text:
    Don NICHOLS, Individually, and d/b/a Nichols Marine of McAlester, Oklahoma, Appellant v. James BRIDGES, Appellee.
    No. 06-05-00020-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted March 15, 2005.
    Decided April 27, 2005.

      Stephen R. Patterson, Merriman, Patterson, Connolly & Hughes, LLP, Long-view, for appellant.
    Bradley T. Steele, Longview, for appel-lee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

Don Nichols, individually, and d/b/a Nichols Marine of McAlester, Oklahoma (hereinafter referred to as Don), appeals an order denying a special appearance claim challenging the personal jurisdiction in Texas. We find that there is no evidence to support the finding and reverse the judgment of the trial court.

Facts and Procedural History

Don Nichols, a resident of OMahoma, established a boat dealership in McAlester, Oklahoma, in 1972. Don’s son, Gary Nichols, established Nichols Marine of Texas, L.L.C., and Marine Holdings Corporation. Don has never had any ownership interest in Nichols Marine of Texas, L.L.C., or Marine Holdings Corporation. It is alleged that Nichols Marine of Texas, L.L.C., entered into an employment agreement -with James Bridges and that Bridges was wrongfully terminated by Nichols Marine of Texas, L.L.C. Bridges further alleged that he and Gary Nichols entered into a business plan agreement whereby Gary Nichols would arrange for the necessary funding for all company acquisitions and operations. Nichols Marine of Texas, L.L.C., was dissolved, and Gary Nichols then incorporated Nichols Marine of Long-view, L.L.C. Bridges sued Gary Nichols, Nichols Marine of Longview, L.L.C., Marine Holdings Corporation, Don Nichols, individually, and d/b/a Nichols Marine of McAlester, Oklahoma. Don filed a special appearance alleging the trial court did not have jurisdiction over him. After a hearing, the trial court denied the motion, which denial is being appealed.

Gary’s corporation was structured to allow a transfer of boats from Oklahoma to Texas regardless of which company was obligated for the floor plan financing. Don was allowed to participate with Gary’s corporation as a buying group through Marine Holdings Corporation, which allowed Don to obtain discounts or rebates from the manufacturers. Don was aware that the group purchasing and the floor plan financing allowed the Longview store to acquire inventory. Don’s company received rebates from boat manufacturers during the time that Gary and Bridges were involved in the Longview store. The rebates were to be received by Marine Holdings Corporation and then disbursed to the respective stores, including the Longview store.

Don challenges the legal and factual sufficiency of the implied findings of fact to support the judgment.

Standard of Review

The Texas Supreme Court has spoken extensively on the jurisdiction of Texas courts over a nonresident defendant. See Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 805-07 (Tex.2002). Texas courts may assert personal jurisdiction over a nonresident only if the Texas long-arm statute authorizes jurisdiction and the exercise of jurisdiction is consistent with federal and state due process standards. Guardian Royal Exch. Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991). The Texas long-arm statute reaches “as far as the federal constitutional requirements of due process will allow.” Id. Thus, the Texas long-arm statute requirements are satisfied if exercising jurisdiction comports with federal due process limitations. Id. The Texas statute specifies that the following actions by a nonresident may constitute “doing business” in Texas: (1) contracting by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state, (2) committing a tort in whole or in part in this state, or (3) recruiting Texas residents, directly or through an intermediary located in this state for employment inside or outside this state. See Tex. Civ. PRAC. & Rem.Code Ann. § 17.042 (Vernon 1997).

Under the Due Process Clause of the Fourteenth Amendment, jurisdiction is proper if a nonresident defendant established “minimum contacts” with Texas and maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The purpose of the minimum-contacts analysis is to protect the defendant from being haled into court when its ■ relationship with Texas is too attenuated to support jurisdiction. Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.1990). Accordingly, we focus on the defendant’s activities and expectations' in deciding whether it is proper to call it before a Texas court. Id.

The minimum-contacts analysis requires that a defendant “purposefully avail” itself of the privilege of conducting activities within Texas, thus invoking the benefits and protections of our laws. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). The defendant’s activities, whether they consist of direct acts within Texas or conduct outside Texas, must justify a conclusion that the defendant could reasonably anticipate being called into a Texas court. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). A defendant is not subject to jurisdiction here if its Texas ' contacts are random, fortuitous, or attenuated. See Guardian Royal Exch. Assur., Ltd., 815 S.W.2d at 226. Nor can a defendant be haled into a Texas court for the unilateral acts of a third party. Id. It is the quality and nature of the defendant’s contacts, rather than their number, that is important to the minimum-contacts analysis. Id. at 230 n. 11.

A defendant’s contacts with a forum can give rise to either specific or general jurisdiction. For a court to exercise specific jurisdiction over a nonresident defendant, two requirements must be met: (1) the defendant’s contacts with the forum must be purposeful, and (2) the cause of action must arise from or relate to those contacts. Id. at 227. General jurisdiction, on the other hand, allows a forum to exercise jurisdiction over a defendant even if the cause of action did not arise from or relate to a defendant’s contacts with the forum. Id. at 228. General jurisdiction is present when a defendant’s contacts with a forum are “continuous and systematic,” a more demanding minimum-contacts analysis than specific jurisdiction. Id.

The plaintiff bears the initial burden of pleading allegations sufficient to bring a nonresident defendant within the provisions of the long-arm statute. McKanna v. Edgar, 388 S.W.2d 927, 930 (Tex.1965). But upon filing a special appearance, the nonresident defendant assumes the burden to negate all the bases of personal jurisdiction alleged by the plaintiff. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex.1985).

Whether a court has personal jurisdiction over a defendant is a question of law. Coleman, 83 S.W.3d at 805-06 (citing BMC Software v. Marchand, 83 S.W.3d 789 (Tex.2002)).

But in resolving a question of law, a trial court must frequently resolve questions of fact. Coleman, 83 S.W.3d at 805-06 (citing Marchand, 83 S.W.3d at 794). On appeal, the trial court’s determination to grant or deny a special appearance is subject to a de novo review, but appellate courts may be called on to review the trial court’s resolution of a factual dispute. Id. When the trial court does not issue findings of fact, reviewing courts should presume the trial court resolved all factual disputes in favor of its judgment. Coleman, 83 S.W.3d at 805-06 (citing Marchand, 83 S.W.3d at 795).

Here, the trial court denied the special appearance motion, but did not issue findings of fact. Therefore, we presume the trial court resolved all factual disputes in favor of its judgment. If there is more than a scintilla of evidence to support the implied findings, the no-evidence or legal sufficiency challenge fails. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex.1992). An appellate court may reverse a decision of the trial court for factual sufficiency if, after reviewing all of the evidence, the disputed factual determination is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. Cartlidge v. Hernandez, 9 S.W.3d 341, 346 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Consideration of the Second Amended Original Petition

The trial court conducted a hearing on this special appearance plea November 1, 2004. At that time, the live pleading of Bridges was the first amended original petition. After the hearing was concluded, the judge announced that he would take the matter under advisement after having an opportunity to “review everything else.” On November 3, 2004, Bridges filed his second amended original petition, which expanded some of the allegations previously made. There is no evidence that the pleading was filed with the express permission of the trial court.

Rule 63 of the Texas Rules of Civil Procedure provides:

Parties may amend their pleadings, ... provided, that any pleadings, responses or pleas offered for filing within seven days of the date of trial or thereafter, ... shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party.

Tex.R. Crv. P. 63 (emphasis added). Accordingly, pleading amendments sought within seven days of the time of trial are to be granted unless there has been a showing of surprise to the opposite party. Rogers v. Gonzales, 654 S.W.2d 509, 515 (Tex.App.-Corpus Christi 1983, writ ref'd n.r.e.).

A liberal interpretation has been given to Rule 63. Texas courts have held that, in the absence of a sufficient showing of surprise by the opposing party, the failure to obtain leave of court when filing a late pleading may be cured by the trial court’s action in considering the amended pleading. Lloyd’s of London v. Walker, 716 S.W.2d 99, 103 (Tex.App.-Dallas 1986, writ ref'd n.r.e.); West v. Touchstone, 620 S.W.2d 687, 689 n. 2 (Tex.Civ.App.-Dallas 1981, writ ref'd n.r.e.); Swinney v. Winters, 532 S.W.2d 396, 400 (Tex.Civ.App.-San Antonio 1975, writ ref'd n.r.e.); Lucas v. Hayter, 376 S.W.2d 790 (Tex.Civ.App.-San Antonio 1964, writ dism’d).

The language of Rule 63 allows an amendment to a pleading within seven days of the “date of trial.” No cases have been found determining that a special appearance plea hearing is a “date of trial” as envisioned by Rule 63. However, a special appearance is similar to a summary judgment in that each may lead to a final disposition of the case. Summary judgment proceedings have been held to be a trial within the meaning of Rule 63. See Jones v. Houston Materials Co., 477 S.W.2d 694, 695 (Tex.Civ.App.-Houston [14th Dist.] 1972, no writ); Leche v. Stautz, 386 S.W.2d 872 (Tex.Civ.App.-Austin 1965, writ ref'd n.r.e.). We will construe the special appearance hearing as requiring the trial court’s approval in order to consider amended pleadings filed within seven days of the hearing date or thereafter.

Here, the trial court heard the oral presentation of the motion November 1, 2004. On November 3, 2004, the second amended original petition was filed, and the court ruled on the motion by an order filed November 23, 2004. The amended pleadings added more definite allegations concerning Don, but none of the pleadings have been shown to be a surprise to Don. The allegations in the first and second amended pleadings both alleged a conspiracy between the defendants to terminate the business of Nichols Marine of Texas, L.L.C., and a failure to fund the Longview operation to allow it to comply with the agreement with Bridges. The second amended original petition stated more specifically that Don received rebates attributable to Nichols Marine of Texas, L.L.C., and failed to properly remit the rebates to Nichols Marine of Texas, L.L.C. The “rebate” allegation was discussed during the deposition of Don, which is before this Court, and therefore should not have come as a surprise. Finally, there is no indication the trial court did not consider this allegation since several weeks transpired before the trial court filed its order and after the trial judge stated that he would “review everything else.” When the record is silent of any basis to conclude that the amended pleading was not considered by the trial court and when no surprise or prejudice is shown, leave of court is presumed. Goswami v. Metro. Sav. & Loan Ass'n, 751 S.W.2d 487, 490 (Tex.1988). We will consider the second amended original petition.

