text:
    Ray GONZALEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 04-03-00819-CR.
    Court of Appeals of Texas, San Antonio.
    Dec. 15, 2004.

      Julie B. Pollock, Hitchings & Pollock, San Antonio, for appellant.
    Enrico B. Valdez, Sommer Hoffman, Asst. Criminal Dist. Atty’s, San Antonio, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice.
   OPINION

Opinion by

CATHERINE STONE, Justice.

Ray Gonzalez appeals his conviction and life sentence for capital murder. Gonzalez presents two issues on appeal: (1) whether he was denied his right to confrontation when the trial court admitted incriminating hearsay statements made by an unavailable witness; and (2) whether the trial court erred in failing to instruct the jury on a lesser included offense. We affirm.

BACKGROUND

On May 3, 2002, the San Antonio Police Department dispatched officers to the home of Maria and Baldomero Herrera after receiving two 911 calls from the residence. Several officers arrived at the residence approximately six minutes after receiving the second call for assistance. When they arrived, the officers observed Maria lying in a pool of blood near the front door. They also observed Baldome-ro sitting in a chair, unconscious and covered in blood. Upon arriving, the officers questioned Maria about what had happened, and she responded that she and her husband were shot by an individual living with or known by the people who live in the rock house across the street. Maria told officers that the gunman was an 18-year-old Latin male with dyed blonde hair. Maria further indicated that the gunman stole her white Nissan truck.

Officers subsequently located Maria’s stolen vehicle and an individual fitting the description given by Maria. After an intense high speed chase, officers apprehended the driver of the vehicle, Ray Gonzalez. Upon apprehending Gonzalez, officers discovered property belonging to the Herreras in Gonzalez’s pockets and found Maria’s blood on Gonzalez’s sneakers. Gonzalez was charged with capital murder after Maria and Baldomero died of their gunshot wounds. A jury found Gonzalez guilty of the alleged offense, and Gonzalez was sentenced to life in prison.

Hearsay Evidence

Gonzalez complains the trial court erred in allowing the investigating police officers to testify concerning the statements Maria made to them upon their arrival at the crime scene. First, Gonzalez contends Maria’s out-of-court statements do not qualify as excited utterances because they were made in response to police questioning. Second, Gonzalez argues the admission of Maria’s out-of-court statements violated his Sixth Amendment right to confrontation because the statements are testimonial and he had no opportunity to cross-examine Maria before she died.

Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex.R. Evid. 801(d). The Texas Rules of Evidence provide an exception to this rule for “excited utterances.” Tex.R. Evid. 803(2). An excited utterance is “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Id. When determining whether a hearsay statement is admissible as an excited utterance, we may consider the time elapsed and'whether the statement was in response to a question. Zuliani v. State, 97 S.W.3d 589, 595-96 (Tex.Crim.App.2003). “However, it is not dispositive that the statement is an answer to a question or that it was separated by a period of time from the startling event; these are simply factors to consider in determining whether the statement is admissible under the excited utterance hearsay exception.” Id. at 596. The critical factor to consider when determining if a statement is an excited utterance is “ Nvhether the declarant was still dominated by the emotions, excitement, fear, or pain of the event’ ” or condition at the time of the statement. Id. (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex.Crim.App.1992)). In other words, a court must determine whether the statement was made “ ‘under such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection.’ ” Id. Whether an out-of-court statement is admissible under an exception to the hearsay rule is a matter within the trial court’s discretion. Id. at 595.

The trial court held a hearing outside the presence of the jury to determine if Maria’s statements to Officers Thomas McGowan, Dennis Cartwright, and Michael' Oliva were admissible. Officer McGowan testified that he and Officer Garrett Hunter arrived at the crime scene approximately six minutes after being notified of Maria’s second 911 call. When the officers arrived at the Herrera residence, they observed Maria lying in a pool of blood near the front door. They also observed Bal-domero sitting in a chair, unconscious, and gasping for breath. According to Officer McGowan, Maria was very talkative and excited. He further stated that Maria appeared to be in a state of shock. Maria asked the officers to help her several times, although it did not appear to Officer McGowan that Maria truly understood the seriousness of her physical condition. Officer McGowan stated that Maria “was doing a lot of moving on the floor” and she made several phone calls while lying on the floor. He further stated that when he questioned Maria regarding what had happened, Maria could not give him the name of the shooter; rather, Maria told him that the person who shot her was related to the people who live in the rock house across the street. Maria further described the shooter as “a Latin male ... blondish colored hair, about 18 years old.”

Officer Cartwright arrived at the Herrera residence shortly after Officers Hunter and McGowan. Upon his arrival, he too observed Maria lying on the floor covered in blood. Officer Cartwright also observed an elderly gentleman, who appeared to be deceased, sitting in a chair. According to Cartwright, Maria looked in poor condition and in extreme pain. Maria was crying and asking for help. Cartwright testified Maria indicated that a man with dyed blonde hair shot her and that she recognized the man from the brick or stone house across the street. He further testified that Maria told the officers the shooter stole her truck.

Finally, Officer Oliva testified that he arrived at the Herrera residence after Officers Hunter, McGowan, and Cartwright. When Oliva arrived, he observed Maria lying on the floor with blood on her. Officer Oliva also observed Baldomero sitting in a chair. Officer Oliva testified thát Maria was frightened and “in a lot of pain.” Maria appeared to be under the stress of being shot and complained that her stomach hurt. Officer Oliva stated he decided to requestion Maria in Spanish regarding what had happened because it did not appear that she understood English very well. According to Oliva, Maria told him a young Hispanic male with dyed hair shot her. Maria further stated that the shooter lived with or was related to the people living across the street in the house with a rock exterior. When asked what else had happened, Maria told Oliva that the shooter stole her truck.

The trial court determined that Maria’s statements to Officers McGowan and Oliva were admissible as excited utterances, and that they could qualify as present sense impressions and statements of an existing state of physical condition. The trial court further found Maria’s statements to Officer Cartwright were admissible as well, although the court did not state the grounds for its ruling. On appeal, Gonzalez does not challenge the admission of Maria’s statement that she had been shot or that she was in pain because he concedes that such statements could qualify either as excited utterances, present sense impressions, or statements of Maria’s then existing state of physical condition. Rather, Gonzalez challenges the admission of Maria’s statements concerning who committed the offense, the shooter’s physical characteristics, and the shooter’s place of residence. After reviewing the evidence, we are of the opinion that Maria’s statements qualify as excited utterances.

In Ross v. State, the defendant argued that his victim’s statements to a co-worker and an ambulance attendant shortly after she was allegedly shot by the defendant were not excited utterances. 879 S.W.2d 248, 249 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd). There, the defendant shot his girlfriend as she parked her car outside her employer’s office. Id. at 248-49. One of the victim’s co-workers rushed to the victim’s aid and asked the victim “who shot her?” Id. at 249. The victim identified her boyfriend as the assailant. Id. The victim, while en route to the hospital, then told the ambulance attendant monitoring her condition that her boyfriend had shot her. Id. The Ross court held that the victim’s statements identifying her murderer were excited utterances. Id. The court determined the statements constituted excited utterances even though some of the statements were in response to questions because the victim was under the stress of being shot four times by her boyfriend; the statements were made within a relatively short period of time following the shooting; the severity of the victim’s injuries suggested that she was “dominated by the emotions, excitement, fear, and pain of the event at the time she made both statements”; and the statements related to the occurrence preceding them. Id.

In the case at bar, the Herreras were shot by an assailant a relatively short period of time before police arrived at their residence. The investigating officers all testified that upon entering the Herrera residence, they observed Baldomero unconscious in a chair and saw Maria lying on the floor. Several of the officers testified that there was blood on or near Maria. At the time Maria made the statements implicating Gonzalez, she claimed to be in pain, begged for medical assistance, and was visibly shaken by what had occurred. It is reasonable to infer from this evidence that a startling event had occurred at the Herrera residence and that Maria was still under the stress caused by that event when she made the statements relating to the shooting. The fact that some of Maria’s statements were in the form of responses to questions does not make them inadmissible under the excited utterance exception to the hearsay rule. See Zuliani, 97 S.W.3d at 596. The key is whether Maria was still dominated by the emotions, excitement, fear, or pain of the shooting at the time the statements were made, which Maria undoubtedly was. See id.

Although we have concluded that Maria’s statements fall under the excited utterance exception to the hearsay rule, we must further analyze her statements in light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In March 2004, the United States Supreme Court changed the legal landscape for determining whether admission of certain hearsay statements violates an accused’s right of confrontation. Before Crawford, a confrontation challenge to the admissibility of an out-of-court statement offered against an accused was governed by Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Under Roberts, an unavailable witness’s out-of-court statements could be admitted at trial when the statements fell under a “firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” Roberts, 448 U.S. at 66, 100 S.Ct. 2531. The hearsay exception for excited utterances was considered to be among those “firmly rooted” exceptions that carried sufficient indi-cia of reliability to satisfy the Sixth Amendment’s Confrontation Clause. See White v. Illinois, 502 U.S. 346, 355 n. 8, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992); Penry v. State, 908 S.W.2d 715, 751 (Tex.Crim.App.1995).

Crawford, however, abrogated Roberts with respect to out-of-court statements that are “testimonial” in nature. Crawford, 124 S.Ct. at 1374. The court explained:

Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.

Id. Thus, under Crawford, the admission of testimonial hearsay violates the Confrontation Clause unless the declarant is shown to be unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant. Id.

The Crawford court declined to provide a comprehensive definition of “testimonial,” although it did note three formulations of core testimonial evidence: (1) “ex paite in-court testimony or its functional equivalent,” such as affidavits, custodial examinations, prior trial testimony not subject to cross-examination, or “similar pretrial statements that declarants would reasonably expect to be used prosecutorially”; (2) extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; and (8) “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id. at 1364. The court further noted that “[wjhatever else the term [testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id. at 1374. With respect to police interrogations, the court noted that it used “the term ‘interrogation’ in its colloquial rather than any technical legal, sense.” Id. at 1365 n. 4.

