonable inferences in the light most favorable to the nonmov-ant. Great Am., 391 S.W.2d at 47.

In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence are disregarded and the evidence favorable to the nonmovant is accepted as true. Har-well v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995). Evidence that favors the movant’s position will not be considered unless it is uncontroverted. Great Am., 391 S.W.2d at 47.

A defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all the elements of the affirmative defense. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999). To accomplish this, the defendant-movant must present summary judgment evidence that establishes each element of the affirmative defense as a matter of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996).

IV.Discussion

In four issues, Malone asserts that the trial court erred in granting summary judgment. Each issue addresses one of Malone’s four causes of action. We will examine each in turn.

A. Sexual exploitation

In her first issue, Malone asserts that the trial court erred in granting summary judgment on her sexual exploitation claim. Sewell argued in her summary judgment motion that Malone’s sexual exploitation claim was barred by limitations because Malone filed suit in August 2001, more than five years after the sexual relationship began and more than three years after it ended. Malone contends that the summary judgment evidence raises a fact issue as to whether limitations was tolled until 1999 under section 81.009(a) of the civil practice and remedies code.

Sexual exploitation is a cause of action created by chapter 81 of the Texas Civil Practice and Remedies Code. Tex. Civ. PRAC. & Rem.Code Ann. § 81.001-81.010 (Vernon 2005). Under section 81.002, a mental health services provider is liable to a patient or former patient for damages arising from sexual contact between the patient and the mental health services provider or from sexual exploitation of the patient by the mental health services provider. Id. § 81.002. “Sexual exploitation” means a pattern, practice, or scheme of conduct, which may include sexual contact, that can reasonably be construed as being for the purpose of sexual arousal or gratification or sexual abuse of any person. Id. § 81.001(5).

Section 81.009 defines a three-year limitations period for a sexual exploitation claim:

Except as otherwise provided by this section, an action under this chapter must be filed before the third anniversary of the date the patient or former patient understood or should have understood the conduct for which liability is established under Section 81.002 or 81.003.

Id. § 81.009(a). But the next subsection contains a tolling provision:

If a patient or former patient entitled to file an action under this chapter is unable to bring the action because of the effects of the sexual exploitation, continued emotional dependence on the mental health services provider, or threats, instructions, or statements by the mental health services provider, the deadline for filing an action under this chapter is tolled during that period, except that the deadline may not be tolled for more than 15 years.

Id. § 81.009(b).

A party moving for summary judgment on the basis of limitations must conclusively establish the bar of limitations. Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex.1996). If the nonmovant asserts that a tolling provision applies, the movant must conclusively negate the tolling provision’s application to show her entitlement to summary judgment. Id. Therefore, the real issue here is whether Sewell conclusively negated the application of section 81.009’s tolling provision.

Both parties relied solely on Malone’s deposition testimony and deposition exhibits as summary judgment evidence. Malone points to the following testimony as relevant to the tolling question:

A.... I knew there were prohibitions against me speaking [about the sexual relationship],
Q. What do you mean there were prohibitions against you speaking?
A. I mean I had been convinced that I was not supposed to ever tell anyone.
Q. Why were you not supposed to ever tell anyone?
A. Because [Sewell] didn’t want me to.
Q. Do you understand — or did you have an understanding why she didn’t want you to?
A. At the time, no.
Q. When did you gain an understanding?
A. About the time that I — about June of '99.
Q. Did she ever threaten you not to— what she would do if you told someone?
A. Yes.
Q. Overtly?
A. I think so.
Q. What did she say?
A. That if my parents knew how crazy I was, they would put me in a mental institution.
Q. My question is: Did she ever threaten you that she would do something bad or do something that you did not want her to do if you told someone about your relationship with her?
A. No, she never said that.

Malone argues that her testimony raises a fact issue as to whether she was “unable to bring the action” because of “threats, instructions, or statements by the mental health provider.” We agree. Considering the evidence in the light most favorable to Malone, as we must do, Malone’s testimony is some evidence that Sewell made instructions or statements, if not threats, that deterred Malone from speaking out and thus from filing suit within three years of the sexual relationship. This is sufficient to raise a fact question on limitations tolling under section 81.009(b).

