author: JANE BLAND, Justice.

text:
    Kirk A. KENNEDY, Appellant, v. GULF COAST CANCER & DIAGNOSTIC CENTER AT SOUTHEAST, INC., Appellee.
    Nos. 01-09-01056-CV, 01-10-00677-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 23, 2010.

      Christian J. Ward, Yetter Coleman, L.L.P., Austin, TX, Kirk Allen Kennedy, The Kennedy Firm, Houston, TX, for Appellant.
    Eugene B. Wilshire, Jr., Wilshire, Scott & Dyer, P.C., Houston, TX, for Appellee.
    Panel consists of Justices KEYES, HIGLEY, and BLAND.
   OPINION

JANE BLAND, Justice.

This interlocutory appeal from a temporary injunction concerns whether Kirk Kennedy, a former in-house counsel and corporate secretary for Gulf Coast Cancer & Diagnostic Center at Southeast, Inc. (Gulf Coast), is entitled to retain, for his own use, a copy of a legal opinion memorandum concerning Gulf Coast’s potential liability for its former executive’s alleged misconduct. Kennedy solicited the memo while still working for Gulf Coast but obtained a copy of it after Gulf Coast had terminated his employment.

After learning that Kennedy was distributing the sensitive memorandum to his own lawyers and that he had threatened to disclose its contents in the public record, Gulf Coast applied for a temporary injunction requiring Kennedy to turn over all copies of the memo and prohibiting Kennedy from using or disclosing the information it contained. The trial court granted temporary injunctive relief, and Kennedy appeals. He contends that the trial court abused its discretion in granting the injunction because (1) Gulf Coast failed to establish the prerequisites for injunctive relief; (2) as a former counsel and corporate officer, he is entitled to retain and use the memo; and (3) the injunction is an impermissible prior restraint on his free speech rights under the Texas Constitution. Kennedy also requests mandamus relief from the temporary injunction order. Finding no error, we affirm the trial court’s order and deny the petition for writ of mandamus.

Background

While Kirk A. Kennedy was still in-house counsel for Gulf Coast, he engaged the law firm of Epstein, Becker, Green, Wickliff and Hall, P.C. to render an opinion concerning Gulf Coast’s potential liability resulting from certain instances of a former executive’s alleged misconduct. Kennedy had a longstanding relationship with EBGWH based on a personal friendship with one of its attorneys. That attorney had represented Kennedy in a personal bankruptcy-related matter, and, in return, Kennedy had assisted him with personal legal matters.

EBGWH prepared the memo with Kennedy’s assistance, and Kennedy provided the facts EBGWH used for its analysis. The memo is addressed to John Karas, Gulf Coast’s President, and copied to “Kirk Kennedy, General Counsel.” The opening paragraph recites that EBGWH “was retained by Gulf Coast ... and its affiliates (collectively referred to as ... ‘Gulf Coast’).” A footnote identifies the corporate affiliates. The memo outlines the scope of retention as follows: “EBGWH was asked, by the Company’s General Counsel, to review information and apprise the current President and Board of Directors of the Company as to Gulf Coast’s potential ... exposure and that of its current officers and directors arising from [a former executive’s] ... alleged misconduct. EBGWH was also requested to evaluate the Company’s obligations, responsibilities, and duty of disclosure, including that of its officers and directors.” The footnote following that sentence reads:

EBGWH has been retained only to provide advice to the Company and is not providing advice or counsel to the Company’s owners, officers, or directors, who should obtain independent counsel regarding any potential risk to them in their individual capacities.

The memo explains potential liability issues that could arise for Gulf Coast’s officers and directors, but nowhere discusses the possible presence or absence of individual liability for the officers and directors.

Gulf Coast contends that, in late July 2009, Kennedy, without authorization, had diverted approximately $405,000 of Gulf Coast’s funds into a bank account, named himself as the sole signatory for the account, and used $170,000 of the funds to pay a retainer to a firm that he claimed to have selected to “represent and defend corporate officers and agents of Gulf Coast, specifically Kennedy.”

Gulf Coast learned that Kennedy had taken its funds approximately one week later. On or about the same day as that revelation, Kennedy contacted EBGWH, asked the firm to prepare the memo, and assisted with its preparation. EBGWH relied on the facts as stated by Kennedy in rendering its opinion and did not conduct an independent investigation. Gulf Coast terminated Kennedy’s employment as of August 8, 2009. EBGWH finalized the memo after that date and, apparently unaware of Kennedy’s employment status, inadvertently gave him a copy, which Kennedy kept.

Meanwhile, the lawyer who had received the $170,000 retainer from Kennedy inter-pleaded the funds. After Kennedy and Gulf Coast were joined in the interpleader action, Kennedy cross-claimed against Gulf Coast for a declaration that he is entitled to indemnification and advancement of attorney’s fees in potential lawsuits arising out of the misconduct charges. As the suit progressed, Gulf Coast learned that Kennedy had distributed copies of the memo to his personal lawyers, disclosed its contents in unsealed court filings, and discussed it with third parties whose interests were adverse to Gulf Coast. Kennedy also threatened Gulf Coast that he would make the entire memo open to the public by filing it with the court.

Gulf Coast sought and obtained a temporary injunction prohibiting Kennedy from using or disclosing the memo. The trial court signed an order granting the temporary injunctive relief on December 3, 2009, which it amended on July 22, 2010. The amendment provides that the prohibition against Kennedy’s retention or use of the memo “will not be violated” if Kennedy obtains a copy of the memo directly from EBGWH or the memo’s author and Kennedy uses the memo and its information solely in defense of the grievances filed against him by Gulf Coast with the State Bar of Texas. The temporary injunction rests on the following findings:

• The description of EBGWH’s clients in the memo does not include Kennedy as one of the clients in connection with the matters the memo addresses.
• Kennedy has provided the memo to persons having no right to the memo and has threatened and continues to threaten not only to reveal the memo’s contents to others but to make it public.
• Kennedy has already violated Gulf Coast’s right to privileged and private advice from its counsel by distributing it to others.
• Absent a temporary injunction, the Gulf Coast’s right to the attorney-client privilege would continue to be violated and would result in irreparable injury.

Discussion

I. Standard of review

Kennedy challenges the propriety of the trial court’s temporary injunction prohibiting him from using the memo or its contents except as provided for his defense within the State Bar grievance proceedings. The purpose of a temporary injunction is to preserve the status quo pending trial, but it is an extraordinary remedy and does not issue as a matter of right. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002). Trial courts have broad discretion in deciding whether to grant or deny a temporary injunction, and an appellate court should reverse only if it finds a clear abuse of that discretion. Tel. Equip. Network, Inc. v. TA/Westchase Place, Ltd., 80 S.W.3d 601, 607 (Tex.App.Houston [1st Dist.] 2002, no pet.). We will not reverse a trial court’s temporary injunction unless it is “so arbitrary as to exceed the bounds of reasonable discretion.” Id. We review the evidence in a light most favorable to the trial court’s order, but an erroneous application of the law to undisputed facts constitutes an abuse of discretion. Id.

II. Attorney and client

As a preliminary matter, we address the contention that underlies much of Kennedy’s appeal — that, as an officer of Gulf Coast when the alleged wrongdoing occurred, and an existing client of EBGWH individually, he has a right to retain and use the memo. An attorney-client relationship is a contractual relationship in which an attorney agrees to render professional services for a client, and the relationship may be established either expressly or impliedly from the conduct of the parties. Mellon Serv. Co. v. Touche Ross & Co., 17 S.W.3d 432, 437 (Tex.App.-Houston [1st Dist.] 2000, no pet.); Honeycutt v. Billingsley, 992 S.W.2d 570, 581 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). In determining whether a contractual relationship can be implied, we use an objective standard, looking at what the parties said and did for some manifestation that both parties intended to create an attorney-client relationship, and do not consider their unstated, subjective beliefs. See Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 254 (Tex.App.-Houston [14th Dist.] 2003, pet. denied); Roberts v. Healey, 991 S.W.2d 873, 880 (Tex.App.-Houston [14th Dist.] 1999, pet. denied).

A corporation is a legal entity separate and apart from the persons who compose it. Walker v. Anderson, 232 S.W.3d 899, 918 (Tex.App.-Dallas 2007, no pet.); Hajdik v. Wingate, 753 S.W.2d 199, 201 (Tex.App.-Houston [1st Dist.] 1988), aff'd, 795 S.W.2d 717 (Tex.1990). As in-house counsel, Kennedy represented Gulf Coast. In that capacity, he had the responsibility to “proceed as reasonably necessary in the best interest of the organization without involving unreasonable risks of disrupting the organization and of revealing information relating to the representation to persons outside the organization.” Tex. Disciplinary R. Prof’l Conduct 1.12, reprinted in Tex. Gov’t Code Ann. tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art X, § 9).

The evidence before the trial court supports its conclusion that the advice rendered in the memo was intended solely for Gulf Coast. Kennedy makes much of the fact that he had an existing attorney-client relationship with EBGWH when he solicited the memo. The question, however, is not whether Kennedy is or ever has been a client of EBGWH, but whether EBGWH agreed to joint or dual representation of Gulf Coast and Kennedy in connection with the issues raised in the memo. Kennedy claims that he asked EBGWH to prepare the memo with the intent that it benefit not only Gulf Coast, but also its officers.

Kennedy’s subjective intent notwithstanding, no evidence objectively manifests that EBGWH secured the parties’ consent or undertook any of the other steps that Texas law requires for dual representation of Gulf Coast and either the officers and directors or Kennedy individually. See Tex. Disciplinary R. Prof’l Conduct 1.7; 1.13 (setting out prerequisites before attorney may consent to dual representation). On the contrary, the memo refers to Kennedy solely in his capacity as counsel and expressly disclaims any intent to advise Gulf Coast’s owners, officers, or directors, recommending instead that the officers and directors retain separate counsel. The trial court could properly credit this disclaimer in finding that EBGWH did not represent Kennedy individually in connection with the memo. The trial court also properly exercised its discretion to determine, on the disputed evidence, that the memo did not come within the exception to the attorney-client privilege applicable to joint clients. Tex.R. Evid. 503(d)(5). We therefore hold that the trial court did not abuse its discretion in determining that Gulf Coast alone holds the attorney-client privilege applicable to the memo.

