text:
    Maria Lourdes RODRIGUEZ, Appellant, v. Duncan M. CROWELL, Appellee.
    No. 08-07-00269-CV.
    Court of Appeals of Texas, El Paso.
    Dec. 22, 2009.
    Rehearing Overruled Jan. 20, 2010.

      Manuel E. Solis, Houston, TX, for Appellant.
    Jeffrey S. Alley, Windle, Hood, Alley, Norton, Brittain & Jay, LLP, El Paso, TX, for Appellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

This appeal involves a latent occupational disease claim involving a bacterial infection known as psittacosis. Psittacosis can be transmitted to humans from birds such as pigeons, parrots, parakeets, chickens, and turkeys. Transmission generally occurs when humans inhale infected particles from bird droppings. Such is the case here, and pigeons were the carriers.

Maria Lourdes Rodriguez filed suit against Duncan M. Crowell under legal theories of negligence and premises liability. The trial court granted Crowell’s motion for summary judgment based on a limitations defense and denied Rodriguez’s motion for leave to amended her pleadings. For the reasons that follow, we affirm.

FACTUAL BACKGROUND

Maria Rodriguez worked for the Texas Department of Human Services for twelve years. She terminated her employment in late 2003 upon her doctor’s instructions. She began working at the office building in question around 1995. A year or two later, she started experiencing shortness of breath and a general feeling of malaise. A physieian treated her for depression, but her respiratory difficulties continued. She noticed that she couldn’t dance and she couldn’t walk. She also suffered from seizures beginning in May 2001. She consulted a neurologist, Dr. A.B. Baca, and visited the Barrow Neurology Clinic in the summer of 2002. While the cause of the seizures remained undetermined, Rodriguez took medication for her symptoms between 2001 and 2003.

Rodriguez began to notice that her health condition improved whenever she left the building. She volunteered for assignments to travel out of town because she felt ill at her assigned workplace. The record indicates that this general feeling dated back to 1997. Finally at some point in 2008, she presented to Dr. Ambrose Aboud. By July 11 of that year, Dr. Aboud had diagnosed her -with psittacosis based on a history of shortness of breath and a biopsy of a nodule in her lung. No other doctor has ever diagnosed Rodriguez with a work-related condition, and no physician — not even Dr. Aboud — has attributed the seizure disorder to psittacosis.

Rodriguez admittedly noticed pigeons all around her office building, including the break area. She told Dr. Aboud that the birds roosted in the building between the ceiling and the roof. Over the years, there was a consistent presence of dust and debris filtering down from the ceiling of her workplace. She was also aware that coworkers were complaining about air quality in the building and that emails were circulated concerning “air quality issues”. She customarily deleted them thinking that they addressed'the air quality outside of the building. On March 5, 2002 Rodriguez received a specific email from the State of Texas regarding employment health concerns and workers’ compensation procedures.

Rodriguez filed suit on February 18, 2005 against Yandell Office Partnership, E.I.C. Co., and Prima Corporation, Inc. Also named as defendants were Bruce Meyer, Douglas Crowell, and Charles Hammond, individually and doing business as either Yandell Office Partnership or E.I.C. Rodriguez also joined the estates or the heirs of three deceased individuals who had allegedly done business as Yandell Office Partnership or E.I.C. It was on this basis that Appellee Duncan Crowell was sued as the heir of Robert Crowell, deceased. All of the other defendants were eventually non-suited and Crowell remained as the sole defendant. Summary judgment was granted in his favor on June 28, 2007.

PROPRIETY OF SUMMARY JUDGMENT

Standard of Review

The standard of review for traditional summary judgment is well established. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex.1985). The moving party carries the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Browning v. Prostok, 165 S.W.3d 336, 344 (Tex.2005); Duran v. Furr’s Supermarkets, Inc., 921 S.W.2d 778, 784 (Tex.App.-El Paso 1996, writ denied). Evidence favorable to the non-mov-ant will be taken as true in deciding whether there is a disputed issue of material fact. Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex.2004); Duran, 921 S.W.2d at 784. All reasonable inferences, including any doubts, must be resolved in favor of the non-movant. Id.; Duran, 921 S.W.2d at 784.

A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense. KPMG Peat Marwick v. Harrison County Housing Finance Corp., 988 S.W.2d 746, 748 (Tex.1999). Thus, the defendant must (1) conclusively prove when the cause of action accrued, and (2) negate the discovery rule, if it applies and has been pled or otherwise raised, by proving as a matter of law that there is no genuine issue of material fact about when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered, the nature of its injury. Id. If the movant establishes that the statute of limitations bars the action, the non-movant must then adduce summary judgment proof raising a fact issue in avoidance of the statute of limitations. Id.

Statute of Limitations

A plaintiff must commence a suit for personal injuries within two years after the day the cause of action accrues. See Tex.Civ.Prac. & Rem.Code Ann. § 16.003(a)(Vernon Supp. 2009). Because the accrual date is not defined by statute, the courts are charged with the responsibility of articulating the rules governing accrual. See, e.g., S.V. v. R.V., 933 S.W.2d 1, 4 (Tex.1996); see also Developments in the Law: Statutes of Limitations, 63 Harv. L.Rev. 1177, 1185 (1950). In most cases, a cause of action accrues when a wrongful act causes an injury, regardless of when the plaintiff learns of that injury or whether all resulting damages have yet to occur. See S.V., 933 S.W.2d at 4. However, in those rare cases when “the nature of the injury incurred is inherently undis-coverable and the evidence of injury is objectively verifiable,” the Texas Supreme Court applies a judicially crafted exception to the general rule of accrual, known as the discovery rule. Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex.1996). Under this rule, a cause of action does not accrue until a plaintiff knows or, through the exercise of reasonable care and diligence, “should have known of the wrongful act and resulting injury.” S.V., 933 S.W.2d at 4, citing Trinity River Auth. v. URS Consultants, Inc., 889 S.W.2d 259, 262 (Tex.1994)). Once these requirements are satisfied, limitations commence even if the plaintiff does not know the exact identity of the wrongdoer. See, e.g., Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 344 n. 3 (Tex.1992); Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990).

The Texas Supreme Court applied these rules and principles to latent occupational diseases in the two companion cases of Childs v. Haussecker and Martinez v. Humble Sand & Gravel, which were decided together and are reported at 974 S.W.2d 31, 36 (Tex.1998). Both cases involved silicosis, a latent occupational disease. Id. The court stated the summary judgments would only be proper if the movants negated the discovery rule by establishing that no genuine issue of material fact existed concerning when the non-mov-ants experienced symptoms for a degree or for a duration that would have put a reasonable person on notice that he suffered from some injury and he discovered or, in the exercise of reasonable diligence should have discovered, the likely casual connection between the symptoms and the occupational exposure. Id. The commencement of the limitations period may be determined as a matter of law if reasonable minds could not differ about the conclusion to be drawn from the facts in the record. Id.

The Facts of Childs v. Haussecker

Joseph Haussecker was a sandblaster by trade and began working for AMF Tubo-scope in 1961. In 1967, Haussecker visited his family doctor and complained about shortness of breath, wheezing, coughing, and spitting up blood. He was prescribed medication for the wheezing. When he consulted his physician the next year, he was told he suffered problems with his prostate gland. His prolonged fever and cough was attributed to lymphoma or Hodgkin’s disease. In June 1968, a lung specialist performed a bronchoscopy and diagnosed a granuloma of the right lung. Both the family physician and the lung specialist specifically told Haussecker his condition was not work-related. Over the next ten years, his health deteriorated. He stopped working in 1978 and began receiving social security disability. In 1988, a second lung specialist suspected Haussecker had silicosis. A lung biopsy in 1990 confirmed the diagnosis.

In its opinion, the Supreme Court noted that Haussecker knew he was injured long before 1988. Childs, 974 S.W.2d at 44. While he might not have known the precise nature of the injury, his prolonged and progressively debilitating symptoms indicated a serious condition. Id. But the court questioned at what point Haussecker connected or reasonably should have connected his symptoms to his work environment. Id. at 45. He had diligently attempted to ascertain the cause of his health problems by consulting several doctors, all of whom told him his condition was not work-related. On the other hand, Haussecker knew that several of his coworkers had respiratory health problems similar to his, including one who died of silicosis. In fact, Haussecker filed a worker’s compensation claim alleging he had silicosis. Additionally, one of his doctors advised him not to return to his workplace. Id. at 45-46.

The court held that when medical experts consistently reject a layperson’s suspicions by expressly refuting an occupational connection or by exclusively suggesting causes that are not work-related, a fact question ordinarily arises about what a plaintiff should reasonably know and what further action the plaintiff should have taken, even if the plaintiff knows that co-workers suffer from similar symptoms. Because reasonable minds could differ as to when Haussecker knew or should have known through the exercise of reasonable diligence about a likely casual connection between his symptoms and his occupational exposure, the defendant was not entitled to judgment as a matter of law based on limitations. Id. at 46.

The Facts of Martinez v. Humble Sand & Gravel

Jose Martinez also worked as a sandblaster from 1978 until 1984. In 1989, he filed a workers’ compensation claim for “a lung disease arising out of an in the course of his employment.” On the claim form, he stated that the disease first manifested a month earlier. He admitted in his deposition that the claim was merely a precaution because while he was experiencing only minor problems, his brother had been diagnosed with silicosis four years earlier. Martinez first consulted a doctor in September 1990. Dr. Wiesenfield recommended a biopsy, but Martinez could not afford it. The procedure was performed a year later and Martinez was diagnosed with silicosis. He filed suit in 1992.

