source: Caselaw Access Project

author: ADELE HEDGES, Chief Justice.

license: Public Domain

text:
    WOLF HOLLOW I, L.P., Appellant, v. EL PASO MARKETING, L.P. and Enterprise Texas Pipeline, LLC, Appellees.
    No. 14-09-00118-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 28, 2010.
    Rehearing Overruled Dec. 16, 2010.

      Jett Williams III, Jacks C. Nickens, Houston, for appellant.
    D. Mitchell McFarland, Michael Hen-dryx, Kerry R. McEniry, Suzanne Reddell Chauvin, Renando De Leon Jr., Houston, for appellees.
    Panel consists of Chief Justice HEDGES and Justices ANDERSON and CHRISTOPHER.
   OPINION

ADELE HEDGES, Chief Justice.

Wolf Hollow I, L.P. (“Wolf Hollow”) appeals from a final judgment entered by the trial court following its grant of several motions for summary judgment filed by appellees, El Paso Marketing, L.P. (“El Paso”) and Enterprise Texas Pipeline, LLC (“Enterprise”). The disputes between the parties all revolve around natural gas supply and transportation contracts. We modify and, as modified, affirm the portion of the judgment favoring El Paso and reverse and remand the portion favoring Enterprise.

I. Background

Wolf Hollow owns and operates a natural gas fired power plant in Granbury, Texas. To ensure a supply of natural gas to the Granbury plant, Wolf Hollow’s predecessor-in-interest entered into a Gas Supply and Fuel Management Agreement (the “Supply Agreement”) with El Paso’s predecessor-in-interest on March 8, 2001. In December 2005, Wolf Hollow and El Paso executed the First Amendment to Gas Supply and Fuel Management Agreement, which modified certain sections of the Supply Agreement. Some of the more relevant provisions of these agreements are presented below.

The Supply Agreement addresses the quality of the gas to be supplied in section 14.1, which reads in relevant part as follows:

Section 14.1 Quality. The quality of Quantity of Gas that [El Paso] sells, delivers or causes to be delivered to [Wolf Hollow] or for [Wolf Hollow’s] account at the Point of Delivery shall meet or exceed the minimum gas quality specifications established in the [Enterprise] Transporter’s Tariff; provided, however, that (i) if [Enterprise] fails to deliver Gas at the [Enterprise] Point of Delivery that meets such quality specifications, then [El Paso] shall assign to [Wolf Hollow], or otherwise cause [Wolf Hollow] to be subrogated to, any claim that [El Paso] may have against [Enterprise] as a result of such delivery failure under the Gas Transportation Agreements to which [Enterprise] is a party, as assigned by [Wolf Hollow] to [El Paso]....

Article XXI of the Supply Agreement is entitled “Default and Remedies.” Section 21.1 provides:

Delivery Failure, (a) Unless excused by an Event of Force Majeure or by any other provision of this Agreement, if at any time [El Paso] determines that it will not be able to sell, deliver or cause to be delivered, or actually fails to sell, deliver or cause to be delivered, to [Wolf Hollow] or for the account of [Wolf Hollow] at the relevant Point of Delivery a Quantity of Gas in an amount equal to the Scheduled Delivery Quantity, [El Paso] shall immediately notify [Wolf Hollow] of [El Paso’s] inability to fully perform its obligations under this Agreement and [Wolf Hollow] may seek to cover any failure or anticipated inability of [El Paso] to deliver the Scheduled Delivery Quantity by making such Gas purchases from other suppliers using the Cover Standard, and upon making such purchases shall be entitled to recover from [El Paso] the product of (i) the positive difference, if any, between the price of such replacement Gas and the price applicable to the Gas [El Paso] actually failed to deliver on such Day, and (ii) the amount by which the Scheduled Delivery Quantity for such Day exceeds the actual Quantity of Gas delivered to the relevant Point of Delivery by [El Paso] (“[El Paso’s] Deficiency Quantity”)....
(b) If [Wolf Hollow] has used the Cover Standard in an effort to purchase [El Paso’s] Deficiency Quantity from a third party Gas supplier and no such purchase, or portion thereof, is available, [El Paso] may provide replacement power at a location where [Wolf Hollow] would have otherwise delivered the capacity or energy that [Wolf Hollow] would have produced and delivered but for [El Paso’s] Gas delivery failure in accordance with the following: [El Paso] shall notify [Wolf Hollow] whether it elects to provide replacement power no later than one (1) hour before the deadline for [Wolf Hollow] to indicate whether it will provide Replacement Power to Peco Energy under the Power Contract or to such other offtaker with whom [Wolf Hollow] has an effective power contract and to whom [Wolf Hollow] may contractually deliver Replacement Power (an “Alternative Offtaker”), as the case may be, and if so, [El Paso’s] supply source, delivery point, and transmission arrangement. [Wolf Hollow] shall accept or reject, at its sole discretion, the proposed replacement power....
(c) If [El Paso] is unable to provide replacement power or [Wolf Hollow] rejects [El Paso’s] offer to provide replacement power, [Wolf Hollow] shall be entitled to recover from [El Paso] the sum of (i) the positive difference if, any, between the cost incurred by [Wolf Hollow] to purchase (utilizing the Cover Standard) energy or capacity to replace the energy or capacity [Wolf Hollow] could not produce at [Wolf Hollow’s] Facility due to [El Paso’s] Gas delivery failure and [Wolf Hollow’s] avoided costs in purchasing such replacement energy or capacity and not producing the same at [Wolf Hollow’s] Facility, (ii) any monthly reduction or complete loss of capacity payments under any power sales contract, including the Power Contract, then in effect to which [Wolf Hollow] is a party and invoiced from [Wolf Hollow] to [El Paso] monthly, and (iii) lost variable payments under any power sales contract, including the Power Contract, then in effect to which [Wolf Hollow] is a party to the extent those variable payments exceed $0.70 MWh....
(d) [El Paso] shall pay to [Wolf Hollow] amounts due under this Section 21.1 within ten (10) Days following [El Paso’s] receipt from [Wolf Hollow] of an invoice setting forth' the amounts owed....

Section 21.2 of the Supply Agreement provides, in pertinent part:

Event of Default (a) An Event of Default under this Agreement shall be deemed to exist upon the occurrence of any one or more of the following events, unless excused by an Event of Force Majeure: ...
(ii) failure by [El Paso] to deliver or cause to be delivered at the relevant Point of Delivery a Quantity of Gas that, in the aggregate, equals or exceeds 1.8 Bcf of all or any portion of the Scheduled Delivery Quantities that [Wolf Hollow] requests [El Paso] to deliver over the course of any Contract Year; or ...
(v) failure by either Party to perform fully any other material provision of this Agreement and (A) such failure continues for a period of sixty (60) Days after written notice of such non-performance is received by the non-performing party

Section 1.9 of the First Amendment modified the language found in Section 21.3 of the Supply Agreement. As amended, section 21.3 reads as follows:

Remedies for Event of Default. During any Event of Default, the party not in default shall have the right:
(a) To immediately suspend its performance under this Agreement, subject to the terms and conditions herein;
(b) To terminate this Agreement upon ten (10) Days written notice to the defaulting party and seek damages for the harm caused by the Event of Default;
(c)to pursue any other remedy provided under this Agreement, or now or hereafter existing at law or in equity or otherwise, including but not limited to:
(A) any rights and remedies available to a secured party, if any, under Article 9 of the Uniform Commercial Code of the jurisdiction in which the Performance Assurance is being held and any other applicable jurisdiction and any other applicable laws with respect to the Performance Assurance held by or for the benefit of seller;
(B) any right to set off any Performance Assurance held by it or for its benefit of against and in satisfaction of any amount payable by the other party under this Agreement; or
(C) any right to draw on any outstanding Letter of Credit issued for its benefit and apply proceeds therefrom, in addition to any Cash held by such party, against amounts payable by the other party under this Agreement.

Finally, in the Supply Agreement, Wolf Hollow and El Paso agreed to limit their liability:

Section 24.11 Limitation of Liability; [El Paso] Liability Cap. (a) EXCEPT AS SPECIFICALLY SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES.

In addition, Wolf Hollow’s predeeessor-in-interest entered into a Transportation Agreement with Enterprise’s predecessor-in-interest (EPGT Texas Pipeline, L.P.). Under the terms of the Transportation Agreement, Enterprise agreed to provide natural gas pipeline transportation service to Wolf Hollow’s Granbury plant. Because the Transportation Agreement incorporates Enterprise’s publicly filed tariff, it effectively contains two assignment clauses. The first states:

ASSIGNMENT: NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, SHIPPER [WOLF HOLLOW] MAY ASSIGN ITS RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT TO ANY PARTY THAT PROVIDES FUEL MANAGEMENT SERVICES TO SHIPPER OR AGREES TO SELL AND DELIVER GAS TO SHIPPER AT SHIPPER’S PLANT, UPON THE CONSENT OF TRANSPORTER [ENTERPRISE], WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD. THE PARTIES AGREE THAT IT SHALL BE UNREASONABLE FOR TRANSPORTER TO WITHHOLD ITS CONSENT TO SUCH AN ASSIGNMENT IF (A) SHIPPER’S ASSIGN-EE’S CREDITWORTHINESS MEETS OR EXCEEDS TRANSPORTER’S CREDIT REQUIREMENTS, (B) SHIPPER’S ASSIGNEE TAKES ASSIGNMENT OF THE WHOLE AGREEMENT, AND (C) SUCH ASSIGNMENT IS FOR A TERM OF AT LEAST ONE (1) YEAR.

The second, found in the publicly filed tariff, provides in relevant part as follows:

22. ASSIGNMENT
The service agreement between Shipper and Transporter, including, without limitation, each indemnification, shall inure to and bind the permitted successors and assigns of Shipper and Transporter, provided neither Shipper nor Transporter shall transfer the service agreement without the prior written approval of the other and which approval may not be unreasonably withheld, delayed or conditioned. Such transfer shall not be effective until approved by the other party. Provided further, either Shipper or Transporter may transfer its interest to any parent or affiliate by assignment, merger or otherwise without the prior approval of the other, but no such transfer shall operate to relieve the transfer- or of its obligations hereunder....

Wolf Hollow assigned the Transportation Agreement to El Paso.