III. Temporary injunction

The Texas Civil Practice and Remedies Code allows for an appeal from an interlocutory order that appoints a receiver or grants a temporary injunction. Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(1), (4) (Vernon 2008) (listing appealable interlocutory orders). After Kennedy filed his interlocutory appeal of the November 30, 2009 temporary injunction order, the trial court signed an amended order on July 22, 2010 granting the same temporary relief, changing the trial date to the two-week docket beginning October 4, 2010, and clarifying that the order does not prohibit Kennedy from using the memo and its contents in his defense in a grievance pro-eeeding pending against him before the State Bar of Texas. We consider that order as part of this appeal. See Tex. R.App. P. 29.6 (“While an appeal from an interlocutory order is pending, on a party’s motion or on the appellate court’s own initiative, the appellate court may review ... a further appealable interlocutory order concerning the same subject matter.”).

A temporary injunction’s purpose is to preserve the status quo of the litigation’s subject matter pending a trial on the merits. TMC Worldwide, L.P. v. Gray, 178 S.W.3d 29, 36 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (citing Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex.1993)). A temporary injunction is an extraordinary remedy and does not issue as a matter of right. Id. To obtain a temporary injunction, the applicant must plead and prove three specific elements: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Id. (citing Butnaru, 84 S.W.3d at 204); Tanguy v. Laux, 259 S.W.3d 851, 857 (Tex.App.-Houston [1st Dist.] 2008, no pet.). The absence of any one of these factors renders an award of temporary injunctive relief inappropriate. See TMC Worldwide, 178 S.W.3d at 36 Kennedy challenges all three.

A. Cause of action

Kennedy first claims that the trial court erred in granting an injunction untethered to a cause of action. “Texas follows a ‘fair notice’ standard for pleading, in which courts assess the sufficiency of pleadings by determining whether an opposing party can ascertain from the pleading the nature, basic issues, and the type of evidence that might be relevant to the controversy.” Low v. Henry, 221 S.W.3d 609, 612 (Tex.2007); see Tex.R. Civ. P. 47(a). Kennedy has not specially excepted to Gulf Coast’s live pleading on file when the trial court signed the amended temporary injunction order. We therefore construe the pleading liberally in Gulf Coast’s favor. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex.2000).

Gulf Coast’s live pleading asserts causes of action against Kennedy for theft, attempted theft, conversion, actual and constructive fraud, and breach of fiduciary duty. All of these causes of action are grounded in allegations that Kennedy misappropriated funds belonging to Gulf Coast, kept a copy of the memo against Gulf Coast’s wishes, and threatened to disclose the contents of the memo and other sensitive documents that could adversely affect Gulf Coast’s business reputation and potentially expose it to legal liability. Gulf Coast’s request for a temporary injunction details these allegations and asks the court to order Kennedy and others acting in concert with him to return all copies of the memo and to prohibit them from using or disclosing any information contained in the memo. This pleading alleges facts sufficient to put Kennedy on notice of the causes of action against Kennedy that underlie the temporary injunction.

As Gulf Coast’s former in-house lawyer, Kennedy owes a fiduciary duty to Gulf Coast relating to information and advice exchanged in the scope of that employment. A fiduciary relationship exists between attorneys and clients as a matter of law. Arce v. Burrow, 958 S.W.2d 239, 246 (Tex.App.-Houston [14th Dist.] 1997) (op. on reh’g), aff'd as modified, 997 S.W.2d 229 (Tex.1999). The attorney-client relationship is thus one of “most abundant good faith,” requiring absolute candor, openness and honesty, and prohibiting any concealment or deception. Perez v. Kirk & Corrigan, 822 S.W.2d 261, 265 (Tex.App.-Corpus Christi 1991, writ denied) (citing Hefner v. State, 735 S.W.2d 608, 624 (Tex.App.-Dallas 1987, pet. ref'd)). The essence of a claim for breach of fiduciary duty focuses on whether an attorney obtained an improper benefit from representing the client. McGuire, Craddock, Strother & Hale, P.C. v. Transcont’l Realty Investors, Inc., 251 S.W.3d 890, 894 (Tex.App.-Dallas 2008, pet. denied); Kimleco Petroleum, Inc. v. Morrison & Shelton, 91 S.W.3d 921, 923 (Tex.App.-Fort Worth 2002, pet. denied).

As the client’s agent, the work product generated by the attorney in representing the client belongs to the client. Tex.R. Evid. 509(b); see Hebisen v. State, 615 S.W.2d 866, 868 (Tex.Civ.App.-Hous-ton [1st Dist.] 1981, no writ); Tex. DISCIPLINARY R. Prof’l Conduct 1.15(d). An attorney who uses a client’s confidential information for his own interest and against the client’s interest to the client’s detriment may be liable for breach of fiduciary duty. Sherwood v. South, 29 S.W.2d 805, 809 (Tex.Civ.App.-San Antonio 1930, writ ref'd); Jones v. Plume, 196 S.W.3d 440, 447 (Tex.App.-Dallas 2006, pet. denied) (observing that, in context of attorney-client relationship, “[a]n attorney breaches his fiduciary duty when he benefits improperly from the attorney-client relationship by, among other things improperly ... using client confidences”); Perez, 822 S.W.2d at 266 (finding evidence that attorneys for employer informed employee that they also represented him and that any statements he made would be kept confidential raised fact issue precluding summary judgment on claim for breach of fiduciary duty when attorneys later wrongfully disclosed employee’s privileged statements to district attorney).

B. Threat of probable injury

Kennedy next contends that Gulf Coast failed to allege or proffer evidence of a threat of probable injury. Kennedy asserts that “[u]nrebutted evidence shows that [he] has no intention of publicly disclosing the contents of the memo,” and Gulf Coast showed no more than a fear or apprehension of some future harm, which is insufficient to support a temporary injunction.

An injury is irreparable if there is no adequate remedy at law; if for example, a prevailing applicant could not be compensated adequately in damages or if damages cannot be measured by any certain pecuniary standard. Butnaru, 84 S.W.3d at 204; Benefield v. State ex rel. Alvin Cmty. Health Endeavor, Inc., 266 S.W.3d 25, 30 (Tex.App.-Houston [1st Dist.] 2008, no pet.). Contrary to Kennedy’s characterization of the evidence of his intent as “[u]nrebutted,” the record shows that Kennedy has given a copy of the memo to several lawyers he has retained in various capacities and distributed an affidavit with information about the memo to the owner of a company involved in litigation against Gulf Coast. Because Kennedy was no longer in-house counsel for Gulf Coast when he received a copy of the memo, and the evidence supports the trial court’s findings that Kennedy violated and threatened to continue to violate Gulf Coast’s privilege by divulging the memo and its contents to others, the trial court acted within its discretion in refusing to allow Kennedy to retain the memo. We do not reach Kennedy’s general contention that attorneys may retain copies of their client’s files. We defer to the trial court’s resolution of the conflict in the evidence, which supports the trial court’s findings that Kennedy violated Gulf Coast’s right to keep the memo and its contents private and that Kennedy threatened to make the memo public.

C. Likelihood of success on the merits

Kennedy also claims that Gulf Coast failed to make the requisite showing that it is likely to succeed on the merits of its claims. To show a probable right of recovery, the applicant need not establish that it will finally prevail in the litigation, but must, at the very least, present some evidence that, under the applicable rules of law, tends to support his cause of action. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (1961).

Kennedy cites Doe v. A Corp., 709 F.2d 1043 (5th Cir.1983), and Willy v. Administrative Review Board, 423 F.3d 483 (5th Cir.2005), as support for his claim of entitlement to the memo. Doe recognizes that the disciplinary rules allow an attorney to reveal a client’s confidential information and secrets when necessary to defend himself against an accusation of wrongful conduct because “[i]t would be a manifest injustice to allow the client to take advantage of the rule of exclusion as to professional confidence to the prejudice of his attorney, or that it should be carried to the extent of depriving the attorney of the means of obtaining or defending his own rights.” 709 F.2d at 1048-49 (citing Tex. DISCIPLINARY R. PrOF’l CONDUCT 4-101(C) and quoting ABA Opinion 250 (1943)).

In Willy, an in-house environmental lawyer had an ongoing conflict with company managers over whether the company’s operations violated federal environmental law. 423 F.3d at 486-87. Following a dispute over Willy’s communications with the state department of water resources, Willy was abruptly discharged from employment. Holding that Willy was entitled to use the company’s otherwise privileged information to prove his retaliatory discharge claims, the Fifth Circuit quoted with approval language from an American Bar Association Ethics Opinion, which stated:

The Model Rules do not prevent an in-house lawyer from pursuing a suit for retaliatory discharge when a lawyer was discharged for complying with her ethical obligations. An in-house lawyer pursuing a wrongful discharge claim must comply with her duty of confidentiality to her former client and may reveal information to the extent necessary to establish her claim against her employer. The lawyer must take reasonable affirmative steps, however, to avoid unnecessary disclosure and limit the information revealed.

423 F.3d at 500 (quoting ABA Formal Ethics Opinion 01-424 (2001)). Unlike the attorneys in Doe and Willy, Kennedy has not identified any actual or threatened litigation in which he has demonstrated that the memo is necessary to prove his claims or defenses but is unavailable because of the trial court’s order. See Tex.R. Evid. 503(d)(3). We have held that the trial court did not abuse its discretion in determining that the memo and the privilege attached to it belong solely to Gulf Coast and that Gulf Coast’s live pleading sufficiently states claims for breach of fiduciary duty as it relates to Kennedy’s actions with the memo. Gulf Coast’s by-laws expressly answer any question of Kennedy’s right to indemnity for actions he took while an officer or director, and the temporary injunction gives Kennedy the right to use the memo in connection with his defense of the State Bar grievance against him, assuming he makes the requisite showing.

Our holding does not preclude a defense based on facts otherwise known or obtainable outside the EBGWH representation. Also, nothing in the injunction prohibits Kennedy from requesting that Gulf Coast produce the memo during the normal course of discovery, or from seeking to compel its production from Gulf Coast as material to his claim or defense if such a showing can be made. The trial court’s injunction precludes Kennedy’s unilateral use or distribution of the memo over his former client’s objections. The trial court is in a better position to evaluate whether the memo is admissible as evidence during a later trial on the merits and whether, in prosecuting additional claims since this appeal was filed, Gulf Coast ultimately waives its privilege. The trial court has already in fact amended the injunction in response to these sorts of considerations. At this stage in the proceeding, however, no showing of waiver has been made.

We have held that the trial court did not abuse its discretion in determining that the memo and the privilege attached to it belong solely to Gulf Coast and that Gulf Coast’s live pleading sufficiently states claims for breach of fiduciary duty as it relates to Kennedy’s actions with the memo, As a result, we hold that the trial court acted within its discretion in finding that Gulf Coast is likely to prevail on the merits of its claims.

