author: Opinion By Justice FITZGERALD.

text:
    The STATE of Texas, Appellant, v. Jay Andrew YORK, Appellee.
    Nos. 05-00-00239-CR, 05-00-00273-CR and 05-00-00380-CR.
    Court of Appeals of Texas, Dallas.
    Nov. 7, 2000.

      Alyson Dietrich, Asst. Dist. Atty., McKinney, for Appellant.
    Alan K. Taggart, McKinney, for Appel-lee.
    Before Justices MORRIS, ROACH, and FITZGERALD.
   OPINION

Opinion By Justice FITZGERALD.

The State of Texas appeals the trial court’s orders granting Jay Andrew York’s motions to quash three informations charging him with indecent exposure. See Tex. Code Crim.Piioc.Ann. art. 44.01(a)(1) (Vernon Supp.2000). For reasons that follow, we reverse the trial court’s orders and remand these causes to the trial court for further proceedings consistent with this opinion.

Background

The State filed three informa-tions in the trial court charging York with the misdemeanor offense of indecent exposure. Each information alleged that on or about March 4,1999, York did:

with intent to arouse and gratify the sexual desire of any person, intentionally and knowingly expose his penis, and [York] was reckless about whether another was present who would be offended and alarmed by his act, namely: expose his penis while at a public park.

In all three cases, York moved to quash the informations on two grounds: (1) the informations fail to state with particularity the manner in which any act alleged to have been committed by him was reckless; and (2) the informations fail to specify the name of any person who may or may not have been offended by his alleged conduct.

The trial court held a hearing on York’s motions to quash. After hearing arguments from the parties, the trial court determined the charging instruments did not adequately allege circumstances which constitute recklessness and gave the State an opportunity to amend the informations. The State elected not to amend the charging instruments. The trial court signed orders granting York’s motions to quash. These appeals followed.

Standard of Review

An accused in a criminal case is guaranteed the right to demand the nature and cause of the action against him. DeVaughn v. State, 749 S.W.2d 62, 67 (Tex.Crim.App.1988); Smith v. State, 895 S.W.2d 449, 453 (Tex.App.—Dallas 1995, pet. ref d). The charging instrument itself must convey adequate notice from which the accused may prepare his defense. DeVaughn, 749 S.W.2d at 67. In most circumstances, a charging instrument which tracks the language of a criminal statute possesses sufficient specificity to provide a defendant with notice of a charged offense and the State need not allege facts which are merely evidentiary in nature. State v. Edmond, 933 S.W.2d 120, 128 (Tex.Crim.App.1996); DeVaughn, 749 S.W.2d at 67. A motion to quash should be granted only where the language concerning the defendant’s conduct is so vague or indefinite as to deny the defendant effective notice of the acts he allegedly committed. DeVaughn, 749 S.W.2d at 67; Smith, 895 S.W.2d at 453. In the face of a timely motion to quash, the information must allege on its face facts necessary to show the offense was committed, to bar a subsequent prosecution for the same offense, and to give the accused notice of the precise offense with which he is charged. DeVaughn, 749 S.W.2d at 67; Smith, 895 S.W.2d at 453. We review the trial court’s ruling on a motion to quash under an abuse of discretion standard. Smith, 895 S.W.2d at 453.

Discussion

In its single point of error, the State contends the trial court erred in granting York’s motions to quash because (1) the informations alleged with sufficient particularity the acts relied upon to constitute recklessness, and (2) it was not required to name the persons to whom York is accused of exposing himself. We first address the State’s contention that the informations sufficiently alleged recklessness.

When, as in these cases, recklessness is an element of the offense, to be sufficient, the charging instrument must allege with reasonable certainty the act or acts relied upon to constitute recklessness, and in no event shall it be sufficient to allege merely that the accused acted recklessly in committing the offense. See State v. Emanuel, 873 S.W.2d 108, 109 (Tex.App.—Dallas 1994, no pet.); see also Tex. Code Crim.Proc.Ann. art. 21.15 (Vernon 1989). In an indecent exposure case, to comply with article 21.15, the State must allege circumstances which indicate the defendant was aware of the risk that another person was present who would be offended by his act of exposing himself and that the defendant acted in conscious disregard of that risk. See Gengnagel v. State, 748 S.W.2d 227, 230 (Tex.Crim.App.1988); see also Tex.Pen.Code Ann. § 6.03(c) (Vernon 1994) (defining culpable mental state of reckless).

York asserts Gengnagel v. State and Lacour v. State, 980 S.W.2d 525 (Tex.App.—Beaumont 1998), rev’d, 8 S.W.3d 670 (Tex.Crim.App.2000), support his argument that the informations are defective. In Gengnagel, the information alleged the defendant exposed his genitals and then repeated “exposition of his genitals” as the act constituting recklessness. Gengnagel, 748 S.W.2d at 228. The court of criminal appeals determined that the information did not allege “any act or circumstances” to show this exposition was done in a reckless manner. Id. at 230. The court noted that the State’s evidence showed the defendant exposed himself after seeing a specific individual approach him in a public park. Id. at 230 n. 2. In State v. Emanuel, this Court observed that the court in Gengnagel apparently indicated that “the act or circumstances that should have been alleged were that the appellant exposed himself in a public park after seeing the complainant approach him.” Emanuel, 873 S.W.2d at 109 (emphasis added).

In Lacour, the defendant was convicted of disorderly conduct under section 42.01(a)(12) of the penal code, which makes it an offense for a person to be naked in a public place if he is reckless about whether another may be present who will be offended or alarmed by his act. Lacour, 8 S.W.3d at 670; see Tex.Pen.Code Ann . § 42.01(a)(12) (Vernon Supp.2000). The defendant and about 100 other nudists were naked on a public beach, and the court of appeals held that the evidence was legally insufficient to support the defendant’s conviction. Lacour, 980 S.W.2d at 527. York cites the court of appeals’s opinion in Lacour for the proposition that “someone on a public beach was not necessarily reckless if the beach was secluded and could not easily be seen.” However, the court of criminal appeals subsequently-rejected this holding and reversed, holding the evidence legally sufficient to support the judgment of conviction for disorderly conduct. Lacour, 8 S.W.3d at 671. The court of criminal appeals emphasized that a “rational jury could have inferred the ultimate fact of appellant’s recklessness from the basic fact of his nakedness on a public beach.” Id.; see Broussard v. State, 999 S.W.2d 477, 483-84 (Tex.App.—Houston [14th Dist.] 1999, pet. ref'd). Thus, we conclude that neither authority supports York’s position.

In these cases, the informations alleged that York was reckless about whether another person was present who would be offended and alarmed by his act of exposing his penis while at a public park. By alleging that York exposed his penis at a public park, the State alleged circumstances indicating York was aware of the risk that another person was present who would be offended by his act of exposing himself and that he acted in conscious disregard of that risk. We conclude that, as a matter of law, the charging instruments alleged with reasonable certainty the acts relied upon to constitute recklessness. See Vasquez v. State, 9 S.W.3d 839, 840 (Tex.App.—San Antonio 1999, pet. ref'd) (holding in indecent exposure case that State alleged act constituting recklessness where information alleged defendant exposed his genitals to complainant and also masturbated in complainant’s presence). Thus, the trial court abused its discretion in granting the motions to quash on that ground.

We next consider the State’s contention that the trial court erred in granting York’s motions to quash because the State was not required to allege the names of the persons to whom York exposed himself. The elements of the offense of indecent exposure are: (1) a person (2) exposes his anus or any part of his genitals (3) with intent to arouse or gratify the sexual desire of any person, and (4) he is reckless about whether another is present who will be offended or alarmed by his act. Tex.Pen.Code Ann. § 21.08 (Vernon 1994). The statute does not require that someone actually be offended. Broussard, 999 S.W.2d at 483. The person to whom the exposure is directed, if any, is not an essential element of the offense of indecent exposure. Wallace v. State, 550 S.W.2d 89, 91 (Tex.Crim.App.1977); Swire v. State, 997 S.W.2d 370, 373 (Tex.App.—Beaumont 1999, no pet.). Thus, the names of the persons to whom York allegedly exposed himself are facts which are merely evidentiary in nature, and the State was not required to include them in the infor-mations to give York notice of the charged offenses. See DeVaughn, 749 S.W.2d at 67; Young v. State, 976 S.W.2d 771, 773-74 (Tex.App.—Houston [1st Dist.] 1998, pet. ref'd); Emanuel, 873 S.W.2d at 109. Accordingly, the trial court abused its discretion in quashing the informations on grounds that the State was required to allege the names of the persons to whom York allegedly exposed himself.

In his appellate brief, York contends the trial court properly quashed the informations because they failed to provide sufficient information to bar a subsequent prosecution for the same offense. However, at the pretrial hearing on the written motions to quash, York expounded this argument only in an oral motion to quash; he did not include this argument in his written motions to quash. All motions to set aside an indictment or information must be in writing. Tex.Code CkimPROc. Ann. art. 27.10 (Vernon 1989); see Faulks v. State, 528 S.W.2d 607, 609 (Tex.Crim.App.1975) (ruling on oral motion to quash preserves nothing for review). Thus, to the extent the trial court quashed the in-formations based on York’s oral motion, it erred. See State v. Goldsberry, 14 S.W.3d 770, 775 (Tex.App.—Houston [1st Dist.] 2000, pet. ref'd).

We reverse the trial court’s orders quashing the informations and remand these causes to the trial court with instructions to reinstate the informations.

      . In its brief, the State asserts the informa-tions were later amended to delete the words “intentionally and knowingly.” Although the State filed motions seeking such an amendment, and the trial court signed orders granting the State’s motions to amend, no physical changes were made to the informations. An order granting a motion to amend does not amend a charging instrument. Riney v. State, 28 S.W.3d 561, 565-66 (Tex.Crim.App.2000). Under these circumstances, because no physical alterations were made to the charging instruments in these cases, they were not amended.

        . In Lacour, in concluding the State did not present evidence the defendant acted recklessly regarding whether others might be present who would be offended by his acts, the court of appeals wrote:
      The testimony established that in order to reach the area where the nudists congregated, it was necessary to traverse across approximately four miles of a closed section of State Highway 87 running east of State Highway 124. [Witness] McEachern testified that in order to get to the beach where the nudist[s] congregated, he had to drive past a barricade that said "road closed” on Highway 87. [Witness] Carr testified that the beach was located along a closed section of the highway that had been washed out. Carr also testified there were no residences along the closed section of the highway and that the beach where the nudists were located was next to marshland. McEachern stated the highway had been "washed out” for several years and that he could not clearly see the beach from the road because the dunes and the vegetation between the beach and the highway obscured his vision.

