text:
    Ovidio GARCIA, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 04-09-00735-CR.
    Court of Appeals of Texas, San Antonio.
    July 21, 2010.
    Rehearing Overruled Aug. 11, 2010.
    Discretionary Review Refused Nov. 10, 2010.
    Ovidio Garcia Jr., Beesville, TX, pro se.

      John A. Olson, Assistant District Attorney, Rio Grande City, TX, for The State of Texas.
    Sitting: CATHERINE STONE, Chief Justice, KAREN ANGELINI, Justice, MARIALYN BARNARD, Justice.
   OPINION

Opinion by:

KAREN ANGELINI, Justice.

This is an appeal of the denial of a motion for DNA testing. In three issues on appeal, Ovidio Garcia, Jr., argues the trial court erred in denying his request for DNA testing of materials relating to his prior murder conviction. Finding no error, we affirm the trial court’s order denying DNA testing.

BACKGROUND

In 1992, Garcia pled guilty to the offense of capital murder and was sentenced to life imprisonment. The murder victims in the capital murder case had been burned beyond recognition and were identified by personal possessions found on the bodies. In 2002, Garcia filed a motion for DNA testing, and in 2008, he filed an additional motion for DNA testing. In his motions, Garcia argued that he was entitled to DNA testing of (1) the human organs of the four burned bodies and (2) two pieces of blood-covered asphalt from the crime scene. According to Garcia’s motions, DNA testing on the human organs would show whether the remains were, in fact, human, and further, if they were human, whether they were the remains of the individuals named in the indictment. Both motions were set for hearing on June 27, 2008. Garcia, who waived his right to counsel, appeared at the hearing by telephone and represented himself. He is also representing himself on appeal. After the trial court denied his motions, he filed this appeal.

Discussion

Article 64.01 of the Texas Code of Criminal Procedure provides that a convicted person may request the convicting court to order forensic DNA testing of evidence containing biological material. Tex.Code Crim. Proc. Ann. art. 64.01(a) (Vernon Supp. 2009). The motion must be sworn to by the convicted person and contain statements of fact supporting the motion. Id. In the motion, the convicted person may request testing only of evidence “that was secured in relation to the offense that is the basis of the challenged conviction and was in the possession of the state during the trial of the offense.” Id. art. 64.01(b). The trial court is required to order DNA testing only if it finds that (1) the evidence still exists and is in a condition making DNA testing possible; (2) the evidence has been subjected to proper chain of custody; (3) identity was or is an issue in the case; (4) the person establishes by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing; and (5) the request for the proposed DNA testing is not made to unreasonably delay execution of sentence or administration of justice. Id. art. 64.03(a),(c). Further, if the convicted person pled guilty or confessed, he may still submit a motion for DNA testing, and the court is prohibited from finding that identity was not an issue solely on the basis of that plea or confession. Id. art. 64.03(b).

We review the trial court’s decision on a motion for DNA testing under a bifurcated standard of review. Whitaker v. State, 160 S.W.3d 5, 8 (Tex.Crim.App.2004). We afford almost total deference to the trial court’s determination of issues of historical fact and issues of application-of-law-to-fact that turn on credibility and demeanor of witnesses. Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App.2002). We review de novo other issues of application-of-law-to-fact questions that do not turn on the credibility and demeanor of witnesses. Id.

In his first issue, Garcia complains that the trial court erred in sustaining the State’s objection to his motion for DNA testing based on the fact that Garcia’s motions were not properly sworn to as required by article 64.01(a). Although the trial court sustained the State’s objection, in its order denying DNA testing, it noted that “to avoid a re-pleading and re-litigation of these issues,” it considered “the motion, as supplemented, in the interest of justice.” Thus, because the trial court considered all of Garcia’s issues in spite of sustaining the State’s objection to the motions for DNA testing, Garcia suffered no harm. We, therefore, overrule Garcia’s first issue on appeal.

In his second issue on appeal, Garcia contends the trial court erred in denying his motion for DNA testing based on its interpretation of the “identity” issue requirement under article 64.03 of the Texas Code of Criminal Procedure. Specifically, Garcia complains of the trial court finding that the term “identity” in article 64.03(a)(1)(B) refers to the identity of the perpetrator of the crime and not to the victims. Thus, according to Garcia, the trial court erred in finding Garcia was not entitled to DNA testing for the purpose of showing whether the victim’s remains were human and, if so, whether the remains belonged to those individuals named in the indictment.

Before a trial court orders forensic DNA testing, the defendant must show identity was or is an issue in the case. Tex.Code Crim. Proc. Ann. art. 64.03(a)(1)(B) (Vernon Supp. 2009); see Bell v. State, 90 S.W.3d 301, 306-07 (Tex.Crim.App.2002). “Although the court of criminal appeals has not explicitly stated that ‘identity,’ as used in article 64.03(a)(1)(B), means the identity of the perpetrator,” in Blacklock v. State, 235 S.W.3d 231, 232 (Tex.Crim.App.2007), it “suggested as much.” In re Kennard, No. 03-07-00308-CR, 2008 WL 899606, at *2 (Tex.App.-Austin 2008, no pet.) (citing Blacklock, 235 S.W.3d at 232) (not designated for publication). In Blacklock, 235 S.W.3d at 232-33, the court of criminal appeals noted that exculpatory DNA testing excluding the defendant as the donor of the biological material would establish his innocence, which, according to the court of criminal appeals, was “precisely the situation in which the Legislature intended to provide post-conviction DNA testing.”

Emphasizing this language from Blacklock, the Austin Court of Appeals in Kennard held that “identity” as used in article 64.03(a)(1)(B) means the identity of the perpetrator. In re Kennard, 2008 WL 899606, at *3. In Kennard, the defendant, who had been convicted of aggravated sexual assault, admitted to having sexual intercourse with the victim, but, in order to undermine the victim’s credibility, sought DNA testing to show the victim was lying about not having sexual intercourse with other men on the night in question. Id. at *1. Specifically, the defendant conceded that his identity was and is not an issue, but nevertheless argued that the identity of the second spermatozoa contributor was an issue. Id. The Austin Court of Appeals disagreed. See id. at *2. In considering the plain language of article 64.03(a)(1)(B), the court concluded that “identity” must mean the identity of the perpetrator of the offense. Id. The court additionally explained that, at the time the legislature adopted chapter 64, it also enacted a statute “providing for the preservation of biological material that would establish the identity of the person who committed the offense or exclude a person from the group who could have committed the offense.” Id. (emphasis added); see Tex.Code Crim. Proc. Ann. art 38.43 (Vernon Supp. 2009). Thus, the court held that “identity” as used in article 64.03(a)(1)(B) means the identity of the perpetrator and affirmed the trial court’s order denying the motion for DNA testing, explaining it was undisputed that the identity of the perpetrator was not an issue. In re Kennard, 2008 WL 899606, at *2-3.

Likewise, in Reger v. State, 222 S.W.3d 510, 514 (Tex.App.-Fort Worth 2007, pet. ref'd), cert. denied, 552 U.S. 1117, 128 S.Ct. 917, 169 L.Ed.2d 760 (2008), the Fort Worth Court of Appeals held that “identity” as used in article 64.03(a)(1)(B) means identity of the perpetrator. In Reger, despite admitting to having shot and killed the victim, the defendant claimed identity was and continued to be an issue because the identity of the first aggressor was critical to corroborate his self-defense theory. Id. The Fort Worth Court of Appeals disagreed and held that “this contention fails to raise an issue as to the identity of the perpetrator of the alleged offense, which is required under the plain meaning of article 64.03(a)(1)(B).” Id. Similarly, in Lyon v. State, 274 S.W.3d 767, 768-69 (Tex.App.-San Antonio 2008, pet. ref'd), this court held identity was not an issue where the defendant claimed “identity” as used .in article 64.03(a)(1)(B) could mean identity of the first aggressor. In Lyon, the defendant admitted to having stabbed the victim, but argued that identity of the first aggressor was an issue in the case and that DNA testing would help him establish his self-defense theory. Id. at 768. In affirming the trial court’s order denying DNA testing, this court emphasized that the defendant sought to use the DNA testing to excuse his actions rather than to exclude himself as the perpetrator. Id. at 769. Citing Blacklock, this court stated “[t]he purpose of DNA testing under article 64.03 is to provide an avenue by which a defendant may seek to establish his innocence by excluding himself as the perpetrator of the offense.” Id.

While other cases have not explicitly held that “identity” as contemplated by article 64.03(a)(1)(B) refers to identity of the perpetrator, they have indicated such. See Hooks v. State, 203 S.W.3d 861, 863-64 (Tex.App.-Texarkana 2006, pet. ref'd); Lewis v. State, 191 S.W.3d 225, 228 (Tex.App.-San Antonio 2005, pet. ref'd); see also Birdwell v. State, 276 S.W.3d 642, 645-46 (Tex.App.-Waco 2008, pet. ref'd).

In Hooks, 203 S.W.3d at 863-64, the Texarkana Court of Appeals held that identity was not at issue in an intoxication manslaughter cáse. In his motion for DNA testing of blood and hair samples, the defendant did not contest that he was driving the vehicle that struck the victim, but argued that the police officers switched the DNA samples at the accident scene, thus falsely portraying him as guilty. Id. In holding identity was not an issue, the Texarkana Court of Appeals suggested that “identity” refers to identity of the perpetrator:

The trial court specifically found that DNA testing would neither prove nor disprove the identity of the operator of the vehicle [that] struck and killed the victim. The trial court further held as a matter of law that identity was not an issue. As the State points out, Hooks never contests that he was driving the vehicle [that] struck the victim, instead repeatedly admitting, “I hit the person with my truck.”
Hooks asks us to broaden the scope of the term “identity” in article 64.03 to include the identity of DNA samples, but doing so would render the word “identity” meaningless. Adopting Hooks’ definition would allow an appellant to obtain a DNA test when the identity of any substance, evidence, or person even remotely involved in the case was disputed. An appellant could raise the issue of identity when it never existed at trial, thus not only negating the plain meaning of the “was or is” language in the statute, but also contradicting the Legislature’s directive to place the burden on the appellant to show that DNA testing is warranted.