In 2006 and early 2007, there were four brief interruptions in the delivery of natural gas to Wolf Hollow’s power plant. The first occurred on August 9, 2006 due to an equipment failure on the Enterprise pipeline. The second occurred on September 11, 2006 when an Enterprise technician made a computer error which caused the line pressure to increase, in turn causing a gas flow shut-in at the Granbury power plant. The third incident, on January 8, 2007, again involved an equipment failure on the Enterprise pipeline. The fourth and final interruption occurred three days later, on January 11, 2007, and also was due to a pipeline equipment failure.

El Paso gave notice of these four interruptions as events of force majeure under the Supply Agreement; however, Wolf Hollow declined to agree that the interruptions were in fact excused under the contract. In addition to the four interruptions, a dispute arose between Wolf Hollow and El Paso over the quality of the natural gas delivered to and accepted by Wolf Hollow. Specifically, Wolf Hollow alleges that the gas was contaminated by heavy liquid hydrocarbons, requiring periodic plant shutdowns.

Faced with these disputes, El Paso sought a declaratory judgment that it had properly invoked the force majeure provisions and that it was not liable for Wolf Hollow’s claims related to the quality of the gas delivered to the Granbury plant. Wolf Hollow filed a counterclaim against El Paso seeking damages for breach of contract, breach of warranties, and negligence. Specifically, Wolf Hollow sought recovery for the following: (1) charges incurred for purchasing replacement power to meet its output commitments; (2) physical damage to the Granbury power plant; (3) the cost of procuring additional fuel treatment equipment; and (4) the costs for cleaning, replacing, and refurbishing various turbine parts. All of Wolf Hollow’s alleged damages arose out of either the four gas delivery interruptions or the alleged delivery of contaminated natural gas.

El Paso also filed a third-party petition against Enterprise, seeking to recover contribution and. indemnity for any liability that El Paso might have to Wolf Hollow. Wolf Hollow then filed a negligence cross-claim against Enterprise. According to Wolf Hollow, Enterprise was negligent when it (1) delivered gas that failed to comply with the quality specifications contained in the Transportation Agreement, and (2) permitted the four interruptions in gas delivery. From Enterprise, Wolf Hollow sought to recover: (1) the cost of replacement power, .(2) amounts for damage to the Granbury plant, (3) sums expended in mitigation of damages, (4) the cost to purchase additional fuel treatment equipment, and (5) the costs of cleaning and refurbishing turbines at the Granbury facility.

All issues in the litigation were resolved by the trial court’s rulings on a series of summary judgment motions filed by El Paso and Enterprise. In its rulings, the trial court disposed of Wolf Hollow’s claims against El Paso on multiple grounds, all based on interpretations of language found in the Supply Agreement and the First Amendment thereto. Among its rulings, the trial court concluded that: (1) the four delivery interruptions were caused by events of force majeure which excused El Paso’s performance; (2) all damages sought by Wolf Hollow were consequential damages barred by section 24.11 of the Supply Agreement; and (3) section 14.1 of the Supply Agreement created an exclusive remedy for Wolf Hollow’s gas quality claims: an assignment by El Paso of any quality claims it might have against Enterprise. Also, without specifying the grounds, the trial court granted Enterprise’s motion for summary judgment on Wolf Hollow’s negligence claim. Following the issuance of its summary judgment orders, the trial court entered a final judgment ordering that Wolf Hollow take nothing on its claims against El Paso and Enterprise. The final judgment also granted a declaratory judgment favoring El Paso, declaring that (1) the four service interruptions constituted events of force majeure; (2) Wolf Hollow’s exclusive remedy for its gas quality claims was an assignment of El Paso’s claims against Enterprise; and (3) Article XXI (“Default and Remedies”) of the Supply Agreement does not apply to Wolf Hollow’s gas quality claims.

In nine issues on appeal, Wolf Hollow challenges the trial court’s granting of El Paso’s and Enterprise’s motions for summary judgment. Eight of Wolf Hollow’s issues address El Paso’s motions for summary judgment. Wolf Hollow’s ninth issue addresses summary judgment on its negligence cause of action against Enterprise.

II. Standards of Review

A movant for summary judgment has the burden of showing that there is no genuine issue of material fact, and thus, it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). If there is no genuine issue of material fact, summary judgment should be entered as a matter of law. Haase v. Glazner, 62 S.W.3d 795, 797 (Tex.2001). We review a trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005).

Because there are no disputed facts, this case presents only a matter of determining the legal effect of the language found in the Supply Agreement and the First Amendment thereto. In construing a written contract, the primary concern of the court is to ascertain the true intentions of the parties as expressed in the instrument. Id. at 662. Ordinarily, the writing alone is sufficient to express the parties’ intentions for it is the objective, not subjective, intent that controls. Matagorda Hosp. Dist. v. Burwell, 189 S.W.3d 738, 740 (Tex.2006) (per curiam). To determine intent, we examine and consider the entire writing in an effort to harmonize and give effect to all provisions of the contract so that none will be rendered meaningless. Valence Operating Co., 164 S.W.3d at 662. No single provision controls; rather, all the provisions must be considered with reference to the entire instrument. Myers v. Gulf Coast Minerals Mgmt. Corp., 361 S.W.2d 193, 196 (Tex.1962). We presume that every clause in the contract was intended by the parties to the contract to have some effect. Fein v. R.P.H., Inc., 68 S.W.3d 260, 266 (Tex.App.-Houston [14th Dist.] 2002, pet. denied) (citing Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996)). We construe contracts from a utilitarian standpoint, bearing in mind the particular business activity sought to be served, and will avoid when possible and proper, a construction which is unreasonable, inequitable, or oppressive. Frost Nat’l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310, 312 (Tex.2005). Courts, however, are not authorized to rewrite agreements by inserting additional terms, definitions, or provisions that the parties could have included themselves but did not, or by implying terms for which the parties have not bargained. Tenneco, Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 646 (Tex.1996). In other words, courts cannot make contracts for the parties. HECI Exploration Co. v. Neel, 982 S.W.2d 881, 888 (Tex.1998).

III. Summary Judgment for El Paso

Wolf Hollow essentially makes two types of claims against El Paso: those pertaining to the four delivery interruptions and those pertaining to alleged damages resulting from the delivery of contaminated gas. In one of its motions for summary judgment, El Paso contended that all of Wolf Hollow’s claims sought consequential damages which were expressly waived under section 24.11 of the Supply Agreement. The trial court granted this motion, effectively defeating all of Wolf Hollow’s claims. In its seventh appellate issue, Wolf Hollow contends that the trial court erred in characterizing its damages as “incidental, special, indirect, or consequential” and in holding that such damages were waived under section 24.11. We will begin by addressing whether Wolf Hollow’s claims pertaining to the four service interruptions sought consequential damages and whether its gas quality claims sought consequential damages. We will then consider Wolf Hollow’s eighth issue in which it contended that the trial court erred in finding that Wolf Hollow had sustained no direct damages on claims the trial court had already disposed of on other summary judgment grounds.

A. Consequential Damages for Service Interruptions

In its Amended Counterclaim, Wolf Hollow alleged that due to the four service interruptions, it was forced to purchase replacement power in order to fulfill its dispatch commitments. El Paso asserted in one of its motions for summary judgment that the purchase of replacement power was a consequential damage barred by section 24.11(a) of the Supply Agreement. That section reads as follows: “EXCEPT AS SPECIFICALLY SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES.” The trial court granted this motion for summary judgment.

On appeal, Wolf Hollow contends that the cost of replacement power occasioned by the four service interruptions constituted direct damages and that the trial court therefore erred in characterizing such costs as consequential damages. In support of this contention, Wolf Hollow cites to common law distinctions between “direct damages” and “consequential damages.” See, e.g., Term, Gas Pipeline Co. v. Technip USA Corp., 2008 WL 3876141, at *7—11 (Tex.App.-Houston [1st Dist.] August 21, 2008, pet. denied). Although the Supply Agreement contains elements of both the sale of goods and the provision of services, the sale of goods is the dominant theme of the Agreement. Consequently, article 2 of the Uniform Commercial Code (“UCC”) applies and common law principles do not apply to the extent they conflict with provisions of the UCC. See Tex. Bus. & Comm.Code § 2.102; Graybar Elec. Co. v. LEM & Assocs., L.L.C., 252 S.W.3d 536, 542 (Tex.App.-Houston [14th Dist.] 2008, no pet.); see also El Paso Natural Gas Co. v. Mineo Oil & Gas, Inc., 8 S.W.3d 309, 313 (Tex.1999) (holding that contract for buying and selling oil and gas was a transaction involving “goods” and thus governed by the UCC); Natural Gas Clearinghouse v. Midgard Energy Co., 113 S.W.3d 400, 408 n. 3 (Tex.App.-Amarillo 2003, pet. denied) (following Mineo). The Texas common law and the UCC do not utilize the same definitions of direct and consequential damages. See Wade & Sons, Inc. v. Am. Standard, Inc., 127 S.W.3d 814, 823-24 (Tex.App.-San Antonio 2003, pet. denied).

Under UCC section 2.713, the measure of a buyer’s damages for non-delivery of a product is calculated by the difference between the market price for the same type of product at the time when the buyer learned of the breach and the contract price, together with any incidental and consequential damages provided in chapter 2. Tex. Bus. & Coram. Code § 2.713 & cmt. 2. The product at issue here was natural gas; thus, the cost for replacement power would not be an appropriate measure of direct damages under the section. Wolf Hollow’s argument to the contrary is without merit.

UCC section 2.715 defines consequential damages as “(1) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and (2) injury to person or property proximately resulting from any breach of warranty.” Id. § 2.715. Although Wolf Hollow has alleged that the cost of replacement power resulted from requirements (specifically Wolf Hollow’s energy dispatch obligations to its customers) that El Paso knew about, section 24.11(a) of the Agreement expressly excludes recovery of consequential damages. UCC section 2.719 permits parties to modify available remedies and specifically permits consequential damages to be limited or excluded so long as such limitation or exclusion is not unconscionable. Id. § 2.719. Therefore, even if Wolf Hollow is correct about El Paso’s knowledge, these damages are consequential damages, which are barred by the Supply Agreement.

