author: GEORGE C. HANKS, JR., Justice.

text:
    Carolyn McCOLLUM, Appellant, v. TEXAS DEPARTMENT OF LICENSING AND REGULATION, Appellee.
    No. 01-08-00414-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 22, 2010.

      Edward L. Pina, Edward L. Pina & Associates, P.C., Gilbert J. Vara, The Law Office of Gilbert Vara, Jr., San Antonio, TX, for Appellant.
    Erika M. Kane, Lars Hagen, Office of Attorney General, Austin, TX, for Appel-lee.
    Panel consists of Justices JENNINGS, HANKS, and BLAND.
   OPINION

GEORGE C. HANKS, JR., Justice.

Carolyn McCollum sued the Texas Department of Licensing and Regulation (the “Department”), claiming that she had been improperly terminated from her employment with the Texas Cosmetology Commission (the “Commission”). The trial court granted the Department’s plea to the jurisdiction. McCollum now appeals, arguing that the trial court erred by granting the Department’s plea to the jurisdiction.

BACKGROUND

McCollum was employed by the Commission as an Investigator/Inspector for 14 years. In December 2004, she filed a complaint with the Equal Opportunity Commission (the “EEOC”) alleging that she was fired by the Commission because of her race, age, physical disability, reprisal and retaliation. In addition, she alleged that she was “subjected to an extreme hostile work environment and protected opposition.” The EEOC forwarded the complaint to the Texas Workforce Commission (the “TWC”) and indicated that the initial investigation would be conducted by the EEOC.

In August 2005, the EEOC notified McCollum that it had made a preliminary decision to dismiss the charge. McCol-lum’s attorney requested that the EEOC issue McCollum notice of her right to sue so that she could bring suit in federal court. On September 7, 2005, the EEOC issued McCollum a “Dismissal and Notice of Rights,” stating that she was required to bring a lawsuit claiming violations of federal law within 90 days of her receipt of the notice. On October 26, 2005, the TWC also issued a “Notice of Right to File Civil Action,” notifying McCollum that she had a right to bring a lawsuit claiming violations of Texas anti-discrimination laws within 60 days of her receipt of the notice.

McCollum sued the Commission on December 28, 2005, alleging that the Commission had improperly fired her from her position as an investigator and that she had been subjected to a hostile work environment. McCollum’s petition alleged that the Commission fired her after she had testified in an affidavit in support of a colleague’s discrimination claim, and that the Commission discriminated against her on the basis of disability, age, and race. McCollum’s petition claimed violations of the federal Americans with Disabilities and Age Discrimination in Employment Acts, and the Texas Commission on Human Rights Act:

[McCollum] has been discriminated against due to her disability, in violation of the American’s [sic] with Disabilities Act of 1990; her age, 58 years (DOB: 09/12/1944), in violation of the Age Discrimination in Employment of 1967, as amended; her race, White; and being retaliated against for engaging in protected activity, in violation of the Texas Commission on Human Rights Act, as amended, now referred to as Chapter 21 of the Texas Labor Code.

Elsewhere, her petition again specifically alleged a violation of the Texas Labor Code for retaliation, and claimed that she was “discriminated against on account of her age.” Her petition sought attorneys’ fees, injunctive relief, immediate reinstatement, back pay, forward pay, liquidated damages, and compensatory and non-compensatory damages.

McCollum’s petition also recited that she had complied with all conditions precedent to bring her suit, including filing charges of discrimination with the United States Equal Employment Opportunity Commission (the “EEOC”) and the TWC’s Civil Rights Division, and that the TWC had issued her Notice of Right to Sue on October 26, 2005.

The appellate record reflects that citation was issued to the Attorney General of Texas on December 28, 2005, and was returned as executed by service via certified mail on January 5, 2006 by Deputy Jacqueline Trinidad. Citation to the Commission was issued on December 28, 2005. The return of service upon the Commission stated that it was mailed via certified mail by delivery to a messaging service on January 23, 2006, agáin from Deputy Trinidad.

In August 2006, the Department answered and appeared, raising affirmative defenses, including limitations. The Department subsequently filed a plea to the jurisdiction. The Department’s plea to the jurisdiction asserted that the trial court lacked jurisdiction over McCollum’s federal claims because these claims were barred by sovereign immunity, and that the trial court similarly lacked jurisdiction over McCollum’s state law claims because these claims were not filed within the 60-day deadline after McCollum was notified of her right to sue. The Department argued that the evidence showed that McCollum received notice of her right to sue from the EEOC on September 7, 2005, and since she did not file suit until December 28, 2005 — 112 days later — her claims were barred. Although it was not the main thrust of the plea to the jurisdiction, the Department also cited one case for the proposition that, in order to be timely, an employment discrimination petition must be filed and served within 60 days after a plaintiff receives notice of a right to sue from the Texas Workforce Commission, which McCollum alleged she received October 31, 2005. See Tex. Lab.Code Ann. § 21.254 (Vernon 2006); Sibley v. Kaiser Found. Health Plan of Tex., 998 S.W.2d 399, 405 (Tex.App.-Texarkana 1999, no pet.). Finally, the Department argued that McCollum’s claim of a “hostile work environment” should be dismissed because the EEOC charge indicated that the actions of which she was complaining took place upon a single day — June 7, 2004.

McCollum responded to the Department’s plea by abandoning her federal claims, stating that “in this case, the [Department] is being sued under the Texas anti-discrimination statute.... No federal claims are being brought against the [Department].” Accordingly, she contended that the doctrine of sovereign immunity did not bar her claims under the Texas Labor Code. Similarly, she argued that her claims were timely because she had received notice of her right to file a civil action from the TWO on October 31, 2005. She conceded that she had received a notice of her right to sue from the EEOC on September 7, 2005, but argued that the timing of the notice of her right to sue on her federal claims was irrelevant to whether her claims under state law were timely. McCollum’s response did not address the issue of whether the Department had been timely served.

The trial court granted the Department’s plea to the jurisdiction.

ANALYSIS

A. Standard of Review

A plea to the jurisdiction challenges the trial court’s subject matter jurisdiction to hear the case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). Subject matter jurisdiction is essential to the authority of a court to decide a case and is never presumed. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex.1993). The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject matter jurisdiction. Id. at 446.

The existence of subject matter jurisdiction is a question of law. State Dep’t of Hwys. & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002). Therefore, we review the trial court’s ruling on a plea to the jurisdiction de novo. Id. When a plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court must consider relevant evidence submitted by the parties. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex.2004). If the evidence creates a fact question regarding jurisdiction, the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact-finder; however, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea as a matter of law. Id. at 227-28.

In deciding a plea to the jurisdiction, a court may not consider the merits of the case, but only the plaintiffs pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). In conducting our review, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Miranda, 133 S.W.3d at 228. If the pleadings do not affirmatively demonstrate the trial court’s jurisdiction but, likewise, do not demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Id. at 226-27. However, if the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Id. at 227.

B. Texas Labor Code 21.254

On appeal, McCollum contends that the trial court erred in granting the Department’s plea to the jurisdiction. McCollum argues that the Department’s claims of sovereign immunity to federal discrimination claims are irrelevant because she sued under Texas law, and that her suit was timely filed 57 days after she received notice from the TWC of her right to sue on her state law discrimination claims. We note that McCollum has apparently abandoned her claims relating to federal anti-discrimination laws. Accordingly, we focus on her state law claims under the Texas Labor Code.

As to whether she timely served the Attorney General and the Commission, McCollum argues that it was the Department’s burden, not hers, to prove whether service of process was diligent. She apparently concedes that neither the Attorney General of Texas nor the Commission was served within the 60 days after she received notice of her right to bring a lawsuit from the TWC, but maintains that, because the Department did not demonstrate a lack of diligence in service, the date of service relates back to the date her lawsuit was filed. Alternatively, she argues that a question of fact as to diligence precluded the granting of the plea to the jurisdiction and that limitations is not a jurisdictional bar to her suit. Finally, McCollum argues that her complaint of a hostile work environment should not have been dismissed because she gave adequate notice of that claim in her EEOC complaint and exhausted her administrative remedies with regard to the complaint, as well as her other claims of discrimination.

In response, the Department has abandoned its argument that McCollum’s petition was not timely filed. Instead, the Department’s appellate briefing now focuses upon the fact that McCollum’s petition was not timely served within 60 days of the date she alleged receipt of the notice of her right to sue from the TWC. The Department contends that timely filing and service are jurisdictional prerequisites to suits under Section 21.254, and the trial court thus correctly granted its plea to the jurisdiction. The Department argues that, because it pled the affirmative defense of limitations, and cited the requirement that citation must be served within 60 days of receiving notice of right to sue from the TWC, the burden then shifted to McCol-lum to establish diligence in service.