D. Preservation of status quo

Kennedy contends that the temporary injunction order is improper because the requirement that he turn over all copies of the memo to Gulf Coast (1) disturbs the status quo rather than preserves it, and (2) amounts to mandatory permanent relief. We disagree. Kennedy’s contention is predicated on the view that he holds a privilege to retain the document, a view at odds with the trial court’s substantiated evidentiary findings in support of the temporary injunction. We also decline to entertain Kennedy’s speculation that Gulf Coast or its lawyers would disobey a judicial order to provide him with a copy of the memo. We hold that the temporary injunction properly preserves the status quo pending trial on the merits.

IV. Overbreadth

Finally, Kennedy claims that the temporary injunction is an overly broad prior restraint on speech that interferes with his right to defend himself. An administrative or judicial order that forbids certain future communications constitutes a prior restraint on speech. Alexander v. United States, 509 U.S. 544, 550,113 S.Ct. 2766, 2771, 125 L.Ed.2d 441 (1993). Article one, section eight of the Texas Constitution provides that “[e]very person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege .... ” Tex. Const, art. I, § 8; see Davenport v. Garcia, 834 S.W.2d 4, 10 (Tex.1992) (explaining that Texas Constitution provides greater right to free speech than its federal counterpart). Accordingly, pri- or restraints on speech are presumptively unconstitutional. See Davenport, 834 S.W.2d at 10; San Antonio Express-News v. Roman, 861 S.W.2d 265, 267 (Tex.App.-San Antonio 1993, orig. proceeding). Here, however, the attorney-client privilege supports the trial court’s injunction. Only Gulf Coast, the client, holds the privilege to keep confidential or disclose the memo. Tex.R. Evid. 503(b). Kennedy thus has no general constitutional right to disclose it.

Kennedy also asserts that he is entitled to disclose the memo under Texas Rule of Professional Conduct 1.05(e). That provision does not create as broad an exception as Kennedy suggests. It allows an attorney to disclose otherwise confidential information only when it “clearly establishes that a client is likely to commit a criminal or fraudulent act that is likely to result in death or substantial bodily harm to a person.... ” Tex. Disciplinary R. Prof’l Conduct 1.05(e). The rule applies only to prospective conduct because “the lawyer’s knowledge of the client’s purpose may enable the lawyer to prevent commission of the prospective crime or fraud.” Tex. Disciplinary R. Prof’l Conduct 1.05 cmt. 13. In those circumstances, the “lawyer’s interest in preventing the harm may be more compelling than the interest in preserving confidentiality of information.” Id.

Kennedy further urges that the federal statute criminalizing misprision of a felony compels that he have the right to disclose the memo. See 18 U.S.C. § 4. But a conviction under that statute will stand only if the defendant committed an affirmative act to prevent discovery of an earlier felony. United States v. Adams, 961 F.2d 505, 508 (5th Cir.1992). “Mere failure to make known does not suffice.” Id. at 508-09 (citation omitted), quoted in Patel v. Mukasey, 526 F.3d 800, 803 (5th Cir.2008). The federal statute does not require an attorney to violate his client’s privilege.

The amended order is tailored to allow Kennedy to use the memo if its use is deemed necessary to his defense in the State Bar grievance proceedings. Kennedy summarily asserts that he needs to defend himself, but the record before us does not contain any request to produce the document through discovery or a motion to compel. In the absence of a specific showing — consistent with Disciplinary Rule of Professional Conduct 1.05(c)(5)— that the memo and its contents are “reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and client,” the trial court properly protected Gulf Coast’s interest in preserving the confidentiality of the memo while leaving open the possibility that Kennedy may, at some point, make that showing in connection with the State Bar grievance proceedings. We have no reason to doubt that the trial court would similarly permit Kennedy’s access to the memo in connection with some other proceeding if, in the discovery context, he is successful in proving a right to use the memo in his defense and secures an order requiring EBGWH or Gulf Coast to produce it to him. We therefore hold that the temporary injunction is not unconstitutionally overbroad.

Conclusion

We hold that the trial court acted within its discretion in granting Gulf Coast’s application for temporary injunction. We therefore affirm the trial court’s amended order granting the temporary injunction and deny the petition for writ of mandamus.


source: Caselaw Access Project

author: SUE WALKER, Justice.

license: Public Domain

text:
    Angelo L. OTERO, M.D., Appellant, v. Mary RICHARDSON, Appellee.
    No. 2-09-401-CV.
    Court of Appeals of Texas, Fort Worth.
    Sept. 30, 2010.

      John W. McChristian, Jr., Sunny L. Smith, Ray, Valdez, McChristian & Jeans, P.C., Fort Worth, TX, for Appellant.
    Constance M. Maher, The Maher Law Firm, Arlington, TX, for Appellee.

      PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.
   OPINION

SUE WALKER, Justice.

I. Introduction and Procedural Background

This is the second interlocutory, expert-report appeal filed in this litigation. Ap-pellee Mary Richardson filed a health care liability claim against Daniel L. Foster, D.O. and Appellant Angelo L. Otero, M.D. Richardson timely filed and served the expert report and curriculum vitae of Bryan S. Drazner, M.D. Both Dr. Otero and Dr. Foster filed motions to dismiss pursuant to chapter 74 of the civil practice and remedies code. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (Vernon 2005). The trial court sustained some of Otero’s objections to the report relating to knee surgery performed by Dr. Otero, granted Richardson a thirty-day extension of time to allow her to cure these defects in Dr. Drazner’s report as to Dr. Otero, and did not rule on Dr. Otero’s motion to dismiss. The trial court denied Dr. Foster’s motion to dismiss. Both Dr. Otero and Dr. Foster perfected an appeal.

We affirmed in part and reversed in part the trial court’s denial of Dr. Foster’s motion to dismiss. See Foster v. Richardson, 303 S.W.3d 833, 845-46 (Tex.App.Fort Worth 2009, no pet.). We dismissed, on Dr. Otero’s motion, his attempted appeal from the trial court’s order granting Richardson a thirty-day extension of time to file an amended report concerning the sustained objections relating to knee surgery performed by Dr. Otero.

After Dr. Otero’s appeal was dismissed, Richardson did not file an amended report in the trial court; she decided to proceed against Dr. Otero only on her claims on which Dr. Otero’s objections had been overruled. Thirty days expired, and Dr. Otero filed a second motion to dismiss in the trial court. The trial court conducted a hearing and granted Dr. Otero’s motion to dismiss in part, ruling,

This Court had previously sustained Defendant Angelo L. Otero, M.D.’s Objections relating to knee surgery performed, including his objections to qualifications for Dr. Drazner to opine on same in the Report of Bryan S. Draz-ner, M.D. This Court finds that Plaintiff was given an opportunity to cure the deficiencies as related to these objections and failed to do so. Accordingly, Defendant Angelo L. Otero, M.D.’s Second Motion to Dismiss is GRANTED IN PART as follows all of Plaintiffs claims related to the performance of knee surgery are hereby DISMISSED WITH PREJUDICE.

Dr. Otero perfected this appeal, challenging the trial court’s failure to dismiss the entirety of Richardson’s claims against him. In his sole issue on appeal, Dr. Otero queries, “Did the trial court abuse its discretion in overruling [Dr.] Otero’s objections to the report of Bryan Drazner, M.D. regarding the allegation of failure to properly diagnose and treat a fractured leg, and err in denying in part [Dr.] Otero’s Motion to Dismiss?”

II. Factual Background

The following is the factual background as set forth in our prior opinion:

Appellee Mary Richardson injured her left leg while working for an airline in December 2006. Hospital personnel immobilized her knee, initially told her that she had sustained a knee sprain, and instructed her to see her primary physician for treatment. Richardson’s primary physician referred her to Dr. Angelo Otero for an orthopedic consultation. On January 22, 2007, Dr. Otero diagnosed Richardson with tears of her anterior cruciate ligament (ACL) and lateral meniscus in her left knee. On February 15, Dr. Otero surgically reconstructed that knee; he then released her for light duty at work on February 26 and for full duty on May 14.
On June 21, because she was still experiencing pain in her leg, Richardson saw Dr. Foster, who diagnosed her as having complex regional pain syndrome in her left leg and recommended that she participate in physical therapy. However, on July 27, Richardson saw an orthopedic surgeon whose diagnostic tests revealed that Richardson had a partially-healed ankle fracture. To treat the fracture, the surgeon had to rebreak Richardson’s ankle and insert metal hardware into it. Richardson asserts that her leg is disfigured and that her ankle will never function normally because of Dr. Otero’s and Dr. Foster’s failures to timely diagnose and treat the fracture.

Foster, 303 S.W.3d at 836.

III. Standard of Review

We likewise utilize the same standard of review as that set forth in our prior opinion.

We review a trial court’s denial of a motion to dismiss under section 74.351 for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001); Collini v. Pustejovsky, 280 S.W.3d 456, 461 (Tex.App.-Fort Worth 2009, no pet.) (op. on remand); Moore v. Gatica, 269 S.W.3d 134, 139 (Tex.App.-Fort Worth 2008, pet. denied) (op. on remand). We also review a trial court’s decision on whether a physician is qualified to offer an expert opinion in a health care liability claim under an abuse of discretion standard. Collini, 280 S.W.3d at 461; Moore, 269 S.W.3d at 139.
To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986); see Collini, 280 S.W.3d at 461. Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Downer, 701 S.W.2d at 242; Collini, 280 S.W.3d at 461.

Foster, 303 S.W.3d at 837.

IV. The Statutory Requirements of Expert Reports

We recite the statutory requirements of expert reports as set forth in our prior opinion in this litigation.

