author: BILL VANCE, Justice. TOM GRAY, Justice,

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Ronald K. ACKERMAN, Appellee.
    No. 10-99-302-CV.
    Court of Appeals of Texas, Waco.
    Oct. 4, 2000.

      Jason D. Ray, Texas Dept, of Public Safety, CHL Legal Section, Austin, for appellant.
    John R. Jensen, Jensen & Jensen, Arlington, for appellee.
    Before Chief Justice DAVIS, Justices VANCE and GRAY.

      . We cite to the current version of the statute because Ackerman’s appeal from the justice court was filed after the effective date of the recodification of the statute. The earlier subsection was identical.

   OPINION

BILL VANCE, Justice.

After a Justice of the Peace upheld the Texas Department of Public Safety’s decision to suspend Ronald K. Ackerman’s concealed handgun license, Ackerman appealed the ruling to the County Court at Law. His appeal was considered by the judge of the County Criminal Court who had also heard the criminal case underlying DPS’s action. During the course of the de novo proceeding, DPS abandoned its effort to suspend Ackerman’s license. Acting on Ackerman’s motion for a summary judgment, however, the county criminal court awarded him $1,895 in attorney’s fees, costs, and expenses under chapter 105 of the Civil Practice and Remedies Code. In this appeal, DPS claims that the court’s ruling was erroneous because (a) the controversy was moot, (b) the court did not have statutory jurisdiction, and (c) Ackerman failed to establish his entitlement to judgment as a matter of law. Although we reject both of DPS’s jurisdictional arguments, we will sustain its procedural complaint, reverse the trial court’s judgment, and remand the cause for further proceedings.

Background

In September 1996, Ackerman was issued a concealed handgun license (CHL) by DPS. In May of the next year, Acker-man was charged with the offense of fading to display his CHL to a peace officer when requested. Tex.Rev.Civ.StatAnn. art. 4413(29ee) § 6(h), (i) (repealed, 1997). The charges were filed in the Dallas County Criminal Court No. 2. In response to this charge, DPS notified Ackerman that it was suspending his CHL. Id. §§ 7, 13. As allowed by the statute, Ackerman chose to contest DPS’s action in a justice court. Id. § 7(a), (b). The justice of the peace upheld the decision to suspend Ackerman’s license, and in February 1998, Ackerman appealed the JP’s decision to a Dallas County Court at Law for a trial de novo. Id. § 7(c), (e). Before the county court, Ackerman argued that article 4413(29ee) did not authorize DPS to suspend his license, and that he was entitled to recover his attorney fees, expenses, and costs incurred in the proceeding under chapter 105 of the Civil Practice and Remedies Code. Tex.CivPrac. & Rem.Code Ann. § 105.002 (Vernon 1997).

Ackerman’s appeal was docketed in the County Court at Law No. 4. Before that court took any action on the case, however, the Dallas County District Attorney dismissed the charges underlying the suspension of Ackerman’s license, and on June 1, 1998, DPS notified Ackerman that his license had been reinstated. A month after his license was reinstated, the County Court at Law No. 4 transferred the case to the Dallas County Criminal Court No. 2, indicating that the case was being transferred for “concurrent disposition” with the criminal charges against Ackerman that had been filed in that court. Eight months later, Ackerman moved for a summary judgment on his claim for attorneys fees, costs, and expenses. The court granted his motion, awarding him $1,895, and DPS brought this appeal.

Jurisdictional issues

We first address those issues which would give DPS the greatest relief. Bradleys’ Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex.1999); see also Tex.R.App.P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal”). If DPS is correct about the suspension appeal being moot, we would reverse the judgment and dismiss the action. If its assertion about the county criminal court at law’s authority is correct, we would have to both reverse the judgment and remand the suit with instructions to return the proceeding to the county court at law. Thus, we address these arguments first.

Is the controversy moot?

The existence of an actual controversy is a jurisdictional requirement for judicial action. FDIC v. Nueces County, 886 S.W.2d 766, 767 (Tex.1994). Thus, if the controversy were moot, neither the trial court nor this court would have any jurisdiction over the issues involved in the proceeding. Id. DPS argues that the controversy was rendered moot by its decision to reinstate Ackerman’s license after the criminal charges were dropped and that his claim for attorney’s fees and costs cannot breathe life back into the action. We disagree.

As presented to the county court at law, this proceeding involved two controversies. First, DPS claimed that it was entitled to suspend Ackennan’s license due to his pending criminal charges, a claim on which it carried the burden of proof in the de novo proceeding before the county court at law. See Sanchez v. Huntsville Indep. Sch. Dist., 844 S.W.2d 286, 289 (Tex.App.—Houston [1st Dist.] 1992, no writ) (“In appeals from justice court to county court, the judgment of the justice court is vacated and the plaintiff has the burden of proving his case again.”). Second, in what amounted to a counterclaim against DPS, Ackerman claimed that DPS’s entire cause of action against him was frivolous, entitling him to recover attorney’s fees, costs, and expenses under chapter 105 of the Civil Practice and Remedies Code.

Chapter 105 is referred to as the “Frivolous Claims Act.” Brainard v. State, 12 S.W.3d 6, 30 (Tex.1999). “The purpose of chapter 105 is to afford an aggrieved citizen some remedy from a governmental agency for the misuse of governmental power.” Id. at 31 (quoting Black v. Dallas Co. Child Welfare Unit, 835 S.W.2d 626, 629 n. 5 (Tex.1992)). To provide this remedy, the act allows for a party opposing the state in a civil action to be awarded attorneys fees, costs, and expenses when the state agency asserts a claim that is “frivolous, unreasonable, or without foundation.” Tex.Civ.PRAc. & Rem.Code Ann. § 105.002(1); Brainard, 12 S.W.3d at 30. “An action may be deemed unreasonable for purposes of the Frivolous Claims Act when ‘the totality of the tendered evidence [fails] to demonstrate any arguable basis for the ... claim.’ ” Brainard, 12 S.W.3d at 30 (quoting Attorney Gen. v. Johnson, 791 S.W.2d 200, 202 (Tex.App.—Fort Worth 1990, writ denied)). The concealed handgun license statute specifically makes this chapter applicable to proceedings involving the suspension of a CHL. Tex.Rev. Civ.Stat.Ann. art. 4413(29ee) § 7(d) (repealed, 1997).

When DPS abandoned the effort to suspend Ackerman’s license, the first controversy was resolved. However, the second controversy remained, and the court had the authority to resolve the issues necessary to dispose of the claims of the parties. See Leon Springs Gas Co. v. Restaurant Equipment Leasing Co., 961 S.W.2d 674, 579 (Tex.App.—San Antonio 1997, no pet.).