The Texas Commission on Human Rights Act (the “TCHRA,” codified in Chapter 21 of the Texas Labor Code) makes it unlawful for an employer to discriminate against an employee with respect to compensation or the terms, conditions, or privileges of employment because of race, color, disability, religion, sex, or national origin. Tex. Lab.Code Ann. § 21.051 (Vernon 2006). Before filing suit, a plaintiff must file a complaint with the TWC or EEOC and receive a notice of right to sue on the claims alleged. See id. §§ 21.201-.202. Once that notice of right to sue is received, the plaintiff must then file suit within 60 days. Id. § 21.254. Texas courts have interpreted section 21.254 to mean that a plaintiff must file the suit and serve notice of the suit upon the proper parties within 60 days of receiving of notice of a right to sue from the TWC. See, e.g., Tarrant County v. Vandigriff, 71 S.W.3d 921, 924 (Tex.App.-Fort Worth 2002, pet. denied) (“The mere filing of a lawsuit is not sufficient to meet the requirements of ‘bringing suit’ within the limitations period [of Chapter 21]; rather, a plaintiff must both file her action and have the defendant served with process.”) (emphasis in original); Davis v. Educ. Serv. Ctr., 62 S.W.3d 890, 893 n. 4 (Tex.App.-Texarkana 2001, no pet.); Roberts v. Padre Island Brewing Co., 28 S.W.3d 618, 621 (Tex.App.-Corpus Christi 2000, pet. denied);

We first address McCollum’s claim that the time limit imposed by section 21.254 and case law is not jurisdictional. “To determine whether a statutory requirement is jurisdictional, we apply statutory interpretation principles.” City of DeSoto v. White, 288 S.W.3d 389, 394 (Tex.2009). We review this question de novo. Id. “As with any statutory provision, our goal is to ascertain legislative intent by examining the statute’s plain language.” Id. We also look for “the presence or absence of specific consequences for noneompliance.” Id. at 396. “ ‘[W]hen the Legislature includes a right or remedy in one part of a code but omits it in another, that may be precisely what the Legislature intended’ and ‘we must honor that difference.’ ” Id. (citations omitted). Finally, we look to “the consequences that result from each possible interpretation.” Id. at 397.

Section 21.254 is part of a larger statutory scheme requiring a plaintiff to notify the Texas Commission of Human Rights within 180 days of an alleged violation, thus allowing the Commission an opportunity to promptly investigate the alleged violation. See, e.g., Tex. Lab.Code Ann. §§ 21.201-202; .204. Section 21.202(b) mandates that “The commission shall dismiss an untimely complaint.” Id. § 21.202(b). This 180-day is mandatory and, “failing to comply deprives the court of subject matter jurisdiction.” Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 485-86 (Tex.1991).

After the Commission has an opportunity to investigate the complaint, the plaintiff may then request a “right to sue” letter be issued. Tex. Lab.Code Ann. § 21.252. Section 21.254, entitled “Civil Action by Complainant,” then states that “[wjithin 60 days after the date a notice of the right to file a civil action is received, the complainant may bring a civil action against the respondent.” Id. § 21.254.

Nothing in the language of section 21.254 indicates that the 60-day period for filing and serving the suit is jurisdictional. See, e.g., City of DeSoto, 288 S.W.3d at 396 (reviewing the statute at issue in that case and, in the absence of language that it was intended to be jurisdictional, finding that it was not). Unlike section 21.202, section 21.254 does not mandate that a suit that is filed and served beyond the 60-day window must be dismissed. In light of the Supreme Court of Texas’ guidance in City of DeSoto that we should be “reluctant to conclude that a provision is jurisdictional, absent clear legislative intent to that effect,” we hold that section 21.254’s 60-day period is not jurisdictional. 288 S.W.3d at 393.

CONCLUSION

Because section 21.254 is not jurisdictional, the trial court erred by granting the Department’s plea to the jurisdiction. We reverse the trial court’s judgment and remand this case for further proceedings.

      . The Department — below and on appeal— points out that the Department is a separate entity from the Commission, and that the Department was never “formerly known as” the Commission. Instead, the Department assumed the duties and powers of the Commission after the Texas Legislature abolished the Commission, effective September 1, 2005. See Tex. S.B. 411, 79th Leg. R.S. (2005).

      . The Legislature has elsewhere mandated that "statutory prerequisites," such as notice, "are jurisdictional requirements in all suits against a governmental entity.” Tex. Gov Code. Ann. § 311.034 (Vernon Supp. 2006). We agree with other courts, however, that section 21.254's 60-day filing period is not "an act that must be performed prior to filing suit and so is not a statutory prerequisite.” See Tex. Dep’t of Crim. Justice v. Guard, No. 10-06-00065-CV, 2007 WL 1119572 (Tex.App.-Waco April 11, 2007, no pet.) (mem. op.); see also Mission Consol. I.S.D. v. Garcia, No. 13-09-00458-CV, 2010 WL 320153 (Tex.App.-Corpus Christi Jan. 28, 2010); Windle v. Mary Kay, Inc., No. 05-02-00252-CV, 2003 WL 21508782, at * 1-2 (Tex.App.-Dallas July 1, 2003, pet. denied) (mem. op.) (stating that section 21.254 does not establish a jurisdictional bar; instead, it merely affects a plaintiff's right to maintain suit under the TCHRA) (citing Lottinger v. Shell Oil Co., 143 F.Supp.2d 743, 753 (S.D.Tex.2001) (interpreting the TCHRA)); Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76-77 (Tex.2000) (holding that section 71.031 of the Texas Civil Practice and Remedies Code is not a jurisdictional bar but affects a plaintiff's right to maintain a suit); Tex. Dep’t of Transp. v. Beckner, 74 S.W.3d 98, 103 (Tex.App.-Waco 2002, no pet.) (holding that 40-day filing period in worker's compensation case is not mandatory, not jurisdictional).


source: Caselaw Access Project

author: JANE BLAND, Justice.

license: Public Domain

text:
    AFTCO ENTERPRISES, INC. and ETSI, Inc., Appellants, v. ACCEPTANCE INDEMNITY INSURANCE COMPANY and Southern County Mutual Insurance Company, Appellees.
    No. 01-09-00280-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 13, 2010.

      Sarah Grace Getman, Sidney Daniel Meeks, Wheat, Oppermann & Meeks, P.C., Houston, TX, for Appellants.
    Raymond A. Neuer, Richard A. Sheehy, Sheehy, Serpe & Ware, P.C., Reagan M. Brown, Fulbright & Jaworski L.L.P., Houston, TX, for Appellees.
    Panel consists of Justices JENNINGS, HANKS, and BLAND.
   OPINION

JANE BLAND, Justice.

AFTCO Enterprises, Inc. (AFTCO) and ETSI, Inc. brought Stowers actions against their insurers, Acceptance Indemnity Insurance Company (Acceptance) and Southern County Mutual Insurance Company (Southern), complaining that Acceptance and Southern each failed to timely tender its policy limits in response to a $2.6 million global offer to settle four personal injury lawsuits then pending in Louisiana state court that arose out of a highway accident. See G.A. Stowers Furniture Co. v. Am. Indem, Co., 15 S.W.2d 544, 547 (Tex.Comm’n App.1929, holding approved). Though their carriers ultimately tendered their respective policy limits to satisfy the underlying liability claims, AFTCO and ETSI seek unspecified attorney’s fees and compensation for damage to their business reputations for the carriers’ delay in settling the case. AFTCO and ETSI appeal the trial court’s grant of the insurers’ summary judgment motions. They contend that the trial court erred in concluding the settlement offer, as a matter of law, did not trigger a Stowers duty for either insurer. Finding no error, we affirm.

Background

This insurance dispute arose out of a 2003 accident, in which an eighteen-wheel tractor-trailer rig collided with several passenger vehicles stopped at a highway intersection in Lafayette, Louisiana. As a result of the collision, two people died and nine were injured. At the time of the collision, the rig’s driver was working for ETSI under a contract between it and counterparties V.C. Enterprises, Inc. and Francisco Gonzales, the tractor owners. Performance Rental, I.C., had rented the trailer to AFTCO. The following insurance policies were in effect when the accident occurred:

• a primary policy issued by Home State Insurance Company (Home State) with remaining limits of $600,000, which named AFTCO as the insured and ETSI as an additional insured;
• a $1 million primary policy issued by Southern, which named Performance as the insured and AFTCO, ETSI, and the rig driver as additional insureds;
• a $1 million excess policy issued by Acceptance, which named AFTCO as the insured and ETSI as an additional insured, and
• a $10 million excess policy issued by Harco National Insurance Company (Harco), which does not exclude coverage for exemplary damages.