Specific Jurisdiction

Bridges’ suit alleges Don (1) conspired with the other defendants to deprive Nichols Marine of Texas, L.L.C., from necessary funding required under the business agreement between Bridges and Gary Nichols, (2) failed to provide adequate floor plan financing to allow Nichols Marine of Texas, L.L.C., to acquire sufficient inventory and diverted such financing to other boat dealerships owned by the Nichols, and (3) failed to pay rebates to Nichols Marine of Texas, L.L.C., received by Don Nichols in the amount of $70,000.00, breaching a fiduciary duty. In an affidavit, Don denies all the allegations. It is alleged that these actions rendered Nichols Marine of Texas, L.L.C., on such an unsound financial basis that it was not able to comply with the contract entered into with Bridges. The only evidence on these issues comes from the affidavit and deposition of Don.

We will examine whether Don negated all bases of jurisdiction as alleged by Bridges. When reaching a decision to exercise or decline jurisdiction based on the defendant’s alleged commission of a tort, the trial court should examine only the necessary jurisdictional facts and should not reach the merits of the case. Arterbury v. Am. Bank & Trust Co., 553 S.W.2d 943, 948 (Tex.Civ.App.-Texarkana 1977, no writ). Specific jurisdiction over a tort defendant is satisfied when “the defendant, personally or through an agent, is the author of an act or omission within the forum state, and the petition states a cause of action in tort arising from such conduct.” Baldwin v. Household Int’l, Inc., 36 S.W.3d 273, 277 (Tex.App.-Houston [14th Dist.] 2001 no pet.). But where the movant in a special appearance motion establishes the nonexistence of an act or omission on which jurisdiction rests, he or she has destroyed the basis for the power of the Texas court to determine the issue of liability. The fact that the showing of an absence of the factual basis for exercise of jurisdiction also tends to show the absence of liability is irrelevant. Ross F. Meriwether & Assocs. v. Aulbach, 686 S.W.2d 730, 732 (Tex.App.-San Antonio 1985, no writ).

Here, it is not alleged that Don committed any act in the State of Texas. Rather, it is alleged that Don’s actions affected the viability of the now-dissolved corporation, Nichols Marine of Texas, L.L.C. Essentially, the allegation is that Don “controlled” the availability of floor plan financing for the Texas business, and his denial of financing and diversion of financing to other stores prevented the Texas store from obtaining inventory, which in turn caused the Texas company to be unable to comply with its contractual obligation to Bridges for his continued employment. In his affidavit, Don denies he has committed any act or omission to conspire with another to make it impossible for anyone to comply with the contract to which Bridges was a party. Don’s affidavit states he was never asked to and never agreed to provide any funding for acquisitions or operation of Nichols Marine of Texas, L.L.C. Don admits he personally guaranteed the floor plan financing for both the Oklahoma and Texas stores to the financial institutions, which allowed the transfer of boats from Oklahoma to Texas regardless of which store was responsible. However, there is no evidence from any source that Don “controlled” the inventory or the financing for Nichols Marine of Texas, L.L.C., or that he violated any such personal guarantees. Don received some rebates from manufacturers, including some reflecting sales from the Longview store. The rebates first came to Don and then were disbursed to the holding corporation, which would distribute the money to the proper place, including the Long-view store. It is Bridges’ allegation that rebates were improperly diverted from the Longview store, which made it financially unable to comply with the contract with Bridges.

It is true that a state may exercise jurisdiction based on the effects of a nonresident’s actions even if the conduct was committed elsewhere when the actor knew he would cause damage in another state. See Calder v. Jones, 465 U.S. 783, 790, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). In dicta, the Texas Supreme Court has stated that “a nonresident need not be physically present in the state. Due process is satisfied if the defendant’s activities outside the state have reasonably foreseeable consequences in the forum.” Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434, 438 n. 5 (Tex.1982) (citing Prod. Promotions, Inc. v. Cousteau, 495 F.2d 483, 496 (5th Cir.1974)); see Gen. Elec. Co. v. Brown & Ross Int’l Distribs., Inc., 804 S.W.2d 527, 533 (Tex.App.-Houston [1st Dist.] 1990, writ denied). The “effects” test, though, requires that the conduct be purposefully directed at the forum. See D.H. Blair Inv. Banking Corp. v. Reardon, 97 S.W.3d 269, 275 (Tex.App.-Houston [14th Dist.] 2002, pet. dism’d w.o.j.) (mere knowledge not sufficient to be purposeful). Here, the strongest case to be made is that Don failed to pay certain rebates to Nichols Marine of Texas, L.L.C. In turn, Nichols Marine of Texas, L.L.C., became financially insolvent and therefore could not honor Bridges’ contract. We believe such consequences are too remote and attenuated, and are not reasonably foreseeable. Don had no contractual or fiduciary relationship to Bridges. The argument that Don violated some duty owed to Nichols Marine of Texas, L.L.C., which resulted in Nichols Marine of Texas defaulting on its contract to Bridges logically could be made on behalf of any creditor of Nichols Marine of Texas, L.L.C. (that Don failed to pay Nichols Marine of Texas so it could not pay its suppliers, vendors, rent or land payments, employees, etc., and therefore Don may be sued in Texas for any such debt). Assuming it is true that Don failed to pay some rebates owed to Nichols Marine of Texas, L.L.C., such fact does not establish that Bridges’ cause of action arises from or is connected to such act. We hold that a Texas court may not assert specific personal jurisdiction over Don. See Reardon, 97 S.W.3d at 275.

General Jurisdiction

It is clear that the actions of Don did not give rise to general jurisdiction by the Texas courts over them. General jurisdiction is present when a defendant’s contacts are continuous and systematic, permitting the forum to exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum, a more demanding minimum-contacts analysis than for specific jurisdiction. CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex.1996). There is no evidence that Don conducted systematic and continuous activities giving rise to general jurisdiction.

We conclude Don Nichols, individually, and d/b/a Nichols Marine of McAlester, Oklahoma, did not have sufficient minimum contacts with the State of Texas to support an assertion of personal jurisdiction. We reverse the trial court’s order denying the special appearance and render judgment dismissing Bridges’ claims against Don Nichols, individually, and d/b/a Nichols Marine of McAlester, Oklahoma.


source: Caselaw Access Project

author: Justice CARTER.

license: Public Domain

text:
    William Charles MALONE, Appellant v. The STATE of Texas, Appellee.
    No. 06-04-00045-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Nov. 19, 2004.
    Decided April 28, 2005.

      Alex Tyra, Law Office of Alex Tyra, Longview, for appellant.
    Ray Bowman, Asst. Dist. Atty., Long-view, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice CARTER.

A Gregg County jury found William Charles Malone guilty of aggravated sexual assault, sexual assault, and indecency with a child in connection with the sexual abuse of his daughter, J.M., age thirteen at the time of her outcry. The jury then recommended punishment of thirty years’ confinement each for the offenses of aggravated sexual assault and sexual assault, and twenty years’ confinement for the conviction for indecency with a child. Having requested and heard statements of counsel regarding stacking of the three sentences, the trial court followed the jury’s recommendations for sentencing and ordered that the sentences run consecutively. On appeal, Malone contends that the trial court erred in admitting expert testimony offered by the State, that the trial court erred by overruling his motion to suppress, that the trial court erred in refusing to instruct the jury on the legality of the search that yielded certain items of evidence, and that the sentences imposed were disproportionate. We affirm.

I. EXPERT TESTIMONY

In his first point of error, Malone complains of the trial court’s admission of the testimony of the State’s expert witness, Jamie English, the program director at the Children’s Advocacy Center of East Texas in Longview.

A. English’s Qualifications and Testimony

English testified she had earned a bachelor’s degree in social work and was working toward her master’s degree. She is a licensed social worker and a member of the American Professional Society on the Abuse of Children. She testified she had completed more than 600 forensic interviews of children. Additionally, she had been to several week-long training sessions relating to topics concerning child abuse and family violence. She also attended several conferences on forensic interviewing of child victims. Although she had testified in other cases, she had not been qualified as an expert. She reviewed the police report and several scholarly articles before testifying. The articles concerned incest, situational offenders versus pedophilia, and narcissistic personality disorder.

On voir dire, English explained she “would testify to the types — the different types of pedophilia versus situational offender and narcissistic personality disorder. ...” Concluding that her generalized testimony would aid the jury, the trial court overruled Malone’s objections to the expert testimony.

Before the jury, English testified that, in general, some individuals turn to children as sexual partners because those individuals may have personality defects. Relying on the Diagnostic and Statistics Manual (DSM-IV), she described the characteristics of narcissistic personality disorder and explained that this is one type of personality who may commit incest. She also provided general testimony about child abuse victims. She did not specifically diagnose Malone as an incest perpetrator.

B. Applicable Law: Rule of Evidence and Cases

Rule 702 of the Texas Rules of Evidence states if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. Tex.R. Evm 702; Alvarado v. State, 912 S.W.2d 199, 215 (Tex.Crim.App.1995).

Under Tex.R. Evid. 702, the trial court must be satisfied that three conditions are met before expert testimony is admitted: (1) the witness qualifies as an expert by reason of his or her knowledge, skill, education, training, or experience; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the jury in deciding the case. Alvarado, 912 S.W.2d at 215-16; Hardin v. State, 20 S.W.3d 84, 91 (Tex.App.-Texarkana 2000, pet. ref'd); Bui v. State, 964 S.W.2d 335, 344 (Tex.App.-Texarkana 1998, pet. ref'd). Malone challenges the trial court’s admission of English’s testimony on the grounds that she was not properly qualified and that her testimony was not sufficiently reliable to assist the jury.