Id. at 864.

Likewise, in Lewis, 191 S.W.3d at 228, this court held that identity was not an issue where the defendant, who was convicted of sexual assault of a child, did not deny that he had had sexual intercourse with the minor, but instead sought DNA testing to prove the minor was sexually promiscuous. Id. at 229.

Finally, in Birdwell, 276 S.W.3d at 645-46, the Waco Court of Appeals suggested “identity” as used in article 64.03(a)(1)(B) means identity of the perpetrator in a case in which the defendant claimed DNA testing could show the presence of a third party in the room where the victim had been stabbed and killed. The court explained “[t]he purpose of DNA testing under article 64.03 is to provide an avenue by which a defendant may seek to establish his innocence by excluding himself as the perpetrator of the offensé.” Id. According to the court, the “contested issue in [the] trial was not who stabbed and killed [the victim], but why [the defendant] stabbed her.” Id. at 646 (emphasis in original).

Here, the trial court, in its order denying the motion for DNA testing, concludes that the term “identity” as used in article 64.03(a)(1)(B) means the identity of the perpetrator, not the identity of the victim. The trial court does, however, acknowledge that the Corpus Christi Court of Appeals “has suggested, without so holding, that a challenge to the victim’s identity may require DNA testing under Chapter 64.” See In re State, 218 S.W.3d 837 (Tex.App.-Corpus Christi 2007, orig. proceeding). In that case, the defendant, who was convicted of murder, sought DNA testing of some blood found on a towel in order to help him prove his self-defense claim. Id. at 840. Although the Corpus Christi Court of Appeals held that identity was not an issue, in its opinion, the court suggested that identity as used in article 64.03(a)(1)(B) could mean the victim’s identity: “Neither [the defendant’s] identity nor the victim’s identity is being challenged.” Id. (emphasis added). We note, as did the trial court in the case before us, that the Corpus Christi Court of Appeals did not hold that “identity” contemplates the victim’s identity. The court’s statement about the victim’s identity was unnecessary to the opinion and is at odds with all the above-cited authorities.

We agree with the trial court’s finding that the term “identity” as used in article 64.03(a)(1)(B) means the identity of the perpetrator, not the identity of the victim. Thus, we overrule Garcia’s second issue on appeal.

In his third issue, Garcia contends the trial court erred by implicitly denying his request for subpoena duces tecum. Because we have found that identity is not and was not an issue, which is a requirement for ordering DNA testing pursuant to article 63.04(a)(1)(B), we need not address Garcia’s issue concerning the denial of his request for subpoena duces tecum. See Birdwell, 276 S.W.3d at 646 (holding that because identity was not and is not at issue, and because the appellant would be entitled to DNA testing only if identity was or is at issue, it need not address appellant’s remaining issues). Thus, we overrule Garcia’s third issue.

Having overruled all of Garcia’s issues on appeal, we affirm the trial court’s order denying DNA testing.

      . In his brief, Garcia also claims that his identity as the perpetrator is an issue. We, however, agree with the trial court’s finding that Garcia never raised the issue of his identity as the perpetrator in the trial court. Specifically, in his motions for DNA testing, Garcia contended he was entitled to DNA testing of the victim’s remains to determine whether the victims were human and, if so, whether they were the victims named in the indictment. He also requested DNA testing of blood-covered asphalt pieces retrieved from the crime scene for the purpose of disproving the State's theory of the case that the blood on the asphalt was the blood from some of the victims. These contentions in his motions did not place Garcia’s identity as the perpetrator in issue. And, by failing to argue in his motions for DNA testing that his identity as the perpetrator was in issue, he has waived any such issue on appeal.


source: Caselaw Access Project

author: SANDEE BRYAN MARION, Justice.

license: Public Domain

text:
    Mauricio MARTINEZ-PARTIDO, Appellant, v. METHODIST SPECIALTY AND TRANSPLANT HOSPITAL; Methodist Healthcare System of San Antonio. Ltd., L.L.P. d/b/a Methodist Specialty and Transplant Hospital; Jane or John Doe(s), Hospital Employee(s); and Jane or John Doe(s), Hospital Nurse(s), Appellees.
    No. 04-09-00463-CV.
    Court of Appeals of Texas, San Antonio.
    July 21, 2010.

      Terry “Ty” Wesley Baker, Baker Law Office, Gerónimo, TX, for Appellant.
    W. Richard Wagner, Patterson, Wagner, and Rocheleau, Christopher J. Deeves, Lucretia R. Marmor, Ball & Weed, P.C., San Antonio, TX, for Appellee.
    Sitting: SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice, MARIALYN BARNARD, Justice.
   OPINION

Opinion by:

SANDEE BRYAN MARION, Justice.

This is an appeal from the trial court’s dismissal of appellant’s medical malpractice claim against appellees. The dismissal is based on appellees’ objections to the qualifications of appellant’s experts. We reverse and remand.

BACKGROUND

In January 2000, appellant had an AMS 800 Artificial Urinary Sphincter implanted. Appellant underwent another surgery, in February 2003, at Methodist Specialty and Transplant Hospital (“Methodist”) to add an additional constricting sleeve or “cuff’ to the device to alleviate leakage. A follow-up procedure on April 4, 2003, also at Methodist, was performed to reposition one of the AMS 800 components. Six weeks later, appellant went to Methodist’s emergency room complaining of urinary retention. When appellant, a Spanish-speaking male, arrived at Methodist, he presented to the emergency room personnel a medical information card that informs healthcare providers that the patient has an AMS 800 implanted and cautions healthcare providers to deactivate the device prior to urethral catheterization. Despite noting the AMS 800 in admission paperwork, despite presenting the medical card to emergency room personnel, and despite having been a surgical patient at Methodist six weeks earlier, several attempts were made, the last of which was successful, to “push” a catheter through appellant’s activated AMS 800.

Appellant filed suit against Methodist, two doctors, and “Jane or John Doe” hospital employees and nurses. Appellant alleged he suffered personal injuries because appellees catheterized him without first de-activating his artificial urinary sphincter. Appellant timely filed two expert reports: that of Paul M. Adler, D.O. and that of Emily Benefield, R.N. Appel-lees’ motion to dismiss the suit, based on objections to both reports, was denied by the trial court. Following an interlocutory appeal, this court reversed the trial court and found that Dr. Adler was not qualified to render an opinion on causation and Ms. Benefield was not qualified to render an opinion on the standard of care. See Methodist Healthcare Sys. of San Antonio, L.L.P. v. Martinez-Partido, 268 S.W.3d 73, 78 (Tex.App.-San Antonio 2006). The Texas Supreme Court vacated our judgment and remanded to the trial court, concluding appellant was entitled to have the trial court decide whether he should receive an extension of time in which to file a new expert report. See Martinez-Partido v. Methodist Healthcare Sys. of San Antonio, L.L.P., 267 S.W.3d 881, 882 (Tex.2008) (per curiam). Upon remand, the trial court granted appellant a thirty-day extension in which “to cure deficiencies in [appellant’s] expert reports.” Appellant timely filed a new report from Dr. Adler and a report from a urologist, Bruce B. Garber, M.D. Appellees filed new objections to both reports and a motion to dismiss, which the trial court granted. This appeal ensued.

APPELLEES’ OBJECTIONS TO REVISED REPORTS

In his initial report, Dr. Adler offered his opinion on causation. In his revised report, he does not offer a causation opinion, but instead, offers his opinion on the appropriate standard of care and the breach of that standard. On appeal, appellant first argues that because appellees objected to Dr. Adler’s qualifications when Dr. Adler’s initial report was first filed, appellees may not do so again, but instead, must stand on those prior objections. Our resolution of this issue requires an interpretation of section 74.351 of the Texas Medical Liability and Improvement Act (“MLIA”). Section 74.351 provides that “[i]f an expert report has not been [timely] served because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency.” Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c) (Vernon Supp. 2010). Section 74.351 also provides that “[e]ach defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived.” Id. § 74.351(a).

When interpreting statutes, courts should ascertain and give effect to the Legislature’s intent as expressed by the language of the statute. See Tex. Gov’t Code Ann. § 312.005 (Vernon 2005); see also Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 383 (Tex.2000). We give effect to legislative intent as it is expressed by the plain meaning of words used in the statute unless the context necessarily requires a different construction, a different construction is expressly provided by statute, or such an interpretation would lead to absurd or nonsensical results. See Hernandez v. Ebrom, 289 S.W.3d 316, 321 (Tex.2009); Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999). A court may not judicially amend a statute and add words thát are not implicitly contained in the language of the statute. Jones v. Liberty Mut. Ins. Co., 745 S.W.2d 901, 902 (Tex.1988). Thus, we also must examine the Legislature’s words in the context of the statute as a whole and not consider words or parts of the statute in isolation. Harris County Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex.2009).

“When the Legislature has prescribed certain time limits and procedures, it is not our prerogative to add further limitations to them.” Hernandez, 289 S.W.3d at 321. Here, section 74.351 limits a claimant’s opportunity to cure a deficient report to “one thirty-day extension.” Tex. Crv. Prac. & Rem.Code § 74.351(c). The only limitation placed on objections is a time limit: the objections must be filed no later than the twenty-first day after the date the report was served. Id. § 74.351(a). If the Legislature had intended to otherwise limit objections, it would have done so. See e.g., Tex. Gov’t Code Ann. § 74.053(b) (Vernon 2005) (“If a party to a civil case files a timely objection to the assignment, the judge shall not hear the case. Except as provided by Subsection (d), each party to the case is only entitled to one objection under this section for that case.”). We therefore hold that when, as here, a revised report is submitted in which an expert opines on a new “matter,” objections to the expert’s report with respect to that new “matter” may be raised. Accordingly, the trial court did not err in considering appellees’ objections to Dr. Adler’s revised report.