Elsewhere in her deposition, Malone testified as follows:

Q. Did you think it was a bad idea to have a relationship with your therapist?
A. No.
Q. Why not?
A. Because I was not capable of assessing that at that point.
Q. You don’t remember thinking at the time that there’s something wrong with it?
A. No.
Q. When did you first decide that there was something wrong with it?
A. I believe it was in the summer of '99. It was a week or so before I called [Malone’s attorney].

Sewell argues that Malone’s failure to understand that the sexual relationship was ‘Wong” does not trigger chapter 81’s tolling provision. This may be true, but it does not address Malone’s argument, nor does it conclusively negate the application of the tolling provision. The tolling provision is triggered by Sewell’s alleged “instructions or statements.” The summary judgment evidence raises a fact issue on the application of the tolling provision. The evidence does not conclusively prove that the tolling effect expired more than three years before Malone filed suit.

We hold that the trial court erred in granting summary judgment on Malone’s sexual exploitation claim because Sewell failed to conclusively negate the application of section 81.009’s tolling provision. We sustain Malone’s first issue.

B. Breach of fiduciary duty

In her second issue, Malone asserts that the trial court erred in granting summary judgment on Sewell’s limitations defense to Malone’s breach of fiduciary duty claim. According to Malone, Sewell breached her fiduciary duty by “sitting really close” to Malone and hugging and caressing her, giving Malone a book that advocated sexual relationships between therapists and patients, and asking Malone on a date, all during therapy sessions. For purposes of this opinion, we will assume, as do the parties, that these acts breached Sewell’s fiduciary duty.

A claim for breach of fiduciary duty is subject to the four-year statute of limitations. Tex. Civ. PRAC. & Rem.Code Ann. § 16.004(a)(5) (Vernon 2002). Malone concedes that the alleged breach of fiduciary duty occurred during the therapy relationship, which ended over five years before Malone filed suit. Thus, absent some exception to limitations, Malone’s claim is barred. Malone asserts three exceptions: the discovery rule, the continuing tort doctrine, and estoppel by fraud.

1. Discovery rule

The discovery rule exception to limitations defers accrual of a cause of action until the plaintiff knows or, by exercising reasonable diligence, should know of the facts giving rise to the claim. Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734 (Tex.2001). The discovery rule is a “very limited exception” to limitations when the injury is both inherently undis-coverable and objectively verifiable. Schneider Nat. Carriers, Inc. v. Bates, 147 S.W.3d 264, 279 (Tex.2004). An injury is inherently undiscoverable if it is, by its nature, unlikely to be discovered within the prescribed limitations period despite due diligence. Horwood, 58 S.W.3d at 734-35. “Inherently undiscoverable” does not mean that a particular plaintiff did not discover his or her particular injury within the applicable limitations period. Id. at 735. The requirement of inherent undis-coverability recognizes that the discovery rule exception should be permitted only in circumstances in which it is difficult for the injured party to learn of the wrongful act or omission. Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex.1996). A defendant seeking summary judgment on the basis of limitations must prove when the cause of action accrued and must negate the discovery rule by proving as a matter of law that there is no genuine issue of fact about when the plaintiff discovered or should have discovered the injury. Burns v. Thomas, 786 S.W.2d 266, 267 (Tex.1990).

Sewell argues that Malone’s deposition testimony proves as a matter of law that Malone knew or should have known about the alleged breach of fiduciary duty more than four years before she filed suit. Malone testified that she wrote on the night after her last therapy session, either as a letter to Sewell or in a journal, “I have not talked to anyone about you and will continue to protect you in that way.” She testified that before her therapy with Sewell ended, Sewell told Malone that she needed to know that Malone would not sue her. Also before the end of the therapy relationship, Malone wrote in a journal, “Legal action, I know it’s there, but I will not use it against a sister who dared-to follow her heart against a powerful system of heartless rules.”