1. Qualification Inquiry

No rigid formula exists for determining whether a particular witness is qualified to testify as an expert. Alvarado, 912 S.W.2d at 215-16; Hardin, 20 S.W.3d at 91; Bui, 964 S.W.2d at 344. The United States Supreme Court emphasized that this inquiry was “a flexible one.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 594, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The expertise must be measured against the particular opinion the expert is offering. Roise, 7 S.W.3d at 234. While the proponent of the testimony has the burden of establishing the expert’s qualifications, the trial court has the responsibility to ensure that “those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion.” Broders v. Heise, 924 S.W.2d 148, 152 (Tex.1996); see Matson v. State, 819 S.W.2d 839, 851 (Tex.Crim.App.1991).

A degree alone is not enough to qualify a purported expert to give an opinion, as the case may be, on every conceivable medical question, legal question, or psychological question. Roise, 7 S.W.3d at 234. The inquiry must be into the actual qualification. That is, there must be a “fit” between the subject matter at issue and the expert’s familiarity therewith. See Broders, 924 S.W.2d at 153. The proponent must establish that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the trial court which would qualify the expert to give an opinion on that particular subject. Id.

2. Reliability Inquiry

The proponent of scientific evidence must show, by clear and convincing proof, that the evidence is sufficiently reliable and relevant to assist the jury in understanding other evidence or in determining a fact issue. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000); Salazar v. State, 127 S.W.3d 355, 359 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd [4 pets.]).

In Nenno v. State, 970 S.W.2d 549, 561 (Tex.Crim.App.1998), the Texas Court of Criminal Appeals stated “an appropriately tailored translation of the Kelly test” for expert testimony outside the hard sciences. When the expert is from a discipline which involves technical or other specialized knowledge, experience, and training as opposed to the scientific method, the test for reliability is: (1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert’s testimony is within the scope of that field, and (3) whether the expert’s testimony properly relies on and/or utilizes the principles involved in the field. See Weatherred, 15 S.W.3d at 542; Nenno, 970 S.W.2d at 561.

C. Standard of Review

We review the trial court’s decision to admit expert testimony for abuse of discretion. Alvarado, 912 S.W.2d at 216; Hardin, 20 S.W.3d at 90. The test for determining whether an abuse of discretion occurred is not whether the facts present an appropriate case for the trial court’s action; rather, the test is whether the trial court acted without reference to any guiding rules and principles, or in other words, acted in an arbitrary and unreasonable manner. Roise, 7 S.W.3d at 233.

D. No Abuse of Discretion in Admission of Expert Testimony

1. On English’s Qualifications and Scope of Her Expertise

a. Opinions on Abuse Victims’ Tendencies

Clearly, the trial court did not abuse its discretion by concluding English was an expert who could testily as to the behavioral tendencies of child abuse victims, in light of her extensive education in the field of social work, her extensive training through conferences on child abuse and family violence, and her specialized experience in conducting over 600 forensic interviews of child victims.

⅛. Opinions on Offender Profiles

The “fit” between English’s expertise and her testimony on the types of incest offenders is less comfortable. First, to the extent her testimony was based on the DSM-IV, Malone waived any error when he affirmatively did not object to the admission of the portion of the DSM-IV on the topic of narcissistic personality disorder. See Moraguez v. State, 701 S.W.2d 902, 904 (Tex.Crim.App.1986). When the State offered the excerpt from the manual, Malone stated that he “[has] no objection as to a summary of her testimony.”

As to the remainder of English’s testimony on offender profiles, that which she based largely on articles from the internet, the question is whether English testified within the scope of her expertise by-incorporating as her own those opinions expressed in the reviewed articles. She did have advanced education and training in a behavioral sciences field, had significant experience dealing with the victims of abuse, -and had attended training conferences on child abuse and family violence. Her testimony seems to lie in a more specialized field, one relating to psychological profiles of .the sexually deviant and one probably better suited to one in that specific field. While such a situation may easily run afoul of the Nenno standard and we urge caution in this scenario, here we have a unique set of circumstances. English had extensive experience in dealing with sexually abused victims. Considering her experience and her education in the behavioral sciences in general and in the area of child'abuse more specifically, she is in a position in which she would be able to evaluate, interpret, and incorporate research articles on topics of personality types with the tendency to commit incest.

While we may not have made the same determination as the trial court on this matter, we cannot conclude the trial court’s decision fell outside the zone of reasonable disagreement. Considering English’s education, training, and experience, the trial court did not act arbitrarily or unreasonably in overruling Malone’s objection to English’s expert testimony on the basis of her qualifications.

2. On the Reliability of English’s Testimony

As to the reliability of her testimony, the trial court also acted within its discretion by overruling Malone’s objections. In preparation for her testimony, English reviewed several journal articles on the characteristics of incest offenders and narcissistic personality disorders. She testified she applied the profile of the situational offender as a possibility on these facts. She explained that the situational offender is not an individual who has sexual urges for children. Rather, the situational offender may act on some sexual urges in certain circumstances. She reviewed research on the situational offender explaining how an individual may have only one or two victims rather than several. She then explained how the profile of and the theories underlying the situational-offender diagnosis have developed over time.

She then testified that a narcissistic personality disorder can be linked to a situational offender. To explain the narcissistic personality disorder, as a personality type connected with commission of incest, she relied heavily on the diagnosis descriptions found in the DSM-IV, the psychological standard recognized in the fields of behavioral science such as psychology and social work, which was introduced without objection. Based on this testimony, the trial court was reasonable in determining that English’s testimony satisfied the reliability inquiry under Nenno. We overrule Malone’s first point of error.

II. MOTION TO SUPPRESS

A. Two Searches of the Malone Residence

1. April 26, 2002

This first search was a warrantless search, based on a consent-to-search form signed by James Malone, appellant Malone’s hearing-impaired brother. On April 26, 2002, the day of J.M.’s outcry, Sergeant Terry Roach, Officer Carol Brian, Child Protective Services (CPS) investigator Audrey Hobson, J.M., J.M.’s older brother, and James left the police station and went to the Malone residence to get the children's personal belongings and to retrieve a bullwhip, pairs of panties, and a nightgown referenced in J.M.’s allegations.

Having already entered the house, Roach obtained a consent form from James. He explained that, since James is hearing-impaired, the officers had to get J.M. or her brother to translate for them. James is deaf and is unable to speak. Roach also testified that James lived at the residence and “stayed in the living room.” Roach testified that the officers explained, through translation, the nature of the form James was asked to sign and that James had come from the police station, where he had submitted a statement on the alleged crimes. J.M.’s account of the police interaction with James was markedly different from that of the officer, however.

For purposes of our analysis, we will treat separately the search of Malone’s bedroom and the search of common areas. Based on James’s consent, officers seized from underneath Malone’s bed a yellow folder containing mostly drawings of nude women, a gray plastic mechanical device, a Polaroid camera, twelve Playboy magazines, and some marihuana and drug paraphernalia. The officers seized an adult videotape and an innocuous photograph of Malone and J.M. from the common areas of the house. Also, J.M. turned over to the officers the articles of clothing referred to in her allegations against Malone.

2. May 1,2002

The second search of the residence was based on a search warrant obtained after Malone’s acquaintance spoke with investigating officer, Page Johnson, and directed him to the location of nude photographs. Malone does not complain of the legality of this second search.

B. Standard of Review

At a hearing on a motion to suppress evidence, ■ the trial court is the sole and exclusive trier of fact and the judge of the credibility of witness testimony. Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App.1991). We review the trial court’s ruling on a motion to suppress under a bifurcated standard of review, giving almost total deference to the trial court’s determination of historical facts and reviewing de novo the court’s application of the law. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000).

C. Consent Search of Malone’s Bedroom

1. Actual Authority

Consent to search is one of the well-established exceptions to the constitutional requirements that an officer have both a warrant and probable cause before a search. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Carmouche, 10 S.W.3d at 331. A warrantless entry and search by law enforcement officers does not violate the Fourth Amendment’s protection against unreasonable searches and seizures if the officers have obtained the consent of a third party who possesses common authority over the premises ' or effects to be searched. United States v. Matlock, 415 U.S. 164, 170, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). “Common authority” rests “on mutual use of property by persons generally having joint access or control for most purposes.” Id. at 170 n. 7, 94 S.Ct. 988. A third party may properly consent to a search when the party has equal control over and equal use of the premises being searched. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App.2002); Becknell v. State, 720 S.W.2d 526, 528 (Tex.Crim.App. [Panel Op.] 1986); Rivera v. State, 59 S.W.3d 268, 273 (Tex.App.-Texarkana 2001, pet. ref'd); Corea v. State, 52 S.W.3d 311, 316 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd).

The Texas Court of Criminal Appeals has recognized the privacy considerations in an individual’s bedroom when it held as inadmissible the evidence seized from an adult son’s bedroom in a search authorized by the father/homeowner. See Becknell, 720 S.W.2d at 528. In Becknell, the father testified he was allowed to go into his son’s bedroom “only when [his son] was there.” Id. The evidence also showed that appellant Becknell had the only key to the locked room. Id. The court concluded the father did not have actual authority to consent to a search of the son’s bedroom.

The locked or unlocked distinction became less important in Corea. The State showed that the appellant’s brother-in-law did have authority to common areas of the apartment. Corea, 52 S.W.3d at 316. However, the State failed to show that the brother-in-law had the authority to consent to a search of the appellant’s bedroom. Id. The Corea court rejected the State’s argument that the open door to the bedroom was evidence showing the brother-in-law’s common authority over the bedroom. Id. at 316-17. The brother-in-law had told police at the scene that no one other than Corea lived in the bedroom, and so, the court concluded, the brother-in-law did not have equal control and access to the bedroom that would give him the authority to consent to a search of the bedroom. Id. at 316.

Here, Sergeant Roach testified that James lived in the house, but added that James “stayed in the living room.” When asked if James occupied the same bedroom as Malone, investigating officer Johnson answered, “Not to [his] knowledge.” From this, we conclude the State failed to show that Malone’s adult brother, although living in the house, had equal control of Malone’s bedroom. That being said, James did not have actual authority to consent to a search of Malone’s bedroom.

2. Apparent Authority

When the facts do not support a finding of actual authority, a search is reasonable if the consent giver apparently has actual authority. Rodriguez, 497 U.S. at 188, 110 S.Ct. 2793. In Rodriguez, the United States Supreme Court held that a warrantless entry by law enforcement officers onto a person’s premises does not violate the protection against unreasonable searches and seizures under the Fourth Amendment when such entry is based on the consent of a third party whom the officers, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not possess such authority.