In its opinion, the Supreme Court faulted Martinez for not diligently seeking medical treatment for a year after his breathing problems first appeared. Martinez, 974 S.W.2d at 47. But Humble Sand offered no evidence that a diligent investigation would have led Martinez to discover his occupational illness before 1990. It thus concluded that a fact question remained with respect to whether Martinez knew or should have known through the exercise of reasonable diligence that his injury was likely work-related before 1990.

Articulation of the Rule

In the Childs and Martinez companion cases, the Supreme Court articulated the rule to be applied in the context of latent occupational diseases:

We therefore hold that the approach that best balances the interests implicated in latent occupational disease cases is one that defers accrual until a plaintiffs symptoms manifest themselves to a degree or for a duration that would put a reasonable person on notice that he or she suffers from some injury and he or she knows, or in the exercise of reasonable diligence should have known, that the injury is likely work-related. Thus, in cases involving latent occupational diseases, ‘discovery of the injury’ should not be equated with a plaintiffs discovery (1) of the precise name of the disease that is causing his symptoms or (2) that the disease is permanent. The seriousness of a personal injury need not be fully apparent or even fully developed in order to commence the statute of limitations.

Childs, 974 S.W.2d at 40-41. The accrual of a cause of action is not dependant on a confirmed medical diagnosis because a plaintiff whose condition has not yet been affirmatively diagnosed by a physician can have or, in the exercise of reasonable diligence could have, access to information that requires or would require a reasonable person to conclude she likely suffers from a work-related illness. Id. at 42. Even if the plaintiff lacks such information, her cause of action will accrue if the absence of due diligence is responsible for the deficiency. Id. On the other hand, “a latent occupational disease cause of action should not be deemed to accrue absent some objective verification of a casual connection between injury and toxic exposure, provided that the failure to obtain that verification is not occasioned by a lack of due diligence.” Id. at 43. Therefore, a diligent plaintiffs mere suspicion or subjective belief that a casual connection exists between his exposure and his symptoms is insufficient to establish accrual as a matter of law. Id.

Analysis

Rodriguez argues that her claim accrued in July 2003 when Dr. Aboud diagnosed the psittacosis. She contends that the evidence shows that she became ill at work and only attributed it to her exposure to the bird droppings in hindsight. She sought medical treatment in 2002, but no cause was determined. And she maintains that prior to Dr. Aboud’s diagnosis in 2003, no other physician ever connected her medical condition to her workplace environment. Finally, she argues that the emails circulated to employees did not put her on alert that the external bird waste was causing employees to have respiratory problems. Given the summary judgment evidence, she concludes that reasonable minds could differ about when she knew or should have known through the exercise of reasonable diligence about the likely casual connection between her symptoms and her occupational exposure.

Crowell responds that the record clearly reflects that Rodriguez felt ill and suffered shortness of breath, a symptom of psittacosis, since at least 1996 or 1997. Her symptoms were severe enough that she went to a doctor and was diagnosed with depression, another symptom related to psittacosis. She knew before early 2002 that her co-workers were complaining about air quality issues. She was aware that her employer sent emails directing the employees to seek medical attention and instructing them how to file worker’s compensation claims. Moreover, Rodriguez suspected her physical problems were related to her workplace since the late 1990’s and she purposefully sought out of town assignments.

We agree with Crowell. Viewing the evidence in Rodriguez’s favor, the record establishes that her symptoms manifested to a degree and for a duration that would put a reasonable person on notice that she had been injured and that she knew or should have known that the injury was likely work-related. While her physicians did not deliver an ultimate diagnosis of psittacosis until 2002, the law does not require a final diagnosis. Childs, 974 S.W.2d at 42. The evidence demonstrates that Rodriguez had more than a mere subjective belief and had both reason to believe and objective verification that she had been injured no later than March 2002. Because she waited more than two years after her cause of action accrued, her claim is barred by limitations. See Tex.Civ.Prac. & Rem.Code Ann. § 16.008(a). We overrule Point of Error One.

SPECIAL EXCEPTIONS AND MOTION FOR LEAVE

Rodriguez filed her petition on February 18, 2005. On July 11, 2006, Crowell filed his first amended answer which contained a verified denial, affirmative defenses, and special exceptions. He specifically claimed “there is no viable cause of action plead against Duncan M. Crowell” and asked the court to require Rodriguez to amend her pleadings so as to state a cause of action against him. On April 4, 2007, Crowell filed a motion for summary judgment claiming that Rodriguez’s lawsuit was barred by the two-year statute of limitations. He also alleged that her live petition lacked specific allegations against him.

At the hearing, the trial court delayed ruling on the merits of the motion for summary judgment and asked the parties for additional briefing regarding numerous issues. One of the matters Rodriguez briefed was the propriety of special exceptions in the context of a summary judgment proceeding. Contemporaneous with the filing of her trial brief, Rodriguez filed a motion for leave to amend her pleadings. The trial court granted summary judgment and denied Rodriguez’s motion for leave to amend.

Rodriguez brings three points of error related to Crowell’s special exceptions and the trial court’s denial of her motion for leave to amend. In Point of Error Two, she claims Crowell waived his special exceptions by not obtaining a written order such that they cannot serve as the basis of either the summary judgment relief granted by the trial court or the court’s rejection of her efforts to plead her cause with more specificity. But there is no evidence in the record to support her assertion that the trial court relied on the special exceptions to grant the motion for summary judgment. The final order is silent as to the grounds for granting the summary judgment. Where the trial court’s judgment does not specify the ground or grounds relied upon for its ruling, the summary judgment must be affirmed on appeal if any of the theories advanced is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). Here, the trial court could have relied on the running of the statute of limitations to grant summary judgment. We overrule Point of Error Two. We overrule Point of Error Three for the same reason. Rodriguez suggests that the trial court abused its discretion in dismissing her suit based on insufficient pleadings without allowing her an opportunity to amend. Once again, the final order does not support her assumption that the trial court granted summary judgment based on her failure to state a claim.

Finally, in Point of Error Four, Rodriguez avers that the trial court abused its discretion by denying her motion for leave to amend her pleadings. We review the court’s ruling for an abuse of discretion. State Bar of Texas v. Kilpatrick, 874 S.W.2d 656, 658 (Tex.1994). A court has no discretion to refuse an amendment unless the opposing party presents evidence of surprise or prejudice, or the amendment asserts a new cause of action or defense, and thus is prejudicial on its face, and the opposing party objects to the amendment. Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex.1990), citing Hardin v. Hardin, 597 S.W.2d 347, 350-51 (Tex.1980). The burden of showing prejudice or surprise rests on the party resisting the amendment. Greenhalgh, 787 S.W.2d at 939. An amendment is mandatory if it is merely procedural in nature such as conforming the pleadings to the evidence at trial. Stephenson v. LeBoeuf, 16 S.W.3d 829, 839 (Tex.App.-Houston [14th Dist.] 2000, pet. denied), citing Chapin & Chapin, Inc. v. Texas Sand & Gravel Co., 844 S.W.2d 664, 665 (Tex.1992). An amendment is not mandatory if it changes the nature of the trial. See Chapin, 844 S.W.2d at 665. A proposed trial amendment that asserts a new cause of action may be prejudicial on its face, but this does not make it prejudicial as a matter of law. LeBoeuf, 16 S.W.3d at 839. The amendment must be evaluated in the context of the entire case. Id. To be prejudicial, the amendment must reshape the nature of the trial, the opposing party could not anticipate it in light of the development of the case up to the time the amendment was requested, and the opposing party’s presentation of the case would be detrimentally affected by the filing of the amendment. Id. The question is not whether the opposing party did in fact anticipate it, but rather whether it could have been anticipated. Id. It is well established that a party may amend its pleading after verdict but before judgment. Greenhalgh, 787 S.W.2d at 940.

While Crowell made no showing of surprise or prejudice, the amendment would have no impact on the running of the statute of limitations. Had Rodriguez amended the petition to include new claims not subject to a similar statute of limitations, then Crowell would be able to clearly demonstrate both surprise and prejudice. See Greenhalgh, 787 S.W.2d at 939, citing Hardin, 597 S.W.2d at 350-51. We overrule Point of Error Four and affirm the judgment of the trial court.


source: Caselaw Access Project

author: ANN CRAWFORD McCLURE, Justice. ANN CRAWFORD McCLURE, Justice,

license: Public Domain

text:
    In the Interest of D.J.R., E.N.R., and A.D.R., Minor Children.
    No. 08-07-00354-CV.
    Court of Appeals of Texas, El Paso.
    Jan. 6, 2010.
    Opinion Denying Rehearing Feb. 17, 2010.

      John Gates, El Paso, TX, for Appellant.
    Bernardo Gonzalez, Attorney at Law, Patrick A. Lara, Law Office of Patrick Lara, Richard Deck, Assistant County Attorney, Theresa Caballero, Celia Villase-nor, El Paso, TX, Trevor Woodruff, Office of General Counsel, TDFPS, Austin, TX, for Appellees.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

This appeal arises from the termination of parental rights. The trial court found by clear and convincing evidence that termination of the parent-child relationship between D.R. and his children was in the children’s best interest and that Appellant had engaged in acts or conduct that satisfied one or more of the statutory grounds. D.R. complains of evidentiary error, and assails the constitutionality of Section 263.405 of the Texas Family Code. For the reasons that follow, we affirm.