Malone responds by pointing to her own testimony that she did not “think it was a bad idea to have a [sexual] relationship with a therapist” because she “wasn’t capable of assessing that at that point.” Malone testified that she first decided “that there was something wrong with it” in the summer of 1999.. But this testimony relates to the sexual relationship after the therapy relationship ended, not to Sewell’s alleged breach of fiduciary duty during the relationship.

We hold that Malone’s testimony proves as a matter of law that she knew of the facts underlying her breach of fiduciary claim at least by the summer of 1996, and she even contemplated legal action at that time. Even if the discovery rule applies to this cause of action, it will not extend the statute of limitations to within four years of the date Malone filed suit.

2. Continuing tort doctrine

The continuing tort doctrine involves continuing wrongful conduct and continuing injury. Dickson Constr., Inc. v. Fid. and Deposit Co. of Maryland, 960 S.W.2d 845, 851 (Tex.App.-Texarkana 1997, no writ). Malone contends that her sexual relationship with Sewell after the therapy relationship terminated was simply a continuation of the breach of fiduciary duty that allegedly occurred during the therapy relationship, and that the statute of limitations did not begin to run until the sexual relationship ended. We disagree.

Malone’s contention fails because Se-well’s fiduciary duty to Malone ended when the therapy relationship ended. Savage v. Psychiatric Institute of Bedford, Inc., 965 S.W.2d 745, 754 (Tex.App.-Fort Worth 1998, pet. denied) (holding fiduciary relationship ends when physician-patient relationship ends). Thus, Sewell’s .alleged breach of fiduciary duty could not, as a matter of law, continue beyond the end of the therapy relationship in June 1996.

We hold that the continuing tort doctrine does not apply to Malone’s breach of fiduciary duty claim.

3. Estoppel by fraud

Estoppel by fraud or fraudulent concealment is based on the doctrine of equitable estoppel. Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430, 439 (Tex. App.-Fort Worth 1997, pet. denied). Where applicable, fraudulent concealment estops a defendant from relying on the statute of limitations as an affirmative defense to the plaintiffs claim. Id. Unlike the discovery rule, which determines when the limitations period begins to run, the doctrine of fraudulent concealment tolls or suspends the running of limitations after it has begun because the defendant concealed from the plaintiff facts necessary for the plaintiff to know that she had a cause of action. Id. But the estoppel effect of fraudulent concealment is not permanent. Id. Knowledge of facts, conditions, or circumstances that would cause a reasonable person to make inquiry leading to the discovery of a concealed cause of action is equivalent to knowledge of the cause of action for limitations purposes. Id. The elements of' fraudulent concealment are (1) the existence of the underlying tort, (2) the defendant’s knowledge of the tort, (3) the defendant’s use of deception to conceal the tort, and (4) the plaintiffs reasonable reliance on the deception. Id. Once the defense of limitations is conclusively established, and the plaintiff resists summary judgment by asserting fraudulent concealment, the burden is on the. plaintiff , to raise a fact issue on each element of fraudulent concealment. See American Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex.1994).

Malone argues that Sewell fraudulently led her to believe that she would suffer long-term psychological damage if she did not enter into a personal relationship with Sewell. But Malone does not point to evidence that raises a fact issue on the third and fourth elements of fraudulent concealment, deception to conceal the tort and reasonable reliance, and we find none in the record. As we noted in our discussion of the discovery rule, Malone testified that Sewell asked’Malone for assurances that she would not sue her. This testimony suggests the very opposite of deception and concealment. We hold that Malone failed to raise a fact issue on all of the essential elements of fraudulent concealment.

Having concluded that there is no fact issue on any of the three exceptions to limitations raised by Malone, we overrule her second issue.

C. Fraud

In her third issue, Malone contends that the trial court erred in granting summary judgment on her fraud claim. As the basis of her fraud claim, Malone alleged that “Sewell falsely misrepresented [sic] to [Malone] that their relationship was acceptable and would not hurt [Malone].” Sewell argued in her motion for summary judgment that Malone’s fraud claim was barred by limitations, that Malone did not rely on Sewell’s alleged statements, and that the alleged misrepresentations were opinions and statements about future events.

