author:
J. HARVEY HUDSON, Justice.
      KEM THOMPSON FROST, Justice,

text:
    Arlene SCOTT, Individually and as Representative of the Estate of Dorothea Scott, Deceased, Jerry Scott Hubbard, James David Scott, Norman Scott, and Albert Scott, Appellants, v. BEECHNUT MANOR, Living Centers of Texas, Inc., Living Centers of America, Inc., Vencare, Inc., Vencore Hospital, Vencor, Inc., and Robert B. Teague, M.D., Appellees.
    No. 14-98-00166-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 21, 2005.
    Rehearing Overruled Aug. 18, 2005.

      Alice Oliver Parrott, Benton Mussle-white, Cheryl Gillum Turner, Maria Teresa Arguindegui, Houston, TX, for appellants.
    Alexandra Simmons, Bennett A. Midlo, Dion C. Ramos, Lori D. Proctor, Michael L. Heyman, Roger Andrew Sullivan Douglas B. Welmaker, Houston, TX, for appel-lees.
    Panel consists of Justices ANDERSON, HUDSON, and FROST.
   MAJORITY OPINION

J. HARVEY HUDSON, Justice.

Arlene Scott, individually and as representative of the Estate of Dorethea Scott, deceased, Jerry Scott Hubbard, James David Scott, Norman Scott, and Albert Scott, (the “Scotts”) appeal from the summary judgment granted in favor of appel-lees, Beechnut Manor, Living Centers of Texas, Inc., Living Centers of America, Inc. (“Beechnut Manor”), Vencare, Inc., Vencor Hospital, Vencor, Inc. (“Vencor”), and Robert B. Teague, M.D., on their claims of violations of the Deceptive Trade Practices-Consumer Protection Act (“DTPA”) and common law negligence based on res ipsa loquitur, and the dismissal of their negligence claim under the Medical Liability and Insurance Improvement Act (the “Act”). We affirm.

In 1993, Dorethea Scott suffered a stroke that left her dependent on a ventilator. On October 28, 1994, the Scott family admitted her to Beechnut Manor nursing home, where she resided in the respiratory care unit, which was staffed by Vencor. Ms. Scott was under the care of Dr. Teag-ue, who ordered constant oxygen therapy for her. The Scotts claim they were assured by the administrator that Ms. Scott would be kept on oxygen at all times. The Scotts allege Ms. Scott was taken off of oxygen on December 27, 1994, while routine maintenance was performed on the ventilator. After completing the maintenance procedure, however, the technician allegedly failed to reconnect Ms. Scott’s oxygen. Ms. Scott died later that day.

On December 6, 1996, the Scotts sued appellees alleging negligence under the Act, common law negligence based on res ipsa loquitur, and violations of the DTPA. On June 30, 1997, the trial court dismissed the Scotts’ health care liability claims under the Act, and on November 4, 1997, the trial court granted appellees’ motion for summary judgment on the Scotts’ remaining claims for common law negligence based on res ipsa loquitur and DTPA violations.

Dismissal of Claims under the Act

In their first issue, the Scotts contend the trial court erred in dismissing their claims under the Act and in overruling their motion for a new trial.

Under the Act, a claimant must provide expert reports and curricula vitae to counsel for each physician or health care provider against whom a health care liability claim is asserted. Further, the claimant must provide these reports and curricula vitae within 180 days after the filing of a health care liability claim or voluntarily nonsuit the action against the physician or healthcare provider. Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(d). If the claimant fails to furnish the requisite reports and curricula vitae and fails to nonsuit the defendants, the court shall, on the motion of the affected physician or health care provider, dismiss the action with prejudice. Id. at § 13.01(e)(3).

The Scotts did not timely file expert reports and curricula vitae within 180 days of the filing of their suit as required by section 13.01(d). The time for filing the reports expired on June 4, 1997. Thus, on June 5 and 6, 1997, appellees sought a dismissal of all claims under the Act pursuant to section 13.01(e)(3). The Scotts responded on June 13, 1997, by filing the necessary reports and curricula vitae along with a “Section 13.01(f) Motion for Extension of Time.”

Section 13.01(f) provides that the “court may, for good cause shown after motion and hearing, extend any time period specified in Subsection (d) of this section for an additional 30 days.” The Scotts assert that their motion for extension of time was supported by uncontro-verted affidavits establishing “good cause” for the nine-day delay in filing their expert reports and curricula vitae. Thus, the Scotts argue the trial court abused its discretion in denying their motion for an extension of time as a matter of law.

It is inconsequential whether the Scotts established “good cause” because even if they made a clear showing of “good cause,” the trial court was not obliged to grant the requested extension. See Tesch v. Stroud, 28 S.W.3d 782, 787 (Tex.App.-Corpus Christi 2000, pet. denied); Knie v. Piskun, 23 S.W.3d 455, 462 (Tex.App.-Amarillo 2000, pet. denied); Schorp v. Baptist Memorial Health System, 5 S.W.3d 727, 732 (Tex.App.-San Antonio 1999, no pet.); Roberts v. Medical City Dallas Hosp., Inc., 988 S.W.2d 398, 402 (Tex.App.-Texarkana 1999, pet. denied). Accordingly, the trial court did not err in denying the Scotts’ motion for an extension of time, dismissing their suit with prejudice, and overruling their motion for new trial. The first point of error is overruled.

Summary judgment

In their second issue, the Scotts contend the trial court erred in granting summary judgment to appellees. The Scotts alleged the following causes of action in their second amended petition: (1) common-law negligence involving the doctrine of res ipsa loquitur; (2) medical malpractice under the Act, and (3) violations of the DTPA. In September 1997, the trial court granted appellees’ request for special exceptions, ordering the Scotts to replead and eliminate their DTPA claims and common law negligence claims based on art. 4590i and res ipsa loquitur. After the Scotts failed to replead, appellees moved for summary judgment on grounds that the Scotts’ claim for common law negligence based on res ipsa loquitur did not fit in one of the recognized exceptions applicable to a medical malpractice suit and the Scotts merely attempted to recast a negligence claim as a DTPA claim. On November 4, 1997, the trial court granted summary judgment on the Scotts’ remaining claims.

To prevail on a motion for summary judgment, a defendant must establish that no material fact issue exists and that it is entitled to judgment as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex.1999). Once the defendant establishes that no genuine issue of material fact exists regarding an element of the plaintiffs claim, the plaintiff must present competent summary judgment evidence raising a fact issue on that element. Guest v. Cochran, 998 S.W.2d 897, 401 (Tex.App.-Houston [14th Dist.] 1999, no pet.). In conducting our review of the summary judgment, we take as true all evidence favorable to the nonmovants, and make all reasonable inferences in the nonmovant’s favor. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). A defendant, as movant, is entitled to summary judgment if it either disproves at least one essential element of each of the plaintiffs causes of action or establishes all the elements of an affirmative defense. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). If the trial court sustains a defendant’s special exception that the plaintiff failed to state a cause of action and the plaintiff fails to replead when ordered to do so, summary judgment may properly be granted. Haase v. Glazner, 62 S.W.3d 795, 800 (Tex.2001); Sumerlin v. Houston Title Co., 808 S.W.2d 724, 726 (Tex.App.-Houston [14th Dist.] 1991, writ denied).

Res Ipsa Loquitur

Res ipsa loquitur is applicable when the following two circumstances are present: (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence, and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant. Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex.1990). Res ipsa loquitur is a rule of evidence by which negligence many be inferred by the jury; it is not a separate cause of action from negligence. Id.

With regard to medical malpractice cases, res ipsa loquitur applies only to those cases to which it had been applied as of August 29, 1977, the effective date of the Act. Tex.Rev.Civ. Stat. Ann. art. 4590i, § 7.01. Res ipsa loquitur is inapplicable to medical malpractice cases except where the nature of the alleged malpractice and injuries are within the common knowledge of laymen, requiring no expert testimony. Haddock, 793 S.W.2d at 951. The three recognized areas wherein res ipsa loquitur is applicable to medical malpractice claims are negligence in the use of mechanical instruments, operating on the wrong portion of the body, and leaving surgical instruments or sponges within the body. Id.

However, not every medical malpractice case involving the use of a mechanical instrument permits the application of res ipsa loquitur. Id. Res ipsa loquitur is not applicable to those cases in which the use of the mechanical instrument is not a matter within the common knowledge of laymen. Id.

Although the Seotts allege the negligent use of a mechanical instrument, i.e., the ventilator, we conclude the use of the instrument does not fall plainly within the common knowledge of a lay person. Dr. Teague claimed in his affidavit that Ms. Scott’s death was caused by respiratory failure, due to, or as the likely consequence of, a stroke. Dr. Teague further explained that Ms. Scott was “ventilator dependent, and required tube feeding, continuous ne-bulizer treatments, and trach care.” Even if it is common knowledge that a ventilator assists a patient to breathe, we find lay persons require the assistance of expert testimony before they can presume that an injury is due to the negligent misuse of such an instrument.

Because the Scotts have not alleged facts falling within the narrow exception for res ipsa loquitur in a medical malpractice case, the trial court did not err in granting summary judgment on the grounds that the negligence claim relying on res ipsa loquitur fails as a matter of law.