In this case, however, we need not resolve whether Maria’s statements to the police were testimonial because Gonzalez forfeited his right of confrontation under the doctrine of forfeiture by wrongdoing. In Crawford, the court stated that it would continue to recognize the doctrine of forfeiture by wrongdoing, which “extinguishes confrontation claims on essentially equitable grounds.” Id. at 1370. As the Supreme Court explained more than a hundred years ago:

The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own [the accused’s] wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated.

Reynolds v. United States, 98 U.S. 145, 158, 25 L.Ed. 244 (1879). Thus, the doctrine of forfeiture by wrongdoing “embraces the equitable principle that a defendant who has rendered a witness unavailable for cross-examination through a criminal act ... may not object to the introduction of hearsay statements by the witness on Confrontation Clause grounds.” People v. Giles, 123 Cal.App.4th 475, 19 Cal.Rptr.3d 843, 847 (2004). In light of this doctrine, we hold that Gonzalez is precluded from objecting to the introduction of Maria’s statements on Confrontation Clause grounds because it was his own criminal conduct (in this case, murder) that rendered Maria unavailable for cross-examination.

Gonzalez argues that a defendant forfeits a Confrontation Clause objection through wrongdoing only when he is charged with or is under investigation for a crime, and wrongfully procures the witness’s absence from trial with the intent of preventing the witness from testifying about that crime. See United States v. Houlihan, 92 F.3d 1271, 1279-80 (1st Cir.1996) (describing the doctrine of forfeiture by wrongdoing as applying when the defendant causes a potential witness’s unavailability by a wrongful act undertaken with the intention of preventing the potential witness from testifying at a future trial). Gonzalez asserts that because there is no evidence he shot Maria with the intention of preventing her testimony at a future trial, the doctrine of forfeiture by wrongdoing does not apply. Although United States v. Houlihan suggests that the procurement of the witness’s absence must be motivated by a desire to silence the victim for the forfeiture by wrongdoing doctrine to apply, we see no reason why the doctrine should be limited to such cases. See Giles, 19 Cal.Rptr.3d at 848. A defendant whose wrongful act renders a witness unavailable for trial benefits from his conduct if he can use the witness’s unavailability to exclude otherwise admissible hearsay statements. This is true whether or not the defendant specifically intended to prevent the witness from testifying at the time he committed the act that rendered the witness unavailable. Gonzalez’s first issue is therefore overruled.

Jury Charge on Lesser Included Offense

Gonzalez also complains that the trial court erred in failing to instruct the jury on a lesser included offense. The trial court’s charge instructed the jury on capital murder and on the lesser included offense of aggravated robbery, but did not include Gonzalez’s requested instruction on the unauthorized use of a motor vehicle, which may be a lesser included offense of aggravated robbery. See Johnson v. State, 84 S.W.3d 726, 730 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). Because the court failed to include an instruction on the unauthorized use of a motor vehicle, Gonzalez contends the trial court committed reversible error. We disagree.

When reviewing charge errors, an appellate court undertakes a two-step review: first, the court must determine whether error actually exists in the charge; second, if the court finds error, it must determine whether sufficient harm resulted from the error to require reversal. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984). When, as here, there has been a timely objection made at trial, an appellate court will reverse only if “the error is not harmless.” Id. In determining the degree of harm, we look to the entire jury charge, the state of the evidence, the arguments of counsel, and any other relevant information revealed by the record. Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996).

To determine whether Gonzalez was entitled to a charge on a lesser included offense, we apply a two-prong test. Feldman v. State, 71 S.W.3d 738, 750 (Tex.Crim.App.2002). First, the lesser included offense must be included within the proof necessary to establish the offense charged. Id. Second, some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Id. “In other words, there must be some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser-included offense.” Id. at 750-51. The record evidence “must establish the lesser-included offense as a valid rational alternative to the charged offense.” Id. at 751.

Although unauthorized use of a motor vehicle may be a lesser included offense of aggravated robbery, see Johnson, 84 S.W.3d at 730, we do not believe there is any evidence in the record that would permit a rational jury to find that if Gonzalez is guilty, he is guilty only of unauthorized use of a motor vehicle. The record reveals that before the murders, Alex Aguilar observed Gonzalez and another person standing outside of the Herreras’ residence. Sometime thereafter, the Herreras were shot. When officers arrived at the scene of the crime, Maria Herrera gave the officers a description of her assailant and told them that the assailant stole her truck. Authorities located Maria’s stolen vehicle being driven by an individual fitting the description given by Maria. After authorities stopped the individual (Gonzalez) authorities found property belonging to the Herreras on his person. In addition, authorities discovered Maria’s blood on Gonzalez’s sneakers. Based on the testimony, we cannot say that the record contains evidence that would permit the jury to conclude Gonzalez is guilty only of unauthorized use of a motor vehicle.

Nevertheless, even if we were to assume Gonzalez was entitled to an instruction on the unauthorized use of a motor vehicle, the trial court’s failure to give the jury the requested instruction did not harm Gonzalez. When the jury found that Gonzalez was guilty of the greater offense of capital murder, the jury necessarily rejected the theory that Gonzalez was guilty, if at all, solely of the lesser included offense of aggravated robbery. Because unauthorized use of a motor vehicle is a lesser included offense of aggravated robbery, the jury would necessarily have rejected the theory that Gonzalez was guilty, if at all, solely of the lesser included offense of unauthorized use of a motor vehicle. Conversely, if the jury had believed Gonzalez was guilty only of unauthorized use of a motor vehicle, it would most likely not have convicted Gonzalez of capital murder when it had the option of convicting Gonzalez of aggravated robbery. Under the facts of this case, Gonzalez was not harmed by the trial court’s failure to include a jury charge on the lesser included offense of unauthorized use of a motor vehicle. Gonzalez’s second issue is therefore overruled. See Saunders v. State, 913 S.W.2d 564, 572 (Tex.Crim.App.1995).

Conclusion

Based of the foregoing, we affirm the trial court’s judgment.

      . The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him.” U.S. Const, amend VI.

      . Gonzalez conceded during oral argument that Maria’s statements concerning who committed the offense, the shooter's physical characteristics, and the shooter’s place of residence were essentially excited utterances.

      . Some of the statements were made minutes after the shooting while others were made within thirty to forty-five minutes of it.

      . We seriously question whether the statements Maria made to the investigating officers can be classified as "testimonial” statements under Crawford. It appears that testimonial statements under Crawford have an official and formal quality about them. Here, Maria’s statements were not given in a formal setting; given during any type of pretrial hearing or deposition; contained within a formalized document of any kind; or made under circumstances which would lead an objective person to reasonably believe that the statement would be available for use at a later trial. See Samarron v. State, 150 S.W.3d 701, 705-07 (Tex.App.San Antonio 2004, no pet. h.) (holding witness's formal, signed, written statement given at the police station one hour after the crime following structured police questioning was testimonial). Admittedly, Maria gave her statement in direct response to police questioning. Officers asked Maria what had happened and Maria responded that she had been shot, gave a physical description of the shooter, and gave a location where the shooter might be found. Although the interaction between Maria and the officers occurred during the course of the officers’ "official” duties, we are not convinced that investigatory questioning immediately after a crime has been committed rises to the level of an "interrogation.” An unstructured interaction between an officer and witness shortly after a distressing event has occurred, like that which occurred here, simply does not fit within a lay conception of "interrogation.” See Crawford, 124 S.Ct. at 1365 n. 4. Thus, it is unlikely that Maria's statements would be considered testimonial and, therefore, precluded by Crawford's Confrontation Clause analysis.

      . See id. We believe it is of no consequence in this case that the issue of forfeiture by wrongdoing was not litigated below. An evi-dentiary ruling, such as the one admitting Maria’s out-of-court statements, will be upheld on appeal if it is correct on any theory of law that finds support in the evidence. Bee v. State, 974 S.W.2d 184, 190 (Tex.App.-San Antonio 1998, no pet.). In future cases, we encourage the trial courts to consider the forfeiture issue at the time they are confronted with a Confrontation Clause objection. When making its forfeiture determination, a court should consider the evidence admitted up to that point in the proceeding and, if necessary, hold a hearing outside the presence of the jury to take additional evidence. If there is sufficient evidence to demonstrate forfeiture, the court should admit the evidence over the defendant’s objection and set forth on the record its factual findings that support a forfeiture to allow for a meaningful appellate review of the forfeiture issue.

      . Several courts have applied the forfeiture by wrongdoing doctrine in cases where the defendant is charged with the same homicide that rendered the witness unavailable. See Giles, 19 Cal.Rptr.3d at 851 (holding that if the reason the victim cannot testify at trial is that the accused murdered her, then the accused should be deemed to have forfeited the confrontation right, even though the act with which the accused is charged is the same as the one by which he allegedly rendered the witness unavailable); People v. Moore, No. 01CA1760, — P.3d —, —, 2004 WL 1690247, *4 (Colo.Ct.App. Jul.29, 2004) (same); State v. Meeks, 277 Kan. 609, 88 P.3d 789, 794 (Kan.2004) (same).


source: Caselaw Access Project

author: ALMA L. LÓPEZ, Chief Justice.

license: Public Domain

text:
    Melvin Lee CRAWFORD, Appellant, v. The STATE of Texas, Appellee.
    Nos. 04-03-00425-CR, 04-03-00426-CR, 04-03-00427-CR.
    Court of Appeals of Texas, San Antonio.
    Dec. 15, 2004.

      Melvin Lee Crawford, San Antonio, for appellant.
    Daniel Thornberry, Asst. Criminal Dist. Atty., San Antonio, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice.
   OPINION

Opinion by

ALMA L. LÓPEZ, Chief Justice.