The elements of common-law fraud are (1) a material representation, (2) that is false, (3) which was either known to be false when made or was made recklessly without knowledge of its truth, (4) with the intent that the representation be relied upon, (5) that it was relied upon, and (6) which caused injury. See Johnson & Johnson Med., Inc. v. Sanchez, 924 S.W.2d 925, 929-30 (Tex.1996). Common law fraud claims have a four-year statute of limitations. See Williams v. Khalaf, 802 S.W.2d 651, 653 (Tex.1990) (op. on reh’g). Limitations generally does not begin to run until the fraud is discovered or until it might have been discovered by the exercise of reasonable diligence. See Little v. Smith, 943 S.W.2d 414, 420 (Tex.1997).

Malone did not explicitly state in her petition when Sewell made the alleged misrepresentations. But she did allege that Sewell made the statements to induce Malone to enter into an “intimate” relationship with her. Thus, Sewell would have made the alleged misrepresentations before Malone and Sewell began a sexual relationship in 1996 — more than four years before Malone filed suit. Absent some exception to limitations, Malone’s fraud claim is time-barred. Malone asserts that limitations did not begin to run until her sudden epiphany that the relationship “was a bad idea” in 1999.

Sewell points to Malone’s deposition testimony and letters from Malone to Sewell to show that Malone knew that the alleged misrepresentation was false more than four years before she filed suit. In her deposition, Malone acknowledged writing the following words in a letter to Sewell in June or July 1996:

Elizabeth and Carter [characters in a book about therapist-patient relationships] were in love.... They both had spouses, partners, too, so along with “THE RULES” they were truly “off limits”.... So our situation is a little different. We don’t have partners....

Malone testified that by “the rules” she meant “that a therapist and client should never get involved.” This testimony, argues Sewell, proves that Malone knew in 1996 that a relationship with Sewell was not acceptable; therefore, Malone knew that Sewell’s alleged representation was false. We agree.

We hold that Malone’s 1996 letter proves as a matter of law that Malone knew or should have known that a therapist-patient relationship was unacceptable and that Sewell’s alleged representation to the contrary was false. Assuming that the alleged misrepresentation is a basis for a fraud claim, Malone’s fraud claim is barred by limitations. We overrule Malone’s third issue.

D. Sexual assault

In her last issue, Malone argues that the trial court erred by applying Washington’s three-year statute of limitations instead of Texas’s five-year statute to Malone’s sexual assault claim. Sewell replies that the Texas “borrowing statute” requires application of the Washington limitations period to the sexual assault claim. Malone, in turn, contends that Se-well is not entitled to summary judgment under the borrowing statute because she failed to prove conclusively that the alleged sexual assault occurred in Washington. We agree with Malone.

Section 16.0045 of the civil practice and remedies code defines Texas’s statute of limitations for sexual assault as follows:

A person must bring suit for personal injury not later than five years after the day the cause of action accrues if the injury arises as a result of conduct that violates:
(1) Section 22.011, Penal Code (sexual assault); or
(2) Section 22.021, Penal Code (aggravated sexual assault).

Tex. Civ. PRAC. & Rem.Code ANN. § 16.0045(a)(Vernon 2002). The penal code, in turn, precisely defines sexual assault as follows:

§ 22.011. Sexual Assault
(a) A person commits an offense if the person:
(1) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;
(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or
(C) causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;....

Tex. Penal Code Ann. § 22.011(a)(1) (Vernon Supp.2004-05).

Though Washington does not have a specific statute of limitations for adult sexual assault, Washington’s “catch-all” three-year statute of limitations has been applied in a sexual abuse case. See St Michelle v. Robinson, 52 Wash.App. 309, 759 P.2d 467, 469-70 (1988).