DTPA

The DTPA does not apply to health care providers with respect to claims for damages for personal injury or death resulting, or alleged to have resulted, from negligence. Tex.Rev.Civ. Stat. Ann. art. 4590i, § 12.01(a). Section 12.01(a) precludes a DTPA claim against a physician if it is based on a breach of the accepted standard of medical care. Sorok-olit v. Rhodes, 889 S.W.2d 239, 242 (Tex. 1994). However, if the alleged DTPA claim is not based on the physician’s breach of the accepted standard of medical care, such DTPA claim is not precluded by section 12.01(a). Id. A claim that a physician or health care provider was negligent may not be recast as a DTPA claim to avoid the standards set forth in the Act. Id. To determine whether a DTPA claim is based on negligence, the court should focus solely on the plaintiffs pleadings. MacGregor Med. Ass’n v. Campbell, 985 S.W.2d 38, 41 (Tex.1998). Thus, the underlying nature of a claim determines whether section 12.01(a) bars a claim for violation of the DTPA. Id.; Sorokolit, 889 5.W.2d at 242. A health care liability claim is defined by the Act as “a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety which proximately results in injury to or death of the patient, whether the patient’s claim or cause of action sounds in tort or contract.” Tex.Rev.Civ. Stat. Ann. art. 4590i, § 1.03(a)(4). Section 12.01(a) does not preclude DTPA actions for knowing misrepresentation or breach of express warranty in cases in which a physician or health care provider warrants a particular result. Sorokolit, 889 S.W.2d at 242.

With respect to their DTPA claim, the Scotts alleged:

Plaintiffs would show that Defendants expressly warranted and represented that Ms. Scott would be kept on oxygen, but Defendants breached that express warranty and representation and allowed Ms. Scott to go off oxygen, or inadequate oxygen, all to her detriment. This representation was “knowing” by defendants and the warranty in question was a warranty that “warrants a particular result”, namely that Ms. Scott would be kept on oxygen. The breach of such warranty and the knowing misrepresentation alleged just above constituted deceptive trade practices, all of which were a proximate cause of the actual damages hereinafter alleged.

In Mulligan v. Beverly Enters.-Tex., Inc., we found similar claims were essentially negligence-based claims rather than DTPA claims. 954 S.W.2d 881, 884 (Tex.App.-Houston [14th Dist.] 1997, no pet.). In that case, Mulligan alleged that the nursing home made representations about the services her aunt was to receive and express warranties about the care to be provided. Id. However, we determined that each alleged warranty or representation went to the level of care provided by the nursing home to the aunt. Id. We noted that Mulligan did not allege that services were entirely withheld from her aunt, but that the services provided were not of a level she found acceptable or in compliance with normal standards. Id. We held a conclusion that the representations and warranties were breached required a determination of whether the nursing home failed to meet the standard of medical care and, therefore, Mulligan was attempting to recast her negligence claim as a DTPA claim. Id.

In Waters v. Del-Ky, Inc., the plaintiff sued the defendant nursing home for breach of an express warranty that the nursing home would provide specific services when it had not. 844 S.W.2d 250, 258 (Tex.App.-Dallas 1992, no writ). The plaintiff alleged that the nursing home breached express warranties of the physical and medical care it would provide, that its personnel would provide adequate and proper supervised care, that it would comply with all standards of participation promulgated by the Texas Department of Health, and that it would correct the deficiencies in care. Id. The court of appeals determined that the plaintiffs claims were claims for lack of treatment or other claimed departure from accepted standards of medical care, health care, or safety. Id.

Similarly, we find the Scotts’ DTPA claim that appellees “expressly warranted and represented that Ms. Scott would be kept on oxygen, but that [appellees] breached that express warranty and representation and allowed Ms. Scott to go off oxygen, or inadequate oxygen, all to her detriment,” is nothing more than an impermissible attempt to recast a negligence claim as a DTPA claim. Their claim is one concerning a departure from accepted standards of medical care, health care, or safety. There is no claim of guaranteed results in the care appellees would provide to Ms. Scott. Any determination that the representations and warranties were breached necessarily would require a determination of whether appellees failed to meet the standard of medical care for Ms. Scott. We conclude the trial court properly granted summary judgment on the ground that the Act precluded the Scotts from casting their negligence claim as a DTPA claim. The Scotts’ second issue is overruled.

Accordingly, the judgment of the trial court is affirmed.

FROST, J., concurring.

KEM THOMPSON FROST, Justice,

concurring.

The majority’s judgment and analysis are correct. I 'write to address the Scotts’ arguments regarding section 13.01(g). Essentially, they urge this court to evaluate their claimed entitlement to relief under 13.01(f) based on section 13.01(g) cases.

Although the title of the Scotts’ motion states that it is a section 13.01(f) motion, we review the motion based on its substance rather than simply looking at its title or label. See Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex.1999). However, a careful review of the Scotts’ motion shows that its substance is consistent with its title. The pertinent portions of the motion assert “good cause” for an extension under section 13.01(f). The Scotts do not cite section 13.01(g), and they do not assert that their failure to timely file the expert reports and curricula vitae within 180 days was the result of accident or mistake rather than intentional conduct or conscious indifference. Finally, although not dispositive, the motion does not even contain a general prayer; rather, it ends by praying “for all the relief requested above.” The record shows that the Scotts never sought an extension under section 13.01(g). See Rosa v. Caldwell, 159 S.W.3d 695, 698-99 (Tex.App.-Amarillo 2004, pet. denied) (holding that substance of motion to extend time was a section 13.01(f) motion rather than a section 13.01(g) motion and that trial court did not abuse discretion in denying the section 13.01(f) motion). And, in their appellate briefing, the Scotts have never asserted that they sought relief under section 13.01(g). Nonetheless, both at oral argument and in supplemental appellate briefing, the Scotts have argued that, even though they did not seek an extension under section 13.01(g), this court should use section 13.01(g) cases in determining whether the trial court abused its discretion in denying an extension under section 13.01(f).

The Scotts appear to be arguing that “good cause” under section 13.01(f) means “accident or mistake” and the “lack of intent or conscious indifference,” which is the legal standard under section 13.01(g). The Scotts’ arguments contradict the plain meaning of section 13.01.

Under section 13.01(f), the trial court “may, for good cause shown ... extend any time period specified in Subsection (d) of this section for an additional 30 days.” See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 985-87, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 887. Based on the plain meaning of the statutory language, an extension under section 13.01(f) is discretionary rather than mandatory. See James v. Brothers, 2005 WL 713671, at *2-3 (TexApp.-Dallas Mar. 30, 2005, no pet. h.) (mem.op.) (stating that even if a movant has shown good cause, the trial court still has discretion to deny a motion for extension under section 13.01(f)). Section 13.01(g) provides that if the trial court “finds that the failure of the claimant or the claimant’s attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection.” See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 985-87, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 887. Under section 13.01(g), the granting of a 30-day grace period is mandatory upon a finding that the failure to comply was the result of accident or mistake. Walker v. Gutierrez, 111 S.W.3d 56, 62-63 (Tex. 2003).

Although a trial court has the discretion to find good cause and grant an extension under section 13.01(f) based on facts that also would constitute accident or mistake under section 13.01(g), this does not mean that the analysis under these two statutory provisions is the same. See James, 2005 WL 713671, at *2-4 (holding that analysis under section 13.01(g) is not the same as the analysis under section 13.01(f) and that the existence of accident or mistake is irrelevant because appellants moved for relief only under section 13.01(f)). Even if the Scotts had proven accident or mistake, that would not have mandated an extension under section 13.01(f). See id. at *4. To hold otherwise would be contrary to the plain meaning of language enacted by the Texas Legislature. See id. at *2-4. Accordingly, the Scotts are incorrect in suggesting that the analysis under section 13.01(f) is the same as the analysis under section 13.01(g).

      . See Tex. Bus. & Com.Code Ann. §§ 17.41-.63 (Vernon 2002 & Supp.2004-05).

      . Section 13.01 of the Act was formerly found at Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 985-87, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 887 (current version found at Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (Vernon Supp. 2004 — 05)). The former statute continues in effect for cases filed before September 1, 2003. Because this case was filed in 1996, the former statute — Tex. Rev. Civ. Stat. Ann. art. 4590Í — is applicable and all references are to the former statute. Section 13.01(d) states:
      Not later than the later of the 180th day after the date on which a health care liability claim is filed or the last day of any extended period established under Subsection (f) or (h) of this section, the claimant shall, for each physician or health care provider against whom a claim is asserted:
      (1) furnish to counsel for each physician or health care provider one or more expert reports, with a curriculum vitae of each expert listed in the report; or
      (2) voluntarily nonsuit the action against the physician or health care provider.

        Id.

      . Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(f).

      . Section 7.01 of the Act was formerly found at Tex.Rev.Civ. Stat. Ann. art. 4590i, § 7.01. See Act of June 16, 1997, 65th Leg., R.S., ch. 817, § 7.01, 1977 Tex. Gen. Laws 2039, 2050, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 887 (current version found at Tex. Civ. Prac. & Rem.Code Ann. § 74.201 (Vernon Supp.2004-05)). Section 7.01 states that "[t]he common-law doctrine of res ipsa loquitur shall only apply to health care liability claims against health care providers or physicians in those cases to which it has been applied by the appellate courts of this state as of the effective date of this subchapter.” Id.

      . Section 12.01 of the Act was formerly found at Tex.Rev.Civ. Stat. Ann. § 12.01. See Act of June 16, 1977, 65th Leg., R.S., ch. 817, § 12.01, 1977 Tex. Gen. Laws 2039, 2053, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 887 (current version found at Tex Civ. Prac. & Rem.Code Ann. § 74.004 (Vernon Supp. 2004-05)). Section 12.01(a) provides that ''[njotwithstanding any other law, no provisions of sections 17.41-17.63, Business & Commerce Code, shall apply to physicians or health care providers as defined in Section 1.03(a) of this Act, with respect to claims for damages for personal injury or death result-tag, or alleged to have resulted, from negligence on the part of any physician or health care provider.” Id.

      . Section 1.03(a)(4) of the Act was formerly found at Tex.Rev.Civ. Stat. Ann. § 1.03(a)(4). See Act of June 16, 1977, 65th Leg., R.S., ch. 817, § 12.01, 1977 Tex. Gen. Laws 2039, 2041, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 887 (current version found at Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(13) (Vernon Supp.2004-05)).