Melvin Lee Crawford appeals the trial court’s judgments revoking his probation. On April 7, 2004, we issued an opinion abating these appeals to the trial court. See Crawford v. State, 138 S.W.3d 16 (Tex.App.-San Antonio 2004, no pet.). Although Crawford’s then appointed appellate attorney, who had also served as trial counsel, filed an Anders brief in each of these appeals, we noted that the appeals presented an arguable point of error. See id. at 18. Specifically, trial counsel filed a “Request for Nunc Pro Tunc Order to Formally Consolidate the Above Cases” in an effort to clarify that the underlying cases were consolidated for purposes of federal sentencing guidelines; however, trial counsel failed to obtain a ruling on the request. See id. In filing the motion, trial counsel was obviously aware of the need for the consolidation issue to be clarified because Crawford was in federal custody serving time for a federal offense. Crawford states that the absence of the consolidation increases a five year sentence to a twelve year sentence. Despite the caution taken in filing the nunc pro tunc request, trial counsel did not pursue the critical step of obtaining a ruling on the motion. In our earlier opinion, we concluded that the contention that trial counsel was ineffective in failing to request a ruling was an arguable point of error requiring further briefing. Id.

Crawford’s newly appointed counsel has filed a brief presenting two issues: (1) trial counsel was ineffective in failing to obtain a ruling on the nunc pro tunc request; and (2) the offenses were consolidated as a matter of law. The State responds that the effective assistance of counsel requirement does not extend to collateral consequences such as whether the cases were consolidated. In addition, the State notes that various factors must be considered in determining whether cases were consolidated for federal sentencing purposes. Reluctantly, we must agree with the State.

While the Sixth Amendment assures an accused of effective assistance of counsel in criminal prosecutions, this assurance does not extend to “collateral” aspects of the prosecution. Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App.1997). A consequence is “collateral” if it is not a definite, practical consequence of a defendant’s guilty plea. Id. The enhancing effect of a state conviction on a federal sentence is a collateral consequence. See, e.g., United States v. Cockrum, 35 F.3d 572 (Table), 1994 WL 468024 (9th Cir. Aug.30, 1994) (not designated for publication); United States v. Edwards, 911 F.2d 1031, 1035 (5th Cir.1990); McCall v. United States, 2002 WL 32181345 (D.Conn. Dec.19, 2002); Adkins v. State, 911 S.W.2d 334, 350 (Tenn.Crim.App.1994). Accordingly, Crawford’s right to effective assistance of counsel did not extend to any actions trial counsel failed to take in regard to pursuing the consolidation of the underlying cases for purposes of federal sentencing guidelines. Crawford’s first issue is overruled.

Crawford also contends that we should hold that his offenses were consolidated as a matter of law. Whether offenses are consolidated for federal sentencing purposes, however, is a highly fact intensive issue which this court is not authorized to resolve. See Buford v. United States, 532 U.S. 59, 59, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001); Bellefonte Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 744-45 (Tex.1986). Crawford’s second issue is overruled.

The trial court’s judgments are affirmed.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Although the majority in Morrow held counsel was not constitutionally required to advise defendants with regard to collateral consequences, the majority noted "it is highly desirable that both state and federal counsel develop the practice of advising defendants of the collateral consequences of pleading guilty.” 952 S.W.2d at 537. In his dissent, Judge Baird cites a case holding that failing to advise a defendant regarding a collateral consequence may result in ineffective assistance of counsel where "counsel has reason to know that particular collateral consequences are a concern to a defendant.” Id. at 540-41 (Baird, J., dissenting) (citing People v. Garcia, 799 P.2d 413, 415 (Colo.App.1990), aff'd, 815 P.2d 937 (Colo.1991)). We are constrained by Morrow to conclude that counsel’s actions were within the range of competence demanded of attorneys in criminal cases; however, we do not condone trial counsel’s failure to pursue a ruling with regard to a collateral consequence that trial counsel knew was a concern to Crawford.


author: PHYLIS J. SPEEDLIN, Justice.

text:
    Josie KRUEGER, Appellant, v. ATASCOSA COUNTY, a Self-Insured Governmental Entity, Appellee.
    No. 04-04-00242-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 15, 2004.

      Alan D. Tysinger, Miller & Tysinger, P.C., San Antonio, for appellant.
    Deborah H. Loomis, Michael Shaunessy, Shaunessy, Burnett & Greenberg, P.C., Austin, for appellee.
    Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

PHYLIS J. SPEEDLIN, Justice.

Josie Krueger appeals the trial court’s summary judgment granted in favor of her employer, Atascosa County, denying her claim for worker’s compensation benefits. We affirm the judgment of the trial court.

Factual and Procedural Background

The underlying facts and relevant dates are not disputed by the parties. Appellant Josie Krueger was employed as a dispatcher with the Atascosa County Sheriffs department for nine years. On October 12, 1999, she dispatched several deputies and a state trooper to investigate a domestic violence report. The sheriffs deputies and state trooper were ambushed and three were killed at the scene. Krueger heard part of the violence over an open cell phone line. She remained at her post and dealt with the situation from approximately 8:00 p.m. until her shift ended at 8:00 a.m. Krueger knew the officers who were killed and their families. After the incident, she suffered severe anxiety and depression, with difficulty sleeping and nightmares. She was diagnosed with post-traumatic stress disorder by a licensed professional counselor and a psychiatrist; however, she did not miss any days of work due to her psychological condition. Krueger resigned from the sheriffs department on March 31, 2001.

On March 28, 2001, Krueger filed a claim for worker’s compensation benefits and Atascosa County filed an employer’s report of injury. Nine days later, on April 6, 2001, the Fund filed a notice of refused/disputed claim. Krueger then filed her claim with the Texas Workers’ Compensation Commission (“TWCC”) on June 19, 2001. A contested case hearing was held on November 27, 2001, before a TWCC hearing officer. The Fund argued Krueger failed to timely notify her employer of her injury, failed to file her claim within one year and did not suffer a com-pensable injury or disability. Krueger asserted at the hearing that the Fund had waived its right to contest compensability of her injury because its notice of dispute was filed outside the seven-day period prescribed by § 409.021(a) of the Texas Labor Code. On December 12, 2001, the hearing officer rendered a decision finding Krueger had sustained a compensable mental trauma injury and had suffered a disability, and ordering the Fund to pay medical and income benefits. The hearing officer found that Krueger timely notified her employer of the injury and timely filed her claim because the one-year period was tolled by her employer’s delay in filing its report of injury until March 28, 2001. The hearing officer also found, however, that the Fund had not waived its right to contest compensability of the injury.

The Fund appealed the hearing officer’s decision to the TWCC Appeals Panel, presenting the same issues with regard to compensability that it raised in the contested case hearing. Krueger, who was not represented by an attorney, did not file a response to the Fund’s appeal or pursue her own appeal from the adverse ruling on Downs waiver. In a decision issued on March 4, 2002, the Appeals Panel affirmed the hearing officer’s findings that Krueger had sustained a compensable mental trauma injury and had timely notified her employer of her injury. However, the Appeals Panel reversed the hearing officer’s determination that Krueger’s injury was compensable, finding that she failed to timely file her claim within one year of the injury. The panel further found no evidence of good cause for her failure to timely file the claim. Having determined there was no compensable injury, the panel concluded there could be no disability, and reversed the award of benefits.

On April 15, 2002, Krueger filed a petition in district court seeking judicial review of the decision by the TWCC Appeals Panel. Krueger asserted her Downs waiver argument in her original petition, contending that the Fund had waived its right to contest compensability of her injury by not filing its notice of dispute within seven days in violation of Sections 409.021 and 409.022 of the Texas Labor Code. Tex. Lab.Code Ann. §§ 409.021-.022 (Vernon 1996). Cross motions for summary judgment were filed. Krueger moved for a partial summary judgment on the basis of her Downs waiver argument. The Fund’s motion for summary judgment asserted the facts were undisputed that Krueger did not timely notify her employer of her injury, did not file her claim within one year of the injury, did not establish good cause to excuse the delay, and did not sustain an actual injury. The Fund also argued Krueger was barred from raising the Downs waiver issue in the trial court because she did not raise the issue before the TWCC Appeals Panel. In a judgment signed January 13, 2004, the trial court granted the Fund’s motion for summary judgment, denied Krueger’s motion for summary judgment, and denied her claim for benefits.

Analysis

On appeal, Krueger raises two issues: (1) whether her Downs issue of whether the Fund waived its right to contest com-pensability of her claim was barred on judicial review; and (2) whether summary judgment was improper because there is a genuine issue of material fact on the element of disability. Krueger asserts she was not barred from raising the Downs waiver issue on judicial review because it was presented during the TWCC administrative process, and the issue of waiver was inter-related with the issue of com-pensability. The Fund responds that because Krueger did not present the issue of Downs waiver to the TWCC Appeals Panel, she did not preserve her right to assert the waiver issue in the trial court. It argues this case is controlled by our prior decision in Hefley v. Sentry Ins. Co., 131 S.W.3d 63 (Tex.App.-San Antonio 2003, pet. filed). The Fund also asserts the summary judgment must be affirmed because there is no disputed fact issue that Krueger did not timely notify her employer of her injury, did not timely file her claim within one year, and did not suffer a compensable injury or disability; alternatively, the Fund argues that Krueger did not sustain an actual injury. We will address each of Krueger’s two issues.

Preservation of Waiver Issue for Judicial Review

The first issue presented by Krueger is whether she was barred from raising her Downs waiver issue on judicial review because she did not present the issue to the TWCC Appeals Panel. The broader issue is whether a workers’ compensation claimant who obtains a favorable result at the TWCC case hearing, ie., an award of benefits, but against whom an adverse ruling is made, must present that adverse ruling to the TWCC Appeals Panel in order to preserve the right to raise the issue on judicial review.

The Fund argues that the plain language of § 410.302 of the Texas Labor Code and our prior opinion in Hefley require us to hold Krueger waived the Downs issue by failing to raise it before the TWCC Appeals Panel. Krueger contends Hefley is distinguishable because she exhausted her administrative remedies by raising the waiver issue at the TWCC contested case hearing, and did not raise it for the first time on judicial review. Krueger further asserts it is not logical or fair to require a pro se claimant to appeal from a favorable decision merely to preserve an issue for potential later review.