The Texas borrowing statute, section 71.081 of the civil practice and remedies code, is essentially a codified choice-of-law rule that borrows the statute of limitations of the foreign state where an injury occurred when the claimant is not a resident of Texas. Tullis v. Georgia-Pacific Corp., 45 S.W.3d 118, 126 (Tex.App.Fort Worth 2000, no pet.). The relevant part of the statute reads as follows:

An action for damages for ... personal injury of a citizen of this state, of the United States, or of a foreign country may be enforced in the courts of this state, although the wrongful act, neglect or default causing the ... injury takes place in a foreign state ... if:
(2) the action is begun in this state within the time provided by the laws of this state for beginning the action; [and]
(3) for a resident of a foreign state or country, the action is begun in this state within the time provided by the laws of the foreign state or country in which the wrongful act, neglect or default took place;....

Tex. Civ. Prac. & Rem.Code Ann. § 71.031(a) (Vernon Supp.2004-05). In applying the borrowing statute, we look to the claimant’s residency at the time the cause of action accrued. Tullís, 45 S.W.3d at 125.

To determine whether the summary judgement evidence compels application of Washington’s three-year limitations period to Malone’s sexual assault, we must examine the evidence in light of the borrowing statute, the Texas statute of limitations, and the penal code definition of sexual assault. The borrowing statute applies if the sexual assault “took place” in Washington and Malone was a nonresident of Texas when the claim accrued. Tex. Civ. Prac. & Rem.Code Ann. § 71.031(a)(3); see Tullis, 45 S.W.3d at 125. The sexual assault “took place” in Washington if Sewell committed one or more of the acts defined by penal code section 22.011(a)(1) in Washington. Malone’s petition does not specify whether the alleged sexual assault took place in Texas, Washington, or both states.

Thus, to even reach the question of whether the borrowing statute applies, Sewell’s summary judgment evidence must conclusively establish that if a sexual assault took place, it took place in Washington; that is, that Sewell committed one or more of the acts defined by penal code section 22.011(a)(1) in Washington. Sewell has not carried this heavy burden.

The summary judgment evidence does not prove conclusively that the alleged sexual assault took place in Washington. As we noted above, the evidence consists of Malone’s deposition testimony and a few letters or journal entries. Sewell points to several pages in Malone’s deposition as proof that the alleged sexual assault took place in Washington. But the testimony on those pages proves only that Malone was a resident of Washington from October 1996 through April 1998. We have carefully reviewed Malone’s entire deposition and find no testimony proving that any of the specific conduct listed in penal code section 22.011(a)(1) took place in Washington. The only testimony concerning sexual contact of any kind in Washington appears on page 143 of Malone’s deposition, as follows:

[S]he used me sexually for gratification and then she would get up and walk away and it was not — it was not two-sided.

This testimony does not necessarily imply a sexual assault as defined by the penal code and does not conclusively prove that the alleged sexual assault took place in Washington.

Because the summary judgment evidence does not conclusively prove that the alleged sexual assault took place in Washington, we do not reach the question of whether the borrowing statute requires the application of Washington’s three-year statute of limitations. Sewell did not establish her entitlement to summary judgment under Washington’s statute of limitations.

Sewell also argues that Malone’s sexual assault claim is barred under the Texas statute of limitations because Malone alleges that Sewell sexually assaulted her during their therapist-patient relationship, which ended more than five years before Malone filed suit. But according to Malone’s deposition testimony, the sexual assault did not begin until after the therapist-patient relationship ended. Sewell failed to prove to prove that the sexual assault, if any, occurred more than five years before Malone filed suit. Thus, Se-well is not entitled to summary judgment under Texas’s five-year statute of limitations.

We therefore conclude that the trial court erred in granting summary judgment on Malone’s sexual assault claim. We sustain Malone’s fourth issue.

Y. Conclusion

We sustain Malone’s first and fourth issues. We overrule her second and third issues. We therefore affirm the trial court’s summary judgment in part, reverse it in part, and remand this cause for further proceedings on Malone’s sexual exploitation and sexual assault claims. See Tex.R.App. P. 43.2(a), (d).

CAYCE, C.J. dissents without opinion.

      . Cayce, C.J. would overrule Malone’s first and fourth issues and affirm the trial court’s judgment in its entirety.


author: DAVID PURYEAR, Justice.

text:
    Glenn NEWTON, Appellant, v. The STATE of Texas, Appellee.
    No. 03-04-00016-CR.
    Court of Appeals of Texas, Austin.
    June 23, 2005.