Wolf Hollow additionally appears to argue that it was entitled to recover as damages its replacement energy costs because such recovery was expressly contemplated by the Supply Agreement. Wolf Hollow first points out that section 24.11 of the agreement barred consequential damages “except as specifically set forth” in the agreement. Wolf Hollow then insists that section 21.1(c) specifically authorizes its recovery of replacement power costs. This subsection indeed mentions the possibility that Wolf Hollow could recover the cost to purchase replacement power; however, it limits this possibility to certain specific circumstances.

Section 21.1, as a whole, sets up a scheme accounting for the possibility that El Paso might fail to deliver a scheduled quantity of gas. Subsection 21.1(a) states that:

Unless excused by an Event of Force Majeure ..., if at any time [El Paso] determines that it will not be able to [deliver] a Quantity of Gas in an amount equal to the Scheduled Delivery Quantity, [El Paso] shall immediately notify [Wolf Hollow] and [Wolf Hollow] may seek to cover ... by making such Gas purchases from other suppliers using the Cover Standard, and ... recover from [El Paso] the ... difference, if any, between the price of such replacement Gas and the price applicable to the Gas that [El Paso] actually failed or anticipates failing to deliver....
Subsection 21.1(b) then states that:
If [Wolf Hollow] has used the Cover Standard in an effort to purchase [El Paso’s] Deficiency Quantity from a third-party Gas supplier and no such purchase, or portion thereof, is available, [El Paso] may provide replacement power at a location where [Wolf Hollow] would have otherwise delivered the capacity ... but for [El Paso’s] Gas delivery failure....

This subsection further provides that El Paso has to timely notify Wolf Hollow that it elects to provide replacement power and that Wolf Hollow has discretion to accept or reject the replacement power.

Subsection 21.1(c) then provides that:
If [El Paso] is unable to provide replace^ ment power or [Wolf Hollow] rejects [El Paso’s] offer to provide replacement power, [Wolf Hollow] shall be entitled to recover from [El Paso] the sum of [among other things] the positive difference [if any] between the cost incurred by [Wolf Hollow] to purchase ... energy or capacity to replace the energy or capacity [Wolf Hollow] could not produce at [its] Facility due to [El Paso’s] Gas delivery failure and [Wolf Hollow’s] avoided costs in purchasing such replacement energy or capacity and not producing the same at [its] Facility....

Wolf Hollow contends that subsection (c) permits it to purchase, and be reimbursed for, replacement power in the event of a service disruption without regard to whether the steps set forth in subsections (a) and (b) have been undertaken. However, read in isolation, subsection 21.1(c) is meaningless. It states that Wolf Hollow is entitled to be reimbursed for replacement power if El Paso is unable to provide such power or Wolf Hollow rejects such power, but it does not explain under what circumstances El Paso would be offering replacement power. In other words, it merely states a remedy without stating the occurrence for which a remedy is needed. It is only by reference to the earlier portions of section 21.1 that subsection 21.1(c) makes sense. When read in its entirety, section 21.1 makes it clear that the provisions of subsection (c) apply only when the steps in subsections (a) and (b) have been followed. More specifically, Wolf Hollow can be reimbursed for replacement power only if: (1) under subsection (a), El Paso is unable to deliver a scheduled quantity of gas; (2) under subsection (b), Wolf Hollow has been unsuccessful in attempting to cover by purchasing gas from other suppliers; and (3) under subsection (c), El Paso was unable to provide replacement power or Wolf Hollow rejected El Paso’s offer of replacement power. This reading of section 21.1 is reinforced by the fact that both subsection (b) and (c) begin with “if-then” clauses that tie them to the circumstances discussed in the immediately preceding subsection. Wolf Hollow does not contend that all of the predicates to its recovery of replacement power costs under Section 21.1 occurred in this case. In short, section 21.1 provides very specific remedies for very specific circumstances that Wolf Hollow does not allege occurred in this case. Wolf Hollow’s asserted damages based on the four service interruptions are all consequential damages barred under the Supply Agreement.

B. Consequential Damages for Quality Issues

Wolf Hollow’s claims based on the alleged delivery of contaminated natural gas sought recovery for (1) physical damage to the Granbury power plant; (2) costs for cleaning, replacing, and refurbishing various turbine parts; (3) charges incurred for purchasing replacement power during shutdowns occasioned by the need for cleaning, replacing, and refurbishing of parts; and (4) costs for procuring additional fuel treatment equipment required due to the delivery of contaminated gas. As explained above, the trial, court granted summary judgment against these claims and damages based on the waiver of consequential damages contained in section 24.11 of the Supply Agreement, and Wolf Hollow challenges this holding in issue 7.

Wolf Hollow correctly points out that under the UCC, a buyer’s damages for non-conforming goods, when such goods are nonetheless accepted by the buyer, are governed by section 2.714, which reads in full as follows:

§ 2.714. Buyer’s Damages for Breach in Regard to Accepted Goods
(a) Where the buyer has accepted goods and given notification (Subsection (c) of Section 2.607) he may recover as damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller’s breach as determined in any manner which is reasonable.
(b) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.
(c) In a proper case any incidental and consequential damages under the next section may also be recovered.

Tex. Bus. & Comm.Code § 2.714. As stated in the UCC section, the typical measure of damages in such situations is “the difference ... between the value of the goods accepted and the value they would have had if they had been as warranted.” Id. § 2.714(a). In this lawsuit, however, Wolf Hollow is not seeking damages by this measure. Instead, Wolf Hollow states that it is seeking damages based on the portion of section 2.714(a) that provides the general measure applies “unless special circumstances show proximate damages of a different amount.” Id. In short, Wolf Hollow argues that the need to purchase replacement power was a “special circumstance” or, at least, was due to “special circumstances.” Wolf Hollow, however, offers no analysis or citation supporting its assertion that the purchase of replacement power constituted or was caused by a “special circumstance.” Although it might be possible to speculate regarding special circumstances in this case, we decline to make Wolf Hollow’s argument or case for it.

Next, Wolf Hollow argues that even if the cost of replacement power is deemed a consequential damage, such costs are still recoverable under the Supply Agreement. More specifically, Wolf Hollow points out that section 24.11 provides that consequential damages are barred “[e]xcept as specifically set forth herein.” Further according to Wolf Hollow, section 21.3(c), as amended, permits recovery of consequential damages wherein it states that; “During any Event of Default, the Party not in default shall have the right ... to pursue any other remedy provided under this Agreement, or now or hereafter existing at law or in equity or otherwise....” Wolf Hollow claims that the gas contamination constituted an “Event of Default” under the Agreement.

Wolf Hollow’s interpretation of these provisions, however, would effectively nullify the waiver of consequential damages and, in so doing, violate a principle tenet of contract construction: specific provisions of a contract govern over general ones. See, e.g., Grynberg v. Grey Wolf Drilling Co., L.P., 296 S.W.3d 132, 137 & n. 17 (Tex.App.-Houston [14th Dist.] 2009, pet. denied) (citing Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133-34 (Tex.1994)). Section 24.11 waives consequential damages except as may be specifically provided in other portions of the contract. The language in section 21.3(c) highlighted by Wolf Hollow states very generally that a nondefaulting party may be entitled to any remedy under the agreement or otherwise existing at law or in equity. Therefore, the language in section 21.3(c) neither controls over the more specific statement in section 24.11 nor does it fulfill the requirement in section 24.11 that to be recoverable, consequential damages must be “specifically set forth” in another part of the contract. Wolf Hollow’s reliance on this language is without merit.

Lastly, Wolf Hollow maintains that El Paso’s breach of the fuel management services provisions in the Supply Agreement, specifically the requirement in subsection 5.4(b)(v) that El Paso “use Prudent [Fuel Management] Practices to minimize any costs to” Wolf Hollow, means that Wolf Hollow could recover any such costs, including what might otherwise be considered consequential damages. However, we do not read this reference to “any costs” so broadly. If we did, it would render the bar to consequential damages in section 24.11 meaningless. See Valence Operating Co., 164 S.W.3d at 662 (explaining that in interpreting a contract, courts must consider the entire writing in an effort to harmonize and give effect to all provisions so that none will be rendered meaningless). Wolf Hollow suggests that any other interpretation than the one it offers would effectively render section 5.4(b)(v) meaningless. This is incorrect. Although not mentioned by Wolf Hollow, subsection 5.4(b)(v) actually provides a nonexclusive list of the type of costs contemplated: “hourly variance charges, daily imbalance fees, and monthly cash-out charges assessed by the relevant Transporter under its OBA or Transporter Tariff, storage fees and short-term parking and lending fees.” The kinds of costs listed could be considered consequential damages specifically provided for as contemplated in section 24.11. However, the types of damages Wolf Hollow claims in the present lawsuit — physical damage to the plant; costs for cleaning, replacing, and refurbishing; charges for replacement power; and costs for additional equipment — are fundamentally different from the types of costs listed in subsection 5.4(b)(v). As stated, if the list in subsection 5.4(b)(v) is broad enough to include the damages claimed here, then section 24.11 would be impermissibly rendered meaningless. Consequently, Wolf Hollow’s arguments based on subsection 5.4(b)(v) are without merit.

Wolf Hollow’s asserted damages based on the delivery of contaminated natural gas are all consequential damages barred by the Supply Agreement. Based on the foregoing analysis, the trial court did not err in granting summary judgment against Wolf Hollow’s claims based on the four service interruptions or the delivery of contaminated gas. We overrule Wolf Hollow’s seventh issue. Because the trial court’s ruling on consequential damages defeated all of Wolf Hollow’s claims against El Paso for damages, we need not address Wolf Hollow’s other appellate issues seeking reversal of the trial court’s judgment for El Paso. Furthermore, our holding on the consequential damages issue renders the trial court’s grant of declaratory judgment favoring El Paso on other defensive issues moot. Accordingly, we modify the trial court’s judgment to delete the declaratory judgment language.

C. Summary Judgment on Direct Damages

In issue eight, Wolf Hollow suggests that the trial court’s holding that Wolf Hollow take nothing on its claims for direct damages is a nullity because Wolf Hollow did not request direct damages in its pleadings. Based on our analysis above, explaining that all of Wolf Hollow’s claims sought consequential and not direct damages, we agree that the trial court’s holding regarding direct damages was irrelevant to the outcome of this case. The trial court’s final judgment does not mention direct damages, and Wolf Hollow does not pray for modification of the judgment on this basis; accordingly, we need make no such modification.

