author: EVELYN V. KEYES, Justice.

text:
    David THOMAS, Appellant, v. The STATE of Texas, Appellee.
    No. 01-08-00305-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 15, 2009.
    Discretionary Review Refused April 14, 2010.

      Winston E. Cochran Jr., Houston, TX, for Appellant.
    Dan McCrory, Assistant District Attorney, Houston, TX, for Appellee.
    Panel consists of Justices KEYES, ALCALA, and HANKS.
   OPINION

EVELYN V. KEYES, Justice.

Appellant, David Thomas, was convicted of possessing cocaine weighing more than four grams and less than 200 grams with an intent to deliver. Appellant pled true to both enhancement paragraphs alleged in the indictment, and the trial court sentenced him to imprisonment for 35 years. Appellant asserts seven points of error. In five points of error, appellant argues that the trial court erred by: (1) denying the motion to suppress evidence; (2) denying a requested continuance; (3) denying a new trial, based on evidence that denial of the continuance was harmful; (4) not permitting impeachment of the police officers; and (5) permitting impeachment of appellant with his 1982 conviction and the life sentence imposed for that conviction. In his sixth point of error, appellant argues that the trial court’s modified Allen charge was coercive, thereby denying appellant’s right to trial by jury. In his seventh point of error, he argues that one of the prior convictions used for enhancement purposes was not proved properly because the judgment indicates a different conviction date and a “deferred finding” of guilt.

We affirm.

Background

In April 2007, Officer D. Garza received information from a confidential informant of a pending drug deal. The informant described the person who would deliver the drugs as a black male between 50 and 55 years of age, between five feet eight inches and five feet ten inches tall, and weighing between 180 and 200 pounds. The informant stated that the transaction would occur at a specified Whataburger restaurant at nine p.m. The informant also indicated that the person delivering the drugs would arrive in a grey Chevy Cavalier and would be wearing tan shorts and an orange colored shirt.

Based on the informant’s tip, Officer Garza organized surveillance of the specified Whataburger restaurant. When appellant arrived matching the informant’s description of the suspected drug dealer, Garza requested that a uniformed officer detain him. Officer M. Chapnick responded to Garza’s request.

Officer Chapnick entered the restaurant and went to the restroom to detain appellant. When Officer Chapnick opened the restroom door, he directed appellant to put his hands behind his back. Appellant took an aggressive posture, raising his hands. Appellant then reached for his waistband, which Officer Chapnick perceived as a threat because drug suspects often cany weapons in their waistbands. Officer Chapnick attempted to forcibly restrain him. Appellant struggled with the officer, jerking his hands away as Officer Chap-nick attempted to gain control over appellant. Eventually, Officer Chapnick took appellant to the ground, where the officer had a better chance of gaining control of his hands. When Officer Chapnick knocked appellant to the floor, appellant’s face was injured. Although on the floor, appellant continued to resist.

Officer C. Rozek and Officer S. Zakharia entered the restroom to assist Officer Chapnick in establishing control over appellant. At some point when appellant was on the floor, Derrick Glover, an employee of the Whataburger, went to the bathroom and saw the police on top of appellant. Glover claims that he never saw appellant fight or resist the police, but he conceded on cross-examination that appellant could have been reaching for a weapon when appellant was on the floor and being restrained by the police. The three officers handcuffed appellant, conducted a search for weapons, and moved him out of the restroom.

The police took appellant outside, where Officer Rozek conducted a thorough search of appellant and his clothing. During this search, a paper towel containing two plastic sandwich bags of powdered cocaine and two rocks of “crack” cocaine fell from appellant’s waistband. The combined weight of the powdered cocaine and the “crack” rocks was about two ounces.

At trial, appellant took the stand and testified in his own behalf. Appellant testified that he had gone to the Whataburger to confront a man with whom he had a personal issue. According to appellant, when he was unable to locate the man in the main area of the restaurant, he checked the restroom. As he was leaving the Whataburger restroom, Officer Chap-nick hit him in the eye without provocation. Appellant testified that after being hit, he knelt down on the floor immediately, that Officer Chapnick then forced him to lie faced down on the ground, and that he permitted Officer Chapnick to handcuff him. Appellant testified further that, once he was handcuffed, two additional officers arrived and began kicking and punching him. The officers then took appellant outside, where appellant alleged that they planted the cocaine on him.

Procedural History

Five of appellant’s grounds for appeal concern the trial court’s rulings on procedure. Appellant’s first ground for appeal concerns his motion to suppress the cocaine that was taken from him at the time of his arrest. The trial court held a pretrial hearing on this and denied the motion. Grounds two and three concern two different motions for continuance. Appellant’s trial counsel filed the first motion on

April 10, 2008, claiming that appellant’s prescribed pain medicine rendered appellant incompetent to stand trial. Appellant filed the second motion for a continuance pro se on April 11, 2008, after voir dire, alleging that his trial counsel was unprepared for trial. The trial court denied both motions. Appellant’s fourth ground for appeal concerns the trial court’s ruling that appellant could not impeach the testimony of the arresting officers with a civil suit that appellant had filed against them and the Houston Police Department. Appellant’s fifth point of error concerns the admissibility of his prior convictions.

Discussion

A. Motion to Suppress

In his first point of error, appellant contends the trial court erred in denying his motion to suppress evidence obtained through an alleged unlawful search and seizure. The State argues that appellant waived his complaint regarding the admission of the cocaine because appellant’s trial counsel affirmatively agreed to the admission of the evidence during trial.

Before trial, appellant filed a motion to suppress the cocaine that the police discovered when they searched appellant. In his motion, appellant merely contended that the evidence “was seized in violation of the United States Constitution and the Constitution of the State of Texas.” The trial court denied appellant’s motion to suppress, and the State introduced the evidence during its direct examination of Houston Police Department criminalist Amanda Phillips. The State offered the cocaine into evidence as State’s Exhibits 6, 9, and 10; Phillips identified State’s exhibits 6 and 9 as cocaine in powder form and State’s Exhibit 10 as cocaine in rock form. When the State offered the exhibits, appellant’s trial counsel stated, “[W]e have no objection, Your Honor.” The court then admitted these exhibits.

In general, when a court overrules a pretrial motion to suppress evidence, the defendant need not object to the same evidence in order to preserve the error on appeal. Brown v. State, 183 S.W.3d 728, 741 (Tex.App.-Houston [1st Dist.] 2005, pet. reff) (citing Moraguez v. State, 701 S.W.2d 902, 904 (Tex.Crim.App.1986)). However, when a defendant affirmatively states that he has “no objection” to the admission of the complained of evidence, the defendant waives any error in the admission of the evidence. Brown, 183 S.W.3d at 741; see also Hams v. State, 656 S.W.2d 481, 484 (Tex.Crim.App.1983) (holding that appellant’s complaint that trial court erred in overruling his motion to suppress evidence obtained as result of illegal seizures was rendered moot when State offered complained of evidence and defense counsel affirmatively stated “no objection”). Here, the record reflects that appellant obtained an adverse ruling on his pretrial motion to suppress. However, when the State offered the offending evidence during trial, appellant’s trial counsel waived any error in the admission of the evidence by affirmatively stating, “[W]e have no objection, Your Honor.” See Brown, 183 S.W.3d at 741.

We overrule appellant’s first point of error.

B. Motions for Continuance

In his second and third points of error, appellant argues that the trial court erred in denying his pretrial motions for continuance and in denying him a new trial based on evidence that the denial of a continuance was harmful. Appellant’s first motion for continuance contended that he would not be able to assist his attorney during trial due to the effects of pain medications appellant was taking as a result of surgery he had undergone at the end of March 2008. Appellant based his second motion, a pro se motion, on his contention that his trial counsel was unprepared for trial.

A trial court’s ruling on a motion for continuance is reviewed under an abuse of discretion standard. Janecka v. State, 937 S.W.2d 456, 468 (Tex.Crim.App.1996).

1. Appellant’s First Motion

Appellant’s principal contention in his first motion for continuance was that he was not competent to assist his attorney due to prescribed pain medication. Texas courts determine competency according to article 46B.003 of the Texas Code of Criminal Procedure. Tex.Code Crim. Proo. Ann. art. 46B.003 (Vernon 2008). When competency is raised, the trial court “shall determine by informal inquiry whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial.” Id. art. 46B .004(c) (Vernon 2008). The trial court is the sole trier of fact and thus evaluates witnesses’ testimony and credibility. Torres v. State, 182 S.W.3d 899, 902 (Tex.Crim.App.2005). The denial of a motion to suppress is reviewed for abuse of discretion, and we give great deference to the trial court’s determination of historical facts while reviewing de novo the trial court’s application of the law. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.2002). In reviewing this determination, the trial court’s findings are entitled to great deference. McDaniel v. State, 98 S.W.3d 704, 713 (Tex.Crim.App.2003).

Based on its role as the reviewer of facts and credibility, the trial court, in accordance with article 46B.004(c) of the Code of Criminal Procedure, conducted an inquiry into the condition and abilities of appellant. Appellant stated that the pain medication affected his ability to think “a little bit” and that it made him “kind of dizzy.” However, appellant was able to communicate with his attorney on the record, ánd the trial court determined that appellant seemed “very able to answer ... questions.” Furthermore, while appellant did encounter difficulties when testifying in his own behalf, his answers indicated that he understood the questions presented to him. Appellant did not provide the trial court with testimony or an affidavit from a physician to support his argument. On appeal, appellant argues that the difficulties he encountered while testifying on his own behalf, as well as the inconsistencies that developed from these difficulties, illustrate his impairment.