Statutory jurisdiction

DPS also contends that the Dallas County Criminal Court No. 2 did not have statutory authority to consider this proceeding because the concealed handgun license statute explicitly provides that an appeal from the justice court is to a county court at law. Tex.Gov’t Code Ann. § 411.180(e) (Vernon Supp.2000). Thus, DPS claims, the judgment awarding Ack-erman fees and expenses is void. However, section 25.0012 of the Government Code provides:

Exchange of Judges in Certain County Courts at Law and County Criminal Courts
In any county with a population of more than 300,000, the judge of a county criminal court and the judge of a county court at law may hold court for or with one another. The county criminal court has the necessary civil jurisdiction to hold court for the county court at law.

Tex.Gov’t Code Ann. § 25.0012 (Vernon 1988). We take judicial notice of the fact that the 1990 federal decennial census determined that Dallas County’s population was over 1,800,000. Tex.Gov’t Code Ann. § 311.005(3) (Vernon 1998); Tex.R.Evid. 201; see In re Barr, 13 S.W.3d 525, 550 n. 23 (Tex.Rev.Trib.1998, no appeal) (court of appeals may take judicial notice of facts that are notorious, well known, or easily ascertainable even if not judicially noticed in the trial court). Thus, the County Criminal Court No. 2 had the “necessary civil jurisdiction” to rule upon Ackerman’s claims and the judge of the County Court at Law No. 4 had the authority to transfer the action to the County Criminal Court No. 2. Tex.Gov’t Code Ann. § 74.094 (Vernon Supp.2000). Additionally, the Presiding Judge of the First Administrative Region assigned the presiding judge of the County Criminal Court No. 2 to the County Court at Law No. 4 for the purpose of hearing this suit. Id. § 74.056 (Vernon 1998). Thus, the County Criminal Court No. 2 judge had jurisdiction over this proceeding.

DPS’s jurisdictional arguments are not well founded. Issue one is without merit.

Summary judgment issues

DPS directly attacks Ackerman’s motion for summary judgment on two grounds. First, DPS argues that the motion is insufficient because it does not state as a ground that DPS’s claims were frivolous, unreasonable or without foundation. Second, DPS argues that Ackerman’s summary judgment evidence does not establish his entitlement to judgment as a matter of law. We address only the first argument.

Summary judgment standards

The standards for reviewing a summary judgment are well established. Nixon v. Mr. Property Management, 690 S.W.2d 546, 548 (Tex.1985). The movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to the summary judgment as a matter of law. Id. The reviewing court must accept all evidence favorable to the non-movant as true. Id. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in its favor. Id. Evidence which favors the movant will be considered only if it is uncontroverted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). “A motion for summary judgment must itself expressly present the grounds upon which it is made, and must stand or fall on these grounds alone.” Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex.1997) (citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993)). A motion that presents no grounds for a summary judgment is insufficient as a matter of law. McConnell, 858 S.W.2d at 342.

A plaintiff who moves for a summary judgment must show that he is entitled to prevail on each element of his cause of action. Brooks v. Sherry Lane Nat’l Bank, 788 S.W.2d 874, 876 (Tex.App.—Dallas 1990, no writ). This burden is met if the summary-judgment evidence would be sufficient to support an instructed verdict at trial. Braden v. New Ulm State Bank, 618 S.W.2d 780, 782 (Tex.Civ.App.—Houston [1st Dist.] 1981, writ ref'd n.r.e.).

Ackerman’s motion for summary judgment

We conclude that Ackerman’s motion for summary judgment is insufficient ■as a matter of law to support the judgment. McConnell, 858 S.W.2d at 342. The Frivolous Claims Act permits attorneys fees, costs, and expenses to be awarded when an agency has asserted a claim that is “frivolous, unreasonable, or without foundation.” Tex.Cxv.PraC. & Rem.Code Ann. § 105.002(1); Brainard, 12 S.W.3d at 30. Ackerman does not assert in his motion that DPS’s claims in this proceeding meet any of those criteria. He does not refer to or otherwise cite to the Frivolous Claims Act in his motion. The closest Ackerman comes to asserting a ground for his motion is the final paragraph, which reads:

Based upon the stipulated facts, answers to request for admissions, and application of the concealed handgun carry law with changes effective September 1, 1997, the allegations in petitioner’s original petition have been proven and there is no dispute regarding the facts or the applicable law. Accordingly, movant’s motion should be granted and attorney fees, court reporter charges, and cost be assessed against respondent.

There are no grounds asserted in Acker-man’s motion which would entitle him to judgment. Thus, his motion is insufficient to sustain the judgment rendered by the trial court, and the judgment must be reversed. McConnell, 858 S.W.2d at 342.

Conclusion

Even though the County Criminal Court No. 2 had jurisdiction to consider the merits of Ackerman’s claim, his motion for summary judgment was not sufficient to establish his right to judgment. Therefore, we find that DPS’s second issue has merit. The judgment is reversed, and this cause is remanded to the trial court for further proceedings.

Justice GRAY dissenting.

TOM GRAY, Justice,

dissenting.

The majority holds that Ronald K. Ack-erman failed to state any ground in his motion for summary judgment which would entitle him to judgment. They conclude that “his motion is insufficient to sustain the judgment rendered by the trial court, and the judgment must be reversed.” What’s a person gotta’ do to get a summary judgment these days?

In Ackerman’s motion for summary judgment he states: “The only issue remaining in this case is the applicability of Section 411.180(d), Texas Government Code, for costs and attorney fees.” He then prays for a recovery of fees and expenses. That section of the Government Code states: “A proceeding under this section is subject to Chapter 105, Civil Practice and Remedies Code, relating to fees, expenses, and attorney’s fees.” Chapter 105 of the Civil Practice and Remedies Code is entitled “Frivolous Claim by State Agency.” This chapter consists of only four sections and provides for only one type of recovery: fees, expenses and attorney’s fees for a frivolous claim by a State agency.

Where the majority errs in their analysis is a potential problem with Ackerman’s underlying petition. As the majority notes, Chapter 105 of the Civil Practice and Remedies Code specifies that a claimant may recover “fees, expenses, and attorney’s fees” if the state agency asserted a claim that was “frivolous, unreasonable, or without foundation.” They note that Ackerman did not allege in his “motion” any of these criteria. This may be a problem with Ackerman’s underlying pleading, but it is not a defect in his motion for summary judgment as the majority holds.

Ackerman told the reader of his motion for summary judgment exactly the ground under which he was seeking summary judgment for fees, expenses and attorney’s fees; Section 411.180(d) of the Government Code. The reader may have to go read the statute, but this is no different than the movant stating that the ground upon which they rely as “Chapter 101 of the Texas Tort Claims Act,” or a reference to any one of the myriad of statutes that provide for some specific relief or defense.

We should avoid imposing enzymatic language requirement to state a ground of recovery in a summary judgment motion. If the motion provides a reader reasonable notice of the ground upon which summary judgment is sought, that should be adequate. The ground of recovery is sufficiently stated in Ackerman’s summary judgment motion.