        Lacour, 980 S.W.2d at 526.

      . The court of criminal appeals further wrote: "And, on this record, a rational jury could have found that appellant was naked in a ‘public place’ and that he was 'reckless about whether another may be present who will be offended or alarmed’ by his public nakedness.” Lacour, 8 S.W.3d at 671; see Young v. State, 976 S.W.2d 771, 774 (Tex.App.—Houston [1st Dist.] 1998, pet. ref'd).


source: Caselaw Access Project

author: MARILYN ABOUSSIE, Chief Justice.

license: Public Domain

text:
    Margie RUPP, Individually and on Behalf of Jacob Rupp, Appellants, v. Charles E.L. BROWN, M.D.; and Central Texas Perinatal Associates, P.A., Appellees.
    No. 03-00-00142-CV.
    Court of Appeals of Texas, Austin.
    Nov. 9, 2000.
    Rehearing Overruled Dec. 14, 2000.

      Terri S. Harris, Ewbank & Byrom, P.C., Austin, for appellees.
    Sue Walker, Fort Worth, for appellants.
    Before Chief Justice ABOUSSIE, Justices B.A. SMITH and PATTERSON.
   MARILYN ABOUSSIE, Chief Justice.

Appellant Margie Rupp (“Rupp”) brought suit against appellees, Charles Brown, M.D. and Central Texas Perinatal Associates, P.A. (hereinafter “Brown and Associates”), for alleged medical malpractice resulting in the loss of Rupp’s fetus. The trial court granted Brown and Associates’s motion for summary judgment, and Rupp appeals. We will reverse the judgment and remand the cause to the trial court.

BACKGROUND

In 1996, Rupp was pregnant with her second child. Rupp is blood-type O negative/D negative with Rh sensitization, and her husband is Rh genotype Cde/cDe. Due to their blood types, any baby the couple conceives will be “Rh affected,” meaning that the Rh-sensitized mother produces antibodies that attack the Rh-affected fetus’s red blood cells, causing the fetus to suffer severe anemia. This condition is called “Rh disease” and, if left untreated, can result in erythroblastosis fetalis or death of the fetus.

During Rupp’s first pregnancy in 1992, her obstetrician referred Rupp to a perina-tologist at Central Texas Perinatal Associates, where her Rh-complicated pregnancy was successfully managed by giving the fetus intrauterine blood transfusions. During her second pregnancy, Rupp was again referred to Central Texas Perinatal Associates, this time to Dr. Charles Brown. On April 4, 1996, at twenty-six-weeks gestation, amniocentesis revealed a high level of bilirubin, indicating that Rupp’s fetus was in distress and that Rupp’s antibodies had escalated their attack on her fetus’s red blood cells. Despite this information, Rupp failed to receive intrauterine transfusions as she had during her first pregnancy. At approximately thirty-two to thirty-three-weeks gestation, Rupp moved to Dallas and transferred her care to Dr. Katrina Walsh. At thirty-six-weeks gestation, Rupp stopped feeling fetal movement and proceeded to the hospital where she was informed that the fetus was dead. Rupp waited two days for an available hospital operating room to have the fetus delivered by cesarean section.

Rupp filed suit against Brown and Associates, Katrina Walsh, M.D., and Katrina Walsh, M.D., P.A., alleging that Brown and Associates and Walsh were negligent in their treatment of her, and that such negligence proximately caused the death of Rupp’s fetus and caused Rupp damages, including mental anguish. Appellees filed a joint motion for summary judgment arguing that there is no valid cause of action for the loss of a fetus absent physical injury to the mother and, because there was no evidence of independent physical damages suffered by Rupp, Brown and Associates were entitled to summary judgment. After the motion for summary judgment was filed but before the summary judgment hearing, Rupp amended her petition, specifically asserting causes of action under the wrongful death and survival statutes, and raising constitutional challenges to both statutes. Rupp also filed a response to Brown and Associates’s motion, to which Brown and Associates filed a reply. The trial court conducted a hearing in December 1999 and granted summary judgment in favor of Brown and Associates. An order of severance was signed as to Walsh, allowing the summary judgment to become final, and this appeal followed.

Rupp bases her appeal on five points of error, arguing that the trial court erred in granting summary judgment because (1) Brown and Associates failed to state specifically in their motion the elements for which there is no evidence; (2) Rupp possesses a cause of action for the injury to her fetus as part of her body; (3) Rupp’s first amended petition raised wrongful death and survival causes of action not addressed in Brown and Associates’s motion for summary judgment; (4) case law concluding that a fetus is not a “person” or an “individual” within the meaning of the Texas wrongful death and survival statutes is erroneous; and (5) the failure to include a fetus within the definition of a “person” or an “individual” under the Texas wrongful death and survival statutes renders both statutes unconstitutional.

DISCUSSION

Brown and Associates’ moved for summary judgment on the grounds that Rupp alleged no cause of action and further, that if she alleged a cause of action, she failed to come forth with any evidence of damages to sustain her negligence claim. Because the propriety of a summary judgment is a question of law, we review the trial court’s decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994); Texas Dep’t of Ins. v. American Home Assurance Co., 998 S.W.2d 344, 347 (Tex.App.—Austin 1999, no pet.). The standards for review of a summary judgment are well-established: (1) the movant must show there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, the court must take evidence favorable to the nonmovant as true; and (3) the court must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in the nonmovant’s favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). Brown and Associates have the burden of showing that Rupp could not succeed on any theory pleaded. See San Antonio Express News v. Dracos, 922 S.W.2d 242, 247 (Tex.App.—San Antonio 1996, no writ).

Rupp’s Allegations

Brown and Associates have failed to establish that Rupp could not succeed on any of her pleaded claims. An amended pleading supercedes and supplants all previous pleadings. Tex.R.Civ.P. 65; Johnson v. Coca-Cola Co., 727 S.W.2d 756, 758 (Tex.App.—Dallas 1987, writ ref'd n.r.e.). In her amended petition, Rupp alleged a cause of action in negligence and causes of action under the Texas wrongful death and survival statutes. We examine Rupp’s alleged causes of action separately, beginning with her wrongful death and survival causes of action.

The Supreme Court of Texas has uniformly and consistently held that there is no wrongful death or survival cause of action for the death of a fetus. Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 78 (Tex.1997); Krishnan v. Sepulveda, 916 S.W.2d 478, 479 (Tex.1995); Pietila v. Crites, 851 S.W.2d 185, 187 (Tex.1993); Blackman v. Langford, 795 S.W.2d 742, 743 (Tex.1990); Witty v. American Gen. Capital Distribs., Inc., 727 S.W.2d 503, 504 (Tex.1987). Thus, when Rupp amended her petition to add these allegations, she failed to add any cause of action upon which she could recover. If a plaintiff, after amending her petition, still fails to plead a valid claim, the trial court may grant summary judgment on the pleadings. Gross v. Davies, 882 S.W.2d 452, 454 (Tex.App.—Houston [1st Dist.] 1994, writ denied).

However, in addition to her claims under the wrongful death and survival statutes, Rupp’s first amended petition also alleged claims arising out of Brown and Associates’s negligent medical treatment of her. In her second point of error, Rupp argues that the trial court erred in granting summary judgment because she pleaded a valid' cause of action arising in negligence.

There is no cause of action in Texas for the negligent treatment of or injury to a fetus. Pietila, 851 S.W.2d at 186-87. However, Texas does recognize that a doctor’s negligence in diagnosing and treating a pregnant woman is “entirely different” from negligence in caring for and treating the fetus. Krishnan, 916 S.W.2d at 479-82. In Krishnan, the plaintiff sought recovery of damages from a stillbirth due to the allegedly negligent diagnosis, supervision, and treatment of the mother’s preeclampsia condition. The court distinguished Pietila, in which the plaintiffs alleged that their injury arose from the doctor’s negligent treatment of the fetus, not the mother. Id. at 479-80. Because the plaintiff in Krishnan alleged negligent diagnosis and treatment of her condition, the supreme court held that she was entitled to bring suit and to recover mental anguish damages:

We see no rational basis for excluding recovery of mental anguish damages in personal injury actions which have as one element the loss of a fetus. Consequently, we hold that [the plaintiff] may recover mental anguish damages suffered as a result of her injury which was proximately caused by [her doctor’s] allegedly negligent diagnosis, prenatal supervision and treatment of [the plaintiff] and which includes the loss of her fetus.

Id. at 482 (emphasis added).

In Edinburg, the supreme court followed Krishnan in recognizing a cause of action when the plaintiff alleged negligent treatment of the mother, negligent administration of labor-inducing drugs to the mother, and negligent monitoring of the mother, all of which resulted in a stillbirth. Edinburg, 941 S.W.2d at 78-79. Together, the cases hold that “a woman can recover mental anguish damages resulting from negligent treatment that causes the loss of a fetus as part of the woman’s body.” Id. at 79; see also Wheeler v. Yettie Kersting Mem’l Hosp., 866 S.W.2d 32, 44-45 (Tex.App.—Houston [1st Dist.] 1993, no writ) (holding that plaintiff stated a cause of action arising from allegedly negligent treatment of the pregnant woman, not the fetus).

Like the plaintiffs in Krishnan, Ed-inburg, and Wheeler, Rupp has alleged that Brown and Associates were negligent in treating her and caused her physical pain, suffering, and impairment. Rupp alleged that appellees’ mistreatment of her caused her to suffer mental anguish over the loss of the fetus. She claimed to have suffered additional injury at having to undergo a caesarian section, and additional mental anguish when appellees’ scheduling problems caused her to carry a dead fetus in her womb for two days before it was surgically removed. As early as 1888, a Texas court recognized that even though a woman could not recover mental anguish damages for a stillbirth when Western Union failed to deliver a message to her physician in a timely manner, she could nevertheless recover reasonable compensation if she “suffered more physical pain, mental anxiety, and alarm, on account of her own condition, than she would have done if [the doctor] had been in attendance upon her.... ” Western Union Tel. Co. v. Cooper, 71 Tex. 507, 9 S.W. 598, 599 (1888). Unquestionably, Rupp has alleged such “increased” pain and mental suffering due to the delay in removing the dead fetus and due to the invasive surgery she required. This case is controlled by Krishnan and its progeny, not by Pietila, in which the plaintiffs failed to claim negligent treatment of the pregnant woman. Accordingly, we sustain Rupp’s second point of error.