OBJECTIONS TO EXPERT QUALIFICATIONS

Appellant next asserts the trial court erred in sustaining the merits of the appel-lees’ objections to the qualifications of Dr. Adler and Dr. Garber. Dr. Adler opined on standard of care and breach, while Dr. Garber opined on causation.

A person may qualify as an expert witness on the issue of whether a health care provider departed from accepted standards of care only if the person:

(1) is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose;
(2) has knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and
(3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care.

Tex. Civ. Prac. & Rem.Code § 74.402(b).

In determining whether a person is qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the person:

(1) is certified by a licensing agency of one or more states of the United States or a national professional certifying agency, or has other substantial training or experience, in the area of health care relevant to the claim; and
(2) is actively practicing health care in rendering health care services relevant to the claim.

Id. § 74.402(c).

A. Objections to Dr. Adler

A plaintiff offering expert medical testimony must establish that the expert has expertise regarding “the specific issue before the court which would qualify the expert to give an opinion on that particular subject.” Broders v. Heise, 924 S.W.2d 148, 153 (Tex.1996). The analysis focuses on “the very matter” on which the expert is to give an opinion. Id. Here, appellees objected that Dr. Adler was not qualified to opine on the standard of care and alleged breach of the standard of care. More specifically, appellees asserted Dr. Adler was not qualified in emergency medical care because he was not and is not certified by a licensing agency, nor does he have other substantial training or experience in an area of medical practice relevant to the claim, and he is not actively practicing medicine/health care in rendering medical care services relevant to the claim. Appellees also asserted Dr. Adler is not qualified to set forth the emergency department nursing standard of care or alleged breaches of that standard of care.

There is no dispute that, prior to this 2003 claim, Dr. Adler practiced in emergency medicine. However, his curriculum vitae indicates his American Board of Emergency Medicine certification went inactive in 2001 and he has not yet been re-certified. Therefore, he is not “certified by a licensing agency of one or more states of the United States or a national professional certifying agency-” Tex. Civ. PRAC. & Rem.Code § 74.402(c)(1). But section 74.402(c)(1) is phrased in the disjunctive, therefore, we may also consider whether Dr. Adler “has other substantial training or experience, in the area of health care relevant to the claim.” Id. § 74.402(c)(1). Finally, we also must determine whether Dr. Adler “is actively practicing health care in rendering health care services relevant to the claim.” Id. § 74.402(c)(2). We begin our analysis of whether Dr. Adler met the statutory requirements by first ascertaining the “matter” upon which he offered his opinion.

B. Focus of Dr. Adler’s Report

Dr. Adler’s opinions do not focus on the medical treatment appellant received or should have received. Instead, Dr. Adler focuses on a break-down in communications that led to the failure to deactivate the AMS 800 before trying to insert a catheter. Dr. Adler’s report begins with an extensive explanation of the device implanted into appellant for the purpose of providing him with some control over his urinary incontinence. He also notes appellant was an elderly Spanish-speaking male, and appellees did not provide a mechanism for effective communication between healthcare providers and patients with limited or no English proficiency. Appellant’s medical records indicate that he gave the emergency room personnel a medical information card that alerts health care providers that the patient has the AMS 800 and cautions health care providers to deactivate the device prior to urethral catheter-ization. Despite having the card and despite having been a patient at Methodist six weeks earlier, emergency room personnel “ram[med] a catheter through [appellant’s] activated (constricted)” device causing significant blood and urine discharge. Only after this was a staff urologist called and he disabled the device.

Dr. Adler’s opinion then turns to the applicable standard of care and breach of the standard of care. As to the standard of care owed by the defendant-hospital and the breach of the standard of care, he focuses on the need to ensure the availability of a mechanism for effective communication between healthcare providers and patients with limited or no English proficiency. As to the standard of care owed by the nursing staff and the breach of the standard of care, he focuses on the need to ascertain a proper course of medical treatment and/or medical consultation in light of any patient-specific medical information cards, communications with the patient, and the patient’s available medical history. Finally, as to the standard of care owed by the non-physician, non-nursing staff and the breach of the standard of care, he focuses on the need to forward to and/or alert the appropriate health care providers, nurses, and/or physicians about patient-specific medical information, in this case, the appellant’s medical information card. With the subject-matter of Dr. Adler’s opinion in mind, we next address his expertise relative to this “matter.”

C. Dr. Adler’s Qualifications

Appellees argue that none of the positions held by Dr. Adler concerned emergency room care and that he failed to show he was actively practicing health care in rendering treatment in an emergency room to a patient who had an artificial urinary sphincter. Appellees also contend that because Dr. Adler is not a trained or licensed nurse, he is not qualified to render an opinion on the standard of nursing care.

Different standards of care apply to physicians and health care providers. See Simonson v. Keppard, 225 S.W.3d 868, 872 (Tex.App.-Dallas 2007, no pet.). If a physician states he is familiar with the standard of care and responsibilities and requirements for healthcare providers, and he has worked with, interacted with, and supervised healthcare providers, the physician is qualified on the issue of whether the health care providers departed from the accepted standards of care for health care providers. See San Jacinto Methodist Hosp. v. Bennett, 256 S.W.3d 806, 814 (Tex.App.-Houston [14th Dist.] 2008, no pet.) (distinguishing Simonson on ground that expert specifically stated, “I am familiar with the standard of care for both nurses and physicians for the prevention and treatment of decubitus ulcers.”); Kelly Ryan Cook, P.A. v. Spears, 275 S.W.3d 577, 582-84 (Tex.App.-Dallas 2008, no pet.) (distinguishing Simonson on ground that expert specifically stated, “I am familiar with the standards of care anywhere in the United States for arthroscopic knee surgery, and the practices, procedures and protocols on the part of a physician, a physician assistant acting as a surgical assistant, anesthesiologist, and a hospital/surgical center. There is no difference in the applicable standards of care for Frisco, Texas, as opposed to the same practices in other areas of Texas, New Jersey, California, or anywhere else in the United States ... I am very familiar with the standard of medical care for physicians, [and] physician assistants acting as a surgical assistant ... concerning the diagnosis, treatment, and arthroscopic knee surgery of patients.”).

At the time the claim arose and at the time the testimony was given, Dr. Adler served as Medical Director at Summit Park Hospital, Summit Park Nursing Care Center and Alzheimer’s Facility, Rockland County Jail, and Rockland County New York’s Department of Public Health. He is the former Chairman and Residency Director in the Department of Emergency Medicine at Cornell Medical School at Brooklyn Hospital Center in Brooklyn, New York. And, from 1991 through 2002, he was an attending physician in the emergency department at Brooklyn Hospital Center. In the introduction to his expert report, Dr. Adler states as follows:

I am and have been a licensed and actively practicing physician since 1977, with a particular emphasis in emergency health care. In a number of my positions throughout my career as a physician, I have been responsible for overseeing and supervising all personnel, including medical, non-medical, and nursing personnel, and all aspects of emergency room operations in a variety of hospital and clinical settings. My training and education, coupled with my experience in these positions, have provided me with personal, first-hand knowledge of the standards of care for all personnel involved in emergency room health care treatment, which is applicable to all emergency room treatment facilities throughout the United States. As a medical director of numerous medical facilities, I am also very familiar with the standard of care owed all patients by the medical facility itself, which can include, but is not limited to, proper documentation of patient treatment and provision of translation services for patients with limited or no English proficiency. Finally, I am generally familiar, through both my training, experience, and review of medical literature, with the AMS 800 Artificial Urinary Sphincter, its usage, and its functionality.

We conclude Dr. Adler’s training and experience as an emergency department physician and his extensive administrative experience qualifies him to opine about the standard of care or breach of that standard in this case. The need to properly communicate a patient’s medical history crosses all disciplines and medical settings, and Dr. Adler’s experience as medical director at numerous medical facilities more than qualifies him to opine on what hospitals and hospital personnel should do to ensure a patient’s medical history is properly communicated. Therefore, the trial court erred in sustaining the objections to Dr. Adler’s report.

CONCLUSION

We reverse the trial court’s judgment and remand for further proceedings.

      . The doctors are no longer parties to the suit.

      . On appeal, appellees no longer object to Dr. Garber’s qualifications to opine on causation.

      . Because we conclude the trial court erred in sustaining appellees’ objections to the expert reports, we do not address appellant’s open court, separation of powers, and due process complaints. We also need not address appellant’s complaint that the trial court erred in sustaining appellees’ objections to two exhibits attached to Dr. Adler's report.


text:
    In the Interest of M.P.
    No. 04-10-00180-CV.
    Court of Appeals of Texas, San Antonio.
    July 21, 2010.

      Gerald A. Uretsky, Attorney At Law, Manuel C. Rodriguez, Jr., Law Office of Manuel C. Rodriguez, Jr., San Antonio, TX, for Appellant.
    Kristen L. Calvert, Cadena-Reeves Justice Center, Christina L. Falkiewicz, Christina L. Falkiewicz, P.C., San Antonio, TX, for Appellee.
    Sitting: SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice, MARIALYN BARNARD, Justice.
   OPINION

Opinion by:

SANDEE BRYAN MARION, Justice.

This is an accelerated appeal from the trial court’s order terminating the appellant’s parental rights. We affirm.

GROUNDS FOR TERMINATION

On appeal, appellant’s appointed counsel states he “cannot say the trial court abused its discretion by ruling [appellant’s] points of appeal are frivolous.” After a review of the record from the new trial hearing, which provides a summary of the evidence admitted at the termination trial, we conclude the appeal is frivolous.