IV. Summary Judgment for Enterprise

As stated above, Wolf Hollow filed a cross-claim against Enterprise alleging that it negligently delivered contaminated natural gas to the Granbury power plant. Enterprise moved for summary judgment on two grounds: (1) Wolf Hollow is not entitled to recover for negligence based on obligations in a contract to which it is not a party; and (2) the economic loss rule precludes Wolf Hollow from recovering on its negligence claim. The trial court granted Enterprise’s motion without specifying the grounds therefor. In its ninth issue, Wolf Hollow challenges both grounds asserted by Enterprise.

A. Negligence Based on Performance of Contract

In its appellate briefing, Enterprise contends that Wolf Hollow’s negligence cause of action fails as a matter of law because every “purported ‘tort’ duty that [Wolf Hollow] alleges arises only from the Transportation Agreement.” Enterprise then argues that “[i]t is well established in Texas that a plaintiff cannot take a breach of contract action claim and convert it into a tort claim.” While we agree with Enterprise’s statement of the general rule, our analysis does not end there.

Wolf Hollow and Enterprise agree that once Wolf Hollow assigned the Transportation Agreement to El Paso, Wolf Hollow and Enterprise were no longer in contractual privity. Nonetheless, as Enterprise correctly points out, Wolf Hollow cannot escape the limitations on liability found in the Transportation Agreement simply by assigning the contract to a third party. See Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 346-47 (Tex.2006). However, a party to a contract can escape liability under the contract if the terms of the original contract expressly or impliedly release the assigning party. Id. at 347. Therefore, the answer here “turns on whether the parties to the [Transportation Agreement] expressly agreed upon the consequences that should follow an assignment ... to a third party.” Id.

As quoted above, the Transportation Agreement provides that Wolf Hollow could assign its rights and obligations under the Transportation Agreement to any party providing fuel management services to Wolf Hollow. The summary judgment evidence establishes that Wolf Hollow assigned the Transportation Agreement to El Paso, the third party providing fuel management services to Wolf Hollow. Furthermore, it is clear from the language of assignment that the parties to the Transportation Agreement expressly agreed on the consequences that would follow an assignment. The language of the assignment clause in Enterprise’s filed tariff specifically provides that if Wolf Hollow assigns its interest in the Transportation Agreement to a parent or affiliated company without Enterprise’s approval, the assignment would not relieve Wolf Hollow of its contractual obligations. By expressly stating that Wolf Hollow would retain all contractual rights and obligations only if it chose to make the specified type of assignment, the parties expressed an intent that Wolf Hollow would not retain those contractual rights and obligations for any other type of assignment. Consequently, because Wolf Hollow assigned all of its rights and obligations under the Transportation Agreement to El Paso and not to a parent or affiliated company, it did not retain any contractual rights, and therefore, its negligence cause of action is not an improper attempt to convert a contract action into a tort.

We also disagree with Enterprise’s argument that Wolf Hollow’s negligence cause of action must fail because a contract created Enterprise’s duty to deliver natural gas to Wolf Hollow’s power plant. The fact that an act is induced by and done pursuant to a contract does not shield it from regular tort liability. Goose Creek Consol. I.S.D. of Chambers and Harris Counties, Tex. v. Jarmr’s Plumbing, Inc., 74 S.W.3d 486, 494 (Tex.App.-Texarkana 2002, pet. denied) (citing Thomson v. Espey Huston & Assocs., 899 S.W.2d 415, 420 (Tex.App.-Austin 1995, no writ)). “One who undertakes to perform a contract assumes a duty to all persons to take reasonable care not to injure them or their property in the performance of that contract, and one who is not privy to the contract may assert a claim for negligence for a breach of that duty.” Id. Here, Wolf Hollow has alleged and produced summary judgment evidence that Enterprise’s negligent performance of the Transportation Agreement physically damaged components of its power plant. The fact that Enterprise’s duty to deliver natural gas to Wolf Hollow arose out of a contract (between El Paso and Enterprise) does not prohibit Wolf Hollow’s negligence cause of action.

B. Economic Loss Rule

In a related argument, Enterprise contends that the economic loss rule prohibits Wolf Hollow’s negligence cause of action. We disagree. The economic loss rule applies when losses arise from the failure of a product, and the damage is limited to the product itself. Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 867 (Tex.2007). The rule does not preclude tort recovery if a defective product causes physical harm to the ultimate user or consumer, or other property of the user or consumer, in addition to causing damage to the product itself. Id. In Texas, the economic loss rule has been applied to preclude tort claims in two related contexts: (1) where the losses sought to be recovered are the subject matter of a contract between the parties; and (2) when the claims are for economic losses against the manufacturer or seller of a defective product where the defect damaged only the product and did not cause personal injury or damage to other property. Coastal Conduit & Ditching, 29 S.W.3d 282, 285 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Once the other parameters are established, the rule bars recovery even if the parties are not in contractual privity. Id. at 290.'

The subject of the Transportation Agreement is the delivery of natural gas to the Granbury power plant. Wolf Hollow alleges Enterprise negligently performed its duties under that contract by delivering contaminated gas to the plant. Wolf Hollow further alleges that this contaminated natural gas damaged the turbines and other plant equipment. Because Wolf Hollow alleges that Enterprise’s negligence resulted in physical damage to parts of Wolf Hollow’s power generating facility, which were not the subject of the Transportation Agreement, the economic loss rule does not preclude those specific claims. Equistar Chemicals, 240 S.W.3d at 867. The cases Enterprise relies on in support of its economic loss rule argument are all distinguishable, based on the fact they did not involve physical damage to property separate from the property at issue in the contract; therefore, they do not control the circumstances presented here. See Sterling Chems., Inc. v. Texaco Inc., 259 S.W.3d 793, 796 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (affirming summary judgment on claims for economic losses resulting from business interruptions; however, trial court denied summary judgment motion on property damage claim and that claim was not at issue on appeal); Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 107 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (holding that economic loss rule precludes recovery of economic damages only in the absence of personal injury or property - damage claims); Clems Ye Olde Homestead Farms LTD v. Briscoe, No. 4:07CV285, 2008 WL 5146964, at *5 (E.D.Tex. December 8, 2008) (holding that economic loss rule precluded the plaintiffs’ tort claims because they only alleged injuries to the subject of the contract itself). Accordingly, we sustain Wolf Hollow’s ninth issue as it relates to Wolf Hollow’s negligence claim seeking relief for the physical damage allegedly caused to Wolf Hollow’s power plant by the delivery of allegedly contaminated natural gas.

Conclusion

The trial court properly granted El Paso’s summary judgment based on the bar to consequential damages in the Supply Agreement. Consequently, we modify the final judgment to remove the declaratory judgment language, and as so modified, affirm the portion of the judgment respecting Wolf Hollow’s claims against El Paso. Furthermore, having sustained Wolf Hollow’s ninth issue on appeal, we reverse the judgment of the trial court as it relates to Wolf Hollow’s negligence claim against Enterprise, seeking relief for property damage allegedly caused to Wolf Hollow’s power plant, and remand that claim to the trial court for further proceedings consistent with this opinion.

      . Wolf Hollow’s predecessor-in-interest is AES Wolf Hollow, L.P. El Paso's predecessor-in-interest is El Paso Merchant Energy, L.P.

      . The force majeure provisions of the agreement are not reproduced herein because they are not central to our resolution of this case.

      . Wolf Hollow eventually non-suited its negligence claim against El Paso, and it is not at issue in this appeal..

      . The parties agree that the Supply Agreement is governed by New York law. The parties also assert at various times in their briefs that, at least on the issues raised in this appeal, New York and Texas law are the same. Finally, the parties made no attempt to demonstrate any differences between the relevant law of New York and Texas. Therefore, we presume there is no difference between the law of New York and Texas and apply Texas law. Exxon Mobil Corp. v. Kinder Morgan Operating L.P. "A", 192 S.W.3d 120, 124 n. 5 (Tex.App.-Houston [14th Dist.] 2006, no pet.).

      . In its eight issues pertaining to the summary judgment favoring El Paso, Wolf Hollow contends that the trial court erred in finding that (1) the four service interruptions constituted, or arose from, events of force majeure; (2) El Paso’s fuel management obligations in the Supply Agreement do not extend to issues of gas quality; (3) Wolf Hollow’s exclusive remedy for fuel quality claims is an assignment of El Paso's claims against Enterprise; (4) Article XXI of the Supply Agreement does not apply to issues of gas quality; (5) Wolf Hollow’s gas quality claims have been released or waived pursuant to section 2.2 of the First Amendment; (6) Wolf Hollow’s gas quality claims have been released or waived pursuant to the indemnity provision in section 16.1 of the Supply Agreement; (7) certain damages were "incidental, special, indirect, or consequential”; and (8) Wolf Hollow sustained no direct damages.

      . The Tennessee Gas Pipeline case cited by Wolf Hollow and our own recent opinion in Cherokee County Cogeneration Partners, L.P. v. Dynegy Marketing and Trade, 305 S.W.3d 309 (Tex.App.-Houston [14th Dist.J 2009, no pet.), are therefore distinguishable because they applied common law and not UCC principles.

      . As explained in the immediately previous section of this opinion, Wolf Hollows citation to common law definitions of direct and consequential damages are not applicable under the facts of this case.

      . Without explanation, Wolf Hollow additionally suggests that if section 21.3(c) is not read as an exception to the bar to consequential damages in section 24.11, then section 21.3 would be rendered meaningless. This is incorrect. As stated above, section 21.3(c) is a particularly broad provision that could result in the availability of numerous remedies and was not limited, as Wolf Hollow’s argument suggests, to consequential damages. Thus, simply reading the contract such that section 21.3(c) does not implicate consequential damages (due to the section 24.11 waiver of such damages) does not render the provision meaningless.

      . The relevant portions of section 5.4 read as follows:
      Section 5.4 Fuel Manager Scope of Services. (a) [El Paso] shall implement a comprehensive plan jointly developed by [El Paso] and [Wolf Hollow] for the procurement and administration of the Fuel Management Services to be provided by [El Paso] in accordance with the terms of this Article V. The Fuel Management Services included in such comprehensive plan shall be performed in a manner consistent with the requirements of Section 5.2 and the other terms of this Article V.
      (b) Without limiting Section 5.4(a), but subject to the limitations set forth in this Article V, [El Paso] shall perform the following Fuel Management Services:
      (v) use Prudent FM Practices to minimize any costs to [Wolf Hollow], including but not limited to, hourly variance charges, daily imbalance fees, and monthly cash-out charges assessed by the relevant Transporter under its OBA or Transporter Tariff, storage fees and short-term parking and lending fees....