For the reasons stated, I respectfully dissent from the majority’s remand of this cause on the basis indicated. I concur in the remainder of the opinion.

      . Act of May 16, 1995, 74th Leg., R.S., ch. 229, § 1, 1995 Tex. Gen. Laws 1998, 2002 repealed by Act of May 8, 1997, 75th Leg., R.S., ch. 165, § 10.01(b), 1997 Tex.Gen.Laws 327, 411 (current version at Tex.Gov’t Code Ann. § 411.205 (Vernon Supp.2000)). At the time of Ackerman’s offense, the statutes governing concealed handgun licenses were found in article 4413(29ee) of the Revised Civil Statutes, but have since been recodified as part of the Government Code. For ease of reference, we will cite to article 4413(29ee) in the text.

      . Act of May 16, 1995, 74th Leg., R.S., ch. 229, § 1, 1995 Tex.Gen.Laws 1998, 2002-03, 2005-06, (repealed 1997) (current version at Tex Gov't Code Ann. §§ 411.180, 411.187 (Vernon Supp.2000)).

      . Act of May 16, 1995, 74th Leg., R.S., ch. 229, § 1, 1995 Tex. Gen. Laws 1998, 2002-03 (repealed 1997) (current version at Tex.Gov’t Code Ann. §411.180(a)).

      . Act of May 16, 1995, 74th Leg., R.S., ch. 229, § 1, 1995 Tex.Gen.Laws 1998, 2002-03 (repealed 1997) (current version at Tex .Gov’t Code Ann. § 411.180(c), (e)).

      . Our record does not demonstrate why the charges were dismissed. However, in the 1997 amendments to the concealed handgun license statute, the Legislature decriminalized a first failure to display a CHL, making it instead a basis for the suspension of a license. Tex.Gov't Code Ann. § 411.205(a). Under the amended provision, a second failure to display a CHL after having had the license suspended for the same violation is a class B misdemeanor. Id. § 411.205(b). Based on the parties' briefs, we suspect that the criminal charges were dismissed as a result of the change in the law. See Tex.Gov't Code Ann. § 311.031(b) (Vernon 1998).

      . Act of May 16, 1995, 74th Leg., R.S., ch. 229, § 1, 1995 Tex.Gen.Laws 1998, 2003 (repealed 1997) (current version at Tex.Gov’t Code Ann. § 411.180(d)).

      . Although he cites section 411.180 of the Government Code, which makes proceedings under the concealed handgun license statute “subject to” the Frivolous Claims Act. Tex. Gov’t Code Ann. § 411.180(d) (Vernon 1998); Tex.Civ.Prac. & Rem.Code Ann. § 105.001-.004 (Vernon 1997).


source: Caselaw Access Project

author: ARNOT, Chief Justice.

license: Public Domain

text:
    Russell FISH and Dallas NAACP Branch, Appellants, v. DALLAS INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 11-99-00177-CV.
    Court of Appeals of Texas, Eastland.
    Oct. 5, 2000.
    Publication Ordered Nov. 8, 2000.

      Allan E. Parker, Jr., Jimmy D. ‘Skip’ Hulett, Texas Justice Foundation, San Antonio, for appellant.
    David Albert Buono, Robert Wendland, Eric V. Moye, Vial, Hamilton, Koch & Knox, Dallas, for appellee.
    Panel consists of: ARNOT, C.J., and WRIGHT, J„ and McCALL, J.
   ARNOT, Chief Justice.

Russell Fish and Dallas NAACP Branch (plaintiffs) sought a writ of mandamus against the Dallas Independent School District (DISD) in order to obtain information under the Texas Public Information Act (the Act), TEX. GOV’T CODE ANN. § 552.001 et seq. (Vernon 1994 <& Supp. 2000). Both sides moved for summary judgment. The trial court denied plaintiffs’ motion, granted DISD’s motion, and entered a take-nothing summary judgment in favor of DISD. Plaintiffs contend in both issues presented for appellate review that the trial court erred in denying their motion and in granting DISD’s motion. We affirm in part and reverse and remand in part.

The issue in this case is whether DISD is required to disclose the requested information. Plaintiffs requested the following information from the Iowa Test of Basic Skills (ITBS) for school years 1986-1987 through 1996-1997: student number, student sex, student age, student ethnicity, special ed flag, “LEP” flag, test norms, teacher number, campus name, grade, level, form, test date, reading vocabulary grade equivalent, reading comprehension grade equivalent, reading total grade equivalent, mathematics concepts grade equivalent, mathematics problems grade equivalent, and mathematics total grade equivalent. Plaintiffs also requested that a “unique number be placed in the field for student and teacher names and that the number be consistent from year to year” and that the information be provided on magnetic tape reels.

DISD moved for summary judgment on the following grounds: DISD is not required to disclose confidential or personally identifiable information contained in education records; DISD is not required to create new information, such as new student identification numbers, in response to requests for public information; and plaintiffs did not comply with Section 552.231(d). The trial court did not specify the basis for granting the motion. Therefore, plaintiffs must defeat each summary judgment ground urged by DISD. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 79 (Tex.1989). In addressing the issues on appeal, we will apply the well-recognized standard of review for traditional summary judgments. We must consider the summary judgment evidence in the light most favorable to the non-movants, indulging all reasonable inferences in their favor, and determine whether the movant proved that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546 (Tex.1985); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979).

Confidentiality

In its motion for summary judgment, DISD claimed that it was not required to disclose the requested information because it contained personally identifiable information from education records. At the outset, we must state that the Act is to be construed liberally to implement the principle that the government is the servant and not the master of the people and that the people are entitled, unless otherwise expressly provided by law, to complete information about the affairs of the government. Section 552.001. There are express provisions, however, that apply to information contained in education records. DISD cited Sections 552.114 & 552.026 of the Act and 20 U.S.C.A. § 1232g(b) (West 2000) of the Federal Educational Rights and Privacy Act of 1974 (FER-PA) in support of its proposition. Section 552.114 excludes from disclosure information found in a student record at an educational institution. Section 552.026 provides that a governmental body is not required to release “information contained in education records” except in conformity with FERPA. FERPA, Section 1232g(b)(l) & (2), provides for the release of “educational records” and “any personally identifiable information in education records,” other than directory information, only when a parent consents or when one of the specific exceptions applies. None of the exceptions, such as the release to school officials, apply to the present case.

We also note that Section 552.101 of the Act and TEX.EDUC.CODE ANN. § 39.030(b) (Vernon 1996) are applicable to this issue. Section 552.101 excepts confidential information from disclosure. Section 39.030(b) provides that the “results of individual student performance on academic skills assessment instruments ... are confidential” and may only be released pursuant to FERPA. Section 39.030(b) further provides that “overall student performance data” shall be aggregated by various demographics and made available to the public but that the information may not contain the names of individual students or teachers. See Tex. Att’y Gen. ORD-352 (1982).