      . Section 13.01 of the Act was formerly found at Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 985-87, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 887 (current version found at Tex. Civ. Prac. & Rem.Code Ann § 74.351 (Vernon Supp. 2004-05)). The former statute continues in effect for cases filed before September 1, 2003. Because this case was filed in 1996, the former statute — Tex. Rev. Civ. Stat. Ann. art. 4590i — is applicable and all references are to the former statute.

      . It should be noted that, even if the issue were relevant, the record shows that the trial court would not have erred in finding intent or conscious indifference rather than accident or mistake.


source: Caselaw Access Project

author: WANDA McKEE FOWLER, Justice.

license: Public Domain

text:
    Armando HERNANDEZ, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 14-04-00055-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 21, 2005.
    Rehearing Overruled Sept. 1, 2005.

      Kent A. Schaffer, Houston, TX, for appellant.
    Carmen Castillo Mitchell, Houston, TX, for appellee.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and FROST.
   OPINION

WANDA McKEE FOWLER, Justice.

Appellant, Armando Hernandez, Jr., was convicted by a jury of capital murder and sentenced to life in the Texas Department of Criminal Justice, Institutional Division. Maintaining that he did not intend to kill the complainant, that he intended only to rob him, appellant challenges his conviction on seven grounds: (1) the trial court erred in not charging the jury on the lesser-included offense of theft; (2) the evidence was legally insufficient to prove that appellant was guilty of being a party to capital murder; (3) the trial court erred in excluding a statement appellant made that he claims is material to his defense; (4) the trial court erred in overruling appellant’s objection to allegedly improper jury argument; (5) the trial court’s instruction allowing a finding of guilt based on conspiracy, which was not alleged in the indictment, denied appellant due process; (6) and (7) the trial court erred in allowing the State to offer extraneous offense evidence of appellant’s drug transactions, which he claims violated Texas Rules of Evidence 404(b) and 403. We affirm.

Because several of appellant’s issues require us to review the evidence presented at trial, we will move directly to appellant’s issues without presenting a statement of facts.

I. No Charge on the Lesser-included Offense of Theft

In his first issue, appellant contends the trial court erred in not charging the jury on the lesser-included offense of theft. Appellant argues he was entitled to this charge because he testified that he went to the complainant’s house only to rob him, and did not plan for, anticipate, or participate in, his killing, and all he did was remove what he intended to steal. On these facts, however, we disagree that appellant was entitled to this charge.

We apply the following two-prong test to determine if a defendant is entitled to a charge on a lesser-included offense: (1) the lesser-included offense must be included within the proof necessary to establish the offense charged; and (2) 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-included offense. Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim.App.2000) (en banc); Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App.1993) (en banc). We review all the evidence presented at trial in making this determination. Rousseau, 855 S.W.2d at 673.

A person commits capital murder if he intentionally commits murder in the course of committing or attempting to commit robbery. See Tex. Penal Code § 19.03(a)(2). Appellant was charged with unlawfully, while in the course of committing and attempting to commit the robbery of Christopher Harrell, intentionally causing the death of Christopher Harrell by shooting him with a deadly weapon, namely, a firearm, on January 29, 2003. The court’s charge authorized the jury to convict appellant as a party to the offense under Penal Code sections 7.02(a) and 7.02(b). In addition to capital murder, the jury was charged on the lesser-included offenses of aggravated robbery and robbery.

The State concedes that theft may be a lesser-included offense of capital murder in this case. Therefore, assuming arguendo that the first prong of the test is met, we turn to the second prong. To be entitled to a jury instruction on the lesser-included offense of theft, the record must contain evidence proving appellant committed a theft of the complainant’s property, but did not injure or threaten him in any way and did not make him fearful of imminent physical injury. See Tex. Penal Code § 31.03(a); Holiday v. State, 14 S.W.3d 784, 788 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). The credibility of the evidence and whether it conflicts with other evidence must not be considered in deciding whether the charge on the lesser-included offense should be given. Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App.1992) (en banc). Regardless of the strength or weakness of the evidence, if evidence from any source raises the issue that the defendant is guilty only of the lesser-included offense, then the charge must be given. Id. The following evidence from trial shows that appellant cannot meet this standard because his plan to rob Harrell involved placing Harrell in fear of imminent bodily injury.

At trial, appellant testified that he had been laid off from his job and was behind on his bills, so he decided to rob Christopher Harrell of his guns. Appellant had sold drugs to Harrell for several years and knew he owned at least one handgun and an assault rifle. He initially asked Ramon Villareal to help him rob Harrell, but when Villareal refused, appellant asked Juan Pena to go with him. Appellant told Michael Salazar about his plan to rob Harrell and asked Salazar if he would drive him to Harrell’s house. Appellant told Salazar that his plan was to wrestle Harrell down and tie him up with duct tape. According to appellant, neither he nor Pena brought a weapon to Harrell’s house.

Appellant testified that, on January 29, 2003, Harrell had called him and asked for some drugs. Appellant called Harrell to tell him he was on the way to his house to bring him the drugs. Salazar drove appellant and Pena. When they arrived, Harrell, appellant, and Pena went inside; Salazar waited outside. In the house, appellant saw Harrell and Pena smoking crack cocaine, and he asked to use the restroom. According to appellant, his plan included having Harrell and Pena get high, and then “we were going to catch him off guard and wrestle him up and tape him up.” When appellant came out of the restroom, he saw Harrell showing Pena a gun. As appellant watched, Pena shot Harrell twice. Appellant denied that he planned or intended the shooting. After Pena shot Harrell, appellant collected Harrell’s guns and other items, and he, Pena, and Salazar left. At some point as they drove,- Pena handed appellant a handgun, and, while they were crossing a bridge, appellant threw it out the car window into the river below. The handgun was never recovered.

Thus, by appellant’s own account, he planned the robbery and he knew the crime would involve confronting, subduing, and robbing Harrell. His plan included getting Harrell high, wrestling him down, and binding him with duct tape. Appellant’s intended actions, therefore, encompassed more than just theft. At best, his testimony entitled him to a charge on the lesser-included offense of robbery — a charge he received. See Tex. Pen.Code § 29.02(a). Moreover, the charge instructed the jury on the law of parties, and it is uncontroverted that either appellant or Pena used a deadly weapon during the robbery. On these facts, no evidence exists that appellant, if guilty, is guilty only of theft. See Hanson v. State, 55 S.W.3d 681, 698-99 (Tex.App.-Austin 2001, pet. ref'd) (holding that appellant convicted of capital murder, who gave statement that he did not want to participate in robbery of victim, did not actually hit or cut victim, and only committed post-homicide theft, was not entitled to jury charge on lesser-included offense of theft); cf. Bignall v. State, 887 S.W.2d 21, 23-24 (Tex.Crim.App.1994) (en banc) (appellant convicted of aggravated robbery was entitled to theft instruction when some evidence existed that no deadly weapon was used or exhibited during alleged robbery). We overrule appellant’s first issue.

II. Legal Sufficiency of the Evidence

In his second issue, appellant contends the evidence is legally insufficient to prove beyond a reasonable doubt that appellant was guilty of being a party to capital murder.

A. Applicable Law

The jury was authorized to find appellant guilty of capital murder either as a principal to capital murder, or as a party under Texas Penal Code sections 7.02(a)(2) or 7.02(b). Under the law of parties, a person may be convicted as a party to an offense if the offense is committed by his own conduct or by the conduct of another for which he is criminally responsible. Tex. Penal Code § 7.01(a). Section 7.02(a)(2) provides that a person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Penal Code § 7.02(a)(2). Section 7.02(b) provides that if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of carrying out the conspiracy. Tex. Penal Code § 7.02(b).

When, as here, a jury returns a general verdict and the evidence is sufficient to support a guilty finding under any of the allegations submitted, the verdict will be upheld. See Rabbani v. State, 847 S.W.2d 555, 558 (Tex.Crim.App.1992) (en banc). Evidence is sufficient to convict under the law of parties when the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App.1996) (op. on reh’g). In determining whether a defendant participated as a party in the commission of an offense, the fact finder may look to events that occurred before, during, or after the offense, and may place reliance on acts showing an understanding and common design. Ransom, v. State, 920 S.W.2d 288, 802 (Tex.Crim.App.1996) (op. on reh’g). Id. Further, circumstantial evidence may be used to prove party status. Id.

B. Application of Law to Facts

Appellant contends the evidence is legally insufficient to convict him as either a primary actor or as a party who was acting with intent to promote or assist the commission of an intentional murder, because the evidence shows that Juan Pena, not he, was the shooter, and appellant did not intend to commit anything more than a robbery. So, he contends the only basis upon which the jury could have convicted him was as a party under Texas Penal Code section 7.02(b). Assuming the correctness of this premise, appellant contends guilt cannot be proven under section 7.02(b) because the evidence is legally insufficient to prove that murder was an offense he should have anticipated as a result of carrying out the robbery. We disagree with appellant’s characterization of the evidence and his conclusions.

1. Evidence of Guilt as a Principal

First, the evidence is legally sufficient to permit a rational jury to determine that appellant was guilty of capital murder as a principal. Viewing the evidence in the light most favorable to the jury’s verdict, it showed that appellant had been selling illegal drugs to Harrell and knew that Harrell owned various guns and other valuables. Appellant formulated a plan to rob Harrell, and tried to recruit Ramon Villareal to help him. Villareal testified that appellant told him that, because appellant knew Harrell, appellant would have to kill him.