Appellant’s parental rights were terminated based upon the trial court’s findings that (1) appellant failed to complete his court-ordered family service plan; (2) appellant failed to regularly visit the child during the pendency of the case; (3) appellant was unable to provide the child with a safe environment; and (4) termination was in the child’s best interest. On appeal, appellant challenges the sufficiency of the evidence in support of only the first and second grounds.

At the new trial hearing, appellant’s counsel asserted appellant was unable to initially complete some of the family plan provisions because he was on Methadone. However, once he “got off Methadone he always tested clean, had stable housing, stable employment, regularly paid child support and regularly visited his son.” The attorney appearing for the child conceded appellant got off Methadone, but asserted appellant had “dirty drug tests” during that time. Counsel also stated appellant had not completed a parenting course, an empowerment course, or a drug assessment. Appellant only visited his child four times over a ten-month period. Counsel for the State added that appellant, who lived with his mother, had been told his current living situation with his mother, who herself is a convicted felon, as well as other people that might be in the home, was not an appropriate environment and he needed to find an alternative place to live. Appellant did not do so. Counsel noted that throughout the case appellant’s “story” about where he worked changed and he never provided actual proof of where he worked. Although appellant’s counsel characterized appellant as the “non-offending parent,” counsel for the State pointed out appellant continued a relationship with the mother while she was using heroin and while he used heroin with her.

Based upon our review of the record from the new trial hearing, we conclude the evidence is legally and factually sufficient to support at least one of the statutory grounds of termination found by the trial court. Therefore, the trial court did not abuse its discretion in finding appellant’s appeal frivolous.

ASSISTANCE OF COUNSEL

On appeal, appellant’s counsel states: “Appellant’s trial counsel requested that Appellant urge his ineffective assistance of counsel” claim; “[t]herefore, Appellant urges his trial counsel’s ineffective assistance of counsel for the first time on appeal.” Appellate counsel provides no argument in support of that claim and presents no allegations of the manner in which trial counsel was ineffective. Therefore, we overrule this issue.

CONCLUSION

We conclude the trial court did not abuse its discretion in determining appellant’s appeal was frivolous. Therefore, we affirm the trial court’s Order of Termination.


text:
    In the Interest of J.J.L., J.M.L., L.M.E., G.X.E., Jr., and M.A.E.
    No. 04-10-00061-CV.
    Court of Appeals of Texas, San Antonio.
    July 21, 2010.

      Gerald A. Uretsky, Attorney At Law, San Antonio, TX, for Appellant.
    Charles A. Rubiola, Wayne Ted Wood, Attorneys at Law, Kevin P. Yeary, Assistant Criminal District Attorney, San Antonio, TX, for Appellee.
    Shawn D. Sheffield, Law Office of Shawn D. Sheffield, San Antonio, TX, for Ad Litem.
    Sitting: CATHERINE STONE, Chief Justice, SANDEE BRYAN MARION, Justice, MARIALYN BARNARD, Justice.
   OPINION

Opinion by:

SANDEE BRYAN MARION, Justice.

This is an appeal from the trial court’s termination of appellant’s parental rights. Because the trial court found the appeal frivolous, appellant was not entitled to a free copy of the record from the termination trial. Appellant’s court-appointed appellate attorney filed a brief stating that after reviewing the record of the new trial hearing he could not say the trial court abused its discretion in determining appellant’s appeal was frivolous, presumably because he could not review the record from the termination trial. Therefore, appellate counsel urges this court to adopt a local rule requiring the filing of the full record from the trial on the merits in parental rights termination cases without the necessity of alleging trial counsel was ineffective. We decline to do so in all cases for two reasons.

First, this court has held that a full record of the termination trial is not always necessary to ascertain whether a trial court has abused its discretion in determining an appeal is frivolous. In re T.C., 299 S.W.3d 828, 828 (Tex.App.-San Antonio 2009, no pet.). A full record may be required only if “[a]fter reviewing the record from the new trial hearing, we are unable to determine whether the trial court acted within its discretion from that record alone.” Id. In other words, if the record of the new trial hearing contains a summary of the evidence adduced at the termination trial, both in support of and contrary to the termination order, then a determination, based only upon the record of the new trial hearing, of whether the trial court abused its discretion is generally possible. This places an obligation on the attorneys for the State, the respondents), and any ad litems to present a full summary of the evidence adduced at the termination trial. Conclusory statements by counsel that the evidence was sufficient or insufficient are inadequate. And, trial courts should require attorneys to present a full summary of the evidence, even if the judge hearing the motion for new trial is the same judge who presided over the termination trial.

Second, we recognize appellants may raise ineffective assistance of counsel for the first time on appeal. See In re J.O.A., 283 S.W.3d 336, 339 (Tex.2009). However, in order to obtain a free record on appeal, such a claim must be more than merely a conclusory statement that trial counsel was ineffective. Appellate counsel must present allegations of the manner in which trial counsel was ineffective and arguments in support of the claim before this court will consider ordering a free record to be filed.

In this case, the record from the new trial hearing contains no summary of the evidence adduced at trial. Instead, the record contains only conclusory statements by the attorneys that the evidence was either insufficient or sufficient. Therefore, based upon a review of only the record from the new trial hearing, it is impossible to ascertain whether the trial court abused its discretion. Accordingly, a review of the reporter’s record from the termination proceeding is necessary to determine whether the trial court abused its discretion. In re T.C., 299 S.W.3d at 828.

It is therefore ordered that the court reporter shall, on or before thirty (30) days from the date of this opinion and order, and without cost to the appellant, prepare and file the reporter’s record containing all of the evidence admitted at the termination trial. We further deny appellant’s motion to withdraw and strike appellant’s brief filed on April 20, 2010 and order appellant to file a brief on whether the appeal is frivolous on or before twenty (20) days after the date the reporter’s record is filed. Appellee’s brief is ordered to be filed on or before twenty (20) days after the date appellant’s brief on frivolity is filed.

      . See Tex.R.App. P. 34.6(d). This order does not require the court reporter to prepare a reporter's record of any nonevidentiary portions of the trial, such as pretrial hearings, voir dire, closing arguments, and post judgment proceedings.


author: MARIALYN BARNARD, Justice.

text:
    Margaret JORGENSEN, Appellant, v. TEXAS MEDCLINIC, Appellee.
    No. 04-09-00404-CV.
    Court of Appeals of Texas, San Antonio.
    July 21, 2010.
    Robert L. Mays, Jr., Attorney at Law, San Antonio, TX, for Appellant.
    Michael H. Wallis, Thornton, Biechlin, Segrato, San Antonio, TX, for Appellee.
    Sitting: KAREN ANGELINI, Justice, STEVEN C. HILBIG, Justice, MARIALYN BARNARD, Justice.
   OPINION

Opinion by:

MARIALYN BARNARD, Justice.

Margaret Jorgensen appeals from the trial court’s order granting Texas Med-Clinic’s motion to dismiss for failure to file an adequate expert report pursuant to section 74.351 of the Texas Civil Practice and Remedies Code. See Tex. Crv. Prac. & Rem.Code Ann. § 74.351 (Vernon Supp. 2009). Jorgensen contends the trial court abused its discretion in finding the report inadequate, and alternatively, in refusing to allow her to amend the report. We reverse the trial court’s order granting Texas MedClinic’s motion to dismiss, and remand this cause for further proceedings.

BACKGROUND

According to Jorgensen’s petition, she and her two children received flu shots at a Texas MedClinic in San Antonio, Texas. Jorgensen claimed that when she received her shot, the needle was placed “at the midpoint of her upper right arm,” and she immediately felt a burning sensation that radiated “down her outer arm and including the little finger and ring finger of her right hand.” Jorgensen believed the needle had “hit a nerve,” and the burning sensation and numbness she was experiencing would soon resolve themselves. Jorgensen, however, alleged the problems continued, and she was unable to do many normal, daily activities. Jorgensen claimed she ultimately sought medical help, and an MRI of her cervical spine ruled out nerve impingement. Other tests resulted in a diagnosis of sensory ulnar neuropathy of the right ulnar nerve, and Jorgensen was referred to physical therapy. Later, Jorgensen was seen by Dr. Robert Lowry, who determined Jorgensen had suffered trauma to her right arm as a result of a toxin and ulnar nerve injury above the elbow. According to Dr. Lowry, the flu shot Jorgensen received “was actually placed at the tendon above the right elbow such that the vaccine was injected below the tendon and worked around the plan of the humerus to chemically injure both the ulnar nerve and the tendon itself, resulting in shoulder weakness, decreased range of motion and paresthesia.” According to the petition, physical therapy did not alleviate Jorgensen’s condition, and she continues to suffer from numbness and pain.

In 2008, Jorgensen filed a health care liability claim against Texas MedClinic based on respondeat superior. Jorgensen asserted that “[t]he person who negligently administered the injection in question was acting as an employee and/or agent of Texas MedClinic and was acting within the course and scope of her employment.” In support of her claim, and in an attempt to comply with the requirements of section 74.351(a) of the Texas Civil Practice and Remedies Code, Jorgensen served Texas MedClinic with a report from Dr. Lowry. Texas MedClinic filed an objection to the report and a motion to dismiss, asserting the report was insufficient as a matter of law. At the hearing on Texas MedClinic’s motion to dismiss, the argument was limited to the failure of the expert report to include the name of the defendant in the expert report. At the conclusion of the hearing, the trial court stated that based on case law provided by Texas MedClinic regarding the failure of Jorgensen’s report to name Texas MedClinic, it had no choice but to grant the motion to dismiss. The parties did not argue, nor did the trial court consider the alleged substantive inadequacy raised in Texas MedClinic’s objection, i.e., the insufficiency of the causation element. The trial court also denied Jorgensen’s request to allow her time to amend the report. Jorgensen then perfected this appeal.