The language of section 410.302 is plain and unambiguous:

A trial under this subchapter is limited to issues decided by the commission appeals panel and on which judicial review is sought. The pleadings must specifically set forth the determinations of the appeals panel by which the party is aggrieved.

Tex. Lab.Code Ann. § 410.302 (Vernon 1996). Statutory construction issues are legal questions reviewed de novo. Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.1989). When the statutory language is unambiguous, the reviewing court adopts the interpretation supported by the plain and common meaning of the statute’s words. Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000). The language of § 410.302 must be given its plain meaning, which is that judicial review is limited to issues “decided by” the TWCC Appeals Panel.

The cases interpreting § 410.302 hold that a party may not raise an issue in the trial court which was not raised before the TWCC Appeals Panel. In Hefley, this court held the trial court did not err in striking a claimant’s allegation of Downs waiver where it was undisputed that the TWCC Appeals Panel did not decide the issue. Hefley, 131 S.W.3d at 65 (holding Hefley’s failure to exercise his right to raise the waiver issue before the Appeals Panel precluded him from raising it for the first time in the trial court); see also, e.g., St. Paul Ins. Co. v. Mefford, 994 S.W.2d 715, 719-20 (Tex.App.-Dallas 1999, pet. denied) (holding carrier’s failure to raise its right to re-open compensability issue before Appeals Panel precluded trial court from considering issue on judicial review). The statute applies equally to claimants and insurance carriers, and restricts judicial review to issues raised before the TWCC Appeals Panel regardless of which party initiates the appeal. In TIG Premier Ins. Co. v. Pemberion, the court held the workers’ compensation claimant forfeited his right to challenge the case hearing officer’s finding of no causal relationship because he did not raise the issue with the Appeals Panel, even though the insurance carrier was the party who appealed. TIG Premier Ins. Co. v. Pemberton, 127 S.W.3d 270, 276 (Tex.App.-Waco 2003, pet. denied) (finding claimant failed to exhaust administrative remedies). Similarly, in Trinity Universal Ins. Co. v. Berryhill, the court held a claimant could not raise a Downs waiver argument for the first time in the trial court because the issue had not been presented to the TWCC Appeals Panel considering the carrier’s appeal of the benefits award. Trinity Universal Ins. Co. v. Berryhill, No. 14-03-00629-CV, 2004 WL 744417, at * 3 (Tex.App.-Houston [14th Dist.] Apr. 8, 2004, no pet.).

We empathize with the position of an unrepresented claimant who receives an award of benefits, along with an adverse ruling on a related issue, and must determine how to protect that award on appeal. The statute is clear, however, that the issue on which either party seeks judicial review must have been “decided by” the TWCC Appeals Panel. See Tex. Lab.Code Ann. § 410.302. Here, the Appeals Panel’s own decision clearly states that it did not consider the Downs waiver issue. The panel’s decision expressly states, “the determination that [the] carrier did not waive the right to contest compensability has not been appealed.” The panel’s decision further notes that Krueger did not file a response to the appeal. See Tex. Lab.Code Ann. § 410.202(b) (Vernon Supp. 2004-05) (“[t]he respondent shall file a written response with the appeals panel ...”). Therefore, even though Krueger did raise the Downs waiver issue during the TWCC administrative process, because she did not present the issue to the TWCC Appeals Panel, either through a direct appeal or a response to the Fund’s appeal, she is precluded from raising the issue in the trial court.

Finally, we agree with the Houston Court of Appeals, Fourteenth District, that we may not read a “good cause” exception into § 410.302 that would permit expansion of the scope of judicial review and allow consideration of an issue that was not decided by the TWCC Appeals Panel. See Berryhill, 2004 WL 744417 at * 3; see also ESIS, Inc., Servicing Contractor v. Johnson, 908 S.W.2d 554, 562 (Tex.App.-Fort Worth 1995, writ denied) (interpreting § 410.302 and holding “[tjhere is no provision in the Act authorizing the trial court to enlarge this scope of review by considering issues, or evidence probative of issues, that were not determined by the commission appeals panel”). Accordingly, Krueger’s first issue is overruled.

SummaRY Judgment

The second issue presented by Krueger is whether the trial court erred in granting the Fund’s summary judgment motion because there was a genuine issue of material fact on the element of disability. For the reasons set forth below, we disagree.

In the trial court, Krueger moved for partial summary judgment on compensa-bility of her injury, asserting that under Downs the Fund had waived its right to contest compensability of her injury by failing to timely file its notice of refusal; her motion was denied. The Fund also moved for summary judgment on the com-pensability of Krueger’s injury, arguing the facts were undisputed that Krueger did not timely notify her employer of the injury, did not file her claim within one year of the injury and did not establish good cause to excuse the delay; the Fund alternatively argued that Krueger did not sustain an actual injury. The Fund’s motion was granted, but the court did not specify the ground upon which summary judgment was granted. On appeal, Krueger only challenges the summary judgment as improper on one ground — because there was a fact issue on the element of disability. She does not address the other grounds upon which summary judgment could have been granted.

We review a trial court’s summary judgment ruling de novo. Estate of Arlitt v. Paterson, 995 S.W.2d 713, 717 (Tex.App.-San Antonio 1999, pet. denied). District court summary judgment orders in worker’s compensation cases are reviewed under traditional summary judgment standards. Texas Workers’ Comp. Ins. Fund v. Simon, 980 S.W.2d 730, 733 (Tex.App.San Antonio 1998, no pet.). The movant for a traditional summary judgment must show that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law on a ground expressly set forth in the motion. Tex.R.Civ. P. 166a(c); see Simon, 980 S.W.2d at 733 (citing Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985)). When reviewing a summary judgment, we take all evidence favorable to the non-movant as true. Nixon, 690 S.W.2d at 548-49. If the movant establishes its right to summary judgment as a matter of law, the burden then shifts to the non-movant to raise fact issues that would preclude summary judgment. Simon, 980 S.W.2d at 733 (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979)).

In granting summary judgment, the trial court is limited to the specific grounds set forth in the motion. City of Houston, 589 S.W.2d at 677. If the judgment does not specify the ground relied upon for granting summary judgment, the judgment must be affirmed if any of the grounds in the motion have merit. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001). An appellant must attack every ground upon which summary judgment could have been granted to obtain a reversal. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970). When the appellant does not expressly challenge every ground stated in the motion for summary judgment by specific points of error, or a broad issue, the summary judgment must be affirmed if there is an unchallenged ground upon which the trial court could have based the summary judgment. Id.; see also Fetty v. Miller, 905 S.W.2d 296, 299 (Tex.App.-San Antonio 1995, writ denied). Unless an appellant has specifically challenged every possible ground for summary judgment, the appellate court need not review the merits of the challenged ground and may affirm on an unchallenged ground. Reese v. Beaumont Bank, N.A., 790 S.W.2d 801, 804-05 (Tex.App.-Beaumont 1990, no writ).

Krueger only challenges the summary judgment on the basis that there is a fact question as to whether she had a disability. Within the Texas Worker’s Compensation Act, the term “disability” is defined as “the inability because of a com-pensable injury to obtain and retain employment at wages equivalent to the prein-jury wage.” Tex. Lab.Code Ann. § 401.011(16) (Vernon Supp. 2004-05). Thus, a disability is dependent on the existence of a compensable injury. A “com-pensable injury” is “an injury that arises out of and in the course and scope of employment for which compensation is payable under this subtitle.” Tex. Lab. Code ANN. § 401.011(10) (Vernon Supp. 2004-05). A benefit is payable for a job-related injury only if a claim is timely filed within one year of the injury, unless good cause exists for a delay in filing the claim. See Tex. Lab.Code Am §§ 409.003-.004 (Vernon 1996). Section 409.004 provides that the employer and its insurance carrier are relieved of liability under the act if the claim is not filed within one year, absent good cause. Tex. Lab.Code Ann. § 409.004.

Here, it is undisputed that Krueger’s injury occurred on October 12, 1999; thus, to be timely, her claim had to be filed no later than October 11, 2000. It is similarly undisputed that Krueger filed her claim on June 19, 2001, well after the one-year period expired. Therefore, Krueger’s claim is time-barred and summary judgment was proper because she does not have a “compensable injury,” unless she raised a fact issue as to whether she had good cause for the delay in filing her claim. See Tex. Lab.Code Ann. § 409.004; see Lee v. Houston Fire & Cas. Ins. Co., 530 S.W.2d 294, 295-96 (Tex.1975). Krueger presented no evidence of “good cause” to excuse the delay in filing her claim; in fact, she admitted the delay was due to her ignorance of workers’ compensation law. Ignorance of the requirements of Texas workers’ compensation law does not constitute good cause for failing to timely file a claim. Id. at 297 (ignorance of time period for filing claim will not excuse delay); see also Allstate Ins. Co. v. King, 444 S.W.2d 602, 605 (Tex.1969). In addition, good cause must continue until the date the claim was actually filed. Lee, 530 S.W.2d at 296. Krueger admitted she became aware of the workers’ compensation law two months before her claim was filed; therefore, even if ignorance of the law could be good cause, it would not have continued until the date her claim was filed.

Because the evidence is undisputed that Krueger did not file her claim within one year of the injury, and did not have good cause to excuse the delay, she did not have a compensable injury. Without a compen-sable injury, there can be no fact question as to disability. Krueger’s second issue is overruled. Because we affirm the trial court’s summary judgment on this basis, we do not address the remaining alternative grounds for summary judgment. Villanueva v. Gonzalez, 123 S.W.3d 461, 467 (Tex.App.-San Antonio 2003, no pet.).

Based on the foregoing reasons, we affirm the trial court’s judgment.