On January 29, 2003, after recruiting Michael Salazar to drive and Juan Pena to accompany him, appellant went to Harrell’s house ostensibly to sell Harrell some crack cocaine. Harrell was then shot and killed in his living room. The evidence showed one bullet missed Harrell, but he then was shot in his face as he stood in his living room, and was shot in his temple after he fell to the floor.

After Harrell was shot, appellant and Pena took HarreU’s guns and also took ammunition, fishing equipment, and other items from Harrell’s house. Appellant and Pena carried the property to the car and told Salazar to drive to Anthony Tunal’s house, where they would store the stolen property temporarily. On the way, appellant rolled down the car window and threw a handgun out of the window as they passed over the river. Salazar testified that he asked appellant what he was doing and what had happened, and appellant responded, “I shot him.” Salazar asked, “Is he dead?” Appellant said, “I think so.”

That night, appellant and Pena burned clothing at Petra Cortina’s house. Appellant asked Cortina to help him find a buyer for the stolen weapons, and appellant eventually sold the weapons for money and drugs. He gave a portion of the drugs to Pena and Cortina.

Viewing the evidence in the light most favorable to the jury’s verdict, a rational jury could find beyond a reasonable doubt that appellant shot and killed Harrell during the course of committing the robbery, and that he was therefore guilty of capital murder as a principal.

2. Evidence of Guilt under Section 7.02(b)

In addition to finding legally sufficient evidence of guilt as a principal, we also find the evidence is legally sufficient to support a finding of guilt as a party under Texas Penal Code section 7.02(b). By appellant’s own admission, he and Pena planned the robbery. Thus, the only question is whether appellant should have anticipated Harrell’s shooting during the course of the aggravated robbery.

Relying on several factors, appellant contends the record contains no evidence to support a rational inference that he should have anticipated this outcome. First, he points out that Salazar testified that he did not see any guns on appellant or Pena; this corroborated appellant’s claim that neither he nor Pena possessed any firearms when they went to Harrell’s house. Next, he suggests the physical evidence corroborates his testimony that Harrell was killed with his own gun while showing it to Pena. Finally, although evidence showed that Pena was prone to violence, no evidence established that appellant knew Pena had a propensity to commit murder. For the reasons set out below, these arguments are not convincing.

Although no direct evidence shows that appellant or Pena was armed when they went to Harrell’s house, appellant, by his own admission, planned to confront Harrell, subdue him, and take his guns. In spite of denying that he knew about Pena’s reputation and testifying that he only recruited him on the recommendation of Villareal, on cross-examination, appellant admitted that he knew Pena from the neighborhood, and he admitted that he knew that Pena had a history of carrying knives and had served time in the penitentiary. Appellant also testified that part of the plan to subdue Harrell was to have Pena and Harrell smoke crack cocaine before wrestling Harrell down and tying him up. On these facts, the jury was entitled to find that appellant should have anticipated that one of the many parts of his plan — whether it be smoking crack cocaine, subduing Harrell, or stealing Harrell’s guns — could result in Harrell being shot with one of his guns. See Moore v. State, 24 S.W.3d 444, 446-47 (Tex.App.-Texarkana 2000, pet. ref'd) (stating that individual planning to rob a residence should anticipate that a confrontation might occur and that coconspirator, if not already armed, might arm himself with items or weapons found in the residence).

We overrule appellant’s second issue.

III. Excluding Appellant’s Statement

In his third issue, appellant contends the trial court reversibly erred when it excluded his statement that he only intended to commit a robbery. During the cross-examination of one of the State’s witnesses, Petra Cortina, appellant attempted to elicit testimony that appellant told her he only intended to rob Harrell, and that Juan Pena killed him. The trial court sustained the State’s objection to the statement as hearsay.

On appeal, appellant contends the statement was admissible as a statement against interest and to show his state of mind to counter the State’s position that he was a party to capital murder. Appellant also argues that the exclusion of the evidence violated his constitutional right to due process because it prevented him from presenting a defense. As we explain below, we conclude that the statement was not admissible as a statement against interest or to show appellant’s state of mind, and we conclude that appellant failed to preserve his complaint of alleged constitutional error.

A. Statement Against Interest

A statement against interest is one “which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability ... that a reasonable person in declarant’s position would not have made the statement unless believing it to be true.” See Tex.R. Evid. 803(24). To be admissible, a statement tending to expose the declarant to criminal liability must be corroborated by circumstances clearly indicating its trustworthiness. Id. We review a trial court’s decision to admit or exclude evidence of a statement against penal interest for abuse of discretion. Cunningham v. State, 877 S.W.2d 310, 313 (Tex.Crim.App.1994) (en banc).

Rule 803(24) does not apply to the appellant’s statement to Cortina, because the statement was not contrary to his interest, in fact it absolved him of criminal liability. Any inculpatory significance of the statement — i.e., admitting involvement in a robbery — is minor in comparison to the self-serving nature of appellant’s statement that he did not plan or anticipate the shooting. See Wood v. State, 18 S.W.3d 642, 651 (Tex.Crim.App.2000) (holding that statements that tend more to exonerate than to inculpate appellant of criminal liability were not statements against interest); see also Davis v. State, 970 S.W.2d 758, 760-61 (Tex.App.-Austin 1998, pet. ref'd) (holding statement of appellant convicted of robbery, in which he confessed only to theft and made other self-serving statements, was not admissible as a statement against penal interest). The statement, if believed, would have entitled him to an acquittal on the capital murder charges and a finding of guilty on a lesser-included offense. Thus, it falls outside the statement-against-interest exception. See Wood, 18 S.W.3d at 651.

B. State of Mind

Nor do we find that appellant’s statement was intended to show his then-existing state of mind. Rule 803(3) creates an exception to the hearsay rule for a “statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed.... ” See Tex.R. Evid. 803(3). When appellant spoke to Cortina, he described the events of the robbery and murder and told her that he never intended to shoot Harrell. This evidence describing the events is specifically excluded from the state of mind exception. Tex.R. Evid. 803(3); see also Glover v. State, 102 S.W.3d 754, 762-63 (Tex.App.-Texarkana 2002, pet. ref'd). And case law has held that, to the extent the hearsay statement implicates the declarant’s intent, plan, or motive, the statement must relate to future, not past, conduct. See id. (citing Jones v. State, 515 S.W.2d 126, 129 (Tex. Crim.App.1974)). Thus, both the descriptive evidence and the evidence of past intent were inadmissible.

C. Due Process

Finally, appellant contends that excluding the statement deprived him of his constitutional right to due process. However, having failed to object at trial on this ground, appellant did not preserve the complaint for appellate review. See Tex. R.App. P. 33.1(a); Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App.1995) (en banc) (holding appellant failed to preserve complaint he was denied right to present a defense and right to due process or course of law in violation of the United States Constitution and the Texas Constitution when he did not raise those objections below). We overrule appellant’s third issue.

IV. Improper Jury Argument

In his fourth issue, appellant contends the trial court erred in overruling his objection to this portion of the State’s rebuttal closing argument:

See, he told you, it’s all Pena’s fault because Pena is crazy; I had no idea he was going to kill [Harrell]. You know what? It’s a brilliant defense, and it’s very convenient because he knows I can’t make Juan Pena take that stand and testify. He knows I can’t put Juan Pena up there and force him to—
He knows I can’t make Pena take the stand and incriminate himself in a capital murder. He can say anything about Juan Pena he wants to because he knows that I can’t refute it.

Appellant contends this argument improperly injected facts outside the record, and “it was an attempt to use the exercise of a constitutional right to the detriment of the Appellant.” The State responds that the comments were a direct response to appellant’s closing arguments and thus constituted proper jury argument. Although it presents a close issue, upon examination of the record, we agree with the State.

Proper jury argument must fall within one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to opposing counsel’s arguments; or (4) a plea for law enforcement. Wesbrook, 29 S.W.3d at 115. The prosecution may argue outside the record in responding to the defense having done so, but may not stray beyond the scope of the invitation. Wilson v. State, 938 S.W.2d 57, 60-61 (Tex. Crim.App.1996) (en banc), abrogated on other grounds, Motilla v. State, 78 S.W.3d 352 (Tex.Crim.App.2002). Even when an argument exceeds the permissible bounds of these areas, the error is not reversible unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the defendant into the trial proceeding. Wesbrook, 29 S.W.3d at 115. The prosecutor’s remarks must have been a willful and calculated effort to deprive the defendant of a fair and impartial trial. Id.

Throughout the trial, appellant maintained that Pena, not he, shot Harrell, and that he did not know Pena was violent and unpredictable. Defense counsel also had Pena brought to the courtroom for identification. And, during appellant’s closing argument, he stated the following:

[Appellant] has told you what happened. They went over there without guns. Michael Salazar told you they went over there without guns. They went over there with no intent to cause anybody’s death. And there is not one bit of evidence from this stand that my client knew beforehand the total psychopathic nature—

The State objected that counsel was arguing outside the record because there was no evidence in the record as to the mental condition or state of mind of Juan Pena, and the trial court ordered defense counsel to stay within the record. Defense counsel then continued:

You heard each of their witnesses describe to you Juan Pena, whether it was on direct or cross-examination. You saw him come in the court. You can draw your own mental image of what kind of person he was and you heard what those witnesses thought of him and how they feared him.
Now, the question is: Did my client know the same things that they knew so he could have anticipated that [Pena] was going to do something crazy?

At the conclusion of appellant’s closing argument, the State made its rebuttal closing argument, in which it made the statements about which appellant complains.

We find that the State’s argument was in response to opposing counsel’s argument. Appellant did not expressly question why the State did not present Pena as a witness to rebut his defense, but he did so implicitly by making Pena’s complicity the cornerstone of his defense: Pena was the principal actor, Pena was violent and unpredictable, and because appellant did not know of Pena’s violent propensities, he could not have anticipated that Pena would shoot Harrell in the course of the robbery. Additionally, because defense counsel presented Pena to the jury, the jury knew that either side could have called him as a witness, but did not. The jury reasonably could question why the State did not call Pena as a witness. As a result, we cannot conclude the State’s response to this question was improper.