Analysis

Jorgensen raises three issues on appeal. She contends: (1) because there was but one defendant in this case, her expert report constituted a good faith effort to comply with the expert report requirement of section 74.351, and therefore the trial court abused its discretion in granting the motion to dismiss; (2) because Texas Med-Clinic was sued under the doctrine of re-spondeat superior as opposed to direct negligence it was unnecessary to name Texas MedClinic in the report, and therefore the trial court abused its discretion in granting the motion to dismiss; and (3) even if the report was deficient for failing to name Texas MedClinic, the trial court abused its discretion in refusing to allow Jorgensen an opportunity to amend the report.

An appellate court reviews a trial court’s order dismissing a claim for failure to comply with the expert reporting requirements of section 74.351 under an abuse of discretion standard. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex.2006) (reviewing adequacy of expert report for abuse of discretion under predecessor statute) (citing Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877-78 (Tex.2001)); Regent Care Ctr. of San Antonio II, Ltd. P’ship v. Hargrave, 300 S.W.3d 343, 345 (Tex.App.-San Antonio 2009, pet. denied) (same). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex.2004) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1986)); Hargrave, 300 S.W.3d at 345. A trial court has no discretion in determining what the law is or applying it to the facts of the case. In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 642-43 (Tex.2009) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). If a trial court fails to analyze or apply the law correctly, it has abused its discretion. Id.; Hargrave, 300 S.W.3d at 345-46. In other words, “a trial court’s ‘erroneous legal conclusion, even in an unsettled area of law, is an abuse of discretion.’ ” Perry v. Del Rio, 66 S.W.3d 239, 257 (Tex.2001) (orig. proceeding) (quoting Huie v. DeSha-zo, 922 S.W.2d 920, 927-28 (Tex.1996) (orig. proceeding)).

Section 74.351 requires a plaintiff to serve on each party “one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted.” Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). An “expert report” is “a written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care providers failed to meet the standards, and the causal relationship between that failure and the injury, harm or damages claimed.” Id. § 74.351(r)(6). A court must grant a motion to dismiss under section 74.351(b) if, after the deadline for serving the report has passed, it appears to the court “the report does not represent an objective good faith effort to comply with the definition of an expert report.” Id. § 74.351(i).

To qualify as a “good faith effort,” the report need not “marshal all the plaintiffs proof,” or present evidence as if the plaintiff were litigating the merits. Palacios, 46 S.W.3d at 878; Hargrave, 300 S.W.3d at 346. Rather, to satisfy the “good faith” requirement, the report need only provide enough information to fulfill two purposes: (1) “inform the defendant of the specific conduct the plaintiff has called into question,” and (2) “provide a basis for the trial court to conclude that the claims have merit.” Palacios, 46 S.W.3d at 879; Hargrave, 300 S.W.3d at 346.

Texas MedClinic contends the report is not a good faith effort, and in fact is no report at all because it does not name Texas MedClinic or any of its employees or agents. Texas MedClinic contends, among other things, that without knowing which employee or agent administered the flu vaccine, this court must speculate as to the applicable standard of care, which is not permitted. See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex.2002). Texas MedClinic suggests that by not naming Texas MedClinic or any of its employees or agents, the report fails because it lacks sufficient specificity to link Texas Med-Clinic to the required elements of the report. Based on the specific facts of this case, we disagree, and hold the report did constitute a good faith effort to comply with the mandates of section 74.351. See Palacios, 46 S.W.3d at 879; Hargrave, 300 S.W.3d at 346.

We recognize this case is unusual — most cases in which the report fails to name the defendant involve more than one health care provider, or a course of treatment that necessarily involves other health care providers. See, e.g., Rivenes v. Holden, 257 S.W.3d 332, 333, 338 (Tex.App.-Houston [14th Dist.] 2008, pet. denied); Apodaca v. Russo, 228 S.W.3d 252, 257-58 (Tex.App.-Austin 2007, no pet.). Here, however, there is one defendant, one defined medical procedure, and one applicable standard of care. More specifically, there is but one defendant named in a petition that contends as its sole basis of liability that a flu vaccine was improperly administered by agents or employees of that one defendant. There is but one specific medical procedure at issue versus a course of treatment involving numerous health care providers. And, finally, despite Texas MedClinic’s assertion, there is but one applicable standard of care in this case, i.e., the standard of care applicable to the proper administration of a flu vaccine, whether it be administered by a doctor, a physician’s assistant, a nurse practitioner, a nurse, or any other health care provider qualified to administer vaccines. It is self-evident that the proper protocol for the administration of a flu vaccine does not vary among health care providers, and therefore, the standard of care applicable in this case is the same no matter who performed the procedure.

Accordingly, we hold under the specific confines of this case, i.e., a single defendant named in the petition, alleging a single defined medical procedure, which involves one applicable standard of care, the section 74.351 report served by Jorgensen was a “good faith effort.” See Palacios, 46 S.W.3d at 879; Hargrave, 300 S.W.3d at 346. The failure in this case to name Texas MedClinic in the report did not result in a failure to inform Texas Med-Clinic of the specific conduct called into question, i.e., the improper administration of a flu vaccine, nor did it deprive the court of sufficient information to determine whether Jorgensen’s claim had merit. See Palacios, 46 S.W.3d at 878-79; Hargrave, 300 S.W.3d at 346. Accordingly, the failure to include the name of the defendant or its employees in the section 74.351 report did not result in an inadequate or absent report. The trial court therefore reached an erroneous legal conclusion, thereby abusing its discretion, in determining the failure to name Texas MedClinic in the report rendered it inadequate or “no report.” See Perry, 66 S.W.3d at 257.

When the trial court rendered its decision during the hearing, the court specifically stated:

See, I don’t know that I have any choice ... other than to grant a motion to dismiss because my reading of the Apo-daca case indicates that because there’s no reference to a specific defendant, that it’s as if there’s no report filed. And with the report being due in 120 days, if I have to treat this as if no report is filed, then I think the only thing I can do is to dismiss it.

Based on the court’s statement, it clearly concluded that it was legally bound to dismiss the case because of the failure to name Texas MedClinic in the report. And, in reaching this conclusion, the court believed it was so bound because of the decision of the Austin Court of Appeals in Apodaca v. Russo. 228 S.W.3d at 257-58. This was the sole basis for the trial court’s decision.

We hold the court was not bound by Apodaca, and in fact reached an erroneous legal conclusion by relying on that case. See Perry, 66 S.W.3d at 257. In Apodaca, the court of appeals affirmed a trial court’s dismissal of a health care liability claim where the section 74.351 report failed to name the defendant health care provider. 228 S.W.3d at 257-58. However, in reaching its decision, the court specifically noted the report implicated other doctors and health care providers, and referenced their conduct. Id. at 257. Additionally, the plaintiff in Apodaca underwent a course of treatment over several days that involved numerous health care providers. Id. at 253-56. Here, other health care providers are not implicated in the report with regard to Jorgensen’s injury, nor is it even suggested that other health provider engaged in conduct that resulted in the alleged injury. And, Jorgensen was not subjected to a course of treatment over several days, but a single, defined medical procedure that took minutes. Apodaca is therefore distinguishable on its facts.

We recognize that in its objections and motion to dismiss, as well as on appeal, Texas MedClinic contends that even if the trial court erred in granting the motion to dismiss based on Jorgensen’s failure to name Texas MedClinic in the expert report, the dismissal was proper because the causation element of the report was con-clusory, thereby rendering the report inadequate. We express no opinion on this issue because although the issue was raised in the objection and motion to dismiss, it was not argued at the hearing, and as previously noted, the trial court specifically stated its decision to dismiss was based on the failure to name Texas Med-Clinic in the report. The trial court never had an opportunity to rule on this contention.

Based on the foregoing, and under the specific facts of this case, the trial court erred in granting the motion to dismiss, and we reverse the trial court’s order and remand this matter for further proceedings.


author: JIM R. WRIGHT, Chief Justice.

text:
    Tracie Lee DAVES, Appellant, v. STATE of Texas, Appellee.
    No. 11-09-00075-CR.
    Court of Appeals of Texas, Eastland.
    Sept. 16, 2010.

      Rick A. Navarrete, Morales & Navar-rete, Midland, for appellant.
    Teresa J. Clingman, District Attorney, Eric Kalenak, Asst. Dist. Atty., Midland, for Appellee.

      Panel consists of: WRIGHT, C.J., McCALL, J„ and STRANGE, J.
   OPINION

JIM R. WRIGHT, Chief Justice.

A jury found Tracie Lee Daves guilty of the offense of possession of a controlled substance (cocaine) in an amount of one gram or more but less than four grams. That same jury assessed her punishment at confinement for three years, and it recommended that the court suspend the sentence and place her on community supervision. In accordance with the jury’s recommendation, the trial court placed Daves on community supervision for a term of six years. We affirm.

Appellant presents two points of error. In the first point, she complains that the trial court erred when it overruled her motion to suppress the fruits of what she perceives to be an unlawful search and seizure. In her second point of error, appellant maintains that the evidence is legally and factually insufficient to support the conviction.

Officer William Taylor Welch testified that on March 10, 2008, he was on canine patrol for the City of Midland. Officer Welch noticed that a driver failed to stop at a red traffic light. The officer followed the vehicle and saw the driver change lanes in an intersection and also saw him drive through a blinking yellow light. The driver also stopped at another red traffic light but drove on before it changed to green. After he observed those traffic violations, Officer Welch stopped the vehicle and, when he talked to the driver, noticed the smell of alcohol coming from him.

During the ensuing field sobriety tests, the driver, Cody Large, decided to prove to Officer Welch that he was not intoxicated, and he devised his own field sobriety test: he tried to walk on his hands. As Large was attempting to perform that task, various items began to fall from his pockets. One of those items was a purple marihuana pipe.