      . In its reply brief, Wolf Hollow states that what might be considered consequential damages under the UCC for a gas sales contract might be considered direct damages for breach of a gas management contract. While this statement may be correct under certain circumstances not present here, it is important to note that (1) the bar of consequential damages in section 24.11 was not limited to issues involving only the sale of natural gas but was applicable to the whole contract, including the gas management provisions; and (2) as explained above, the primary focus of the Supply Agreement was the sale of natural gas. The claims made by Wolf Hollow are in essence that El Paso failed to deliver goods on four occasions and delivered contaminated goods in breach of warranty. These are principally sale-of-goods issues that are only tangentially related to the gas management responsibilities (such as to monitor, manage, negotiate, consult, coordinate, and use prudent practices) addressed in subsection 5.4(b)(v). Accordingly, as discussed above, these claims are best addressed under the UCC provisions for the sale of goods.

      . In the last section of Wolf Hollow's reply brief, it suggests in one sentence that there was no resolution of its request in its petition for injunctive relief: "The trial court improperly entered a final judgment without considering or resolving Wolf Hollow’s claim for permanent injunction." This point was neither properly raised as an issue on appeal nor properly briefed. See Tex.R.App. P. 38.1 (i) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record."); Pat Baker Co., Inc. v. Wilson, 971 S.W.2d 447, 450 (Tex.1998) ("It is axiomatic that an appellate court cannot reverse a trial court's judgment absent properly assigned error."); Methodist Hosp. v. Zurich Am. Ins. Co., 329 S.W.3d 510, 518 n. 8 (Tex.App.Houston [14th Dist.] 2009, pet. denied) (declining to consider issue raised for the first time in reply brief).

      .El Paso sought declaratory judgment specifically against the claims for past damages that Wolf Hollow made the basis for its counterclaims in this lawsuit. Because we have ruled against Wolf Hollow on the merits of its claims, El Paso's declaratory judgment request regarding those same claims is rendered moot.

      . While Enterprise filed multiple motions for summary judgment, the trial court specifically granted only the motion filed on July 31, 2008. In this motion, Enterprise moved for summary judgment only on the grounds mentioned above. On appeal, Enterprise asserts an additional basis to affirm the trial court’s summary judgment: Wolf Hollow's negligence claim fails under the filed tariff doctrine. Because this ground for summary judgment was not presented to the trial court in the July 31, 2008 motion, we cannot consider it on appeal as a basis for affirming the trial court's judgment. Travis v. City of Mesquite, 830 S.W.2d 94, 100 (Tex.1992).


author: LESLIE B. YATES, Justice.

text:
    Eddie SHAW, Appellant, v. The STATE of Texas, Appellee.
    No. 14-09-00412-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 9, 2010.

      Wayne T. Hill, Houston, for appellant.
    Jessica Akins McDonald, Houston, for appellee.
    Panel consists of Chief Justice HEDGES and Justices YATES and SULLIVAN.
   OPINION

LESLIE B. YATES, Justice.

A jury convicted appellant Eddie Shaw of one count of aggravated sexual assault of a child under the age of fourteen and assessed punishment at life imprisonment and a $10,000 fine. Appellant challenges his conviction in six issues. He argues that the trial court erred by admitting irrelevant testimony about the complainant’s conduct after the abuse, permitting the complainant’s school principal to testify as an outcry witness, admitting DNA evidence without the necessary proof of the chain of custody, and allowing an expert to testify about the DNA evidence in this case. Finally, he argues that the evidence is legally and factually insufficient. We affirm.

Background

When Jane was seven or eight years old, appellant moved in to the townhouse where Jane lived with her mother and two-year-old sister. Soon thereafter, appellant sexually assaulted Jane, who testified at trial about the details of the assault. Jane testified that when her mother was taking a bath one night, appellant took Jane into a laundry room, unzipped his pants, and showed her his penis. He then pulled down Jane’s pants, brought her into the foyer area of the house, and got on top of her. He put his penis inside her vagina. Jane said that it hurt, and she tried to scream, but he told her to stop. Appellant said he would kill her mother and sister if she ever told anyone what happened. Jane remembered that semen came out of his penis when he was putting his pants back on. She was bleeding from her vagina, so she threw away her underwear that night.

The next day, Jane told her mother that appellant touched her and did things he should not have done. Her mother did nothing, and appellant continued to have vaginal or oral sex with Jane nearly every day until she was about ten or eleven years old. When Jane was eleven years old, her mother took her to a doctor and discovered that Jane was six-and-a-half months pregnant. Jane told her mother, “[Appellant] is the one that got me pregnant,” but no report was made to authorities.

Jane gave birth to a baby boy when she was eleven years old, and she retained custody of her son. Jane’s mother told Jane to tell the doctors that a boy named John at her elementary school impregnated her. About eighteen months after Jane’s son was born, appellant resumed sexually assaulting her. By this time, Jane’s mother had also given birth to at least one of appellant’s four biological daughters, and the family was living in and out of various hotel rooms. Appellant would have vaginal and oral sex with Jane while her mother would take baths and the other children were present in the hotel room. This routine continued for about another year. Jane testified that, in total, appellant had sex with her hundreds and possibly a thousand times.

Shortly after her fourteenth birthday, Jane and her son moved in with her maternal grandmother. Jane began attending school and was enrolled in a teen parenting program. One day she was in a fight at school and was sent to an assistant principal’s office. Shannon Fisch, the assistant principal, testified at trial as an outcry witness. Fisch said Jane told her that Jane had been raped by her mother’s boyfriend, and her son was the offspring of that assault. That night, Jane also told her grandmother about the assault and that appellant was the father of her child. Her grandmother took her to a police station, and they made a report.

The State presented testimony from various persons involved in the investigation. Officer Heidi Ruiz worked at the Houston Police Department (HPD) Children’s Assessment Center, and she investigated this case. She testified generally about how children disclose to adults that they have been sexually abused, and she said that children often “cry out” to multiple adults because they are not ready to disclose every detail of the abuse the first time they tell someone. Over appellant’s objection, Ruiz was permitted to testify that Jane’s “actions were appropriate in this case.” Ruiz based her conclusion on her experience working with children for ten years and her observation of how children disclose these types of offenses.

Ruiz further testified that she collected buccal swabs of DNA from Jane and Jane’s son. She brought the swabs to an HPD property room. Officer Carlos Val-era similarly testified that he collected buccal swabs from appellant and delivered them to an HPD property room. Cassandra Pope, an employee at an HPD crime lab, testified that she received the buccal swabs from the property room and transported them to the lab. Karen Gincoo, an employee at the crime lab, testified that she inventoried some of the buccal swabs and sent them via FedEx to Orchid Cell-mark, a forensic DNA testing laboratory in Tennessee, because the HPD crime lab did riot perform paternity testing.

Tabitha Bullock, a DNA analyst at Orchid Cellmark, also testified at trial. After a hearing outside the jury’s presence, the trial court found her qualified to testify as an expert. The State introduced the actual DNA samples taken from appellant, Jane, and Jane’s son, and appellant’s counsel objected because the State had failed to establish the chain of custody. The court overruled the objection and admitted the DNA samples. Bullock prepared a report based on her testing of the DNA samples, which showed that there was a 99.99% probability that appellant was the father of Jane’s child.

The jury found appellant guilty and assessed punishment at life imprisonment and a $10,000 fine. This appeal followed.

Analysis

A. Officer Ruiz’s Testimony Regarding Jane’s Outcry Actions

Appellant argues in his first issue that Ruiz’s testimony about Jane’s outcry actions being “appropriate” was irrelevant and did not assist the trier of fact because it improperly bolstered Jane’s testimony as “a direct opinion on the truthfulness of a child.” Yount v. State, 872 S.W.2d 706, 708 (Tex.Crim.App.1993) (quotation omitted); see Tex.R. Evid. 702. Ruiz testified generally about how a child sex abuse victim will often “cry out” to more than one person “[bjecause children are not ready to talk about every aspect of a sex offense until they are actually comfortable that they are not going to be abused by the perpetrator again.” The State asked Ruiz whether she believed Jane’s “actions were appropriate in this case,” and appellant objected based on “relevance.” The court overruled the objection, and Ruiz said, ‘Tes.”

We review a trial court’s decision to admit evidence for an abuse of discretion, and we will reverse only when the court’s decision falls outside the zone of reasonable disagreement. Burton v. State, 230 S.W.3d 846, 849 (Tex.App.-Houston [14th Dist.] 2007, no pet.). Rule 401 of the Texas Rules of Evidence defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex.R. Evid. 401. In a case involving the sexual abuse of a child, a fact of consequence to the determination of the action includes whether the child was actually abused. See Cohn v. State, 849 S.W.2d 817, 819 (Tex.Crim.App.1993). Evidence of abuse is relevant if it “corroborates another witnesses] story or enhances inferences to be drawn from another source of evidence.” Id. at 820. Accordingly, testimony is relevant if the witness explains that certain behavior is consistent with sexual abuse and the child in question has exhibited such behavior. Yount, 872 S.W.2d at 708-09; Cohn, 849 S.W.2d at 819. Specifically in Cohn, the Court of Criminal Appeals held that expert testimony was relevant when the expert said that the child “was appropriate with her feelings about what happened” because she was crying and appeared nervous. 849 S.W.2d at 818 (emphasis added). Furthermore, although a direct opinion on the truthfulness of a child is inadmissible under Rule 702 because it does not assist the trier of fact, testimony about the behavior of child sex abuse victims is admissible under Rule 702. Yount, 872 S.W.2d at 709; Cohn, 849 S.W.2d at 818; see also Tamplin v. State, No. 14-01-01253-CR, 2002 WL 31662560, at *3 (Tex.App.-Houston [14th Dist.] 2002, pet. refd) (not designated for publication) (noting that “testimony concerning behavioral characteristics typically exhibited by victims of sexual abuse and describing behavior observed in complaining witnesses is not improper”).