Appellant’s other claim on appeal — that he was penalized by the prosecutor’s argument that Pena might invoke his constitutional right not to testify — was not made in the trial court. He objected only that the statements were improper jury argument. That objection did not alert the trial judge that appellant objected to the statements because he believed the State used Pena’s constitutional right not to testify as a way of penalizing appellant. Not having made the argument in the trial court, appellant has waived it. See Tex.R.App. P. 33.1(a); Turner v. State, 87 S.W.3d 111, 117 (Tex.Crim.App.2002), cert. denied, 538 U.S. 965, 123 S.Ct. 1760, 155 L.Ed.2d 519 (2003) (holding appellant failed to preserve error concerning prosecutor’s closing argument when appellate complaint did not comport with objection made at trial); see also Edwards v. State, 97 S.W.3d 279, 287 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (holding appellant failed to preserve complaint on appeal that prosecutor improperly asserted appellant was confusing or misleading the jury, when appellant’s objection at trial was that prosecutor’s argument placed the burden of proof on the defense).

We overrule appellant’s fourth issue.

V. Instruction on Finding of Guilt under Law of Conspiracy

In his fifth issue, appellant contends that the trial court erred in instructing the jury on the law of conspiracy, when the indictment did not allege a conspiracy. Appellant contends that, as a consequence, he was found guilty of an offense not charged in the indictment and for which he was not placed on notice, in violation of his rights to due process under the Fifth and Fourteenth Amendments to the United States Constitution. We find his argument without merit.

The charge authorized the jury to convict appellant under three theories of capital murder: (1) as a principal, (2) as a party under section 7.02(a)(2) of the Texas Penal Code, or (3) as a conspirator under the law of parties as contained in Penal Code section 7.02(b). Tex. Pen.Code § 7.02(a)(2), (b). The Court of Criminal Appeals repeatedly has rejected similar claims that a charge on the law of parties constitutes an impermissible amendment to an indictment. In Marable v. State, the court reiterated that “it is well-settled that the law of parties need not be pled in the indictment.” 85 S.W.3d 287, 287 (Tex.Crim.App.2002) (en banc) (citing cases). This rule applies to the law of parties found in both section 7.02(a)(2) and section 7.02(b). Montoya v. State, 810 S.W.2d 160, 165 (Tex.Crim.App.1989) (en banc) (“Our examination of case law shows that the theory of criminal responsibility set forth in Section 7.02(b) has often been applied in capital murder cases.”); see also Ammons v. State, 782 S.W.2d 539, 540-41 (Tex.App.-Houston [14th Dist.] 1989, no pet.). We are bound to follow this precedent.

We overrule appellant’s fifth issue.

VI. Extraneous Offense Evidence (Issues 6 and 7)

In his sixth and seventh issues, appellant contends that testimony regarding his extraneous drug transactions with Harrell violated Rules of Evidence 404(b) and 403. We will reverse a trial court’s decision to admit evidence of an extraneous offense only upon a showing of a clear abuse of discretion. See Santellan v. State, 939 S.W.2d 155, 169 (Tex.Crim.App.1997) (en banc).

Before Ramon Villareal testified, appellant objected to any testimony regarding appellant’s prior drug activity generally, and, more specifically, to testimony that Villareal accompanied appellant to deliver drugs to Harrell at his home on a separate occasion before the shooting. The trial court sustained the objection to his drug activity in general and overruled the objection to delivery of drugs specifically to Harrell. The trial court again overruled defense counsel’s objections to Villareal’s testimony when the State presented it to the jury. During questioning by the State, Villareal testified that, in January, he went with appellant to Harrell’s house because appellant had asked Villareal to go with him to deliver crack cocaine. Vil-lareal also testified that, after appellant delivered the cocaine to Harrell, he got back in the car with Villareal and told Villareal that he wanted to rob Harrell of his guns, and asked Villareal to come with him to rob Harrell. At the start of appellant’s case, defense counsel, citing Villareal’s testimony, objected to the State delving further into appellant’s history of past drug transactions with Harrell. The trial court implicitly overruled his objection, offering instead to give the jury a limiting instruction, if requested, when the evidence was offered. Appellant then testified on direct examination that he regularly sold drugs to Harrell over the course of their six-year relationship before the shooting. The State also cross-examined appellant on some of the details of his drug-related activities generally and as it related to his relationship with Harrell. We thus examine whether the trial court erred in admitting this testimony over appellant’s objections.

In prosecutions for murder, article 38.36 of the Texas Code of Criminal Procedure provides in relevant part:

In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.

Tex.Code Ceim. Peoc. art. 38.36(a). In Smith v. State, the Court of Criminal Appeals held that evidence admissible under Article 38.36 still must meet the requirements of Rules 403 and 404(b). 5 S.W.3d 673, 679 (Tex.Crim.App.1999).

Evidence of an extraneous offense may be admitted if it has relevance apart from its tendency to prove the character of a person in order to show that he acted in conformity therewith. See Tex.R. Evm 404(b). Evidence has relevance apart from character conformity when it tends to establish some elemental fact, such as proof of motive, intent, plan, or absence of mistake or accident. Id.; see also Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex.Crim.App.1990) (en banc) (op. on reh’g); Aitch v. State, 879 S.W.2d 167, 174 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd). And although relevant, evidence may be excluded under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice. See Tex.R. Evid. 403. This analysis is to be conducted by the trial judge in light of the unique facts and circumstances of each case, and will not be disturbed on appeal unless it is outside the zone of reasonable disagreement. See Montgomery, 810 S.W.2d at 391. In determining whether a trial court has abused its discretion in admitting evidence, we measure the trial court’s ruling against the relevant criteria by which a Rule 403 decision is to be made. See id. at 392.

Appellant contends admitting the evidence of appellant’s extraneous drug transactions with Harrell was error under Rule 404(b) because it was not relevant and was improperly offered to show appellant was generally a criminal and drug dealer. He also complains it was overly prejudicial in violation of Rule 403. However, appellant’s intent was a material issue at trial, and his defense was that Pena, not he, shot and killed Harrell, and he did not anticipate or intend for the shooting to occur. The evidence of appellant’s prior drug transactions was needed to establish the basis for his relationship with Harrell and his familiarity with Harrell’s routine, his residence, and his possessions, to reveal the basis for appellant’s plan to rob Harrell. It also was relevant to whether appellant intended to kill Harrell because Harrell knew and could identify him.

Before this evidence was admitted, Salazar testified that, when they arrived at Harrell’s house, Harrell shook hands with appellant and welcomed appellant into his home. Moreover, the medical examiner testified that toxicology test results showed that Harrell had used cocaine within an hour of his death, making the evidence relevant to the circumstances surrounding Harrell’s cocaine use, which, by appellant’s own admission, was part of his plan to rob Harrell. As such, it was admissible under Rule 404(b) because it was being used for purposes other than to establish mere character conformity. See Saxer v. State, 115 S.W.3d 765, 775 (Tex.App.-Beaumont 2003, pet. ref'd). In addition, weighing the appropriate factors, we also find that the probative value was not so slight so as to be substantially outweighed by the danger of unfair prejudice to appellant.

We overrule appellant’s sixth and seventh issues.

Conclusion

The trial court’s judgment is affirmed.

      . A person commits the offense of robbery if, in the course of committing theft and with the intent to obtain or maintain control of property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex Pen.Code § 29.02(a).

      . We apply the standard of review applicable to appellant’s legal insufficiency claim. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . Although appellant denied making the statement and defense counsel strenuously cross-examined Villareal regarding whether appellant, in fact, said this, the jury was entitled to determine Villareal's credibility. See Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.1991) (enbanc).

      . Cortina also testified that, before the incident, appellant told her he was having "money problems” and to get some he "had a lick,” which she understood to mean he intended to kill someone for something.

      . Salazar also testified he did not see either appellant or Pena with duct tape.

      . Appellant argues that Mullins v. State supports his position, but that case is distinguishable. See 767 S.W.2d 166 (Tex.App.-Houston [1st Dist.] 1988, no writ), abrogated on other grounds, Brunswick v. State, 931 S.W.2d 9 (Tex.App.-Houston [1st Dist.] 1996, no writ). In Mullins, an aggravated assault case, the investigating officer was prohibited from telling the jury that, when appellant was arrested immediately after the assault, he said that at the time of the incident he was afraid of the complainant. Id. at 170. The appellate court held the statement was relevant and admissible because it showed appellant’s state of mind at the time he committed the offense. Id. Mullins is not on point because it involved neither descriptive historical information nor information related to intent, plan or motive; instead, it involved an emotion or mental state. Id.

      . The State argued that appellant’s objection was too general to preserve any error concerning the prosecutor’s argument. However, in the context of this record, we find that the objection made was sufficient to inform the trial judge and the prosecutor that appellant objected to the prosecutor allegedly introducing matters outside the record.

      . The trial court indicated that it would not limit the State and allow the jury to think that “these people had known each other for a couple of months on a couple of occasions when in fact they have known each other for years.”

      . We consider the following factors: (1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable — a factor which is related to the strength of the evidence presented by the proponent to show the defendant, in fact, committed the extraneous offense; (2) the potential the extraneous offense evidence has to impress the jury in some irrational but nevertheless indelible way; (3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and (4) the force of the proponent’s need for this evidence to prove a fact of consequence, i.e., whether the proponent has other probative evidence available to him to help establish this fact, and whether this fact related to an issue in dispute. See Manning v. State, 114 S.W.3d 922, 926 (Tex.Crim.App.2003).