A plaintiff must serve an expert report that addresses liability and causation on each defendant no later than the 120th day after the plaintiff files a health care liability claim. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a), (j). If an expert report has not been served on a defendant within the 120-day period, then on the motion of the affected defendant, the trial court must dismiss the claim with prejudice and award the defendant reasonable attorney’s fees and costs. Id. § 74.351(b). A report “has not been served” under the statute when it has physically been served but a court finds it deficient. See id. § 74.351(c); Leland v. Brandal, 257 S.W.3d 204, 207 (Tex.2008); Lewis [v. Funderburk], 253 S.W.3d [204] at 207-08 [ (Tex.2008) ].
A report is deficient (therefore subjecting a claim to dismissal) when it “does not represent an objective good faith effort to comply with the [statute’s] definition of an expert report.” Tex. Civ. Prac. & Rem.Code Ann. § 74.351(l); Collini, 280 S.W.3d at 461-62. While the expert report “need not marshal all the plaintiffs proof,” it must provide a fair summary of the expert’s opinions as to the applicable standards of care, the manner in which the care rendered by the physician failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6); Palacios, 46 S.W.3d at 878; Collini, 280 S.W.3d at 462.
To qualify as a good faith effort, the report must “discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question and to provide a basis for the trial court to conclude that the claims have merit.” Palacios, 46 S.W.3d at 875; Benish v. Grottie, 281 S.W.3d 184, 194 (Tex.App.-Fort Worth 2009, pet. denied). A report does not fulfill this requirement if it merely states the expert’s conclusions or if it omits any of the statutory requirements. Palacios, 46 S.W.3d at 879; Benish, 281 S.W.3d at 194.

Foster, 303 S.W.3d at 837.

Y. The Facts Alleged in Dr. Drazner’s Report

Richardson did not file an amended report to cure the deficiencies in Dr. Draz-ner’s report concerning the knee surgery performed by Dr. Otero; Richardson does not challenge the trial court’s dismissal of her claims against Dr. Otero based on or relating to her knee surgery. Thus, the issue before us is whether Dr. Drazner’s report is sufficient to satisfy the statutory elements of an expert report concerning Richardson’s claim that Dr. Otero failed to timely diagnose and treat her ankle fracture.

The report we review now for adequacy as to Dr. Otero, an orthopedic surgeon, is the exact same report we previously reviewed for adequacy as to Dr. Foster, also an orthopedic surgeon. According to his report, Dr. Drazner physically evaluated Richardson on July 26, 2007, and he became concerned about aspects of her prior care at that time. Richardson made it clear to Dr. Drazner “that she [had] complained to Dr. Otero about pain and swelling in the left lower leg and ankle, which far exceeded any minor knee discomfort and that her complaint went ignored and unaddressed.” Dr. Otero failed to diagnose Richardson’s leg fracture and instead performed knee surgery. The report continues,

The Standard of Care Applicable to both Dr. Otero and Dr. Foster:
It is the standard of care for a physician who is examining a patient’s leg injury to perform a thorough [orthopedic] examination in order to determine the nature and extent of the injury. It is also the standard of care when examining a leg injury, to perform full range of motion testing regarding the injured leg, including the knee, the ankle, and the foot, and to detail the findings of the examination....
Breach of Standard of Care:
From their records, neither Dr. Otero nor Dr. Foster performed a thorough examination of Ms. Richardson’s left leg, including her ankle and foot.... Without a complete [orthopedic] examination, including full range of motion testing, and the obtainment of appropriate objective diagnostic tests on Ms. Richardson’s ankle and foot, an accurate diagnosis was not possible. Dr. Otero apparently assumed Ms. Richardson’s injury was to her left knee because she had undergone left knee surgery approximately five years earlier. Dr. Otero’s assumption was not supported by his examination nor by objective diagnostic tests. Although Ms. Richardson may have sprained her knee, it was later discovered (not by Dr. Otero or Dr. Foster) that Ms. Richardson had fractured her left distal fibula.
Results of Defendants’ Breach of the Standard of Care:
... If Dr. Otero and Dr. Foster had performed a complete examination of Ms. Richardson’s left leg, including her tibula/fibula, ankle and foot, and/or if they had referred Ms. Richardson for a second opinion, while treating her conservatively to determine the true nature of her injury, an unnecessary knee surgery would not have been performed. Moreover, due to the physicians’ failure to correctly diagnose Ms. Richardson’s injury, her fracture went completely undetected for over seven months and the patient was subjected to a surgery for open reduction and initial fixation of the lateral mellolus, left pelvic iliac crest bone graft, a prolonged period of pain and requirement for exhaustive narcotic enalyens, usage of a bone growth stimulator and another surgery to remove painful surgical hardware, a prolonged period of disability, and ... loss of hind foot motion, ... as well as moderate chronic pain. As a result, it is my opinion that Ms. Richardson will suffer from impairments that could have been prevented had her injury been properly and timely diagnosed and treated before the fracture had-healed-incor-reetly failed to heal, moved to non-union, and required further exhaustive care.[]

VI. Dr. Otero’s Appellate Complaints

A. Dr. Drazner’s Report Includes Adequate Standard of Care and Breach Opinions

Dr. Otero raises several arguments challenging the adequacy of Dr. Drazner’s report “as to the allegation of failure to properly diagnose and treat a fractured leg.” Dr. Otero claims that “[t]here is no standard of care or alleged breach stated as to [Dr.] Otero and the remaining allegation of failure to properly diagnose and treat a fractured leg” and that Dr. Draz-ner’s report “fails to adequately state a standard of care applicable to [Dr.] Otero or an alleged breach of such standard by [Dr.] Otero with regard to the allegation of failure to properly diagnose and treat a fractured leg.”

An expert report’s statements concerning the standard of care and breach need only identify what care was expected and not given with such specificity that inferences need not be indulged to discern them. Benish, 281 S.W.3d at 198. A “fair summary” of the standard of care and how it was breached is all that is required. Palacios, 46 S.W.3d at 880 (explaining that “a ‘fair summary’ is something less than a full statement of the applicable standard of care and how it was breached”). Dr. Drazner’s report, as quoted above, contains a specific section titled, “Standard of Care Applicable to Dr. Otero,” and another section titled, “Breach of Standard of Care.” These sections explain that the standard of care required Dr. Otero to conduct a thorough examination when he examined Richardson “in order to determine the nature and extent of the injury,” including “full range of motion testing regarding the injured leg, including the knee, the ankle, and the foot, and to detail the findings of the examination.” The section on breach explains that Dr. Otero breached the standard of care by not conducting the thorough examination dictated by the standard of care. These allegations constitute a fair summary of the standard of care applicable to Dr. Otero and how he breached that standard; the allegations are sufficient to identify the care that was expected but not given by Dr. Otero and to permit the trial court to conclude that the claim has merit. See, e.g., Baylor Coll. of Med. v. Pokluda, 283 S.W.3d 110, 121-23 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (rejecting argument that expert report failed to adequately set forth standard of care and breach); Palafox v. Silvey, 247 S.W.3d 310, 318-19 (Tex.App.-El Paso 2007, no pet.) (same); Patel v. Williams, 237 S.W.3d 901, 905 (Tex.App.Houston [14th Dist.] 2007, no pet.) (same). The trial court did not abuse its discretion by determining that Dr. Drazner’s report adequately set forth the standard of care applicable to Dr. Otero in his examination of Richardson’s injured leg and adequately set forth how Dr. Otero breached that standard.

B. Dr. Drazner’s Report Not Inadequate for Including Standard of Care, Breach, and Causation Opinions for Dr. Foster and Dr. Otero (Both Orthopedic Surgeons) in Same Sentences

Next, Dr. Otero contends that Dr. Drazner’s report is inadequate because it “fails to address the conduct of [Dr. Otero and Dr. Foster, both of whom are orthopedic surgeons] individually and thus is con-clusory” as to standard of care, breach, and causation. Dr. Foster made this exact argument in his appeal. See Foster, 303 S.W.3d at 843 (holding that “Dr. Drazner’s report is not deficient merely because it contains some collective statements regarding actions that both [Dr. Foster and Dr. Otero] should have taken while they independently cared for Richardson”). Dr. Otero argues that our holding above does not apply to him because, unlike Dr. Drazner’s report concerning Dr. Foster, Dr. Drazner’s report concerning him does not contain “any independent explanation as to why [Dr.] Otero should have performed a range of motion test.” But Dr. Drazner’s report does explain why Dr. Otero should have performed a range of motion test; he explains that the standard of care when a physician examines a patient for a leg injury is to perform a thorough orthopedic examination and to perform full range of motion testing regarding the injured leg, including the knee, ankle, and foot, and he explains that Dr. Otero is a physician who examined Richardson for a leg injury but did not perform full range of motion testing. For this reason, as well as because both Dr. Otero and Dr. Foster are orthopedic surgeons, and for the reasons set forth in our prior opinion, we hold that the trial court did not abuse its discretion by failing to find Dr. Drazner’s report inadequate or conclusory on the statutory elements of standard of care, breach, and causation simply because the report contains some collective statements concerning Dr. Foster and Dr. Otero regarding standard of care, breach, and causation. See id.

C. Dr. Drazner’s Report Includes Adequate Causation Opinions

Next, Dr. Otero contends that Dr. Drazner’s report “fails to explain the basis of his causation opinions and such opinions are factually unsupported.” Dr. Otero alleges that Dr. Drazner’s report “never explains how or why Richardson’s injuries resulted from the alleged negligent acts.” But Dr. Drazner’s report expressly states under the heading, “Results of Defendants’ Breach of the Standard of Care,” that

[b]y failing to perform a complete examination of Ms. Richardson’s left leg which was injured, both Dr. Otero and Dr. Foster failed to diagnose Ms. Richardson’s left fibula fracture.... [D]ue to the physicians’ failure to correctly diagnose Ms. Richardson’s injury, her fracture went completely undetected for over seven months and the patient was subjected to a surgery for open reduction and initial fixation of the lateral mellolus, left pelvic iliac crest bone graft, a prolonged period of pain and requirement for exhaustive narcotic ena-lyens, usage of a bone growth stimulator and another surgery to remove painful surgical hardware, a prolonged period of disability, and ... loss of hind foot motion ... and chronic pain.

These opinions by Dr. Drazner are amply sufficient to satisfy the statutory causation element required to be included in expert reports. See, e.g., In re Barker, 110 S.W.3d 486, 489-91 (Tex.App.-Amarillo 2003, orig. proceeding) (holding expert report adequately addressed causal connection between defendant’s delay in diagnosis and plaintiffs damages), mand. denied, 141 S.W.3d 144 (Tex.2004); see also Sides v. Guevara, 247 S.W.3d 293, 301-02 (Tex.App.-El Paso 2007, no pet.).

D. Dr. Drazner is Qualified to Offer Opinions in Report

Finally, Dr. Otero claims that Dr. Drazner’s report fails to show that he is qualified as an expert on the standard of care and causation applicable to Richardson’s health care liability claim. The determination of a doctor’s qualifications to provide an expert report must be made on the basis of the contents of the report and his curriculum vitae. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). With respect to a person giving opinion testimony regarding whether a physician departed from accepted standards of medical care, an expert must (1) be practicing medicine at the time of the testimony or at the time the claim arose; (2) have knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the condition involved in the claim; and (3) be qualified on the basis of training or experience to offer an expert opinion regarding the standard of care. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(5)(A), § 74.401(a) (Vernon 2005). A physician is “qualified on the basis of training or experience” if the physician is board certified or has other substantial training or experience in an area of medical practice relevant to the claim and is actively practicing medicine in rendering medical care services relevant to the claim. Id. § 74.401(c).