      . Appellee Atascosa County is a self-insured governmental entity that provides worker’s compensation insurance to its employees through the Texas Association of Counties Workers’ Compensation Self-Insurance Fund (the "Fund”). Atascosa County was represented by the Fund in the administrative proceedings and trial court, and continues to be represented by the Fund on appeal.

      . The record contains some evidence that Krueger was paid worker’s compensation benefits from April 1, 2001, to March 16, 2002. The initiation of payments by an insurance carrier does not affect its right to continue to investigate or deny the compensability of an injury during the 60-day period after notification of the injury. Tex. Lab.Code Ann. § 409.021(c) (Vernon Supp. 2004-05).

      .Krueger’s waiver argument pre-dated the Texas Supreme Court’s opinion in Continental Casualty v. Downs, but is based on the same principle that an insurance carrier’s failure to begin paying benefits, or give written notice of refusal to pay, within the seven-day period prescribed by Section 409.021(a) of the Texas Labor Code results in a forfeiture of the carrier’s right to contest compensability of the employee’s injury. See Tex. Lab.Code Ann. § 409.021(a) (Vernon 1996); see also Cont'l Cas. Co. v. Downs, 81 S.W.3d 803, 804 (Tex.2002). The parties refer to Krueger’s waiver argument as a Downs waiver issue, and we adopt that reference for purposes of consistency.

      . The hearing officer found Krueger timely notified her employer of her injury based on evidence that she informed a supervisor on October 25, 1999, that she was "having problems due to the October 12, 1999, incident."

      . The parties agreed that the trial court would decide the case based on the administrative record from the TWCC. The record contains an incomplete transcript of the TWCC case hearing due to a defective audio tape. Accordingly, we review the trial court’s judgment based on the record that is before us.

      . The judgment does not specify whether Krueger’s summary judgment motion was denied because the court found she was barred from raising the Downs waiver issue, or because there was a disputed fact question on the Downs waiver issue. As noted, the record contains some evidence that the Fund began paying Krueger benefits within the seven-day period prescribed by § 409.021(a); therefore, the court could have found there was a genu-iñe issue of material fact on the waiver issue which precluded granting Krueger’s summary judgment motion. However, the Fund did not argue there was a contested fact issue on waiver in its response to her summary judgment motion, and that argument is not preserved or presented on appeal. See Tex.R. Civ. P. 166a(c); State Bd. of Ins. v. Westland Film Indus., 705 S.W.2d 695, 696 (Tex.1986).

      . The Fund raises a related argument that the hearing officer’s finding of no Downs waiver became final when it was not appealed to the TWCC Appeals Panel, and is therefore res judicata under § 410.169 of the Texas Labor Code. See Tex. Lab.Code Ann. § 410.169 (Vernon 1996) ("[a] decision of a hearing officer regarding benefits is final in the absence of a timely appeal ... ”). Krueger asserts the finding of no waiver was not a decision "regarding benefits.” In view of our conclusion that Krueger forfeited her right to raise the Downs issue by failing to raise it before the Appeals Panel, we need not address the Fund’s argument on this point.


text:
    In re SOUTHWEST AIRLINES CO.
    No. 04-04-00700-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 29, 2004.

      J. Joe Harris, Bracewell <& Patterson, L.L.P., San Antonio, for appellant.
    L.H. Steven Savola, Ferraro & Associates, P.A., Miami, FL, Bruce J. Mery, San Antonio, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
   OPINION

Opinion by

ALMA L. LÓPEZ, Chief Justice.

The issue presented in this mandamus proceeding is whether the offensive-use doctrine precludes the plaintiffs in the underlying lawsuit from asserting the attorney-client privilege in an effort to resist certain discovery sought by Southwest Airlines Co. We hold that the trial court abused its discretion in denying Southwest’s motion to compel because the attorney-client privilege was waived under the offensive-use doctrine. We conditionally grant mandamus relief.

Background

The plaintiffs in the underlying lawsuit sued Southwest for personal injuries they allegedly sustained after being exposed to chemicals while working at a reservation center in San Antonio. The plaintiffs worked at the reservation center during the 1980’s and early 1990’s. The latest any of the plaintiffs worked at the reservation center was November 1995. The plaintiffs did not file their lawsuit until 2002. Southwest asserted a limitations defense. In response to discovery, each of the plaintiffs stated:

I believe I was exposed to hazardous indoor ah' quality from the time employed. The hazardous indoor air quality was not suspected until advised by my doctors. The Defendants, Southwest Airlines, at all times denied causation. The fact that Southwest Airlines covered up the extent of the unreasonably dangerous indoor ah' quality condition was not known until November 2001.
The Defendant, Southwest Airlines, denied and concealed the presence of contaminants. I was unaware of the concealment until discoveiy of matter by my attorney which was communicated to me in November of 2001.

During each of the plaintiffs’ depositions, Southwest sought to ask questions regarding what was communicated to the plaintiffs in November of 2001, but the plaintiffs’ attorney instructed the plaintiffs not to respond claiming the information was protected by the attorney-client privilege. Southwest contends that it needed to discover what was learned to determine, inter alia, if (1) the information was something the plaintiffs knew prior to that date, or (2) was information which the plaintiffs could have known prior to that date by exercising reasonable diligence. Southwest filed a motion to compel asserting the offensive use doctrine resulted in a waiver of the attorney client privilege. The trial court denied Southwest’s motion.

Discussion

Mandamus issues only to correct a clear abuse of discretion when there is no other adequate remedy by law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). With respect to factual issues, a trial court abuses its discretion if its decision is shown to be arbitrary and unreasonable. See id. at 839-40. A trial court has no discretion in determining what the law is or in applying the law to the facts, and a failure to apply the law correctly to the facts will constitute an abuse of discretion. See id.

A plaintiff cannot use one hand to seek affirmative relief in court and with the other lower an iron curtain of silence against otherwise pertinent and proper questions which may have a bearing upon his right to maintain his action. Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 108 (Tex.1985). The attorney-client privilege can be waived by the offensive use of it. Republic Ins. Co. v. Davis, 856 S.W.2d 158, 163 (Tex.1993). The following factors guide a court in determining whether a waiver under the offensive-use doctrine has occurred: (1) the party asserting the privilege must seek affirmative relief; (2) the information must be such that if believed by the factfinder, in all probability, it would be outcome determinative of the cause of action, i.e., it must go to the very heart of the affirmative relief sought; and (3) disclosure of the confidential communication must be the only means by which the aggrieved party can obtain the evidence. Id.

Applying these factors, the plaintiffs clearly seek affirmative relief. In Ginsberg, the Texas Supreme Court granted mandamus relief when a plaintiff sought to use a privilege to protect against the disclosure of information that was “materially relevant to, and possibly validate[d], the statute of limitations defenses asserted by” the defendant. 686 S.W.2d at 106. Similarly, in this case, Southwest’s ability to succeed on its limitations defense hinges on what was discovered in the November 2001 communication; therefore, the information is outcome determinative. Finally, disclosure of the communication is the only means by which Southwest can obtain evidence regarding the plaintiffs’ affirmative defense to Southwest’s limitations defense because the communication contains the information on which the plaintiffs seek to rely to defeat limitations.

In their response to Southwest’s mandamus petition, the plaintiffs challenge the second and third factors required to show waiver under the offensive-use doctrine, that is: (1) information is outcome determinative; and (2) disclosure of confidential communication is the only means to obtain evidence. First, the plaintiffs contend the information is not outcome determinative, asserting, “It is the Defendant’s burden to prove when the statute of limitations commenced and as such has no relevance to the November 2001 date.” Southwest’s contention is that the information is outcome determinative of the limitations issue because the dates of employment will necessarily require the plaintiffs to rely on the discovery rule or fraudulent concealment as an affirmative defense to limitations. Ginsberg supports the conclusion that the information communicated in November of 2001 would be outcome determinative of the limitations defense because Southwest would prevail on limitations if it could show that the information obtained during the November 1, 2001 communication was known or could have been discovered prior to November of 2001 with the exercise of reasonable diligence.

The plaintiffs also challenge whether the disclosure of the confidential communication is the only means to obtain the evidence, stating they have never been asked questions “concerning why they were previously unaware of, when they could have discovered, or by the exercise of reasonable diligence should have discovered the information that serves as the basis for the cause of action.” By this argument, it would appear to be the plaintiffs’' contention that Southwest is required to accept their position regarding whether the information was previously discovered or could previously have been discovered. Without knowing the content of the information, Southwest would have no means to rebut the position taken by the plaintiffs in response to the questions they suggest Southwest should be required to pose. The plaintiffs also state that the information can be found in documents already provided because they have described numerous occasions when Southwest was aware of the dangerous conditions. The issue in the limitations context, however, is not when Southwest became aware of the conditions but when the plaintiffs became aware of the conditions or of the fact that Southwest was concealing the conditions.

Conclusion

The trial court abused its discretion in denying Southwest’s motion to compel answers to deposition questions. Accordingly, we conditionally grant the writ of mandamus. The writ will only issue if the trial court fails to modify its order within ten days from the date of our opinion and order.


author: LEE ANN DAUPHINOT, Justice.

text:
    Roy Charles BROWN, Appellant, v. The STATE of Texas, State.
    No. 2-04-055-CR.
    Court of Appeals of Texas, Fort Worth.
    Dec. 30, 2004.

      George E. West II, Law Offices of George E. West II, Dallas, for Appellant.
    Bruce Isaacks, Criminal District Atty., Charles E. Orbison, Matthew J. Shovlin, and Jeff Fleming, Asst. District Attorneys, Dallas, Matthew Paul, State Prosecuting Atty., Austin, for Appellee.
    Panel F: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
   OPINION

LEE ANN DAUPHINOT, Justice.

Appellant Roy Charles Brown was convicted of burglary of a habitation and, after pleading true to an enhancement paragraph, was sentenced to fifty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. In five points, Appellant complains about the indictment, the jury charge, notice of the enhancement, and ineffective assistance of trial counsel. Because we hold that the trial court’s errors are not reversible, and that Appellant did not sufficiently prove ineffective assistance, we affirm the trial court’s judgment.