Louisiana state court proceedings

The personal injury lawsuits stemming from the collision and the corresponding insurance and coverage disputes proceeded together in Louisiana state court. Harco maintained that its excess policy provided no coverage for losses arising out of the accident, while the personal injury plaintiffs and AFTCO and ETSI maintained that Harco owed coverage. In June 2006, the remaining personal injury plaintiffs sent a letter to all of the insurance companies, except Harco, in which they offered to settle their claims against V.C. Enterprises, Gonzalez, the driver, AFTCO, Home State, Southern, and Acceptance, as well as any uninsured claims against those defendants, “in exchange for a tender of the policy limits available under the insurance policies issued by [Home State, Acceptance, and Southern].” Their offer also stated, “We understand the insurance policies issued by Home State, Acceptance, and Southern, at this time provide insurance coverage of $2,687,433.70 for the claims of the remaining plaintiffs.” The plaintiffs reserved their rights to proceed against Harco.

Southern did not respond to the plaintiffs’ letter. Acceptance responded in a letter to plaintiffs’ counsel that it had “no obligation to consider payment of a demand under its policy, assuming coverage would exist, unless and until the liability limits of all underlying policies are exhausted.”

In November 2006, the Louisiana Supreme Court ruled on the Harco coverage dispute, holding that whether the Harco policy provided coverage depended on resolution of a fact issue. The plaintiffs then sent another letter to the insurers, this time including Harco, in which they made “formal demand for the limits of all insurance policies (i.e., $13 million minus amounts already paid out in this matter)” in exchange for their release of all claims, including excess claims, against all of the defendants.

In response, Acceptance stated its willingness to mediate the litigation, conditioned on the participation of the other three insurance companies. By the end of April 2007, mediation still had not occurred, but Southern had unilaterally formally tendered its policy limits to settle the case. Within several days of that settlement proposal, Acceptance tendered its policy limits, reserving its right to seek contribution against Harco, which still refused to provide coverage.

As a result of Harco’s continued refusal to settle, the personal injury claims went to trial, which resulted in a jury verdict and judgment in excess of $20 million. The August 2007 judgment also declared that the Harco policy provided coverage for the claims. After the entry of that judgment, the insurers settled all of the outstanding claims for the available policy limits, thus resolving AFTCO and ETSI’s liability in the underlying case.

Trial court proceedings

AFTCO and ETSI instituted this suit in Texas state court, claiming, among other things, that the insurers negligently violated their Stowers duty to accept reasonable settlement offers within policy limits, which caused AFTCO and ETSI to incur additional attorney’s fees and expenses that they would not have incurred but for the insurers’ alleged negligence. Acceptance moved for summary judgment on the grounds that (1) there is no evidence that the underlying events ever triggered its Stowers duty; (2) as a matter of law, it had a reasonable, good faith basis for refusing to pay the plaintiffs’ settlement demands; and (3) its conduct did not cause any damages to AFTCO or ETSI as a matter of law because it tendered the policy limits before the personal injury claims went to trial. The trial court’s order specifies that it granted summary judgment solely on the no-evidence ground urged by Acceptance — that there was no evidence that any Stowers obligations were ever triggered.

Southern also moved for summary judgment on traditional and no-evidence grounds, both of which stemmed from the absence of any circumstance triggering its Stowers duty. At the hearing on Southern’s motion, AFTCO, ETSI, and Acceptance all agreed that the trial court should decide the summary judgment motion “on the issue of whether a joint settlement demand that is made above the limits of Southern[’s] insurance policy, but within the combined limits of separate insurance policies that provided coverage for underlying claims, makes [Southern] subject to a Stowers claim.” The trial court determined that Southern “is not subject to a Stowers claim on the facts of this case,” and, based on that determination, granted a take-nothing summary judgment. AFT-CO and ETSI appeal these rulings.

Discussion

Standard of review

We review a trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). Both of the summary judgment orders challenged in this appeal specify the no-evidence grounds on which the trial court granted summary judgment. Under Texas Rule of Civil Procedure 166a(i), the movant represents that no evidence exists as to one or more essential elements of the non-movant’s claims upon which the non-movant has the burden of proof at trial. Tex.R. Civ. P. 166a(i). The trial court must grant the motion unless the nonmov-ant produces summary judgment evidence raising a genuine issue of material fact. Id.

A no-evidence summary judgment is essentially a pre-trial directed verdict. Bendigo v. City of Houston, 178 S.W.3d 112, 113-14 (Tex.App .-Houston [1st Dist.] 2005, no pet.); Jackson v. Fiesta Mart, 979 S.W.2d 68, 70-71 (Tex.App.-Austin 1998, no pet.). We reverse the summary judgment if the evidence “would allow reasonable and fair-minded people to differ in their conclusions.” Forbes Inc. v. Granada Bioscis., Inc., 124 S.W.3d 167, 172 (Tex.2003). The non-movant need not marshal its proof; it need only point out evidence that raises a fact issue on the challenged elements. Tex.R. Civ. P. 166a(i) cmt.

In the interest of judicial economy, we may also consider the other grounds for summary judgment that the trial court did not rule on but the movants preserved for review. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996); Phillips v. Dow Chem. Co., 186 S.W.3d 121, 130 (Tex.App.-Houston [1st Dist.] 2005, no pet.). For those grounds urged under Rule 166a(c), .summary judgment is proper only if the movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). The motion must state the specific grounds relied upon for summary judgment. Id. A defendant moving for traditional summary judgment must conclusively negate at least one essential element of each of the plaintiffs causes of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997).

The Stowers doctrine

The Stowers doctrine shifts the risk of an excess judgment from the insured to the insurer by subjecting an insurer to liability for the wrongful refusal to settle a claim against the insured within policy limits. Westchester Fire Ins. Co. v. Am. Contractors Ins. Co. Risk Retention Group, 1 S.W.3d 872, 874 (Tex.App.-Houston [1st Dist.] 1999, no pet.); see Phillips v. Bramlett, 288 S.W.3d 876, 879 (Tex.2009); Stowers, 15 S.W.2d at 544. A settlement demand triggers an insurer’s Stowers duty to respond if: (1) the claim against the insured is within the scope of coverage; (2) the demand is within policy limits; and (3) the terms of the demand are such that an ordinarily prudent insurer would accept it, considering the likelihood and degree of the insured’s potential exposure to an excess judgment. Phillips, 288 S.W.3d at 879 (citing Am. Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 849 (Tex.1994)); see Westchester Fire Ins. Co., 1 S.W.3d at 873 (“A demand above policy limits, even though reasonable, does not trigger the Stowers duty to settle.”).

This appeal requires resolution of whether a settlement offer triggers an insurer’s duty to settle when the plaintiffs’ settlement terms require funding from multiple insurers, and no single insurer can fund the settlement within the limits that apply under its particular policy — an issue that the Texas Supreme Court has expressly left unanswered. See Am. Physicians Ins. Exchg., 876 S.W.2d at 849 n. 13; see also Birmingham Fire Ins. Co. v. Am. Nat’l Fire Ins. Co., 947 S.W.2d 592, 599 (Tex.App.-Texarkana 1997, writ denied) (quoting American Physicians in refusing to impose on primary carrier duty of care owed to excess carrier independent of primary insurer’s duty to its insured; excess carrier could assert existing duty to insured through subrogation). Since American Physicians, the Texas Supreme Court has issued two decisions that fill in much — if not all — of the gap it recognized in that case, at least as the Stowers doctrine applies to Southern and Acceptance here. See Mid-Continent Ins. Co. v. Liberty Mut. Ins. Co., 236 S.W.3d 765, 776 (Tex.2007); Keck, Mahin & Cate v. Nat’l Union Fire Ins. Co., 20 S.W.3d 692, 701-02 (Tex.2000).

Mid-Continent dealt with a dispute between one primary liability insurer, Mid-Continent, and another primary insurer, Liberty Mutual, which also provided the excess insurance policy applicable to the claim against their common insured. 236 S.W.3d at 768. Each of the primary policies provided $1 million in coverage, and the excess policy provided $10 million in coverage. Id. In response to a reasonable offer to settle the claim for $1.5 million, Liberty Mutual sought a proportionate contribution from Mid-Continent. Mid-Continent unreasonably valued the case at $300,000 and agreed to contribute only $150,000. Id. Liberty Mutual funded the rest of the $1.5 million settlement and then instituted proceedings in federal court to obtain contribution from Mid-Continent. Id.