      . Upon defense counsel's request for a Rule 403 analysis, the trial court stated:
      I am basing my ruling on the fact that certainly the relationship of the parties, the fact that they knew one another, shedding light on the defendant being allowed access to the complainant’s home, initially there's already been reference to how he shook hands and was welcomed into the home. There's testimony about drug usage at the time, within ah hour of death. And the relationship, all of that, certainly it becomes far more probative than prejudicial. So the objection to that item is overruled.


author: Opinion by Justice FRANCIS.

text:
    In the Interest of M.D.C., a Child.
    No. 05-04-00315-CV.
    Court of Appeals of Texas, Dallas.
    June 29, 2005.
    Rehearing Overruled Sept. 26, 2005.

      Janice E. Cohen, Dallas, for Appellant.
    Susan Vrana, Moore, Vrana <& Padgitt, Shelly Benet West, Johnson & West, Dallas, for Appellees.
    Before Justices O’NEILL, MARTIN RICHTER, and FRANCIS.
   OPINION

Opinion by Justice FRANCIS.

In this suit affecting the parent-child relationship, Denise Morgan Colletta appeals the trial court’s order awarding damages to her two daughters for breach of fiduciary duty and attorney’s fees. For reasons that follow, we conclude the evidence is legally insufficient to sustain the judgment on breach of fiduciary duty. Consequently, we reverse that portion of the trial court’s order and render judgment that the children take nothing on their breach of fiduciary duty claim. We also reverse the award of attorney’s fees and remand that issue for a new trial.

Denise Morgan Colletta is the mother of M.D.C., a minor, and Chrisanna Maria Paige Colletta, who was nineteen years old at trial. Chrisanna sued her mother for custody of M.D.C. and for child support. In her affidavit in support of the petition, Chrisanna explained that her father died in 1998 and her mother had since become addicted to drugs, socialized with drug dealers and thieves, and failed to provide food or basic necessities. Two months later, the trial court signed temporary orders appointing Chrisanna temporary sole managing conservator of her younger sister. The order also contained a stipulation that Valerie Salter, the child’s maternal aunt, would be appointed joint managing conservator once she intervened in the lawsuit. (Salter subsequently intervened.) After the temporary orders were signed, Chrisanna amended her petition to add a claim for breach of fiduciary duty in which she alleged Colletta had violated trust terms by wasting trust funds or assets belonging to her and M.D.C.

On the day of trial, the parties agreed that Chrisanna and Salter would be named co-joint managing conservators of the child. The trial proceeded before the court on the issues of breach of fiduciary duty and attorney’s fees. Colletta, whose attorney withdrew from the case the month before trial, represented herself under protest.

Evidence showed that each of Colletta’s children had a $50,000 trust, and Colletta had spent all of the money. Chrisanna’s evidence showed that Colletta spent the trust money on opening a bar in Deep Ellum that ultimately failed. Colletta testified she used a $350,000 retirement asset to open and run the bar, and said she used the trust funds for the children’s education and living expenses.

In addition to the trust, the children each owned a three percent interest in Morgan Colletta Ltd., a partnership with their mother. The partnership owned two properties at trial (the Westmoreland and Old Hickory properties); Colletta had previously sold several other properties owned by the partnership and realized $130,000 either in sales proceeds or loans. Chrisanna testified her mother used $30,000 of the money on a three-week vacation to Mexico with her boyfriend. Col-letta testified she used the money to “live on” and for the children’s car insurance.

The children did not present any evidence regarding the terms of the trust or the partnership agreement. Rather, at trial and on appeal, they simply explain that they sought the documents in discovery, but Colletta did not produce them. There is no evidence in the record suggesting the children took any action to compel production of the documents.

At the conclusion of the trial, the judge ordered Colletta to bring to him that day copies of (1) the children’s trusts, (2) deeds to all properties owned by her or the partnership, (3) the will of Colletta’s husband, and (3) the partnership agreement. Col-letta took the documents to the judge, but the documents were never admitted into evidence. Ultimately, the trial judge signed an order awarding each child $100,000 for breach of fiduciary duty and awarded attorney’s fees to Chrisanna’s and Salter’s attorneys. The judge also appointed a receiver to take charge of 13.5 acres that purportedly included Colletta’s homestead.

In her first issue, Colletta argues, as a matter of law, that she breached no fiduciary duty to either Chrisanna or her minor child. When a party is attacking the legal sufficiency of an adverse finding on which she did not have the burden of proof, she must demonstrate on appeal that there is no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). When reviewing a no-evidence point, we must view the evidence in a light that tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. Lenz v. Lenz, 79 S.W.3d 10, 13 (Tex.2002). Here, we must decide whether the children presented more than a scintilla of evidence to support a finding that Colletta breached her fiduciary duty. We conclude they have not.

To determine whether Colletta breached her fiduciary duty, we necessarily must have evidence of the nature of Colletta’s duties with respect to either the trust instrument or partnership agreement. Here, the children failed to produce any evidence regarding Colletta’s duties under either. The children justify this lack of proof by explaining that Colletta did not produce the documents in response to discovery, although there is no evidence to suggest the children ever sought to compel production. Indeed, at trial, the judge apparently determined the documents were necessary and ordered Colletta to bring them to him that very day. Colletta did as ordered, and the judge subsequently made his ruling. But the documents, were not admitted into evidence and are therefore not a part of the either trial or appellate record. Without these documents or other evidence of Colletta’s duties, we conclude there is no evidence to support a finding that Colletta breached her fiduciary duty. Accordingly, we sustain the first issue.

In her second issue, Colletta complains the trial court abused its discretion in appointing a receiver over the West-moreland and Old Hickory properties. Initially, we note the complained-of order appoints a receiver only over the West-moreland property and gives the receiver authority to manage, control, and dispose of the property; the order does not mention the Old Hickory property. The order is connected to the trial court’s finding of breach of fiduciary duty and the awarding of $100,000 to each child for that breach. Accordingly, our disposition of the first issue necessitates that we sustain this issue and vacate the order appointing receiver.

In her third issue, Colletta challenges the award of more than $19,000 in attorney’s fees. The award of attorney’s fees in a suit affecting the parent-child relationship is within the trial court’s discretion. See Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex.1996). Here, the order awarded custody of M.D.C. to her sister and aunt; ordered Colletta to pay child support; and ordered Colletta to pay $1780 child support arrearage. In addition to these matters, the trial court erroneously found in favor of M.D.C. and Chri-sanna on the breach of fiduciary duty claims. In light of our decision today, we conclude the trial court should be given an opportunity to reconsider the award of attorney’s fees. Cf Bruni, 924 S.W.2d at 368 (reversing attorney’s fees for reconsideration after concluding trial court premised judgment on erroneous conclusions of law). We reverse the trial court’s award of attorney’s fees and remand that issue for a new trial.

We reverse the trial court’s order on the breach of fiduciary duty claim and render judgment that M.D.C. and Chrisanna Maria Paige Colletta take nothing on that claim. We delete that portion of the order placing a lien against property owned by Denise Morgan Colletta and Morgan Col-letta Ltd. to satisfy the judgment on the breach of fiduciary duty claim. We vacate the October 15, 2003 order appointing a receiver over the Westmoreland property. We reverse the award of attorneys fees and remand that issue for a new trial. In all other respects, we affirm the trial court’s order.


author: BRADY G. ELLIOTT, Judge (Assigned). WANDA McKEE FOWLER, Justice,

text:
    Helen ROBINSON, Appellant v. UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON, Appellee.
    No. 14-03-01400-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 30, 2005.

      Martin J. Siegel, Houston, TX, for appellant.
    Anne L. Morgan, Austin, TX, for appel-lee.
    Panel consists of Justices FOWLER, EDELMAN, and ELLIOTT.

       The Honorable Brady G. Elliott, Judge of the 268th District Court of Fort Bend County, sitting by assignment pursuant to Tex Gov’t Code Ann. § 74.003(h) (Vernon 2005).

   MAJORITY OPINION

BRADY G. ELLIOTT, Judge (Assigned).

This suit involves the mishandling of the remains of a deceased. Appellant, Helen Robinson (“Robinson”), appeals an order granting the plea to the jurisdiction of appellee, The University of Texas Medical Branch at Galveston (“UTMB”), wherein the trial court concluded that Robinson’s claims sound in contract, not tort; consent for suit was not obtained, and thus, UTMB retains sovereign immunity from suit; and Robinson did not avail herself of her administrative remedies prior to suit, thus, preventing her from prosecuting her suit against UTMB.

Robinson contends in three issues that (1) UTMB’s failure to properly return her husband’s remains constitutes a tort arising from a duty to properly handle human remains; (2) the use of a body to train medical students constitutes the “use of property” such as to waive sovereign immunity; and (3) UTMB’s failure to return her husband’s body constitutes a breach of contract, and, thus, the waiver provisions of the Texas Tort Claims Act provide her relief from UTMB’s immunity claims. We affirm.

BACKGROUND

Helen Robinson filed suit against UTMB for the mishandling of the remains of her deceased husband, Ray Robinson. Mr. Robinson donated his body to the Anatomical Board of the State of Texas with arrangements for disposition to be made by UTMB under the “UTMB Willed-Body Program.” Prior to his death, he executed a document entitled “Will Form” which provided, among other provisions, for the cremation of his body on final disposition. By handwritten annotation, Mr. Robinson directed that after cremation his body be returned to his family. The agreement also contained an express relinquishment of rights and claims for liability against the Anatomical Board of the State of Texas and the receiving institution.

Mr. Robinson’s body was delivered to UTMB upon his death. Later, Robinson received notification from UTMB that it was unable to return her husband’s ashes as the ashes were commingled with other donors’ ashes.