FACTUAL/PROCEDURAL BACKGROUND

D.R. is the biological father of the three children at issue. His seven-month-old daughter passed away on March 15, 2006 and D.R. was arrested and charged with capital murder in her death. On June 20, 2006, the Department of Protective and Regulatory Services filed suit to terminate his parental rights on the statutory grounds that (1) he placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child, and (2) that he engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the child. On November 14, 2007, the trial court judge signed the final “Order of Termination” which incorporated by reference and rendered final the interlocutory decree of termination dated September 25, 2007. An amended notice of appeal and a notice of points to be presented on appeal, with objection, was timely filed on November 27, 2007. Following a hearing, the trial court determined that the stated points for appeal were frivolous. A notice of accelerated appeal was timely filed on December 13, 2007.

We ordered the parties to submit briefing related to the trial court’s determination that the appeal was frivolous, and following submission of those briefs, we reversed and ordered that the parties brief the merits. The issues, having been fully briefed, are now ripe for consideration.

EVIDENTIARY ERROR

In Point of Error One, D.R. complains that the county medical examiner, Dr. Paul Shrode was not qualified as an expert to testify concerning the cause of death of D.J.R.

Standard, of Review

A trial court’s acceptance of an expert’s qualifications is reviewed for an abuse of discretion. Broders v. Heise, 924 S.W.2d 148, 151 (Tex.1996). Absent an abuse of discretion, we will not interfere with the exercise of the trial court’s discretion. “The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles.” E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995). The party offering the expert’s testimony bears the burden to prove that the witness is qualified under the Texas Rules of Evidence. Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.

Tex.R.Evid. 702. See Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex.1998); Broders, 924 S.W.2d at 151. The role of the trial court in qualifying experts is to ensure “that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion.” Broders, 924 S.W.2d at 152. The offering party must demonstrate that the expert witness possesses special knowledge as to the very matter on which he proposes to offer an opinion. Gammill, 972 S.W.2d at 718.

Testimony

Dr. Shrode testified that he is the Chief Medical Examiner for El Paso County and has served in that capacity for a little over a year-and-a-half. He has approximately ten years of experience as a forensic pathologist. Dr. Shrode received special training in forensic pathology after earning a medical degree from Texas Tech University. For seven years, he worked for Harris County as a medical examiner. He then returned to Lubbock, and finally moved to El Paso. He is licensed to practice medicine in Texas and is board certified in forensic pathology. He is required to obtain continuing education under his medical license. Dr. Shrode has been published in a few toxicology journals and has been recognized as an expert in El Paso County in five or six criminal cases. He has testified over 200 times in Harris County and has performed over 4,000 autopsies.

Dr. Shrode testified that his job as Chief Medical Examiner is to determine a cause of death in cases that fall within his jurisdiction. Forensic pathology is a recognized specialty and there is an accepted curriculum for training to achieve this specialty. Specifically, one must complete a residency in pathology before choosing a sub-specialty, such as forensic pathology.

During voir dire, Dr. Shrode testified that his theory regarding the child’s autopsy and cause of death was based on scientific principles. Based on the autopsy, the investigation reports, and his own experience, Dr. Shrode opined that the infant’s cause of death was non-accidental cranial cerebral trauma. The cranial cerebral trauma was supported by brain swelling, blood around the retina, and blood under the protective cover of the brain. Dr. Shrode personally collected all the fluid and tissue samples.

Dr. Shrode testified that pathologists rely upon literature and experience rather than pure mathematics and science in performing autopsies. When asked about the rate of error in cause of death determinations, he admitted there is disagreement within the medical community concerning whether cranial cerebral trauma can be caused by shaking alone, or requires shaking accompanied by some sort of impact. He bases his opinions on publications and peer review that are well-established within the medical community in his area of practice.

Dr. Shrode learned during residency and fellowship training to approach a child’s death as a homicide until proven otherwise. As a doctor, he must eliminate all possibilities until he concludes there is “no way” the child died of natural causes. According to Dr. Shrode, the injury the child sustained was a “significant trauma” which required “a lot of force.” Based on the facts that were presented to him and the finding that trauma was inflicted, Dr. Shrode concluded, “it just doesn’t fit that [her injury] just happened.”

When asked on voir dire about his membership in the State Bar of Texas, Dr. Shrode testified that in 1979 he took a provisional course to go to law school at Southwest Texas State University. When the school did not obtain accreditation, the course became a paralegal program. After graduation, Dr. Shrode went to work for the Legal Aid Society and became a member of the State Bar of Texas through the paralegal division. Because the degree was conferred through the graduate Department of Political Science, Dr. Shrode believed he had a law degree. After hearing the arguments of counsel, the trial court ruled that he qualified as an expert.

Ex-pert Qualifications

D.R. complains of Dr. Shrode’s “lack of expertise, his unreliable methodology, and his lackluster publishing record”. He contends that the coroner’s “homespun ideas about infant death” are neither generally accepted by the medical community nor grounded in the methods and procedures of science. We conclude that the record proves otherwise.

We have already recounted Dr. Shrode’s education, medical background, and prior employment as a forensic pathologist. He is the Chief Medical Examiner for El Paso County. He is a licensed medical doctor who is board certified in forensic pathology. He concluded that the child’s cause of death was cranial cerebral trauma based on the autopsy and investigation. We perceive no abuse of discretion in the trial court’s finding that Dr. Shrode was qualified to testify as an expert. D.R.’s appellate challenge is limited to whether the trial court abused its discretion in finding that Dr. Shrode qualified as an expert witness, not whether his expert testimony was reliable. Vela v. State, 209 S.W.3d 128, 131 (Tex.Crim.App.2006). Any argument regarding the reliability of his testimony has not been properly preserved. Tex.R.App.P. 33.1. We also conclude that evidence concerning the doctor’s belief that he possess a law degree goes to the weight of the evidence rather than its admissibility. We overrule Point of Error One.

CONSTITUTIONALITY OF SECTION 263.405

In Points of Error Two and Three, D.R. contends that Section 263.405 of the Family Code is unconstitutional because it violates both the due-process clause and the separation-of-powers clause. In particular, he challenges Sections 263.405(b) and (i) which provide:

(b) Not later than the 15th day after the date a final order is signed by the trial judge, a party who intends to request a new trial or appeal the order must file with the trial court:
(1) a request for a new trial; or (2) if an appeal is sought, a statement of the point or points on which the party intends to appeal.
(i) The appellate court may not consider, any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial.

Tex.Fam.Code Ann. § 263.405(b), ©(Vernon 2008).

Due Process

D.R. contends that sub-section 263.405(b) and (i) are unconstitutional both facially and as applied because the expedited timetable deprives appellate counsel of a meaningful review of the trial record. A facial challenge to a statute is the most difficult because the challenger must establish that no set of circumstances exists under which the statute will be valid. Santikos v. State, 836 S.W.2d 631, 633 (Tex.Crim.App.1992); Ex parte Dave, 220 S.W.3d 154, 156 (Tex.App.-Fort Worth 2007, pet. ref'd). Since a statute may be valid as applied to one set of facts and invalid as applied to another, the challenger must first show that the statute is unconstitutional as applied to him. Santikos, 836 S.W.2d at 633; Ex parte Dave, 220 S.W.3d at 156. That the statute may be unconstitutional as applied to others is insufficient to support a facial challenge. Santikos, 836 S.W.2d at 633; Ex parte Dave, 220 S.W.3d at 156. When we are confronted with an attack on the constitutionality of a statute, we presume that the statute is valid and that the Legislature has not acted unreasonably or arbitrarily. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App.2002). The burden rests on the individual who challenges the statute to establish its unconstitutionality. Id.

A claim that a statute is unconstitutional as applied is a claim that the statute, although generally constitutional, operates unconstitutionally as to the claimant. Texas Boll Weevil Eradication Foundation, Inc. v. Lewellen, 952 S.W.2d 454, 461 n. 5 (Tex.1997). An as-applied challenger is required only to demonstrate that the statute operates unconstitutionally when applied to his particular circumstances. In re N.C.M., 271 S.W.3d 327, 328-29 (Tex.App.-San Antonio 2008, no pet.).

D.R. has not identified any appellate issue he was prevented from pursuing because of the restrictions in Section 263.405. Nor has he alleged that he would have discovered more issues if more time had been allowed. D.R. was appointed appellate counsel two and one-half months before the fifteen day deadline established in subsection (b). We recognize that our sister courts have found the provision unconstitutional as applied in cases where appellate counsel was not appointed until after the statement of points was due, and the Supreme Court recently held Section 263.405 unconstitutional to the extent it prevents a challenger from raising ineffective assistance or evidentiary sufficiency claims on appeal if those contentions were not first alleged in a statement of points. See In re J.O.A., 262 S.W.3d 7, 24 (Tex.App.-Amarillo 2008), aff'd in part, rev. in part, 283 S.W.3d 336 (Tex.2009); In re S.K.A., 236 S.W.3d 875, 894 (Tex.App.-Tex-arkana 2007, pet. denied); In re D.M., 244 S.W.3d 397, 415 (Tex.App.-Waco 2007, no pet.)(cases holding Section 263.405 unconstitutional as applied when appellant was not appointed counsel until after statement of points was due); see also In re J.O.A., 283 S.W.3d 336, 339 (Tex.2009)(concluding that Section 263.405© is unconstitutional to the extent it prevents claimants from raising ineffective assistance of counsel and insufficiency of the evidence when those claims are not first raised in a statement of points). Those factual scenarios are not before us. Because D.R. has not alleged there were other complaints he would have raised but for the restrictions of Section 263.405(b) and (i), he has not demonstrated the statute operated to deprive him of his rights to due process. In re V.G., No. 04-08-00522-CV, 2009 WL 2767040, *15 (Tex.App.-San Antonio Aug. 31, 2009, no pet.)(mem. op.); In re T.D.M., No 12-07-00458-CV, 2008 WL 2122601, *2 (Tex.App.-Tyler May 21, 2008, no pet.)(mem. op.); In re J.J., No. 2-06-333-CV, 2008 WL 623633, *1 (Tex.App.-Fort Worth Mar. 6, 2008)(mem. op.), pet. denied, 260 S.W.3d 461 (Tex.2008)(cases rejecting as-applied challenge when appellant did not identify how she was harmed by application of Section 263.405). Having determined that D.R. failed to demonstrate that the statute is unconstitutional as applied to him, we overrule Point of Error Two.