      Jon T. Evans, Law Office of Evans and Lusk, Austin, for Appellant.
    Sally Swanson, Asst. Dist. Atty., Austin, for Appellee.
    Before Chief Justice LAW, Justices B.A. SMITH and PURYEAR.
   OPINION

DAVID PURYEAR, Justice.

Appellant Glenn Newton pleaded guilty to murder and raised the issue of sudden passion. See Tex. Pen.Code Ann. § 19.02(b), (d) (West 2003). The jury returned an instructed verdict of guilty and assessed punishment at forty years’ imprisonment and a $10,000 fine. Appellant complains that the trial court’s charge did not require the jury to reach a unanimous verdict on the sudden passion issue. We agree that the charge was defective, reverse the district court’s judgment, and remand for a new punishment hearing.

If, at the punishment stage of a murder trial, the defendant proves by a preponderance of the evidence that he acted under the immediate influence of sudden passion arising from an adequate cause, the offense is reduced from a first to a second degree felony. Id. § 19.02(d). The jury’s verdict on the sudden passion issue must be unanimous. Sanchez v. State, 23 S.W.3d 30, 34 (Tex.Crim.App.2000) (applying Tex.Code Crim. Proc. Ann. art. 37.07, § 3(c) (West Supp.2004-05)). That is, the jurors must agree that the defendant either did or did not act under the immediate influence of sudden passion arising from an adequate cause. Id. If the jurors fail to agree on the sudden passion issue, the result is a mistrial. Id. at 33.

In Sanchez, the trial court instructed the jurors that they could find in the defendant’s favor on the sudden passion issue only if they were unanimous, and that otherwise they were to find against him. Id. at 32. Under the instruction given, if some of the jurors were persuaded that the defendant acted under the influence of sudden passion but the other jurors were not, the jury was required to assess punishment within the range prescribed for first degree felonies. The court of criminal appeals held that this violated article 37.07, section 3(c) because it did not require unanimity on the sudden passion issue, permitted the range of punishment to be determined without the agreement of the jurors, and reduced the reliability of the punishment verdict. Id. at 33-34.

In Cartier v. State, the punishment charge required the jurors to answer “yes” or “no” to a special issue inquiring whether the defendant acted under the immediate influence of sudden passion arising from an adequate cause, and then to assess punishment accordingly. 68 S.W.3d 756, 759-60 (Tex.App.-Amarillo 2001, pet. refd). Elsewhere in the charge, the jurors were told that they were to unanimously agree upon a verdict. The court of appeals concluded that the charge satisfied the need for unanimity and did not permit the jurors to return a non-unanimous decision adverse to the defendant on the sudden passion issue. Id. at 760.

In the cause now before us, paragraph one of the court’s charge instructed the jurors:

The punishment which you may assess is confinement in the Institutional Division of the Texas Dept, of Criminal Justice for life, or for any term of not more than 99 years or less than 5 years; unless you believe that the defendant caused the death under the immediate influence of a sudden passion arising from an adequate cause in which event you may assess confinement for not more than 20 years or less than 2 years. In addition, in either case, a fine not to exceed $10,000 may be imposed. The burden of proof is on the defendant to prove this issue by a preponderance of the evidence.

After defining “preponderance of the evidence,” “sudden passion,” and “adequate cause,” the court concluded this portion of the charge:

Now if you believe by a preponderance of the evidence that the defendant caused the death of the deceased while under the immediate influence of sudden passion arising from an adequate cause, you will assess punishment at confinement for not more than 20 years nor less than 2 years and you may impose a fine not to exceed $10,000.

This was the court’s only instruction regarding the determination of the appropriate punishment range.

The final paragraph of the charge instructed the jurors to select a foreperson “to preside at your deliberations and to vote with you in arriving at a unanimous verdict.” The court submitted four verdict forms in this order: (1) guilty of murder with a sudden passion finding, without probation; (2) guilty of murder with a sudden passion finding, with probation; (3) guilty of murder without probation; or (4) guilty of murder with probation. The jurors selected the third option.