The examples provided by appellant do not indicate that the trial court abused its discretion. The trial court complied with the Code of Criminal Procedure and evaluated appellant’s competency.

£ Appellant’s Second Motion

Appellant filed a pro se motion for continuance complaining of his counsel’s unpreparedness. Among other arguments, appellant contended that his attorney failed to argue that the drugs were produced after he was arrested, that the drugs may have come from the gas tank of his car, and that someone else had driven the car earlier that day. As additional evidence of his incapacity, appellant points to his mistake in identifying the police officer who first entered the Whataburger restroom.

Ordinarily, a criminal defendant currently represented by counsel is not entitled to hybrid representation. Bledsoe v. State, 178 S.W.3d 824, 827 (Tex.Crim. App.2005) (citing Landers v. State, 550 S.W.2d 272 (Tex.Crim.App.1977)). However, the Court of Criminal Appeals has determined that if a trial court rules oh a pro se motion when a criminal defendant is represented by counsel that decision is subject to appellate review. Robinson v. State, 240 S.W.3d 919, 922 (Tex.Crim.App.2007). The record indicates that the trial court ruled on appellant’s motion rather than denying appellant the opportunity to present the motion. When the trial court rules on such a -motion, the motion is “subject to review on appeal.” Id. at 922.

Appellant’s pro se motion, submitted on the first day of trial, alleges that appellant’s counsel was not prepared for trial. Although appellant did not specifically designate his request as a motion for continuance, appellant did request that the trial court grant him additional time to prepare for trial due to his counsel’s alleged lack of preparation.

The record reflects that appellant filed his motion on the morning of April 11, after the completion of voir dire. Appellant’s counsel did not join appellant’s motion and denied appellant’s accusations. The record indicates that counsel began his representation of appellant no later than April 28, 2007 and that trial began on April 10, 2008. Appellant claimed his attorney did not subpoena relevant witnesses, that his attorney did not come to the jail to speak with him, and that his attorney conducted an inadequate investigation of his case. The trial court asked appellant to identify the witnesses that appellant contended his attorney refused to subpoena, and appellant named Cynthia Clay, Derrick Clover, and Lisa Michelle Smith.

The trial court then asked appellant’s attorney to respond to appellant’s allegations. Counsel explained that he talked with appellant on the phone while appellant was in jail and that he sent his investigator to speak with him. He also explained that some of the evidence appellant wanted the attorney to gather was duplica-tive of evidence the State intended to introduce, and he explained that he contacted some of the witnesses appellant wanted him to subpoena and that he could not find others. The trial court denied appellant’s pro se motion. Our consideration of the record does not indicate that the trial court abused its discretion in denying appellant a continuance based on appellant’s pro se motion.

We conclude that the trial court did not err in denying appellant’s two motions for a continuance. Because we have concluded that the trial court did not err in refusing to grant a continuance, we further conclude that the trial court did not err in refusing to grant appellant a new trial based on evidence that appellant was harmed by the denial of his motions for continuance. We also overrule appellant’s second and third points of error.

C. Officers’ Impeachment with Pending Civil Litigation

In his fourth point of error, appellant argues that the trial court erred in not permitting him to impeach the testifying police officers with a pending civil suit he had filed against them. Appellant filed suit against the Houston Police Department and apparently against at least some of the police officers who were present for appellant’s arrest. Appellant never specified which of the testifying officers he had sued. Rather, appellant indicated that the suit involved the “officers who testified here previously.” The State presented seven witnesses, all police officers or employees of the Houston Police Department. Appellant argues that the denial of the opportunity to impeach the officers resulted in his inability to demonstrate bias in the officers’ testimony, thereby denying him of his constitutional right of confrontation. The State argues that appellant failed to preserve error because he did not sufficiently establish the substance of the excluded evidence. Alternatively, the State argues that, even if error was preserved, the ground is meritless because the trial court did not abuse its discretion in excluding the evidence.

Rule 38.1(i) of the Texas Rules of Appellate Procedure requires that a “brief contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex.R.App. P. 38.1(i). Appellant has cited no specific facts in support of his authority and no authority for his argument and therefore has failed to adequately brief this point. Id. Appellant even acknowledges “one problem which is that defense counsel did not make a record of precisely what he wanted to bring out before the jury.”

We overrule appellant’s fourth point of error.

D. Impeachment with 1982 Conviction and Life Sentence

Appellant argues, in his fifth point of error, that the trial court erred in denying his motion to testify free from impeachment by his 1982 conviction of the offense of unauthorized use of a motor vehicle (“UUMV”) and the life sentence imposed for that conviction. Appellant argues that the trial court should have prohibited impeachment with this prior conviction because of its remoteness, its low probative value, and the strong risk of prejudice.

We will not reverse a trial court’s decision regarding admissibility of evidence of a prior conviction unless a clear abuse of discretion is shown. Morris v. State, 67 S.W.3d 257, 262 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd). Thus, a trial court’s decision will not be overruled unless it lies outside the zone of reasonable disagreement. Id.; Theus v. State, 845 S.W.2d 874, 881 (Tex.Crim.App.1992).

Rule 609(a) of the Texas Rules of Evidence provides that evidence of conviction for a prior felony or crime of moral turpitude shall be admitted for purposes of impeachment if the court determines that the probative value outweighs the prejudicial effect. Tex.R. Evid. 609(a); Morris, 67 S.W.3d at 263. However, if the date of conviction or the release of the witness from confinement is more than ten years from the moment of impeachment, impeachment is permissible only if the probative value of the conviction supported by the facts and circumstances “substantially outweighs” its prejudicial effects. Tex.R. Evid. 609(b); see Morris, 67 S.W.3d at 263.

Although the ten year limitations period in Rule 609 usually militates against admissibility, Texas courts have held that subsequent felony or misdemeanor convictions involving moral turpitude can be tacked onto remote convictions to cause them to be evaluated under Rule 609(a) instead of Rule 609(b). See Morris, 67 S.W.3d at 263 (holding that evidence of two intervening felony convictions removed taint of remoteness from convictions more than 10 years prior, permitting analysis under Rule 609(a)); LaHood v. State, 171 S.W.3d 613, 620 (Tex.App.-Houston [14th Dist.] 2005, pet. refd).

In' the present case, evidence was presented that appellant was convicted of the offense of delivery of cocaine in 2005 and burglary of a building with intent to commit theft in 1992. These two intervening felonies remove the taint of remoteness from the 1982 conviction, making appropriate analysis under Rule 609(a). Admission of the 1982 conviction was proper, therefore, if the probative value of these convictions outweighs their prejudicial effect. Morris, 67 S.W.3d at 263.

In Theus, the Court of Criminal Appeals set out a non-exclusive list of factors courts should use to weigh the probative value of a conviction against its prejudicial effect. Theus, 845 S.W.2d at 880. These factors include (1) the impeachment value of the prior crime, (2) the temporal proximity of the past crime relative to the charged offense and the witness’s subsequent history, (3) the similarity between the past crime and the charged offense, (4) the importance of the witness’s testimony, and (5) the importance of the witness’s credibility. Id.; LaHood, 171 S.W.3d at 620.

With respect to the first factor, the impeachment value of crimes that involve deception or moral turpitude is greater than for offenses that involve violence. Theus, 845 S.W.2d at 881. Therefore, when the prior offense is one involving deception, the first factor weighs in favor of admission. Id. The offense of unauthorized use of a motor vehicle is a crime of deception. Baca v. State, 223 S.W.3d 478, 484 (Tex.App.-Amarillo 2006, no pet.). The first Theus factor thus weighs in favor of admission of appellant’s prior conviction for unauthorized use of a motor vehicle. Id.

The second factor, involving the temporal proximity of the past crime relative to the charged offense and the witness’s subsequent history, favors admission if the crime in question is recent and the witness has a demonstrated pattern of running afoul of the law. Theus, 845 S.W.2d at 881. Appellant’s conviction for UUMV was not recent, occurring more than twenty years prior to the instant offense. However, appellant’s criminal record includes two additional offenses committed within the last twenty years. See Martin v. State, 265 S.W.3d 435, 444 (Tex.App.-Houston [1st Dist.] 2007, no pet.). The second factor weighs in favor of admission.

The third factor militates against admission if the prior conviction is similar to the charged offense. Theus, 845 S.W.2d at 881. This is so because the admission for impeachment purposes of a crime similar to that charged presents a situation where the jury could convict based on the perception of the past conduct rather than the facts of the present case. Id. Appellant’s prior conviction is for UUMV, which is not similar to the instant offense, possession with intent to deliver cocaine. This factor, therefore, weighs in favor of admission of the prior offense. Id.

In regard to the final two factors, Theus states that “when the case involves the testimony of only the defendant and the State’s witnesses ... the importance of the defendant’s credibility and testimony escalates” and “so will the need to allow the State an opportunity to impeach the defendant’s credibility.” Id. Here, appellant took the stand in his own defense. He had one other witness to the events that took place in the restroom who could speak only to a very short period of that time. Appellant’s credibility was important because the police officers who testified for the State and appellant were the only direct eyewitnesses to the entirety of the events taking place in the restroom and in the parking lot. Furthermore, the State’s need to impeach appellant’s credibility was great because his testimony contradicted much of the police officers’s testimony of the events taking place in both locations and accused the officers of beating him and planting evidence. The fourth and fifth factors, therefore, favor admission of appellant’s prior UUMV.