Separation of Powers

In Point of Error Three, D.R. asks us to hold Section 263.405 unconstitutional as a violation of the separation-of-powers clause, in conjunction with our sister court’s decision in In re D.W., 249 S.W.3d 625 (Tex.App.-Fort Worth), pet. denied, 260 S.W.3d 462 (2008). We need not reach the constitutionality of the statute under the separation-of-powers clause as D.R. has wholly failed to show how he was harmed by its application to his case. See VanDevender v. Woods, 222 S.W.3d 430 (Tex.2007)(noting that courts should rest decisions on non-constitutional grounds, if available, and not “wade into ancillary constitutional questions.”); In re B.L.D., 113 S.W.3d 340, 349 (Tex.2003)(“As a rule, we only decide constitutional questions when we cannot resolve issues on nonconstitu-tional grounds.”). Nowhere in his brief does D.R. identify any issues that were preserved in the court below but not raised on appeal because those issues were not included in his statement of points. See, e.g., Walker v. Texas Dept. of Family and Protective Services, 312 S.W.3d 608, 620, 625 (Tex.App.-Houston [1st Dist.] 2009, pet. filed) (refusing to reach the constitutionality of Section 263.405 under the due-process clause and separation-of-powers clause absent a showing that the operation of the challenged statute caused appellant harm); In re M.M.F., No. 2-08-014-CV, 2008 WL 5265033, *7 (Tex.App.Fort Worth Dec. 18, 2008, no pet.)(mem. op.)(refusing to address constitutionality of Section 263.405 under the separation-of-powers clause when the alleged harm-that he did not timely file a statement of points-was moot since the trial court granted an extension to file a statement of points and appellant later filed his statement of points); In re H.B., No. 2-06-102-CV, 2006 WL 3438193, *2 (Tex.App.-Fort Worth Nov. 30, 2006, no pet.)(mem. op. on reh’gXrefusing to address appellant’s argument on separation-of-powers principle when trial court granted the requested relief and appellant failed to demonstrate harm). As such, any opinion we render on the constitutionality of Section 263.405 under the separation-of-powers clause would address only a hypothetical injury and therefore be advisory. See McAllen Med. Ctr., Inc. v. Cortez, 66 S.W.3d 227, 232 (Tex.2001); Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex.2000); Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex.1993)(cases holding courts have no jurisdiction to render advisory opinions). This we cannot do. Accordingly, we overrule Point of Error Three and affirm the judgment of the trial court.

ANN CRAWFORD McCLURE, Justice,

opinion on motion for rehearing.

We issued our original opinion on January 6, 2010. In the following days, a tsunami of public interest has flooded this community and our opinion has been swept along with the current. D.R. has filed a motion for rehearing asking us to revisit the expert qualifications of Dr. Paul Shrode, the El Paso County Medical Examiner, “in light of recent public inquiries into the extent and veracity of Dr. Shrode’s stated professional qualifications.” We begin with the simple observation that the issues surrounding Dr. Shrode now are not the same issues which were presented to the trial judge, the Honorable Alfredo Chavez, when this case was tried.

PROCEDURAL POSTURE AT TIME OF TRIAL

The underlying proceeding began in June 2006 when the Texas Department of Protective and Regulatory Services filed an original petition for protection of a child, for conservatorship, and for termination of parental rights. The future of four children was at stake. A.S. is the mother of four children: A.R.D., born September 15, 2001; D.J.R., born August 13, 2004; and twin girls E.N.R. and A.D.R., born September 5, 2006. She was also the mother of D.R. who died on March 15, 2006 at the age of seven months. The adjudicated father of A.R.D. is J.D. D.R. was the father of the infant decedent and he is the father of D.J.R., E.N.R., and A.D.R. The parental rights of A.S., J.D., and D.R. have all been terminated. Only D.R. is a party to this appeal. Bruce Yetter and Richard Deck, Assistant County Attorneys, signed the pleadings and represented the Department through trial. D.R. was represented by Christopher Cox while A.S. was represented by Theresa Caballero. As required by the Texas Family Code, the trial court appointed Bernardo Gonzalez and Celia Villasenor as attorneys ad litem to represent the interests of the children. Gonzales represented A.R.D.; Villasenor represented D.R.’s children.

THE CHALLENGES TO DR. SHRODE

As the El Paso County Medical Examiner, Dr. Shrode conducted the autopsy of the infant D.R. Yetter called him as a witness on behalf of the Department. To clarify our initial opinion, we quote his testimony at length:

DIRECT EXAMINATION
(By Mr. Yetter): Good afternoon, Dr. Shrode. Please state your name completely for the record.
(Dr. Shrode): Paul Shrode.
Q: How are you employed, sir?
A: I’m the chief medical examiner for El Paso County.
[Permission to approach the witness granted]
Q: Doctor, how long have you been employed as a chief medical examiner?
A: A little over a year and a-half.
Q: And what is your total experience as a forensic pathologist?
A: Approximately ten years.
Q: And what is your education?
A: I got a medical degree from Texas Tech University. I got training in pathology during my residency. I was especially trained in forensic pathology and I worked for approximately seven years in Harris County as a medical examiner. From there I went to Lubbock for a couple of years and then here.
Q: All right. Doctor, I’ve placed in front of you an Exhibit 12-A which is your credentials, I believe.
A: Yes.
Q: And are they current as of today? A: Yes.
Q: And your testimony here today is expected to be in your area of expertise?
A: Yes.

At this point, Yetter offered Dr. Shrode as an expert witness and offered Exhibit 12-A into evidence. Both Cox and Caballero objected to the lack of a proper predicate, whereupon Yetter continued:

Q: What exactly are your duties as the forensic pathologist?
A: Well, principally [it] is to determine a cause around a manner of death in every case that falls in our jurisdiction.
Q: And what is your authority or the scope if your authority insofar as all cases involving death?
A: Well, as per the Texas Code of Criminal Procedure, we have that authority. I believe it’s 49.25.
Q: And as the chief medical examiner for El Paso County, do you supervise or do you actually perform the autopsies and the investigation?
A: Well, about half of the autopsies I perform. There’s another pathologist in our office who would do the other half.
Q: Is forensic pathology a recognized specialty in the field of medicine?
A: Yes.
Q: And is there an accepted level or an accepted curriculum for training that your have to undergo in order to achieve that specialty?
A: Yes, sir.
Q: And would you describe for the ladies and gentlemen of the jury some of the types of training and education that you go through in order to become a forensic pathologist?
A: Well, after the residency in pathology which is just essentially a study of diseases, you are selected to a sub specialty field of training. In this instance, forensic pathology, in which you learn the techniques for determining the causes of death and attaining a manner of death. Generally there’s at least a year training, sometimes it’s two, depends on the institution. I did my training in Cincinnati for a year.
Q: Besides your medical degree that you’ve already testified to as coming from Texas Tech, what other credentials or certifications have you obtained?
A: Of course we have to have a license to practice medicine in the State of Texas and I have that. I passed my forensic pathology boards which is an exam which is published by the American Board of Pathology. I’m also eligible for certification in what’s called surgical pathology in which you look at breast biopsies and pap smears and that sort of thing. But the State of Texas requires that you need a license to practice and that you have that training in forensic pathology to be a medical examiner. [Emphasis added].

Let us pause here briefly. From this testimony, the trial court could reasonably infer that Dr. Shrode was board certified in forensic pathology. He had passed his board exams; he was also eligible for board certification in surgical pathology. In other words, the trial court could either infer that he was eligible for board certification in both forensic and surgical pathology, or that he was already board certified in forensic pathology and was eligible for certification in surgical pathology. It is within the province of the fact finder to consider the evidence and the reasonable inferences that may be drawn therefrom. Texas Tech University Health Sciences Center v. Lucero, 234 S.W.3d 158, 167 (Tex.App.-El Paso 2007, pet. denied). We continue with Dr. Shrode’s direct examination.

Q: Is the certification of a medical examiner licensed by the State of Texas?
A: Yes.
Q: Are there any other special trainings that you go to as a normal course of your medical license or pathology license?
A: Well, of course there are all sorts of conferences and things which we can attend which may be directed at particular points of forensic pathology, accidents, suicides, homicides, that sort of thing when we have time.
Q: Are you required under your medical licensing in the State of Texas to obtain continuing medical education?
A: Yes, sir. Every two years we have to perform a certain number of CMEs. They are called continuing medical education credits towards that license.
Q: And are you required similarly [sic] the same type of continuing medical education for your forensic pathology certification?
A: No, sir. Because it’s not required, we don’t. • It’s just the license in Texas. [Emphasis added].

Once again, this exchange infers that Dr. Shrode is board certified in forensic pathology. In response to a question couched in terms of “your forensic pathology certification,” Dr. Shrode answered using the first person pronoun, “we.” “We,” i.e. “those of us who are board certified in forensic pathology,” do not earn continuing medical education credits for forensic pathology “because it is not required.” These inferences led to our misstatement in our initial opinion that Dr. Shrode was indeed board certified. He was not, and we regret the error. We now continue with Yetter’s direct examination of Dr. Shrode.