BACKGROUND FACTS

At a pretrial hearing eleven days before trial, the trial court, according to the parties, orally granted the State’s motion to amend the indictment. The motion set forth the original burglary paragraph, which charged Appellant with breaking and entering with intent to commit assault of Pamela Woods, as well as the following paragraph:

And the Grand Jurors aforesaid, duly selected, impaneled, sworn and charged at said term of said court as aforesaid, upon their oaths further present in and to said court that Roy Charles Brown on or about the 4th day of June, 2003, and before the presentment of this indictment, in the County of Denton and State of Texas, did then and there intentionally or knowingly enter a habitation, without the effective consent of Pamela Woods, the owner thereof, and did then and there attempt to commit and committed assault; against the peace and dignity of the State.

The original indictment was not physically changed. Instead, the trial court granted the State’s motion in an order which provides that the indictment should be amended and which recites in full the proposed language of the amended indictment. Although the order granting the motion to amend the indictment is not dated and contains no file mark, both parties agree that the trial judge did not sign the order until the day of trial.

Another hearing was held on that day before voir dire, and the trial court overruled Appellant’s objections to the indictment. Appellant was then arraigned in the jury’s presence under the amended language of the indictment with no objection.

The original indictment included an enhancement paragraph. The order granting the State’s motion to amend the indictment does not. But on January 9, eleven days before trial, the State filed a document entitled “Additional Pleadings,” which states that its purpose is to provide notice of the State’s intent to enhance the punishment range and which provides an enhancement paragraph.

The application section of the jury charge did not name or otherwise indicate a complainant. Appellant lodged no objections to the charge.

■ The Indictment

In his first point, Appellant complains that the trial court erred by overruling his objection to the amended indictment. Appellant objected that the amendment alleged a new or different offense, that is, assault, and needed to be presented to the grand jury. None of the other' complaints he raises in his first point were preserved for appeal. Article 28.10(c) of the Texas Code of Criminal Procedure provides that “[a]n indictment or information may not be amended over the defendant’s objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced.” A “different offense” under article 28.10 means a different statutory offense. Changing an element of an offense changes the evidence required to prove that offense, but it is still the same offense. Consequently, burglary with intent to commit assault and burglary with attempted or completed assault are not different offenses. Appellant did not object to a lack of notice of the charges against him and specifically stated that he had had adequate notice regarding the new allegation. Because article 28.10(c) was not violated, and because Appellant lodged no other objections at trial that comported with his point on appeal, we overrule his first point.

The JüRY ChaRGE

In Appellant’s related second point, he contends that the trial court erred by in-eluding the amended language in the court’s guilt/innocence charge because the jury was allowed to apply facts to a manner of committing an offense not found by the grand jury, prejudicing Appellant. For the reasons given above, we overrule his second point.

In his third point, Appellant contends that the jury charge was fundamentally defective in that it authorized the jury to convict Appellant without finding that he entered the habitation with intent to assault complainant. The jury charge provided:

Now, if you find from the evidence beyond a reasonable doubt that Roy Charles Brown on or about the 4th day of June, 2003, in the County of Denton and State of Texas, did then and there intentionally or knowingly enter a habitation, without the effective consent of Pamela Woods, the owner thereof, and did then and there with intent to commit or attempt to commit or committed assault, you will find the defendant guilty of burglary of a habitation, as charged in the indictment.

Appellant complains only of the charge on burglary with intent to commit an assault. Specifically, he contends that because the indictment named the complainant, the jury charge should have also named the complainant. Omitting her name from the charge, he claims, lessened the State’s burden of proof. We agree with Appellant that the charge was improper.

The trial court is obligated to charge the jury on the “law applicable to the case.” This obligation requires the court to instruct the jury concerning each and every element of the offense. The court’s charge, rather than merely stating abstract propositions of law and general principles contained in the statutes, must clearly apply the law to the facts of the case. A jury charge may not authorize a conviction on less evidence than the law requires. Nor can either the indictment or the general statements of law supply the elements omitted from the application paragraph.

Appellant was indicted for breaking and entering the habitation of Pamela Woods with intent to commit assault against Pamela Woods. The portion of the jury charge complained of would allow him to be convicted for breaking and entering the habitation of Pamela Woods with intent to commit assault against someone else.

Because Appellant did not object at trial to the error in the court’s charge, we must decide whether the error was so egregious and created such harm that Appellant did not have a fair and impartial trial — in short, whether “egregious harm” has occurred. In making this determination, “the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” The purpose of this review is to illuminate the actual, not just theoretical, harm to the accused. Egregious harm is a difficult standard to prove and must be determined on a ease-by-case basis.

The record reveals ample evidence from which the jury could conclude that Appellant had intent to assault Pamela when he entered her home without her permission. Appellant’s defense appeared to be that he was not the guilty party, although at closing argument his trial counsel’s theory was that Appellant had assaulted Pamela but had not committed burglary, either because he entered her apartment with her permission, and then beat her up, or because he beat her up outside the apartment in the breezeway. Additionally, Appellant pointed to evidence that only Pamela placed him inside the apartment. Appellant did not, however, argue that he entered Pamela’s apartment with the intent to assault someone else, nor was there any evidence that anyone besides Pamela was assaulted or even present in the apartment at the time of the offense. Furthermore, while Appellant contends that lessening the State’s burden of proof resulted in egregious harm, he provides nothing to support this coneluso-ry statement.

Accordingly, after a careful review of the entire record, we are unable to conclude that the erroneous charge deprived Appellant of a fair and impartial trial. We therefore hold that such error did not rise to the level of creating egregious harm. Consequently, we overrule Appellant’s third point.

The Enhancement

In his fourth point, Appellant contends that the trial court erred when it overruled his objection to the enhancement. Before the jury was sworn, Appellant objected to the enhancement allegation. While he acknowledged that he had notice of the enhancement, he argued that the court had to sign the enhancement for jurisdictional purposes. The trial court overruled the objection. Appellant pled true to the enhancement. Unlike allegations of the offense, enhancement allegations do not have to be provided in the indictment. The State’s pleading filed eleven days before trial that gave notice of the State’s intent to enhance the punishment and that set forth the enhancement paragraph gave Appellant ample notice of the enhancement allegations. We overrule Appellant’s fourth point.

Ineffective Assistance of Counsel

In his fifth point, Appellant contends that his trial counsel was ineffective for failing to object to the reading of the amended indictment, for failing to request the ten days for which to prepare under article 28.10, for making the prosecutor’s case better, for failing to object to the introduction of an extraneous offense, for failing to preserve his objection to the enhancement allegation, and for affirming his client’s guilt. While Appellant filed a general motion for new trial, it did not raise ineffective assistance, no affidavits were attached, and no hearings were held. Consequently, the record does not reveal the basis for Appellant’s trial counsel’s decisions complained of by Appellant. This court will not “reverse a conviction on ineffective assistance of counsel grounds when counsel’s actions or omissions may have been based upon tactical decisions, but the record contains no specific explanation for counsel’s decisions.” Accordingly, based upon the applicable standard of review, we overrule Appellant’s fifth point.

Conclusion

Having overruled Appellant’s five points, we affirm the trial court’s judgment.

      . See Tex.R.App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App.1998) (op. on reh'g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999); Bell v. State, 938 S.W.2d 35, 54 (Tex.Crim.App.1996), cert. denied, 522 U.S. 827, 118 S.Ct. 90, 139 L.Ed.2d 46 (1997); Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App.1990).

      . Tex.Code Crim. Proc. Ann. art. 28.10(c) (Vernon 1989).

      . Flowers v. State, 815 S.W.2d 724, 728 (Tex.Crim.App.1991).

      . Id.

      . TexCode Crim. Proc. Ann. art. 36.14 (Vernon Supp.2004-05).

      . See id..; 43 George E. Dix & Robert O. Dawson, Criminal Practice and Procedure § 36.11, at 561-62 (Texas Practice 2001).

      . Newton v. State, 648 S.W.2d 693, 694-95 (Tex.Crim.App.1983); Williams v. State, 622 S.W.2d 578, 579 (Tex.Crim.App. [Panel Op.] 1981).

      . Polk v. State, 749 S.W.2d 813, 815-16 (Tex.Crim.App.1988).

      . Hernandez v. State, 10 S.W.3d 812, 819-20 (Tex.App.-Beaumont 2000, pet. ref’d).

        . See Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim.App.2000) (“We believe the 'law’ as 'authorized by the indictment’ must be the statutory elements of the offense of aggravated kidnapping as modified by the charging instrument. That is to say, Curry’s hypothetically correct jury charge could not simply quote the language of the statute, instructing the jury to find Curry guilty if it found that he abducted 'another person,’ because the indictment specifically charges that Curry abducted Williams, and the State was required to prove that element of the offense.”).

      . See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh'g); see also Tex.Code Crim. Proc. Ann. art. 36.19 (Vernon 1981); Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996).

      . Almanza, 686 S.W.2d at 171; see generally Hutch, 922 S.W.2d at 172-74.

      . Almanza, 686 S.W.2d at 174.

      . Hutch, 922 S.W.2d at 171.

      . Brooks v. State, 957 S.W.2d 30, 34 (Tex.Crim.App.1997).

      . See id.

      . Bone v. State, 77 S.W.3d 828, 830 (Tex.Crim.App.2002).

      . See Strickland v. Washington, 466 U.S. 668, 687-90, 694, 104 S.Ct. 2052, 2064-66, 2068, 80 L.Ed.2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812-14 (Tex.Crim.App.1999).


author: Justice CARTER.

text:
    Carl Lee WATKINS, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00068-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Jan. 6, 2005.
    Decided Jan. 7, 2005.