We conclude that under Theus, the trial court did not err in admitting evidence of appellant’s prior convictions.

We overrule appellant’s fifth point of error.

E. Modified Allen Charge

In his sixth point of error, appellant argues that the trial court’s modified Allen charge was coercive, thereby denying appellant’s right to trial by jury. There is no evidence in the record that appellant objected to the submission of this charge. Appellant has, therefore, waived any error with respect to the trial court’s decision to deliver the Allen charge. See Freeman v. State, 115 S.W.3d 183, 186 n. 2 (Tex.App.-Texarkana 2003, pet. refd). Moreover, appellant has cited no authority in support of his argument. Therefore this issue was briefed inadequately. Tex.R.App. P. 38.1(i).

We overrule appellant’s sixth point of error.

F. Proof of Prior Conviction for Enhancement Purposes

In his seventh point of error, appellant argues that one of his prior convictions was not properly proved and, therefore, the trial court should not have considered it in the assessment of punishment. Appellant argues that the State’s indictment and the judgment entered as State’s Exhibit 13 list different dates for his conviction for burglary of a building. Additionally, appellant argues that the judgment itself is unclear regarding his actual guilt because handwritten changes were made to the judgment.

The State has the burden of proof to show that any prior conviction used to enhance a sentence was final under the law and that the defendant was the person previously convicted of that offense. Flowers v. State, 220 S.W.3d 919, 922 (Tex.Crim.App.2007). If the State does not prove beyond a reasonable doubt that the offenses are attributable to the defendant, the evidence may not be considered in the assessment of punishment. Fields v. State, 1 S.W.3d 687, 688 (Tex.Crim.App.1999). If, however, a defendant pleads “true” to the enhancement paragraph, the State’s burden of proof is satisfied. Harrison v. State, 950 S.W.2d 419, 421 (Tex.App.-Houston [1st Dist.] 1997, writ refd) (citing Harvey v. State, 611 S.W.2d 108, 111 (Tex.Crim.App.1981)).

Here the record reflects that upon the trial court’s reading of the two enhancement paragraphs, appellant pleaded “true” to both. Appellant’s plea of “true” to both of these enhancements satisfies the State’s burden of proof with respect to the conviction in question. See Harrison, 950 S.W.2d at 421.

We overrule appellant’s seventh point of error.

Conclusion

We affirm the judgment of the trial court.

      . See Tex. Health & Safety Code Ann. § 481.112 (Vernon 2008).

      . In the suppression hearing, appellant testified that the police found the drugs in his car.

      . The record is unclear about whether or not the suit was against the police department alone or against the police department and the individual officers.

      . Appellant’s 1982 unauthorized use of a motor vehicle conviction was enhanced with two prior felony convictions.

      . Appellant argues that admission of his prior conviction for UUMV is particularly prejudicial because the life sentence imposed for that conviction indirectly discloses two additional felony offenses. Appellant waived this particular complaint when he failed to object at trial. Tex.R.App. P. 33.1(a); Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex.Crim.App.2006).


source: Caselaw Access Project

author: JIM SHARP, Justice. JIM SHARP, Justice,

license: Public Domain

text:
    Umekki MARSHALL, Appellant, v. The STATE of Texas, Appellee.
    No. 01-08-00734-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 22, 2009.
    Discretionary Review Refused April 28, 2010.

      Windi Akins Pasotrini, Winston E. Cochran Jr., Houston, TX., for Appellant.
    David C. Newell, Assistant District Attorney, Houston, TX, for Appellee.
    Panel consists of Justices JENNINGS, HIGLEY, and SHARP.
   OPINION

JIM SHARP, Justice.

Appellant, Umekki Marshall, was charged by indictment with a single count of theft under $1,500, elevated to a state jail felony by two earlier theft convictions, and then enhanced to third-degree-felony punishment by two prior state jail felony convictions. After a jury trial, appellant was convicted of state jail felony theft. During the punishment phase of the trial, the jury found the enhancement paragraphs to be true and assessed appellant’s punishment at six and one-half years imprisonment. In her sole point of error, Marshall contends that the trial court violated her constitutional right to due process of law by giving the venire panel a flawed definition of “reasonable doubt” that “created the risk that one or more members of the jury would impose a lower burden” than what is required. We affirm.

BACKGROUND

A loss-prevention officer at a Wal-Mart in Spring, Texas, observed Marshall and her two juvenile companions removing hangers from a shopping cart full of clothing. After Marshall placed the garments in used shopping bags, the trio parted ways. Trained to follow the merchandise, the loss-prevention officer followed the juveniles and the clothing to the front of the store while Marshall headed off in another direction. Marshall’s juvenile companions pushed the cart toward the exit, making no effort to pay for the clothes in the shopping bags. At that point, the loss-prevention officer detained the juveniles and took them to an on-site security office for questioning. After an investigation by the officer and a Harris County Sheriffs deputy, Marshall was arrested and charged with state felony theft of less than $1,500. She pleaded not guilty to the charge and proceeded to trial.

During voir dire, the trial court explained the State’s burden of proof to prospective jurors as follows:

All right. Let’s talk then about this burden of proof the State has, this burden of proving the defendant’s guilt beyond a reasonable doubt. That burden is set out by the Legislature. It’s the same in every single criminal case, whether it’s a driving while intoxicated or whether it’s capital murder. State has to prove somebody’s guilty beyond a reasonable doubt.
Now, the Legislature’s told us that’s what the standard is that the State has to meet. The only real difficulty for everybody is that the Legislature has not given me a definition that I can give to you. So, when you get the Court’s charge, there’s going to be a lot of definitions in it. There just won’t be one of beyond a reasonable doubt.
Basically I guess the Legislature figures everybody is reasonable and they would know a reasonable doubt when they see it. So, what the Legislature has done is they told us what beyond a reasonable doubt is not. It doesn’t mean the State has to prove the defendant’s guilt beyond all possible doubt or without any doubt in your mind or 100 percent sure. Because if you think about it, the only way that you’d ever be convinced without a doubt in your mind or 100 percent sure is if you saw the offense being committed, you saw it with your own two eyes or you saw it on videotape, right? That’s the only way you could be absolutely positive.
And you know that if you saw the offense being committed, you’d be out in this hallway waiting to come in here and testify, right? Not sitting in here on these hard benches.

(Emphasis added.)

Marshall’s trial counsel did not object to the trial court’s description of “reasonable doubt” at the time it was given or any time thereafter. Defense counsel did make his own statements regarding reasonable doubt during voir dire which tracked the portions of the court statements now being complained of on appeal. Counsel instructed prospective jurors that “[rjeasonable doubt ... is whatever, in your mind, ultimately you believe it to be with some guidance and I can give you just a little guidance but not a definition.” Counsel later committed jury members to consider the evidence and apply common sense, “based upon what [they] believe in [their] mind is a reasonable doubt.” Defense counsel did not request that a definition of “proof beyond a reasonable doubt” be included in the jury charge. At the conclusion of the jury trial, Marshall was convicted and assessed punishment of six and one-half years imprisonment.

DISCUSSION

In her sole point of error, Marshall contends that the “trial court erroneously explained the State’s burden of proof by telling prospective jurors that, in effect, they would know it when they see it.” According to Marshall “[t]hat standard ... created the risk that one or more members of the jury would impose a lower burden than the Constitution requires.”

As a general rule, to preserve an error for appellate review, the complaining party is required to make a “timely, request, objection, or motion.” Tex.R.App. P. 38.1(a)(1). This requirement applies to comments made by the trial court during voir dire. See Fuentes v. State, 991 S.W.2d 267, 273 (Tex.Crim.App.1999) (holding that appellant waived complaint about trial court’s explanation of reasonable-doubt standard during voir dire by failing to renew objection when trial court repeated explanation); Moore v. State, 907 S.W.2d 918, 923 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd) (holding that appellant waived complaint about trial court’s comment on weight of evidence during voir dire).

Marshall acknowledges that she did not object to the court’s comments during voir dire, but argues that no objection was necessary to preserve her complaint, relying upon Blue v. State, 41 S.W.3d 129 (Tex.Crim.App.2000) (plurality op.). The criminal court of appeals in Blue held that a trial judge’s unobjected-to comments, which tainted the presumption of innocence, amounted to fundamental error and, therefore, no objection was necessary to preserve the complaint for appellate review. Marshall argues that we should reach the same conclusion here because this case involves a judicial comment made during voir dire that “invite[d] the jury’s application of a constitutionally inadequate burden of proof’, and “burden of proof is really just the opposite side of the same coin as the presumption of innocence.”