Q: I notice that you had a pathology residency from 1991 to 1996 in Temple, Texas?
A: Yes, sir, Scott & White Hospital.
Q: And that was after you were a licensed physician?
A: Yes, sir.
Q: And then the forensic pathology fellowship for one year was after that?
A: Yes, sir.
Q: Since 1997, have you had any further educational training or experience?
A: Nothing other than just experience of being in forensic pathology.
Q: In the field of forensic pathology, is there an accepted manner of practice that physicians use in arriving at their conclusions, investigating the cause of death?
A: Yes, I believe there is a general approach to that. Yes.
Q: And is that the approach that you use in your analysis?
A: Yes, I try.
Q: Is it an exact science?
A: Not an exact science like you would consider mathematics, no.
Q: Is there some involvement of judgment?
A: Yes.
Q: And is that based on experience and training?
A: Yes.
Q: Did you perform the autopsy on [D.R.]?
A: Yes.

Yetter reoffered Dr. Shrode as an expert witness. Cox took the witness on voir dire outside the presence of the jury and questioned him concerning the reliability of the methodology he employed. Caballero then cross-examined Dr. Shrode on his credentials, particularly the representation on his curriculum vitae that he had a “[graduate law degree from school of political science.”

[By Ms. Caballero]:I see that you are a member of the State Bar of Texas from '79 to '83?
[Dr. Shrode]: Yeah, but don’t hold that against me.
Q: I am not aware of a law school at Southwest Texas?
A: There isn’t.
Q: Can you explain that, out of curiosity?
A: Yes. When I, about, this was in '84, '85, okay. In 1979 Southwest Texas State University at the time was on a provisional course to get, go to law school. So their first class was us.
Q: Okay.
A: And as it turns out they did not get the full status for a law school. So, it was under the auspices of the political science department that we did that. So, the program became a paralegal program.
And when I graduated from that six month or year study, I had a paralegal license, but no law license. So I went to work with the Legal Aide Society as a paralegal and we had to become members of the State Bar to do that, to be a paralegal with the Legal Aide Society of central Texas.
Q: So when you say you were a member of the State Bar of Texas, you were not a member as a lawyer?
A: I was a member as a paralegal, a legal assistant.
Q: And it was a year study?
A: Yes.
Q: So you got a law degree or you got a paralegal degree?
A: It was a paralegal degree. It was in the graduate school. They set it up through the graduate school, political science.
Q: So would you say that was a graduate law degree or a graduate paralegal degree?
A: Well, it started out as a law degree and since it was from the graduate department, I mean I don’t — if that is not correct, then that can be changed. I don’t know, I was under the impression it was a law degree from the political science school.
Q: Do you have a diploma that says you have a law degree?
A: No.
Q: So where did you get that impression that you have a law degree?
A: Well, [the curriculum, vitae ] doesn’t say it is a law degree, does it? It says—
Q: Graduate law degree from school of political science.
A: Well, it is a degree in law from the school of political science.

Dr. Shrode was then questioned on his policy of treating every child death as a homicide until proven otherwise. After Caballero passed the witness, Judge Chavez questioned Dr. Shrode as to whether he had published any articles and, if so, in which journals. He also inquired whether Dr. Shrode had testified as an expert in the district courts of El Paso County.

Both Cox and Caballero lodged objections to Dr. Shrode’s qualifications as an expert, his dishonesty with his legal credentials, his credibility, the reliability of his theory of child deaths, and whether that is an accepted practice in the medical community. Yetter then advised the court that the issue of the law license had nothing to do with Dr. Shrode’s medical license and forensic pathology background. He believed Dr. Shrode had the requisite training. A.R.D.’s attorney ad litem then offered his opinion:

[By Mr. Gonzalez]:This isn’t very complicated, Judge. Mr. Cox is correct when he mentioned Daubert Robinson. Daubert Robinson gives us all the information we need in this case. Daubert Robinson says that it has to be within the field of his expertise. He can’t be telling us about why plastics tear. That’s not within the field of his expertise. He is a pathologist.
And number two, it has to be based on established techniques and literature. He has said that. If you will remember his answers very carefully, Judge, he says well, these are the techniques that I was taught in my residency. The literature says, the literature says, the literature says. He said that about three or four different times. That’s all Daubert Robinson requires, so I think that is clearly met. This is what pathologists do. This is what a pathologist testifies to. That is clearly within Dau-bert Robinson.
⅜ ⅜ ⅜ ⅜ ⅜
He’s very honestly saying there are some disagreements in the field, however the literature is telling us that these types of injuries can be diagnosed as non-accidental trauma.

Judge Chavez accepted him as an expert witness, and Dr. Shrode testified for the remainder of the day. He resumed his testimony the following morning and was questioned by Gonzalez:

[By Mr. Gonzalez]: I have only one more question regarding your CV sir, and the only thing I care about. Are you Board Certified in the field of forensic pathology, sir?
[Dr. Shrode]: Not yet.
Q: Are you on your way to becoming Board Certified in the field of forensic pathology?
A: Yes.
Q: And would you explain to the jury please what becoming Board Certified means?
A: In the forensic pathology the governing body that grants board certification requires two boards, one board in surgical pathology and another board in forensic pathology. Í have taken and passed the forensic pathology portion. As I mentioned yesterday, I am eligible to take the anatomic portion. And until I do that, they do not award Board Certification. There is apparently a division in the board of pathology that may split and they will be separate at some time, but until then.
Q: And you’re working on that Board Certification in the meantime, is that correct?
A: That’s correct. [Emphasis added].

This is the first time Dr. Shrode directly addressed board certification. Cox and Caballero both subjected him to recross examination but neither addressed the subject of board certification. Nor did they renew their challenges to his qualifications based on this later testimony. While they attacked Dr. Shrode’s credibility, credibility goes to the weight rather than the admissibility of the evidence. Olympic Arms, Inc. v. Green, 176 S.W.3d 567, 585 (Tex.App.-Houston [1st Dist.] 2004, no pet.)(jury is to assess the weight and credibility of an expert’s proffered testimony), citing Robinson, 923 S.W.2d at 558 (there is a difference between the reliability of the underlying theory or technique and the credibility of the witness who proposes to testify about it.).

STATUTORY QUALIFICATIONS OF A MEDICAL EXAMINER

The Texas Code of Criminal Procedure establishes the minimum qualifications of a medical examiner:

“The commissioners court shall appoint the medical examiner, who shall serve at the pleasure of the commissioners court. No person shall be appointed medical examiner unless he is a physician licensed by the State Board of Medical Examiners. To the greatest extent possible, the medical examiner shall be appointed from persons having training and experience in pathology, toxicology, histology and other medico-legal sciences. ...”

Tex.Code Crim.Proc.Ann. art. 49.25 § 2 (Vernon 2006). Thus, regardless of whether Dr. Shrode was board certified in forensic pathology, he possessed the requisite qualifications to serve as the county medical examiner. Whether board certification should be added to the minimum qualifications is a matter we leave to the discretion of the Legislature.

D.R.’S MOTION VIS-A-VIS RECENT EVENTS

Local media publications in recent weeks have reported that the American Board of Pathology notified Shrode on October 28, 2003 that he did not pass all parts of the exams required for board certification. In 2008, the same board purportedly advised that he is no longer board-eligible. Of course, that is not part of the record before us. With limited exceptions not relevant here, an appellate court may not consider matters outside the appellate record. Siefkas v. Siefkas, 902 S.W.2d 72, 74 (Tex.App.-El Paso 1995, no writ), citing Sabine Offshore Service v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex.1979). The appellate record consists of the clerk’s record and, if necessary to the appeal, the reporter’s record. Tex. R.App.P. 34.1. And certainly, all of the attorneys could have inquired during the 2007 trial whether Dr. Shrode had taken the surgical pathology exam. While we understand the outrage over what may be considered disengenuous statements in light of current events, the appellate spotlight focuses on events developed at trial, not on speculation two years hence.

APPLICATION OF THE APPROPRIATE STANDARD OF REVIEW

Finally, we address D.R’s comment that our “positive appraisal” of Dr. Shrode’s expert qualifications “forms the basis of the court’s opinion.” We respectfully disagree as this statement disregards the applicable standard of review. The question is not whether members of this court believe that Dr. Shrode was qualified to testify as an expert. As we noted in our earlier opinion, the question is whether Judge Chavez abused his discretion in finding Dr. Shrode to be an expert. D.R. also complains that despite the doctor’s “questionable methods of imprecise analytical skills,” we believed “he was a qualified expert based on only two overriding criteria: his medical degree and his certification as a forensic pathologist.” Again, this misstates the issue. The issue is whether Judge Chavez abused his discretion in finding Dr. Shrode to be an expert based on his medical license, his years of training in forensic pathology, his experience as a medical examiner, and the numerous autopsies he has performed. And yes, Judge Chavez could have reasonably inferred at the time he ruled upon the objections that Dr. Shrode was board certified. He was not asked to reconsider his ruling when the doctor acknowledged he was not certified, and Judge Chavez heard uncontra-dieted evidence that certification is not statutorily required. We persist in our holding that no abuse of discretion has been presented. Robinson, 923 S.W.2d at 558 (“The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles.”). With these comments and clarification, we deny the motion for rehearing.

      . D.R. concedes that "[t]o be sure, an appellate court is bound by the record on appeal ...” but he argues that recently “critical information and vigorous, far-reaching debate has arisen in the public forum which discounts and evennegates Dr. Shrode's trial testimony and, by extension, calls into question this court’s positive appraisal of his expert qualifications, an appraisal that forms the basis of the court's opinion.”