On certified question from the Fifth Circuit, the supreme court rejected any right of reimbursement under Stowers for Liberty Mutual’s payment to settle the case in excess of its policy limits. See id. at 776. The supreme court explained that “Mid-Continent did not breach a Stowers duty to [the insured] because the [claimants] did not make a settlement offer within Mid-Continent’s policy limits.” Id. While the $1.5 settlement demand in Mid-Continent exceeded the value of each primary policy, it came within the limits of the total primary coverage available, as well as the aggregate available under the primary and excess policies provided by Liberty Mutual. Mid-Continent thus stands for the proposition that, in a claim involving multiple policies, a settlement demand does not activate one primary insurer’s Stowers duty unless the demand falls within the applicable limits available under that single policy. See id.

In Keck, the supreme court considered a dispute between an excess carrier, National, and the primary insurer, INA, in handling the settlement of a claim against their insured. 20 S.W.3d at 692. During litigation, the claimant demanded $8.6 million to settle the suit, but neither insurer expressed interest in settling for that amount. Id. at 695. Some time later, a day into trial, INA tendered its policy limits to National. Id. After two days of negotiations, National settled the suit for $7 million. Id.

National then sued INA and Keck, Ma-hin & Cain (KMC), the attorneys hired to defend the insured. Id. Stepping into the insured’s shoes, National contended that INA’s and KMC’s mishandling of the claim forced National to settle it for an excessive amount. Id. at 695-96. Among other affirmative defenses, INA and KMC asserted contributory negligence and comparative responsibility against National, claiming that National had some responsibility for the excessive settlement because it had the opportunity to settle the case for much less under the earlier demand. Id. at 701.

In considering the merits of those affirmative defenses, the supreme court observed that “[a]n excess insurer owes its insured a duty to accept reasonable settlements, but that duty is also not typically invoked until the primary insurer has tendered its policy limits.” Id. (citations omitted). The supreme court noted, “the primary insurer did not tender its limits until the trial began, well after the $8.6 million settlement demand had been withdrawn.” Id. The supreme court concluded that, because INA had not tendered its limits in response to that demand, National had no duty to evaluate or respond to it. Id. Keck makes plain that the Stowers duty does not arise for an excess insurer until the primary carrier has tendered its limits.

. Our court, too, has addressed this Stow-ers issue in past decisions. In Westchester Fire Insurance Co., we considered whether an excess insurer is entitled to equitable subrogation against a primary insurer for breach of its Stowers duty when the initial settlement demand exceeded the limits of the primary policy. 1 S.W.3d at 873. We declined to find the Stowers duty triggered under those circumstances because the plaintiffs never made a demand within American’s policy limits. Id. at 874; see also West Oaks Hosp., Inc. v. Jones, No. 01-98-00879-CV, 2001 WL 83528, at *10 (Tex.App.-Houston [1st Dist.] Feb. 1, 2001, pet. denied) (not designated for publication) (concluding that hospital insurers did not violate their Stowers duty where lowest settlement demand was $725,000, while primary insurance coverage was $500,000, and declining to expand Stowers doctrine by recognizing duty where settlement demand fell within aggregate amount of coverage provided by available layers of coverage).

None of the Texas cases addressing the Stowers doctrine since these decisions cause us to doubt their holdings. AFTCO and ETSI ask us to decline to follow Westchester and to reverse the trial court’s ruling based on the reasoning set forth in Yorkshire Insurance Co. v. Seger, 279 S.W.3d 755 (Tex.App.-Amarillo 2007, pet. denied). Yorkshire, however, involved a different kind of insurance arrangement than the one in this case: there, the corporate personal injury defendant held a single “Lloyd’s-of London-type” comprehensive general liability (CGL) policy with a single policy limit, issued by a group of underwriters. See id. at 760. Stowers looks to whether the plaintiffs have made a demand within the limits of a single policy, not on a single insurer. The factual differences between Yorkshire and this case render Yorkshire inapplicable.

The Stowers claim against Southern

We now apply these general Stow-ers principles to the primary and the excess policies involved in this case. With respect to the primary policy, AFTCO and ETSI contend that Southern had a duty under Stowers to promptly respond to the plaintiffs’ settlement offers. AFTCO and ETSI urge that we consider the plaintiffs’ global settlement offer “to fully relinquish and waive any uninsured claim that they have against [AFTCO, ETSI, V.C. Enterprises, Gonzales, and the driver], in return for a tender of the policy limits available under the insurance policies” as an offer within policy limits that triggered Southern’s Stowers duty. The phrasing of the demand, however, is unambiguously directed toward multiple policies and all of the insurers together, in exchange for a release from multiple plaintiffs. In their settlement demand, the Louisiana plaintiffs did not offer to release their claims against those insured under a particular policy in exchange for the limits available under that policy, and we decline to read it that way. The settlement demand also referred to a $2.6 million sum certain, which was an aggregate of multiple policies and an amount that exceeded the Southern policy’s limits. See Mid-Continent Ins. Co., 236 S.W.3d at 776. The trial court thus correctly granted summary judgment in favor of Southern.

The Stowers claim against Acceptance

With respect to the excess policy, AFTCO and ETSI contend that the trial court’s refusal to apply Stowers means that any time a personal injury plaintiff seeks damages in excess of the primary insurance limits, the primary insurer would have no duty to tender policy limits unless the plaintiff has made a separate settlement offer to the primary insurer that reserved his rights against the excess insurer. Keck forecloses an alternative application. See 20 S.W.3d at 701. As an excess policy carrier that named ETSI as an additional insured, Acceptance’s Stow-ers duty could arise only after the primary carrier (1) received a settlement demand within the primary policy’s limits and (2) in acting as an ordinarily prudent insurer, discharged its Stowers duty by tendering the limits of that policy. See id.; Emscor Mfg., Inc. v. Alliance Ins. Group, 879 S.W.2d 894, 903 (Tex.App.-Houston [14th Dist.] 1994, writ denied); see also Mid-Continent Ins. Co., 236 S.W.3d at 776 (holding that one of two primary insurers who refused to contribute proportionate part of settlement did not owe Stowers duty to insured because claimants did not make settlement offer within policy limits, precluding other primary insurer’s attempt to assert such right to recoup excess settlement payment by way of subrogation); Westchester Fire Ins. Co., 1 S.W.3d at 874 (declining to recognize exception to Stow-ers that would impose duty when demand exceeds policy limits). AFTCO and ETSI attempt to distinguish Keck on its facts, pointing out that the dispute in that case was between the excess carrier and the primary carrier, not the insurer and the insured. The carrier there, however, sought relief under an equitable subrogation theory, and thus it was entitled to the same rights that were available to its insured. See Keck, 20 S.W.3d at 700-01.

In this case, the predicate acts identified in Keck to advance a Stowers claim against an excess carrier did not occur because the primary carrier never tendered its policy limits. We therefore hold that the trial court correctly granted summary judgment on the no-evidence ground urged by Acceptance.

Conclusion

The trial court correctly granted summary judgment in favor of Southern and Acceptance on the ground that the plaintiffs’ settlement demands never triggered their Stowers duties. We therefore affirm the judgment of the trial court.

      . Home State had already paid out $400,000 of the $1 million coverage available in the settlement of other claims arising out of the accident.

      . To the extent that AFTCO and ETSI base their Stowers claim on Southern's alleged failure to inform Acceptance of its willingness to tender the primary policy limits in response to the plaintiffs’ demand, the trial court correctly rejected that ground as well. The Stow-ers duty does not extend beyond the obligation to respond reasonably to an offer to settle a covered claim within an insured's policy limits. Am. Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 849 (Tex.1994); Wayne Duddlesten, Inc. v. Highland Ins. Co., 110 S.W.3d 85, 97 (Tex.App.-Houston [1st Dist.] 2003, pet. denied).


author: TERRY McCALL, Justice.

text:
    John Michael GATELY, Appellant, v. STATE of Texas, Appellee.
    No. 11-08-00157-CR.
    Court of Appeals of Texas, Eastland.
    May 20, 2010.

      G. Lee Haney, Brownwood, for appellant.
    Micheál Murray, Dist. Atty., Brown-wood, for appellee.
    Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
   OPINION

TERRY McCALL, Justice.

The jury convicted John Michael Gately of possession of methamphetamine with the intent to deliver in the amount of four grams or more but less than two hundred grams. Appellant pleaded true to an enhancement allegation, and the jury assessed his punishment at ninety-nine years confinement and a fine of $10,000. The trial court sentenced him accordingly. Appellant presents seven issues for review. We affirm.