We next turn to the no-evidence portion of Brown and Associates’s motion for summary judgment to determine whether Rupp failed to produce any evidence that she suffered damage as a result of any negligence.

No-Evidence Ground for Summary Judgment

In a no-evidence summary judgment, the movant must specifically state the elements as to which there is no evidence. Tex.R.Civ.P. 166a(i); Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 316-17 (Tex.App.—Houston [1st Dist.] 1999, no pet.). In her first point of error, Rupp argues that the trial court erred in granting summary judgment because Brown and Associates failed to state specifically the element of Rupp’s cause for which there is no evidence. Brown and Associates’s motion, however, specifically states: “Ms. Rupp did not suffer personal injury as a result of Dr. Brown’s care.” Thus, Brown and Associates specifically asserted that Rupp failed to show evidence that she suffered personal injury as a result of her allegations. We therefore consider whether Rupp has produced any evidence of probative force to raise a fact issue on the question of her damages. See Qantel Bus. Systems, Inc. v. Custom Controls Co., 761 S.W.2d 302, 303-04 (Tex.1988).

Brown and Associates assert that Rupp has suffered no damages. Their position is contingent upon their argument that a plaintiff must show physical injury to herself separate and apart from the loss of the fetus. In support of their contention, Brown and Associates refer to Sosebee v. Hillcrest Baptist Medical Center, 8 S.W.3d 427 (Tex.App.—Waco 1999, pet. denied), which states that “if the mother of a stillborn child alleges that she herself received negligent prenatal care and shows that this negligent care caused ‘physical injury and mental anguish independent of the stillbirth,’ then she may recover her damages.” Id. at 435 (quoting Booth v. Cathey, 893 S.W.2d 715, 718-19 (Tex.App.—Texarkana),, rav’d on other grounds, 900 S.W.2d 339 (Tex.1995)). Brown and Associates assert that the holding requires that a woman can recover only if she shows her own physical injury independent of the loss of the fetus. Brown and Associates argue that aside from any other proof in the record, Rupp’s deposition testimony proves as a matter of law that she suffered no personal injury independent of the loss of the fetus. In particular, Brown and Associates point to the following exchange from Rupp’s deposition:

Q: You didn’t have any physical injuries yourself, did you ... ? You’re not claiming any physical illnesses?
A: Just a broken heart.

We need not decide whether a woman’s loss of a fetus alone constitutes sufficient injury to entitle her to recover. Rather, we merely follow Edinburg and Krishnan in determining that Rupp has asserted a cause of action for damages suffered as the result of a personal injury, which has as one element the loss of a fetus. See Edinburg, 941 S.W.2d at 79; Krishnan, 916 S.W.2d at 482. The summary judgment proof contains some evidence that Rupp suffered injuries in addition to and separate from the loss of the fetus. The summary judgment record also contains evidence that Rupp suffered severe pain and personal injury due to carrying the deceased fetus for several days before being able to have it surgically removed. Rupp testified that she required medication .during this interim period. Rupp further claimed physical pain and suffering from having the fetus surgically removed by cesarian section; the record reveals that such surgery was severe enough to confine Rupp to the hospital for two days thereafter. When reviewing a no-evidence summary judgment, we consider all of the evidence in the light most favorable to the party against whom the judgment was rendered; every reasonable inference must be indulged in favor of the nonmovant, and any doubts resolved in its favor. See Qantel, 761 S.W.2d at 303-04.

The trial court may not grant a no-evidence summary judgment if the record contains more than a scintilla of probative evidence to raise a genuine issue of material fact. Tex.R.Civ.P. 166a(i); see Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). More than a scintilla exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in them conclusions.” Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995). Under this standard of review, we determine that the record contains summary judgment proof that Rupp suffered damages, independent of the loss of the fetus. Accordingly, the trial court’s grant of a no-evidence summary judgment on this cause was improper.

CONCLUSION

Having determined that the trial court erred in granting summary judgment because Rupp asserted a cause of action for her injuries and because the record contains proof that she sustained damages, we need not reach Rupp’s other points of error. We reverse the summary judgment and remand the cause to the trial court for further proceedings.

      . At the same time, the supreme court held in both cases that a parent may not recover under the wrongful death statute for the death of a fetus. Edinburg, 941 S.W.2d at 78; Krishnan, 916 S.W.2d at 479. In Edinburg, the court reaffirmed that there is no bystander cause of action in medical malpractice cases, precluding a parent’s suit as a bystander. Edinburg, 941 S.W.2d at 79-81.

      . The supreme court distinguished Cooper, where death resulted from a "secondary cause” that was too remote, from Krishnan, in which a stillbirth allegedly resulted directly from the doctor’s negligent diagnosis, prenatal supervision, and treatment of the pregnant woman. "[T]o the extent that Cooper is not distinguishable,” the court said, "we overrule it.” Krishnan, 916 S.W.2d at 480.


author: MICHAEL H. SCHNEIDER, Chief Justice.

text:
    Manuel PEREZ, Appellant, v. The STATE of Texas, Appellee.
    Nos. 01-00-00098-CR, 01-00-00099-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 9, 2000.
    Henry L. Burkholder, III, Houston, for Appellant.
    John B. Holmes, Calvin Hartmann, Houston, for State.
    Panel consists of Chief Justice SCHNEIDER and Justices WILSON and ANDELL.
   OPINION

MICHAEL H. SCHNEIDER, Chief Justice.

The Court, on its own motion, withdraws its opinion of October 5, 2000, and issues this opinion in its stead.

Appellant, Manuel Perez, pleaded guilty, with an agreed recommendation on punishment, to two indictments for aggravated sexual assault. The trial court, in accordance with the plea agreements, assessed punishment at 10 years confinement on each conviction. Appellant filed a timely pro se notice of appeal. We dismiss for want of jurisdiction.

Appellant’s notice of appeal does not comply with Texas Rule of Appellate Procedure 25.2(b)(3), which requires that the notice: (A) specify that the appeal is for a jurisdictional defect; (B) specify that the substance of the appeal was raised by written motion and ruled on before trial; or (C) state that the trial court granted permission to appeal. Tex.R.App.P. 25.2(b)(3).

The notice of appeal in these cases, which appears to have been copied from a form book, provides in pertinent part:

If the Defendant has plead guilty or nolo contendere in this case, then he/she must state and prove that he/she has been granted permission to appeal the case by the trial court.
Example: The defendant has been granted permission to appeal this case by the trial court through the Honorable Judge_on the_day of_ 19_
Or defendant must state “Those matters were raised by written motion by the defendant and were ruled upon before trial.”

There is nothing in the record, or in the notice of appeal, to suggest that the trial court granted permission to appeal these cases. Additionally, the clerk’s record does not show that any pretrial motions were filed or ruled on before entry of appellant’s plea. Finally, neither appellant’s notice of appeal nor his appellate briefs allege a jurisdictional defect.

Therefore, we conclude that appellant’s notice of appeal does not comply with Rule 25.2(b)(3). Because the time for filing a proper notice of appeal has long since expired, appellant may not file an amended notice of appeal to correct jurisdictional defects. State v. Riewe, 13 S.W.3d 408, 413-14 (Tex.Crim.App.2000).

However, this Court, and a majority of Texas court’s of appeals, have held that a general notice of appeal confers jurisdiction to consider the voluntariness of a plea. Davis v. State, 7 S.W.3d 695, 697 (Tex.App.—Houston [1st Dist.] 1999, no pet.). Appellant’s briefs do not complain that his pleas were involuntary. Instead, appellant argues in four points of error that his plea proceedings were unconstitutional because his right to compulsory process was violated.

The issues raised by appellant are well settled and have been repeatedly decided against him in this and other courts. See, e.g., Lyles v. State, 745 S.W.2d 567, 567-68 (Tex.App.—Houston [1st Dist.] 1988, pet. ref'd); Vanderburg v. State, 681 S.W.2d 713, 716 (Tex.App.—Houston [14th Dist.] 1984, pet. ref'd).

However, because appellant’s notice of appeal only gives this Court jurisdiction to review claims relating to the voluntariness of his appeals, and appellant does not claim that his pleas were involuntary, we dismiss his appeals for want of jurisdiction.


author: MURRY B. COHEN, Justice.

text:
    Rhobbin L. COOLEY a/k/a Rhobbin Laverne Jebbia, Appellant, v. Marilyn L. WILLIAMS, Appellee.
    No. 01-00-00667-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 9, 2000.
    Rehearing Overruled Dec. 6, 2000.

      M. Jimmy Walker, Houston, for Appellant.
    George W. Wilhite, Paul P. Regnier, for Appellee.
    Panel consists of Justices COHEN, NUCHIA, and SMITH.

       The Honorable Jackson B. Smith, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, sitting by assignment.

   OPINION

MURRY B. COHEN, Justice.

Rhobbin Cooley (a/k/a Rhobbin Jebbia) appeals an order admitting the holographic will of her grandmother, Lillian McKee (“decedent”), to probate as a muniment of title and construing that will as conveying no interest to Cooley. We reverse and render.

Background

Decedent left the following holographic will:

If I die all my possions [sic] go to my husband Paul Odis McKee and when he dies everything goes to Rhobbin LaVern Jabbia [sic]. Written by Lillian E. McKee (wife).

She was survived by her husband and two daughters, Margaret Elkund (Cooley’s mother) and Marilyn Williams, both of whom are still alive. Decedent’s husband died intestate fewer than two weeks after decedent’s death. Cooley filed an application to probate decedent’s will and to be appointed independent administrator. Williams contested it. After a hearing, the trial judge admitted the will to probate as a muniment of title, construed it to convey decedent’s estate in fee simple absolute to decedent’s husband with no “remainder” interest to Cooley, and ordered the estate’s assets delivered to the administrator of decedent’s husband’s estate. Cooley appeals.

Discussion

In her sole issue, Cooley contends the trial judge erred in construing the will to convey a fee simple absolute interest to her grandfather. Instead, Cooley claims the will gave her grandfather a life estate, albeit with full power to dispose of the property during his lifetime, and a contingent remainder interest in herself. While we agree the judge erred, we disagree with Cooley’s characterization of the devise.