An expert is qualified to give opinion testimony about the causal relationship between the injury claimed and the alleged departure from the applicable standard of care if he is “otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence.” Id. § 74.351(r)(5)(C), § 74.403(a) (Vernon 2005). The Texas Rules of Evidence provide that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Tex.R. Evid. 702; see also Roberts v. Williamson, 111 S.W.3d 113, 121-22 (Tex.2003) (recognizing that while medical license does not automatically qualify holder to testify as expert on every medical question, test is not whether expert practices in a particular field of medicine but rather whether offering party has established that expert has knowledge, skill, experience, training, or education regarding specific issue before court that would qualify expert to give opinion on particular subject, and holding that based on qualifications and experience, pediatrician was qualified to opine on cause and effect of neurological injuries).

We review a trial court’s determination that an expert is qualified under an abuse of discretion standard. Benish, 281 S.W.3d at 198-99; Mem’l Hermann Healthcare Sys. v. Burrell, 230 S.W.3d 755, 757 (Tex.App.-Houston [14th Dist.] 2007, no pet.) (citing Broders v. Heise, 924 S.W.2d 148, 151-52 (Tex.1996)).

Concerning Dr. Drazner’s qualifications, his report states, in part:

I have been a practicing physician in Texas for 18 years. My practice specialty is Physical Medicine and Rehabilitation with a secondary speciality in Occupational Medicine. My practice consists of examining, evaluating, diagnosing and treating injured patients, primarily those who have suffered orthopedic] injuries. Consequently, I have treated approximately 20,000 patients with orthopedic] injuries and performed several hundred thousand orthopedic] examinations, and I am well familiar with the standard of care that must be followed by any physician who is examining a patient who has sustained an injury.

Dr. Drazner’s curriculum vitae indicates that he currently practices medicine in Dallas, Texas specializing in Physical Medicine and Rehabilitation, and Pain Management.

Thus, Dr. Drazner’s report and curriculum vitae establish that he was practicing medicine at the time Richardson was treated by Dr. Otero and at the time he provided his report; that he possesses knowledge of accepted standards of medical care for the diagnosis, care, or treatment of a person with a leg injury; and that based on his eighteen years of experience, he is qualified to offer an expert opinion regarding the standard of care applicable to a physician examining a patient with a leg injury. See Tex. Civ. Prac. & Rem.Code Ann. §§ 74.351(r)(5)(A), .401(a). Thus, Dr. Drazner’s report and curriculum vitae establish that he met the statutory requirements to be qualified to offer an opinion on the applicable standard of care and its breach. See id. §§ 74.351(r)(5)(A), .401(a)(2)-(3). The trial court did not abuse its discretion by finding Dr. Drazner qualified to do so.

Dr. Drazner’s report and curriculum vitae also establish that he was qualified to opine on the issue of causation because he is qualified to render such an opinion under the Texas Rules of Evidence. See id. §§ 74.351(r)(5)(C), .403(a); Tex.R. Evid. 702. Dr. Drazner is a medical doctor who practices physical medicine and rehabilitation. He has performed several hundred thousand orthopedic examinations, and he has treated approximately 20,000 patients with orthopedic injuries. These credentials and this experience, set forth within the four corners of Dr. Drazner’s report and curriculum vitae, sufficiently establish that he is qualified to render an opinion on causation in this ease. See Tex. Civ. Prac. & Rem.Code Ann. §§ 74.351(r)(5)(C), .403(a); Tex.R. Evid. 702; see, e.g., Mosely v. Mundine, 249 S.W.3d 775, 779-80 (Tex.App.-Dallas 2008, no pet.) (concluding that expert had the knowledge, skill, experience, training, or education regarding specific emergency room physician’s scope of practice and holding that expert was therefore qualified to render an opinion on causation under section 74.351(r)(5)).

Dr. Otero does not point out any specific defect concerning Dr. Drazner’s qualifications. Instead, he argues that “[i]t is difficult to assess what [Dr.] Drazner’s qualifications are with respect to the remaining claim [that is, Richardson’s claim that Dr. Otero failed to properly diagnose and treat her fractured leg] against [Dr.] Otero because [Dr.] Drazner does not state a standard of care or breach by [Dr.] Otero on which [Dr.] Drazner may be judged to be qualified.” We have already addressed Dr. Otero’s contention that Dr. Drazner’s report contains no standard of care or breach opinions as to Dr. Otero. We do not rehash that issue here. For the reasons set forth above, the trial court did not abuse its discretion by concluding that Dr. Drazner was qualified to render opinions on the standard of care, its breach, and on causation concerning Dr. Otero’s alleged negligence in failing to properly diagnose and treat Richardson’s leg fracture.

Having addressed the arguments presented by Dr. Otero in connection with his sole issue presented, we overrule Dr. Ote-ro’s sole issue.

VII. Conclusion

Having overruled Dr. Otero’s sole issue, we affirm the trial court’s order denying in part Dr. Otero’s second motion to dismiss.

      . The portion of the report following the stricken phrase, “had healed correctly,” was handwritten.


author: Justice CARTER.

text:
    In re: COURT OF INQUIRY.
    No. 06-10-00171-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 5, 2010.
    Decided Oct. 6, 2010.
    John Wayne Charleston, Huntsville, for appellant.
    Clint Allen, Cass County Dist. Atty., Linden, for appellee.
    Before MORRISS, C.J, CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Justice CARTER.

John Wayne Charleston attempts to appeal the ruling of the Fifth Judicial District Court of Cass County made in connection with a court of inquiry conducted pursuant to Chapter 52 of the Texas Code of Criminal Procedure. Because the Legislature has not provided a right of appeal, we dismiss this appeal for want of jurisdiction.

On April 14, 2010, the Fifth Judicial District Court convened a court of inquiry to investigate whether the assistant district attorney of Cass County had modified the indictment entered in the cause. On June 1, 2010, the court found there was no modification or fraudulent alteration of the indictment and dissolved the court of inquiry. That is the order from which Charleston appeals.

A court of inquiry is a criminal proceeding authorized by and conducted according to Chapter 52 of the Texas Code of Criminal Procedure. See Tex.Code Crim. Proo. Ann. art. 52.01-.09 (Vernon 2006). When a district judge, acting in his capacity as magistrate, has probable cause to believe that an offense has been committed against the laws of this state, he or she may request that the presiding judge of the administrative judicial district appoint a district judge to commence a court of inquiry. Tex.Code Crim. Proc. Ann. art. 52.01(a). The appointed judge may summon and examine any witness in relation to the offense in accordance with the procedural rules established in Chapter 52. Id. If it appears from a court of inquiry that an offense has been committed, the judge shall issue a warrant for the arrest of the offender as if the complaint had been made and filed. Tex.Code Crim. Proc. Ann. art. 52.08. However, Chapter 52 does not provide for an appeal from the judge’s determination. In re Court of Inquiry, 148 S.W.3d 554, 555 (Tex.App.-El Paso 2004, no pet.). A party may appeal only that which the Legislature has authorized. Olowosuko v. State, 826 S.W.2d 940, 941 (Tex.Crim.App.1992); McCarver v. State, 257 S.W.3d 512 (Tex.App.-Texarkana 2008, no pet.).

In the absence of statutory authorization for an appeal from the magistrate’s determination made in connection with the court of inquiry, we conclude that Charleston does not have a right of appeal. Therefore, we dismiss the appeal for want of jurisdiction.

      . A court of inquiry is authorized when a judge of a district court has probable cause to believe that an offense has been committed. Before requesting the appointment of a judge to conduct a court of inquiry, the judge must file a sworn affidavit stating the substantial facts establishing probable cause that a specific offense has been committed. Tex.Code Crim. Proc. Ann. art. 52.01(b)(1). Here, the judge appointed to conduct the court of inquiry implicitly found that no such affidavit was filed; therefore, Charleston did not have standing to raise or file such a complaint. We agree. Even if an appeal were authorized, without a district court finding of probable cause and an affidavit establishing such, Charleston had no standing to require a court of inquiry proceeding.


author: LESLIE B. YATES, Justice.

text:
    Tholonaus Darrell POMIER, Appellant, v. The STATE of Texas, Appellee.
    No. 14-09-00247-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 21, 2010.

      Mark W. Stevens, Galveston, for appellant.
    B. Warren Goodson, Jr., Galveston, for state.
    Panel consists of Chief Justice HEDGES and Justices YATES and BOYCE.
   OPINION

LESLIE B. YATES, Justice.

Appellant Tholonaus Darrell Pomier raises ten issues challenging the trial court’s judgment sentencing him to twenty years’ imprisonment following his conviction for the felony offense of stalking. In issues one and two, appellant contends the trial court erred in denying his motion to quash the indictment and that his punishment was improperly enhanced. In issues three and four, he argues the evidence is legally and factually insufficient to support his conviction. In issues five and six, he claims his conviction violates the Double Jeopardy Clauses of the United States and Texas Constitutions. In his remaining issues, appellant asserts the Texas stalking statute is unconstitutional on its face and violates the prohibitions against ex post facto laws contained in the United States and Texas Constitutions. We affirm appellant’s conviction as reformed, reverse the trial court’s judgment sentencing appellant to twenty years’ imprisonment, and remand the case for a new punishment hearing.

Factual and ProceduRAl Background

Appellant and Barbara Simmons were involved in a two to three year relationship in the early 1990s. In February 1994, Simmons gave birth to a daughter fathered by appellant. Prior to the child’s birth, Simmons decided to leave appellant because he had become physically abusive. At trial, Simmons testified that appellant beat her on several occasions, including once shortly after she became pregnant. Based on these incidents of abuse, Simmons obtained a protective order in July 1993, which prevented appellant from communicating with or coming near her. Simmons also testified that on a separate occasion in the summer of 1993, she suffered severe injuries after appellant broke into her apartment and beat her with a crowbar. Following this incident, appellant was arrested and charged with burglary of a habitation. Appellant pleaded guilty to a reduced charge of aggravated assault and was sentenced to six years’ deferred community supervision. In October 1995, appellant was sentenced to five years’ imprisonment after violating the terms of his community supervision.