Although DISD moved for summary judgment on the basis of confidentiality, DISD failed to support this contention with any summary judgment evidence. In its motion, DISD stated in a footnote that plaintiffs’ “proposed numerical coding system is completely inadequate to maintain the confidentiality of this student information.” However, DISD offered no summary judgment evidence in support of this statement. The record, therefore, does not conclusively show that the information in the form requested by plaintiffs was protected from disclosure. We hold that, if the summary judgment was granted on this ground, it was erroneous.

Creating New Information

Next, DISD moved for summary judgment on the ground that it was not required to create new information in order to comply with a request for disclosure. Section 552.002 defines “public information” as “information that is collected, assembled, or maintained” by a governmental body. The Supreme Court in A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 676 (Tex.1995), has interpreted this to mean that the Act compels disclosure of public information that is in existence but that the Act does not require a governmental entity to prepare or assemble new information in response to a request.

DISD asserted that the records in their possession did not contain a unique, confidential, and non-personally identifiable number for each student and that manipulating the data as requested by plaintiffs would create new information. In support of its motion, DISD attached the affidavit of Dr. Robert Mendro, the Executive Director of Institutional Research for DISD. Dr. Mendro swore that DISD had the ITBS data and related records for 1986 through 1997, that the students’ names and the teachers’ names are included in this data, that DISD does not assign “to these names any unique and confidential numerical code that may be traced through the ITBS data from year to year,” and that assigning a unique and confidential numerical code to each student and teacher would require DISD to insert new information into its ITBS data and records.

Plaintiffs responded that their request required the mere manipulation or programming of data as provided for in Sections 552.231(a) and 552.003, rather than the creation of new information. Section 552.23(a)(1) provides the procedure to be complied with if “responding to a request for public information will require programming or manipulation of data.” Section 552.003(2) defines manipulation as “the process of modifying, reordering, or decoding of information with human intervention.” According to plaintiffs’ summary judgment evidence, substituting each child’s name with a unique, confidential number would have required a mere manipulation of the existing data by adding only one line of programming code.

We hold that plaintiffs’ request required the manipulation of existing data rather than the creation of new information. The data existed prior to the request; however, it contained confidential information. Manipulating the data to substitute the confidential information with a unique, confidential number by adding one line of programming falls within the provisions of Section 552.231, which was added by the legislature in 1995. Thus, if the trial court granted summary judgment on this ground, it was erroneous.

Procedural Compliance

Finally, DISD moved for summary judgment on the ground that plaintiffs did not comply with Section 552.231(d), which states:

On providing the written statement to the requestor as required by this section, the governmental body does not have any farther obligation to provide the information in the requested form or in the form in which it is available until the requestor states in writing to the governmental body that the requestor:
(1) wants the governmental body to provide the information in the requested form according to the cost and time parameters set out in the statement or according to other [agreed upon] terms ... or
(2) wants the information in the form in which it is available. (Emphasis added)

DISD was not entitled to summary judgment on this ground for two reasons.

First, the written statement provided by DISD did not comply with the requirements of Section 552.231(b). Section 552.231(b)(2) requires that the written statement include a description of the form in which the information is available. DISD’s belated response did not include such a description. It stated only that the information “is not readily available or in a format where it can be easily prepared” and that the “data collected in the fashion ... requested does not currently exist.” DISD also stated that the information would have to be extracted from various archives and gave the estimated time and cost of preparation. DISD was not released by Section 552.231 from the obligation to provide the requested information because DISD had not provided a written statement as required by that section.

Second, the summary judgment includes a written “Mediated Settlement Offer” in which plaintiffs requested the information in its currently available form. This writing meets the requirements of Section 552.231(d)(2). Therefore, we hold that, if it granted summary judgment on this procedural ground, the trial court erred in doing so. Consequently, the summary judgment cannot be affirmed on any of the grounds urged by DISD in their motion for summary judgment.

Denial of Plaintiffs’ Motion

In addition to arguing that the trial court erred in granting DISD’s motion for summary judgment, plaintiffs contend that the trial court erred in denying their motion for summary judgment. Plaintiffs request that we reverse the trial court and render a judgment in their favor ordering the immediate production of the requested information. Because of the confidentiality issue, we cannot render such a judgment. Plaintiffs’ summary judgment evidence included Fish’s affidavit. Fish swore to his expertise in the computer field and gave an example of his experience with requesting public information and placing it on the internet. Fish also had some experience analyzing the test score records from academic skills assessment tests, including ITBS data. Fish’s affidavit reiterated that he requested that the identity of “each child be masked with a unique, non-personally identifiable number so as to maintain the confidentiality of the students.” Fish swore that the task of manipulating the data to substitute each child’s name with a unique, confidential number that remained constant throughout the years would have been easy for DISD to perform and would have required only one line of programming code. Fish intended to place the information obtained from DISD on the internet.

However, just as we are not privy to the information contained in the school’s records, nor was Fish. Fish was not in a position to conclude that confidential or personally identifiable information would not be disclosed or that the requested information would not make a child’s identity easily traceable. This is especially true in light of all of the demographic information that plaintiffs requested. If one child’s identity was discovered, the code could be deciphered, and other children’s identities would be revealed. We hold that plaintiffs did not conclusively show that the confidentiality of the students would not be compromised by the disclosure of the information as requested. The trial court properly denied plaintiffs’ motion for summary judgment.

Conclusion

Plaintiffs’ issues are sustained to the extent that they urge that summary judgment in favor of DISD was improper. The summary judgment cannot be upheld on any of the grounds urged by DISD in its motion for summary judgment. Plaintiffs’ issues are overruled to the extent that they urge that the trial court erred in denying plaintiffs’ motion for summary judgment.

The judgment of the trial court is affirmed insofar as it denied Russell Fish and Dallas NAACP Branch’s motion for summary judgment. The portion of the judgment granting Dallas Independent School District’s motion for summary judgment is reversed, and the cause is remanded.

      . DISD moved alternatively for partial summary judgment on the issue of costs. This issue became moot, however, when the parties subsequently entered into an agreement under TEX.R.CIV.P. 11 in which they stipulated to collateral matters such as costs and fees.


author: WALKER, Chief Justice.

text:
    James Delevan PUDERBAUGH, Appellant, v. The STATE of Texas, Appellee.
    No. 09-99-328 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted Oct. 9, 2000.
    Delivered Nov. 8, 2000.

      Walter E. Herman, III, Humble Law Center, Humble, for appellant.
    Michael R. Little, Dist. Atty., Steve Greene, Asst. Dist. Atty., Liberty, for State.
    Before WALKER, C.J., BURGESS and STOVER, JJ.
   OPINION

WALKER, Chief Justice.