1. Construction Rules

We look for the testator’s intent as revealed in the language of the whole will. Welch v. Straach, 531 S.W.2d 319, 321 (Tex.1975); see also Kelley v. Marlin, 714 S.W.2d 303, 305 (Tex.1986) (testator’s intent single most important factor). We harmonize all provisions if at all possible to give effect to that intent. Welch, 531 S.W.2d at 322. We presume decedent placed nothing superfluous or meaningless in her will and that she intended every word to play a part. Marlin v. Kelly, 678 S.W.2d 582, 587 (Tex.App.—Houston [14th Dist.] 1984), aff'd, 714 S.W.2d 303 (Tex.1986). “Generally, the greatest estate will be conferred on a devisee that the terms of the devise permit; and when an estate is given in one part of a will, in clear and decisive terms, it cannot be cut down or taken away by any subsequent words that are not equally clear and decisive ... an estate clearly given in one part of a will cannot be disturbed by a subsequent clause which is ambiguous to uncertain in its meaning.” Benson v. Greenville Nat’l Exch. Bank, 253 S.W.2d 918, 919 (Tex.Civ.App.—Texarkana 1952, writ ref'd n.r.e.); see also Gilliam v. Mahon, 231 S.W. 712, 713 (Tex.App.1921). Unless a lesser estate is created by express words or operation of law, we read a devise to be in fee simple absolute. Benson, 253 S.W.2d at 922; see also Tex.PROp.Code Ann. § 5.001(a) (Vernon 1984) (for real property).

2. Applicable Estates

A “fee simple absolute” is an estate over which the owner has unlimited power of disposition in perpetuity without condition or limitation. Walker v. Foss, 930 S.W.2d 701, 706 (Tex.App.—San Antonio 1996, no writ).

An “executory limitation” is an event which, if it occurs, automatically divests one of devised property. Deviney v. NationsBank, 993 S.W.2d 443, 448 (Tex.App.—Waco 1999, pet. denied). A fee simple estate subject to an executory limitation is called a “determinable fee simple estate.” Id. This is a fee simple interest in every respect, except that it passes to another if the contingency happens. Barker v. Rosenthal, 875 S.W.2d 779, 781 (Tex.App.—Houston [1st Dist.] 1994, no writ). The recipient upon the contingency’s happening has an “executory interest.” Deviney, 993 S.W.2d at 448-49.

A life estate is created by words showing intent to give the right to possess, use, and enjoy the property during life. See Eversole v. Williams, 943 S.W.2d 141, 143 (Tex.App.—Houston [1st Dist.] 1997, no writ). Additionally, the life tenant may expressly be given unlimited power to dispose of the property during his lifetime; if such power is exercised, it defeats the remainderman’s interest in the disposed-of property. See Edds v. Mitchell, 143 Tex. 307, 184 S.W.2d 823, 825 (1945). However, the life tenant may not devise any of that property that remains at her death. Montgomery v. Browder, 930 S.W.2d 772, 777 (Tex.App.—Amarillo, writ denied). No particular language is required to make a life estate. Welch, 531 S.W.2d at 321.

3. Application

We hold the will created a determinable fee simple in decedent’s husband with an executory interest in Cooley. The first half of the sentence gave decedent’s husband a fee simple estate. See Killough v. Shafer, 358 S.W.2d 748, 749 (Tex.Civ.App.—Fort Worth 1962, writ ref'd n.r.e.) (holding “I wish all of my property to go to my wife Thelma ...” created “absolute devise”). The second half of the sentence, however, also clearly gave “everything” after the husband’s death to Cooley. To read the two halves together — without nullifying the second half and while preserving the greatest estate possible in the first devisee — is to construe decedent’s husband’s devise as a determinable fee simple. See Smith v. Bynum, 558 S.W.2d 99, 101 (Tex.Civ.App.—Tyler 1977, writ ref'd n.r.e.) (holding following language gave daughter determinable fee simple interest, not life estate: “... in case of the death of [the daughter] ... without leaving bodily heirs, ... the property herein above devised [in fee simple to that child] shall pass to and be vested in [the son].”). This is the same as, “If I die all my possessions go to my husband Paul Odis McKee and when he dies everything remaining goes to Rhobbin LaVern Jabbia,” which is typical language for a determinable fee. See Killough, 358 S.W.2d at 749 (in this case on which Williams relies, court held determinable fee simple interest created by following language: “I wish all of my property to go to my wife ... It is also my intention after [we] are both dead if there is any estate left that my part of such estate be apportioned to [other family].”). Accordingly, Cooley held an executory interest in decedent’s estate: the contingency was her grandfather’s dying with some of decedent’s property. See Harrell, 215 S.W.2d at 878. He did. Therefore, she takes. This reading harmonizes both parts of the sentence; comports with decedent’s evident intent, as indicated by naming two sequential devisees with fee simple language applicable to both (and without any language typical of a life estate); and gives the first devisee the greater estate (determinable fee simple, rather than life estate).

Our holding grants Cooley the relief she desires. Nevertheless, we note our respectful disagreement with Noms v. Methodist Home, on which Cooley relies, which held that a similarly worded will gave only a life estate with remainder interest. 464 S.W.2d 677, 678 (Tex.Civ.App.—Waco 1971, writ ref'd n.r.e.) (“It is my will and desire that ... my property ... shall become the property of my Husband ... It is also my will and desire that all above mentioned property, at my Husband’s death shall go to [a charity].”). The Norris court relied on three cases that used much clearer language indicating a life estate than was used in either Norris or the present case. Such clearer language is normally used to create a life estate. We disagree with Williams that the only alternative here and in Nonis is a fee simple absolute to the first devisee. The devise here and in Norris should be read to give a determinable fee simple followed by an executory interest. See Smith, 558 S.W.2d at 101. There is no other way to read the first devise, which evidences a fee simple interest but does not elsewhere contain life estate language like that in Hughes, Benson, Robison, Welch, Dougherty, and Montgomery, and still give meaning to the last clause of the will. Williams’s construction of the will would render meaningless the words “and when he dies, everything goes to Rhobbin LaVern Jabbia.”

Accordingly, we sustain the sole issue, reverse the order, and render an order construing decedent’s will to give her husband a determinable fee simple interest and Cooley an executory interest that came into effect upon the husband’s death.

      . A "determinable” fee simple estate is also known as a "base,” "defeasible,” “qualified,” or "conditional” fee simple estate. See Smith v. Bynum, 558 S.W.2d 99, 101 (Tex.Civ.App.—Tyler 1977, writ ref'd n.r.e.).

      . As in Killough, a determinable fee devise often uses language like, "When I die, my property goes to A (in fee), and when A dies, any property remaining goes to B.” See First Nat’l Bank of Corsicana v. DeFoe, 384 S.W.2d 926, 927-28 (Tex.Civ.App.—Waco 1964, writ ref'd) ("all my estate remaining”); Harrell v. Hickman, 147 Tex. 396, 215 S.W.2d 876, 877-78 (1948) (“the remainder of our property, of which the survivor shall die seized and possessed ”); Barker, 875 S.W.2d at 781-82 ("the remains”); Moore v. Wardlaw, 522 S.W.2d 552, 561 (Tex.Civ.App.—Austin 1975, writ ref'd n.r.e.) ("So much of said property as is not disposed of by my husband during his life time”); Brack v. Brodbeck, 466 S.W.2d 600, 602, 603 (Tex.Civ.App.—Texarkana 1971, no writ) (“property then on hand”); Jones v. Walter, 423 S.W.2d 180, 181-82 (Tex.Civ.App.—Amarillo 1967) ("then if any property be remaining in the hands of [fee simple devi-see]”), aff'd, 436 S.W.2d 130 (Tex.1968); Killough v. Shafer, 358 S.W.2d 748, 749 (Tex.Civ.App.—Fort Worth 1962, writ ref'd n.r.e.) ("if there is any estate left”); Tillman v. Mahaffey, 252 S.W.2d 255, 261 (Tex.Civ.App.—Texarkana 1952, writ ref'd n.r.e.) ("the remaining portion”) (emphasis added in all). However, a determinable fee simple has been recognized even without that "remaining property” language. See Smith, 558 S.W.2d at 101 (holding devise in fee simple became determinable fee simple when followed by, "in case of the death ... without leaving bodily heirs, ... the property ... shall pass ...”). The decedent's intent controls.

        . See Benson v. Greenville Nat’l Exch. Bank, 253 S.W.2d 918, 920 (Tex.Civ.App.—Texarkana 1952, writ ref'd n.r.e.) (life estate evidenced by devise that required that stock "remain intact, can neither be sold or traded....”); Robison v. Murrell, 184 S.W.2d 529, 530 (Tex.Civ.App.—Amarillo 1944, writ ref'd w.o.m.) (holding grant gave life estate interest when grantee was not permitted to “sell or dispose” of deeded property); Hughes v. Beall, 264 S.W. 171, 172 (Tex.Civ.App.—Texarkana 1924, writ ref'd) (holding devise to husband “to use and to hold in any manner he may desire until his death” was life estate, because "use” and "hold” did not grant broad powers of fee simple interest).

      . In addition to Hughes, Benson, and Robison, see, e.g., Welch, 531 S.W.2d at 321 ("as long as she live”); Edds, 184 S.W.2d at 824 ("for and during her natural life, with remainder as hereinafter provided”); Dougherty v. Humphrey, 424 S.W.2d 617, 619-20 (Tex.1968) ("during the life of such survivor”); Montgomery v. Browder, 930 S.W.2d 772, 774, 776-77 (Tex.App.—Amarillo, writ denied) (“for her natural life, with remainder over at her decease”).

      . The Norris court considered no other alternative. It stated, “The question in this action to construe a will is whether testatrix devised to her husband a fee simple or a life estate.” 464 S.W.2d at 677. Apparently, nobody argued for a fee simple determinable or anything but a fee simple absolute and a life estate.


author: Opinion By Justice LAGARDE.

text:
    Ex parte Di Van NGUYEN.
    No. 05-00-00493-CR.
    Court of Appeals of Texas, Dallas.
    Nov. 14, 2000.
    Kenneth G. Wincorn, Dallas, for Appellant.
    William T. (Bill) Hill, Jr., Catherine G. Zilahy, Asst. Crim. Dist. Atty., Dallas, for State.
    Before Justices LAGARDE, KINKEADE, and WHITTINGTON.
   OPINION

Opinion By Justice LAGARDE.