We note that Blue is a plurality opinion and thus, does not constitute binding precedent. See Pearson v. State, 994 S.W.2d 176, 177 n. 3 (Tex.Crim.App.1999). However, even if Blue were binding, the present case is distinguishable from Blue. In Blue, at the beginning of the jury-selection process, the trial judge apologized to the prospective jurors for a long wait, stating:

[This case], which we are going on, is a situation where the attorney has been speaking to his client about what does he want to do. And when you are on the button like these cases, it’s a question. Frankly, an offer has been made by the State or do I go to trial. And he has been back and forth so I finally told him I had enough of that, we are going to trial. You have been sitting out here and this is holding up my docket and I can’t get anything done until we know if we are going to trial or not.
Frankly, obviously, I prefer the defendant to plead because it gives us more time to get things done and I’m sure not going to come out here and sit. Sorry, the case went away and we were all trying to work toward that and save you time and cost of time, which you have been sitting here and I apologize about that. I told the defendant that. Like I said, I have enough of this and going to trial.

Blue, 41 S.W.3d at 130.

The plurality in Blue found that the trial judge’s comments regarding the defendant’s failure to accept a plea bargain “tainted [defendant’s] presumption of innocence in front of the venire” and therefore amounted to “fundamental error of constitutional dimension and required no objection.” See Blue, 41 S.W.3d at 132. The trial court’s comments in this case, however, are not of that nature. Here, the trial court simply explained the existing law with regard to reasonable doubt. See Rogers v. State, 795 S.W.2d 300, 306 (Tex.App.-Houston [1st Dist.] 1990, pet. ref'd) (holding that trial court’s comment that “the bottom line is going to be what beyond a reasonable doubt is to you” was not error because court was merely telling jurors to use their common sense); Cade v. State, 795 S.W.2d 43, 45 (Tex.App.-Houston [1st Dist.] 1990, pet. ref'd) (concluding that trial court’s comment that reasonable doubt test might be satisfied “somewhere between fifty and one-hundred” on scale of one to 100 was not fundamental error because it did not “cause[ ] the jury to misunderstand the reasonable doubt standard”). Although the trial court’s comments about the “reasonable doubt” standard are amorphous and somewhat confusing, they neither tainted the presumption of innocence nor did they vitiate the impartiality of the jury. See Blue, 41 S.W.3d at 132; see also Jasper v. State, 61 S.W.3d 413, 421 (Tex.Crim.App.2001) (holding that trial court’s comments did not constitute fundamental error because they did not rise “to such a level as to bear on the presumption of innocence or vitiate the impartiality of the jury”). Accordingly, the court’s comments do not rise to the level of fundamental error of constitutional dimension and, thus, timely and specific objections were required to preserve Marshall’s complaint for appeal. See Blue, 41 S.W.3d at 132; Jasper, 61 S.W.3d at 421; see also, e.g., Zachery v. State, No. 14-07-01050-CR, 2009 WL 136915, at *2 n. 2 (Tex.App.Houston [14th Dist.] Jan. 20, 2009, no pet.) (mem. op., not designated for publication) (trial court told prospective jurors that “[y]ou will know when you’re convinced that someone has violated the law and the State has proven each and every element beyond a reasonable doubt. You will know it ....”; reviewing court held that, under reasoning of Blue plurality, trial court’s comment during voir dire did not constitute fundamental error that would obviate need to make contemporaneous objection). Because she failed to object, we hold that appellant has failed to preserve this issue for our review. We overrule appellant’s sole point of error.

CONCLUSION

We affirm the judgment of the trial court.

Justice SHARP, concurring.

JIM SHARP, Justice,

concurring.

I write in concurrence to emphasize that any attempt by the trial court to “clarify” the notion of “beyond a reasonable doubt” for the venire could, depending upon the tone of voice and other mannerisms used, easily be construed by a juror as a gloss intended to minimize the import of this standard by which a juror is to arrive at his or her very important and potentially life-altering decision.

Here, the language used was both inartful and confusing. Absent an audio recording, we cannot know, nor should we speculate as to, the tone of voice or other mannerisms possibly employed by the trial court in its communications with the veni-re. That a trial judge would risk prejudicing a defendant at voir dire by speaking of legal concepts best left to trial counsel (who bear the responsibility to do so), is ill-advised.

      . See Tex. Penal Code Ann. § 31.03(e)(4)(D) (Vernon Supp. 2008); Tex. Penal Code Ann. § 12.42(a)(1) (Vernon Supp. 2008).

      . Having concluded that appellant failed to preserve her issue for appeal, we do not reach the merits of appellant’s point of error.


author: SHERRY RADACK, Chief Justice. JIM SHARP, Justice,

text:
    Maricella BENAVENTE, Appellant, v. Daniel GRANGER, Appellee.
    No. 01-08-00227-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 23, 2009.

      Reginald E. McKamie, Sr., Law Office of Reginald E. McKamie, Sr., P.C., Houston, TX, for Appellant.
    Karl Drews, Cooper, Sprague, Jackson & Boanerges, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices SHARP and TAFT.

      . The Honorable Tim Taft, retired justice, Court of Appeals for the First District of Texas, participating by assignment.

   OPINION

SHERRY RADACK, Chief Justice.

Appellant, Maricella Benavente, appeals from a judgment, rendered upon a jury verdict, that she take nothing in her suit for damages resulting from a rear-end automobile collision. In one issue, she contends that “the jury verdict is incorrect and that [she] should have prevailed as a matter of law.” We affirm.

BACKGROUND

Appellee, Daniel Granger, rear-ended Benavente’s car with his car. Granger was driving in the left-most lane, approaching an intersection. Two or three cars were stopped in front of him, where the light had only just turned green. Although the light was green, Granger slowed down because the cars in front of him were not moving. He had observed traffic in the adjoining lane, and he estimated that he was driving about 10 miles per hour more slowly than the drivers in the next lane.

Granger’s 10-year-old son, who was a passenger in the car, pointed out a yellow car that was approaching the intersection from the side lane. Granger briefly looked up at the yellow car, which he believed was a Lamborghini. When he looked back, he saw that the cars in front of him were stopped on the other side of the intersection. He braked hard, but his car hit the rear end of Benavente’s car, which then collided with the car in front of it. Gran-ger testified at trial that there was very little impact inside his car.

Benavente sued Granger for negligence. Granger testified that he was alert, not following too closely, and not speeding, although he conceded that he hit Bena-vente’s car. On cross-examination, he agreed that a driver should be attentive to traffic around him, maintain a safe distance, and drive at a safe speed. The jury found that Granger was not negligent, and Benavente appealed.

NATURE OF BENAVENTE’S CHALLENGE

Benavente’s sole issue asks “whether the jury verdict is incorrect and that plaintiff should have prevailed as a matter of law.” Although Benavente states that “this is a legal sufficiency challenge,” her issue is ambiguous as to whether she is challenging the legal or factual sufficiency of the evidence.

Justice Calvert wrote, “It was said in the beginning that magic in words in points of error should be as extinct as the dodo bird.” See Robert W. Calvert, ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error, 38 Tex. Law Rev. 361, 371 (1960). He further advised:

If the language of a point of error leaves a Court of Civil Appeals in doubt as to whether it is a “no evidence” point, an “insufficient evidence” point, or a “preponderance of the evidence point” point, the Court should resolve the doubt by looking to the procedural predicate for the point, the argument under the point, and the prayer for relief.

Id. at 372.

When the party’s brief was ambiguous, we and other courts of appeals have looked to a party’s prayer for relief to determine what standard of review to apply. See, e.g., Skains v. Torch Offshore, L.L.C., No. 01-07-00008-CV, 2008 WL 963039, at *1 (Tex.App.-Houston [1st. Dist.] April 10, 2008, no pet.) (memo, op.) (construing issue to be factual sufficiency when appellant cited legal sufficiency standard of review, analyzed issue as factual sufficiency, and sought remand); City of Univ. Park v. Van Doren, 65 S.W.3d 240, 246-47 (Tex.App.-Dallas 2001, pet. denied) (construing appellate issue to be legal sufficiency when appellant described issue in terms of factual sufficiency, but cited no standard of review and sought rendition).

Benavente’s brief recites the legal sufficiency standard of review. However, in her one-page argument, she argues for strict liability under the Texas Transportation Code, saying that the “evidence is overwhelming that Mr. Granger was negligent and there is absolutely no evidence whatsoever that Ms. Benavente was negligent in any respect.” This argument is more like one of factual sufficiency than of legal sufficiency, as Benavente in essence argues that the verdict is against the great weight and preponderance of the evidence. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001) (“When a party attacks the factual sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence.”). In addition, Benavente’s prayer for relief seeks remand, which is the proper remedy for factual insufficiency. Compare Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401-02 (Tex.1981) (holding that remand for new trial is remedy for factual insufficiency of evidence) with Beach v. Resolution Trust Corp., 821 S.W.2d 241, 245 (Tex.App.-Houston [1st Dist.] 1991, no writ) (holding that rendition is remedy for no evidence).

Moreover, in her motion for new trial, Benavente argued that “the evidence presented at trial conclusively proved that defendant acted negligently, therefore, the jury’s findings were against the great weight and preponderance of the evidence.” Thus, Benavente’s factual sufficiency challenge is preserved. See Tex.R. Civ. P. 324(b)(2).

Considering the procedural predicate and her argument and prayer for relief, we conclude that Benavente has challenged the factual sufficiency of the evidence to support the jury’s verdict that Granger was not negligent.