      Stephen C. Taylor, Humble, for appellant.
    Carl Lee Watkins, Angleton, pro se.
    Marcus D. Taylor, Wood County Dist. Atty., Quitman, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

Carl Lee Watkins has appealed the trial court’s denial of his motion for post-conviction DNA testing. See Tex.Code Crim. Peoc. Ann. arts. 64.01-05 (Vernon Supp. 2004-2005). On November 30, 2004, Watkins’ appellate counsel filed an Anders brief in which he professionally discussed the record, described the issues reviewed, and concluded there were no arguable grounds for appeal. As required by An-ders, counsel also filed a motion to withdraw, sent Watkins a copy of that brief, and informed Watkins of his rights to review the record and to file a pro se response. Watkins submitted his response December 16, 2004.

We have reviewed the record and the briefs, and we agree that the record before us demonstrates no error. Accordingly, we affirm the trial court’s judgment.

I. Procedural History

In March 1993, a Wood County jury found Watkins guilty in four separate cases that charged the same offense — aggravated sexual assault of a child. The trial court sentenced Watkins to ninety-nine years’ imprisonment in each case in accordance with the jury’s punishment verdict. Watkins appealed those convictions to this Court. In separate, unpublished opinions, this Court affirmed the trial court’s judgments in each case. See, e.g., Watkins v. State, No. 06-95-00016-CR (Tex.App.-Texarkana Apr. 12, 1996, no pet.) (not designated for publication).

On February 11, 2002, Watkins filed requests for post-conviction DNA testing and for the appointment of counsel. See Tex.Code CRIM. PROC. Ann. art. 64.01(a), (c). Watkins’ motion for DNA testing was not accompanied by “an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion,” even though such an affidavit is required by Chapter 64. See Tex.Code Grim. PROC. Ann. art. 64.01(a).

On May 10, 2004, the trial court issued findings of fact and conclusions of law regarding Watkins’ request for post-conviction DNA testing. The trial court specifically found (1) there was no physical or biological evidence recovered in any of Watkins’ four cases, and (2) Watkins had failed to establish, by a preponderance of the evidence, that a reasonable probability existed that he would not have been prosecuted or convicted in any of the four cases had exculpatory results been obtained through DNA testing, because no biological material was ever recovered. Based on those findings and conclusions, the trial court denied Watkins’ motion.

II. DNA Testing

A. Standard of Review

We review a trial court’s denial of a motion for post-conviction DNA testing under a bifurcated process. Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App.2002) (citing Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997)); see also Green v. State, 100 S.W.3d 344, 344 (Tex.App.-San Antonio 2002, pet. ref'd). We afford almost total deference both to the trial court’s determination of historical fact and to its application of law-to-fact issues that turn on credibility and demeanor. Rivera, 89 S.W.3d at 59; Green, 100 S.W.3d at 344. But we review de novo all other application of law-to-fact issues. Rivera, 89 S.W.3d at 59; Green, 100 S.W.3d at 344. This de novo review usually includes the ultimate issue in post-conviction DNA testing cases: i.e., whether “a reasonable probability exists that exculpatory DNA would prove ... innocence.” Rivera, 89 S.W.3d at 59.

To obtain post-conviction DNA testing, the convicted person must establish by a preponderance of the evidence that a reasonable probability exists that he or she would not have been prosecuted or convicted if “exculpatory results had been obtained through DNA testing.” Id. (citing Tex.Code CRIM. PROC. Ann. art. 64.03(a)(l)(A)(i) & (2)(A)). This requirement is not a two-part test. “The convicted person is not required to show both that a- reasonable probability exists that the person would not have been prosecuted and that the person would not have been convicted.” S.J. of Tex., 77th Leg., R.S. 995 (2001) (emphasis added), <http://www.capi-tol.state.tx.us/sjrnl/77r/pdi/4-2.pdf >, at *25. Exculpatory evidence is that “tending to establish a criminal defendant’s innocence.” Black’s Law Dictionary 597 (8th ed.2004).

The statutory requirement that testing results be exculpatory is not met if the DNA evidence would “merely muddy the waters.” Instead, the evidence must tend to prove the defendant’s innocence. Rivera, 89 S.W.3d at 59 (citing Kutzner v. State, 75 S.W.3d 427, 439 (Tex.Crim.App.2002)). Stated differently, DNA testing must conclusively outweigh all other evidence of the convicted’s guilt. Rivera, 89 S.W.3d at 59; Thompson v. State, 95 S.W.3d 469, 472 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd).

B. Analysis

On appeal, Watkins’ pro se response brief does not challenge the trial court’s findings of fact and conclusions of law. Instead, Watkins has asserted (1) he received ineffective assistance of counsel at the original trial, and (2) he was denied his right to a speedy trial in 1992 and 1993. Such issues would not directly or indirectly relate to the trial court’s findings under Article 64.03 or 64.04; therefore, these issues are not cognizable in a Chapter 64 appeal. See Tex.Code Crim. Proc. Ann. art. 64.05 (appeals of post-conviction DNA testing judgment); see also McIntosh v. State, 110 S.W.3d 51, 52-53 (Tex.App.-Waco 2002, no pet.) (appellate court lacked jurisdiction over denial of appointment of counsel; appointment came pursuant to Article 64.01 and appellate court had jurisdiction only over determinations pursuant to Articles 64.03 and 64.04). Accordingly, we lack jurisdiction to consider the issues raised by Watkins in his pro se responsive brief.

Generally, when appellate counsel files an Anders brief, we have a duty to review the record for fundamental error. See, e.g., Lopez v. State, 708 S.W.2d 446, 448-49 (Tex.Crim.App.1986); Sanchez v. State, 788 S.W.2d 636, 637 (Tex.App.-Corpus Christi 1990, no pet.). We see no reason why the rationale behind that policy should not also extend to cases where the appeal concerns the trial court’s ruling on an application for post-conviction DNA testing, and the appellant’s counsel certifies to this Court that the appeal is frivolous. In such situations, we will review the record related to the appellant’s request for post-conviction DNA testing for fundamental error. After reviewing the record, we find no fundamental error.

The trial court in this case made a factual finding that no biological material was ever recovered in connection with any of Watkins’ cases. Watkins neither challenges this finding on appeal, nor does the record before us show that Watkins offered any evidence to the contrary. Accordingly, without evidence that there is any biological material to be tested, we cannot say the trial court erred by denying Watkins’ motion for post-conviction DNA testing.

III. Conclusion

Watkins’ application did not contain the statutorily required affidavit. See Tex. Code Crim. Proc. Ann. art. 64.01(a). The application did not allege what evidence, if any, he believed should be subjected to DNA testing. See Tex.Code Crim. Proc. Ann. art. 64.01(a), (b). The motion made no claim that any biological evidence in this case was not previously subjected to DNA testing or that new testing techniques would provide more accurate results. See Tex.Code Crim. Proc. Ann. art. 64.01(b). Nor did Watkins attempt to show in either the trial court or in his brief to this Court that DNA testing would prove his innocence. See Rivera, 89 S.W.3d at 59. Accordingly, the trial court properly denied Watkins’ motion for post-conviction DNA testing

We affirm the trial court’s judgment.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . The first and fourth indictments involved the same victim: the first indictment involved an offense alleged to have occurred July 15, 2003, whereas the fourth indictment concerned an offense that allegedly occurred one month later. The second and third indictments each involved a second victim; the third indictment addressed an offense occurring July 15, 2003, whereas the second indictment concerned an offense occurring August 15, 2003.

      . Inasmuch as Watkins' motion for post-conviction DNA testing failed to meet this requirement, the trial court could have dismissed Watkins’ application for statutory noncompliance. See Tex.Code Crim. Proc. Ann. art. 64.01(a); see generally Warren v. State, 126 S.W.3d 336, 337 (Tex.App.-Dallas 2004, no pet.) (motion for DNA testing must be accompanied by affidavit sworn to by convicted person).

      . Additionally, "Article 64.03(a) only permits a trial court to order DNA testing if the court finds that identity was or is an issue in the case.” Green, 100 S.W.3d at 344 (citing Tex Code Crim. Proc. Ann. art. 64.03(a)(1)(B)).

      . Our extension of the fundamental error doctrine to DNA testing cases should not be read to extend to fundamental errors that occurred at the original trial or that were not otherwise part of the trial court’s decision to deny post-conviction DNA testing. Such a limitation on the scope of our review is consistent with the Texas Legislature's conveyance of jurisdiction to review the appeal of post-conviction DNA testing judgments, see Tex.Code Crim. Proc. Ann. art. 64.05, and the principle that this Court may exercise jurisdiction only to the extent granted by either the Texas Constitution or by statute, see Ex parte Wood, 125 S.W.3d 805, 806 (Tex.App.-Texarkana 2004, orig. proceeding).

      . We further note that the record before us contains a five-page confession (entered into evidence at the 1993 trial) in which Watkins admitted touching the two victims between their legs while the three were wrestling in July 1993. Later in the same document, Watkins further confessed putting his hands inside the victims’ underwear and rubbing their sexual organs in August 1993.


author: Justice ROSS.

text:
    Columbus Jay BELL, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00126-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Dec. 22, 2004.
    Decided Jan. 13, 2005.
    R. Scott Walker, Longview, for appellant.

      Ray Bowman, Asst. Dist. Atty., Long-view, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   Opinion

Opinion by

Justice ROSS.

Columbus Jay Bell, Jr., was convicted by a jury for possession of a controlled substance, cocaine, in an amount of less than one gram. The trial court assessed punishment at confinement in a state jail facility for twenty months. Bell appeals, contending the trial court erred in assessing punishment by: (1) considering an un-certified criminal history contained in a presentence investigation report (PSI); and (2) considering the contents of a PSI when that report was not admitted into evidence. We overrule these contentions and affirm the judgment.