If officers reasonably believed that the third party had common authority over the place to be searched, then their good-faith mistake will not invalidate the search. This deference does not mean, however, that they may rely on consent given in ambiguous circumstances or that clearly appears unreasonable. Riordan v. State, 905 S.W.2d 765, 771 (Tex.App.-Austin 1995, no pet.). While the apparent authority doctrine should not be applied so strictly that it places too heavy a burden on police, it cannot allow law enforcement officers to proceed without inquiry into ambiguous circumstances or to always accept at face1 value the consenting party’s apparent assumption or claim of authority to allow the contemplated search. Id.

We acknowledge that the Texas Court of Criminal Appeals has not expressly adopted the apparent authority doctrine. McNairy v. State, 835 S.W.2d 101, 105 (Tex.Crim.App.1991). Without formally adopting the doctrine, the court found it to be of some value in the resolution of McNairy. Id. It noted that the apparent authority doctrine was helpful in determining whether the officers were justified “in being where they were” when probable cause to conduct a warrantless search arose. Id. Citing Rodriguez, the court went on to explain that, should “ambiguous circumstances” arise which cast doubt on the effectiveness of the consent or the extent of the consent given, the officers “must stop and make inquiries as to the continued effectiveness of the consent.” Id. The McNairy court rejected the application of the apparent authority doctrine under the evidence in that case. Id.

The State bears the burden of proving that the person who gave consent had the actual or apparent authority to do so. Rodriguez, 497 U.S. at 181, 110 S.Ct. 2793. The State cannot satisfy this burden if officers proceed without making further inquiry into an ambiguous situation. Corea, 52 S.W.3d at 317. If the officers do not learn enough and if the circumstances make it unclear whether the property is subject to “common authority” by the person giving consent, “then warrantless entry without further inquiry is unlawful unless authority actually exists.” Rodriguez, 497 U.S. at 188-89, 110 S.Ct. 2793.

In Riordan, an officer, acting on a tip from Riordan’s twelve-year-old son, conducted a warrantless search of Riordan’s home based on the consent of an elderly woman, who was the only person present at the time of the officers’ arrival. Riordan, 905 S.W.2d at 768-69. The officers learned the woman’s name and her purpose for being there. They also learned the location of her separate residence and that the homeowners would be home shortly. Id., at 768. The officers seized marihuana from the master bedroom and the home office. Id. at 768-69. At the hearing on the motion to suppress, it was determined that the woman who consented to the search was Riordan’s mother-in-law, who lived in a nearby house Riordan and his wife had built for her on their property. Id. at 769.

The mother-in-law ate her meals at the Riordan home and also sometimes watched television there. Id. On occasion, as was the-case at the time of this search, she also acted as a babysitter for Riordan’s twelve-year-old son while Riordan and his wife were at work. Id. The wife testified that her mother was expressly denied access to the office and master bedroom. Id.

The Austin Court of Appeals held that the mother-in-law did not have actual authority to consent to the search of the bedroom and office and that “[t]he officer’s superficial and cursory questioning of [the mother-in-law] simply did not disclose sufficient information to support a reasonable belief that she had the authority to permit the search.” Id. at 772.

Similarly, in Corea, since the brother-in-law had informed the police that no one other than Corea lived in the bedroom, the circumstances did not support a reasonable belief that the brother-in-law had authority to consent to the search of the bedroom. Corea, 52 S.W.3d at 317. When the circumstances regarding the brother-in-law’s authority to consent appeared ambiguous, the police were obligated to investigate further and/or obtain a search warrant. Id. Their search without having done so was unreasonable. Id.

3. No Showing of Apparent Authority to Consent To Search of Bedroom

Likewise, the circumstances surrounding James’s authority to consent to a search of Malone’s bedroom are ambiguous. Since the officers proceeded without further inquiry in the face of this ambiguity, they acted unreasonably with respect to their search of Malone’s bedroom based on James’s consent.

In Davis, 93 S.W.3d at 668, this Court held that officers were reasonable in concluding that a female, who stated she lived in the one-bedroom residence, had authority to consent to a search. In the bedroom, officers found a firearm under the bed and, subsequently, Davis was prosecuted for possession of a firearm as a felon. The trial court overruled Davis’s motion to suppress the firearm. Id. at 665, 668. Later, it was determined that the female who consented to the search was an in-law that stayed with Davis on weekends. Id. at 668. While she did not have actual authority to consent to the search of the bedroom, the officers were reasonable in believing that a female living in a one-bedroom residence had equal access to the bedroom. Id. The same cannot be said under the circumstances here, however, where it is far less likely that two grown brothers will share a bedroom and, more obviously, where officers discovered James did not occupy the bedroom.

Again, investigating officer Johnson indicated he knew James did not share the bedroom with Malone. Sergeant Roach testified that James “stayed in the living room.” Therefore, it was not reasonable for the officers to proceed with the war-rantless search pursuant to the apparent authority of James to consent to a search of Malone’s bedroom. As were the officers in Corea, the police officers here were obligated either to investigate further to determine if James had the authority to consent to a search of the bedroom, or obligated to obtain a search warrant. See Corea, 52 S.W.3d at 317-18. We conclude the trial court erred in denying the motion to suppress because the State did not sustain its burden of establishing that James had actual or apparent authority to consent to the search of Malone’s bedroom. That is, regardless of whether James gave voluntary consent, this portion of the search is invalid because James legally could not give consent to a search of the bedroom.

The fruits of this unlawful search and seizure are those items seized from Malone’s bedroom: a yellow folder of drawings, a bag of marihuana, drug paraphernalia, a gray plastic mechanical device, a Polaroid camera, and twelve Playboy magazines. These items were seized unlawfully and should have been excluded from evidence.

4. No Reversible Error in Admission of Items Seized From Bedroom

We next determine if the error in the trial court’s overruling Malone’s motion to suppress the six items recovered from the bedroom constitutes reversible error. See Tex.R.App. P. 44.2. The error here is constitutional error because an unlawful search by the State violates both the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment. See Tex.R.App. P. 44.2(a). If the record reveals constitutional error that is subject to harmless error review, we must reverse a judgment of conviction or punishment unless we determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Tex.R.App. P. 44.2(a); see Hernandez v. State, 60 S.W.3d 106, 108 (Tex.Crim.App.2001).

In assessing the likelihood that the jury’s decision was adversely affected by the error, we consider everything in the record, including any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, the character of the alleged error and its connection with other evidence, and whether the State emphasized the error. See Motilla v. State, 78 S.W.3d 352, 357-58 (Tex.Crim.App.2002); Strong v. State, 138 S.W.3d 546, 555 (Tex.App.-Corpus Christi 2004, no pet.).

The marihuana and drug paraphernalia seized from Malone’s bedroom were wholly unrelated to the offense with which Malone was charged and for which he was, ultimately, convicted. The magazines were relatively innocuous, as well, in relation to Malone’s crimes. Similarly, the camera, in and of itself, has only minimal bearing on the crimes of aggravated sexual assault and indecency with a child here where, although J.M. testified Malone took nude photographs of her, no nude photographs of J.M. were ever produced. The yellow folder contained mostly classic rock-and-roll song lyrics, illustrated mottos, and amateur drawings of nude women, none of which have a strong tendency to support an allegation of sexual assault or indecency with a child.

We conclude the evidence seized from the bedroom was not necessary to the State’s case against Malone. See Strong, 138 S.W.3d at 555. J.M.’s own uncontra-dicted and detailed account of the abuse, testimony from friends and family, and the items J.M. turned over to police were at the heart of the State’s case. Considering the substantial evidence supporting the jury’s verdict, the nature of the items unlawfully seized, and the little emphasis placed on the evidence at issue, we determine the error did not contribute to Malone’s conviction.

D. Search of the Common Areas of the Residence

1. Voluntariness of Consent To Search

The voluntariness of a consent to search is a mixed question of law and fact. Reyes-Perez v. State, 45 S.W.3d 312, 316 (Tex.App.-Corpus Christi 2001, pet. ref'd). The United States Constitution requires only that the State prove voluntariness of consent by a preponderance of the evidence, while the Texas Constitution requires the State to prove voluntariness of the consent by clear and convincing evidence. Reasor v. State, 12 S.W.3d 813, 818 (Tex.Crim.App.2000); Carmouche, 10 S.W.3d at 331. We have held that James could not have consented to a search of Malone’s bedroom. We now address the issue whether the State met its substantial burden regarding a showing that James knowingly and voluntarily consented to the search of the rest of the residence.

2. Communication with James and Search of the Common Areas

Sergeant Roach testified he explained the consent to search form to James through translation by J.M. or her brother. Roach also explained that James had accompanied the group to the Malone residence from the police station, where James had made a statement through an interpreter. He was not aware of whether James could read. Roach testified he had no doubt as to whether James understood he was consenting to a search of the residence.

However, J.M.’s account of the police interaction with James was very different. She mentioned the presence, of a family friend who might have been at the house and tried to explain the search to James, even though the Mend did not know sign language. J.M. described the police officers trying to communicate with James through gestures. Taken as true, this type of communication would probably not have been sufficient to sustain the burden to show voluntary consent by clear and convincing evidence. See Reyes-Perez, 45 S.W.3d at 319. When asked whether the officers asked her to communicate with James, J.M. testified that she did not think so. She could not remember whether the officers enlisted the help of her brother in communicating with James.

From the common areas of the residence and independent of both J.M.’s efforts and the unreasonable search of Malone’s bedroom, the officers seized an adult videotape and an innocuous photograph of Malone and J.M.

3. Evidence is Not Clear and Convincing that James Consented to the Search

Since the evidence is unclear as to who communicated with James and whether that person knew sign language, and since the officers were uncertain as to whether James could read the consent form, we cannot conclude that the State showed by clear and convincing evidence James consented to the search at all. We recognize that James had come with the officers and children from the police station, where he had given a statement through the aid of an interpreter and that, therefore, James was likely well aware of the circumstances. However, this evidence does not rise to the level of clear and convincing when there are factual discrepancies regarding who communicated with James and the manner in which information was communicated. The signed consent form becomes less convincing as well since the officers testified they were uncertain as to whether James could read. The State failed to meet its burden of showing by clear and convincing evidence that James voluntarily consented to the search.