STANDARD OF REVIEW

“When a party attacks the factual sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence.” Dow Chem. Co., 46 S.W.3d at 242. In reviewing a challenge that a finding is against the great weight and preponderance of the evidence, we consider and weigh all of the evidence and may set aside the verdict only if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id.; Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). A jury may believe one witness and disbelieve another, and it may resolve inconsistencies in any witness’s testimony. Eberle v. Adams, 73 S.W.3d 322, 327 (Tex.App.-Houston [1st Dist.] 2001, pet. denied).

NEGLIGENCE

The jury charge included the following relevant definitions:

“NEGLIGENCE” means failure to use ordinary care; that is to say, failure to do that which a person of ordinary prudence would have done under the same or similar circumstances, or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.
“ORDINARY CARE” means that degree of care which would be used by a person of ordinary prudence under the same or similar circumstances.
“PROXIMATE CAUSE” means the cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred; and in order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.

Benavente had the burden to prove that Granger was negligent and that his negligence was a proximate cause of the occurrence. See Neese v. Dietz, 845 S.W.2d 311, 313 (Tex.App.-Houston [1st Dist.] 1992, writ denied). Benavente contends that she proved Granger’s negligence because the Texas Transportation Code requires a driver to maintain a safe following distance and to control the speed of his car so that he can “safely stop without colliding with ... another vehicle.” Tex. Transp. Code ANN. §§ 545.062(a) (maintaining following distance), 545.351(b)(2) (controlling car’s speed) (Vernon 1999). Benavente argues, in essence, that the collision itself is evidence that Granger violated those statutes and that violation of those statutes proves specific acts of negligence.

“[A] statute that requires a driver proceed safely imposes on the driver a duty of reasonable care, thus precluding a negligence per se instruction.” La.-Pac. Corp. v. Knighten, 976 S.W.2d 674, 675 (Tex.1998); see also Pool v. Ford Motor Co., 715 S.W.2d 629, 631-32 (Tex.1986) (concluding that court of appeals erred in holding that negligence per se applied to speeding under article 6701d, section 171(b) of former Texas Revised Civil Statutes). Likewise, a breach of section 545.062 does not constitute negligence per se. Knighten, 976 S.W.2d at 675 & n. 1 (construing substantively same language in predecessor statute in article 6701d, section 61(a) of former Texas Revised Civil Statutes). Section 545.062 imposes on the driver the same duty of reasonable care as that imposed under the common law. See id.

Under common law, the mere occurrence of a rear-end collision does not establish negligence as a matter of law. Jordan v. Sava, Inc., 222 S.W.3d 840, 850 (Tex.App.-Houston [1st Dist.] 2007, no pet.); Neese, 845 S.W.2d at 314. The plaintiff must prove specific acts of negligence on the part of the defendant driver and must prove proximate cause. Neese, 845 S.W.2d at 314. With regard to rear-end collisions, “standards of ordinary care cannot be fixed with any degree of certainty but must be left in large measure to the trier of the facts.” Id. Conflicts in the witnesses’ testimony present credibility questions for the jury to resolve. Id. at 314-15.

The parties provided us with a partial reporter’s record, consisting only of Gran-ger’s trial testimony. Granger testified that he looked away for a “brief moment,” that he was driving more slowly than surrounding traffic, that he was slowing down as he approached cars stopped by a light that had just turned green, and that he was not “tailgating.” He testified that he was alert, although he also testified that he was distracted from the car in front of him during the moment that he looked at the yellow car. On the other hand, Granger also testified that he “ran into the back of her car, yes, I did.” Granger testified that it was not a forceful collision, saying, “[I]t was a touch.” When asked, “You can’t say she was at fault, can you?,” Granger replied, “No, I can’t.” On cross-examination, Granger testified that, in general, a driver should pay attention and maintain a speed and following distance that are safe for the conditions. He later testified on redirect examination that he felt that he had kept a safe distance.

Considering all of the evidence provided, we hold that the jury’s verdict was not so contrary to the great weight and preponderance of the evidence that it was clearly wrong and unjust. We overrule Bena-vente’s sole issue.

CONCLUSION

We affirm the judgment of the trial court.

Justice SHARP, dissenting.

JIM SHARP, Justice,

dissenting.

I believe that Granger’s own testimony establishes that he violated his duty of reasonable care and engaged in specific acts of negligence that caused the collision.

According to his testimony, as Granger approached the intersection in his Camaro Z28 with his son en route to work, he started to reduce his speed some 1,000 yards or more from the intersection. There were two or three cars in the lane in which he was traveling that were already stopped at the light. The light changed, and he continued forward, with the same cars ahead of him in the intersection. When he was about to cross the intersection, he was distracted by a car approaching from the right and “glanced to the right” “for a brief second” to look at it. He had a brief conversation with his son about the car before turning back to look ahead again. At that point, despite the fact that he later claimed at trial that he had not been “tailgating,” he saw the cars ahead of him stopped on the other side of the intersection, “just saw brake lights,” “applied (his) brakes ... very hard,” but “there just wasn’t enough room,” and he hit Benavente’s car. Although he had previously testified that it had not been raining that day, when describing the actual collision, Granger asserted that “the intersection was slippery from oil or whatnot ... and [he] just could not stop completely”

Despite Granger’s contention that he had been driving only “I would guess between five and ten miles per hour, possibly even less,” and had rear-ended Benavente in what he described as a “very light” impact, he damaged her vehicle in both the rear and front, damaged the front lights, and caused the hood to be “crumpled and bent.” Despite Granger’s insistence that he had looked to the right only “for a brief second,” Granger himself established that he had looked away long enough both (1) to engage in a conversation with his son about the approaching car and (2) to identify the car specifically by both color (yellow) and make (Lamborghini).

How is one who admits to being distracted from moving, stop-and-go traffic long enough to identify the color and make of an especially rare automobile not negligent when, as “[he] was just entering the intersection, he looked forward and saw that the cars had stopped on the other side,” and yet still slammed into the rear of the car in front of him with sufficient force to cause that vehicle to hit the car in front of it?

We may all be able to tell a Pontiac from a Volvo, but when it comes to rare cars, the identification is not only not instantaneous, but requires some careful review to distinguish one from another. Fiat? Ferrari? Maserati? Alfa Romeo? Lancia? Bizzarrini? DeTomaso? Ghia? Inter-meccaniea? Iso? Ital Design? Pininfari-na? Vignale? Zagato? Mercedes? Bentley?

Under these facts and the reporter’s record provided, I would hold that Bena-vente provided overwhelming evidence of specific acts of negligence on Granger’s part: not paying attention to the traffic in front of him, following too closely for the conditions, and driving too rapidly for the conditions. But for these specific acts of negligence, Granger would not have rear-ended Benavente’s car.

Considering all of the evidence, the jury’s verdict was so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust. I would sustain appellant’s issue and remand for a new trial.

      . The parties here have agreed to proceed on a partial reporter's record. We “must presume that the partial reporter’s record designated by the parties constitutes the entire record for purposes of reviewing the stated points or issues.” Tex.R.App. P. 34.6(c)(4).

      . Granger was curiously inconsistent about how this conversation started.
      Although we only have his cross-examination testimony from trial, as the parties provided a limited record on appeal, it is apparent from that testimony that Granger changed his position repeatedly on this point. The record at trial suggests that Granger first stated, in his deposition before trial, that his son had been the one to point out the car to him. But at trial, he took the position that it was he who had pointed out the Lamborghini to his son, even testifying that he had told his son, "Look at that. I mean check that out.” Twice he denied that it was his son who had drawn his attention to the car, the second time in response to a question from the judge. But after being confronted with an audiotape of his deposition, Granger changed his position again, testifying that it had been his son who had pointed out the yellow Lamborghini.


author: LAURA CARTER HIGLEY, Justice.

text:
    Rodney TOW, as Trustee of the Bankruptcy Estate of Erwina Consunji and Bernardino Consunji, Appellant, v. Scott K. PAGANO, D.C. and Campbell Chiropractic Clinic, P.C., d/b/a Campbell Chiropractic Wellness Center, Appellees.
    No. 01-07-00464-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 5, 2009.

      Erin E. Jones, Barron, Newburger & Sinsley, PLLC, Toby B. Fullmer, W. Douglas Matthews Jr., The Matthews Law Firm, Houston, TX, for Appellant.
    Kealy Christian Sehie, Johnson, Trent, West, & Taylor, LLP, Lauren B. Harris, Johnson, Spalding, Doyle, West & Trent, LLP, Raphael Charles Taylor, Houston, TX, for Appellees.
    Panel consists of Justices HIGLEY, SHARP, and MIRABAL.

      . The Honorable Margaret Garner Mirabal, Senior Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

LAURA CARTER HIGLEY, Justice.

In this medical malpractice suit, the trial court granted summary judgment in favor of defendant/appellees, Scott K. Pagano, D.C. (“Dr. Pagano”) and Campbell Chiropractic Clinic, P.C., d/b/a Campbell Chiropractic Wellness Center (“Campbell Chiropractic Clinic”), against plaintiff/appellant, Rodney Tow, as Trustee of the Bankruptcy Estate of Erwina Consunji and Bernar-dino Consunji (“Tow”). The trial court’s order identifies two grounds supporting summary judgment against Tow. The order states that Tow’s claims are barred by the statute of limitations or, alternatively, by the doctrine of judicial estoppel. On appeal, Tow asserts two issues challenging each ground supporting summary judgment.

We reverse and remand.