Di Van Nguyen challenges the trial court’s denial of the relief he requested in his application for writ of habeas corpus. In five issues, appellant complains that: (1) the district court denied his writ of habeas corpus without holding a hearing or making a finding that, on the basis of the application for writ of habeas corpus and the attached documents, he was not entitled to relief; (2) the district court denied his writ on the basis of the court’s familiarity with the trial attorney alleged to have provided ineffective assistance; (8) the district court denied his writ by reviewing records that were not a part of the writ application; (4) appellant’s plea was entered involuntarily because he could not clearly understand the English language; and (5) the retroactive application of new federal legislation rendered his plea involuntary due to ineffective assistance of counsel. For the reasons set forth below, we vacate the trial court’s order and dismiss the application for writ of habeas corpus.

A state writ of habeas corpus is the remedy to be used when a person is restrained in his liberty. It is “an order issued by a court or judge of competent jurisdiction, directed to any one having a person in his custody, or under his restraint, commanding him to produce such person, at a time and place named in the writ, and show why he is held in custody or under restraint.” Tex.Code CRIm.Proc. Ann. art. 11.01 (Vernon 1977). After indictment and before conviction, in any non-capital felony case, a writ must be made returnable in the county where the offense was committed. Id . art. 11.07, § 2 (Vernon Supp.2000). After final conviction in any felony case, the writ must be made returnable to the court of criminal appeals. Id. art. 11.07, § 3(a) (Vernon Supp.2000).

In this case, on March 20, 1990, appellant entered a plea of nolo contendere to the charge of aggravated sexual assault. That same day, the trial court entered a finding that the evidence in the case substantiated appellant’s guilt but deferred adjudication of guilt and placed appellant on three years deferred-adjudication probation. The State never moved for adjudication of guilt, and appellant was never adjudicated guilty. Appellant is now being confined by the United States Immigration and Naturalization Service (INS), pending deportation proceedings, based on the nolo contendere plea he entered in the case. See 8 U.S.C. § 1101(a)(48)(A) (1999).

We recognize that every provision relating to a writ shall be “most favorably construed” in order to give effect to the requested remedy. Tex.Code CRIM.PROC. Ann. art. 11.04 (Vernon 1977). The application for writ of habeas corpus in this case does not request appellant’s release from custody or restraint. It does not ask that the trial court command the INS to produce appellant and show why he is held in custody. See id. art. 11.01. The application simply requests that the trial court hold an evidentiary hearing, make findings of fact and conclusions of law that appellant was denied his right to effective assistance of counsel, and allow appellant to withdraw his nolo contendere plea. We question, therefore, whether appellant’s pleading is, in substance, an application for a writ of habeas corpus because it does not seek the remedy of appellant’s release from custody. Compare id. (setting out requisites of a writ of habeas corpus).

However, to the extent appellant’s request can be construed as an application for a writ of habeas corpus to secure his release from federal custody, this matter is one of exclusively federal jurisdiction. Appellant is now in the custody of the United States Government. Therefore, only a federal court may issue a writ of habeas corpus in his case. See id. art. 11.63; see also 28 U .S.C. § 2241(c) (1994) (describing federal court habeas jurisdiction over prisoners in federal custody). The state district court in which appellant pleaded nolo contendere and was placed on deferred adjudication is not a court of “competent jurisdiction” to order federal authorities to “produce [appellant] ... and show why he is held in custody or under restraint.” Nor is it a court of “competent jurisdiction” to order the release of appellant from federal custody.

For the above reasons, we conclude the trial court was neither a court of “competent jurisdiction” to issue a writ of habeas corpus to the federal custodian restraining appellant to “show why [appellant] is held in custody or under restraint” nor a court of “competent jurisdiction” to grant the relief of appellant’s release from federal custody.

We vacate the trial court’s February 23, 2000 order denying appellant relief and dismiss the application for writ of habeas corpus. See Tex.R.App.P. 43.2(e).

      . Although appellant's brief states that he is appealing the trial court’s denial of his writ application, the trial court's order specifies that it denied the relief requested in the writ application.

      . But cf. Ex parte Cervantes, 762 S.W.2d 577, 578 (Tex.Crim.App.1988) (granting the relief requested in Cervantes’s application for writ of habeas corpus, where Cervantes had imminent deportation proceedings pending as a result of his final felony conviction), overruled on other grounds by Ex parte Tovar, 901 S.W.2d 484 (Tex.Crim.App.1995); Meraz v. State, 950 S.W.2d 739, 741-42 (Tex.App.—El Paso 1997, no pet.) (addressing Meraz's writ of habeas corpus in a misdemeanor case where the sentence had been fully discharged and Meraz was detained under a $10,000 bond as deportable for the misdemeanor offense).


author: Opinion By Justice WHITTINGTON.

text:
    The STATE of Texas, Appellant, v. Heston A. NKWOCHA, Appellee.
    No. 05-99-01950-CR.
    Court of Appeals of Texas, Dallas.
    Nov. 15, 2000.

      Donald R. McDermitt, Plano, Tom O’Connell, Crim. Dist. Atty., McKinney, for Appellant.
    Bill Dobiyanski, Asst. Crim. Dist. Atty., McKinney, for State.
    Before Justices KINKEADE, WHITTINGTON, and JAMES.
   OPINION

Opinion By Justice WHITTINGTON.

The State appeals the trial court’s order granting Heston A. Nkwocha a new trial pursuant to his application for writ of habeas corpus. The State contends (i) the trial judge erred in granting a new trial based on “newly discovered evidence” and (ii) the findings of fact and conclusions of law are not supported by the record. For the reasons that follow, we conclude the trial judge abused his discretion in granting the relief Nkwocha requested in his application for writ of habeas corpus.

BACKGROUND

Nkwocha was charged with indecency with R.N., a child. At trial, R.N. testified she was born on March 8, 1978, making her fifteen years old at the time of the December 1993 offense. In contrast, her uncle and adopted father, Adolphus Nwo-su, testified R.N. was born March 15,1974, and Nkwocha testified R.N. was about four or five years old when he left Nigeria in 1978. Although R.N.’s age at the time of the offense was hotly contested at trial, the jury ultimately found Nkwocha guilty and assessed punishment at five years’ imprisonment, probated for ten years. Nkwocha appealed to this Court, claiming the evidence was legally insufficient to support his conviction. In one of his points of error, Nkwocha contended the State did not prove beyond a reasonable doubt that R.N. was younger than seventeen at the time of the offense. This Court affirmed his conviction in an unpublished opinion.

In January 1998, the State filed a motion to revoke Nkwocha’s probation. On July 28, 1998, the trial judge held a hearing on the State’s motion to revoke. During the hearing, Nkwocha testified that while on probation, he requested and was granted permission to travel to Nigeria to find documentation that would substantiate his claim that R.N. was older than she claimed at trial. During his trip, Nkwocha obtained four documents:

(i) an affidavit executed by Fidelia Nwauchefor Nwosu and certified by the commissioner of oaths in which Fidelia testifies she is R.N.’s mother, R.N. was born on March 15, 1974, and that because she had no husband, she gave R.N. to her brother, Nwosu, to be raised as his daughter;
(ii) a birth certificate for R.N., issued on November 15, 1997, which states that R.N. was born on March 15,1974;
(iii) R.N.’s baptismal certificate which states she was born March 15, 1974 and baptized March 19,1975;
(iv) a certified copy of page 70, volume 41, of the Native Births Registry for the Lagos Mainland Local Government, Public Health Department, which states R.N. was born March 15, 1974 and registered November 17, 1978.

In addition, Nkwocha testified the process of executing Fidelia’s affidavit and certifying its authenticity was videotape recorded.

After a brief recess, the judge announced that the State and Nkwocha had agreed to postpone the proceedings indefinitely to allow Nkwocha time to file an application for writ of habeas corpus and allow the State an opportunity to further investigate and, if appropriate, “challenge the veracity of the newly proffered documents.” Then, pursuant to the agreement, he ordered the capias withdrawn and Nkwocha released from custody.

On May 18, 1999, Nkwocha filed an application for writ of habeas corpus. The State filed its response September 13, 1999. On October 27, 1999, the trial judge entered the following amended findings of fact and conclusions of law based on the affidavits, responses, and record of the case:

1. The age of the victim was vigorously contested at trial. Several persons testified that the victim was not a minor, and Applicant even secured the testimony of a dentist who testified that, based on dental x-rays, the victim was early to mid twenties in age (while also conceding on cross-examination that the victim could have been as young as 17 or 15)[.] The only evidence of the victim’s age which supports the [Sjtate’s theory of the case is from the testimony of the victim herself.
2. The geographical distance, as well as cultural differences, made it difficult to obtain documentary evidence and secure witnesses from Nigeria.
3. The only documentary evidence of the age of the victim is the evidence which is the subject of this writ, and previously unavailable to counsel. The documentary evidence which is the subject of this writ support[s] the Applicant’s allegations.
4. On July 28, 1998, this Court conducted a hearing on a Motion to Revoke Community Supervision during which hearing the Court first became aware of the newly discovered documentary evidence. At the Court’s suggestion, the hearing was placed into an agreed recess to 1) allow the Applicant to file this writ and 2) allow the [S]tate an opportunity to further investigate and, if it could, disprove or challenge the veracity of the newly proffered documents. More than a year has transpired. In its response, the State stands by the record of the jury proceedings.
5. One of the exhibits presented by the Applicant is an affidavit signed by the victim’s own mother. This affidavit is unchallenged by the State. The testimony of the mother, if her attendance could be obtained from Nigeria, or secured in some other fashion, would favor Applicant’s claims that the victim was not a minor.

The judge then concluded Nkwocha was entitled to the relief requested in his writ and ordered a new trial. This appeal followed.

STANDARD OF REVIEW

In reviewing a trial judge’s decision to grant or deny relief on a writ of habeas corpus, we afford almost total deference to a trial judge’s determination of the historical facts supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. See Ex parte Martin, 6 S.W.3d 524, 526 (Tex.Crim.App.1999) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997)); Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex.Crim.App.1996) (habeas court had opportunity to view witnesses and determine credibility). We afford the same amount of deference to the trial judge’s rulings on “applications of law to fact questions,” if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. See Ex parte Martin, 6 S.W.3d at 526. However, if the resolution of those ultimate questions turns on an application of legal standards, we review the determination de novo. See Ex parte Martin, 6 S.W.3d at 526.