4. No Reversible Error In Admission of Items Seized from Common Areas

The items seized from the common areas of the residence also should have been excluded. However, any error in them admission would also be harmless error in that these items, like those seized from Malone’s bedroom, did not contribute to Malone’s conviction. Tex.R.App. P. 44.2(a). The adult videotape is not connected to the allegations of sexual assault and indecency with a child. The seized photograph is innocent in nature and shows a smiling father and daughter. We conclude neither of these illegally obtained items contributed to Malone’s convictions.

III. JURY INSTRUCTION ON LEGALITY OF SEARCH

Malone proposed two different jury instructions to the trial court. These two proposed instructions related to the jury’s consideration of evidence in light of the legality of the search. The trial court refused to include either instruction in the charge to the jury. Malone contends the trial court erred by refusing to submit an instruction pursuant to Tex.Code Crim. PROC. Ann. art. 38.23 (Vernon 2005).

A. When Article 38.23 Instruction Necessary

In certain instances, the jury may be instructed that it is not to consider illegally obtained evidence. Tex.Code CRiM. PROC. Ann. art. 38.23(a). A ruling on a motion to suppress may rest on legal rulings or factual findings, or some combination of the two. Pierce v. State, 32 S.W.3d 247, 251 (Tex.Crim.App.2000). An instruction pursuant to Article 38.23 is only] necessary when there is a dispute regarding the factual basis for the ruling to admit evidence. Garza v. State, 126 S.W.3d 79, 85 (Tex.Crim.App.2004); Pierce, 32 S.W.3d at 251.

B. Contested Issues of Fact Regarding James’s Consent

Here, the record indicates there was a dispute regarding the factual basis for the trial court’s ruling at least with respect to the items seized from the common areas of the residence. Put another way, there is a factual dispute regarding whether James gave knowing and voluntary consent to search. Again, from the record, it is uncertain as to who communicated with James. It is also uncertain as to whether James could read the consent form he signed.

Since there is a factual dispute concerning the voluntariness of James’s consent, the trial court was “statutorily bound” to submit an Article 38.23 instruction to the jury. See Vrba v. State, 69 S.W.3d 713, 719 (Tex.App.-Waco 2002, no pet.). The trial court erred by refusing to submit to the jury an instruction pursuant to Article 38.23.

C.No Reversible Error In Failure To Submit Article 38.23 Instruction

The harm standard in Article 36.19 applies to the omission of an Article 38.23 instruction. Tex.Code CRiM. Peog. Ann. art. 36.19 (Vernon 1981); Atkinson v. State, 923 S.W.2d 21, 27 (Tex.Crim.App.1996). If the charge error was properly preserved, then we must reverse if the error is “calculated to injure the rights of defendant.” Escobar v. State, 28 S.W.3d 767, 777 (Tex.App.-Corpus Christi 2000, pet. ref'd). Accordingly, this objected-to error requires reversal if Malone suffered “some harm” from the omission. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh’g).

While the trial court erred by refusing to submit to the jury an Article 38.23 instruction, its failure to do so is harmless error. The jury should have been instructed to disregard the evidence if it believes; or has a reasonable doubt, that the evidence was obtained unlawfully. Since, as we have determined, the items, those seized from the living room, which would have been covered by the instruction, did not contribute to Malone’s conviction; the failure to instruct the jury that it may disregard those items of evidence is harmless error. The trial court’s failure to instruct the jury that it may disregard evidence that has no bearing on the offense charged does not constitute “some harm.”

IV. DISPROPORTIONATE AND CONSECUTIVE SENTENCES

With respect to Count I, aggravated sexual assault, the jury recommended that Malone serve thirty-five years in Texas Department of Criminal Justice-Institutional Division (TDCJ-ID) and pay a $10,000.00 fine. With respect to Count II, sexual assault, the jury also recommended that Malone serve thirty-five years in TDCJ-ID and pay a $10,000.00 fine. Finally, the jury recommended a punishment of twenty years arid a $10,000.00 fine 'with respect to Count III, indecency with a child. Consistent with the State’s request, the trial court ordered that the sentences run consecutively. Malone complains on appeal that each sentence was disproportionate to the offense and that the trial court’s decision to stack the sentences caused the sentences to be excessive. Due to the nature of these complaints, we will treat each one in turn.

A. Proportionality of Individual Sentences Not Preserved For Review

A defendant must object that a sentence is disproportionate when the sentence is imposed or else he or she loses the right to complain about the proportionality of the sentence on appeal. Tex.R.App. P. 33.1; Rodriguez v. State, 71 S.W.3d 778, 779 (Tex.App.-Texarkana 2002, no pet.).

Here, Malone failed to object to the sentences as disproportionate. In fact, when the trial court read the jury’s recommendations and asked if the parties had any questions, Malone stated he did not. Going further, when asked to address the trial court’s decision whether to stack the sentences, defense counsel affirmatively waived this complaint:

Your Honor, I think the jury took careful time and consideration when making the recommendations as to punishment and assessing this man’s punishment. You’ve heard the testimony from the family- and to what their wishes were, the age of this defendant, and the range of punishment that he received of 35 years, I believe is appropriate. And I don’t think stacking these sentences is appropriate in this case.

Thus, Malone has failed to preserve for our review the issue regarding the proportionality of the individual sentences.

B. No Abuse of Discretion in Stacking Sentences

1. Trial Court’s Discretion

The trial court is given discretion to order sentences to run consecutively or concurrently: “[I]n the discretion of the court, the judgment in the second and subsequent convictions may either be that the sentence ... shall begin when the judgment and the sentence ... in the preceding conviction has ceased to operate, or that the sentence ... shall run concurrently with the other case or cases.” Tex.Code Cmm. PROG. Ann. art. 42.08 (Vernon Supp. 2004-2005). In light of the discretion granted to the trial court by Article 42.08(a), we review a complaint about consecutive sentences for an abuse of that discretion. See Macri v. State, 12 S.W.3d 505, 511 (Tex.App.-San Antonio 1999, pet. ref'd).

2. Limitations on Trial Court’s Discretion

Section 3.03 of the Texas Penal Code limits the trial court’s discretion in stacking sentences: ‘When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, a sentence for each offense for which he has been found guilty shall be pronounced. Except as provided by Subsection (b), the sentences shall run concurrently.” The Legislature has defined “criminal episode”:

the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances:
(1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or
(2) the offenses are the repeated commission of the same or similar offenses.

Tex. Pen.Code Ann. § 3.01 (Vernon 2003); see Baker, 107 S.W.3d at 673.

So, it would appear that Section 3.03(a) applies to Malone’s prosecution and disallows stacking of the sentences imposed here. However, Section 3.03(b) goes on to provide specific instances where the trial court may impose consecutive sentences even though the sentences were imposed for offenses arising out of the same criminal episode and prosecuted in a single proceeding. The pertinent portion of Subsection (b) reads as follows:

(b) If the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of:
(2) an offense:
(A) under Section 21.11, 22.011, 22.021, 25.02, or 43.25 committed against a victim younger than 17 years of age at the time of the commission of the offense regardless of whether the accused is convicted of violations of the same section more than once or is convicted of violations of more than one section;....

Tex. Pen.Code Ann. § 3.03(b)(2)(A).

Here, Malone was convicted of three of the listed offenses against J.M., who was younger than seventeen years of age at the time of the offenses: aggravated sexual assault of a child in violation of Tex. Pen. Code Ann. .§ 22.021 (Vernon Supp.2004-2005), sexual assault in violation of Tex. Pen.Code Ann. § 22.011 (Vernon Supp. 2004-2005), and indecency with a child in violation of Tex. Pen.Code Ann. § 21.11 (Vernon 2003). By the plain language of Section 3.03(b), the trial court acted within its discretion in ordering Malone’s sentences to run consecutively. We overrule Malone’s contention to the contrary.

V. CONCLUSION

Having concluded either that Malone’s points of error are without merit or that any trial court error was harmless error, we affirm the trial court’s judgment.

      . Rule 702 is equally applicable to both Texas civil and criminal cases and is worded the same as Fed.R.Evid. 702 (except for a comma). Thus, in a Texas criminal case, Texas civil cases and federal cases may be looked to for guidance. Roise v. State, 7 S.W.3d 225, 234 n. 3 (Tex.App.-Austin 1999, pet. ref'd).

      . See Hardin, 20 S.W.3d at 91, for the qualifications of an expert with a focus in this specialized field.

      . The court ultimately determined that admission of the items seized from the bedroom did not contribute to Becknell’s conviction and, thus, was harmless error. Becknell, 720 S.W.2d at 530. The court did not address the "apparent” authority doctrine or the reasonableness of the officers’ belief that the father could consent to the search. Becknell was decided four years before the United States Supreme Court decision in Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990).

      . Johnson testified at trial from his report on the search, but was not present during this first search.

      . Numerous intermediate appellate courts in this state have expressly recognized the apparent authority doctrine. See, e.g., Davis v. State, 93 S.W.3d 664, 668 (Tex.App.-Texarkana 2002, pet. ref'd); Corea, 52 S.W.3d at 317; Riordan, 905 S.W.2d at 771. See also Mathis v. State, No. 2-02-320-CR, 2004 WL 2008602, at 5-6, 2004 Tex.App. LEXIS 8281, at 14-16 (Tex.App.-Fort Worth Sept. 7, 2004, pet. ref'd) (not designated for publication); Wilson v. State, No. 04-02-00805-CR, 2004 WL 624541, at 1, 2004 Tex.App. LEXIS 2810, at *3 (Tex.App.-San Antonio Mar.31, 2004, no pet.) (not designated for publication); Giles v. State, No. 08-01-00080-CR, 2003 WL 68178, at 4, 2003 Tex.App. LEXIS 165, at *14 (Tex.App.-El Paso Jan.9, 2003, no pet.) (not designated for publication); Cody v. State, 2001 WL 1002666, at 1, No. 13-00-402-CR, 2001 Tex.App. LEXIS 4288, at *2 (Tex.App.-Corpus Christi June 28, 2001, no pet.) (not designated for publication); Speir v. State, Nos. 05-00-01257-CR, 05-00-01258-CR, 05-00-01259-CR, 2001 WL 722483, 3-4, 2001 Tex.App. LEXIS 4260, at *9-10 (Tex.App.-Dallas June 28, 2001, no pet.) (not designated for publication).