James Delevan Puderbaugh was indicted for having committed the first degree felony offense of aggravated sexual assault of a child younger than fourteen years of age. After the jury found Puderbaugh to be guilty, the court assessed punishment at seventy-five years of confinement in the Texas Department of Criminal Justice, Institutional Division. Puderbaugh raises five points of error in his appeal.

Point of error one urges, “The trial court erred by allowing a social worker to testify to statements made to him which incriminated appellant because the State did not show that the complainant knew the statements were being made for the purpose of medical diagnosis or treatment.” Richard Brouwer, a clinical social worker who practices with physicians in a family office practice, testified that the complainant C.P., was referred to him for counseling by C.P.’s family physician. Since starting treatment in June 1997, Brouwer had over 30 sessions with C.P., conducted approximately twice a month. In the course of her treatment, C.P. indicated that her father, the appellant, sexually abused her.

Statements made for purposes of medical diagnosis or treatment are excepted from the hearsay rule. Tex.R.Evid. 803(4). Puderbaugh argues C.P.’s statements to Brouwer, relating the abuse by Puderbaugh, are inadmissible under Gohr-ing v. State, 967 S.W.2d 459 (Tex.App.—Beaumont 1998, no pet.). Recognizing that the medical treatment exception to the hearsay rule is based on the assumption that the patient appreciates that the effectiveness of the treatment may depend upon the accuracy of the information provided, we held that statements made to a CPS investigator were not admissible under Rule 803(4), absent a showing of a medical care component to the worker’s employment of which the declarant was aware. Id. at 461-64. Brouwer acknowledged that in the course of treatment in counseling C.P., it had been conveyed to C.P. that the reason for seeing him was to help her with her emotional problems. Brouwer and C.P. discussed the importance of telling the truth to him, and C.P. understood the difference between telling the truth and telling a lie. Thus, the State established both the medical care component of Brouwer’s sessions with C.P. and C.P.’s awareness of the purpose of the treatment. The trial court did not err in admitting the evidence under Rule 803(4). Point of error one is overruled.

Point of error two urges, “The trial court erred by allowing a social worker to testify to statements made to him which incriminated appellant because the State did not show that the social worker qualified as an expert.” Puderbaugh argues that Brouwer’s testimony regarding statements made by C.P. during the course of play therapy was inadmissible because the reliability of his methodology was not shown to have been tested in this case. Puderbaugh complains that Brouwer’s method of diagnosis was not based on any standardized testing procedure, but on his training and experience.

For scientific evidence to be considered reliable, the underlying theory must be valid, the technique applying the theory must be valid, and the technique must be properly applied on the occasion in question. Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App.1992). Factors relating to reliability include but are not limited to: (1) acceptance by the relevant scientific community; (2) qualifications of the expert; (3) literature concerning the technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying theory or technique can be explained to the court; and (7) the experience and skill of the person applying the technique. Id. Depending upon the context, these specific factors may or may not apply to “soft science.” Nenno v. State, 970 S.W.2d 549, 560 (Tex.Crim.App.1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex.Crim.App.1999).

When addressing fields of study aside from the hard sciences, such as the social sciences or fields that are based primarily upon experience and training as opposed to the scientific method, Kelly’s requirement of reliability applies but with less rigor than to the hard sciences. To speak of the validity of a “theory” or “technique” in these fields may be roughly accurate but somewhat misleading. The appropriate questions are: (1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert’s testimony is within the scope of that field, and (3) whether the expert’s testimony properly relies upon and/or utilizes the principles involved in the field. These questions are merely an appropriately tailored translation of the Kelly test to areas outside of hard science. And, hard science methods of validation, such as assessing the potential rate of error or subjecting a theory to peer review, may often be inappropriate for testing the reliability of fields of expertise outside the hard sciences.

Nenno, 970 S.W.2d at 561.

This case is unusual because Brou-wer did not offer an expert opinion as to whether C.P.’s behavior is consistent with child victims of sexual abuse. The issue is not whether Brouwer possesses sufficient expertise so that his opinion will aid the jury in its understanding of the evidence, but whether the methods employed in C .P.’s treatment are sufficiently reliable to permit Brouwer to relate to the jury statements made by C.P. during “play therapy.” Brouwer testified that he acquired a bachelor’s degree in psychology and a master of social work degree from Western Michigan University. He has been employed by St. Mary’s Hospital since 1981, working in a family health center that trains family physicians. He has puppets and stuffed animals in the room, which he uses in conversations with younger children like C.P. He asks the child to draw self-portraits and pictures of her family to be used as tools in their discussions. He has discussed this case, and others, with a psychiatrist and two other social workers who teach family practice residents with him. The methods he uses in his treatment of C.P. are recognized methods in the field of social work. Pu-derbaugh did not produce any evidence challenging the legitimacy of the field of social work, nor did he rebut Brouwer’s expertise in the field or offer any publications questioning the legitimacy of play therapy. See Campos v. State, 977 S.W.2d 458, 463-64 (Tex.App.—Waco 1998, no pet.). Brouwer’s field of expertise, social work, appears to be legitimate, his work with C.P. was within his field, and he relied upon recognized methods in the field of clinical social work. We find the reliability of Brouwer’s testimony to be sufficiently established to permit him to testify regarding statements made by C.P. in the course of medical treatment. Point of error two is overruled.

The appellant’s brief combines his argu.ment for the next two points of error:

Point of error three: The trial court erred by prohibiting the jury from hearing that the complainant had made other accusations of abuse because these statements reflected on her credibility.
Point of error four: The trial court erred by keeping defense counsel from asking the complainant if she had ever had to testify in another criminal case.

The credibility of a witness may not be attacked with specific instances of conduct other than conviction of crime. Tex.R.Evid. 608(b). While our state does not recognize a per se exception for sexual offenses, the Confrontation Clause may occasionally require the admission of evidence that the Rules of Evidence would exclude. Lopez v. State, 18 S.W.3d 220, 225 (Tex.Crim.App.2000).

In his bill of exceptions, defense counsel asked C.P. if she recalled telling someone that her baby sitter’s son had done something she didn’t like, if she ever made such a statement, or if she ever made a statement about some black boys doing something to her, or if she recalled making a statement about “Chris” doing something to her. C.P. did not recall making such statements, nor did she recall making any statements about anyone other than her father. The appellant’s brief does not direct us to any evidence that C.P. ever made an accusation of penile penetration against someone other than her father, nor does he identify any evidence in the record to support a claim that such an allegation, if made, was false. As was the case in Lopez, there is no evidence that C.P. made a prior accusation that was false or that was similar to the accusation against Pu-derbaugh. Points of error three and four are overruled.