In a writ of habeas corpus in which the applicant asserts that newly discovered or previously unavailable evidence demonstrates his actual innocence of the original offense, the burden is on the applicant to “show by dear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence.” Ex parte Elizondo, 947 S.W.2d at 209. Thus, the trial judge’s job is not to review the jury’s verdict but to decide whether the newly discovered evidence would have convinced the jury of the applicant’s innocence. See Ex parte Elizondo, 947 S.W.2d at 207. Absent a clear abuse of discretion, we accept the trial judge’s decision to grant the relief requested in a habeas corpus application. See Ex parte Elizondo, 947 S.W.2d at 210.

Newly DiscoveRed Evidence

In its first point of error, the State contends the trial judge abused his discretion in granting Nkwocha the relief requested in his writ and ordering a new trial because Nkwocha did not meet any of the requirements necessary to be entitled to a new trial under a claim of newly discovered evidence.

A criminal defendant is entitled to a new trial where material evidence favorable to him has been discovered since trial. Tex.Code Crim.Peoc.Ann. art. 40.001 (Vernon Supp.2000). Traditionally, there have been four requirements for obtaining a new trial based on newly discovered evidence:

• the evidence was unknown or unavailable to the defendant at the time of trial;
• the failure to discover the evidence was not due to the defendant’s want of diligence;
• the evidence is admissible, and not merely cumulative, corroborative, collateral or impeaching; and
• the evidence is probably true and will probably bring about a different result on another trial.

See Moore v. State, 882 S.W.2d 844, 849 (Tex.Crim.App.1994); Anderson v. State, 717 S.W.2d 622, 626 (Tex.Crim.App.1986) (newly available evidence treated as newly discovered evidence); Eddlemon v. State, 591 S.W.2d 847, 849 (Tex.Crim.App.1979). We see no reason to apply a different standard to the issue of newly discovered evidence when raised by writ of habeas corpus as opposed to a motion for new trial, except that, under the fourth prong, a habeas applicant must demonstrate “by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence.” See Ex parte Elizondo, 947 S.W.2d at 209.

The State contends Nkwocha did not meet the requirements necessary to be entitled to a new trial. Because we conclude there is no evidence to show that the failure to discover the evidence in this case was not due to Nkwocha’s lack of diligence, we agree. In his application for writ of habeas corpus, Nkwocha stated the newly discovered evidence was “not available at the time of trial,” “has since been discovered and documented,” and was “only recently discovered after [Nkwocha] was able to travel to Nigeria to secure the documents and/or affidavits.” Nkwocha did not discuss why he previously had been unable to obtain documentation regarding R.N.’s true birth date or how he attempted to obtain the evidence but was unable to before trial. Nor did he allege that the failure to previously obtain the documents was not due to his lack of diligence. Nothing in his testimony during the hearing on the State’s motion to revoke indicates he previously exercised diligence in attempting to find the evidence. Although the trial judge found that “the geographical distance, as well as cultural differences, made it difficult to obtain documentary evidence and secure witnesses from Nigeria,” a finding of difficulty in obtaining documents does not equate to a finding that the applicant exercised diligence. Because there is no evidence in the record that the inability to obtain the four documents in question was not due to Nkwo-cha’s lack of diligence, Nkwocha did not meet his burden of showing he was entitled to a new trial. Therefore, we conclude the trial judge abused his discretion in granting Nkwocha relief. We reverse the trial court’s order granting Nkwocha the relief he sought in his application for writ of habeas corpus and ordering a new trial. We remand this cause for further proceedings.

      . The State’s notice of appeal recites the trial judge granted Nkwocha’s “Motion for New Trial” when in fact the trial judge granted Nkwocha relief on his application for writ of habeas corpus. Nevertheless, we have jurisdiction to consider the State’s appeal. See Tex.Crim.Pro.Code Ann. art. 44.01(a)(3) (Vernon Supp.2000); State v. Kanapa, 778 S.W.2d 592, 593-94 (Tex.App.—Houston [1st Dist.] 1989, no pet.).

      . See Nkwocha v. State, No. 05-95-01406-CR, 1996 WL 317201 (Tex.App.—Dallas May 30, 1996, no pet.) (not designated for publication).

      . That same day, Nkwocha also filed an “application for writ of habeas corpus and/or motion for new trial.” This filing relies on the same documentation and requests the same relief as the application for writ of habe-as corpus.

      . In fact, the only evidence in the record shows that, during the indecency trial, Nkwo-cha testified he was "with [R.N.’s] mother [in Nigeria] three weeks ago.”


author: PER CURIAM.

text:
    Dwayne Aron KNOTTS, Appellant, v. The STATE of Texas, Appellee.
    No. 01-99-00225-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 16, 2000.

      R. Scott Shearer, Houston, for Appellant.
    Rikke Burke Graber, John B. Holmes, Houston, for State.
    Panel consists of Judges COHEN, NUCHIA, and SMITH.*

       The Honorable Jackson B. Smith, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   ORDER

PER CURIAM.

Appellant appeals his conviction for possession of cocaine.

Appellant’s retained counsel has filed a brief meeting the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in which, after reviewing the record, he concludes that the appeal is frivolous and without merit. See Gainous v. State, 436 S.W.2d 137, 138 (Tex.Crim.App.1969).

Only appointed counsel are required to file an Anders brief. Retained counsel are not required to do so. See Nguyen v. State, 11 S.W.3d 376, 378 (Tex.App.—Houston [14th Dist.] 2000, no pet.). A retained attorney, upon determining that an appeal is frivolous, must so inform this Court and seek leave to withdraw by filing a motion complying with rule 6.5 of the Texas Rules of Appellate Procedure. See id.

Rule 6.5 requires that counsel, by copy of the motion, apprise appellant of certain facts. See Tex.R.App.P. 6.5(a)(1)-(4). In addition to the rule 6.5 requirements, we hold that retained counsel must certify to this Court that appellant has been notified that he may exercise either (1) his right to retain other counsel, or (2) his right to move for an extension of time to file a pro se brief. This is to assure that the client, who will soon be without counsel, does not lose the right to be heard.

Counsel’s Anders brief cannot be construed as a motion to withdraw because it does not meet the requirements of rule 6.5. Therefore, before we grant counsel’s withdrawal motion, counsel must meet the requirements of rule 6.5 and, in addition, must certify that appellant has been informed that he has a right to retain another counsel or to file a pro se brief and to move for an extension of time to file it. Upon receipt of this certification, this Court will grant counsel’s withdrawal motion. See Nguyen, 11 S.W.3d at 379-80.

Accordingly, we ORDER appellant’s retained counsel, by December 1, 2000, to file in this Court a certification listing appellant’s last known telephone number and showing that appellant has been notified in writing of his right to object to the motion and that appellant may retain other counsel or file his own pro se brief and file a motion for extension of time to file it.

It is so ordered.

      . In his certificate of service, counsel has listed appellant's last known address.


author: O’CONNOR, Justice.

text:
    The CITY OF HOUSTON, Appellant, v. Anja COTTON, Appellee.
    No. 01-00-00480-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 7, 2000.
    Rehearing Overruled Dec. 7, 2000.
    Carole Snyder, Houston, for Appellant.
    Martin A. Shellist, Houston, for Appel-lee.
    Panel consists of Justices O’CONNOR, HEDGES, and PRICE.

      . The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

O’CONNOR, Justice.

Our Opinion of November 2, 2000 is withdrawn, and this Opinion is substituted in its place. Our judgment of November 2, 2000 remains unchanged.

In this interlocutory appeal, the City of Houston brings one point of error asserting the trial court improperly denied its plea to the jurisdiction. The City claims Anja Cotton did not comply with the Texas Whistleblower Act’s requirement that she exhaust the City’s grievance and appeal procedures before bringing suit. We overrule the City’s point of error and affirm.

Facts

The underlying issue in this case is why the City fired Cotton from her job as a food inspector. Cotton contends she was fired in retaliation for filing an affidavit against her supervisor. The City contends Cotton was fired because, among other things, she falsified her time reports, which resulted in her being paid for time she did not work.

In 1996, one of Cotton’s co-workers filed a complaint against their supervisor for misconduct. In 1997, Cotton filed a sworn affidavit corroborating the complaint against her supervisor. The supervisor was cleared after an investigation by the Office of the Inspector General.

In 1998, the City suspended Cotton for falsifying food inspection reports, fraudulently receiving overtime, and abusing her official authority. Cotton filed an appeal of her suspension with the Civil Service Commission. During the hearing on her appeal, Cotton claimed she was fired in retaliation for submitting the affidavit against her supervisor. At the end of the hearing, the Commission announced it would uphold the decision to suspend Cotton. A few days later, Cotton filed suit in district court claiming violation of the Whistleblower Act. Tex.Gov.Code § 554.002.

Failure to Exhaust Administrative Procedures

The City’s sole point of error alleges the district court improperly denied its plea to the jurisdiction alleging Cotton did not exhaust her administrative remedies as required by the Whistleblower Act.

When a party sues under a statutory cause of action, the party must comply with the administrative prerequisites. University of Texas Med. Branch v. Hohman, 6 S.W.3d 767, 774 (Tex.App.—Houston [1st. Dist.] 1999, no pet.). The statutory cause of action in this case is the Whistleblower Act, which provides:

A public employee must initiate action under the grievance or appeal procedures of the employing state or local governmental entity relating to suspension or termination of employment ... not later than the 90th day after the date on which the alleged violation of this chapter occurred ... or was discovered.

Tex.Gov’t Code §§ 554.006(a) and (b). Under the Whistleblower Act, the governmental entity must be afforded the opportunity to correct its errors by resolving disputes before facing litigation. Hoh-man, 6 S.W.3d at 774.

The City contends the first time it heard about the violation of the Whistleblower Act was during the appeal from the indefinite suspension before the Civil Service Commission. The City argues Cotton was required to raise her retaliation claim with the Office of Inspector General (OIG), which the City created to investigate allegations of employee misconduct.

The executive order establishing the OIG outlines the various duties of city employees. It states:

All City employees shall have an affirmative duty to report to the OIG, in writing, any incident of criminal or administrative misconduct by any employee of the City of Houston. This provision shall not abrogate the duty of any City employee to comply fully with all existing state laws, City ordinances, City departmental policies or other City policies regarding reporting of employee misconduct, but shall be in addition to any such duties.

In other words, the City claims Cotton was required to (1) appeal the City’s decision to fire her to the Civil Service Commission, and (2) file a written report with the OIG complaining that she was fired in retaliation for reporting wrongdoing by her supervisor. Although Cotton appealed the decision to terminate her employment, she did not file a report with OIG complaining of retaliation.