      . Citing to our decision in Taylor v. State, the State argues that Malone failed to show who had access to the bedroom or what Malone’s expectations were with respect to others’ access to his bedroom. See Taylor v. State, 995 S.W.2d 279, 281 (Tex.App.-Texarkana 1999, pet. dism’d). The State's reliance on Taylor is misplaced in that Taylor dealt with issues of standing, rather than consent. Additionally, this position confuses the burden at a hearing on a motion to suppress. When seeking the suppression of evidence based on allegations of unlawful search and seizure, the accused bears the burden of rebutting the presumption that the police conduct was proper. Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App.1986). The presumption is rebutted by a showing that the search or seizure occurred without a warrant. Harris v. State, 994 S.W.2d 927, 930 (Tex.App.-Waco 1999, pet. ref’d). The burden then shifts to the State. Id. If the State is unable to produce a warrant, it must prove the warrantless search or seizure was reasonable. Id. Similarly, the State has the burden of showing the search did not exceed the scope'of appellant’s consent. See Gilmore v. State, 666 S.W.2d 136, 149 (Tex.App.-Amarillo 1983, pet. ref’d).

      . Because the invalid search yielded otherwise unsuspected contraband, the court determined that the error in admission of the evidence did contribute to Corea's conviction for possession with intent to deliver and, thus, was reversible error. Corea, 52 S.W.3d at 317-18.

      . The first proposed instruction instructed the jury that a search is unlawful without the consent of the accused. The second proposed instruction would have instructed the jury that a search is unlawful when the police officer obtains consent to search from the accused by falsely representing to the accused that the officer has a search warrant. Neither instruction is correct in light of the facts of this case. The State has never contended that Malone consented to the search. Therefore, reference to consent by “the accused” is incorrect. Additionally, the record does not reveal a factual dispute regarding any representation to James that the officers had a search warrant. In sum, the proposed jury instructions do not put before the jury the issues concerning James’s authority to consent or the scope of the search pursuant to James’s consent. It was not error to refuse to submit to the jury either of these incorrect instructions. See Stone v. State, 703 S.W.2d 652, 655 (Tex.Crim.App.1986); Simmons v. State, 741 S.W.2d 595, 597 (Tex.App.-Dallas 1987, pet. ref'd).
      However, a jury instruction that incorrectly states the law can preserve error. Stone, 703 S.W.2d at 653-55. Here, the jury charges, although incorrect, were "sufficient to apprise the trial judge of the potential charge error.” See Francis v. State, 36 S.W.3d 121, 123 (Tex.Crim.App.2000).

      . The issue regarding the authority to search Malone's bedroom is actually one tied to legal reasoning. There is no factual dispute relevant to whether James had the authority to consent to the search.

      . As used in Tex. Pen.Code Ann. § 3.03 (Vernon 2003), a "single criminal action" refers to a single trial or plea proceeding; as such, a defendant is prosecuted in a "single criminal action” when allegations and evidence of more than one offense arising out of the same criminal episode are presented in a single trial or plea proceeding. Baker v. State, 107 S.W.3d 671, 673 (Tex.App.-San Antonio 2003, no pet.).


author: MORRISS, Chief Justice.

text:
    In the Interest of C.G.B., a/k/a M.G.K., And J.R.B., a/k/a R.R.K., Children
    No. 06-04-00054-CV.
    Court of Appeals of Texas, Texarkana.
    May 3, 2005.
    Duke E. Hooten, Dept, of Family & Protective Services, Special Litigation Unit, Austin, for appellant Department of Family and Protective Services.
    David Colley, Woodson, Colley & Colley, LLP, Mount Pleasant, for appellees Debbie Kludt and Wade Kludt.
    Bird Old III, Mount Pleasant, for C.G.B., a/k/a M.G.K, and J.R.B., a/k/a R.R.K., Children.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

MORRISS, Chief Justice.

For almost two years Wade and Debbie Kludt served as foster parents for C.G.B. and J.R.B., placed in their home by the Texas Department of Family and Protective Services. But the Kludts’ hopes to adopt the children were first delayed, long beyond the required and customary time periods, and then were interrupted when the Department removed the children from the Kludt home. That removal was based on Department administrative findings that Debbie Kludt had inflicted a blunt force trauma on C.G.B. and then neglected the child’s medical needs— findings contained in a Department letter dated May 21, 2003, but contradicted by the Kludts, who maintained C.G.B. was injured in a bicycle accident. The Kludts ultimately asked the trial court to name them, rather than the Department, managing conservators of the two children. Mediation proved futile. Over a year after the children had been removed from the Kludts’ home, the trial court was finally able to bring the Kludts’ request to a hearing. The court denied the Kludts possession of the children, because by contract the Department could remove the children from the Kludts’ home without cause and because the children, by the time of the hearing, had been out of the Kludts home for over a year. The trial court, however, directed at the Department some strongly-worded negative findings, which are not relevant to this appeal; ruled the Department’s administrative findings against the Kludts were unfounded; and entered a number of orders, only two of which are challenged in this appeal.

The Department appeals, asking only that we strike from the trial court’s order of April 8, 2004, the parts of the order exonerating the Kludts “from any wrongdoing toward” C.G.B. and J.R.B. and ordering the Department “to expunge from its records and its computer system the administrative findings contained in the letter dated May 21, 2003 and signed by Angela L. Nowell.” ■ The Department asserts that, once the trial court found the Kludts lacked standing, the trial court had no subject-matter jurisdiction to exonerate the Kludts or to order the Department’s records expunged. We disagree and conclude the trial court had authority to enter its order because (1) the Kludts had standing, and (2) even if the Kludts lacked standing, the trial court had inherent power to enter the order.

The Kludts Had Standing

Ordinarily, standing must be established before a court will have the subject-matter jurisdiction essential to its power to decide a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex.2000). Here, the Kludts had standing under Section 102.003(a)(12) of the Texas Family Code, which provides that a suit seeking modification of the parent-child relationship may be filed by “a person who is a foster parent of a child placed by the Department ... in the person’s home for at least 12 months ending not more than 90 days preceding the date of the filing of the petition.” TEX. FAM. CODE ANN. § 102.003(a)(12) (Vernon Supp.2004-2005):

The children were foster children in the Kludts’ home from the time the Department placed them there, July 17, 2001, until the Department removed them April 2, 2003 — a period of over twenty-one months. On June 19, 2003, seventy-eight days after the Department removed the children from their home, the Kludts filed their petition to modify. Therefore, pursuant to Section 102.003(a)(12), the Kludts had standing. The trial court erred in concluding they had none. Because the Kludts had standing, the trial court’s order can be sustained on that basis.

The Court Had Inherent Power To Enter the Order

But even if the Kludts had no standing to seek conservatorship of the children, the trial court clearly has a continuing statutory duty to oversee the children’s case, including the Department’s supervision of them.

For example, the supervising court must review the conservatorship appointment of the Department or another agency and the substitute care thereunder. TEX. FAM. CODE ANN. § 263.002 (Vernon 2002). The Department must create a “service plan” for each child in its custody within forty-five days after the court renders a temporary order appointing it temporary managing conservator. TEX. FAM. CODE ANN. § 263.101 (Vernon 2002). The plan must be filed with the court. TEX. FAM. CODE ANN. § 263.105(a) (Vernon 2002). In the plan, the Department must set out its goals for the child, specifying how it intends to seek a “permanent safe placement” for the child, whether by termination and placement for adoption, by return to their family, or by other means. TEX. FAM. CODE ANN. § 263.102 (Vernon 2002). The plan is explicitly subject to review by the court of continuing jurisdiction over the child. TEX. FAM. CODE ANN. § 263.105 (Vernon 2002).

The Department must prepare a “permanency plan” for each child. TEX. FAM. CODE ANN. § 263.3025 (Vernon 2002). The trial court must review the Department’s permanency progress reports in connection with the “permanency plan” created for each child. TEX. FAM. CODE ANN. § 263.303 (Vernon 2002). The trial court’s hearings must be held no less frequently than as set out by statute. See TEX. FAM. CODE ANN. §§ 263.304, 263.305 (Vernon 2002). The statutory scheme sets out a number of things that must be done by the trial court, including reviewing the appropriateness of the current placement; determining the plans, services, and orders needed to ensure that a final order is timely rendered; deciding whether the Department has made reasonable efforts to finalize the permanency plan; and projecting a likely date for the child to be placed for adoption. See TEX. FAM. CODE ANN. § 263.306 (Vernon 2002). At permanency hearings, the court is required to review the service plan, permanency report, and other information from the hearing, including the child’s safety, the ongoing viability of the current placement, and the compliance and progress made, including whether the Department has made reasonable efforts to finalize the permanency plan. TEX. FAM. CODE ANN. § 263.306(b).. The court should always be guided by “the best interest of the child.” See TEX. FAM. CODE ANN. § 263.307 (Vernon 2002).

The Department appears to be taking the position' that the trial court’s review may be focused on only the actions of parents or foster parents toward the child, not the Department’s actions that affect the child. The statute makes no such distinction, and there is no more reason to permit an agency to act outside the best interest of a child than to allow a parent to do so. Accordingly, the actions taken by the trial court fall well within the ambit of its explicit and implicit authority to review this type of proceeding, and it is clear from the court’s findings that, in doing so, it was properly performing its duty to C.G.B. and J.R.B.

We affirm the judgment.

      . The Kludts had the children in their possession from July 17, 2001, to April 2, 2003.

      . In the Placement Review Order dated March 11, 2004, C.G.B. is also called M.G.K., and J.R.B. is also called R.R.K.

      .The Kludts do not appeal.