      . As we noted in our original opinion, D.R. was arrested and charged with capital murder in connection with the child's death.

      . Dr. Shrode testified that “[t]here have been a few articles and I can't tell you how much, two or three, along the lines of toxicology.” These were published in one or two toxicology journals.

      . He had testified in five or six criminal cases in El Paso County and approximately 200 times in Harris County, He later testified that he had conducted more than 4,000 autopsies and external examinations.

      . See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); E.I. duPont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex.1995).


author: ANN CRAWFORD McCLURE, Justice.

text:
    In the Interest of J.R., a child.
    No. 08-08-00058-CV.
    Court of Appeals of Texas, El Paso.
    Feb. 3, 2010.

      William R. Copeland, El Paso, TX, for Appellant.
    Chris Bradley, El Paso, TX, for Appel-lee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Topiltzin Candelas appeals an order terminating his parental rights. In his sole issue for review, he challenges the sufficiency of the evidence to support the statutory predicates for termination. He does not complain that the evidence fails to establish that termination is in the best interest of the child. For the reasons that follow, we affirm.

FACTUAL SUMMARY

J.R. was born on March 16, 1998 to Dalila Ives and Topiltzin Candelas. The child’s parents were never married. Dalila has not seen Topiltzin since 1997 or 1998. She secured a protective order at one point because he threatened her and her house was burned. Topiltzin has never seen J.R., he has never called the child, and he has never contributed any child support. He has been in prison since 2003 for aggravated assault on a public servant, and he has served time for federal bank robbery.

Dalila has known Joel Ives for eleven years and they married in 2000. Together they have a son, Armando. Although the Ives divorced in 2001, they have reconciled and are again living together as a family. J.R. and Armando have been raised as brothers. Dalila and Joel filed an original petition to terminate the parent-child relationship between Topiltzin and J.R., and a petition for step-parent adoption. Nora Garcia was appointed to prepare a pre-adoptive home screening and post-placement adoptive report. Allison Gutierrez as was appointed as attorney ad litem.

The case was set for trial on October 26, 2007. Neither Topiltzin nor his attorney appeared at the hearing despite the requisite notice. Dalila and Joel testified, and the trial court took judicial notice of the home study. The ad litem recommended termination and adoption. The trial court terminated Topiltzio’s parental rights, granted the step-parent adoption, and granted a name change for the child.

SUFFICIENCY OF THE EVIDENCE

In his sole point of error, Topiltzin challenges the legal and factual sufficiency of the evidence to establish the statutory basis for termination.

Standard of Review

Due process requires the application of the clear and convincing evidence standard in cases involving the termination of parental rights. In Interest of J.F.C., A.B.C., and M.B.C., 96 S.W.3d 256, 263 (Tex.2002), citing Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Codifying the constitutional requirement, the Family Code provides that the burden of proof in termination cases is clear and convincing evidence. Tex.Fam.Code Ann. § 161.001(1), (2) (Vernon 2008). Clear and convincing evidence means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Tex.Fam.Code Ann. § 101.007 (Vernon 2008). This intermediate standard falls between preponderance of the evidence of ordinary civil proceedings and the reasonable doubt standard utilized in criminal proceedings. State v. Addington, 588 S.W.2d 569, 570 (Tex.1979).

Given this elevated burden of proof, the traditional legal and factual sufficiency standards of review are inadequate. J.F.C., 96 S.W.3d at 265; In Interest of C.H., 89 S.W.3d 17, 25 (Tex.2002). The traditional legal sufficiency standard, which upholds a finding supported by anything more than a scintilla of evidence, is inadequate when proof by clear and convincing evidence is required. J.F.C., 96 S.W.3d at 264-65. Instead, review must take into consideration whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the matter on which the State bears the burden of proof. Id. at 266. To give appropriate deference to the fact finder, the reviewing court must assume that the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so. Consequently, a court should disregard all evidence that a reasonable fact finder could have disbelieved or found to have been incredible, but it doesn’t require a court to disregard all evidence that does not support the finding. Id. at 266. If the court determines that no reasonable fact finder could form a firm belief or conviction that the matter to be proven is true, then the evidence is legally insufficient.

In a factual sufficiency review, we must give due consideration to evidence that the fact finder could reasonably have found to be clear and convincing. Id., citing In re C.H., 89 S.W.3d at 25. The inquiry must be whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the allegations. A court of appeals should consider whether disputed evidence is such that a reasonable fact finder could not have resolved disputed evidence in favor of its finding. While we do not view the evidence in the light most favorable to the challenged finding, our review must maintain the respective constitutional roles of juries and appellate courts. Id. at 26. If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that the fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. J.F.C. 96 S.W.3d at 266.

Termination of Parental Rights

Before parental rights may be terminated, the petitioner must establish by clear and convincing evidence that (1) the respondent parent has committed one or more of the statutory acts or omissions, and (2) termination is in the best interest of the child. In the Interest of E.M.E., 234 S.W.3d 71, 72 (Tex.App.-El Paso 2007, no pet.); Tex.Fam.Code Ann. § 161.001 (Vernon Supp.2009). Dalila pled that Topiltzin committed the following three statutory predicates specified in Section 161.001(1):

(C) voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six months;
(F) failed to support the child in accordance with the parent’s ability during a period of one year ending within six months of the date of the filing of the petition;
(Q) knowingly engaged in criminal conduct that has resulted in the parent’s:
(i) conviction of an offense; and
(ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition;

Tex.Fam.Code Ann. § 161.001(1)(C), (F), (Q).

Section 161.001(1)(C)

Dalila alleged, and the trial court found, that Topiltzin voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six months. Topiltzin contends that Dali-la’s testimony merely established that he had not supported her and did not prove he had failed to support J.R. The record belies this argument:

[Ms. BradleyjAnd who is the natural father of [J.R.]?
[Dalila] Topiltzin Candelas.
[Ms. Bradley] Has Mr. Candelas ever seen [J.R.]?
[Dalila] No.
[Ms. Bradley]Has he ever given you any kind of child support to support the child?
[Dalila] No.
[Ms. Bradley] He’s never given any kind of support for [J.R.]?
[Dalila] No.
[Ms. Bradley] Never called him?
[Dalila] No.
[Ms. Bradley] Never seen the boy?
[Dalila] No.

Subsection 161.001(1)(C) is commonly referred to as the abandonment ground. In the Interest of A.T.C., No. 07-08-0258-CV, 2008 WL 5204747 at *3 (Tex.App.Amarillo Dec. 12, 2008, no pet.); In the Interest of K.A.H., 195 S.W.3d 840, 841 n. 2 (Tex.App.-Dallas 2006, no pet.). The six-month period is a period of at least six consecutive months. In re A.T.C., at *3. Indeed, we find that case persuasive here as it is nearly factually identical. There, as here, the father was not interested in having a relationship with his son, who was eight years old at the time of trial. The mother testified that the father “had no contact with A.T.C. after he was one year old.” Id. Neither the father nor his family provided support over the years and according to Attorney General reports, no child support had been paid since 2003. In finding that the evidence was both legally and factually sufficient, the court concluded “[t]he evidence is clear and convincing that [the father] voluntarily left A.T.C. in [the mother’s] possession without providing adequate support and that [he] remained away for a period of six consecutive months.” Id. The same is true here. The evidence is both legally and factually sufficient to support termination pursuant to Section 161.001(1)(C).

Section 161.001(1) (F)

Dalila alleged, and the trial court found, that Topiltzin failed to support J.R. in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition. One year means twelve consecutive months, and the ability to pay support must exist each month during that twelvemonth window. In re E.M.E., 234 S.W.3d at 72, citing In the Interest of Z.W.C., 856 S.W.2d 281, 283 (Tex.App.-Fort Worth 1993, no writ). That one-year period begins no earlier than eighteen months before the petition to terminate is filed. In re E.M.E., 234 S.W.3d at 72, citing Yepma v. Stephens, 779 S.W.2d 511, 512 (Tex.App.-Austin 1989, no writ). Here, the burden was on Dalila to prove by clear and convincing evidence that Topiltzin had the ability to pay each month. In re E.M.E., 234 S.W.3d at 72. Given that Dalila filed the petition on April 9, 2007, we must determine whether the evidence established that Topiltzin failed to support J.R. for twelve consecutive months between October 9, 2005 and April 9, 2007. Moreover, we must discern whether Dalila established by clear and convincing evidence that Topiltzin had the ability to pay within that same twelve month period.

It is undisputed that Topiltzin paid nothing within this time frame. It is also undisputed that he has been incarcerated since 2003. Dalila offered no evidence that he had the requisite ability to pay. The evidence is thus legally insufficient to support termination under Section 161.001(1)(F). E.M.E., 234 S.W.3d at 74.

Section 161.001(1)(Q)

Dalila alleged, and the trial court found, that Topiltzin knowingly engaged in criminal conduct that resulted in conviction of an offense and imprisonment and inability to care for the child for not less than two years from the date of filing the petition. Tex. Fam.Code Ann. § 161.001(1)(Q). The Texas Supreme Court has determined that the time period in this subsection is prospective, meaning that Dalila was required to prove that Topiltzin would be incarcerated for not less than two years from the date she filed the petition to terminate. See In the Interest of A.V. and J.V., 113 S.W.3d 355, 360 (Tex.2003). The record establishes that Topiltzin went to prison in 2003. Dalila presented no evidence as to the length of his sentence or the likely date of parole or release. Consequently, the evidence is legally insufficient to support termination on this ground.