Factual & Procedural Background

In April and May of 2004, Bernardino Consunji sought treatment from Dr. Paga-no, a chiropractor, at the Campbell Chiropractic Clinic. On November 30, 2004, Consunji notified Dr. Pagano and the Campbell Chiropractic Clinic that he had sustained injuries during his treatment at the clinic and that the injuries were caused by Dr. Pagano’s negligence.

On October 15, 2005, Consunji and his wife, Erwina, filed for Chapter 7 bankruptcy. The Consunjis did not list the medical liability claim against Dr. Pagano and Campbell Chiropractic Clinic as an asset in their bankruptcy schedules.

On April 18, 2006, Consunji filed a medical malpractice suit in state court against Dr. Pagano and Campbell Chiropractic Clinic (hereinafter collectively “appellees”). At that time, the bankruptcy case remained pending. Consunji did not inform the bankruptcy trustee, Rodney Tow, of the suit’s filing.

The Consunjis received a no-asset discharge on May 5, 2006, and the bankruptcy case was closed. Trustee Tow did not learn of the Consunji’s medical liability claim during the pendency of the bankruptcy case.

On October 10, 2006, appellees filed a motion for summary judgment against Consunji. Appellees asserted that Con-sunji’s medical liability claim was barred by judicial estoppel because he had not disclosed the claim in the bankruptcy proceeding.

Tow first learned of Consunji’s pending lawsuit and the medical liability claim on October 18, 2006. Based on this newly learned information, Tow filed an emergency motion to reopen the bankruptcy case, which was granted by the bankruptcy court.

On October 27, 2006, a first amended petition was filed in the medical liability suit, adding Tow as a plaintiff. Tow alleged that he was “the duly appointed Chapter 7 trustee of the bankruptcy estate.” He further alleged that when the Consunjis filed for bankruptcy, all of their assets, including the causes of action asserted in the lawsuit, “vested in” the bankruptcy estate. The petition averred that Tow, as the bankruptcy trustee, “is the owner of all such assets and causes of action and is duly authorized to pursue them on behalf of the [bankruptcy] estate.”

On November 3, 2006, the trial court granted appellees’ motion for summary judgment against Consunji on the ground that his claims were barred by judicial estoppel. Tow’s claim on behalf of the bankruptcy estate remained pending.

Appellees filed a second motion for summary judgment. Appellees asserted that judicial estoppel extended to bankruptcy trustee Tow. They argued that judicial es-toppel bars Tow’s pursuit of Consunji’s medical liability claim because, as trustee, Tow “stepped into the shoes” of bankruptcy debtor Consunji. Appellees claimed that Consunji’s failure to disclose the claims in the bankruptcy proceeding was imputed to Tow and operated to bar Tow’s claims as well.

Tow replied that a bankruptcy trustee acquires the rights and liabilities of the bankruptcy debtor at the time the bankruptcy petition is filed. Tow contended that any conduct by the debtor post-petition, such as failing to disclose assets, is conduct not imputed to the trustee. Tow pointed out that he had neither abandoned the medical liability claim nor taken any position contrary to making the claim, conduct he claimed necessary for judicial es-toppel to bar his claim.

In their motion for summary judgment, appellees asserted, alternatively, that Tow’s claims were barred by the two-year limitations period found in Texas Medical Liability Act (“TMLA”) section 74.251(a). Appellees pointed out that Consunji alleged he was injured by appellees’ negligent medical treatment on May 10, 2004. Under section 74.251(a), the two-year limitations period expired on May 10, 2006. Tow filed his claim as trustee on October 27, 2006.

Appellees acknowledged that Bankruptcy Code section 108(a) provides that if a limitations period has not expired before the filing of the bankruptcy petition, as here, a trustee has two years from the filing of the bankruptcy petition to commence an action. Under section 108(a), Tow had until October 15, 2007 to assert his claims as bankruptcy trustee against appellees. If section 108(a) applied, Tow’s claims, filed on October 27, 2006, were timely.

Appellees argued that section 108(a) did not extend the limitations period beyond that provided in TMLA section 74.251(a). Appellees asserted that section 74.251(a)’s language indicates that the Texas Legislature intended the two-year limitations period to be the “absolute” time period in which to file a medical liability claim in Texas, regardless of Bankruptcy Code section 108(a). In support of their position, appellees relied on language in section 74.251(a) that its provisions applied “notwithstanding any other law.”

Appellees further asserted that Tow’s claims were time-barred because TMLA section 74.251(a) is a statute of repose, not a statute of limitations. Appellees contended that a statute of repose creates a substantive property right. Allowing Tow to file suit would interfere with that right.

Relying on the Supremacy Clause of the federal constitution, Tow responded that, to the extent that state statute conflicts with the federal Bankruptcy Code, section 108(a) preempts section 74.251(a). Tow asserted that preemption applied regardless of whether section 74.251(a) is a statute of repose or a statute of limitations.

In further support of its limitations ground, appellees asserted that Tow did not “step into the shoes” of Consunji when he entered the lawsuit. Rather, Tow and Consunji are “separate legal entities.” Ap-pellees pointed out that Consunji filed his claims in his individual capacity for his own benefit, while Tow filed suit as trustee for the benefit of the bankruptcy estate. Appellees asserted that, as a result, Tow’s claims do not “relate back” to the filing of Consunji’s claims for limitations purposes. Tow countered that, in the event section 108(a) was held not to extend the limitations period, his claims did “relate back” to Consunji’s timely filed claim. Tow asserted that he was properly substituted in as the real-party-in-interest in the amended petition.

The trial court granted appellees’ Rule 166a(c) motion for summary judgment. In its order, the trial court specified that Tow’s claims were barred by the statute of limitations or, alternatively, by the doctrine of judicial estoppel. Tow appeals, challenging both summary judgment grounds.

Summary Judgment Standard

The summary-judgment movant must conclusively establish its right to judgment as a matter of law. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986). Because summary judgment is a question of law, we review a trial court’s summary judgment decision de novo. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005).

To prevail on a “traditional” summary-judgment motion, asserted under Rule 166a(c), a movant must prove that there is no genuine issue regarding any material fact and that it is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex.2004). A defendant moving for traditional summary judgment must either (1) disprove at least one element of the plaintiffs cause of action or (2) plead and conclusively establish each essential element of an affirmative defense to rebut the plaintiffs cause. See IHS Cedars Treatment Ctr. of DeSoto, Texas, Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004). A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.2005).

In our review, we take the nonmovant’s competent evidence as true, indulge every reasonable inference in favor of the non-movant, and resolve all doubts in favor of the nonmovant. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex.2005). We consider all grounds on which the trial court ruled that are preserved for review and that are necessary for disposition of the appeal. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996).

Judicial Estoppel

In his first issue, Tow asserts that the trial court erred by granting summary judgment because judicial estoppel does not prevent him, as bankruptcy trustee, from prosecuting claims that Consunji did not disclose in the bankruptcy proceeding.

A. Legal Principles

Because this issue arises in the bankruptcy context, we apply federal law to decide whether judicial estoppel bars Tow’s claims. See Bailey v. Barnhart Interest, Inc., 287 S.W.3d 906, 909 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (applying Fifth Circuit law to determine whether trustee’s state court claims were barred by judicial estoppel because debtor failed to disclose claims in bankruptcy filings); see also Brown v. Swett & Crawford of Tex., Inc., 178 S.W.3d 373, 380-81 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (utilizing Fifth Circuit law to determine whether judicial estoppel applied to bar claims based on representations made in bankruptcy petition).

The doctrine of judicial estoppel applies when a party seeks to bring a claim that is inconsistent with a claim asserted in a prior proceeding. Kane v. Nat’l Union Fire Ins. Co., 535 F.3d 380, 385 (5th Cir.2008). The doctrine protects the integrity of the judicial process by preventing a party from “playing fast and loose” with courts to suit the party’s own purposes. Id. Generally, courts apply the equitable doctrine when “intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.” In re Coastal Plains, Inc., 179 F.3d 197, 206 (5th Cir.1999); see Kane, 535 F.3d at 385.

The Fifth Circuit has recognized three particular requirements that must be met for judicial estoppel to apply: “(1) the party is judicially estopped only if its position is clearly inconsistent with the previous one; (2) the court must have accepted the previous position; and (3) the nondisclosure must not have been inadvertent.” Kane, 535 F.3d at 386 (quoting In re Superior Crewboats, Inc., 374 F.3d 330, 334-35 (5th Cir.2004)).

B. Analysis

Briefing in the trial court and on appeal focuses on whether judicial estoppel bars Tow’s claims based on Consunji’s failure to list the medical liability claim in the bankruptcy schedule. Appellees rely on In re Superior Crewboats to support their argument that judicial estoppel bars Tow’s claims based on Consunji’s conduct. See 374 F.3d at 336.

In re Superior Crewboats involved debtors who pursued unscheduled claims that the bankruptcy trustee had formally abandoned. See id. at 334-35. The Fifth Circuit concluded that judicial estoppel barred the debtor’s pursuit of the claims because such pursuit benefitted the debtors to the detriment of the creditors. See id. at 336; see also In re Coastal Plains, Inc., 179 F.3d at 213 (holding that judicial estoppel prevented corporate debtor’s CEO from benefitting from corporate debtor’s earlier failure to disclose claim). The Superior Crewboats court further held that the trustee’s motion to substitute as plaintiff for the debtors became moot once judicial es-toppel operated to bar the debtors’ claims. 874 F.3d at 336.