      . The Department also argues that, because the Kludts did not perfect an appeal, we cannot review the trial court's finding that they had no standing. The Department’s own argument, however, rests solely on its position that the trial court correctly concluded the Kludts had no standing. The Department asks us to partially reverse the trial court’s order. Before we can reverse based on an erroneous ruling by a trial court, the Department must show that the trial court’s error was harmful. See TEX. R. APP. P. 44.1. In this case, even if the trial court erred by addressing additional matters after finding the Kludts had no standing, that error would not be harmful because the trial court erred in concluding the Kludts lacked standing.

      . At oral argument, the Department also argued that the Kludts had not exhausted their administrative remedies before filing suit. That matter was not addressed or discussed either in the agency's brief or before the trial court, and we will therefore not address that matter here, beyond noting that the trial court’s authority to review the Department’s activities is.not limited by the choices made by the foster parents whether to pursue relief from the Department. The duty of the trial court is to review activities that affect the child, and that duty is not restricted by the choices of either the foster parents or the Department.


author: BRIAN QUINN, Justice.

text:
    Jerry Glenn REYNOLDS, II, Appellant v. The STATE of Texas, Appellee.
    No. 07-04-0497-CR.
    Court of Appeals of Texas, Amarillo.
    May 9, 2005.
    Rehearing Overruled June 21, 2005.

      J. Craig Jett, Dallas, TX, for Appellant.
    William C. Sowder, District Attorney, Lubbock, TX, for Appellee.
    Before QUINN, REAVIS, and CAMPBELL, JJ.
   BRIAN QUINN, Justice.

Appellant, Jerry Glenn Reynolds, II, appeals his conviction for driving while intoxicated (DWI). His seven issues involve the trial court’s refusal to “suppress” evidence the State purportedly intended to offer at trial. We affirm the judgment.

Background

On September 20, 2008, at around 2:00 p.m., Trooper Michael Parker was working near Buffalo Lake outside of Lubbock where a festival attended by a number of college students was occurring. He was parked on the side of the road when he observed a sport utility vehicle without a front license plate. After stopping the vehicle, he asked appellant, who drove the SUV, to exit. As appellant did, the officer smelled a moderate odor of alcohol surrounding appellant and noticed that his eyes were red and glassy. When asked if he had anything to drink, appellant replied that he had a few beers at a campsite near the festival. The officer then had appellant perform field sobriety tests and undergo a portable breath test. Thereafter, he was arrested and transported to the Lubbock County jail. Upon arriving at that destination, he underwent an intoxi-lyzer test.

Prior to trial, appellant attempted to “suppress” the results of the sobriety and breath tests. The trial court denied his motions. As a consequence, appellant entered a plea of guilty and appealed the rulings.

Issue One — Reasonable Suspicion for Detention

In his first issue, appellant argues that the trooper lacked reasonable suspicion to detain him for the purpose of conducting and subjecting him to field sobriety tests. We overrule the issue.

We review the trial court’s ruling on a motion to suppress under the standard announced in Johnson v. State, 68 S.W.3d 644 (Tex.Crim.App.2002) and Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997). Thus, we give almost, total deference to the trial court’s findings of historical fact and review de novo the application of the law to the facts. Johnson v. State, 68 S.W.3d at 652-53. So too do we consider the totality of the circumstances in determining whether the officer had reasonable suspicion upon which to detain appellant. Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App.2001).

Appellant does not challenge the legality of the initial stop for operating a vehicle without a front license plate. Rather, he contends that his continued detention after being told that he would receive a warning was improper. We disagree. Before stopping appellant, the officer knew that an “all day” festival attended by many college students was ongoing at Buffalo Lake, the venue from which appellant was leaving. Furthermore, after the stop, appellant emitted the odor of alcohol and had bloodshot eyes.- And, when asked if he had been drinking, appellant admitted that he had drunk several alcoholic beverages while at a campsite in or near the festival’s venue. These circumstances were enough to vest the trooper with reasonable suspicion to detain appellant and further investigate the possibility of his involvement in the criminal act of driving while intoxicated. See State v. Brabson, 899 S.W.2d 741, 749 (Tex.App.-Dallas 1995), aff'd, 976 S.W.2d 182 (Tex.Crim.App.1998) (holding that reasonable suspicion to detain arose when the suspect honked his horn excessively and emitted a strong odor of alcohol); Powell v. State, 5 S.W.3d 369, 377 (Tex.App.-Texarkana 1999, pet. ref'd) (holding that an officer may continue the detention after an initial stop if he develops reasonable suspicion to believe that the detainee was engaged in criminal activity). Appellant’s citation to our opinion in Domingo v. State, 82 S.W.3d 617 (Tex.App.-Amarillo 2002, no pet.) does not persuade us otherwise.

In Domingo, the only circumstance the officer relied upon to detain the suspect was the odor of alcohol on his breath. Id. at 621. We noted that the officer said nothing about the detainee’s speech or eyes being abnormal. Id. Nor did the officer have any indication of the number of beers Domingo had consumed. Those missing indicia, however, are present here. Again, not only did appellant smell of alcohol but also he had bloodshot eyes and admitted to drinking several beers. Given this, our decision in Domingo does not control the outcome here.

Issue Two—Predicate for Admission of Breath Test Results

In his second issue, appellant contends that the trial court erred in refusing to suppress the results of the intoxilyzer or second breath test. Suppression is warranted, according to appellant, because the person who gave appellant the breath test did not understand its scientific theory. We overrule the issue.

Authority holds that the individual performing the test upon the suspect need not understand the scientific theory of the intoxilyzer. Scherlie v. State, 689 S.W.2d 294, 296-97 (Tex.App.-Houston [1st Dist.] 1985), aff'd on other grounds, 715 S.W.2d 653 (Tex.Crim.App.1986). Rather, it need only be shown that the machine and its operator were under the periodic supervision of one who had an understanding of the scientific theory underlying the machine. Hill v. State, 158 Tex.Crim. 313, 256 S.W.2d 93, 96 (1953), overruled on other grounds by Vasquez v. State, 477 S.W.2d 629 (Tex.Crim.App.1972); Scherlie v. State, 689 S.W.2d at 296-97. Moreover, appellant does not contend that the Hill standard was not satisfied; this may be so due to the record containing evidence upon which the trial court could have legitimately concluded that it was. Consequently, we hold that the trial court did not abuse its discretion when it rejected this ground of attack.

Issue Three—Suppression of Breath Test Results

Appellant next argues that the results of the intoxilyzer or breath test should be suppressed because they were illegally obtained. They purportedly were so obtained because the trooper provided appellant with information beyond that prescribed by statute. The statutes involved are subsections one and two of § 724.015 of the Texas Transportation Code. We overrule the issue for the following reasons.

First, the comments cited by appellant involve the trooper describing how taking a breath test may enhance appellant’s release. None were admonitions about what could occur if appellant refused to submit to the test, and it is the latter type of utterances that are generally impermissible, not the former. Erdman v. State, 861 S.W.2d 890, 893-94 (Tex.Crim.App.1993); Sandoval v. State, 17 S.W.3d 792, 795-97 (Tex.App.-Austin 2000, pet. ref'd).

Second, appellant says nothing, in his brief, about how the statements made by the trooper caused him to submit to the test. He simply argues that they were coercive. Yet, authority obligates him to not only show that statements in addition to those mentioned in § 724.015 were made but also that there existed a causal connection between them and his agreement to undergo testing. Sandoval v. State, 17 S.W.3d at 796; accord Collins v. State, No. 05-01-01177-CR, 2002 WL 1752205, at *5-6, 2002 Tex.App. LEXIS 5554 at 17-18 (Tex.App.-Dallas 2000, no pet.) (not designated' for publication) (so recognizing). Given this default by appellant, we must conclude that he did not carry his burden on appeal to show error.

Issue Four — Rule 403 Objection

Appellant argues in his fourth issue that the trial court erred in overruling his pretrial Rule 403 objection to the admission of the intoxilyzer results. Exclusion is allegedly warranted because the probative value of the results was substantially outweighed by the prejudice attendant to their admission. We overrule the issue.

The argument before us is founded upon the supposed lack of evidence establishing the pertinent retrograde extrapolation. That is, because the intoxilyzer test was performed about an hour after appellant was first stopped, it allegedly was incumbent upon the State to tender evidence linking the results of the test to appellant’s condition an hour earlier. If it did not, according to appellant, then the relevancy of the results would be substantially outweighed by the chance that they would mislead the jury into viewing them as indication that appellant was drunk at the time of the stop.

The problem with appellant’s argument is twofold. First, he cites us to no authority holding that the State must satisfy the requirements of Rule 403 in a pretrial hearing. Again, the trial court addressed the dispute during a pretrial hearing, not during trial. Second, to sustain appellant’s contention, we would have to assume that the State would or could not present evidence permitting the jury' to engage in retrograde extrapolation at trial. That is, we would have to assume that the State could not cure the supposed defect if and when the cause was actually tried. Yet, we are unwilling to so speculate especially when the appellant himself fails to engage in such speculation. Indeed, while it may be that the deputies who testified at the pretrial hearings knew little of retrograde extrapolation, that does not permit one to reasonably infer that the State lacked access to an expert or other witness who could and would have supplied the requisite information at trial.

Simply put, the question of whether or not the admission of the intoxilyzer results violated Rule 403 was presented to the trial court somewhat prematurely and without complete development. And, because it was, we cannot say that the trial court abused its discretion in overruling appellant’s attempt to “suppress” the in-toxilyzer results at the time he attempted to do so.

Issues Five and Six — Horizontal Gaze Nystagmus Test

In his fifth and sixth issues, appellant complains that the trial court should have suppressed the admission of the results of the horizontal gaze nystagmus (HGN) test because there was insufficient evidence illustrating that the trooper was certified to administer the test and to show that the test was properly administered and interpreted. We overrule the issues.

For an officer to testify as an expert on the administration of an HGN test, it need only be shown that he received from the State of Texas a practitioner’s certification to administer the test. Emerson v. State, 880 S.W.2d 759, 769 (Tex.Crim.App.1994); Held v. State, 948 S.W.2d 45, 51 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd). Here, Trooper Parker testified that he had been certified by the Texas Department of Public Safety since 1997. So too did he state that he received his training at the academy in Austin and through Texas A & M University. Moreover, the record illustrates that he also took a refresher course in 2003. We find this evidence sufficient to establish that the trooper was an expert, and reject appellant’s contention that the trial court abused its discretion when refusing to hold otherwise.