At some point after appellant was released from prison, he began driving past Simmons’s home and demanding to see their daughter, threatening to kick Simmons’s door in, and constantly calling Simmons at her home and work. Simmons filed for another protective order in 2002 because of this behavior. Simmons testified that she also applied for protective orders in 2005 and 2007 because appellant was “harassing and bothering” her and her daughter. According to Simmons, appellant would not leave her alone and would contact her each time an order was set to expire and say “you can’t stop me from coming around.”

On April 25, 2007, appellant was placed in jail for nonpayment of child support following an enforcement hearing attended by appellant and Simmons. Appellant was released from jail on April 27, 2007. The following day, appellant went to Simmons’s apartment and demanded to see his daughter. Simmons testified that appellant told her he was going to hurt her and “get” her because “he was tired of spending all of his money getting out on bail and stuff like that.” Simmons called the police after appellant left her home. Officer William Ashton went to Simmons’s apartment and described Simmons as “scared” and “petrified” upon his arrival. Officer Ashton arranged for Simmons to speak with Officer Crystal Teague, a member of the police department’s domestic violence unit, that same day. Officer Teague testified Simmons “was afraid that [appellant] was going to kill her. He had come to her home. He had made a threat against her and she believed that he was going to kill her.” Appellant was subsequently indicted for stalking Simmons.

Appellant represented himself at trial. A jury convicted appellant and, after finding an enhancement allegation true, assessed punishment at twenty years’ confinement in the Texas Department of Criminal Justice, Institutional Division. This appeal followed.

Sufficiency Of The Evidence

In his third and fourth issues, appellant argues the evidence is legally and factually insufficient to support his conviction. While this appeal was pending, the Court of Criminal Appeals held that only one standard should be used to evaluate the sufficiency of the evidence in a criminal case: legal sufficiency. Brooks v. State, 323 S.W.3d 893, 894 (Tex.Crim.App.2010) (plurality opinion); id. at 926 (Cochran, J., concurring). Accordingly, we review the sufficiency of the evidence in this case under a rigorous and proper application of the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), legal sufficiency standard. Brooks, 323 S.W.3d at 905 (plurality opinion).

A. Standard of Review

When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Id. at 898. This court does not sit as a thirteenth juror and may not substitute its judgment for that of the fact finder by reevaluating the weight and credibility of the evidence. Id. at 901; Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999); see also Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986) (stating the jury may choose to believe or disbelieve any portion of the testimony at trial). We defer to the fact finder’s resolution of conflicting evidence unless the resolution is not rational. See Brooks, 323 S.W.3d at 902 n.8, 905. Our duty as a reviewing court is to ensure that the evidence presented actually supports a conclusion that the defendant committed the crime. Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007).

B. Applicable Law

In order to obtain a conviction, the State was required to prove that appellant (1) on more than one occasion and pursuant to the same scheme or course of conduct directed specifically at Simmons (2) knowingly engaged in conduct, including following Simmons, (3) that he knew or reasonably believed Simmons would regard as threatening bodily injury or death to her, (4) that caused Simmons to be placed in fear of bodily injury or death, and (5) that would cause a reasonable person to fear bodily injury or death for himself or herself. Tex. Penal Code Ann. § 42.072(a) (West 2003).

C. Sufficiency Analysis

Appellant was charged with stalking Simmons from 1993 to 2007. In order to prove the elements of the charged offense, the State presented evidence of appellant’s history of violent and threatening behavior directed at Simmons. Simmons testified that appellant beat her on several occasions, including once while she was pregnant and again when he broke into her apartment in 1993. Simmons’s former neighbor, Willis Vallier, testified that he often heard screaming and yelling coming from Simmons’s apartment. On one occasion in 2003 or 2004, Simmons rushed into Vallier’s apartment. According to Vallier, Simmons was “hysterical, crying, [and] screaming [for] somebody to go upstairs and get her baby.” Vallier saw appellant chasing Simmons down the stairs and trying to strike her with his fist. Appellant attempted to follow Simmons into Vallier’s apartment, but Vallier prevented him from entering. Simmons also testified that appellant threatened to “hurt her” in April 2007 because he had been jailed for failing to pay her child support. According to testimony from Officers Ashton and Teag-ue, Simmons appeared to be in fear for her life after appellant came to her home in April 2007.

The State also presented evidence that, after appellant was released from prison, he began continuously calling Simmons at her home and work and threatening to kick in her door. Simmons and her daughter each testified that they saw appellant drive past their home on many occasions, and Simmons stated that she often saw appellant sitting in a vehicle parked outside her home. Appellant’s behavior caused Simmons to file for multiple protective orders to prevent him from contacting or coming near her or their daughter. Simmons stated she had to keep filing for protective orders because appellant would not leave her alone and “would always come back” after an order expired. Simmons ultimately testified that each time appellant came by her home or called her, she felt “[s]eared for my safety and scared for my life” because he had beaten her “so many times all he could do was kill me next.”

Appellant presents three arguments on appeal for why the evidence is insufficient: (1) his interactions with Simmons were too “widely separated in time” to be considered evidence of any scheme or course of conduct directed at Simmons; (2) contradictory, inconsistent, and embellished testimony offered by Simmons shows she did not regard his conduct as threatening her with bodily injury or death; and (3) appellant could not have known or reasonably believed Simmons would regard his conduct as threatening her with bodily injury or death. We disagree, and we address each of these arguments in turn.

First, section 42.072 does not specify a time period in which the scheme or course of conduct must occur; rather, it merely requires that the accused’s conduct must occur “on more than one occasion and pursuant to the same scheme or course of conduct.” Tex. Penal Code Ann. § 42.072(a); see also Hutton v. State, 313 S.W.3d 902, 908 (Tex.App.-Amarillo 2010, no pet.) (concluding the plain meaning of section 42.072 does not require “a particular or minimum interval of time for events to occur on ‘more than one occasion”’). Thus, by definition, the offense of stalking “contemplates the presentation of evidence that covers the entire course of a defendant’s alleged unlawful conduct directed specifically towards a complainant.” Molett v. State, No. 05-08-00728-CR, 2009 WL 824761, at *5 (Tex.App.-Dallas Mar. 31, 2009, pet. ref'd) (not designated for publication) (emphasis added).

The testimony in this case shows that appellant physically abused and threatened to harm Simmons on multiple occasions from 1993 to 2007. During several years of that time period, appellant drove past Simmons’s home, sat in a vehicle parked outside her home, repeatedly called her at her home and work, and threatened to kick in her door. Viewing this evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that appellant’s conduct constituted a scheme or course of conduct. See Hutton, 313 S.W.3d at 908; see also Lewis v. State, No. 09-06-047 CR, 2007 WL 2200000, at *1-3 (Tex.App.-Beaumont Aug. 1, 2007, no pet.) (mem. op., not designated for publication) (concluding that evidence of four separate instances of conduct by the appellant directed at his former girlfriend over a four-year period was legally sufficient to support conviction for stalking); Thomas v. State, No. 13-03-00655-CR, 2005 WL 1774600, at *1-3 (Tex. App.-Corpus Christi July 28, 2005, no pet.) (mem. op., not designated for publication) (upholding stalking conviction where evidence consisted of the appellant’s conduct between 1978 and 2002 directed toward his ex-wife).

Second, appellant’s argument regarding Simmons’s testimony is essentially challenging her credibility as a witness. But as the exclusive judge of the credibility of the witnesses and the weight to give their testimony, the jury resolves conflicts or inconsistencies in such evidence. Brooks, 323 S.W.3d at 901-02 & n. 19. In support of his argument, appellant relies mainly upon portions of Simmons’s testimony where she admits she could have called the police any time appellant interacted with her. He also claims Simmons embellished the extent of her injuries resulting from the 1993 burglary and assault because an assault with a crowbar would result in injuries more severe than those depicted by photographs taken after the incident. Further, appellant asserts his conduct could not be regarded as threatening because Simmons made no allegations of physical violence after 1993. But in addition to the testimony referenced by appellant, the jury also heard Simmons testify that she feared for her life and safety because, after being beaten so many times, “all [appellant] could do was kill me.” Simmons also testified that she applied for and obtained protective orders against appellant on multiple occasions. Simmons’s fears for her safety and life are further supported by testimony from Officers Ash-ton and Teague that Simmons was in fear for her life after appellant came to her home in April 2007. After reviewing all the evidence, we conclude that a rational jury could find beyond a reasonable doubt that Simmons viewed appellant’s conduct as threatening her with bodily injury or death.

Finally, the evidence is sufficient for a rational jury to conclude beyond a reasonable doubt that appellant possessed the requisite mental state. A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist or when he is aware that his conduct is reasonably certain to cause the result. See Tex. Penal Code Ann. § 6.03(b) (West 2003). Proof of a culpable mental state almost invariably depends upon circumstantial evidence and may be inferred from any facts tending to prove its existence, including the acts, words, and conduct of the accused. Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App.2002); Gant v. State, 278 S.W.3d 836, 839 (Tex.App.-Houston [14th Dist.] 2009, no pet.). Here, the jury heard evidence that appellant beat Simmons severely on multiple occasions, and Simmons repeatedly applied for and obtained protective orders because appellant would not leave her alone. Additionally, the testimony shows that appellant drove by Simmons’s apartment, continuously called Simmons at her home and work, and repeatedly demanded to see their daughter. These facts, when combined with Simmons’s testimony that she was afraid appellant would kill her because he had beaten her so many times, would allow a rational jury to infer appellant knew or reasonably believed Simmons would regard his conduct as threatening bodily injury or death. See Hart, 89 S.W.3d at 64; Gant, 278 S.W.3d at 839; see also Martinez v. State, No. 03-04-00495-CR, 2005 WL 2170348, at *3-4 (Tex.App.-Austin Sept. 9, 2005, pet. ref'd) (mem. op., not designated for publication) (finding sufficient evidence to conclude the appellant knew or reasonably believed his conduct would threaten the complainant with bodily harm or death when the appellant made repeated phone calls to the complainant, appeared at the complainant’s place of business on multiple occasions, and followed the complainant, although the complainant admitted the appellant never threatened to harm her).

Accordingly, the evidence is sufficient to support appellant’s conviction, and we overrule appellant’s third and fourth issues.