Background

Detective Bruce Spruill, a narcotics investigator for the Brownwood Police Department, received information from a confidential informant that appellant was transporting methamphetamine from the Metroplex to Brownwood. Detective Spruill set up a covert operation to observe appellant. After receiving information that appellant would be delivering drugs to Brownwood on April 11, 2007, Detective Spruill conducted surveillance of an apartment in Brownwood. At that time, Detective Spruill observed appellant get into the passenger’s side of a white, Toyota Scion. Police officers stopped the vehicle. John Phy was driving the vehicle, and appellant was a passenger in the vehicle. Detective Spruill obtained Phy’s consent to search the vehicle. During the search, the officers found over twenty-nine grams of methamphetamine in between the driver’s seat and a console.

Appellant does not challenge the sufficiency of the evidence to support his conviction. We have reviewed the evidence in its entirety. The State presented overwhelming evidence of appellant’s guilt.

Denial of Challenge for Cause

In his first issue, appellant argues that the trial court erred in failing to excuse a veniremember for cause. Appellant challenged Veniremember Robert Northcutt for cause. The trial court denied appellant’s challenge. Appellant did not use a peremptory strike on Northcutt. Rather, appellant used his peremptory strikes on other veniremembers and then requested an additional peremptory strike for the purpose of striking Northcutt. The trial court denied appellant’s request for an additional strike, and Northcutt served on the jury.

To preserve error on a trial court’s denial of a challenge for cause, an appellant must take the following steps: (1) assert a clear and specific challenge for cause; (2) use a peremptory strike on the complained-of veniremember; (3) exhaust his peremptory strikes; (4) request additional peremptory strikes; (5) identify an objectionable juror; and (6) claim that he would have struck the objectionable juror with a peremptory strike if he had one to use. Allen v. State, 108 S.W.3d 281, 282 (Tex.Crim.App.2003). Because appellant did not use a peremptory strike on North-cutt, appellant failed to preserve error on his first issue. Appellant’s first issue is overruled.

Recorded Statement of Phy

Appellant contends in his second issue that the trial court erred in admitting the statement of Phy, a codefendant. The stop of the vehicle was recorded by equipment in Brownwood Police Officer John C. Harper’s patrol vehicle. During Officer Harper’s testimony, the State sought to introduce into evidence the DVD of the stop. The DVD lasts over an hour. During the vast majority of time, the DVD is silent. However, the DVD includes a few statements made by Phy about the methamphetamine that the officers found in the car. Phy stated, “It’s not my dope. He’s the dealer.” Phy also stated, “I can tell you people where it’s going to.” Appellant objected to the admissibility of Phy’s statements on the ground of hearsay. The trial court admitted the DVD over appellant’s objection. The DVD was not played for the jury when the trial court admitted it into evidence.

We note that the record is not clear as to whether the jury watched the DVD of the stop. During jury deliberations, the jury sent the trial court a note asking whether it could see the DVD of the stop. The trial court suggested sending a laptop into the jury room so that the jurors could watch the DVD. Neither party objected to the trial court’s suggestion. The record shows that this discussion occurred at 1:22 p.m. At 2:08 p.m., the trial court announced that the jury had reached a verdict. The jury could not have watched the entire DVD during this forty-six minute time period. However, for the purposes of addressing appellant’s issue, we will assume that the jury watched the portions of the DVD containing Phy’s statements.

Phy testified at trial. Phy said that he agreed to drive appellant to Brownwood. Phy said that, in exchange for the ride to Brownwood, appellant promised to give him gas and cigarettes. Phy testified that appellant hid drugs in the car before they left for Brownwood. He testified that the drugs were about the size of a softball. Phy believed that the drugs were methamphetamine. He testified that, when they were about halfway to Brownwood, appellant retrieved the drugs and started handling them inside the car. Phy said that, when they arrived in Brownwood, he drove to a house and appellant got out of the car. Phy testified that appellant took the drugs with him and then got into a maroon, Chevrolet van with a woman. Phy said that he followed the van to an apartment complex and then waited outside for appellant. He said that appellant returned to the car and that they left the apartment complex. Phy testified that the police surrounded them and pulled them over. According to Phy, appellant said, “We’re going to prison for a long time.” Phy testified that appellant shoved the drugs between the seats. Phy said that he gave a police officer consent to search the car.

Even if the trial court erred in admitting the portions of the DVD containing Phy’s statements, appellant would not be entitled to a reversal of his conviction unless the error constituted reversible error under Rule 44.2 of the Rules of Appellate Procedure. Tex.R.App. P. 44.2. A violation of the evidentiary rules resulting in the erroneous admission of evidence is nonconstitutional error and is, therefore, subject to a harm analysis under Rule 44.2(b). Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App.2002); Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998). Under Rule 44.2(b), we are to disregard any error unless it affected appellant’s substantial rights. A substantial right is affected when the error had a substantial and injurious effect or influence on the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997).

Phy’s statements on the DVD were consistent with his trial testimony. In fact, Phy’s trial testimony provided much more detail than his statements on the DVD. The admission of Phy’s statements on the DVD was harmless because those statements were cumulative of his trial testimony. Couchman v. State, 3 S.W.3d 155, 160 (Tex.App.-Fort Worth 1999, pet. ref'd); see Anderson v. State, 717 S.W.2d 622, 628 (Tex.Crim.App.1986). Under these circumstances, the error, if any, in admitting the DVD was harmless. Appellant’s second issue is overruled.

Recorded Statement of Appellant

In his third issue, appellant complains that the trial court erred in admitting his recorded statement. Detective Spruill took the recorded statement from appellant. Appellant objected to the admissibility of the statement on the ground that he did not knowingly, intelligently, and voluntarily waive his right to counsel before providing the statement. The trial court admitted the statement, and it was played for the jury. The recording of appellant’s statement establishes that, before appellant gave his statement, Detective Spruill gave appellant the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Tex.Code Crim. Proc. Ann. art. 38.22 (Vernon 2005), including the warning that appellant had the right to have a lawyer present to advise him prior to and during any questioning. Appellant acknowledged in the trial court that Detective Spruill gave him the necessary warnings. However, appellant argued that the statement was inadmissible because he did not expressly waive his right to counsel.

Neither a written nor an oral express waiver is required to support a finding that an accused waived his Miranda rights. Joseph v. State, 309 S.W.3d 20, 24-27 (Tex.Crim.App.2010); Watson v. State, 762 S.W.2d 591, 601 (Tex.Crim.App.1988). A valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. Miranda, 384 U.S. at 475, 86 S.Ct. 1602. However, a waiver need not assume a particular form, and in some cases, a “waiver can be clearly inferred from the actions and words of the person interrogated.” Joseph, 309 S.W.3d at 24-27 (quoting North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979)). The question is not whether an accused “explicitly” waived his Miranda rights, but whether he did so knowingly, intelligently, and voluntarily. Joseph, 309 S.W.3d at 24-27. Whether an accused waived his Miranda rights is determined from the totality of the circumstances. Id.; Castillo v. State, 616 S.W.2d 620, 622 (Tex.Crim.App.1981); Turner v. State, 252 S.W.3d 571, 583 (Tex.App.Houston [14th Dist.] 2008, pet. ref'd).

After Detective Spruill advised appellant of his rights, Detective Spruill asked appellant, “Do you understand your rights?” Appellant responded, “Yes, sir.” Detective Spruill also asked appellant whether he had any questions about his rights, and appellant responded, “No, sir.” Detective Spruill then asked appellant, “Do you want to talk to me?” Appellant responded, “I would like to talk to you.” Appellant told Detective Spruill that “[his] head [was] pounding,” but appellant continued the interview. Later, appellant said, “I’m willing to help wherever I can.” Following this statement, appellant said, “Right now my head is banging.” However, appellant again continued the interview.

Although appellant never expressly waived his rights, appellant willingly participated in the interview. Based on the totality of the circumstances, a waiver can clearly be inferred from appellant’s words and actions. The recorded interview establishes that appellant knowingly, intelligently, and voluntarily waived his rights. Appellant’s third issue is overruled.

In his seventh issue, appellant contends that the trial court erred in admitting evidence that he exercised his constitutional right to terminate the interview. About seventeen minutes into the interview, appellant stated, “I’ve been bullshitting.” He also stated, “I want to be straight forward.” He requested Detective Spruill to do the interview the next day. Detective Spruill said that he could not guarantee that he could talk with appellant the next day. Later, appellant again said that his head was pounding. Detective Spruill said “okay” and concluded the interview.

Detective Spruill testified that, at some point, appellant requested to cease the interview and that he ceased it upon appellant’s request. Appellant objected to Detective Spruill’s testimony on the ground that it was an improper comment on his right to terminate the interview. Evidence of the invocation of the constitutional right to terminate an interview is inadmissible. Cooper v. State, 961 S.W.2d 222, 226 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). The State may not inform the jury that the accused invoked his constitutional rights because the jury may improperly consider the invocation as an inference of guilt. Hardie v. State, 807 S.W.2d 319, 322 (Tex.Crim.App.1991).