As to the remaining allegation, appellant asserts that the evidence failed to show that the trooper administered the HGN test properly. This is so, he argues, because although the officer testified that he observed a total of six clues on the test, he failed to state what those clues were or specifically explain how appellant performed on the test.

Authority holds that in administering the test, an officer must look for the following clues in each eye: 1) lack of smooth pursuit, 2) distinct nystagmus at maximum deviation, and 3) onset of nys-tagmus prior to 45 degrees. Compton v. State, 120 S.W.3d 375, 377 (Tex.App.-Texarkana 2003, pet. ref'd). Slight variations in the test do not render the evidence inadmissible. Id. at 378. Here, the evidence illustrates that the trooper first inquired whether appellant wore contact lens. Then, he checked for equal pupil size and tracking by moving his finger all the way to appellant’s left shoulder and then to the right. Next, he looked for smooth pursuit by making two passes with his finger during which he observed two clues. Then he checked for distinct nys-tagmus at maximum deviation. He described how that test was performed and stated he observed jerking of both eyes which also constituted two clues. Finally, the officer checked for onset nystagmus prior to 45 degrees and described how he did so. In all, he observed six clues. Thus, the officer described 1) how each test was performed, 2) what he was looking for (ie. jerking movements), and 3) how he counted six clues. And, because he described what he was looking for and how he found six “clues,” the trial court could have reasonably inferred that the “clues” to which he alluded were jerking motions. Given this, the trial court had before it reasonable basis to conclude that the requirements of Compton were satisfied.

Appellant does not point to any specific instances in which the officer failed to properly perform the tests. Instead, he seems to complain that the officer did not adequately report the results of those tests. In support of that complaint, he cites to the DWI Detection and Standardized Field Sobriety Testing manual published by the National Highway Traffic Safety Administration which states that in order to secure a conviction, the “officer must be able to describe how the suspect performed on the tests, and exactly what the suspect did.” (Emphasis in original). Even assuming that this authority is properly before the court and that we may consider it, the testimony of Trooper Parker at the time it was given was not being offered to secure a conviction but rather to enable the trial court to determine whether the factfinder would be allowed to hear it. We find no abuse of discretion here.

Issue Seven — Suppression of One-Legged Stand Test

In his final issue, appellant contends the trial court should have suppressed the results of that portion of the field sobriety tests dealing with the one-legged stand. He believes that suppression was warranted because the State did not establish the predicate for their admission. We overrule the issue for it was not preserved. That is, appellant argues before us that the evidence was inadmissible because the State did not satisfy the “first two prongs of the Kelly test in regard to the one-leg stand.” Yet, below he argued that it was inadmissible because the evidence failed to show that the ground was level when appellant was asked to stand on one leg. Since the argument on appeal fails to comport with that mentioned below, the former was not preserved. Washington v. State, 152 S.W.3d 209, 213 (Tex.App.-Amarillo 2004, no pet.). Having overruled each issue raised by appellant, we affirm the judgment of the trial court.

      . They state that before requesting a breath specimen, an officer must inform the person that if he refuses to provide the specimen 1) evidence of the refusal may be admissible in a subsequent prosecution and 2) the person’s driver’s license will be automatically suspended for not less than 180 days whether or not the person is subsequently prosecuted as a result of the arrest. Tex. Teansp. Code Ann. § 724.015(1) & (2) (Vernon Supp.2004-05)

      . Pursuant to Rule 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Tex.R. Evid. 403.

      . Appellant did not question the officer, at the hearing on the motion to suppress, about the matters at issue here.

      . This manual does not appear in the record before us although a copy is attached to appellant’s brief. Appellant did not request either the trial court or this court to take judicial notice of the manual, although the trial court did inform appellant it was not necessary to offer it into evidence.


author: Justice LANG-MIERS.

text:
    DALLAS AREA RAPID TRANSIT, Appellant, v. Joyce WILLIS, Appellee.
    No. 05-04-01712-CV.
    Court of Appeals of Texas, Dallas.
    May 10, 2005.
    Rehearing Overruled June 8, 2005.

      Hyattye O. Simmons, DART-Legal Department, Dallas, TX, for Appellant.
    Michael Hindman, Rolle, Breeland, Ryan & Landau, P.C., Dallas, TX, for Ap-pellee.
    Before Justices MORRIS, FRANCIS, and LANG-MIERS.
   OPINION

Opinion by

Justice LANG-MIERS.

Joyce Willis (Willis) sued Dallas Area Rapid Transit (DART) for personal injuries sustained when she fell in an attempt to exit a DART bus. DART appeals the trial court’s order denying its plea to the jurisdiction based on governmental immunity. In its sole issue on appeal, DART contends that the trial court erred in denying its plea to the jurisdiction because Willis failed to plead a cause of action within an exception to governmental immunity under the Texas Tort Claims Act. We affirm.

Background

Willis filed her Original Petition against DART and an unknown bus driver. She claimed that on October 3, 2000, she was a passenger on a DART bus. When the bus driver came to a stop on the route, Willis claims the driver negligently failed to properly stop the bus close to the curb for her to exit. She fell and injured herself while attempting to exit the bus. She stated that her injuries were caused by DART’s negligent failure to properly train, monitor, and/or supervise its employee. Willis did not mention governmental immunity in her original petition.

After filing an Original Answer and Special Exceptions, DART filed a Plea to the Jurisdiction or, in the alternative, Special Exceptions. The district court denied the plea to the jurisdiction without prejudice. But it sustained DART’s Special Exceptions, complaining that Willis’s petition failed to state a cause of action within an exception to governmental immunity under the Texas Tort Claims Act. The court ordered Willis to file an amended pleading to assert claims under the Texas Tort Claims Act.

Willis filed a First Amended Original Petition, in response to which DART filed a Second Plea to the Jurisdiction. Willis then filed a Second Amended Original Petition, and DART filed an Amended Second Plea to the Jurisdiction, to which it attached Willis’s deposition. The district court denied-DART’s plea to the jurisdiction.

Plea to the Jurisdiction

A plea to the- jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). To prevail on a plea to the jurisdiction, a party must show that even if all the allegations in the plaintiffs pleadings are taken as true, an incurable defect apparent on the face of the pleadings makes it impossible for the pleadings to confer jurisdiction on the trial- court. Rylander v. Caldwell, 23 S.W.3d 132, 135 (Tex.App.-Austin 2000, no pet.). The claims may form the context in which a dilatory plea is raised, but the plea should be decided without delving into the merits of the case. Bland, 34 S.W.3d at 554. We consider the facts alleged by the plaintiff and, to the extent it is relative to the jurisdictional issue, the evidence submitted by the parties. Tex. Dep’t. of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001); Bland, 34 S.W.3d at 554.

Sovereign Immunity

Governmental immunity from suit defeats a court’s subject matter jurisdiction. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.2003). In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of immunity. Id. We must examine the plaintiffs pleadings to determine if governmental immunity has been waived. Miller, 51 S.W.3d at 587. No one disputes that DART is a governmental unit under the Texas Tort Claims. Act. Therefore, we will review Willis’s pleadings and the evidence attached to DART’s plea to the jurisdiction to determine if Willis’s claim falls within an exception to governmental immunity under the Texas Tort Claims Act. See Whitley, 104 S.W.3d at 542.

Under the Texas Tort Claims Act, a governmental unit’s sovereign immunity is waived for personal injury “proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if ... the personal injury ... arises from the operation or use of a motor-driven vehicle or motor-driven equipment.” Tex. Civ. Prac. & Rem.Code AnN. § 101.021(1)(A) (Vernon 2005). “Use” has been defined by the Texas Supreme Court as “to put or bring into action or service; to employ for or apply to a given purpose.” Whitley, 104 S.W.3d at 542. The court has required a nexus between the operation or use of the motor-driven vehicle or equipment and a plaintiffs injuries. Id. at 543. This nexus requires more than mere involvement of the property; rather the vehicle’s use must have actually caused the injury. Id. The operation or use of a motor vehicle does not cause injury if it does no more than furnish the condition that makes the injury possible. Id.

In her Second Amended Original Petition, Willis argued that the DART bus driver’s negligent operation of a bus proximately caused the injuries she sustained from falling while attempting to exit the bus. She stated that the driver was negligent in failing to properly stop the bus close to the curb. She asserted that DART was not entitled to governmental immunity because her cause of action fell within an exception under the Texas Tort Claims Act since her injury was caused by the bus driver’s negligent use of motor-driven equipment. During her deposition, Willis stated that before exiting the bus she had noticed there was a “long step” down to the ground. She also stated that the bus was stationary the entire time she was exiting.

DART argues that Willis did not allege a “use” of the bus and that if the bus was involved in the accident, it did nothing more than furnish the condition that made Willis’s injury possible. We disagree. The fact that the bus was stationary is not determinative of whether it was being used or operated. See Employers Mut. Cas. Co. v. St. Paul Ins. Co., 154 S.W.3d 910, 915 (Tex.App.-Dallas 2005, no pet. h.). The use or operation of a motor-driven vehicle such as a bus involves the transportation of individuals from one location to another, and “such transportation necessarily includes the act of stopping the vehicle.” Finnigan v. Blanco County, 670 S.W.2d 313, 316 (Tex.App.-Austin 1984, no writ). According to Willis’s deposition, the bus was transporting passengers, including herself, on the day she was injured, and the driver was in the bus when the accident occurred. In her pleadings, Willis claims that the bus driver took the affirmative action of parking the bus in a way that may have contributed to her accident, and his action serves as the basis for her liability claim against DART. See Austin Indep. Sch. Dist. v. Gutierrez, 54 S.W.3d 860, 867 (Tex.App.-Austin 2001, pet. denied) (holding that cause of action fell within exception to Texas Tort Claims Act where “bus driver took the affirmative action of honking the horn which may have contributed to the accident”). As a result, Willis’s pleading was sufficient to state a cause of action within the “motor-driven vehicle” exception to governmental immunity under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem.Code Ann. § 101.021(1)(A) (Vernon 2005). We conclude that the trial court did not err in denying DART’s plea to the jurisdiction.

CONCLUSION

Finding no error, we affirm the trial court’s order.