Robinson filed suit asserting a breach of contract claim, negligence, gross negligence for mental anguish, negligent supervision and constructive fraud. UTMB filed a plea to the jurisdiction alleging sovereign immunity, lack of legislative consent to sue, and that the suit fell outside the Texas Tort Claims Act as the body was not personal property. The plea to the jurisdiction was granted by the trial court.

Standard of Review

A governmental unit is immune from suit and liability unless the state has granted consent. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.2003). A governmental entity’s immunity from suit defeats a court’s subject matter jurisdiction. Id. Thus, in a suit against a governmental unit, a plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a waiver of that immunity. See id. In determining whether a plaintiff has met this burden in a plea to the jurisdiction based on sovereign immunity, we look to the facts alleged by the plaintiff and the evidence relevant to the jurisdictional issue to determine whether the claim comes within a waiver of immunity. Id. In this case, it is undisputed that UTMB is a governmental unit and shares this governmental immunity. See Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 298 (Tex.1976).

Breach of Contract Claim

Robinson, in her third issue, argues that UTMB violated the agreement by not returning her husband’s remains. She further argues that UTMB is not immune from suit for breach of contract by reason of sovereign immunity because of the performance by Robinson of the terms of the agreement. In response, UTMB argues that Robinson cannot prevail because the state did not consent to the suit.

When the state contracts with a private party, it thereby waives immunity from liability, but not from suit, which can only be waived by express consent of the legislature. See Catalina Dev., Inc. v. County of El Paso, 121 S.W.3d 704, 705 (Tex.2003). For the legislature to waive the state’s sovereign immunity, a statute or resolution must contain a clear and unambiguous expression of the legislature’s waiver of immunity. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex.2003).

For agreements entered into between the state and an individual, such as this one, after August 30, 1999, Chapter 2260 of the Texas Government Code provides the exclusive and required method for resolving breach of contract suits. Tex. Gov’t Code Ann. § 2260.005 (Vernon Supp.2004-05); Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 597 (Tex.2001), overruled on other grounds by Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex.2004). Compliance with Chapter 2260 is necessary before a party can sue the state for breach of contract. Texas Dep’t of Transp. v. Aer-Aerotron, Inc., 39 S.W.3d 220, 221 (Tex.2001). Chapter 2260 provides an administrative process for the resolution of written contract claims against the state arising from the sale of goods, services, or construction. See Tex. Gov’t Code Ann. § 2260.001(1) (Vernon 2000); Little-Tex Insulation Co., 39 S.W.3d at 595. Such administrative process requires that written notice be provided to the state within 180 days of the event giving rise to the claim with such notice stating with particularity the nature of the breach, the amount claimed for damages, and the legal theory for the recovery. Tex. Gov’t Code Ann. § 2260.051 (Vernon 2000).

Robinson did not plead or prove that she followed these procedures and availed herself of Chapter 2260’s exclusive method for resolving breach of contract claims. She further failed to plead or prove that the legislature consented to suit in the form of a statute or resolution. As a result, Robinson’s contract claim must fail, and we overrule her third issue.

Claim Of Sovereign Immunity Waiver

Robinson next contends that UTMB’s use of her husband’s body to train medical students constitutes “use of tangible personal property” such that the Texas Tort Claims Act’s waiver of immunity applies. For use of property to occur under the Texas Tort Claims Act, one must “put or bring” the property into “action or service.” Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex.1996). “Use” under the Texas Tort Claims Act has been defined to mean “to employ for or apply to a given purpose.” Univ. of Texas Med. Branch v. York, 871 S.W.2d 175, 178 (Tex.1994). For the property exception to apply, the property must be the instrumentality of the harm. Texas Dep’t of Crim. Justice v. Diller, 127 S.W.3d 7, 11 (Tex.App.-Tyler 2002, pet. denied). Here, UTMB’s use of the body was complete, and the only act remaining was the return of the ashes to Robinson. Return of the ashes was not the intended use of the body; therefore, the Texas Tort Claims Act’s waiver provisions do not apply. As a result, this contention fails, and we overrule Robinson’s second issue.

Special Relationship Claim

Robinson contends in her first issue that UTMB’s failure to return her husband’s remains gives rise to a cognizable tort claim due to the long standing legal duty to properly handle human remains. Texas does not recognize a general legal duty not to negligently inflict mental anguish damages for such damages are only recoverable for the breach of some other legal duty. City of Tyler v. Likes, 962 S.W.2d 489, 494 (Tex.1997); Boyles v. Kerr, 855 S.W.2d 593, 594 (Tex.1993). Robinson asserts that the provisions contained in the enabling statutes permitting the willed body program provide that legal duty.

The Texas Legislature provided for the distribution of cadavers to institutions such as UTMB through the Anatomical Board of the State of Texas (“Anatomical Board”). Tex. Health & Safety Code Ann. § 691.022 (Vernon Supp.2004-05). The Anatomical Board has provided that the dissection of human remains is a special privilege and provided for the return of the remains to the family if so requested. 25 Tex. Admin. Code §§ 479.4, 479.5 (2004).

Robinson urges that these statutory requirements create a “special relationship” which has been recognized by the courts. Kerr, 855 S.W.2d at 600. Robinson further argues that this special duty is akin to a fiduciary duty which would remove her claim from immunity from suit. UTMB, on the other hand, urges that there is no recognized cause of action against state entities for which mental anguish damages are recoverable.

In order for the Texas Tort Claims Act to waive sovereign immunity in limited circumstances, there must already exist a cause of action outside the Texas Tort Claims Act. Likes, 962 S.W.2d at 494. However, the Texas Tort Claims Act makes no reference to statutory duties, and there is no pre-existing common law tort duty regarding the handling of willed bodies. See Tex. Civ. PRAc. & Rem.Code Ann. §§ 101.001 — .109; cf. Perry v. S.N., 973 S.W.2d 301, 309 (Tex.1998) (refusing to adopt a statutory duty under the Family Code as a duty and standard of conduct in tort). The existence of statutory duties does not create a special duty cause of action for which mental anguish damages are recoverable. Cf Fitzpatrick v. Copeland, 80 S.W.3d 297, 305 (Tex.App.-Fort Worth, 2002, pet. denied) (“[A] motorist owes no special duty to avoid inflicting mental anguish damages on other users of the highway.”).

Robinson further urges that UTMB’s failure to return the body, in accordance with the instructions contained in the contract, creates a breach of a special duty permitting recovery under the Texas Tort Claims Act for mental anguish damages. A claim for mental anguish damages based on a special relationship is not a separate cause of action, but merely an element of recovery for the breach of another legal duty. Univ. of Tex. Med. Branch at Galveston v. Harrison, No. 14-02-01276-CV, 2003 WL 21803314, at *3 n. 3 (Tex.App.-Houston [14th Dist.] Aug. 7, 2003, pet. denied). The character of the claim, as between tort and contract, is determined by the source of the duty breached, not whether the breach results from negligence. Id. (citing DeWitt County Elec. Co-op. v. Parks, 1 S.W.3d 96, 105 (Tex.1999)). Such claim by Robinson would depend upon the existence of a contractual duty which UTMB breached. As the contract spells out the parties’ rights concerning the use of the body, the contract would govern the dispute between the parties. DeWitt, 1 S.W.3d at 105.

This special relationship claim asserted by Robinson arises from the contract and not an independent tort action. Noah v. University of Tex. Med. Branch at Galveston, No. 01-03-00985, No. 01-03-00986-CV, — S.W.3d -, -, 2004 WL 1794642, at *9 (Tex.App.-Houston [1st Dist.] Aug. 12, 2004, pet. denied); Taylor v. Anatomical Board of Texas, 148 S.W.3d 661, 665 (Tex.App.-Beaumont 2004, pet. denied). By entering into a contract the State does not waive its immunity from suit. Fed. Sign v. Texas S. Univ., 951 S.W.2d 401, 408 (Tex.1997), superseded by statute on other grounds as stated in Little-Tex Insulation Co., 39 S.W.3d at 593. By its failure to return the remains, as set forth in the contract, Robinson is asserting a waiver-by-conduct exception to the sovereign-immunity rule. The Texas Supreme Court has expressly declined to adopt such an exception, and we decline to do so here. See Texas Natural Res. Conservation Comm’n. v. IT-Davy, 74 S.W.3d 849, 857 (Tex.2002).

As explained above, in this context, breach of contract claims are not actionable against UTMB and cannot promote a cognizable claim for mental anguish damages. UTMB has not waived immunity from suit by contracting with Robinson in this instance, and Robinson has not availed herself of her administrative remedies as provided by the legislature. The legislature has provided that Robinson may pursue her claims through legislative consent, administrative review or resolution of the legislature. See id. at 860. Robinson has, however, sought judicial review, and the law does not favor her in this regard, and her claim is rejected.

Robinson further argues that UTMB is liable to her for its negligent supervision of the Willed Body Program, and such failure constitutes a misuse of tangible property that injured her. She cites Texas A & M University v. Bishop, in which the court found that tangible personal property was misused when the university failed to adequately supervise students presenting a drama wherein one of the students was injured by a knife used in the play. 105 S.W.3d 646, 656 (Tex.App.Houston [14th Dist.] 2002), rev’d, 156 S.W.3d 580 (Tex.2005). However, the Texas Supreme Court in reversing Bishop, found that the faculty sponsors, and their employer, Texas A & M University, did not “use” the personal property and thus did not waive immunity. See Bishop, 156 S.W.3d at 583-84. As we have found that the intended use of the body had been completed, there was no use of property that would fall under the limited waivers of the Texas Tort Claims Act. Thus, there can be no negligent supervision constituting a misuse of tangible property, and this claim fails.