Appellant’s recorded interview does not indicate that he was invoking his constitutional right to terminate the interview. A police officer need not stop questioning a suspect unless the suspect’s invocation of rights is unambiguous. Ramos v. State, 245 S.W.3d 410, 418 (Tex.Crim.App.2008); Dowthitt v. State, 931 S.W.2d 244, 257 (Tex.Crim.App.1996). The officer is not required to clarify ambiguous remarks. Ramos, 245 S.W.3d at 418; Dowthitt, 931 S.W.2d at 257. In Dowthitt, the accused stated the following during a statement: “I can’t say more than that. I need to rest.” The Court of Criminal Appeals held that these statements were not an unambiguous invocation of the right to remain silent. Dowthitt, 931 S.W.2d at 257. Likewise, appellant did not unambiguously invoke his right to terminate the interview. At most, the recorded statement indicates that appellant wanted to stop the interview for the day because his head was pounding and then continue the interview the next day. Because appellant did not exercise his constitutional right to terminate the interview, Detective Spruill’s testimony was not improper. Appellant’s seventh issue is overruled.

Trial Court’s Statements to Witness

In his fourth issue, appellant asserts that the trial court erred in causing Ruben Gonzales Jr. to testify under duress. Gonzales and appellant were former cellmates. The State called Gonzales as a witness. He immediately informed the trial court that he did not want to testify. The trial court excused the jury and addressed the issue. Gonzales had pleaded guilty to a felony. As part of the plea agreement, Gonzales had agreed to testify in appellant’s case. The trial court admonished Gonzales of the potential consequences of his failure to testify. The trial court also appointed counsel to advise Gonzales of his rights. The prosecutor questioned Gonzales outside of the jury’s presence. Gonzales’s court-appointed attorney was present during this questioning. The trial resumed the next morning. Gonzales’s attorney was present in court. In response to questioning by the prosecutor, Gonzales said that he had decided to testify. Gonzales then testified before the jury.

The record does not support appellant’s argument that the trial court improperly caused Gonzales to testify. The trial court appointed counsel for Gonzales. The record demonstrates that Gonzales voluntarily testified. We note that Gonzales never invoked his Fifth Amendment right against self-incrimination. Instead, he apparently did not want to testify because he was concerned about the way he might be treated in prison if he did. However, for the purposes of our analysis, we will assume that Gonzales’s testimony was sufficient to invoke his right against self-incrimination. If a witness invokes his right against self-incrimination, the trial court cannot compel him to answer the question unless it is perfectly clear, from a careful consideration of all the circumstances in the case, that he is mistaken in asserting the privilege and that the answer cannot possibly tend to incriminate him. Grayson v. State, 684 S.W.2d 691, 696 (Tex.Crim.App.1984); Boler v. State, 177 S.W.3d 366, 371 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd). In this case, the prosecutor did not ask Gonzales any incriminating questions, and Gonzales’s answers to the prosecutor’s questions did not incriminate him. Therefore, assuming that Gonzales invoked his right against self-incrimination, the trial court properly compelled him to testify. In addition, appellant has not provided this court with any authority demonstrating that he has a right to complain about an alleged violation of Gonzales’s right against self-incrimination. Appellant’s fourth issue is overruled.

Prosecutor’s Statements During Jury Arguments

In his fifth issue, appellant asserts that the trial court erred in allowing the prosecutor to comment on his failure to testify during jury arguments in the guilt/innocence phase and the punishment phase. A comment on a defendant’s failure to testify offends the Texas and United States Constitutions, as well as Texas statutory law. U.S. Const. amend. V; Tex. Const. art. I, § 10; Tex.Code Crim. Proc. Ann. art. 38.08 (Vernon 2005). A prosecutor’s comment amounts to an impermissible comment on a defendant’s failure to testify only if, when viewed from the jury’s standpoint, the comment is manifestly intended to be, or is of such character that a typical jury would naturally and necessarily take it to be, a comment on the defendant’s failure to testify. Cruz v. State, 225 S.W.3d. 546, 548 (Tex.Crim.App.2007); Bustamante v. State, 48 S.W.3d 761, 765 (Tex.Crim.App.2001).

During jury argument in the guilt/innocence phase, the prosecutor argued that the confidential informant had received about two grams of methamphetamine from appellant. Dennis Mason Arial was the confidential informant. He testified at trial. Arial said that appellant gave him methamphetamine and that he later gave it to Detective Spruill. Detective Spruill testified that Arial gave him methamphetamine. The prosecutor stated in his argument that “[t]here is nothing to controvert the testimony of Mr. Arial, that that is where he got the drugs from.” Appellant contends that this statement was a comment on his failure to testify. However, viewed in context, the prosecutor’s statement appears to refer to a lack of evidence that Arial obtained the methamphetamine after he left appellant’s presence and was not a comment on appellant’s failure to testify. This conclusion is evidenced by the prosecutor’s argument immediately before the above-quoted statement:

So, from there, [appellant] remains and Mr. Arial departs. [Arial] travels over to Walgreen’s where he meets Bruce Spruill and hands over to him the drugs, that almost 2 grams of methamphetamine in the cellophane wrapper that has been admitted and described for you.
Now, Mr. Arial was searched before this began. The car was new. It was searched. He was searched. No drugs found. Where in the world did the drugs come from if they didn’t come from [appellant] as Mr. Arial says? Did he go to somebody on the street corner, buy some drugs? Would that make sense? Of course not. Okay? It’s as simple as that.

Evidence as to whether Arial obtained the methamphetamine after leaving appellant’s presence would not be provided through the testimony of appellant because appellant would not know what Arial did after leaving his presence. Therefore, no relationship existed between the complained-of statement by the prosecutor and appellant’s failure to testify. We conclude that the prosecutor’s statement was not manifestly intended to be, nor was of such character that a typical jury would naturally and necessarily take it to be, a comment on the defendant’s failure to testify. Cruz, 225 S.W.3d at 548. As such, the statement did not constitute an impermissible comment on appellant’s failure to testily.

After appellant objected to the prosecutor’s statement at trial, the trial court stated as follows:

I will overrule the objection, but will emphasize, once again, ladies and gentlemen of the jury, and admonish all counsel that everybody in a criminal case who is accused of a crime has an absolute constitutional right not to testify. It cannot be held against them in any way. You cannot comment on it or allude to it, period.

Even if the prosecutor’s statement constituted a comment on appellant’s failure to testify, the trial court’s instruction to the jury cured any harm caused by the statement. Moore v. State, 999 S.W.2d 385, 405-06 (Tex.Crim.App.1999) (Except in the most blatant cases, an instruction to disregard a comment on the defendant’s failure to testify will cure any harm caused by the comment.).

During jury argument in the punishment phase, the prosecutor commented on appellant’s work history. The following exchange took place:

[PROSECUTOR]: Of all the evidence that was presented, the only evidence of his workmanship, the ability to work in a legitimate job was that possibly sometime in 2006, he worked—
[DEFENSE COUNSEL]: I object. It’s a comment on the failure [of] the Defendant to testify and give forth that evidence.
THE COURT: Overruled.
[PROSECUTOR]: That he worked for a period of 2000, 2006 hanging some wallpaper. Other than that, the only evidence you have is that he sold drugs, distributed drugs for a living.
[DEFENSE COUNSEL]: Judge, same objection.
THE COURT: Overruled.

In the above argument, the prosecutor was referring to testimony by appellant’s family members about his employment history. Appellant contends that the prosecutor’s statements commented on his failure to testify because they called attention to testimony that only he could provide. However, any number of individuals, including former employers, coworkers, family members, or acquaintances, could have provided testimony about appellant’s employment history. The prosecutor’s statements were not a comment on appellant’s failure to testify. Appellant’s fifth issue is overruled.

Evidence of Extraneous Offense

In his sixth issue, appellant asserts that, in the guilt/innocence phase, the trial court erred in admitting evidence of extraneous conduct involving his delivery of drugs to Sady Huro. Gonzales testified about conversations he had with appellant when they were cellmates. Gonzales said that appellant told him that, on the day he was arrested, he had brought between thirty-four and forty grams of methamphetamine into town. Appellant also told Gonzales that he had planned to drop off the methamphetamine to a lady named Sady. According to Gonzales, appellant made it clear that Sady was his customer. Gonzales also said that appellant told him that he had dropped off drugs to Sady a couple of weeks before he was arrested.

Appellant did not object to Gonzales’s testimony about his delivery of drugs to Sady Huro. To preserve error for appellate review, the complaining party must make a timely, specific objection in the trial court and obtain a ruling on the objection. Tex.R.App. P. 38.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App.2002); Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App.1995). Appellant did not preserve the alleged error for review.