Here, evidence at trial showed that Jane cried out to multiple persons, including her mother, her grandmother, and a school principal. Based on her experience, Ruiz explained that sexually abused children often cry out to multiple persons, and thus, Jane’s actions were “appropriate.” This evidence enhances an inference drawn from the fact that Jane cried out to multiple adults, and therefore, makes it more probable that Jane was sexually assaulted. Ruiz’s testimony was about the behavior of a child sex abuse victim; she did not provide a direct opinion on whether Jane was telling the truth or was a credible witness. Accordingly, the trial court did not abuse its discretion in admitting Ruiz’s testimony — it was relevant and assisted the trier of fact. We overrule appellant’s first issue.

B. Admission of Fisch’s Outcry Testimony

Appellant argues in his second issue that the trial court erred in designating Fisch, the assistant principal, as an outcry witness under article 38.072 of the Texas Code of Criminal Procedure. In a case alleging aggravated sexual assault of a child, a witness’s hearsay testimony about a child’s statement is admissible if the following requirements are met: (1) the statement describes the alleged offense; (2) the statement was made by the child against whom the offense was allegedly committed; (3) the witness is the first person, eighteen years of age or older, other than the defendant, to whom the child made the statement; (4) the party intending to offer the statement provides notice at least fourteen days before the proceeding begins, and the notice includes the name of the witness and a summary of the statement; (5) the trial court finds, in a hearing outside the jury’s presence, that the statement is reliable based on the time, content, and circumstances of the statement; and (6) the child testifies or is available to testify at the proceeding. Tex. Code Crim. PROC. Ann. art. 38.072, § 2 (West Supp.2009). If, as here, a defendant objects based on hearsay, the State bears the burden of proving each element of the statute. Zarco v. State, 210 S.W.3d 816, 828 (Tex.App.-Houston [14th Dist.] 2006, no pet.). If the trial court overrules the objection, we will infer the court found that the State met its burden. See id. at 831 (holding that the trial court “impliedly found the testimony reliable” when it overruled the defendant’s general hearsay objection). We review the trial court’s decision for an abuse of discretion, and we will reverse only when the court’s decision falls outside the zone of reasonable disagreement. Id. at 830.

The only argument appellant makes on appeal regarding the court’s admission of Fisch’s outcry testimony is that appellant’s mother, rather than Fisch, was the first person, eighteen years of age or older, to whom Jane made a statement describing the offense. It is undisputed that Jane first told her mother about the abuse, but the State argues that Jane did not disclose sufficient details to her mother to describe the alleged offense. See Garcia v. State, 792 S.W.2d 88, 91 (Tex.Crim.App.1990). The indictment in this case alleged that appellant committed the offense of aggravated sexual assault of a child by intentionally or knowingly causing the penetration of Jane’s sexual organ. See Tex. Penal Code Ann. § 22.021(a)(l)(B)(i) (West 2000).

A child’s description of the alleged offense “must be more than words which give a general allusion that something in the area of child abuse was going on.” Garcia, 792 S.W.2d at 91. The evidence must clearly show that the victim described the alleged offense to the witness. Id. At the time of the hearing to determine if Fisch was a proper outcry witness, the only evidence before the court about what Jane told her mother came from Jane’s testimony on direct examination. Jane said that she told her mother, “[Appellant] is the one that got me pregnant.” Although this statement may raise an inference of penetration, it does not clearly describe the alleged offense that appellant penetrated Jane’s sexual organ. Compare Thomas v. State, 309 S.W.3d 576, 579 (Tex.App.-Houston [14th Dist.] 2010, no pet.) (holding that the child did not describe the offense of aggravated sexual assault when the child said appellant touched her private areas), Carty v. State, 178 S.W.3d 297, 300-01, 306 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd) (holding that the child did not describe the offense of penetrating the child’s sexual organ when the child said appellant was molesting her), and Castelan v. State, 54 S.W.3d 469, 475 (Tex.App.Corpus Christi 2001, no pet.) (holding that the child did not describe the offense of aggravated sexual assault when he said the defendant “put his thing in through the back”), with Nino v. State, 223 S.W.3d 749, 753 (Tex.App.-Houston [14th Dist.] 2007, no pet.) (holding that the child described the offense of aggravated sexual assault when he said the defendant “made me suck it” and pointed to his penis), and Reed v. State, 974 S.W.2d 838, 841 (Tex.App.-San Antonio 1998, pet. ref'd) (holding that the child described the offense of indecency with a child when the child said the defendant touched her between the legs and underneath her bathing suit)! The trial court had “broad discretion” to determine who was a proper outcry witness, see Garcia, 792 S.W.2d at 92, and we cannot say it was outside the zone of reasonable disagreement to conclude that Fisch was the outcry witness.

Nonetheless, any error in admitting Fisch’s statement would be harmless in this case. The admission of inadmissible hearsay testimony under article 38.072 is nonconstitutional error, and we will consider it harmless if we are reasonably assured that the error did not influence the verdict or had only a' slight effect. See Nino, 223 S.W.3d at 754; Chapman v. State, 150 S.W.3d 809, 814 (Tex.App.Houston [14th Dist.] 2004, pet. ref'd) (citing Garcia v. State, 126 S.W.3d 921, 927 (Tex.Crim.App.2004)); see also Tex.R.App. P. 44.2(b). Accordingly, if the same or similar evidence is admitted without' objection at another point in the trial, the error is harmless. Nino, 223 S.W.3d at 754 (citing Mayes v. State, 816 S.W.2d 79, 88 (Tex.Crim.App.1991)). Here, Fisch’s description of Jane’s statement to the jury was not substantial: “[Jane] had told me that she was raped by her mother’s boyfriend, and she did have a child at that time who was three years old.... ” On the other hand, Jane testifiéd in great detail about the repeated sexual abuse she endured. In particular, she testified about the first time appellant penetrated her vagina with his penis, causing her pain and bleeding. She also testified that appellant was the father of her baby. Paternity testing evidence showed a 99.99% probability that appellant fathered Jane’s child. We are reasonably assured that Fisch’s testimony did not influence the verdict or had only a slight effect. Thus, any error in admitting the statement was harmless. We overrule appellant’s second issue.

C. Chain of Custody of DNA Evidence

In appellant’s third issue, he argues that the trial court erred when it admitted the DNA evidence because the State failed to establish a complete and proper chain of custody. Specifically, he argues that a number of unnamed witnesses “who may have had contact with the DNA samples” did not testify, one named witness who handled the evidence did not testify, and there was insufficient evidence “tracing the delivery and receipt of the FedEx packages” from HPD to Orchid Cellmark.

Appellant has not shown any evidence of tampering or impropriety, and “[without evidence of tampering, most questions concerning care and custody of a substance go to the weight attached, not the admissibility, of the evidence.” Lagrone v. State, 942 S.W.2d 602, 617 (Tex.Crim.App.1997); accord Caddell v. State, 123 S.W.3d 722, 727 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (“Objections regarding theoretical or speculative breaches in the chain, without affirmative evidence of impropriety, go to the weight of the evidence rather than to its admissibility.”). The State need only prove the beginning and end of the chain of custody; it need not show a “moment-by-moment account of the whereabouts of evidence from the instant it is seized.” Reed v. State, 158 S.W.3d 44, 52 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd); accord Caddell, 123 S.W.3d at 727; Porter v. State, 969 S.W.2d 60, 66 (Tex.App.-Austin 1998, pet. ref'd).

Here, there was testimony about the beginning of the chain: Officers Ruiz and Valera said they collected the buccal swabs and delivered them to the HPD property room. There was also testimony from the middle of the chain: Pope said she brought the swabs to the crime lab, and Gincoo said she sent swabs to Orchid Cellmark in Tennessee via FedEx. Finally, there was testimony about the end of the chain: Bullock said that Orchid received the FedEx package, and she analyzed the DNA on the swabs. Further, the various packages and envelopes containing the swabs included the initials of people who handled the swabs. Although appellant suggested to the jury that the swabs may have been handled in a way that could degrade the DNA, he has provided no argument that there was any tampering or impropriety. We overrule appellant’s third issue.

D. Bullock’s Expert Testimony Regarding Paternity Testing

Appellant argues in his fourth issue that the trial court erred in allowing Bullock to testify as an expert. Specifically, appellant argues that the trial court erred in admitting Bullock’s testimony without first making a finding that the testimony was reliable. Because appellant did not request that such a finding be made, object to the trial court’s failure to do so, or object to the testimony on the basis that it was not reliable, we hold that this issue was not preserved.

To preserve error for appellate review, the record must show that the party made a specific objection on the record and received an adverse ruling on that objection. See Tex.R.App. P. 33.1(a); Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App.1991). To make a specific objection, a party must “let the trial judge know what he wants, why he thinks himself entitled to it, and ... do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.” Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.1992). Notwithstanding a party’s failure to make a specific objection, error will be preserved if a specific objection was apparent from the context. See Tex.R.App. P. 33.1(a)(1)(A); see also Tex.R. Evid. 103(a)(1).

A party may challenge expert testimony on at least three specific grounds. First, a party may allege that the witness does not qualify as an expert because the witness lacks the requisite knowledge, skill, experience, training, or education in the subject matter of the expert’s testimony. Vela v. State, 209 S.W.3d 128, 131 (Tex.Crim.App.2006); see Tex.R. Evid. 702. Second, a party may allege that the subject matter of the testimony is inappropriate because it is unreliable. Vela, 209 S.W.3d at 131, 133-34; see Tex.R. Evid. 705(c); Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App.1992). Third, a party may allege that the testimony will not assist the fact finder in deciding the case. Vela., 209 S.W.3d at 131; see Tex.R. Evid. 401, 702. Respectively, these three requirements of expert testimony are commonly referred to as (1) qualification, (2) reliability, and (3) relevance. Vela, 209 S.W.3d at 131. The three requirements raise distinct questions and issues, and an objection based on one of these requirements does not preserve error as to another. Turner v. State, 252 S.W.3d 571, 584 n. 5 (Tex.App.-Houston [14th Dist.] 2008, pet. ref'd) (holding that an objection based on the expert’s qualifications did not preserve the reliability issue). Similarly, if a party objects to expert testimony without identifying one or more of these issues, no error is preserved for our review. Gregory v. State, 56 S.W.3d 164, 182 (Tex.App.-Houston [14th Dist.] 2001, pet. dism’d) (holding that “[objections based simply on Rule 702 and Daubert alone” are general objections that do not preseiwe error).