Before trial, the court had the following colloquy with Bell:

THE COURT: Mr. Bell, do you wish to have a jury trial?
[BELL]: Yes, ma’am.
THE COURT: I’ve also been told that you would like for a jury to determine whether or not you are guilty or not guilty of this offense; but in the event that there should be a finding of guilt, it is your request that the Court would determine punishment. Is that what you wish to happen in this case?
[BELL]: Yes, ma’am.
THE COURT: You understand you’d have a right to have the jury determine punishment. The maximum punishment in this case is two years in a State jail facility. If the Court assesses punishment, then I will order a pre-sentence investigation to be done and we’ll have a sentencing hearing, if you are found guilty. Now, do you wish to waive your right for the jury to determine punishment and have the Court determine punishment, if the jury finds you guilty?
[BELL]: I’d rather have the Court determine punishment.

After the jury found Bell guilty as charged in the indictment, the trial court inquired of Bell’s counsel if a PSI was requested. Counsel answered in the negative. The court then admonished Bell as follows:

You have the right to have a pre-sen-tence investigation, meaning, if you wanted a pre-sentence investigation, an officer from the probation department would interview with you. They would gather together as much information that they could in order to assist the Court in determining what the appropriate punishment should be. They would look into your background, education, any disabilities that you might have, your criminal history, if any, and try to complete a report that would be as complete as possible. If you waive your right to that pre-sentence investigation, then the State may offer any criminal history that you might have. If there’s not any objection to it, your attorney may want to tell 'me some things; but then I would just make a decision and assess the punishment. Do you know what you want to do? Tell me what you want to do.

Bell answered, “Waive it.” However, when the State then indicated its intent to offer into evidence certified copies of Bell’s prior convictions, Bell objected on the ground that such evidence had not been provided by the State in response to a proper discovery request. The court declined to rule on Bell’s objection and stated its intention to order a PSI. Bell then asked the court not to consider any report of Bell’s criminal record that might be included in the PSI. The court impliedly denied this request, ordered a PSI, and recessed the hearing for two weeks. A PSI was prepared which reflected a lengthy criminal history for Bell. At the final punishment hearing, the trial court gave the parties the opportunity to make any objections, deletions, or additions to the PSI. The State had none. Bell objected on the ground that nothing in the criminal history section of the PSI was certified and that such history was therefore inadmissible hearsay. The court overruled this objection. Both sides announced ready to proceed and affirmatively stated to the court they had no evidence to offer. After brief arguments by counsel, the court assessed Bell’s punishment at twenty months’ confinement in a state jail facility and sentenced him accordingly.

Bell first contends the trial court erred in assessing punishment by considering an uncertified criminal history contained in the PSI. In support, he cites Article 37.07(a)(1) of the Code of Criminal Procedure, which requires evidence of an extraneous crime or bad act, offered at a punishment hearing, be “shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.” Tex.Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2004-2005).

In Fryer v. State, 68 S.W.3d 628, 631 (Tex.Crim.App.2002), the appellant cited the concurring opinion in Nunez v. State, 565 S.W.2d 536, 540 (Tex.Crim.App.1978) (Onion, J., concurring), wherein Presiding Judge John F. Onion, Jr., stated that certain types of evidence available in a PSI, including arrest reports not resulting in final convictions, and extraneous offenses, should not be considered in assessing punishment. The court in Fryer pointed out that, after Nunez, Article 37.07 was amended to give trial courts explicit authority to consider a PSI for general punishment assessment purposes, citing Article 37.07, Section 3(d) and Whitelaw v. State, 29 S.W.3d 129, 133 (Tex.Crim.App.2000). The court went on to quote, approvingly, Judge Onion’s concurring and dissenting opinion in a later case where he, after pointing out that PSIs often contain reports of arrests not resulting in final convictions, pending indictments, and hearsay statements, acknowledged that (as a result of the amendment to Article 37.07), “It would appear that these matters may now be properly considered by the court using the pre-sentence report to determine punishment....”

Fryer explains why Bell’s reliance on Article 37.07, Section 3(a)(1) is misplaced and why Article 37.07, Section 3(d), as construed by the Texas Court of Criminal Appeals, authorized the trial court to consider Bell’s criminal history in the PSI. See Wilson v. State, 108 S.W.3d 328, 330-32 (Tex.App.-Fort Worth 2003, pet. ref'd).

Bell also cites Mitchell v. State, 931 S.W.2d 950 (Tex.Crim.App.1996), and Williams v. State, 958 S.W.2d 844, 845 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd). The court in Williams affirmed the admission into evidence, over Williams’ objection, the PSI that reported unadjudicat-ed, extraneous offenses. Citing Article 37.07, Section 3(a) and Mitchell, the Williams court held that, when the trial court assesses punishment, the court may determine that an extraneous offense is relevant to punishment and admit such evidence, but the court may then only consider the extraneous offense if it finds the offense was proven beyond a reasonable doubt. Williams, 958 S.W.2d at 845. The court affirmed the trial court’s judgment because there was no indication the trial court considered the extraneous offenses or bad acts without determining whether they had been proven beyond a reasonable doubt. Further, considering the punishment actually assessed (ten years’ imprisonment) as compared to the range available (five years to ninety-nine years or life in prison), the court concluded there was no evidence the trial court considered the extraneous offenses or bad acts in assessing punishment. Id.

Bell argues that, considering the punishment assessed against him (twenty months’ confinement), as compared to the range available (six months to twenty-four months’ confinement), it is evident the trial court did consider the extraneous offenses contained in the PSI. We agree. However, we find it was appropriate for the trial court to so consider such information. The court in Williams based its decision on Article 37.07, Section 3(a) and Mitchell. That decision was rendered before Fryer and made no reference to Article 37.07, Section 3(d). Fryer held that consideration by the trial court of such evidence in a PSI is now authorized by Article 37.07, Section 3(d).

Bell further contends the criminal history contained in the PSI should not be considered because the offenses contained therein are not properly authenticated and therefore do not prove Bell’s commission of those offenses beyond a reasonable doubt. He cites Sanders v. State, 787 S.W.2d 435 (Tex.App.-Houston [1st Dist.] 1990, pet. ref'd). Sanders, however, did not involve a PSI. There, the lack of authentication at issue — in a trial where the jury assesséd punishment — was an uncer-tified copy of an order revoking probation used in proving an enhancement allegation in the indictment. The Sanders court held that, because the “order revoking probation” was not certified and no other evidence of revocation was presented, it could not assume the appellant’s probation was revoked. Id. at 438. Sanders is distinguishable from the instant case.

The criminal history at issue here was contained in a PSI and was considered by the trial court — not a jury — pursuant to Article 37.07, Section 3(d). That subsection provides that, “When the judge [as opposed to the jury] assesses the punishment, he may order an investigative report as contemplated in Section 9 of Article 42.12 of this code and after considering the report ... he shall forthwith announce his decision in open court as to the punishment to be assessed.” Tex.Code Crim. PROC. Ann. art. 37.07, § 3(d) (Vernon Supp. 2004-2005). Article 42.12, Section 9 expressly provides that the PSI should contain “the criminal and social history of the defendant.” ' TexCode Crim. Proc. Ann. art. -42.12, § 9 (Vernon Supp.2004-2005). This provision is silent as to how such history should be reported in the PSI. It clearly does not require offenses contained in the criminal history to be certified. Nonetheless, the trial court is specifically authorized by statute to consider the contents of the PSI. See Nicolopulos v. State, 838 S.W.2d 327, 328 (Tex.App.-Texarkana 1992, no pet.). That the PSI contains hearsay information does not preclude its use by the sentencing judge. Id., citing Brown v. State, 478 S.W.2d 550 (Tex.Crim.App.1972).

Bell might understandably ask: What recourse does a defendant have when inaccurate information- finds its way into a PSI? Article 42.12, Section 9 provides the answer:

(d) Before sentencing a defendant, the judge shall permit the defendant or his counsel to read the presentence report.
(e) The judge shall allow the defendant or his attorney to comment on a presentence investigation ... and, with the approval of the judge, introduce testimony or other information alleging a factual inaccuracy in the investigation or report.

Tex.Code CRIM. PROC. Ann. art. 42.12, § 9(d), (e).

These provisions place the burden on the defendant to prove that the information contained in a PSI is inaccurate. Garcia v. State, 930 S.W.2d 621, 623 (Tex.App.-Tyler 1996, no pet.). Here, Bell was permitted to read the PSI and, as in Garcia, was given the opportunity to present “objections to the pre-sentence report, deletions, [or] additions.” Bell objected to the criminal history in the PSI on the basis that it contained inadmissible hearsay, but offered no deletions or additions. The trial court properly overruled Bell’s objection and then specifically asked if he had any objection as to the correctness of the information within the report. Bell’s counsel responded by saying he had no way of knowing if the information was correct because of the absence of any certification. Such response was inadequate because it failed to explain why his client, Bell, was incapable of providing information concerning the accuracy of the PSI. Bell was then given the opportunity to present evidence, and he presented none.

In summary, pursuant to Article 37.07, Section 3(d) and Article 42.12, Section 9, the trial court properly considered the criminal history contained in the PSI even though the offenses reported in that history were not certified. Bell failed in his burden of proving any inaccuracy contained in the PSI. For these reasons, Bell’s first point of error is overruled.

Bell next contends the trial court erred in assessing punishment when the PSI was not admitted into evidence. He cites no authority for this contention. The State responds by pointing out that Bell waived this complaint by failing to raise the objection at the trial court level. We agree.

As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. Tex. R.App. P. 33.1(a)(1)(A). Bell does not direct us to any place in the record where he objected at the trial court level to consideration of the PSI because it had not been admitted into evidence. Nothing is presented for review. His second point of error is overruled.

We affirm the judgment.

      . Tex Health & Safety Code Ann. § 481.102(3)(D) (Vernon Supp.2004-2005), § 481.115(a), (b) (Vernon 2003).

      . Tamminen v. State, 653 S.W.2d 799, 807 n. 6 (Tex.Crim.App.1983).

      . Based on Tex.Code Crim. Proc. Ann. art. 42.12, § 9’s restriction of access to the information contained in the PSI, we feel the better practice is to not admit the PSI into evidence. Such practice, in and of itself, should not restrict the parties' access to that information or the judge's consideration of that information in assessing punishment.