Additionally, even if appellant had objected to Gonzales’s testimony at trial, the trial court would not have abused its discretion in allowing the testimony. Gonzales testified about one extraneous offense in the portion of the record cited by appellant in his brief. Specifically, Gonzales testified that appellant told him that he had delivered drugs to Sady Huro a couple of weeks before his arrest. Rule 404(b) of the Rules of Evidence provides that evidence of extraneous offenses is not admissible “to prove the character of a person in order to show action in conformity therewith.” Tex.R. Evid. 404(b). However, Rule 404(b) allows evidence of extraneous offenses if the evidence has relevance apart from character conformity. For example, extraneous offense evidence may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Rule 404(b); Prible v. State, 175 S.W.3d 724, 731 (Tex.Crim.App.2005); Carter v. State, 145 S.W.3d 702, 707 (Tex.App.Dallas 2004, pet. ref'd). Evidence that appellant had delivered drugs to Sady Huro about two weeks before his arrest was relevant to show that, on the date of his arrest, he possessed the methamphetamine with the intent to deliver. See Payton v. State, 830 S.W.2d 722, 730 (Tex.App.-Houston [14th Dist.] 1992, no pet.) (Evidence that the defendant sold drugs two days before his arrest was relevant to whether he possessed drugs with intent to deliver). Therefore, the extraneous offense evidence was admissible. Appellant’s sixth issue is overruled.

This Court’s Ruling

The judgment of the trial court is affirmed.


author: TERRIE LIVINGSTON, Chief Justice.

text:
    The STATE of Texas, Appellant, v. Cynthia PRIDDY, Appellee.
    No. 2-09-132-CR.
    Court of Appeals of Texas, Fort Worth.
    May 20, 2010.
    Discretionary Review Refused Nov. 10, 2010.

      Barry L. Macha, Criminal District Attorney, John R. Gillespie, John W. Brasher, Shonna Hawkins, Assistant Criminal District Attorneys, Wichita County, for appellant.
    Holly Crampton, Whitney Jones-Bris-coe, Wichita Falls, for appellee.
    PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ.
   OPINION

TERRIE LIVINGSTON, Chief Justice.

The State appeals from the trial court’s grant of appellee Cynthia Priddy’s motion to suppress the evidence obtained as a result of an interaction between appellee and a Burkburnett police officer at appel-lee’s parked, running vehicle, in this prosecution for misdemeanor driving while intoxicated (DWI), enhanced with a prior misdemeanor DWI. We reverse the trial court’s order of suppression and remand this case for trial.

Background Facts

At the suppression hearing, Sergeant John Klenk of the Burkburnett Police Department testified that on the evening of March 20, 2008, he was on patrol when dispatch received a call from an unidentified person at Red River Hospital regarding appellee, who had sought admission to the hospital. Over appellee’s hearsay objection, Sergeant Klenk testified that the person from the hospital told dispatch that the hospital could not admit appellee because the hospital was full but also said that appellee had been drinking and appeared to be intoxicated. This person also said that appellee had left the hospital, gotten into an argument with a person in a Hummer believed to be appel-lee’s husband, and left the hospital in a different Hummer. The person from the hospital provided dispatch with appellee’s name, make of car, location and direction of her departure, and her address.

Sergeant Klenk located the Hummer at around 11:00 or 11:15 p.m. — about fifteen minutes after receiving the information from dispatch — on the side of the road in front of Citibank, legally parked, but still running and with its lights on. The officer testified that the Hummer was in a “business” area in downtown Burkburnett, and none of the nearby stores or businesses was open at that time. He pulled in behind the Hummer, turned his spotlight on it, and ran the license tags, but he could not tell if anyone was inside because of the heavy tint on the windows. As he approached the Hummer, he saw appellee “laid over the seat,” eating a hamburger; when she saw the officer, she sat up and rolled her window down. Although it is unclear whether Sergeant Klenk gestured to appellee to roll down the window, we will presume that the trial court believed he did. At that point, Sergeant Klenk asked appellee for her driver’s license. Appellee had to fumble around to find it, but she eventually did. Despite the odor of the hamburger in the vehicle, Sergeant Klenk could also smell the odor of an alcoholic beverage coming from the vehicle. Sergeant Klenk observed that appel-lee’s eyes were bloodshot and glazed. He asked her to step out.

Upon checking appellee’s license, Sergeant Klenk identified her as Cynthia Gail Priddy and determined that her license was suspended. Appellee said she had come from the hospital and admitted she had been drinking. After appellee got out of the Hummer, Sergeant Klenk asked her to perform field sobriety tests, which she failed. After appellee failed the tests, Sergeant Klenk arrested her.

When asked, Sergeant Klenk said his original stop was for purposes of community caretaking, which the police generally do if a vehicle is stopped along the side of a roadway, especially with the engine running; he wanted to make sure that the driver was okay, especially if she was the woman who had left the hospital. Sergeant Klenk also stated that he was suspicious because the vehicle was parked close to a closed bank late at night in a high crime area. He characterized his interaction with appellee as a voluntary encounter because she was free to leave.

Next, Sheryl Mahon, an employee of Red River Hospital, testified. Mahon was the Admission Specialist on staff the night appellee sought admission to the hospital’s chemical dependency unit. Mahon had a discussion with appellee about why she wanted to be admitted and told her that there were no beds available that night. Mahon suggested that appellee have someone pick her up because of her “actions and behaviors” and because appellee admitted she had been drinking. Appellee was stumbling and her speech was slurred; she dropped things and was losing things. Eventually, after some persuading by Ma-hon, appellee called her husband, who came to the hospital to pick her up. However, after appellee and her husband talked in the parking lot for about ten or fifteen minutes, they each left in their own vehicles. Mahon then called the Wichita Falls police because she felt appellee was intoxicated. Mahon told the police who she was and where she worked. She also gave the dispatcher appellee’s name and address, a description of her vehicle, and the direction she drove off in.

After Mahon testified, appellee called Sergeant Klenk back to testify. According to Sergeant Klenk, his conversation with dispatch that night was with Burkburnett Police dispatch; there is no way for the Wichita Falls police dispatch to communicate directly with Burkburnett officers in their patrol cars.

At the close of the hearing, the trial court granted appellee’s motion to suppress and filed extensive findings of fact and conclusions of law. The State filed this interlocutory appeal challenging the trial court’s order. See Tex.Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon 2006).

Issues on Appeal

In two issues, the State contends that the trial court erred in granting appellee’s motion to suppress because (1) the officer’s initial contact with her was a voluntary encounter and not a detention and, alternatively, (2) the hospital’s call to police, coupled with the circumstances of appel-lee’s parked car, created reasonable suspicion to stop appellee to investigate.

Standard of Review for Motions to Suppress

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We give almost total deference to a trial court’s rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor, but we review de novo applieation-of-law-to-fact questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002). When the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the trial court’s ruling, supports those fact findings. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex.Crim.App.2006). We then review the trial court’s legal ruling de novo unless its explicit fact findings that are supported by the record are also dispositive of the legal ruling. Id. at 818.

Here, the trial court’s findings show that it found Sergeant Klenk credible as to his testimony regarding his encounter with appellee. Therefore, we review the trial court’s conclusions of law de novo. State v. Garciar-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App.2008); Amador, 221 S.W.3d at 673.

Analysis

In her motion to suppress, appellee contended that Sergeant Klenk impermissibly detained and interrogated her based on an anonymous tip, that her statements to him should be suppressed under articles 38.22 and 38.23 of the code of criminal procedure, and that his warrantless arrest of her was impermissible. In its first issue on appeal, the State contends the trial court erroneously suppressed the evidence discovered during the interaction between appellee and Sergeant Klenk because it was a voluntary encounter and that appel-lee was not detained until after she rolled down her window and Sergeant Klenk smelled the odor of an alcoholic beverage, thus giving him reasonable suspicion to investigate her for possible DWI.

Police-Citizen Interactions

The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. U.S. Const. amend. IV. A temporary detention for purposes of investigation constitutes a seizure for Fourth Amendment purposes. See Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968). However, not every encounter between a civilian and a police officer implicates the Fourth Amendment. See Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991); Hunter v. State, 955 S.W.2d 102, 104 (Tex.Crim.App.1997); State v. Bryant, 161 S.W.3d 758, 761 (Tex.App.-Fort Worth 2005, no pet.).