Appellees acknowledge that, unlike the trustee in Superior Crewboats, Tow never abandoned the claims in this case. Nonetheless, appellees’ motion for summary judgment asserted that judicial estoppel bars Tow’s claims because “a trustee steps into the shoes of the debtor, assumes all rights and liabilities held by the estate at the time of the bankruptcy filing, and is also subject to any defenses that could be asserted against the debtor.” Appellees reasoned, “Thus, if judicial estoppel prevents the debtor from pursuing a claim, then it will also prevent the trustee who has stepped into the debtor’s shoes from pursuing the same claims.”

In his response, Tow countered, “As a matter law, upon commencement of a bankruptcy case, the trustee, as the representative of the estate, steps into the shoes of the debtor but only as to any rights and liabilities which the debtor possessed at the time of filing the bankruptcy case.” Tow continued, “When a trustee prosecutes a right of action derived from the debtor, the trustee stands in the shoes of the debtor, subject to any pre-petition defenses.” Tow concluded, “In short, [appel-lees’] argument that the Trustee is subject to any defenses that [appellees] would have against [Consunji], including the post-petition failure to disclose an asset, is simply incorrect.”

The law supports Tow’s position. Under Bankruptcy Code section 541, Consun-ji’s medical liability claim vested in the bankruptcy estate when Consunji filed his bankruptcy petition. See 11 U.S.C. § 541(a)(1) (2006) (providing that bankruptcy estate includes “all legal or equitable interest of the debtor in property as of the commencement of the case”); see also Kane, 535 F.3d at 385. Because the medical liability claim belongs to the bankruptcy estate, Tow, as trustee, is the real party in interest and the only party with standing to assert the claim. See 11 U.S.C. §§ 323, 541(a)(1); see also Kane, 535 F.3d at 385. The filing of the bankruptcy petition extinguished all of Consunji’s rights in the medical liability claim. See Parker v. Wendy’s Int’l, Inc., 365 F.3d 1268, 1272 (11th Cir.2004). The claim would have reverted to Consunji had Tow abandoned it under Bankruptcy Code section 554; however, no such abandonment occurred. See 11 U.S.C. § 554 (2006). Consunji’s failure to list the claim on the bankruptcy schedule leaves the claim in the bankruptcy estate. See Kane, 535 F.3d at 385; Parker, 365 F.3d at 1272. When Consunji received his bankruptcy discharge, the medical liability claim remained the property of the estate, even though it was unscheduled and not administered. See 11 U.S.C. § 554(d); Kane, 535 F.3d at 385; Parker, 365 F.3d at 1272. Taken together, the facts and applicable law compels the conclusion that judicial estoppel cannot be applied against Tow based on Consunji’s post-bankruptcy failure to disclose the claim. See Parker, 365 F.3d at 1272; see also Bank of Marin v. England, 385 U.S. 99, 101, 87 S.Ct. 274, 276, 17 L.Ed.2d 197 (1966) (“The trustee succeeds only to such rights as the bankrupt possessed; and the trustee is subject to all claims and defenses which might have been asserted against the bankrupt but for the filing of the petition.”).

Significantly, since the parties filed their appellate briefing, the Fifth Circuit, in Kane v. National Union Fire Insurance Co., answered the question at issue in this appeal: whether judicial estoppel precludes a Chapter 7 trustee from pursuing an undisclosed, pre-petition tort claim that was never administered or abandoned by the trustee. See 535 F.3d at 388. In deciding the issue, the Fifth Circuit discussed, and ultimately distinguished, In re Superior Crewboats. See id. at 386-87.

The Kane court explained, “In In re Superior Crewboats, Inc., we were asked only to consider whether debtors could pursue claims for their own benefit that they failed to disclose in their bankruptcy schedules.” Id. at 386. “[B]ecause the [Superior Crewboats ] trustee had abandoned the claim, he was not the real party in interest and was not entitled to be substituted as such.” Id. “Rather, following the trustee’s abandonment, the interest in the claim had reverted to the debtors, who then stood to collect a windfall from their failure to schedule the asset at the expense of their creditors.” Id. at 386-87.

The Kane court recognized the distinction between the underlying circumstances in that case and those underlying In re Superior Crewboats. The court wrote, “In the case before us, the Kanes’ personal injury claim became an asset of their bankruptcy estate when they filed their Chapter 7 petition. The Trustee became the real party in interest in the Kanes’ lawsuit at that point and never abandoned his interest therein.” Id. at 387.

The Kane court then explained the significance of the distinction:

Thus, unlike in In re Superior Crew-boats, Inc. — where the debtors stood to benefit directly from pursuing their claim at the expense of their creditors, and the district court’s dismissal of the claim against the debtors mooted the trustee’s motion to substitute as a matter of law — here, the Trustee is the real party in interest and has reopened the Kanes’ Chapter 7 bankruptcy to pursue the Kanes’ claim for the benefit of the estate’s creditors.

Id. The Kane court concluded that In re Superior Crewboats did not require the application of the equitable doctrine of judicial estoppel to bar the trustee’s pursuit of the debtor’s undisclosed claims. See id. The court further concluded that “the only way the Kanes’ creditors would be harmed is if judicial estoppel were applied to bar the Trustee from pursuing the claim against Defendants on behalf of the estate.” See id. The court noted, “In this case, equity favors the Trustee.” See id. In closing, the Kane court held that In re Superior Crewboats did “not control the outcome” of the case. See id. at 388.

We now apply the Fifth Circuit’s analysis in Kane to the facts at hand. See Bailey, 287 S.W.3d at 913.

After the Consunjis filed their bankruptcy petition, Consunji’s medical liability claim vested in the bankruptcy estate. See Kane, 535 F.3d at 385. Tow, as trustee and the representative of the bankruptcy estate, became the real party in interest; he was the only party with standing to prosecute the claim. See id. Consunji’s filing of the bankruptcy petition extinguished his rights in the claim, unless the claim was abandoned by Tow. See id. It is undisputed that Tow never abandoned the medical liability claim. Instead, Tow reopened the bankruptcy and actively pursued the claim for the benefit of the estate’s creditors. See id.

In addition, there is no showing that Consunji will directly benefit at the expense of the creditors from the Tow’s pursuit of the medical liability claims. See id. at 387. Although Consunji may benefit to the extent there is a surplus after all debts and fees have been paid, the Consunjis’ creditors would be harmed if judicial es-toppel prevented Tow from pursuing the claims. See id. at 387. As in Kane, equity favors the trustee in this case. See id.

Following Kane, we conclude that appel-lees have not satisfied their summary judgment burden to show that the doctrine of equitable estoppel bars Tow’s pursuit of Consunji’s medical liability claim as a matter of law. See Bailey, 287 S.W.3d at 913 (following Kane and reversing summary judgment against trustee that was based on judicial estoppel). Therefore, we hold that the summary judgment was not appropriate based on judicial estoppel. See id. To the extent that it based summary judgment on judicial estoppel, the trial court erred.

We sustain Tow’s first issue.

Limitations Period

In his second issue, Tow contends that the trial court erred by granting summary judgment on the ground that his medical liability claim is barred by the statute of limitations.

A. The Statutes

In their summary judgment briefing, ap-pellees maintained that TMLA section 74.251(a) determines the period during which Tow had to file his claim as trustee. Appellees recognized, but then denied, the application of Bankruptcy Code section 108(a) to extend section 74.251(a)’s limitations period. Tow responded that Bankruptcy Code section 108(a) determines the period during which he could file the medical liability claim on behalf of the bankruptcy estate.

TMLA 74.251(a) provides,

(a) Notwithstanding any other law and subject to Subsection (b), no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed; provided that, minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim. Except as herein provided this section applies to all persons regardless of minority or other legal disability.

Tex. Civ. Prac. & Rem.Code Ann. § 74.251(a) (Vernon 2005).

Consunji alleged that he was injured by appellees’ negligent treatment on May 10, 2004. The two-year limitations period prescribed in section 74.251(a) expired on May 10, 2006. Appellees assert that Tow’s claim, filed on October 27, 2006, was untimely under section 74.251(a).

Bankruptcy Code section 108(a) provides,

(a) If applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period within which the debtor may commence an action, and such period has not expired before the date of the filing of the petition, the trustee may commence such action only before the later of—
(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or
(2) two years after the order for relief.

11 U.S.C. § 108(a).

Simply stated, Bankruptcy Code section 108(a) allows a trustee to commence an action on behalf of the debtor’s estate within the period allowed by state law for such an action or within two years after the filing of a petition for bankruptcy, whichever is later. See id.; see also 11 U.S.C. § 301 (2006). Here, the Consunjis filed their bankruptcy petition on October 15, 2005. Tow contends that section 108(a) extended the period for him to commence the medical liability action on behalf of the bankruptcy estate until October 15, 2007. Tow maintains that his assertion of the medical liability claim against appellees on October 27, 2006 was timely under section 108(a).

B. Analysis

To support summary judgment, appel-lees asserted in the trial court that section 108(a) does not extend the limitations period because section 74.251(a) sets forth an “absolute” two-year limitations period. Appellees maintained that the absolute nature of the limitations period is shown by section 74.251(a)’s language that, “notwithstanding any other law,” no health care liability claim may be commenced beyond the specified two-year limitations period. Appellees pointed to Bala v. Maxwell in which the Texas Supreme Court held, based on the “notwithstanding any other law” language, that the limitations provision of section 74.251(a) governed over the limitations provision of the Texas wrongful death statute. 909 S.W.2d 889, 892-93 (Tex.1995).