Appellant objected that the charge failed to require a unanimous determination of the sudden passion issue. Specifically, appellant urged that the charge did not require the jurors to unanimously find against him on this issue as a prerequisite to punishing the offense as a first degree felony. The court overruled the objection, expressing the view that the charge and verdict forms assured that the jurors’ sudden passion decision would be unanimous.

We agree with appellant that the charge in this cause required unanimity on the sudden passion issue only in appellant’s favor. The court instructed the jurors to assess a prison term of five years to life unless they agreed that appellant acted under the immediate influence of sudden passion arising from an adequate cause. This instruction did not condition the jurors’ use of the five-to-life punishment range on a unanimous finding that appellant did not act under the influence of sudden passion; instead, the harsher punishment range was made applicable in the absence of a finding in appellant’s favor. The court then emphasized the need for unanimity in appellant’s favor by instructing the jurors to assess a punishment of two to twenty years if they agreed that appellant acted under the influence of sudden passion. The court never instructed the jurors that they were to punish this offense as a first degree felony only if they agreed that appellant did not act under the influence of sudden passion. By requiring unanimity only in appellant’s favor, the court’s charge effectively told the jurors to treat the offense as a first degree felony if they could not reach agreement on the sudden passion issue. The later, general reference to a unanimous verdict was not sufficient to correct the error in that portion of the court’s charge that directly spoke to the selection of the proper punishment range.

The verdict forms also required unanimity only in appellant’s favor. The second degree murder forms (forms one and two) contained a finding that appellant acted under the immediate influence of sudden passion arising from an adequate cause. But the first degree murder forms (forms three and four) did not contain a finding that appellant did not act under the influence of sudden passion; they were silent with regard to the issue. Like the charge itself, the verdict forms erroneously conditioned the use of the first degree felony punishment range on the absence of a finding in appellant’s favor, rather than on a finding against him, on the sudden passion issue.

“If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is ‘calculated to injure the rights of defendant,’ which means no more than that there must be some harm to the accused from the error.” Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g) (quoting Tex.Code Crim. Proc. Ann. art. 36.19 (West 1981)). Under this standard, “the presence of any harm, regardless of degree, which results from preserved charging error is sufficient to require reversal of the conviction. Cases involving preserved charging error will be affirmed only if no harm has occurred.” Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.1986). The degree of harm must be assayed in light of the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant information revealed by the record as a whole. Almanza, 686 S.W.2d at 174. The harm must be actual, and not just theoretical. Id.

Appellant pleaded guilty to the alleged murder, and the only fact issue before the jury was whether appellant committed the murder while under the immediate influence of sudden passion arising from an adequate cause. It is undisputed that there was evidence raising the sudden passion issue and that this evidence, if believed by the jury, would support a finding in appellant’s favor.

Not surprisingly, the sudden passion issue was the primary subject of the jury arguments. For their part, the prosecutors reminded the jurors that the burden of proof was on appellant and urged that the evidence preponderated against a finding of either sudden passion or adequate cause. The prosecutors did not mention the need for unanimity, either for or against appellant, on the sudden passion issue. The first of appellant’s attorneys to argue told the jurors, “Before you can decide what his punishment should be, each of you first has to make an individual decision was this sudden passion, then you have to all decide are we unanimous in that there was sudden passion, and then at that point you can move forward as to what happens.” After this essentially correct statement, counsel demonstrated how easy it is to misstate the unanimity requirement by adding, “Now, if after you have convened and you have not decided unanimously that sudden passion is involved, then you go to the last two forms [first degree felony].”

Appellant’s second attorney, whose sole focus was on the sudden passion issue, argued correctly:

Was there sudden passion? It has to be unanimous one way or the other — yes, there was; no, there wasn’t. That is the first thing you have to decide. Then depending on what your decision is on the sudden passion issue, that will tell you where you go as far as punishing him.
If all 12 of you agree that there is sudden passion, your punishment range is limited from two to 20 years in prison. If you give a sentence of less than 10 years and recommend probation, and there is a verdict form for that, the judge has to put Glenn on probation, and he read some of the conditions that could be given.
If you decide that sudden passion is not there — and that must be a unanimous decision; all 12 of you must agree there is no sudden passion — then you go on to the other range of punishment, five years up to 99 years or life.