The Texas Court of Criminal Appeals recognizes three categories of interactions between police officers and citizens: arrests, investigative detentions, and encounters. State v. Perez, 85 S.W.3d 817, 819 (Tex.Crim.App.2002); Bryant, 161 S.W.3d at 761. Unlike an investigative detention or an arrest — each a seizure for Fourth Amendment purposes — an encounter is a consensual interaction, which the citizen may terminate at any time. See Gurrola v. State, 877 S.W.2d 300, 302-03 (Tex.Crim.App.1994); Bryant, 161 S.W.3d at 761. So long as the citizen remains free to disregard the officer’s questions and go about his or her business, the encounter is consensual and merits no further constitutional analysis. See Johnson v. State, 912 S.W.2d 227, 235 (Tex.Crim.App.1995) (citing California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690 (1991)); State v. Woodard, 314 S.W.3d 86, 93 (Tex.App.-Fort Worth 2010, no pet. h.).

Law enforcement officers are permitted to approach individuals without probable cause or reasonable suspicion to ask questions or even to request a search. See Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983); State v. Velasquez, 994 S.W.2d 676, 678 (Tex.Crim.App.1999); Woodard, 314 S.W.3d at 93. Such encounters do not require any justification on the officers’ part. See United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980); State v. Larue, 28 S.W.3d 549, 553 (Tex.Crim.App.2000); Woodard, 314 S.W.3d at 93. A police officer is as free as any other citizen to approach citizens on the street and ask for information. Garcia-Cantu, 253 S.W.3d at 243; Woodard, 314 S.W.3d at 93. Such interactions may involve inconvenience or embarrassment, but they do not involve official coercion. Garcia-Cantu, 253 S.W.3d at 243; Woodard, 314 S.W.3d at 93. Only when the implication arises that an officer’s authority cannot be ignored, avoided, or ended does a Fourth Amendment seizure occur. Garcia-Cantu, 253 S.W.3d at 243; Woodard, 314 S.W.3d at 93.

Whether a police-citizen interaction is a consensual encounter is determined by the totality of the circumstances and “whether a reasonable person would feel free to decline the officer’s requests or otherwise terminate the encounter.” Woodard, 314 S.W.3d at 93; St. George v. State, 197 S.W.3d 806, 819 (Tex.App.-Fort Worth 2006), aff'd, 237 S.W.3d 720 (Tex.Crim.App.2007) (quoting Bostick, 501 U.S. at 436, 111 S.Ct. at 2387); State v. Murphy, No. 2-06-267-CR, 2007 WL 2405120, at *2 (Tex.App.-Fort Worth Aug.23, 2007, no pet.) (mem. op., not designated for publication).

Circumstances indicating that a police-citizen interaction is a seizure, rather than a consensual encounter, include the threatening presence of several officers, the officer’s display of a weapon, physical touching of the citizen by the officer, the officer’s words or tone of voice indicating that compliance with the officer’s requests might be compelled, flashing lights, or the blocking of a suspect’s vehicle. Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877; Woodard, 314 S.W.3d at 94. But absent this type of evidence, otherwise inoffensive conduct between a citizen and a police officer cannot, as a matter of law, amount to a seizure of that person. Mendenhall, 446 U.S. at 555, 100 S.Ct. at 1877; Woodard, 314 S.W.3d at 94.

Officer’s Initial Interaction With Appel-lee Was Voluntary Encounter

In its conclusions of law, the trial court correctly concluded that “[a]n officer does not need reasonable suspicion or probable cause before he talks to a person in a public place or asks questions.” But the trial court did not otherwise elaborate on whether Sergeant Klenk’s interaction with appellee was an encounter, an investigative detention, or both.

Appellee points to Sergeant Klenk’s activating his spotlight and what she characterizes as an order to appellee that she “needed” to roll down her window as showing that their entire interaction was an investigative detention, for which Sergeant Klenk did not possess reasonable suspicion. But, viewing the totality of the evidence in the light most favorable to the trial court’s ruling, we agree with the reasoning of similar cases holding that actions such as Sergeant Klenk’s do not constitute such a show of authority as to indicate to a reasonable person that she would not be free to terminate the encounter. See, e.g., Merideth v. State, 603 S.W.2d 872, 873 (Tex.Crim.App.1980) (holding interaction was encounter when officer saw man and woman sitting in parked truck in parking lot, approached truck, and knocked on driver’s side window); Bryant, 161 S.W.3d at 760 (holding interaction was encounter when officer “drove to where appellee was parked, got out of his patrol car, ... approached appellee’s car,” and knocked on window); Ashton v. State, 981 S.W.2d 5, 6 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd) (holding that interaction was encounter when officer approached parked car and asked appellant to roll down window); Soto v. State, No. 05-07-00029-CR, 2007 WL 3054283, at *1 (Tex.App.-Dallas Oct.22, 2007, pet. ref'd) (holding interaction was encounter when officer approached car stopped at green light in right lane of street and “directed,” rather than ordered, driver to roll down window) (mem. op., not designated for publication).

There is no evidence that Sergeant Klenk activated his patrol car’s overhead lights or its siren when parking behind appellee’s Hummer, nor is there any evidence that he blocked her egress from where she was parked. Likewise, there is no evidence that when Sergeant Klenk approached the vehicle and gestured to ap-pellee to roll down the window that he engaged in any activity that would have indicated to appellee that she was being detained or was not free to terminate the encounter. Thus, up to the point when appellee rolled down her window and Sergeant Klenk smelled the odor of an alcoholic beverage, Sergeant Klenk’s actions were justified as a voluntary encounter. See Merideth, 603 S.W.2d at 873; Stewart v. State, 603 S.W.2d 861, 862 (Tex.Crim.App.1980); Woodard, 314 S.W.3d at 95; Bryant, 161 S.W.3d at 761-62.

Smell of Alcoholic Beverage, Glazed and Bloodshot Eyes Provided Reasonable Suspicion for Detention

Once appellee rolled down her window and Sergeant Klenk “smelled the odor of an alcoholic beverage emitting from the vehicle” and saw appellee’s bloodshot and glazed eyes, the voluntary encounter became an investigative detention based upon reasonable suspicion that ap-pellee had been driving while intoxicated. See Bryant, 161 S.W.3d at 762; Martin v. State, 104 S.W.3d 298, 300-02 (Tex.App.-El Paso 2003, no pet.). Thus, after that point, Sergeant Klenk was authorized to detain appellee for the purpose of investigating whether she had been driving while intoxicated, and the trial court abused its discretion by granting appellee’s motion to suppress. See Woodard, 314 S.W.3d at 95; Bryant, 161 S.W.3d at 762; Martin, 104 S.W.3d at 302. We sustain the State’s first issue.

Conclusion

Having sustained the State’s first and dispositive issue, we reverse the trial court’s suppression order and remand this case to the trial court for further proceedings consistent with this opinion.

APPENDIX ONE

      . On cross-examination, Sergeant Klenk conceded that dispatch did not have caller ID and that the Burkburnett police did not have the name of the employee who allegedly called.

      . Sergeant Klenk initially testified that when he saw appellee in the vehicle, she sat up and rolled down the window. But on cross-examination, in response to the question, "Now, and as I understand your testimony, once you saw her, you went further. In other words, you see her eating the hamburger, and you’re the person who indicates that she needs to roll down the window to talk to you or get out of the car or to talk to you or whatever," Sergeant Klenk answered, "Yes, ma'am. Any time we make contact with somebody, we usually identify them or stop and identify and check welfare on them."

      .Sergeant Klenk later admitted on cross-examination that he could not confirm that downtown Burkburnett on March 20, 2008 was a high-crime area, but he did testify that Burkburnett police officers responded to various property crimes in that area.

      . Red River Hospital is located in downtown Wichita Falls.

      . Those findings and conclusions are attached to this opinion as appendix one.

      . On appeal, appellee states, "It is obvious that the trial court’s ruling was based on a determination that the initial interaction between Sergeant Klenk and [appellee] was an investigative detention for which Sergeant Klenk lacked reasonable suspicion."

      . For example, there is no evidence that Sergeant Klenk pointed to his handcuffs or service weapons.

      . The State also contends that the trial court’s actual findings of fact, although limited, and more particularly its conclusions of law, support a finding that this voluntary encounter was based upon the community welfare and care-talcing function of police. But we need not address this contention because we hold that the initial encounter was a voluntary encounter; therefore, Sergeant Klenk did not need any justification for approaching appel-lee's vehicle. See Woodard, 314 S.W.3d at 92.

      . Moreover, once Sergeant Klenk received confirmation that appellee's license was suspended, he had probable cause to arrest her for that offense. See Givens v. State, 949 S.W.2d 449, 451-52 (Tex.App.-Fort Worth 1997, pet. ref’d).

      . Because the State's second issue is in the alternative and we sustain its first issue, we need not address the second issue. See Tex. R.App. P. 47.1; Vann v. State, 216 S.W.3d 881, 889 (Tex.App.-Fort Worth 2007, no pet.).