CONCLUSION

We have concluded that the evidence is both legally and factually suffi-dent to support the termination of Topilt-zin’s parental rights on one of the three statutory predicates found by the trial court. Only one predicate finding under Section 161.001(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child’s best interest. In re A.V., 113 S.W.3d at 361. Topiltzin has not challenged the trial court’s finding that termination was in J.R.’s best interest. We therefore overrule the sole issue for review and affirm the judgment of the trial court below.


text:
    James Randall MOORE a/k/a Randy Moore, Appellant, v. CITY OF WYLIE, Texas and William Johnson, Appellees.
    No. 08-08-00039-CV.
    Court of Appeals of Texas, El Paso.
    Feb. 17, 2010.

      Michael Patrick Kelly, Law Office of Michael P. Kelly, Dallas, for Appellant.
    William W. Krueger III, Martin, Disi-ere, Jefferson & Wisdom, LLP, Dallas, for Appellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

James Randall Moore, a/k/a Randy Moore, appeals from a summary judgment granted in favor of the City of Wylie, Texas and William Johnson. Finding no error, we affirm.

FACTUAL SUMMARY

The City of Wylie hired Randy Moore as a building inspector on March 15, 2004. William Johnson, a senior building inspector, served as Moore’s supervisor. On December 16, 2004, Johnson called Moore into his office and reprimanded him for attendance problems. When Moore questioned him, Johnson allegedly poked Moore in the chest with his finger three or four times and told him to do his job. Moore did not report the incident immediately, but he did tell another building inspector, Keith Moore, about the confrontation. He also sought medical attention later in the day when he began suffering from tightness in the chest. The emergency room physician told Moore his symptoms were stress-related.

Beginning in June 2005, Moore was verbally warned on three different occasions that Johnson had been receiving complaints from area builders, department staff, and inspection staff regarding Moore’s work performance and attitude. In July 2005, Moore informed Johnson that another building inspector, Franquee Higgins, had not “red tagged” violations of the International Residential Code (IRC) and the Residential Construction Information Packet (RCIP) when he inspected a residence. On August 30, 2005, Johnson issued Moore a Performance Improvement Plan (PIP) concerning the complaints about his work performance and attitude. Moore, who had been absent due to a work-related injury, returned to work on September 12. For the first time, he notified the City of the alleged assault by Johnson nine months earlier. He reported the assault to the Wylie Police Department on September 23. That same day, he appealed the PIP. A few days later, Moore tendered a written request under the Family and Medical Leave Act relating to the August injury. The City approved that request and placed him on twelve weeks of FMLA leave, expiring on December 19, 2005. On December 27, 2005, Moore sought an additional twelve weeks of FMLA leave. The City denied that request and instructed Moore to return to work on January 12, 2006. On January 13, the City suspended Moore for three days for an August 31, 2005 incident. Moore resigned his employment on January 25, 2006, due to a hostile and unsafe working environment and Johnson’s abusive behavior and purported assault. Johnson was acquitted of the assault charges on September 25, 2006.

Moore filed suit against the City and Johnson, alleging violations of the Texas Whistleblower Act. He also sued Johnson for assault and intentional infliction of emotional distress. Appellees filed a motion for traditional and no-evidence summary judgment with respect to all claims. Moore filed an initial response and two supplemental responses. The trial court granted the no-evidence summary judgment and Moore brings six issues for review.

PROPRIETY OF SUMMARY JUDGMENT

A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard of review. Viasana v. Ward County, 296 S.W.3d 652 (Tex.App.-El Paso 2009, no pet.); Martinez v. Leeds, 218 S.W.3d 845, 848 (Tex.App.-El Paso 2007, no pet.). The party moving for no-evidence summary judgment must assert that there is no evidence of one or more essential elements of a claim or defense on which the non-movant would have the burden of proof at trial. Viasana, 296 S.W.3d at 654; Martinez, 218 S.W.3d at 848; see Tex.R.Civ.P. 166a(i). The burden then shifts to the non-movant to produce evidence raising a fact issue on the challenged elements. Viasana, 296 S.W.3d at 654; Martinez, 218 S.W.3d at 848. To raise a genuine issue of material fact, the non-movant must set forth more than a scintilla of probative evidence as to an essential element of his claim or defense. Viasana, 296 S.W.3d at 654; Martinez, 218 S.W.3d at 848.

Failure to Address all Summary Judgment Grounds

Appellees expressly moved for summary judgment under Rule 166a(i) on the ground that Moore had no evidence of damages. Moore has not raised an issue on appeal addressing the damage element of each cause of action. He first addressed the issue in his reply brief. The Rules of Appellate Procedure do not allow an appellant to raise an issue in a reply brief which was not included in his original brief. Tex.R.App.P. 38.3. Consequently, Moore has failed to preserve this issue for review. See Few v. Few, 271 S.W.3d 341, 347 (Tex.App.-El Paso 2008, pet. stricken); Gray v. Woodville Health Care Center, 225 S.W.3d 613, 620 (Tex.App.-El Paso 2006, pet. denied). When there are multiple grounds for summary judgment and the order does not specify the ground on which the summary judgment was rendered, the appealing party must negate all grounds on appeal. State Farm Fire & Casualty Company v. S.S., 858 S.W.2d 374, 381 (Tex.1993); Ellis v. Precision En gine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex.App.-Houston [1st Dist.] 2002, no pet.). If summary judgment could have been rendered, properly or improperly, on a ground not challenged, the judgment must be affirmed. Ellis, 68 S.W.3d at 898; Holloway v. Starnes, 840 S.W.2d 14, 23 (Tex.App.-Dallas 1992, writ denied). The trial court below specified that it was only granting summary judgment on the Rule 166a(i) motion, but it did not specify on which challenged elements Moore had failed to produce evidence. Thus, summary judgment could have been granted on the ground that Moore had no evidence of damages. Because Moore has not properly challenged this ground on appeal, the summary judgment must be affirmed.

Civil Assault

In Issue One, Moore challenges the summary judgment granted in Johnson’s favor on the assault claim. The elements of civil assault mirror those required for criminal assault. Umana v. Kroger Texas, L.P., 239 S.W.3d 434, 436 (Tex.App.-Dallas 2007, no pet.); Johnson v. Davis, 178 S.W.3d 230, 240 (Tex.App.Houston [14th Dist.] 2005, pet. denied). Moore alleged in his first amended petition that Johnson “poked the Plaintiff in and around the chest area.” He also asserted that Johnson intentionally, knowingly, or recklessly made contact with Moore which caused bodily injury and intentionally and knowingly threatened him with imminent bodily injury. A person commits assault if he:

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or
(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

TexPenal Code Ann. § 22.01(a) (Vernon Supp.2009). Moore did not contend that Johnson knew or should reasonably have believed that Moore would regard the contact as offensive or provocative. Consequently, his petition alleged an assault only under Section 22.01(a)(1) and (a)(2). The Penal Code defines “bodily injury” to mean physical pain, illness, or any impairment of physical condition. TexPenal Code Ann. § 1.07(a)(8) (Vernon Supp.2009).

On appeal, Moore relies on his deposition testimony to show that he adduced some evidence on each element of his assault claim. But he did not attach this evidence to his summary judgment response. While Appellees attached Moore’s deposition in support of their traditional motion for summary judgment, Moore did not refer to it at all in his initial summary judgment response. Accordingly, we will not consider the bulk of that evidence in reviewing this issue. See Viasana, 296 S.W.3d at 654. However, in a supplemental summary judgment response, Moore cited two pages of his deposition testimony wherein he stated he was terrified during the confrontation with Johnson. Moore did not allege that this testimony constituted more than a scintilla of evidence on any of the elements of his assault cause of action. Rather, he cited it in response to Appellees’ contention that Moore had failed to prove damages. Although it is doubtful whether Moore’s summary judgment response is sufficient to have directed the trial court’s attention to the applicability of this evidence, we will nevertheless address whether it raises a fact issue on each element of assault.

Under Section 22.01(a)(1), Moore was required to prove that he suffered bodily injury. The Penal Code defines bodily injury as “physical pain, illness, or any impairment of physical condition.” TexPenal Code Ann. § 1.07(a)(8). Moore did not testify or offer any evidence that being poked in the chest caused bodily injury. Under Section 22.01(a)(2), Moore was required to prove that Johnson intentionally or knowingly threatened him with imminent bodily injury. Moore’s testimony does not raise a fact issue on these elements. Because the trial court did not err by granting summary judgment on the assault cause of action, we overrule Issue One.

Intentional Infliction of Emotional Distress

In Issue Two, Moore contends the trial court erred by granting summary judgment on intentional infliction of emotion distress. The elements of the claim are: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the defendant’s actions caused the plaintiff emotional distress; and (4) the emotional distress was severe. Brewerton v. Dalrymple, 997 S.W.2d 212, 215 (Tex.1999); Twyman v. Twyman, 855 S.W.2d 619, 621-22 (Tex.1993). To satisfy the second element, the conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Twyman, 855 S.W.2d at 621. Johnson challenged each of the four elements.

Moore’s entire response was as follows: In the days before plaintiff alleges he was forced to resign, and after the time Johnson was initially convicted of assault, the defendants allowed Johnson to have direct and close contact with the plaintiff. Plaintiff testified that this fact forced him to quit.

He made an identical recitation in his supplemental response. His response does not address the challenged elements of this cause of action nor does it reference any evidence pertinent to these elements. Because Moore failed to produce any evidence of conduct that could be construed as “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community,” the trial court properly granted summary judgment on this cause of action. Issue Two is overruled.

Violations of the Whistleblower Act

In Issues Three through Six, Moore complains the trial court erred by granting summary judgment on the whis-tleblower cause of action. The Texas Whistleblower Act provides:

A state or local governmental entity may not suspend or terminate the employment of ... a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.