In addition to challenging an expert on the three grounds discussed above, a party in a criminal case has a procedural right to voir dire an expert under Rule 705(b) of the Texas Rules of Evidence. Under this rule, a trial court must grant a party’s “request to conduct a voir dire examination directed to the underlying facts or data upon which .the opinion is based,” and this examination is conducted outside the presence of the jury. Tex.R. Evid. 705(b). The purpose of this examination is twofold: (1) it allows the defendant to determine the foundation of the expert’s opinion without the fear of eliciting inadmissible evidence in the jury’s presence, and (2) it may supply the defendant with “sufficient ammunition to make a timely objection to the expert’s testimony on the ground that it lacks a sufficient basis for admissibility.” Goss v. State, 826 S.W.2d 162, 168 (Tex.Crim.App.1992); see also Tex.R. Evid. 705(c) (“If the court determines that the underlying facts or data do not provide a sufficient basis for the expert’s opinion under Rule 702 or 703, the opinion is inadmissible.”).

A party’s argument that the trial court failed to conduct a properly requested Rule 705(b) hearing is a distinct argument from one challenging the qualifications of an expert. See Jenkins v. State, 912 S.W.2d 793, 814 (Tex.Crim.App.1993); see also Ghakremani v. State, No. 14-06-00729-CR, 2007 WL 3146723, at *5, *8 (Tex.App.-Houston [14th Dist.] Oct. 30, 2007, pet. ref'd) (mem. op., not designated for publication) (addressing separately the issues of whether the expert was qualified and whether the court improperly denied appellant’s request for a Rule 705(b) hearing). Thus, an objection based on an expert’s lack of qualifications does not preserve for our review the issue of whether the court erred in denying a proper request for a Rule 705(b) hearing. Jenkins, 912 S.W.2d at 814.

Here, appellant filed a pretrial “request for a Rule 705(b) hearing,” in which he requested “before the State puts on any witness from which it expects to solicit [expert] testimony ..., a hearing be held outside the hearing of the jury pursuant to Tex.R. Evid. 705(b) to determine the admissibility of that testimony.” There was no pretrial ruling on this motion. When the State called Bullock to testify at trial, appellant again requested a “705 hearing.” There was a discussion off the record, and then the court retired the jury and allowed counsel for both parties to ask Bullock questions. The court never denied appellant’s request for a Rule 705(b) hearing on the record, nor did the court limit the scope of this hearing. During the hearing, both parties asked Bullock questions primarily about her qualifications, rather than anything about the data underlying her conclusions or the reliability of her paternity testing. Appellant asked two questions — one about Bullock’s continuing education and another about her publications. When appellant’s counsel said, “I have no further questions,” the court said, ‘Tour objection is overruled. She is qualified to testify.”

Nowhere in the record do we see an objection to the reliability or relevance of Bullock’s testimony, and the context provided by the hearing outside the jury’s presence does not suggest that appellant objected on either of these grounds. Although there was no objection on the record to Bullock’s qualifications, it may be apparent from the context that appellant objected on this ground because those were the type of questions both parties asked Bullock and the court specifically overruled an “objection” and said Bullock was “qualified” to testify. See Martin v. State, 246 S.W.3d 246, 258-59 (Tex.App.Houston [14th Dist.] 2007, no pet.) (looking to the trial court’s statement admitting expert testimony to determine the context of an objection alleging that an expert was testifying “outside his range”).

But appellant does not argue on appeal that Bullock was unqualified. Rather, he argues that the court erred when it held an “abbreviated” and “truncated” Rule 705 hearing “restricted to the qualifications of the witness without requiring the State of Texas to establish” the reliability of Bullock’s testimony. The record does not show, however, that the trial court denied appellant’s request for a Rule 705 hearing. In fact, it held a hearing outside the jury’s presence. If the court impermissibly limited this hearing in scope, it was appellant’s duty to bring this issue to the trial court’s attention and show error in the record. See Ortiz v. State, 144 S.W.3d 225, 230 (Tex.App.Houston [14th Dist.] 2004, pet. ref'd) (en banc) (unanimous decision) (explaining that an appellant bears the “burden of developing a sufficient record in the trial court to demonstrate reversible error on appeal”). Further, appellant never objected to the reliability of Bullock’s testimony. Without such an objection, the State was not required to prove the reliability of Bullock’s testimony, nor was the court required to hold the State to its burden of proof. See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex.1995) (“Once the party opposing the [expert testimony] objects, the proponent bears the burden of demonstrating its admissibility.”); 2 Steven Goode et al., Texas PRACTICE: GUIDE TO THE TEXAS RULES OF Evidence § 702.7, at 73-74 (3d ed. 2002) (“Once an objection is made, the proponent of the testimony bears the burden of demonstrating its reliability.”). Finally, the implied objection based on Bullock’s qualifications did not preserve error related to the reliability of Bullock’s testimony or the court’s alleged failure to hold a Rule 705(b) hearing. See Jenkins, 912 S.W.2d at 814 (holding that no Rule 705(b) voir dire issue was preserved when the appellant objected to the expert’s qualifications); Stewart v. State, 995 S.W.2d 251, 258 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (holding that no reliability issue was preserved when the appellant objected to the expert’ qualifications).

Accordingly, because appellant’s fourth issue was not preserved, it is overruled.

E. Sufficiency of the Evidence

In his fifth and sixth issues, appellant argues that the evidence is legally and factually insufficient to support his conviction. While this appeal was pending, the Court of Criminal Appeals held that only one standard should be used to evaluate the sufficiency of the evidence in a criminal case: legal sufficiency. Brooks v. State, 323 S.W.3d 893, 894 (Tex.Crim.App.2010) (plurality opinion); id. at 912 (Cochran, J., concurring). Accordingly, we review the sufficiency of the evidence in this case under a rigorous and proper application of the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), legal sufficiency standard. Brooks, 323 S.W.3d at 906 (plurality opinion).

When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Id. at 898. This court does not sit as a thirteenth juror and may not substitute its judgment for that of the fact finder by reevaluating the weight and credibility of the evidence. Id. at 901. We defer to the fact finder’s resolution of conflicting evidence unless the resolution is not rational. Brooks, 323 S.W.3d at 902 n.19, 906. Our duty as a reviewing court is to ensure that the evidence presented actually supports a.conclusion that the defendant committed the crime. Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007).

Appellant was charged with the aggravated sexual assault of a child by intentionally or knowingly causing the penetration of Jane’s sexual organ. See Tex. Penal Code Ann. § 22.021(a)(l)(B)(i). Jane testified in detail how appellant penetrated her sexual organ. She said that she was seven or eight years old “when he put his penis inside of my vagina.” Appellant notes the contradictory statement Jane made when she identified the father of her baby as an elementary school student named “John.” Appellant further notes that Jane’s outcry to her principal was made only when Jane faced discipline for getting into a fight. But these arguments primarily concern Jane’s credibility as a witness, not the sufficiency of the evidence. The jury was free to weigh this evidence, and we will not disturb the jury’s credibility determinations on appeal. See Brooks, 323 S.W.3d at 901.

Appellant also argues that the paternity testing evidence does not satisfy the legal sufficiency standard because it rested on several assumptions to reach the 99.99% probability of paternity. We need not decide whether a 99.99% probability of paternity alone is sufficient to convict appellant because Jane’s testimony by itself was legally sufficient evidence. See Bargas v. State, 252 S.W.3d 876, 888 (Tex.App.-Houston [14th Dist.] 2008, no pet.) (holding the evidence sufficient despite the child victim’s “unsophisticated terminology and rough time-frame of the event” and the lack of any other evidence because the child provided a detailed account of the abuse). The DNA evidence was not necessary to convict appellant in this case. See id. (“Moreover, physical evidence is not required when, as in this case, the complainant provides ample testimony to establish that a sexual assault occurred.”). Accordingly, the evidence was legally sufficient, and we overrule appellant’s fifth and sixth issues.

Having overruled all of appellant’s issues, we affirm the trial court’s judgment.

      . To protect the privacy of the child complainant, we refer to the child by a pseudonym.

      . For purposes of this appeal, we presume without deciding that an objection to "relevance” preserves the alleged error that testimony does not “assist the trier of fact.” Initially, the Court of Criminal Appeals suggested that relevancy under Rule 401 was a different inquiry from assist the trier of fact under Rule 702. See Morales v. State, 32 S.W.3d 862, 865 (Tex.Crim.App.2000) (noting the distinction between Rule 401 relevancy and the "fit” requirement of Rule 702 and explaining that a trial judge must find that "expert testimony meets both the Rule 401 and Rule 702 requirements”); Yount, 872 S.W.2d at 708-09 & n. 4 (noting that the question of whether testimony is helpful to a jury is a separate issue from relevancy); Cohn v. State, 849 S.W.2d 817, 819 & n. 4 (Tex.Crim.App.1993) (holding the testimony was relevant under Rule 401 but noting "[wjhether that testimony was helpful to a jury” under Rule 702 "may be another question”). Still, recent opinions have suggested that relevancy is distinct from the "assist the trier of fact” requirement. See Vela v. State, 209 S.W.3d 128, 130-31 (Tex.Crim.App.2006) (explaining that Rules 104(a), 702, and 401 provide the basis for the three requirements that an expert be qualified and the testimony be reliable and relevant). Although the court in Vela distinguished the Rule 702 "assist the trier of fact” requirement from the Rule 401 relevancy requirement, it then stated that the “assist the fact-finder" requirement was commonly referred to as the "relevance” condition. Id. at 131 (describing the three conditions for expert testimony as qualification, reliability, and relevance). Thus, a party's objection based on "relevance” presumably would let the trial judge know that he or she wants the testimony excluded because it does not assist the trier of fact (rather than, or in addition to, the reason that it does not tend to make the existence of a fact of consequence more or less probable). See Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.1992) (explaining that to preserve error, a party must inform the trial court "what he wants [and] why he thinks himself entitled to it”). We need not decide today whether an objection based on "relevance” preserves for appeal the issue of whether expert testimony assists the fact finder because appellant’s argument fails on the merits.