We disagree with the City. As required by the Whistleblower Act, Cotton initiated an appeal within 90 days of being terminated, which is the “alleged violation” referred to in the Act. See Tex-GoVt Code § 554.006. Once she was terminated, nothing in the Whistleblower Act required Cotton to report the retaliation to the OIG in a separate procedure.

The City relies on Gregg County v. Farrar.; 933 S.W.2d 769, 772 (Tex.App.—Austin 1996, writ denied), to support its claim that Cotton was required to file the complaint with the OIG. In Farrar, the Austin Court of Appeals found the employee had not exhausted his administrative remedies because he did not appeal the decision of the grievance committee to the commissioner’s court. Farrar, 933 S.W.2d at 775.

We do not find Farrar relevant to this case. First, the OIG procedure is neither a grievance nor an appeal procedure, as required by section 554.006 of the Whistle-blower Act. Tex.Gov’t Code § 554.006. The OIG is an investigatory arm of the City. See City of Houston, Executive ORDER 1-39 (February 3, 1998). Although the OIG can investigate complaints of retaliation, its purpose is not to resolve employee problems but to resolve issues for the City. Second, in Farrar, the employee did not follow the three-step grievance procedure outlined in the Gregg County employee manual. Farrar, 933 S.W.2d at 774. Here, Cotton followed the procedure outlined in the City of Houston Code, Division 15, Rule 15, section 14-182, for an employee contesting a suspension. That section provides that, once the mayor issues the employee a written notice of indefinite suspension, the employee has the right to appeal the decision to the commission. No other step is required to contest a suspension.

We find Cotton exhausted the City’s appeal procedures before pursuing litigation in district court. We affirm the trial court’s order denying the City’s plea to the jurisdiction.


author: JOHNSTONE, Justice. GRAVES, Justice,

text:
    Chauncey L. BURNETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 1999-SC-0384-DG.
    Supreme Court of Kentucky.
    Nov. 22, 2000.

      Daniel T. Goyette, Jefferson District Public Defender of Counsel, Bruce P. Hackett, Deputy Appellate Defender, Office of the Jefferson District Public Defender, Louisville, for appellant.
    A.B. Chandler, III, Attorney General of Kentucky, Dennis W. Shepherd, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, for appellee.
   JOHNSTONE, Justice.

Appellant, Chauncey Burnett, was convicted of first-degree trafficking in a controlled substance and first-degree persistent felony offender. He was sentenced to five years’ imprisonment which was enhanced to fifteen years on the PFO I charge. His conviction and sentence were affirmed by the Court of Appeals. We granted discretionary review and reverse.

Burnett raises the same issues in this appeal that were addressed by the Court of Appeals: (1) whether the trial court should have granted his motion for a directed verdict; and (2) whether the jury instructions denied him his right to a unanimous verdict.

FACTS

On November 15, 1996, Louisville police, responding to a narcotics complaint in an area of Clarksdale Housing Project known for frequent drug trafficking activity, saw Burnett duck behind and then enter a car. When the vehicle drove away, police followed until the vehicle came to a stop and the police observed Burnett getting out of the back seat on the passenger side of the vehicle. Burnett went to a nearby pay phone, and.made a telephone call. The police moved in, suspecting that Burnett was engaged in trafficking activity. After conducting a pat down of Burnett, the police asked for, and obtained permission from the owner of the vehicle, Burnett’s sister, to conduct a search of the vehicle. While searching the back seat, a small bag fell out of the vehicle onto the ground. The officer opened the bag, finding individually wrapped pieces of crack cocaine. Officer Scott, who was standing next to Burnett’s sister during the search, testified that when the drugs were discovered, she stated, “It [the bag] wasn’t hers and it had to be his [Burnett’s].”

DIRECTED VERDICT

Burnett first argues'that the evidence presented against him was insufficient to support his trafficking conviction. “On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.” Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991). Upon review of the evidence presented by the Commonwealth, it was not clearly unreasonable for Burnett’s jury to find him guilty.

The crux of Burnett’s argument is that there was no proof that he had actual or constructive possession of the drugs. Rather, he argues that the proof showed that Elizabeth, and not he, had constructive possession of the drugs. In support of this argument, he cites to Leavell v. Commonwealth, Ky., 737 S.W.2d 695 (1987), and Paul v. Commonwealth, Ky.App., 765 S.W.2d 24 (1988).

The Leavell Court held, “The person who owns or exercises dominion or control over a motor vehicle in which contraband is concealed, is deemed to possess the contraband.” Leavell, 737 S.W.2d at 697, citing United States v. Vergara, 687 F.2d 57 (5th Cir.1982). The main fact supporting the conclusion that the appellant had dominion or control over the vehicle was that the appellant had the ignition key to a vehicle which had some ninety pounds of marijuana in its trunk. Id. While the key did not open the trunk, there was testimony that the owner of the car had relinquished possession of the car to the appellant by giving him the keys to the vehicle. Id. Further, the appellant was prevented from taking actual physical possession of the vehicle only by the intervention of his arrest. Id.

In Paul v. Commonwealth, the appellant was a back seat passenger in a vehicle that was stopped for speeding by a state trooper. Paul, 765 S.W.2d at 25. The trooper smelled marijuana and found small marijuana roaches in the dashboard ashtray. Id. The trooper then ordered the occupants (four in all) out of the vehicle. Id. After advising the four of their Miranda rights, he asked who owned the marijuana. Id. After no one volunteered, the trooper arrested all of them for constructive possession. Id. At the police station, the appellant was discovered to be in possession of small amounts of marijuana and cocaine. Id.

The appellant moved to suppress the drug evidence on grounds that the trooper did not have probable cause to arrest her in the first place because she could not be “constructively presumed to be in possession of everything in that ear.” Id. at 25-26. The trial court denied the motion and the appellant entered a conditional guilty plea. Id. at 26. The Paul Court reversed the appellant’s conviction stating:

It has already been held that the person who owns or exercises dominion or control over a motor vehicle is deemed to be the possessor of any contraband discovered inside it.... The owner of the vehicle in which [the appellant] was riding was seated in the front seat, and another individual was driving. [The appellant] was neither the owner nor the person who had dominion or control of the vehicle. She was a back seat passenger.
While the arrests were being made the driver admitted to the detective that he had been smoking marijuana. The detective smelled marijuana and saw marijuana at the driver’s feet. He also observed roaches in the front ashtray. Thus, the detective had probable cause to arrest the driver, but not [the appellant].
Furthermore, a person’s mere presence in the same car with a criminal offender does not authorize an inference of participation in a conspiracy. The probable cause requirement is not satisfied by one’s mere propinquity to others independently suspected of criminal activity.
As the arrest violated [the appellant’s] constitutional rights, the evidence against her that was subsequently discovered should have been suppressed.

Id. (internal citations omitted).

The case at bar is factually distinguishable from Paul in two respects. First, the crack cocaine was found in the back seat next to where Burnett had been sitting as opposed to being found near the driver in the dashboard ashtray as was the case in Paul. In other words, in the case at bar, the cocaine was found in an area in the car within Burnett’s immediate control. Whereas, in Paul, the marijuana was found in an area outside of the appellant’s immediate control and inside an area within the immediate control of the front seat passengers of the vehicle. Second, in Paul, none of the occupants admitted to possessing the marijuana. In the case at bar, Elizabeth disavowed possession and claimed that the crack cocaine must have belonged to Burnett.

We agree that Leavell, supra, establishes the principle that proof that a defendant has possession and control of a vehicle is evidence to support a conviction for constructive possession of contraband found within the vehicle. However, we do not believe that either Leavell or Paul establishes the principle that proof that someone other than a passenger-defendant had possession or control of a vehicle in which contraband is found, precludes a finding that the passenger-defendant was in constructive possession of the contraband. Rather, we believe that ownership and control of the vehicle is only one factor to consider in these types of cases.

To prove constructive possession, the Commonwealth must present evidence which establishes that the contraband was subject to the defendant’s dominion and control. Hargrave v. Commonwealth, Ky., 724 S.W.2d 202, 203 (1986), cert. denied 484 U.S. 821, 108 S.Ct. 81, 98 L.Ed.2d 43 (1987). The proof offered by the Commonwealth in this case to show that Burnett was in constructive possession of the cocaine was: (1) that the cocaine was found in an area in the car next to where Burnett had previously been sitting, i.e., in an area within his immediate control; and (2) that the owner of the car disavowed possession of the drugs and claimed that they belonged to Burnett. While not overwhelming, the evidence was sufficient to create an issue of fact for the jury.

UNANIMOUS VERDICT

Burnett next argues that the jury instructions denied him a unanimous verdict. We agree.

The jury instruction for the first-degree trafficking charge provides:

You will find the Defendant, Chauncey L. Burnett, guilty under this Instruction if you believe from the evidence all of the following:
A. That in Jefferson County, Kentucky, on or about the 15th day of November 1996, the Defendant had in his possession a quantity of cocaine;
B. That in so doing, the Defendant knew the substance was Cocaine;
AND
C. That he had the cocaine in his possession with the intent to traffic in it.
If you find the Defendant guilty under this Instruction, you will say so by your verdict and no more.

The above instruction is circular in that it required the jury to find Burnett guilty of trafficking in cocaine if it believed from the evidence that he trafficked in cocaine. In other words, this instruction failed to set forth the statutory elements of the trafficking offense. Those elements were provided in a latter instruction, which defined trafficking as: “Trafficking —means to manufacture, distribute, dispense, sell or transfer a controlled substance.” This is the same definition of “traffic” as provided in KRS 218A.010(24).

In objecting to the jury instructions, Burnett argued that the Commonwealth’s sole theory of guilt on the trafficking charge was that he possessed the cocaine with the intent to sell it and that the instructions permitted the jury to find guilt on theories that were not supported by the evidence, e.g., that he possessed the cocaine with intent to manufacture it. Even though the trial court agreed with Burnett and specifically found that the evidence presented only supported the theory that the cocaine was possessed with the intent to sell, the trial court denied the motion and gave the instructions as set forth above.