This argument accurately stated the need for unanimity — either for or against appellant — on the sudden passion issue.

After the verdict was returned, the defense asked that the jurors be polled. The court told the jurors:

A request has been made that the jury be polled, and by that we mean we are going to ask that each of you state your name and if this is your verdict, which is a verdict in which you have not found sudden passion, you should say, yes, this is my verdict, that the verdict that your foreperson has read is your actual verdict.

Defense counsel asked for “a more specific question. I would like an answer from each juror on whether they voted for sudden passion ■ or against sudden passion.” The court responded: •

I think the Court is going to decline that request. I think legally if you would just state — I will note your exception— that the verdict read by your foreperson is your verdict and that verdict does not reflect sudden passion. If that isn’t your verdict, please say it is not. So if we start with just your name and then yes, that is my verdict; no, that isn’t my verdict. And this is a verdict of 40 years, $10,000 fine, and there was no finding of sudden passion.

Each juror then affirmed that the verdict read was his or her verdict.

We believe that the jury poll is the key to determining whether the charge error was harmless in this cause. Although one of appellant’s attorneys accurately explained the need for unanimity during her jury argument, appellant’s other attorney fell into the same error as the court’s charge. Moreover, we assume in the absence of evidence to the contrary that the jurors followed the charge and that they resolved the conflict between counsel’s argument and the -court’s instructions (assuming they perceived it) by giving precedence to the instructions and the accompanying verdict forms. See Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App.1998) (jury presumed to follow court’s instructions). The charge unambiguously told the jurors to assess a prison term of five years to life unless they agreed that appellant acted under the immediate influence of sudden passion arising from an adequate cause. If the jurors read the charge and followed it, it is reasonably possible that one or more of them may have believed that appellant acted under the influence of sudden passion, but because the other jurors did not agree, applied the first degree felony punishment range. See Ovalle v. State, 18 S.W.3d 774, 787 (Tex.Crim.App.2000). We cannot dismiss the error as harmless by supposing that the jury ignored the charge. Id. at 788. Thus we must ask: did the jury poll reflect a unanimous determination against appellant on the sudden .passion issue despite the absence of a unanimity requirement in the court’s charge?

We conclude that it did not. The court refused to directly ask the jurors whether they voted for or against a finding of sudden passion. Instead, the court asked each juror to state whether the verdict read by the foreperson was his or her verdict. As we have previously discussed, the first degree murder verdict form read by the foreperson did not contain a finding that appellant did not act under the influence of sudden passion. Given the wording of the verdict forms and of the court’s question to the jurors, the poll merely reflected each juror’s agreement that the verdict was silent with respect to the sudden passion issue. It cannot be said that the poll demonstrated a finding by each juror that appellant did not commit murder under the immediate influence of sudden passion arising from an adequate cause.

By failing to require the jurors to agree that appellant did not act under the immediate influence of sudden passion, the court’s charge was calculated to injure appellant’s rights by denying him his statutory right to a unanimous verdict. See Sanchez, 23 S.W.3d at 33-34 (affirming court of appeals’ conclusion that error caused defendant egregious harm); and see Ngo v. State, No. PD-0504-04, 2005 WL 600353, at 8 (Tex.Crim.App.2005) (charge that did not require unanimous verdict as to offense committed was egregiously harmful). Appellant timely and specifically objected to the erroneous charge. On this record, it cannot reasonably be said that the jurors reached a unanimous decision despite the court’s faulty instructions. We cannot conclude that the error was harmless. Point of error two is sustained.

Because of our disposition of the charge issue, we need not address appellant’s other point of error. We affirm the district court’s adjudication of guilt, but we reverse that portion of the judgment imposing sentence and remand for a new punishment trial. See Tex.Code Crim. Proc. Ann. art. 44.29(b) (West Supp.2004-05).