After Officer Welch arrested Large for possession of narcotic paraphernalia, he handcuffed him and placed him in front of the officer’s patrol car. Officer Welch went back to the car that Large was driving and asked the passenger (who happened to be appellant) to get out of the vehicle so that he could search it “incident to arrest.” Appellant got out of the vehicle and stood on the sidewalk. At some point in time, the officer discovered that the vehicle being driven by Large belonged to appellant.

Officer Welch began his search of the vehicle on the driver’s side but found no contraband. He continued to search the vehicle and eventually searched the passenger area where appellant had been riding. Appellant’s purse was in that area. Officer Welch looked in the purse and found a small baggie of marihuana, a prescription bottle (in someone else’s name) that contained thirty-eight whole and twenty-two half Zoloft pills, pipe screens used in pipes for smoking marihuana, and a syringe that contained eighty cubic centimeters of a liquid. The officer also found a set of digital scales in the rear passenger area. Finally, Officer Welch found a baggie containing a white powdery substance stuffed between the front passenger seat and the center console. The liquid in the syringe and contents of the baggie field-tested positive for cocaine. It is appellant’s possession of the contents of the baggie that forms the basis for the charge in this case.

Appellant claimed that the search was unlawful and unreasonable in violation of “Appellant’s rights under The Fourth and Fourteenth Amendments of The United States Constitution; Article One, Section Nine of the Texas Constitution; and Articles 38.22 and 38.23 of The Texas Code of Criminal Procedure.” Based upon those claims, appellant asked the trial court to suppress the results of the search of the vehicle. The trial court denied the motion, and appellant’s claim remains the same in this court and is the subject of her first point of error.

We review a trial court’s ruling on a motion to suppress for an abuse of discretion. Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App.2007). We view the record in the light most favorable to the ruling, affording almost total deference to the trial court’s ruling on express or implied determination of historical facts and its application of law-to-fact decisions that are supported by the record and turn on an evaluation of witness demeanor and credibility. Id. All other law-to-fact decisions are reviewed de novo, which includes a trial court’s determination of reasonable suspicion and probable cause. See State v. Ross, 32 S.W.3d 853 (Tex.Crim.App.2000); Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App.1997). Because the trial court did not make explicit findings of fact, we view the evidence in the light most favorable to the trial court’s ruling and assume that the court made implicit findings of fact supported by the record. Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App.2005). The trial court’s ruling will be upheld if it is reasonably supported by the record and if it is correct under any applicable legal theory. State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App.2006). This is true even when the trial court gave the wrong reason for its ruling. Armendariz v. State, 123 S.W.3d 401, 404 (Tex.Crim.App.2003).

The Fourth Amendment to the United States Constitution protects persons from unreasonable searches and seizures by government officials. U.S. Const. amend. IV; Hubert v. State, 312 S.W.3d 554, 560 (Tex.Crim.App.2010); Wiede, 214 S.W.3d at 24. Generally, those searches that are conducted without a warrant are said to be unreasonable. Wiede, 214 S.W.3d at 24. A defendant bears the initial burden to produce evidence that rebuts a presumption of proper government conduct. Amador v. State, 221 S.W.3d 666, 672 (Tex.Crim.App.2007). A defendant has met that burden if he establishes that there was no warrant for the search or seizure. Id. The burden then' falls upon the State to show that, under the totality of the circumstances, the search or seizure was nevertheless reasonable. Id. There was no warrant in this case, and the burden was upon the State to establish the existence of an exception to the warrant requirement in order to show that the search and seizure of appellant’s vehicle and contents was reasonable. A search made incident to a lawful arrest, with certain conditions and limitations, is one exception to the warrant requirement. This exception arises from officer safety and evidence preservation issues. Arizona v. Gant, — U.S. -, -, 129 S.Ct. 1710, 1716, 173 L.Ed.2d 485 (2009).

Recently, in Gant, the United States Supreme Court addressed the issue of warrantless searches and seizures involving vehicles. There, Gant was arrested for driving with a suspended driver’s license. He was handcuffed and locked in the back of a squad car. The officers then searched his vehicle and found a gun, and in a jacket lying on the backseat of the vehicle, they also found a bag of cocaine. Gant was convicted for possessing the cocaine. Gant took the position that the search of his vehicle was unreasonable. He could not reach into the vehicle for a weapon, and he was arrested for a traffic offense and no evidence related to that offense would be located inside the vehicle. Ultimately, the Arizona Supreme Court agreed and held that the search was not justified. A majority of the United States Supreme Court agreed with the Arizona Supreme Court. A search incident to arrest is unreasonable if it occurs after the person who is arrested has been secured and cannot access the interior of the vehicle. Gant, 129 S.Ct. at 1714. However, the Court also recognized that circumstances involving vehicle searches were unique and that a search of a vehicle incident to arrest is justified in those situations when it is reasonable to believe that evidence related to the offense for which the arrest was made might be found in the vehicle. Id.

The Gant court discussed and compared its earlier opinion in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). In Belton, the police stopped a vehicle because the driver was speeding. When the officer contacted the driver, he noticed the smell of burnt marihuana. The officer also saw an envelope in the floor of the car with the word “Supergold” written on it. The officer recognized the name as one relating to marihuana. The officer had probable cause to believe those persons in the vehicle had committed a drug offense. He told them to get out of the vehicle, and he placed them in places where they could not physically touch each other. The officer did not handcuff them because he had only one set of handcuffs, and he was the only officer present. He searched the vehicle and, as in Gant, found cocaine in the pocket of a jacket lying on the backseat.

In finding that the search in Gant did not pass constitutional muster, the Supreme Court wrote that officers were constitutionally permitted to search a vehicle incident to the arrest of a recent occupant only if that person is within reaching distance of the passenger compartment of the vehicle at the time of the arrest or, as in Belton, if “it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Gant, 129 S.Ct. at 1723. And, a Belton search includes not only the passenger compartment but also “every purse, briefcase, or other container within that space.” Gant, 129 S.Ct. at 1720.

In the case we are reviewing, the arrest was for possession of narcotic paraphernalia. It would be reasonable for the officer to believe that the vehicle contained evidence related to that offense. Because it would be reasonable for the officer to believe that the vehicle contained evidence related to the offense for which the arrest was made, the search of the passenger compartment of the vehicle and containers within it and the seizure of the items found as a result of that search were reasonable.

The trial court did not err when it denied appellant’s motion to suppress. The first point of error is overruled.

In her second point of error, appellant argues that the evidence is both legally and factually insufficient to support her conviction.

To determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Laster v. State, 275 S.W.3d 512, 517-18 (Tex.Crim.App.2009); Jackson v. State, 17 S.W.3d 664, 667 (Tex.Crim.App.2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Laster, 275 S.W.3d at 519; Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App.2006); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App.2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App.1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses’ testimony. Tex.Code Crim. PROC. Ann. art. 38.04 (Vernon 1979).

We have already outlined the evidence as it relates to the night of appellant’s arrest. It was appellant’s position at trial that William Darrell Jobe and Paula René Doggett had left the cocaine in her vehicle when they borrowed it on March 9, 2008, the night before appellant was arrested.

Cody Large testified for appellant. He knew appellant, Jobe, and Doggett. Jobe and appellant were “cohabitating.” On March 9, 2008, Large and Doggett were together in Doggett’s car. Doggett called Jobe to make arrangements to buy some cocaine. Large and Doggett were going to “use” together. Large and Doggett met Jobe at “The County Line,” a “sex shop.” Jobe was in appellant’s vehicle. Doggett gave the keys to her vehicle to Large, told him to “[fjollow us,” and got into the vehicle with Jobe. Jobe was driving. As Large was following them, a tire on the car being driven by him went flat. There were some complications in getting the tire changed, and Large never met with Jobe and Doggett.

Meanwhile, Midland County Sheriff Gary Painter did meet up with Jobe and Doggett. He saw appellant’s vehicle parked in a place where it should not have been “at that time of night.” The vehicle was “blacked out.” Sheriff Painter called Midland County Deputy Sheriff Ronald Wright to assist him. Doggett was in the driver’s seat, and Jobe was in the front passenger seat when Sheriff Painter arrived. When Deputy Wright joined Sheriff Painter, he saw Doggett outside of the vehicle on the driver’s side. Jobe was in the front passenger seat. As Doggett walked toward Deputy Wright, she dropped several items on the ground. One of those items was a brown pouch with a syringe in it. Another of the items was a piece of a plastic bag that contained cocaine. Both Jobe and Doggett were arrested. Deputy Wright arrested Jobe later on an unrelated charge of possession of a controlled substance.

Sheriff Painter testified that he and Deputy Wright performed a full and thorough search of the vehicle. They found cotton balls with blood on them, needles with blood on them, and a Coke can containing wet cotton that tested positive for cocaine. Sheriff Painter also said that “there was some cocaine that was inside the car. There was [sic] also some plastic bags that had some residue.” They did not find any bags of cocaine during the search on March 9, like Officer Welch did on March 10. When shown the cocaine appellant was charged with possessing and when asked whether he would have overlooked it during the March 9 search, Sheriff Painter said, “I wouldn’t have missed that, no.”

After Sheriff Painter and Deputy Wright completed the search of the vehicle, it was impounded and another search, an inventory search, was performed. No additional cocaine was noted.

The next morning, Large went to appellant’s house and found out that Jobe and Doggett had been arrested and that appellant’s car had been impounded. Large took appellant to the impound to retrieve her car and then followed her back to her place of employment as manager of “Henry’s Hide-Away,” a bar in Midland. Large helped her with various chores at the bar and had been drinking throughout the day. At some point in time, Large took Doggett’s car to her sister’s house, and the sister drove him back to Henry’s Hide-Away where he remained until closing.

The jury heard testimony that Large had been convicted of the felony offense of tampering with evidence in a cocaine case.