Appellant’s Motion To Quash

In his first issue, appellant asserts the trial court erred by overruling his amended motion to quash the indictment. The relevant portions of the indictment read:

[O]n or about the 28th day of APRIL, A.D., 2007, ... [appellant] did then and there knowingly engage in conduct directed specifically toward Barbara Simmons that [appellant] knew or reasonably believed the said Barbara Simmons would regard as threatening bodily injury or death to the said Barbara Simmons, to wit: telephoning the said Barbara Simmons, threatening harm to the said Barbara Simmons, and sitting outside the said Barbara Simmons’ [s] house in a motor vehicle, and [appellant’s] conduct would cause a reasonable person to fear, and did cause the said Barbara Simmons to fear, bodily injury or death for the said Barbara Simmons. And it is further presented ... that on the 12th day of July, 1993, ... [appellant] did then and there knowingly engage in conduct directed specifically toward the said Barbara Simmons by committing Burglary of a Habitation against the said Barbara Simmons.
And it is further presented ... that each of the foregoing acts was committed pursuant to the same scheme or course of conduct that was directed specifically at Barbara Simmons, against the peace and dignity of the State.

Appellant argued in his amended motion to quash that the indictment was (1) “insufficient as a matter of law” because it did not allege a violation of Texas Penal Code section 42.072, the Texas stalking statute, and (2) “defective in that it contains [a] matter which is a legal defense or bar to the prosecution.” The trial court denied appellant’s motion.

We review a trial court’s denial of a motion to quash de novo. Lawrence v. State, 240 S.W.3d 912, 915 (Tex.Crim.App.2007); Kfouri v. State, 312 S.W.3d 89, 91 (Tex.App.-Houston [14th Dist.] 2010, no pet.). A defendant must be given sufficient notice before trial of the “nature and cause” of the accusation against him to enable the defendant to anticipate the State’s evidence and prepare a proper defense. Kfouri, 312 S.W.3d at 91. An indictment must also satisfy the constitutional requirement of subject-matter jurisdiction over “an offense.” Teal v. State, 230 S.W.3d 172, 181 (Tex.Crim.App.2007).

Appellant presents two arguments for why the trial court erred by denying his motion to quash. First, he contends the indictment is defective because it omits a “clearly required element” of the stalking offense, i.e., that appellant “followed” another person. See Tex. Penal Code Ann. § 42.072(a) (stating a person commits an offense by engaging in certain proscribed conduct, “including following [another] person,” which causes a desired result). Appellant has failed to preserve this argument for review. The failure to allege an element of an offense in an indictment is a defect in the substance of the indictment. Studer v. State, 799 S.W.2d 263, 268 (Tex.Crim.App.1990); Salahud-din v. State, 206 S.W.3d 203, 211 (Tex.App.-Corpus Christi 2006, pet. ref'd). Defects, errors, or irregularities in the substance of an indictment must be raised prior to trial or the defendant “waives and forfeits the right to object” on appeal. Tex.Code Crim. Proc. Ann. art. 1.14(b) (West 2005). Appellant’s motion to quash did not complain that the indictment failed to allege an element of the offense. Because appellant did not complain of the omission of an element of the offense prior to trial, this argument is not properly before this court. Id.; see also Sanchez v. State, 120 S.W.3d 359, 363-64, 368 (Tex. Crim.App.2003) (concluding a motion to quash containing a general allegation that an indictment failed to allege criminal conduct was not sufficient to preserve a complaint on appeal that the indictment failed to allege a culpable mental state, a required element of the charged offense).

Next, appellant argues the indictment did not vest the district court with subject-matter jurisdiction over the charged offense. Specifically, appellant contends the State failed to charge him with felony stalking because, to establish an element of the offense, the State used conduct that occurred in 1993, which was prior to the effective date of the current version of section 42.072. Thus, appellant argues, the district court did not have jurisdiction over this case.

District courts have jurisdiction over felonies, misdemeanors involving official misconduct, misdemeanors transferred to the district court pursuant to article 4.17 of the Texas Code of Criminal Procedure, and misdemeanors that are “included in the indictment.” See Tex.Code Crim. Proc. Ann. arts. 4.05-.06 (West 2005); Murray v. State, 302 S.W.3d 874, 877 (Tex.Crim.App.2009). Stalking is currently classified as a third degree felony. See Tex. Penal Code Ann. § 42.072(b). This classification, however, applies only to offenses committed on or after September 1, 2001. See Act of May 26, 2001, 77th Leg., R.S., ch. 1222, § 2, 2001 Tex. Gen. Laws 2795, 2796 (current version at Tex. Penal Code Ann. § 42.072). If any element of the offense occurred prior to this date, the offense is covered by the law in effect when the offense was committed. Id.

A required element of stalking is that a person knowingly engage in conduct directed specifically at another person “on more than one occasion and pursuant to the same scheme or course of conduct.” Tex. Penal Code Ann. § 42.072(a). The State alleged in the indictment that “pursuant to the same scheme or course of conduct” appellant (1) called Simmons on the telephone, (2) threatened Simmons with harm, (3) sat outside Simmons’s home in a vehicle, and (4) committed burglary of a habitation against Simmons in July 1993. Thus, viewing only the language in the indictment, the inclusion of the 1993 burglary incident to establish an element of stalking made the previous version of the statute applicable. See Act of May 26, 2001, 77th Leg., R.S., ch. 1222, § 2, 2001 Tex. Gen. Laws 2795, 2796; Ploeger v. State, 189 S.W.3d 799, 803 n. 1 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (“The current version of the stalking statute makes the offense a felony, but that version does not apply to appellant, who committed at least some of the acts for which he was prosecuted before [September 1, 2001].”); State v. Seibert, 156 S.W.3d 32, 33 n. 1 (Tex.App.-Dallas 2004, no pet.) (noting that stalking indictment was for misdemeanor rather than felony because even though the indictment was signed after September 1, 2001, the alleged conduct occurred before the effective date of the statute).

However, even though the indictment included language that would have properly charged appellant with a misdemeanor rather than a felony, the trial court still had jurisdiction. Presentment of a valid indictment vests the trial court with jurisdiction. See Tex. Const. art. V, § 12; Teal, 230 S.W.3d at 176. When determining if an indictment is so flawed that it does not constitute an actual indictment and thus does not vest the trial court with jurisdiction, the critical determination is whether the court and the defendant can identify what penal code provision is alleged and whether that provision vests the trial court with jurisdiction. See Kirkpatrick v. State, 279 S.W.3d 324, 328 (Tex.Crim.App.2009) (citing Teal, 230 S.W.3d at 172). We must examine whether the trial court and the defendant can determine that the indictment intends to charge a felony or other offense for which the trial court has jurisdiction. Teal, 230 S.W.3d at 181. Here, although the indictment, by including an allegation regarding conduct occurring before the effective date of the statute, properly charged a misdemeanor, the felony offense exists, and the indictment’s return in a felony court put appellant on notice that the State intended to charge him with a felony offense. Kirkpatrick, 279 S.W.3d at 329. Thus, even though the felony indictment was defective, the trial court had jurisdiction, and appellant must have lodged a proper objection to the indictment defect to preserve error. See id.; Teal, 230 S.W.3d at 182. Appellant’s motion to quash did not raise this defect, and therefore, this argument is waived. See Kirkpatrick, 279 S.W.3d at 329; Teal, 230 S.W.3d at 182.

Because appellant did not preserve error on the grounds he alleges on appeal as to why his motion to quash should have been granted and because his grounds do not implicate the trial court’s jurisdiction, we overrule appellant’s first issue.

ImpropeR Punishment

Appellant notes in his brief that he should have been indicted under a previous version of section 42.072 due to the State’s use of events occurring prior to September 1, 2001, to establish an element of the offense. As we stated above, the current version of the stalking statute makes the offense a felony, but that version does not apply here because some of the acts for which appellant was prosecuted occurred before September 1, 2001. See Ploeger, 189 S.W.3d at 803 n. 1. The jury charge in this case included the 1993 conduct as part of the offense, and therefore appellant’s conviction was for a Class A misdemeanor. Cf. Lugo v. State, No. 10-09-00170-CR, 2010 WL 1712488, at *2 (Tex.App.-Waco Apr. 28, 2010, no pet.) (mem. op., not designated for publication) (holding that because jury charge application paragraph omitted an element necessary to raise offense from misdemeanor to felony, defendant was convicted of only a misdemeanor).

The maximum sentence for a Class A misdemeanor is a jail term not to exceed one year and/or a fine not to exceed $4,000. Tex. Penal Code Ann. § 12.21 (West 2003). Appellant was sentenced as though convicted of a third degree felony enhanced to a second degree felony and received twenty years’ imprisonment. As such, appellant’s sentencing for a felony offense was outside the maximum range available for a misdemeanor and therefore illegal. See Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App.2003) (stating a sentence outside the maximum range of punishment for that offense is illegal); see also Speth v. State, 6 S.W.3d 530, 532-33 (Tex.Crim.App.1999) (“[A] defendant has an absolute and non-waivable right to be sentenced within the proper range of punishment established by the Legislature.”). Although appellant does not specifically argue that his punishment is improper on this basis, we conclude that his sentence is void because it was above the statutory maximum for a Class A misdemeanor. See Baker v. State, 278 S.W.3d 923, 927 (Tex.App.-Houston [14th Dist.] 2009, pet. refd) (“Any court with jurisdiction can notice and take action upon an illegal or void sentence at any time, even sua sponte.”); see also Lugo, 2010 WL 1712488, at *2 (finding sentence void and remanding for new punishment trial because defendant was convicted of a misdemeanor but punished in the range for felony stalking); see also Ex parte Hernandez, 698 S.W.2d 670, 670-71 (Tex.Crim.App.1985) (finding sentence void and remanding for new sentencing because defendant was fined and act in effect at time of his sentencing did not authorize fine).

We reform the judgment to reflect that appellant was convicted of a Class A misdemeanor. We reverse the portion of the trial court’s judgment sentencing appellant to twenty years’ imprisonment and remand for a new punishment hearing.

Double Jeopardy

In his fifth and sixth issues, appellant claims his constitutional rights against double jeopardy were violated. Essentially, appellant contends the State’s use of his prior conviction for aggravated assault, which arose from the 1993 burglary incident, subjected him to multiple prosecutions and punishment. The Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The Texas Constitution similarly provides, “No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.” Tex. Const, art. I, § 14. These clauses have been interpreted to prevent (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Evans v. State, 299 S.W.3d 138, 140-41 (Tex.Crim.App.2009) (citing Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)).