The final point of error contends, “The trial court erred by not declaring a mistrial when the complainant admitted she had been told that she could avoid answering questions by simply saying she didn’t remember.” The complainant was six years old at the time of the offense and nine years old on the day of trial. Outside the presence of the jury, defense counsel asked C.P., “[H]as anyone ever told you that you could say I don’t remember when you really don’t want to answer, when it is a hard question?” C.P. replied yes, her mother had told her that. On cross-examination, C.P. stated that there were parts of the questions defense counsel asked that she did not understand. In denying the motion for mistrial, the trial judge mentioned that the complainant was crying and might have misinterpreted the question, and suggested he could question the mother or bring the child back in front of the jury.

The implication here is that C.P. may have testified falsely in front of the jury any time her response to a question was that she did not remember. The knowing use of perjured testimony by a prosecutor in obtaining a conviction violates a defendant’s due process rights and denies the accused a fair trial. Davis v. State, 831 S.W.2d 426, 439 (Tex.App.—Austin 1992, pet. ref'd). In cases involving misconduct by law enforcement or government personnel, knowledge of perjured testimony may be imputed to a prosecutor who lacks actual knowledge of the falsity. Ex parte Castellano, 863 S.W.2d 476, 480 (Tex.Crim.App.1993). Assuming that the victim’s mother’s conduct could be somehow imputed to the State, Puderbaugh has not established that the complainant committed perjury by testifying that she did not recall a material fact when in truth she did remember. We hold the trial court did not abuse its discretion in denying the appellant’s motion for a mistrial. Point of error five is overruled. We affirm the judgment.

AFFIRMED.


author: REX D. DAVIS, Chief Justice. BILL VANCE, Justice,

text:
    LEAIRD’S, INC., d/b/a Leaird’s White Elephant and White Elephant Store, Appellant, v. WRANGLER, INC., Appellee.
    No. 10-98-201-CV.
    Court of Appeals of Texas, Waco.
    Oct. 11, 2000.
    Rehearing Overruled Oct. 11, 2000.

      James R. Dunnam, John P. Mabry, Dun-nam & Dunnam, L.L.P., Waco, for appellant.
    Peter K. Rusek, John O’Herren, Elisa D. Rainey, Sheehy, Lovelace <& Mayfield, P.C., Waco, for appellee.
    Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
   OPINION

REX D. DAVIS, Chief Justice.

Wrangler, Inc. filed suit on a sworn account against Leaird’s, Inc., dba Leaird’s White Elephant and White Elephant Store. Leaird’s denied Wrangler’s allegations and filed a counterclaim alleging among other things breach of contract. A jury found in Wrangler’s favor on the sworn account and failed to find any breach of contract by Wrangler. The court rendered judgment in accordance with the verdict.

Leaird’s claims in two issues that the court erred by admitting in evidence: (1) the testimony of a bank officer and a memorandum prepared by that witness because Wrangler failed to identify him in pretrial discovery as an expert witness; and (2) a Small Business Administration (“SBA”) loan file pertaining to disaster-relief loan applications Leaird’s had submitted to the SBA because Wrangler failed to produce a copy of the file to Leaird’s in response to Leaird’s request for production of statements under former Rule of Civil Procedure 166b(2)(g).

BACKGROUND

Leaird’s had been a family-owned business in downtown Gatesville since 1898. Originally, Leaird’s sold general merchandise, but over the years the business evolved until in the 1980’s Leaird’s operated a clothing store and a furniture store. Leaird’s sold primarily Wrangler western wear in the clothing store. Jeb McClellan was Leaird’s president during the pertinent time period. His brother Clay also participated in the operation of the business.

The evidence at trial focused on Leaird’s relationship with Wrangler from 1989 until 1995 when Leaird’s eliminated the western wear part of the business. Carl Brown, a retired credit department supervisor for Wrangler, testified about the status of the Leaird’s account during the pertinent time period. Leaird’s began falling farther and farther behind on payments. As a result, Wrangler began placing credit holds on Leaird’s orders until payments were received. When a payment was received, Wrangler would ship merchandise to Leaird’s corresponding to the amount by which Leaird’s had reduced its arrearages.

In May 1994, Wrangler reduced Leaird’s credit line from $101,000 to $75,000 because of the arrearages. Wrangler reduced the credit line to $1 in July, effectively halting further shipment of goods until payments were received from Leaird’s. Wrangler ultimately refused to ship any further merchandise to Leaird’s after it failed to bring its account current. Wrangler sent its last shipment on December 29, 1994. Leaird’s made four payments in 1995 totaling $380.15. After these payments, Leaird’s still owed Wrangler $25,211 .24, which is the amount Wrangler sought to recover in the instant suit.

EXPERT TESTIMONY

Leaird’s contends in its first issue that the court abused its discretion by allowing Eugene Worthington, Leaird’s own banker, to provide expert testimony in Wrangler’s behalf and by allowing Wrangler to introduce a memorandum drafted by Wor-thington because Wrangler failed to designate him before trial as an expert witness.

Wrangler responds that, with respect to admission of the memo, Leaird’s failed to preserve its complaint for appellate review because it failed to reurge its objection when Wrangler later questioned Jeb McClellan about Worthington’s memo. Wrangler argues in the alternative that any error in the admission of the memo was rendered harmless because the trial court admitted similar evidence from other witnesses without objection; because the court should have granted Wrangler’s motion for summary judgment on Leaird’s counterclaims; and because the memo went only to the issue of Leaird’s damages, which the jury did not reach.

Pertinent Facts

Worthington was Executive Vice President of the National Bank of Gatesville, Leaird’s primary lender. Worthington was in charge of the bank’s lending department. Wrangler did not identify Wor-thington in discovery as an expert witness, although Leaird’s did list him as such.

Wrangler asked Worthington for his opinion about how Leaird’s had performed “over the last eight years.” The trial court sustained Leaird’s objection that the question sought an expert opinion. Wrangler then asked him how Leaird’s performed in “the '90 to '94 time frame.” Leaird’s raised the same objection, but the trial court overruled the objection this time. Worthington responded that the furniture store and the clothing store had each experienced good years and bad years during this period.

After Worthington testified extensively concerning Leaird’s loan history with the bank, Wrangler asked him about a typewritten document identified as Plaintiffs Exhibit 55. Worthington described this document as “a memo out of the Leaird’s loan file dated June 16th of '96” which he had prepared. Leaird’s objected that the memo contains expert opinion and Wrangler had not designated Worthington as an expert. The trial court responded that “most of it is factual it seems to me.” Leaird’s repeated the objection with reference to one sentence in particular, viz, “Mismanagement and bad financial management continued to plague them.” The court overruled the objection.

Worthington then read the entirety of the memo to the jury, including the sentence to which Leaird’s particularly objected. Counsel for Wrangler repeated the objected-to sentence and asked, “Was that your conclusion?” Worthington responded affirmatively. Wrangler’s counsel then asked Worthingtoii whether he believed that “over the years Leaird’s has had bad financial [management].” The trial court granted Leaird’s a running objection to his testimony. Worthington responded:

I believe that you have to take action when you run a business. Sometimes they did not take action quick enough, or notice trends in their business. That, I would classify as bad management, yes, sir.