After the bar closed, Large and appellant got into appellant’s vehicle; Large was driving. Four or five minutes later, Officer Welch was following them. As noted in our discussion of appellant’s first point of error, Large committed several traffic violations, and Officer Welch stopped him. Again, as noted in our discussion of appellant’s first point of error, this is the point where the officer suspected that Large was intoxicated and began to administer various field sobriety tests, including that devised by Large. During this time, the purple marihuana pipe fell out of Large’s jacket; he was handcuffed and placed at the front of the officer’s squad car.

Appellant testified. Her account of the day’s events preceding Large’s arrest are in essence in agreement with Large’s testimony. She also testified that, when the officer asked Large to get out of the car, she assumed that the officer would want to see her insurance card. She opened the glove box to get the card and saw a syringe lying there. She “freaked out” and “panicked,” and she dropped the syringe in her purse. She admitted to marihuana use and that the marihuana and related items in her purse were hers. She testified that “Dora Ruth Caldwell” gave her the Zoloft pills because Caldwell did not take them anymore and because appellant could not afford to get her own prescription refilled. But, in regard to syringes, appellant said, “I don’t have anything to do with them. I mean, I don’t shoot up or do anything like that.” She maintained that it was “left over in the car from [Jobe] and [Doggett], because that’s what they do when they get together.” She did not know what was in the syringe, although she said that she had a pretty good idea.

After appellant had been arrested, Jobe told her that the drugs “were his; that he had them; that he put it in the glove box whenever the officer pulled behind him.” Appellant testified that Jobe also told her that, when the time came, he would admit that “they were his.” Jobe told appellant that he had told Sheriff Painter that the drugs were his. She could not find Jobe at the time of trial; he was hiding out because of probation violations.

Sheriff Painter testified that Jobe called him and told him that the drugs found in appellant’s vehicle were his. The sheriff did not report that statement to the prosecutor because he thought Jobe was lying.

When we review all of the evidence in accordance with the well-established standards of review, we find it to be both legally and factually sufficient to support the verdict. The officers testified to the thoroughness of their search after the March 9 incident. Both Sheriff Painter and Deputy Wright were sure that, had the items Officer Welch found in the search on March 10 been present on March 9, they would have found them. Not only did they do a thorough search at the time of arrest, they also performed a subsequent inventory search. Sheriff Painter testified that he took everything out of the glove box when he performed the search on March 9. He told the jury that, if the syringe found in appellant’s purse had been in the glove box, he would have seen it. The same is true of testimony regarding the cocaine found between the front passenger seat and the center console. The sheriff and the deputy both testified that they would not have missed that. Further, the jury was the judge of •the credibility of the witnesses and the weight to be given to the testimony.

After reviewing all of the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found the essential elements of the crime of possession of a controlled substance beyond a reasonable doubt. The evidence is, therefore, legally sufficient to support the verdict. Furthermore, after reviewing all of the evidence in a neutral light, the evidence supporting the verdict is not so weak that the verdict is clearly wrong and manifestly unjust. And, the verdict is not against the great weight and preponderance of the conflicting evidence. Therefore, the evidence is factually sufficient. Appellant’s second point of error is overruled.

We affirm the judgment of the trial court.


author: GUADALUPE RIVERA, Justice.

text:
    In the Interest of C.P., J.L., J.L., and L.A.L., Children.
    No. 08-08-00350-CV.
    Court of Appeals of Texas, El Paso.
    Sept. 29, 2010.

      Marlene Gonzalez, El Paso, TX, for Appellant.
    Patrick Bramblett, Bramblett & Associates, El Paso, TX, for Appellee.
    Michael D. Becker, Office of the Attorney General, Rande K. Herrell, John B. Worley, Appellate Litigation Section— Child Support Division, Assistant Attorney Generals, Austin, TX, for Real Party in Interest.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

GUADALUPE RIVERA, Justice.

Appellant, Maria Delgado, appeals the trial court’s child-support judgment in favor of Appellee, Juan Lara. For the following reasons, we affirm.

BACKGROUND

Maria Luisa Delgado and Juan Crisosto-mo Lara married and had four children. C.P., the oldest, was born on October 28, 1972, J.L. and J.L., the twins, were born on October 10, 1975, and L.A.L., the youngest, was born on October 24, 1980. In 1986, Delgado and Lara divorced. The divorce decree, which is not part of the appellate record, ordered Lara to pay child support in the amount of $124 each month. The parties do not dispute that amount or that the decree was silent as to when Lara’s obligation ceased.

On November 2, 2006, the Attorney General filed a motion to confirm unpaid child support, alleging arrears in excess of $22,000. The matter was referred to the associate judge. At the hearing on the motion, the associate judge received into evidence the payment history attached to the Attorney General’s motion alleging the arrearage. Lara, however, testified that he paid the entire amount. Delgado contested that Lara always paid the child support due, but noted that when he turned 65, the children received over $200 in Social Security benefits each month. She also testified that L.A.L., the youngest, ran away when he was 15 years old. For a few months, L.A.L. lived with his uncle, but he later moved in with C.P. During that time, Delgado continued to support L.A.L.

At the conclusion of the hearing, the associate judge was concerned that L.A.L. became emancipated at age 15, and therefore, any child-support obligation terminated, rendering the Attorney General’s motion to confirm untimely filed. The judge also noted that since Lara received an award for Social Security, one of the issues presented was whether those payments to his children, in an amount larger than the ordered child support, could offset or credit the arrearage amount, if any. The Attorney General waived any argument on the Social Security issue, and the associate judge thereafter stated that there “are zero arrears.” The written judgment reflects that the associate judge “finds and confirms” that Lara was “in arrears in the amount of $zero,” and that the court “grants and renders” judgment against Lara and in favor of the Attorney General in the amount of “zero.” Delgado then appealed the associate judge’s determination, and the trial court found no error in the judgment. Delgado now appeals that determination.

DISCUSSION

Delgado brings two issues for our review. The first asserts that the trial court erred by granting a Social Security disability offset or credit to Lara’s child-support arrearage when Section 157.262(a) of the Family Code, as in effect when the trial court rendered its judgment, did not authorize the offset or credit. And the second issue contests the trial court’s authority to grant such a credit or offset when Lara never filed a motion to modify the original child-support order. Lara responds that the trial court never obtained jurisdiction over the motion to confirm ar-rearage as the motion was not brought within ten years after the date the child-support obligation terminated as a matter of law, and that even if the trial court had jurisdiction, because the trial court found no arrearage, there was no credit, nor was he required to file a motion to modify.

Jurisdiction

Initially, we address Lara’s jurisdictional contention. Section 157.005 of the Family Code addresses how long a court retains jurisdiction to confirm child-support arrearages. See In re S.C.S., 48 S.W.3d 831, 834 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). As applicable in this case, the statute limits a trial court’s jurisdiction to confirm a child-support ar-rearage and render a cumulative monetary judgment for past-due child support where the motion for enforcement was filed not later than the tenth anniversary after the date the child became an adult, or on which the child-support obligation terminated under the order or by operation of law. Tex. Fam.Code Ann. § 157.005(b) (Vernon 2008).

The parties do not contest that the original decree of divorce is silent as to the duration of the child-support obligation. When the decree is silent, the child-support obligation terminates on the marriage of the child, the removal of the child’s disabilities for general purposes, the death of the child, or upon a finding by a court that the child was 18 years of age or older and has failed to comply with the enrollment or attendance requirements for school, or enlists in the armed forces. See Tex. Fam.Code Ann. § 154.006(a) (Vernon 2008). Here, Lara contends that his child-support obligation terminated when L.A.L. left home at 15, claiming L.A.L.’s disabilities were removed, that is, he alleges L.A.L. was emancipated by operation of law when he left Delgado’s home to live with C.P., the oldest child, from the time he was 15 years old until he reached age 18. Thus, Lara asserts that the motion to confirm child-support arrearage was not timely filed.

L.A.L. was born on October 24, 1980. The motion to confirm arrearage was filed on November 2, 2006. Therefore, if L.A.L. was emancipated at age 15, as claimed by Lara, the motion to confirm arrearage was due no later than October 24, 2005. See Tex. FamCode Ann. § 157.005(a). However, if L.A.L. was not emancipated, the motion to confirm was timely filed as it fell within ten years from the time L.A.L. was 18. See id.; Tex. FamCode Ann. § 154.006(a).

Standard of Review

Whether a minor has been emancipated is ordinarily a fact question to be determined from the statements and conduct of the parents and other surrounding circumstances where the evidence on the issue is conflicting. Durham v. I.C.T. Insurance Co., 283 S.W.2d 413, 415 (Tex.Civ.App.-Dallas 1955, writ dism’d); Smith v. Rickerts, 38 S.W.2d 644, 647 (Tex.Civ. App.-Amarillo 1931, no writ). However, when the evidence is undisputed, the question is one of law. Smith, 38 S.W.2d at 647.

Application

In Texas, a minor’s cessation of living with the managing conservator, without more, is insufficient to establish emancipation. See Williams v. Patton, 796 S.W.2d 526, 531 (Tex.App.-Houston [1st Dist.] 1990), aff'd on other grounds, 821 S.W.2d 141 (Tex.1991); Laird v. Swor, 737 S.W.2d 601, 603 (Tex.App.-Beaumont 1987, no writ); In the Matter of the Marriage of Barrera, No. 01-87-00773-CV, 1988 WL 10847, at *1 (Tex.App.-Houston [1st Dist.] Feb. 11, 1988, no writ) (op., not designated for publication). Here, the evidence adduced at the hearing before the associate judge revealed that although L.A.L. left home at age 15 to live with his uncle and later with C.P., Delgado continued to support L.A.L. by forwarding money for his care. There was no evidence to the contrary, much less any assertion that L.A.L. was supporting himself. Cf. Wanes v. City of Houston, 281 S.W.2d 133, 134 (Tex.Civ.App.-Galveston 1955, no writ) (noting that minor was emancipated when he lived apart from his father and was supporting himself). Accordingly, based on the facts of this case, we hold, as a matter of law, that L.A.L. was not emancipated when he left Delgado’s home at age 15. See In re Mexican Restaurants, Inc., Nos. 11-04-00154-CV, 11-04-00155-CV, 2004 WL 2850151, at *1-2 (Tex.App.-Eastland Dec. 2, 2004, no pet.) (mem. op., not designated for publication) (finding no emancipation when daughters lived in a separate apartment since father continued to exercise control over them, their services, and their earnings); In re Marriage of Barrera, 1988 WL 10847, at *1-2 (finding no emancipation when daughter left mother’s house to live with friends when mother continued to pay for daughter’s everyday items and medical expenses); see also Hildebrand v. Hildebrand, 239 Neb. 605, 477 N.W.2d 1, 5 (1991) (finding no emancipation when daughter moved into an apartment to be on her own but still continued to be supported by her parents); Durfee v. Durfee, 796 P.2d 718, 718 (Utah Ct.App.1990) (finding no emancipation when son moved from mother’s home to grandmother’s home during school year where payments to mother were forwarded to grandmother and used to support son).