Appellees also stressed the important underlying policy reasons for TMLA’s enactment as support for their position that section 74.251(a)’s limitations provision governs over that of section 108(a). Ap-pellees pointed out that the Supreme Court of Texas has acknowledged that the impetuses for the enactment of the predecessor statutes of TMLA were concerns over insurance rates and the cost of healthcare. See Sax v. Votteler, 648 S.W.2d 661, 666 (Tex.1983). Appellees also pointed to the supreme court’s comment in Morrison v. Chan regarding a TMLA predecessor statute: “The Legislature enacted the Medical Liability and Insurance Improvement Act to alleviate a perceived medical malpractice insurance crisis in the State of Texas. In an effort to accomplish this goal, the Legislature adopted an absolute two-year limitations period.” 699 S.W.2d 205, 208 (Tex.1985).

Appellees also stressed that the legislature crafted section 74.251(a) in a fashion to make the discovery rule inapplicable to medical liability claims. Again, appellees suggested this evinces the legislature’s intent that section 74.251(a) be the only statute of limitations applicable to medical liability claims.

Lastly, appellees asserted that section 108(a) cannot extend the limitations period found in TMLA because section 74.251(a) is a statute of repose, not a statute of limitations. Appellees argued that, as a statute of repose, section 74.251(a) creates a substantive right to be free from liability after the expiration of the legislatively defined two-year period. Appellees’ intimate that section 108(a) cannot be applied to a statute of repose because such application would infringe on appellees’ substantive property rights.

In Stanley v. Trinchard, the Fifth Circuit recently decided whether section 108(a) applies to a state statute of repose. 579 F.3d 515 (5th Cir.2009). Stanley is instructive not only in our determination of the statute-of-repose sub-issue, but also in determining generally the issue of whether section 108(a) extends the limitations period in this case.

In Stanley, the bankruptcy trustee sued Trinchard, an attorney, in federal district court on behalf of the debtor’s estate, asserting claims for legal malpractice. Id. at 516. Trinchard moved for summary judgment on the ground that the trustee’s lawsuit was barred by Louisiana’s one-year peremptive period for legal malpractice claims. See id. at 517. The district court granted summary judgment, and the trustee appealed to the Fifth Circuit. See id.

On appeal, the issue was framed as follows: “The question here is whether Louisiana’s peremptive statute, which controls the estate’s claim, is somehow exempt from § 108 because of its status as a statute of repose.” Id. at 518. The court answered this question in the negative: “Because Congress expressed an overriding and unqualified interest in allowing bankruptcy trustees sufficient time to discover causes of action on behalf of their estates, we hold that § 108(a) of the Bankruptcy Code, 11 U.S.C. § 108(a), extended Louisiana’s legal malpractice peremption period.” Id. at 516.

In support of its holding, the Fifth Circuit provided the following analysis:

The subject of bankruptcy falls within the express constitutional powers of Congress, and bankruptcy law therefore takes precedence over state laws under the Supremacy Clause. U.S. Const., art. VI. Section 108(a) is written broadly to extend any “period [fixed inter alia by ‘applicable nonbankruptcy law’] within which the debtor may commence an action.” The statute’s clear purpose is to afford bankruptcy trustees extra time to assess and pursue potential assets of the debtor’s estate. Congress drew no distinction among the state law vehicles that govern time limits for filing suit, whether statutes of limitations or prescription, repose or peremption. The language of Section 108(a) compels the conclusion that Congress expressly extended the time for pursuing any action that would otherwise be time-barred under state law.

Id. at 519.

We agree with the Fifth’s Circuit’s analysis. Section 108(a)’s purpose is self-evident: it is to provide the trustee with additional time to evaluate and to prosecute the debtor’s potential claims as assets of the bankruptcy estate. Equally as clear, as noted by the Fifth Circuit, is that section 108(a)’s application is without qualification. Under its plain language, section 108(a) applies to all statutes defining a time period for filing suit. Section 108(a) makes no exception for statutes of repose. Nor does it restrict its application to statutes of limitations.

In addition, section 108(a) does not exclude from its reach statutes that serve to advance an important state interest such as regulation of health care liability. In short, Congress did not make the application of section 108(a) dependent on the limitation statute’s nature, type, language, or underlying purpose. The Fifth Circuit correctly concluded, “The language of Section 108(a) compels the conclusion that Congress expressly extended the time for pursuing any action that would otherwise be time-barred under state law.” Id. (emphasis added).

Further, we note that section 74.251(a)’s “notwithstanding any other law” language does not in any fashion trump the language of section 108(a). To the contrary, “state law is naturally preempted to the extent of any conflict with a federal statute.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372, 120 S.Ct. 2288, 2294, 147 L.Ed.2d 352 (2000). The United States Supreme Court has explained that preemption will be found when, “under the circumstances of a particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. at 373, 120 S.Ct. at 2294 (citing Hines v. Davidowitz, 312 U.S. 52, 66-67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)).

Here, reading section 74.251(a)’s “notwithstanding any other law” language to require application of that statute’s limitations period to Tow’s claims would stand as an obstacle to the accomplishment of Congress’s full purposes and objectives under section 108(a). As discussed, section 108(a)’s plain language makes clear that Congress’s objective of enactment was to provide the bankruptcy trustee with sufficient time to evaluate and to pursue causes of action for the benefit of the bankruptcy estate. Congress determined that sufficient period of time to be two years from the filing of the bankruptcy petition. In this case, applying section 74.251(a)’s limitations period would reduce Tow’s post-bankruptcy time to bring suit from two years, under section 108(a), to seven months. Allowing section 74.251(a) to shorten the time period specifically defined by Congress would subvert the underlying purpose of section 108(a), frustrate Congress’s overriding objective, and create a direct conflict with section 108(a).

To the extent that it conflicts with section 108(a), section 74.251(a) is preempted. Section 108(a) extends section 74.251(a)’s limitations period. Tow had until October 15, 2007 to commence the medical liability action on behalf of the bankruptcy estate. Thus, his October 27, 2006 claim was timely filed.

We conclude that appellees are not entitled to summary judgment based on limitations. To the extent that it based summary judgment on appellees’ limitations defense, we hold that the trial court erred.

We sustain Tow’s second issue.

Conclusion

We hold that appellees were not entitled to summary based on judicial estoppel or based on limitations. We reverse the judgment of the trial court and remand for further proceedings.

      . For the first time on appeal, appellees contend that Tow presented no evidence that he was authorized to proceed as trustee in the underlying action. Specifically, appellees assert that Tow has not shown he was reappointed as trustee after the bankruptcy case was reopened. Because appellees' contention reads as one challenging Tow’s standing, it may be raised for the first time on appeal. See Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex.2005). When, as here, we consider the issue of standing for the first time on appeal, we construe the petition in favor of the plaintiff and, if necessary, review the entire record to determine whether any evidence supports standing. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). We note Chapter 7 trustees are not automatically reappointed as trustees upon the reopening of a bankruptcy case. See Fed. R. Bankr.P. 5010. Indeed, Tow requested reappointment when he moved to reopen the bankruptcy case. Thereafter, in the first amended petition, Tow alleged that he was "the duly appointed Chapter 7 trustee of the bankruptcy estate” Tow further alleged that he, as the bankruptcy trustee, "is the owner of all such assets and causes of action and is duly authorized to pursue them on behalf of the estate.” Given that this issue was raised for the first time on appeal, we conclude that the allegations in the petition are sufficient to confer standing on Tow as trustee for the bankruptcy estate to assert the medical liability claim. In any event, this issue may be addressed by the trial court on remand.

      . The commencement of a voluntary bankruptcy case, as here, through the filing of a petition, constitutes an order for relief. 11 U.S.C. § 301 (2006).

      . The Stanley court explained, "Common law jurisdictions refer to this type of limitation as a statute of repose, while states with civil codes use the term peremptive period. No legal distinction exists.” Stanley v. Trinchará, 579 F.3d 515, 518 n. 3 (5th Cir.2009).

      . Tow contends that section 74.251(a) is not a statute of repose, but is a statute of limitations. It is not necessary for us to make this determination to dispose of Tow’s second issue.

      . Appellees raise certain summary grounds for the first time on appeal. Appellees contend that section 108(a) does not apply because Tow did not "commence” the action, as required by section 108(a). See 11 U.S.C. § 108(a). Appellees assert that it was Con-sunji who "commenced” the action. Appel-lees also contend that section 108(a) does not apply when a debtor, such as Consunji, had already been discharged in bankruptcy before the trustee filed suit. Lastly, appellees assert that Tow has not complied with a number of the statutory prerequisites for filing a medical liability claim, such as pre-suit notice and filing an expert report. Regardless of their validity, we cannot reach these grounds because they were not raised in the trial court. The law is clear: we may not affirm a summary judgment on grounds "not expressly set out in the motion or response.” Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.1993).

      . Because we have disposed of Tow’s second issue on the bases discussed supra, we need not discuss Tow's contention that his claim was timely filed because it "related back” to the filing of Consunji’s claim.