      . Prior to Ruiz testifying about how children cry out to multiple adults, Ruiz testified about questions that can be asked of a child to help determine if the child is telling the truth. Appellant now argues that "[t]he juxtaposition of the questions asking Officer Ruiz if there were safeguards/questions that could determine the truthfulness of the child, with the officer’s responses that the complainant's actions in this case were appropriate, constitute the 'functional equivalent' of opinion testimony regarding the truthfulness of the child complainant's allegations.” But appellant did not object to the “truthfulness” testimony, and Ruiz never testified that anyone asked Jane these questions. The testimony immediately before the objected-to question was about the action of a child telling multiple adults about abuse. Further, Ruiz testified about several different topics between the initial “truthfulness” testimony and the statement that Jane's actions were appropriate. Appellant did not preserve any error regarding the earlier testimony about how to determine if a child is telling the truth.

      . Accordingly, we do not address the other statutory requirements, including the issue of whether Jane’s statement to Fisch described the offense with sufficient detail. See, e.g., Hayden v. State, 928 S.W.2d 229, 231 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd) (concluding that the child’s statement to the first person did not describe the alleged offense without addressing whether the statement to the second person was sufficient); Schuster v. State, 852 S.W.2d 766, 768 (Tex.App.-Fort Worth 1993, pet. ref'd) (same); see also Zarco, 210 S.W.3d at 830-31 (addressing only the elements of the statute that the parties disputed on appeal).


text:
    In re Scott Louis KECK, Appellant. Scott Louis Keck, Appellant, v. Shannon Michelle Loftin, Appellee.
    Nos. 14-10-00565-CV, 14-10-00178-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 9, 2010.

      Rashaun Nicole Stagg, Fay Recilla James, Houston, for appellant in No. 14-10-00565-CV.
    Rashaun Nicole Stagg, Houston, for appellant in No. 14-10-00178-CV.
    Anne Marie Finch, Shelly Whatley Durham, Houston, for appellee.
    Panel consists of Chief Justice HEDGES, Justice YATES, and Senior Justice MIRABAL.

       Senior Justice Margaret Garner Mirabal sitting by assignment.

   OPINION

ADELE HEDGES, Chief Justice.

Scott Louis Keck brings an appeal and a petition for writ of mandamus from the trial court’s entry of a protective order prohibiting him from seeing his minor child. The application for the protective order was filed by the child’s mother, Shannon Michelle Loftin. In his appeal and petition, Keck makes several allegations of error by the trial court, including that the court (1) erred in considering a motion as well as additional evidence at a hearing without notice to Keck, (2) abused its discretion in holding that the evidence supported the issuance of a protective order, and (3) erred in permitting a particular attorney to testify and cross-examine a witness. We deny the petition for writ of mandamus and reverse and remand the trial court’s order.

Background

On June 30, 2003, the 245th District Court in Harris County issued a final order in a suit to establish parentage of the minor child. In the orders, the court found that Loftin and Keck were the parents of the minor child, named them joint managing conservators, granted Loftin the exclusive right to establish the child’s residence, and granted Keck a possession order. On December 7, 2007, the 245th District Court issued modified orders respecting the child, naming Loftin sole managing conservator and Keck possesso-ry conservator, and ordering that Keck’s access to the child be through supervised visitation only. On January 9, 2008, the 245th District Court issued a protective order against Keck to continue until January 9, 2010. On September 23, 2009, Lof-tin filed a petition to terminate Keck’s parental rights in the 245th District Court. This action is apparently still pending in that court.

On November 19, 2009, Loftin filed an application for another protective order in the 280th District Court of Harris County. Earlier in 2009, the 280th District Court was designated the Domestic Violence Court for Harris County, thus becoming the proper court for filing applications for protective orders under the Family Code in that county, irrespective of any other action pending in another court. See generally Tex. Gov’t Code § 24.112(h) (authorizing legislation). The judge of the 280th District Court set the application for a hearing on December 8, 2009. During this hearing, both sides presented evidence and made arguments. Loftin’s allegations included that Keck had sexually abused the minor child and had violated prior protective orders.

At the conclusion of the hearing, the judge announced her findings that (1) family violence had occurred and was likely to occur in the future, and (2) the protective order should be granted "with a modification permitting supervised visitation between Keck and the minor child. The judge then requested that a proposed order be provided immediately or at least as soon as possible. Loftin’s counsel asked the judge to reconsider and a discussion ensued regarding having the person who would supervise the visitation report back to the court regarding his or her observations. It was then mentioned that attorney Charlotte Rainwater had previously been appointed as amicus attorney in earlier proceedings in the 245th District Court but that she had not been appointed in the termination proceeding then pending in that court, although a motion to so appoint her was on file with that court. The possibility that Rainwater could be present at the visitations was discussed, but no agreement was reached and no order was made on this issue.

The judge instructed the parties to return on December 16 at 8 a.m., having worked together to accomplish the judge’s goal of having the visitations supervised by someone who could then report to the court. The judge further instructed that Keck register with a supervised visitation facility (specifically, the Victim Assistance Centre’s SAFE Program) and that an order be prepared for her signature.

At 8 a.m. on December 16, Loftin’s counsel appeared in the 280th District Court and announced to the judge that she had filed a Motion to Reconsider the coui’t’s prior ruling. A Motion to Reconsider appears in the clerk’s record. It is file-stamped December 16, 2009, and contains a certificate of service stating that it was hand-delivered to Keck on that same date. With the court’s permission, the attorney then presented testimony in support of the motion from Tracy Dow, a clinical psychologist who had been seeing the minor child for several years. According to Dow, the minor child disclosed that Keck had sexually assaulted her.

Also present at this hearing was attorney Charlotte Rainwater, who represented to the court that on December 15, she was appointed as amicus attorney for the minor child in the parental rights termination action pending in the 245th District Court. The trial court had Rainwater sworn in as a witness and permitted her to question Dow. At the conclusion of the hearing, the judge signed a pi*otective order, which, among other things, prohibited Keck from having contact with the minor child.

Neither Keck, nor any attorney representing Keck, appeared at the 8 a.m. hearing. The record reflects, however, that Keck appeared before the court at 10 a.m. and explained that he had thought the hearing was set for 10 a.m. The judge declined to reconsider her ruling at that time. Subsequently, Keck filed a motion for new trial, arguing primarily that he did not receive proper notice under Texas Rules of Procedure 21 and 21a for matters considered at the December 16 hearing. The trial court denied the motion.

Appeal or Mandamus

As indicated above, Keck filed both an appeal and a petition for writ of mandamus, and the parties dispute which is the proper vehicle for review. Section 81.009 of the Texas Family Code states that “a protective order rendered under this subtitle may be appealed” unless it is “rendered against a party [ (1) ] in a suit for dissolution of a marriage,” or (2) “in a suit affecting the parent-child relationship [SAPOR].” Tex. Fam.Code § 81.009. If either of the exceptions applies, then appeal of the protective order must await issuance of a final, appealable order in the underlying case. Id. There was apparently never a marriage between Keck and Loftin, so the first exception does not apply. An action to terminate Keck’s parental rights was pending at the time the application for a protective order was filed, and such a suit is indeed a SAPCR. See id.. § 101.032(a). However, the termination action was filed in a different court (the 245th District Court) and with a different cause number than the protective order at issue here (which was filed in the 280th District Court). It therefore cannot be said that the protective order was issued “in” the termination action. Because neither of the section 81.009 exceptions apply in this case, the protective order is appealable under that Family Code section. Accordingly, we will consider the merits of Keck’s appeal and deny the petition for writ of mandamus.

Notice

Keck initially contends that he did not receive proper notice of the proceedings that occurred at the 8 a.m. hearing on December 16, 2009. Although he does not dispute that he had notice of the hearing itself, given by the court at the prior hearing on December 8, he argues that he never received notice that the court was going to entertain Loftin’s Motion to Reconsider or reopen the evidence. To the contrary, he asserts, the court’s notice on December 8 indicated that the December 16 hearing was only for the purpose of entering a final order based on the court’s holdings at the conclusion of the December 8 hearing.

Under Rule 21 of the Texas Rules of Civil Procedure:

An application to the court for an order and notice of any hearing thereon, not presented during a hearing or trial, shall be served upon all other parties not less than three days before the time specified for the hearing unless otherwise provided by these rules or shortened by the court.

Tex.R. Civ. P. 21. It is clear from the record that Keck was not served with a copy of the motion to reconsider and did not receive notice that the court was going to consider the motion or additional evidence until the very day of the hearing, December 16. Indeed, the only indication in the record of when Keck received notice suggests that he received it only after the conclusion of the hearing on the motion. Moreover, according to the reporter’s record of the December 8 hearing, the only stated purpose for the December 16 hearing was entry of an order reflecting the court’s December 8 findings. Consequently, the holding of a hearing on December 16, in which the motion to reconsider was considered along with new evidence in support thereof, violated Rule 21. See, e.g., Prototype Mach. Co. v. Boulware, 292 S.W.3d 169, 172 (Tex.App.-San Antonio 2009, no pet.) (reversing and remanding trial court’s order for failure to provide three days notice of hearing under Rule 21).

To the extent the record can be read as suggesting that the court shortened the notice period as permitted by section 21, the court abused its discretion in so doing. The record does not reflect any basis for shortening the notice period. Keck was left without an ability to prepare a response to the motion or the new evidence. See, e.g., Petitt v. Laware, 715 S.W.2d 688, 690-91 (Tex.App.-Houston [1st Dist.] 1986, writ ref d n.r.e.) (holding court did not abuse its discretion in shortening notice period where exigent circumstances requiring a shorter period existed and the hearing in question did not involve an ultimate matter in the case but only a question of procedure).

Because Keck did not have proper notice of the December 16 proceedings, we reverse the trial court’s protective order and remand for further proceedings in accordance with this opinion. Among alternatives in his prayer, Keck requests that this court enter an order reflecting the trial court’s findings at the December 8 hearing, ie., that he is permitted supervised visitation. We decline to do so. But this opinion should not be construed as suggesting that the trial court cannot receive additional evidence or reconsider its initial findings upon proper notice. Because of our holding on the notice issue, we need not consider any of Keck’s other arguments.

We deny the petition for writ of mandamus and reverse and remand the trial court’s order.

      . We further note that to hold otherwise, i.e., that the protective order could not be appealed until a final, appealable order had been issued in the termination action, would generate ambiguities concerning both the notice of appeal and preparation and filing of the record for appeal. This is so because the case would be spread between two trial courts and two unrelated cause numbers. However, a plain reading of the statute necessitates our holding without reference to these potential procedural irregularities.