Because L.A.L. was not emancipated at age 15, any disabilities were not removed and the motion to confirm child-support arrearage was timely filed as it fell within ten years from the time L.A.L. was 18. See Tex. Fam.Code Ann. §§ 157.005(a), 157.006(a). Accordingly, the trial court had jurisdiction to entertain the motion to confirm arrearage.

The Issues

We now turn to Delgado’s issues, which contest the trial court’s offset or credit for Social Security disability payments. According to Delgado,'the statutes in effect at the time the trial court rendered its judgment did not provide for such an offset or credit (Issue One), and even if the statutes did, the trial court could not grant the credit since Lara never filed a motion to modify (Issue Two). However, our review of the record reflects that the trial court found and confirmed no arrearage; thus, we find nothing in the record to suggest that the trial court granted a Social Security credit, and based on our determination that no credit was given, Lara, therefore, was not required to file a motion to modify in this case. Accordingly, Delgado’s arguments fail.

Standard of Review

We review a trial court’s order confirming child-support arrearages under an abuse-of-discretion standard. Beck v. Walker, 154 S.W.3d 895, 901 (Tex.App.Dallas 2005, no pet.); Tate v. Tate, 55 S.W.3d 1, 5-6 (Tex.App.-El Paso 2000, no pet.). With regard to factual matters, a trial court abuses its discretion when it acts arbitrarily or unreasonably, and with regard to legal matters, a trial court abuses its discretion when it fails to act without reference to any rules or guiding principles. Beck, 154 S.W.3d at 901. Failure to analyze or apply the law correctly constitutes an abuse of discretion. Attorney Gen. of Tex. v. Stevens, 84 S.W.3d 720, 722 (Tex.App.-Houston [1st Dist.] 2002, no pet.).

In rendering a final judgment for child-support arrearages, the trial court follows a two-step process. In re G.L.S., 185 SW.3d 56, 59 (Tex.App.-San Antonio 2005, no pet.). First, the trial court, acting as a mere scrivener, mechanically tallies the arrearage amount. Id.; Curtis v. Curtis, 11 S.W.3d 466, 471 (Tex.App.-Tyler 2000, no pet.). At this point, the trial court has no authority to reduce or modify the amount of arrearages. In re G.L.S., 185 S.W.3d at 59; Beck, 154 S.W.3d at 903. Second, after the mechanical calculation is made, the trial court applies any statutory offsets, credits, or counterclaims before rendering the final judgment. In re G.L.S., 185 S.W.3d at 59; Beck, 154 S.W.3d at 903; see also Tex Fam.Code Ann. § 157.262(a) (Vernon Supp.2010) (“Except as provided by this section, in a contempt proceeding or in rendering a money judgment, the court may not reduce or modify the amount of child support arrearages.”); Tex. Fam.Code Ann. § 157.262(f) (“The money judgment for arrearages rendered by the court may be subject to a counterclaim or offset as provided by this title.”). An award of child support may be modified only by the filing of a motion in the court. See Tex. Fam.Code Ann. § 156.002 (Vernon 2008); see also Hudson v. Markum, 931 S.W.2d 336, 337 (Tex.App.-Dallas 1996, no writ); Ex parte McIntyre, 730 S.W.2d 411, 416 (Tex.App.-San Antonio 1987, no writ).

Application

We will begin by addressing whether the court found any arrearage at all. Logically, if the court found no arrearage, no credit was given, and Delgado’s arguments fail. No findings of fact or conclusions of law were requested, and we find the appellate record, in this regard, to be vague.

The record reflects that the Attorney General filed a financial activity report alleging Lara failed to pay over $22,000 in child support, and at the hearing on the motion to confirm, the associate judge received that report into evidence. Lara, however, testified that he paid the entire amount and that he provided financial records showing he paid the amount to his attorney. At the conclusion of the hearing, the associate judge noted that Lara received an award for Social Security and that one of the issues was whether those payments to his children, which were in an amount larger than the ordered child support, could offset or credit the amount owed. After requesting argument on that issue, to which the Attorney General waived, the associate judge stated that there “are zero arrears.” This colloquy may suggest that the judge found an ar-rearage but credited the Social Security benefits.

However, the written judgment states that the court “finds and confirms” that Lara was “in arrears in the amount of $zero,” and that the court “grants and renders” judgment against Lara and in favor of the Attorney General in the amount of “zero.” As noted before, the trial court, in rendering a final judgment for child-support arrearages, must first confirm the arrearage amount by acting as a mere scrivener and has no authority to reduce or modify the amount of arrearag-

es. In re G.L.S., 185 S.W.3d at 59; Beck, 154 S.W.3d at 903. It is only after the mechanical calculation is made that the trial court may apply any statutory offsets, credits, or counterclaims before rendering the final judgment. In re G.L.S., 185 S.W.3d at 59; Beck, 154 S.W.3d at 903. It therefore follows that if the trial court found sufficient proof to support the ar-rearage claimed by the Attorney General, the court would have entered that amount on the written judgment where it states that it “finds and confirms” that Lara was “in arrears in the amount of $-” The trial court then would have credited the Social Security benefits and “granted” and “rendered” judgment against Lara and in favor of the Attorney General in the reduced amount. Here, however, the written judgment reflects that the trial court confirmed that there was “zero” arrears. This, the trial court was entitled to find based on Lara’s testimony that he satisfied his child-support obligation. See Tex. Fam. Code Ann. § 157.162(c) (Vernon 2008) (not limiting the methods of evidence offered by respondent to controvert a payment record attached to a motion to confirm); In re A.C.B., 302 S.W.3d 560, 564-65 (Tex.App.-Amarillo 2009, no pet.) (although testimony regarding amounts owed was con-clusory, trial court had discretion to disbelieve witness); cf. Garner v. Garner, 200 S.W.3d 303, 308 (Tex.App.-Dallas 2006, no pet.) (“As the fact finder, the trial court had the discretion to disbelieve appellant’s testimony and was not required to accept appellant’s evidence of his income and net resources as true. Because the trier of fact is in a better position to determine the candor, demeanor, and credibility of the witnesses, we will not substitute our judgment for that of the trial court.”) (citations omitted).

In short, because the record reflects that the trial court may have determined that there were no arrears to confirm in the first place based on Lara’s testimony to the same, we cannot conclude that the trial court credited any Social Security benefits to the absent arrears, much less that Lara was required to file a motion to modify the child support before the trial court could credit any Social Security payments. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990) (when no findings of fact or conclusions of law were requested or filed, it is implied that the trial court made all the findings necessary to support its judgment); In re C.C.J., 244 S.W.3d 911, 917 (Tex.App.-Dallas 2008, no pet.) (requiring appellate review of the evidence in the light most favorable to the order, indulging in every presumption in favor of the trial court’s ruling). Consequently, we discern no abuse of discretion in the trial court’s finding of no arrears and overrule Delgado’s first and second issues.

CONCLUSION

The trial court’s judgment is affirmed.

      . The Attorney General has not also appealed.

      . We note that Delgado is challenging the credit of Social Security payments on appeal, arguing that at the time the trial court rendered judgment, the Family Code did not provide for any Social Security disability credit against child-support arrearages. If the trial court credited Social Security disability payments, we may find merit in her contention. See In the Interest of G.L.S., 185 S.W.3d at 60; Stevens, 84 S.W.3d at 722; In the Interest of S.J.T., No. 07-03-0523-CV, 2005 WL 2385449, at *1 (Tex.App.-Amarillo Sept. 28, 2005, no pet.) (mem. op., not designated for publication); In re R.L.S., No. 09-05-426-CV, 2006 WL 1428860, at *2 (Tex.App.-Beaumont May 25, 2006, no pet.) (mem. op., not designated for publication) (cases concluding that the Family Code did not authorize a credit for Social Security Disability payments); see also Tex. Fam.Code Ann. § 157.009 (Vernon Supp.2010) (providing for a credit of Social Security Disability benefits to child-support arrearage for monetary judgments rendered on or after June 19, 2009). But the record reflects that neither Lara nor his sons received any Social Security disability benefits. Rather, they received old age Social Security payments. Indeed, Delgado testified at the hearing that her sons started receiving Social Security payments when Lara turned 65, and the Attorney General, in its Brief in Support of the Motion for Enforcement, noted that the payments were Social Security old age benefits. Further, Lara’s briefs to the trial court and this Court note that the benefits paid were old age Social Security benefits. Delgado raises no challenge, nor does she offer any briefing, argument, analysis, or citation to authority as to whether the trial court could credit old age benefits towards the child-support arrearage pursuant to Section 154.133 of the Family Code, which since 2001, has provided for the reduction of child support when receiving old age Social Security benefits. See Tex. Fam. Code Ann. § 154.133 (Vernon 2008). Nevertheless, because our discussion below reveals that the trial court found no arrearage, there was no credit given.' Accordingly, we need not address the interplay of Social Security credits in this case.