Robinson next claims constructive fraud against UTMB for UTMB’s breach of its special duty to properly handle willed bodies, i.e. a breach of fiduciary duty. The Tort Claims Act provides for governmental unit liability for personal injury caused by a condition or use of tangible personal property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. Tex. Civ. Prac. & Rem.Code Ann. § 101.021(2) (Vernon 1997). The claim for constructive fraud does not fall within the Texas Tort Claim Act’s limited waiver of immunity; therefore, UTMB retains its immunity. See City of Fort Worth v. Pastusek Indus., Inc., 48 S.W.3d 366, 372 (Tex.App.-Fort Worth 2001, no pet.). As we have already determined that there is no claim for misuse of tangible personal property, this claim must also fail.

In this case, except for the contract claim, addressed previously, Robinson alleges no cause that would defeat the sovereign immunity enjoyed by UTMB. All the remaining causes allege a special relationship cause of action against UTMB arising out of the willed donor contract. We conclude the special relationship cause of action sounds in contract, and we have found no Texas case law supporting a tort duty owed to Robinson. Therefore, we overrule Robinson’s first issue.

Accordingly, we affirm the judgment of the trial court.

FOWLER, J., concurring.

WANDA McKEE FOWLER, Justice,

concurring.

I concur in the result the majority reaches but I disagree with the court’s resolution of all the claims alleged in Mrs. Robinson’s petition except for the breach of contract and special relationship claims. Mrs. Robinson’s petition alleged claims for traditional negligence, gross negligence, negligent supervision, negligence per se, special relationship, and constructive fraud. In each but the special relationship claim, the majority finds Mrs. Robinson cannot pursue these claims because she has not alleged a use of tangible personal property for which the Texas Tort Claims Act waives immunity. I would hold that Mrs. Robinson could not pursue these claims because the remaining claims, although pleaded as tort claims, are all contractually based and thus subject to Chapter 2260’s administrative prerequisites.

The Texas Tort Claims Act Only Waives Immunity for Certain Tort Claims

A plaintiff wishing to avail himself of the Texas Tort Claims Act’s waiver of sovereign immunity must clear two hurdles. First, the plaintiff must plead a legally cognizable tort cause of action. This is because the Texas Tort Claims Act does not create a cause of action; the Act only waives the state’s sovereign immunity in limited situations. City of Tyler v. Likes, 962 S.W.2d 489, 494 (Tex.1997); Seamans v. Harris County Hosp. Dist., 934 S.W.2d 393, 395 (Tex.App.-Houston [14th Dist.] 1996, no writ). And second, the plaintiffs claim must be one for which the legislature has waived liability. Tex. Civ. PRAC. & Rem.Code § 101.021 (specifying the types of tort claims for which a state governmental unit is liable). If, as in Mrs. Robinson’s case, the plaintiff has not alleged a cognizable tort cause of action, the Tort Claims Act cannot waive the state’s immunity, even if the plaintiff could satisfy the other requirements.

The Texas Tort Claims Act Does Not Apply Because Mrs. Robinson’s Claims are Contractually Based

Mrs. Robinson’s claims, although pleaded as tort causes of action, are in fact, all contractually based. All of Mrs. Robinson’s claims stem from UTMB’s failure to use Mr. Robinson’s body for medical research and then to return his ashes to his family as promised. Because the only duties UTMB owed to the Robinsons arise from the parties’ contract, I would conclude that all of Mrs. Robinson’s claims are contractually-based.

1.Determining the source of UTMB’s duties

As mentioned above, Mrs. Robinson alleged a negligence claim, a gross negligence claim, negligent supervision, negligence per se, a special relationship claim, and constructive fraud. We determine whether a claim sounds in tort or contract by looking to the source of the legal duty. See DeWitt County Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 105 (Tex.1999); Univ. of Tex. Med. Branch at Galveston v. Harrison, No. 14-02-01276-CV, 2003 WL 21803314, *3 (Tex.App.-Houston [14th Dist.] Aug. 7, 2003, pet. denied). If the parties would owe no duties to one another but for the contract, the claim is contractually based. Harrison, 2003 WL 21803314 at *3 (“[I]f the defendant’s conduct would give rise to liability only because it breaches the parties’ agreement, the plaintiffs claim ordinarily sounds only in contract.”) (citing DeWitt, 1 S.W.3d at 105). But, if the parties would owe duties to one another even in the absence of a contract, the claim sounds in tort. Id. (‘Where a defendant’s conduct would give rise to liability independent of the fact that a contract exists ... the plaintiffs claim may also sound in tort.”) (citing DeWitt, 1 S.W.3d at 105). Thus, I would first determine whether each of Mrs. Robinson’s claims sounds in tort, so that the Tort Claims Act might apply, or in contract, so that Chapter 2260 might apply.

2. The negligence claims

In her negligence claims, Mrs. Robinson alleges UTMB had a duty to use her husband’s body only for medical research and to return her husband’s ashes to the family. These duties clearly arise from the Willed Body Form that Mr. Robinson signed. This contract outlined and limited the duties UTMB owed to Mr. and Mrs. Robinson. In the absence of the parties’ contractual agreement for the donation of Mr. Robinson’s body for specified purposes and UTMB’s return of the body to his family, UTMB would owe no duty to the Robinsons to use his body for medical research or to ensure the return of his ashes to the family. Accord, Harrison, 2003 WL 21803314, at *3 (“Apart from the duties created by [the willed body form], appellees have not cited and we have not found, any Texas case law recognizing a tort duty that UTMB owed to them and allegedly breached.”). Thus, even though Mrs. Robinson called her claims negligence claims, at their heart, they are contractual and complain of the breach of the parties’ agreement.

3. The special relationship claim

I also would find that Mrs. Robinson’s special relationship claim is contractually based. A special relationship claim requires (1) a contractual relationship between the parties; (2) the plaintiffs particular susceptibility to emotional distress; and (3) the defendant’s knowledge of the plaintiffs particular susceptibility based on the circumstances. Lions Eye Bank of Tex. v. Perry, 56 S.W.3d 872, 877 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (citing Johnson v. Standard Fruit & Vegetable Co., 984 S.W.2d 633, 638 (Tex. App.-Houston [1st Dist.] 1997), rev’d on other grounds, 985 S.W.2d 62 (Tex.1998)). The contract itself is the basis of the duty to a deceased’s family to properly handle the deceased’s remains. See Pat H. Foley & Co. v. Wyatt, 442 S.W.2d 904, 906 (Tex. Civ.App.-Houston [14th Dist.] 1969, writ refd n.r.e.) (finding that the plaintiffs “basic allegation is that the defendant failed to perform according to its contractual responsibility”). In the absence of a contractual relationship, a plaintiff cannot maintain a special relationship claim. Lions Eye Bank, 56 S.W.3d at 877 (finding plaintiffs were precluded from establishing the defendant owed them a duty not to negligently inflict mental anguish because there was no contractual relationship). Because a special relationship claim arises solely from the parties’ contractual relationship, Mrs. Robinson’s special relationship claim is also contractually based.

4. The constructive fraud claim

And finally, I would find that the constructive fraud claim is contractually based. Constructive fraud is the breach of a legal or equitable duty which the law declares fraudulent because it violates a fiduciary relationship. Jean v. Tyson-Jean, 118 S.W.3d 1, 9 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (citing Archer v. Griffith, 390 S.W.2d 735, 740 (Tex. 1964)). Mrs. Robinson alleges UTMB committed a constructive fraud by not returning her husband’s ashes to her after using his body for medical research. Here, as with the other claims, the source of these duties was the contract between the parties. Mrs. Robinson has not provided any Texas authority for finding that UTMB owed other legal or equitable duties to her husband or to her. Therefore, the constructive fraud claim, like the others, is also contractually based.

Conclusion

Because all of Mrs. Robinson’s claims are contractually based, she was required to satisfy Chapter 2260’s administrative prerequisites to proceed with her claim against UTMB. Because she has not done so, I would hold that UTMB has not waived its sovereign immunity and the trial court properly granted UTMB’s plea to the jurisdiction.

      . See Tex. Civ. Prac. & Rem.Code Ann. §§ 101.001-.109 (Vernon 1997 & Supp.2004-05) (hereinafter "Texas Tort Claims Act.”)

      . Authorization for the receipt of bodies is through the Anatomical Board of the State of Texas. Tex. Health & Safety Code Ann. § 691.028 (Vernon Supp.2004-05).

      . I agree with the majority's conclusions that (1) Mrs. Robinson cannot proceed with her claims because UTMB has not waived its sovereign immunity; (2) the trial cotut properly granted UTMB's plea to the jurisdiction; and (3) Mrs. Robinson could not proceed with her breach of contract claim because the failure to comply with Chapter 2260’s administrative prerequisites has foreclosed that avenue of recovery.

      . The majority holds that Mrs. Robinson has not alleged a use because the only intended use of the body was as a cadaver; once that use was completed there could be no further use. Their contract specifically stated that the body's ashes should be returned to the family. I believe that UTMB’s improper "use” of the ashes by mingling them with the ashes of other donated bodies qualifies as a use of tangible personal property. But, even though Mrs. Robinson may have alleged a use under the Act, she still cannot prevail over the plea to the jurisdiction for the reasons listed infra.

      . The majority holds that Mrs. Robinson cannot pursue her special relationship claim for this very reason. I agree with the majority's reasoning and result with respect to the special relationship claim. However, I believe that all of Mrs. Robinson’s other claims are subject to the same analysis.

      .The Texas Tort Claims Act waives immunity in two situations, stating:
      A governmental unit in the state is liable for:
      (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
      (A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
      (B) the employee would be personally liable to the claimant according to Texas law; and
      (2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.
      Tex. Civ. Prac. & Rem.Code § 101.021(1).