Tex.Gov’t Code Ann. § 554.002(a) (Vernon 2004). The elements of a whistleblower claim are (1) that the plaintiff was a public employee, (2) that the defendant was a state agency or local government, (3) that the plaintiff reported in good faith a violation of law (4) to an appropriate law enforcement agency, and (5) that the plaintiffs report was the but-for cause of the defendant’s suspending, firing, or otherwise discriminating against the plaintiff at the time the defendant took that action. Guillaume v. City of Greenville, 247 S.W.3d 457, 461 (Tex.App.-Dallas 2008, no pet.); see Texas Department of Human Services v. Hinds, 904 S.W.2d 629, 636 (Tex.1995) (explaining the causation element). A “law” is a state or federal statute, an ordinance of a local governmental entity, or a rule adopted under a statute or ordinance. Tex.GoVt Code Ann. § 554.001(1).

Appellees alleged in their motion that Moore had no evidence he reported in good faith that his employer or an employee violated the law. In his response, Moore claimed he reported to Johnson in July 2005 that Franquee Higgins did not identify violations of the IRC and RICA. He referenced several pages of his own deposition testimony attached to the defendants’ motion for summary judgment. There, Moore testified that he reported to Johnson that he had inspected a property which Higgins had previously inspected and found items which Higgins had missed. Moore could not recall the nature of the specific items Higgins had missed or which sections of the IRC had been violated. In his sur-response, Moore added that he reported “the illegal activities of Johnson to the City Manager.” In support of this assertion, Moore referred to pages of his deposition testimony where he recounted that he was “harassed” about taking time off of work to visit his ill father but Johnson was permitted to take time off of work following a serious car accident. The evidence also showed that the City Manager permitted Moore to utilize vacation time which he had not yet accrued in order to visit his father. Finally, Moore referred letters he wrote to the City regarding the hostile work environment. This evidence does not support Moore’s contention that he reported illegal activities by Johnson to the City Manager. Therefore, we will restrict our review of this issue to Moore’s report about Higgins.

Section 554.002(a) requires that the plaintiff report the violation in good faith. Tex.Gov’t Code Ann. § 554.002(a). Good faith means that (1) the employee believed that the conduct reported was a violation of law and (2) the employee’s belief was reasonable in light of the employee’s training and experience. Wichita County, Texas v. Hart, 917 S.W.2d 779, 784 (Tex.1996). The first part of the test embodies an “honesty in fact” element. See id. at 784-85. This ensures that an employee believed that he was reporting an actual violation of law. Id. at 785. The second part of the test ensures that, even if the reporting employee honestly believed that the reported act was a violation of law, liability arises only if a reasonably prudent employee in similar circumstances would have believed that the facts as reported were a violation of law. Id. Simply stated, the good faith test includes both an objective and a subjective element. Texas Department of Transportation v. Needham, 82 S.W.3d 314, 320 (Tex.2002).

Moore testified he reported to Johnson that Higgins had failed to “red tag” unspecified code violations when he inspected a home. In his summary judgment response, Moore attached a city ordinance adopting the 2000 International Residential Code and a copy of that code. Section R103 pertains to the creation of an enforcement agency and the appointment of a budding official to direct it. The building official’s duties and powers are established by Section R104. He is authorized and directed to enforce the provisions of the IRC with the understanding that he has the authority to interpret the code and to adopt policies and procedures to clarify its application. The building official is also authorized to inspect the premises for which permits have been issued and to enforce compliance with the code. Section R113.1 makes it unlawful for “any person, firm or corporation to erect, construct, alter, extend, repair, move, remove, demolish or occupy any building, structure or equipment regulated by this code, or cause same to be done, in conflict with or in violation of any of the provisions of this code.” Section R113.4 provides: “Any person who violates a provision of this code or fails to comply with any of the requirements thereof or who erects, constructs, alters or repairs a building or structure in violation of the approved construction documents or directive of the building official, or of a permit or certifí-cate issued under the provisions of this code, shall be subject to penalties as prescribed by law.” While the building official and the inspectors designated by him have the duty to conduct inspections and enforce the code, the IRC does not make it a violation of law for the building official or his inspectors to fail to do so.

Moore’s testimony constitutes some evidence he believed that Higgins’ failure to “red tag” unspecified code violations was itself a violation of some unspecified law. Thus, he offered more than a scintilla of evidence on the subjective element of the good faith test. With respect to the objective part of the test, Moore presented evidence that he was “undertrained” as a building inspector, presumably to show that his belief was reasonable given his lack of training. But Moore does not explain how his lack of training makes his belief reasonable. Moore also relied on RCIP and the job description of a building inspector, which establishes that a building inspector’s job is to report code violations. But there is nothing in the record which would lead a reasonably prudent employee in similar circumstances to conclude that a building inspector who fails to report a code violation has himself violated the IRC or some other law. Because Moore failed to produce any probative evidence on the objective part of the good faith test, the trial court acted properly by granting summary judgment.

Appellees also alleged in their summary judgment motion that Moore had no evidence he made the report to an “appropriate law enforcement authority.” An entity is considered an “appropriate law enforcement authority,” if:

the authority is a part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to:
(1) regulate under or enforce the law alleged to be violated in the report; or
(2) investigate or prosecute a violation of criminal law.

Tex.Gov’t Code Ann. § 554.002(b). The Supreme Court has clarified the standard for determining whether or not an entity is “an appropriate law enforcement authority” under the Whistleblower Act. Needham, 82 S.W.3d at 318-321. The issue there was whether the Texas Department of Transportation was an appropriate law-enforcement authority to which an employee could report an alleged DWI incident involving a TxDOT employee. Id. at 319. In deciding the issue, the court held that it is not enough that a government entity has general authority to regulate, enforce, investigate, or prosecute. Id. at 319. The question is whether the entity had authority to regulate or enforce the particular law that the employee reported had been violated. Id. at 320. The particular law the public employee reported to have been violated is critical to the determination. Id. Because TxDOT has no authority to regulate or enforce the criminal laws prohibiting drunken driving, the court held that, as a matter of law, TxDOT was “not an appropriate law enforcement authority under section 554.002(b) for a public employee to report another employee’s violation of Texas’s driving while intoxicated laws.” Id. at 320. But that conclusion did not end the inquiry because Needham could still obtain Whistleblower Act protection if he in good faith believed that TxDOT was an appropriate law enforcement authority as the statute defines the term. Id. The court held that a two-part test for good faith applies when determining if a public employee believed the governmental entity to which he reported a violation of law was an appropriate law enforcement authority. Id. Thus, in the context of Section 554.002(b), “good faith” means:

(1) the employee believed the governmental entity was authorized to (a) regulate under or enforce the law alleged to be violated in the report, or (b) investigate or prosecute a violation of criminal law; and
(2) the employee’s belief was reasonable in light of the employee’s training and experience.

Id.

Moore did not identify in his report to Johnson what law he believed Higgins had violated. Nor did he specify the law violated in his initial summary judgment response or in the sur-response. In a supplemental response, he pointed to two criminal laws: Section 36.03 (coercion of a public servant or voter) and Section 37.10 (tampering with a governmental record).

Moore made his report to Johnson, a senior building inspector employed in the same department. He also claimed that he made a separate report to Johnny Bray, the Head Building Director, that Higgins admitted he could write twelve to fourteen violations on every tag but he usually just tagged one or two items. Moore did not produce any evidence showing he had a subjective good faith belief that Johnson or the Department of Building Safety had authority to investigate violations of the Penal Code.

Now on appeal, Moore argues he had a good faith belief that the Department of Building Safety and Johnson were appropriate law enforcement authorities because the Department has the authority to enforce the contents of the IRC and Johnson’s duties included “investigating complaints.” This argument shifts the focus away from Sections 36.03 and 37.10 of the Penal Code and back to the amorphous and non-specific allegations about Higgins’ alleged violations of the IRC. While Moore presented evidence he believed Higgins had violated some law by failing to report the violations of the IRC, he did not present any evidence that he believed the Department and/or Johnson had any authority to investigate or prosecute Higgins’ alleged violation of the law. There is also no evidence that a reasonably prudent employee in similar circumstances would conclude that the Department and/or Johnson had authority to prosecute Higgins for failing to report a code violation. Because Moore failed to produce any probative evidence on either the subjective or objective portion of the good faith test as it applies to Section 554.002(b), the trial court acted properly by granting summary. We overrule Issues Three, Four, and Five. Given our conclusion that Moore had no evidence on these elements of his whistleblower cause of action, it is unnecessary to address Issue Six which pertains to causation. For all of these reasons, we affirm the summary judgment.

      . The two men are not related.

      . Moore’s appellate counsel states in his brief that "the municipal court found Johnson guilty of assault" but he provides no citation to where in the record this evidence can be found. The record before us contains a judgment from the County Court at Law No. 4 of Collin County entered on September 25, 2006 acquitting Johnson of the assault charge.

      . After addressing the defendants’ res judicata defense raised in their traditional motion for summary judgment, Moore’s states in his initial summary judgment response that: "Additionally, plaintiff alleged that he was both threatened with imminent bodily injury and suffered bodily injury. Plaintiff testified that he went to the hospital shortly after the assault by Johnson. Still more, the municipal court found Johnson guilt [sic] of assault.” This constitutes Moore’s entire response to the no evidence summary judgment motion as it pertains to the assault cause of action.

      . Tex.Penal Code Ann. § 36.03 (Vernon 2003).

      . Tex.Penal Code Ann. § 37.10 (Vernon Supp. 2009).