The remainder of Worthington’s testimony focused on his .conversations with the McClellans about their deteriorating relationship with Wrangler.

Preservation of Error

To preserve an issue for appellate review, a party must make a timely, specific objection and obtain a ruling on that objection. Tex.R.App.P. 38.1(a); In re M.D.S., 1 S.W.Bd 190, 202 (Tex.App.—Amarillo 1999, no pet.); see also Bushell v. Dean, 803 S.W.2d 711, 712 (Tex.1991) (op. on reh’g) (applying former appellate rule 52(a)). A running objection can satisfy the Rule 33.1(a) requirement of a timely objection. See Atkinson Gas Co. v. Albrecht, 878 S.W.2d 236, 242-43 (Tex.App.—Corpus Christi 1994, writ denied); Commerce, Crowdus & Canton, Ltd. v. DKS Constr., Inc. ., 776 S.W.2d 615, 620 (Tex.App.—Dallas 1989, no writ).

If a trial court permits a running objection as to a particular witness’s testimony on a specific issue, the objecting party “may assume that the judge will make a similar ruling as to other offers of similar evidence and is not required to repeat the objection.” Commerce, Crowdus & Canton, 776 S.W.2d at 620; City of Fort Worth v. Holland, 748 S.W.2d 112, 113 (Tex.App.—Fort Worth 1988, writ denied); accord Atkinson Gas, 878 S.W.2d at 242; Crispi v. Emmott, 337 S.W.2d 314, 318 (Tex.Civ.App.—Houston 1960, no writ). However, the courts have generally limited application of this rule to those instances in which the similar evidence comes from the same witness. See Atkinson Gas, 878 S.W.2d at 243; Commerce, Crowdus & Canton, 776 S.W.2d at 620; Holland, 748 S.W.2d at 113.

Wrangler argues that Leaird’s failed to preserve any error arising from the admission of Worthington’s opinion testimony because it later questioned Jeb about this opinion without objection. Wrangler called Jeb as an adverse witness and questioned him extensively on reasons for Leaird’s demise. The particular interrogation at issue occurred at the conclusion of his “direct” examination by counsel for Wrangler:

Q: But of course Mr. Worthington, the banker who had worked with you for as long as you can remember in this business, he said that mismanagement and bad financial management — I mean, that’s you guys, right?
A: That’s what that letter says.
Q: That’s what Mr. Worthington says; isn’t that right?
A: That’s what he said. If that’s his letter and it’s there, I’m not — I haven’t heard that, but I see it there on the deal.

In this instance, counsel for Wrangler put Worthington’s opinion before the jury again in his question. However, un-sworn statements of counsel generally do not constitute evidence. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex.1997) (per curiam). Although Jeb acknowledged Worthington’s opinion, he did not endorse it. Accordingly, we conclude that counsel’s two questions propounded to Jeb concerning Worthington’s opinion do not amount to a failure by Leaird’s to preserve error.

Cumulative Evidence

Wrangler also suggests that any error in the admission of Worthington’s opinion was rendered harmless because his opinion is cumulative of other testimony properly admitted in evidence. To obtain a reversal on the basis of improperly admitted testimony, an appellant must demonstrate that the admission of the complained-of evidence “probably caused the rendition of an improper judgment.” Tex.R.App.P. 44.1(a)(1); accord Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 230 (Tex.1990); Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 559 (Tex.App.—Houston [1st Dist.] 1996), aff'd, 972 S.W.2d 35 (Tex.1998). When the complained-of testimony is cumulative, then any error in its admission is harmless. See Mancorp, 802 S.W.2d at 230; Owens-Corning Fiberglas, 916 S.W.2d at 559.

Leaird’s specific complaint concerns the admission of Worthington’s opinion that “[mjismanagement and bad financial management continued to plague [Leaird’s]” during the pertinent time period. Jeb and Clay both testified that they made poor management decisions. In addition, an accountant called by Wrangler as an expert testified that Leaird’s had too much inventory based on the level of sales it was experiencing. He also concluded that Leaird’s maintained inaccurate financial records which contributed to the company’s difficulties.

This evidence of poor management is similar to Worthington’s opinion about which Leaird’s complains. Because Wor-thington’s opinion is cumulative of other evidence properly admitted, we conclude that any error arising from the admission of his testimony is harmless. See Mancorp, 802 S.W.2d at 230; Owens-Corning Fiberglas, 916 S.W.2d at 559. Accordingly, we overrule Leaird’s first issue.

SBA LOAN FILE

Leaird’s argues in its second issue that the court erred by admitting in evidence an SBA loan file because it contains statements made by Jeb and Clay which were not disclosed before trial pursuant to Leaird’s -discovery request. Assuming without deciding that the loan file contains statements which Wrangler had a duty to disclose, Leaird’s failed to properly preserve this issue for our review.

Leaird’s posed a blanket objection to the admission of the SBA loan file on the basis that it contains statements not previously disclosed by Wrangler pursuant to Leaird’s discovery request. However, only portions of the loan file are even arguably objectionable on this basis. Rule of Appellate Procedure 33.1(a)(1)(A) requires a specific objection to preserve error. See Tex.R.App.P. 33.1(a)(1)(A); see also TexR.Evid. 103(a)(1).

A general objection to a unit of evidence as a whole, ... which does not point out specifically the portion objected to, is properly overruled if any part of it is admissible.

Speier v. Webster College, 616 S.W.2d 617, 619 (Tex.1981) (quoting Brown & Root, Inc. v. Haddad, 142 Tex. 624, 628, 180 S.W.2d 339, 341 (1944)); accord Wolfe v. Wolfe, 918 S.W.2d 533, 542 (Tex.App.—El Paso 1996, writ denied).

Because Leaird’s failed to identify the specific portions of the SBA loan file which it deemed inadmissible and because the majoi’ity of the file is clearly not objectionable for the reason asserted, we conclude that Leaird’s failed to properly preserve this issue for our review. Id. Accordingly, we overrule Leaird’s second issue.

We affirm the judgment.

Justice VANCE dissenting.

BILL VANCE, Justice,

dissenting.

I disagree with the majority’s disposition of Leaird’s first issue regarding the admission of the opinion of its banker, Worthington. I agree that the issue is properly before us, but I do not believe that the error was “rendered harmless” by the admission of “similar” evidence.

Testimony by Jeb McClellan and/or Clay McClellan that they “made poor management decisions” does not equate to a banker’s opinion that “mismanagement and bad financial management continued to plague them.” Testimony by Wrangler’s expert to the effect that Leaird’s “had too much inventory based on the level of sales it was experiencing” or that it “maintained inaccurate financial records” does not equate to Leaird’s own banker’s opinion about mismanagement or bad financial management.