The instructions given in this case varied from the model instruction for first-degree trafficking in a controlled substance as set forth in 1 Cooper, Kentucky Instructions to Juries (Criminal) § 9.11A, which provides in pertinent part:

You will find the Defendant guilty of First-Degree Trafficking in a Controlled Substance under this Instruction if, and only if, you believe from the evidence all of the following:
A. That in this county on or about _(date) ..., he had in his possession a quantity of_(ID substance);
B. That he knew the substance possessed by him was _ (ID substance);
AND
C. That he had the _ (ID substance) in his possession with the intent of [ (selhng) (distributing) (dispensing) it to another person;] [manufacturing _(ID substance)]

Thus, unlike the instruction given in the case at bar, under the model instruction for first-degree trafficking in a controlled substance, the elements of the offense are set forth in the instruction rather than requiring the jury to refer to the definition section. Furthermore, under the model instruction, the jury is instructed only as to those statutory methods of trafficking that are actually supported by the evidence. "Whereas giving the jury the general, statutory definition of trafficking likely -will result in the jury being presented with theories of guilt not supported by the evidence. This is exactly what happened in the case at bar.

“Section 7 of the Kentucky Constitution requires a unanimous verdict reached by a jury of twelve persons in all criminal cases.” Wells v. Commonwealth, Ky., 561 S.W.2d 85, 87 (1978), citing Coomer v. Commonwealth, Ky., 238 S.W.2d 161 (1951); Cannon v. Commonwealth, 291 Ky. 50,163 S.W.2d 15 (1942); see also RCr 9 .82(1). In Wells, the appellant was convicted of first-degree assault. Wells, 561 S.W.2d at 86. Under the instruction on this charge, the appellant could have been convicted “if some of the jurors believed one interpretation of the evidence, that he acted intentionally, and if the remainder of them believed the other interpretation, that he acted wantonly.” Id. at 87. The appellant argued that this deprived him of his constitutional right to a unanimous verdict. Id. We disagreed, stating:

KRS 508.010 brings together two distinct culpable mental states (intent and wantonness manifesting extreme indifference to the value of human life) and punishes them equally under specified circumstances. Either mental state will support a conviction of assault in the first degree and punishment for such crime. The legal effect of the alternative conclusions is identical. There was ample evidence to support a verdict on either theory of the case. We hold that a verdict can not (sic) be successfully attacked upon the ground that the jurors could have believed either of two theories of the case where both interpretations are supported by the evidence and the proof of either beyond a reasonable doubt constitutes the same offense.

Id. at 88 (emphasis added).

In Boulder v. Commonwealth, Ky., 610 S.W.2d 615 (1980), overruled on other grounds, Dale v. Commonwealth, Ky., 715 S.W.2d 227 (1986), we addressed the question of whether a defendant is denied a unanimous verdict when the jury is presented with alternate theories of guilt in the instructions, one of which is totally unsupported by the evidence. Id. at 617. We found that the appellant had been denied his right to a unanimous verdict, stating:

The instructions submitting count one (first degree assault) to the jury were improper. They provided alternative grounds for a finding of guilt-either that John intended to cause serious physical injury to “Cynthia” or that he was wantonly engaging in conduct which created a risk of death to “Cynthia.” The state of the evidence, however, is such that it would be clearly unreasonable for a juror to believe that John’s conduct was other than intentional. Because we can not (sic) ascertain that all the jurors based their decision on the first theoi'y, which is the only one supported by evidence, we can not (sic) say that the verdict was unanimous as required by RCr 9.82(1) and Wells v. Commonwealth, Ky., 561 S.W.2d 85 (1978). Accordingly, we reverse the conviction of first degree assault and grant a new trial on that charge.

Id. at 617 (emphasis added).

In Hayes v. Commonwealth, Ky., 625 S.W.2d 583 (1981), we reversed the appellant’s murder conviction on the same grounds. The instructions presented to the jury allowed it to find the appellant guilty of murder if it believed that when the appellant shot the victim he either did so intentionally or was wantonly engaging in conduct which created a grave risk of death. Id. at 584. As there was no evidence of wanton conduct, we reversed the conviction because “[i]t would be clearly unreasonable for the jury to believe that appellant’s conduct was other than intentional,” which thereby denied the appellant his right to a unanimous verdict. Id. at 585.

In the case at bar, the Court of Appeals indicated that the instructions given on the first-degree trafficking charge were in error, but went on to hold that the error was harmless, stating:

The evidence in this case, unlike in other cases, only lent itself to one reasonable interpretation — that Burnett possessed the crack cocaine with intent to sell. Both sides seem to concede that the evidence only could show possession with intent to sell. Thus, there could be no confusion by the jury in deciding on another method of trafficking.

Burnett v. Commonwealth, Ky.App., 1997-CA-002076-MR, slip op . at 8-9 (rendered January 15, 1999). However, the denial of a unanimous verdict — where the error is properly preserved' — is not subject to a harmless error analysis.

According to the logic of the Court of Appeals, the jury had to have based its trafficking verdict on the possession-with-intent-to-sell method of trafficking because no other theory was supported by the evidence. This reasoning is contrary to Wells, Boulder and Hayes.

Wells holds that, when presented with alternate theories of guilt in an instruction, the Commonwealth does not have to show that each juror adhered to the same theory. Rather, the Commonwealth has to show that it has met its burden of proof under all of the alternate theories presented in the instruction. Once that is shown, it becomes irrelevant which theory each individual juror believed. This result ensures that a defendant is convicted on proof beyond a reasonable doubt by all twelve jurors. Boulder and Hayes hold that, when the Commonwealth cannot show that it has met its burden of proof on all alternate theories presented to the jury in the instructions, then the defendant’s right to a unanimous verdict has been violated. This is because it cannot be ascertained from the verdict form or otherwise from the record that all of the jurors voted to convict the defendant on a theory supported by the evidence.

The Court of Appeals’ harmless error analysis is no more than a rewording of the standard of review applied to claims of error based on the trial court’s denial of a motion for a directed verdict. The basis of the error in denying the appellant a unanimous verdict in both Boulder and Hayes was that the jury was presented with at least one alternate theory of the case that was totally unsupported by the evidence. This error will always be harmless under the Court of Appeals’ analysis, because that analysis simply assumes that each juror did not convict on any alternate theory not supported by the evidence; rather, each juror voted to convict on a theory that was supported by the evidence. In other words, the Court of Appeals’ analysis treats the erroneous jury instruction as mere surplusage and effectively overrules both Boulder and Hayes.

While the Court of Appeals’ analysis is appealing on the surface, it is a misstep on a road best not traveled. The requirement that the Commonwealth must prove beyond a reasonable doubt every fact necessary to constitute the crime with which a defendant is charged is a basic and fundamental protection of the Due Process Clause of the United States Constitution. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970). Section 7 of the Kentucky Constitution and RCr 9.82(1) guarantee a defendant the right to a unanimous verdict. Construed together, these constitutional provisions require that each juror’s verdict be based on a theory of guilt in which the Commonwealth has proven each and every element beyond a reasonable doubt. From the record before us, it cannot be ascertained whether all of Burnett’s jurors voted to convict him on a theory that was supported by the evidence; it cannot be ascertained that Burnett was afforded a unanimous verdict.

When a timely objection is made that a theory of guilt set forth in the instructions is not supported by the evidence, the burden is slight upon a trial court to see that the instructions conform to the evidence. The possible prejudice to basic constitutional rights of the defendant is great. It is clear that in this case the interests of judicial economy must yield to the restraints of the Kentucky and United States Constitutions. Therefore, we hold that Burnett was denied his right to a unanimous verdict and reverse the decision of the Court of Appeals and the judgment of the Jefferson Circuit Court and remand for a new trial.

COOPER, KELLER, and STUMBO, JJ., concur.

GRAVES, J., dissents by separate opinion, with LAMBERT, C.J., and WINTERSHEIMER, J„ joining that dissent.

GRAVES, Justice,

dissenting.

Respectfully, I dissent.

A review of the evidence reveals that there was no prejudice by the jury instructions and that Appellant was not denied a unanimous verdict.

The circuit court instructed the jury on two offenses: Trafficking in a Controlled Substance in the First Degree and the lesser-included offense of Possession of a Controlled Substance in the First Degree. The Trafficking instruction read, in relevant part, that Appellant was guilty if he “had the cocaine in his possession with the intent to traffic in it.” Additionally, the instructions defined “Trafficking” as “to manufacture, distribute, dispense, sell, transfer or possess with the intent to manufacture, distribute, dispense, sell, or transfer a controlled substance.”

Even though Appellant asserts that the instruction defining “Trafficking,” permitted the jury to convict on multiple theories of the offense which were unsupported by the evidence, there is no indication the jury considered multiple theories. In fact, there was no reason for the jury to consider multiple theories. The instruction defining “Trafficking” was a general, definition instruction, not an instruction on alternate theories. It was a correct statement of the law and it mirrors the statutory definition of “Traffic” contained in KRS 218A.010.

Furthermore, there was no prejudice resulting from any possible over breadth in the definition of “Trafficking.” As the Court of Appeals aptly stated, “[wjhile the trial court’s instructions on trafficking could have been more precisely crafted, this Court cannot conclude that any error in this regard was so prejudicial as to require reversal.” The facts presented at trial support this conclusion.

Under the “harmless error” doctrine, “[tjhe court at every stage of the proceeding must disregard any error or defect in the proceeding that does not affect the substantial rights of the parties.” RCr 9.24; See also Commonwealth v. Donovan, Ky., 610 S.W.2d 601 (1980); Commonwealth v. Stamps, Ky., 672 S.W.2d 336 (1984). Even errors involving constitutional rights may be found to be “harmless error.” See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).

Here the most logical inference from the evidence is that the entire jury based its verdict on the theory of possession with intent to sell. That particular theory was the one and only theory of the case presented. In determining that the jury relied on that theory alone, the Court of Appeals found that the evidence in this case, unlike in other cases, only lent itself to one reasonable interpretation — that [Appellant] possessed the crack cocaine with intent to sell. In fact, at trial, the parties conceded that the evidence could only show possession with intent to sell. Thus, there could be no confusion by the jury in deciding on another method of trafficking. The total lack of evidence supporting an alternate theory does not require reversal.

Here, the facts indicate that the instruction did not create a “substantial possibility that the result would have been any different.” Abernathy v. Commonwealth, Ky., 439 S.W.2d 949, 952 (1969), overruled in part, Blake v. Commonwealth, Ky., 646 S.W.2d 718 (1983). Any error was harmless. RCr 9.24. The evidence was overwhelming that the drugs were possessed with the intent to sell, not any other theory. Therefore, even if the jury had been instructed more precisely, there is no indication that the verdict would have been any different. The instructions were not prejudicial and Appellant received a unanimous verdict.

Any error was harmless, and this Court should affirm the Kentucky Court of Appeals and the Jefferson Circuit Court.

LAMBERT, C.J., and WINTERSHEIMER, J., join this dissent.