The State asserts that appellant has waived his double jeopardy claims because he did not raise the issue at trial. Appellant relies upon Jones v. State, 586 S.W.2d 542, 544 (Tex.Crim.App.1979 [Panel Op.]) for the proposition that a plea of former jeopardy may be raised for the first time on appeal. Id. More recent decisions establish that a defendant bears the burden of preserving, in some fashion, a double jeopardy objection at or before the time the issue of his guilt is submitted to the finder of fact. See Gonzalez v. State, 8 S.W.3d 640, 642 (Tex.Crim.App.2000); King v. State, 161 S.W.3d 264, 267 (Tex.App.-Texarkana 2005, pet. ref'd). Because of the fundamental nature of double jeopardy protections, however, appellant is excused from the preservation requirement when (1) the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and (2) enforcement of the usual rules of procedural default serves no legitimate state interest. See Langs v. State, 183 S.W.3d 680, 687 (Tex.Crim.App.2006); Gonzalez, 8 S.W.3d at 643. The critical inquiry is whether the record before the reviewing court clearly reflects a double jeopardy violation. Long v. State, 130 S.W.3d 419, 424 (Tex.App.-Houston [14th Dist.] 2004, no pet.). Appellant must satisfy both prongs of this test in order to raise his complaint for the first time on appeal. Id.

The constitutional protections against double jeopardy apply “only where the second prosecution is for the same offense as that for which a person has already been in legal jeopardy.” Milner v. State, 263 S.W.3d 353, 356 (Tex.App.-Houston [1st Dist.] 2008, no pet.); see also U.S. Const, amend. V; Tex. Const, art. I, § 14. The former trial “must have been upon the same criminal act for which the State is again seeking to prosecute the defendant.” Milner, 263 S.W.3d at 356. Thus, in determining whether appellant has preserved his double jeopardy complaints for review, the record must clearly demonstrate that he was subjected to multiple prosecutions or punishments for the same offense. Appellant argues he was tried and punished multiple times for the 1993 incident because the State used his conviction for aggravated assault as reduced from burglary of a habitation to prove an essential element of the stalking offense. We disagree.

Separate offenses constitute the same offense for purposes of double jeopardy when each element of the first offense is identical to each element of the second offense. See id. (citing Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). When determining whether multiple offenses constitute the same offense, we compare the elements of the offenses, not the conduct of the accused. Ortega v. State, 171 S.W.3d 895, 899 (Tex.Crim.App.2005). If different elements are present, double jeopardy does not attach. Milner, 263 S.W.3d at 356. However, if each element of the offenses are identical, double jeopardy attaches, and successive prosecutions are barred. Id.

Here, the offense of aggravated assault for which appellant previously had been convicted consists of clearly different elements than the stalking offense that is being appealed. Appellant’s prior conviction for aggravated assault required proof that he (1) committed assault and (2) caused serious bodily injury to another, including his spouse. See Act of May 22, 1991, 72d Leg., R.S., ch. 334, § 2, 1991 Tex. Gen. Laws 1380, 1381 (current version at Tex. Penal Code Ann. § 22.02 (West Supp.2009)). In contrast, appellant’s stalking conviction required proof that he, on more than one occasion and pursuant to the same scheme or course of conduct directed specifically at Simmons, knowingly engaged in conduct, including following Simmons, that (1) he knew or reasonably believed Simmons would regard as threatening bodily injury or death, (2) caused Simmons to be placed in fear of bodily injury or death, and (3) would cause a reasonable person to be placed in fear of bodily injury or death for himself or herself. Tex. Penal Code Ann. § 42.072(a). Both of these offenses contain separate elements and, as such, do not constitute the same offense for double jeopardy purposes. See Ortega, 171 S.W.3d at 899-900 (concluding appellant’s prior conviction for resisting arrest and later conviction for assault arising from the same conduct did not violate the Double Jeopardy Clause because each offense required proof of at least one fact that the other did not).

Because appellant’s prior conviction for aggravated assault as reduced from burglary of a habitation and his later conviction for stalking do not constitute the same offense, we conclude the record in this case does not clearly reflect a double jeopardy violation. Consequently, by failing to object at trial, appellant forfeited his right to raise a double jeopardy violation for the first time on appeal. See Langs, 183 S.W.3d at 687; Long, 130 S.W.3d at 424 (holding appellant could not raise a double jeopardy claim for the first time on appeal because there was no violation clearly reflected on the face of the record). We overrule appellant’s fifth and sixth issues.

Constitutionality Op Section 42.072

In his seventh and eighth issues, appellant challenges the constitutionality of section 42.072. Specifically, appellant argues the statute is unconstitutional on its face because it violates the free speech guarantees of the United States and Texas Constitutions. See U.S. Const, amend. I; Tex. Const, art. I, § 8. The Court of Criminal Appeals has recently held that “a defendant may not raise for the first time on appeal a facial challenge to the constitutionality of a statute.” Karenev v. State, 281 S.W.3d 428, 434 (Tex.Crim.App.2009). Here, there is no indication in the record that appellant raised a facial challenge to the constitutionality of section 42.072 at trial. Appellant has thus waived this issue on appeal. Id.; see also Eubank v. State, No. 14-09-0032B-CR, 2009 WL 4840204, at *1 (Tex.App.-Houston [14th Dist.] Dec. 17, 2009, no pet.) (mem. op., not designated for publication) (appellant waived facial challenge of statute by failing to raise issue at trial); Sony v. State, 307 S.W.3d 348, 353 (Tex.App.-San Antonio 2009, no pet.) (same). We overrule issues seven and eight.

Ex Post Facto Violations

In his ninth and tenth issues, appellant argues the present version of section 42.072 violates the constitutional prohibitions against ex post facto laws. See U.S. Const, art. 1, § 9, cl. 3; Tex. Const, art. I, § 16. An ex post facto law is any law that (1) punishes as a crime any act that was innocent when performed, (2) inflicts greater punishment than the law attached to a criminal offense when committed, (3) deprives the accused of any defense available at the time the act was committed, or (4) alters the legal rules of evidence and requires less or different testimony than the law required at the time of the commission of the offense to convict the accused. See Carmell v. Texas, 529 U.S. 513, 522, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000); Rodriguez v. State, 93 S.W.3d 60, 66 (Tex.Crim.App.2002); State v. Collazo, 264 S.W.3d 121, 128 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd). The sole concern of an appellate court engaged in an ex post facto analysis is whether the statute in question assigns more severe criminal or penal consequences to an act than did the law in place when the act occurred. Sepeda v. State, 280 S.W.3d 398, 401 (Tex.App.-Amarillo 2008, pet. ref'd); State v. Pieper, 231 S.W.3d 9, 12 (Tex.App.-Houston [14th Dist.] 2007, no pet.).

According to appellant, section 42.072 is an improper ex post facto law because, as applied in this case, (1) acts committed prior to the effective date of the statute were made punishable as elements of the charged offense, (2) his punishment was increased based on acts committed prior to the effective date of the statute, and (3) he was deprived of an affirmative defense which had been available under a previous version of the statute. Appellant is essentially arguing that an ex post facto violation occurred because the trial court improperly applied the current version of section 42.072 to certain acts that were committed prior to the effective date of the statute. This argument is misplaced. The prohibition against ex post facto laws is a prohibition against legislative and not judicial action. Ex parte Bonham, 707 S.W.2d 107, 108 n. 1 (Tex.Crim.App.1986). “[A]n ex post facto problem does not arise from a trial court’s erroneous retroactive application of a statute, but only if the statute itself has retroactive effect.” Ortiz v. State, 93 S.W.3d 79, 91 (Tex.Crim.App.2002). The provisions of section 42.072 apply only to offenses committed after September 1, 2001; any offense committed prior to this date is covered by the law in effect at the time the offense occurred. See Act of May 26, 2001, 77th Leg., R.S., ch. 1222, § 3, 2001 Tex. Gen. Laws 2795, 2796 (current version at Tex. Penal Code Ann. § 42.072). Because section 42.072 does not apply retroactively, no ex post facto violation has occurred. See Ortiz, 98 S.W.3d at 90-91 (finding no ex post facto violation where the appellant argued only that the trial court retroactively applied the challenged statute and did not show the statute itself operated retroactively). Appellant’s ninth and tenth issues are overruled.

Conclusion

We reform the judgment to reflect that appellant was convicted of a Class A misdemeanor and affirm that portion of the judgment as reformed. We reverse the portion of the trial court’s judgment sentencing appellant to twenty years’ imprisonment and remand for a new punishment hearing.

HEDGES, C.J., concurring.

      . A court’s lack of subject-matter jurisdiction may be raised for the first time on appeal. Saldano v. State, 70 S.W.3d 873, 888 (Tex.Crim.App.2002); Hall v. State, 303 S.W.3d 336, 341 (Tex.App.-Amarillo 2009, pet. ref'd).

      . Prior to September 1, 2001, stalking was classified as a Class A misdemeanor. See Act of Jan. 27, 1997, 75th Leg., R.S., ch. 1, § 1, 1997 Tex. Gen. Laws 1, 1 (amended 2001).

      . Because we reverse appellant’s punishment on this basis, we need not address appellant’s second issue in which he argues that his sentence was improperly enhanced to a second degree felony.

      . Appellant also argues that it is unconstitutional to convict him based on conduct occurring in 1993 because the stalking statute in effect at that time was declared unconstitutional. See Long v. State, 931 S.W.2d 285 (Tex.Crim.App.1996). We reject this argument. Appellant did not commit stalking in 1993; he committed assault and burglary. Further, the stalking statute was amended in 1997, and that version was never declared unconstitutional. See Act of Jan. 27, 1997, 75th Leg., R.S., ch. 1, § 1, 1997 Tex. Gen. Laws 1 (amended 2001). The current statute, which is substantially similar to the 1997 statute but raises the offense from a Class A misdemeanor to a felony, provides that if any element of the offense occurred prior to the effective date of the statute, the 1997 statute applies. See Act of May 26, 2001, 77th Leg., R.S., ch. 1222, § 2, 2001 Tex. Gen. Laws 2795, 2796. Thus, because neither the current nor the 1997 statute has been declared unconstitutional, appellant’s argument fails.

      . The State claims appellant has failed to preserve these issues for review because he did not raise an ex post facto challenge to section 42.072 at trial. An ex post facto claim, however, may not be waived and can be raised for the first time on appeal. See Ieppert v. State, 908 S.W.2d 217, 220 (Tex.Crim.App.1995); Holcomb v. State, 146 S.W.3d 723, 730 (Tex.App.-Austin 2004, no pet.); Dean v. State, 60 S.W.3d 217, 219 n. 1 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). Appellant’s complaints are thus properly before this court.