I would hold that the court erred in admitting the opinion testimony, find that the error harmed Leaird’s, reverse the judgment, and remand the cause for another trial.


author: MICHOL O’CONNOR, Justice.

text:
    In the Interest of J.M.C.A., V.C.R., M.R., and R.R., Jr.
    No. 01-99-00208-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 12, 2000.

      Alvin Saenz, Houston, Sheelah M. Wooten, Lake Jackson, Thomas “Jay” Wooten, Friendswood, Johnette Duff, Galveston, for Appellant.
    Michael J. Guarino, B. Warren Goodson, Jr., Galveston, for Appellee.
    Panel consists of Justices O’CONNOR, HEDGES, and PRICE.

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

   OPINION

MICHOL O’CONNOR, Justice.

The appellants, R.R. (“Father”) and K.R. (“Mother”), appeal from an order terminating their parent-child relationships. We affirm.

Background

The Texas Department of Protective and Regulatory Services (“DPRS”), the appellee, filed several petitions to terminate the parent-child relationship between the Mother and her four children, J.M.C.A. (four years old), V.C.R. (three years old), M.R. (two years old), and R.R. (one year old), and between the Father and his three children V.C.R., M.R., and R.R. The DPRS also sought to terminate the parent-child relationship between J.M.C.A.’s father and J.M.C.A.

The jury was asked broad-form questions as to both of the parents, separately, for each of the children: “Should the parent-child relationship between [parent 1] and [child 1] be terminated?” The jury answered, “Yes” to each question. The jury charge tracked Family Code section 161.001(1) in alleging the Mother and Father:

1. knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children; or
2. engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children; or
3. failed to support the children in accordance with his/her ability during a period of one (1) year ending within six (6) months of the date of the filing of this petition; or
4. constructively abandoned the children who have been in the permanent or temporary managing con-servatorship of the Department of Protective and Regulatory Services or an authorized agency for not less than six (6) months, and:
(i) the department or authorized agency has made reasonable efforts to return the children to the parent;
(ii) the parent has not regularly visited or maintained significant contact with the children; and
(iii) the parent has demonstrated an inability to provide the children with a safe environment; or
5. failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of children who have been in the permanent or temporary managing con-servatorship of the Department of Protective and Regulatory Services for not less than nine months as a result of the children’s removal from the parent under Chapter 262 for the abuse or neglect of the child.

The jury was also required to find that termination of the parent-child relationships be in the children’s best interest.

Summary of Facts

On November 23, 1997, the Mother saw the Father sitting on J.M.C.A.’s bed with his pants down to his knees. J.M.C.A. was on the bed and wearing a shirt, but no underwear or pants. The Mother became upset and left the house. She did not take J.M.C.A. with her. After talking with a neighbor, the Mother went back to her house with the neighbor. The neighbor testified that J.M.C.A. was crying and upset, and said the Father “did something to her.”

Several witnesses also testified that the Mother said she found the Father and J.M.C.A. in the bedroom, the Father had his pants down, J.M.C.A. did not have any clothes on, and there was Vaseline smeared on her genital area. J.M.C.A. told these witnesses the Father put the Vaseline on her, and put his “pee-pee” in her. The Mother called the police, and the Father was arrested for the sexual assault of J.M.C.A. and indecency with V.C.R.

The Mother took J.M.C.A. to the hospital immediately after the incident, where the treating physician determined that the examination results were “consistent with the types of acts described” by the Mother, and suggested that the Mother take J.M.C.A. to an abuse clinic for a more detailed exam. The next day, the Mother took J.M.C.A. to the ABC Clinic, where an expert determined that the child had been sexually abused.

The Mother left the Father’s house after his arrest, and took the children to stay with her cousin. The cousin testified the Mother questioned J.M.C.A. several times about what happened. The cousin said the Mother did not want to believe J.M.C.A. and, as punishment, threatened to take J.M.C.A. back to the Father’s house.

Mary Ramirez, the Child Protective Services (C.P.S.) sexual abuse investigator, said the Mother told her of another incident in which she found a “grease stain” in J.M.C.A.’s underwear, and J.M.C.A. had told the Mother that the Father “had done something to her back then.” The Mother did not report that incident.

Ramirez told the Mother there was to be no contact between the Father and any of the children during the investigation. On December 4, 1997, however, the Mother returned with the children to live with the Father after he was released on bond. On December 5, Ramirez went to the home because C.P.S. had received a call that the Mother and children had returned to the Father the night before. When Ramirez questioned the Mother about why she had returned, the Mother said she wanted all the charges against the Father dropped, they belonged together as a family,- and she did not intend to leave. C.P.S. took the children into emergency custody.

Cathy Lynskey, the foster mother who took the children into her home, testified that J.M.C.A. said the Mother told her to say nothing happened to her.

Sufficiency of the Evidence

Standard of Review

Family Code section 161.001(1) lists 14 separate possible grounds for termination, using the disjunctive phrase “or.” Subsection (2) adds “and ... that termination is in the best interest of the child.” Tex.Fam.Code § 161.001(1), (2). Thus, the statute allows for termination of parental rights upon a finding that the parent engaged in conduct described in any one of the 14 sub-parts under section 161.001(1), plus a finding that termination is in the best interest of the child as required by section 161.001(2).

The termination of parental rights involves fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). Evidence supporting the findings to terminate parental rights must be clear and convincing, not just preponderate. Tex.Fam.Code § 161.001; In re G.M., 596 S.W.2d 846, 847 (Tex.1980); Harris v. Herbers, 838 S.W.2d 938, 941 (Tex.App.—Houston [1st Dist.] 1992, no writ). The clear and convincing standard of proof is intentionally placed on the party seeking the termination of the parental rights, so as to create a higher burden to fulfill, because of the severity and permanence of the termination of the parent-child relationship. In re J.N.R., 982 S.W.2d 137, 141 (Tex.App.—Houston [1st Dist.] 1998, no pet.). The clear and convincing standard requires more proof than the preponderance of the evidence standard in civil cases, but less than the reasonable doubt standard in criminal cases. G.M., 596 S.W.2d at 847; J.N.R., 982 S.W.2d at 141. The clear and convincing standard is the degree of proof that will produce in the mind of the trier of fact a “firm belief or conviction” as to the truth of the allegations sought to be proved. G.M., 596 S.W.2d at 847; J.N.R., 982 S.W.2d at 141.

On appeal, in evaluating the sufficiency of the evidence supporting a trial court’s decision to terminate parental rights, the standard of review is not affected by the heightened burden of proof required in the trial court. J.N.R., 982 S.W.2d at 142. In conducting a legal sufficiency review, we consider only the evidence and inferences tending to support the fact finding, and we disregard all contrary evidence and inferences. See Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). If any evidence of probative force supports the finding, we will uphold the decision. Id. In conducting a factual sufficiency review, we view all of the evidence; we will sustain a factual sufficiency challenge only if, after viewing all the evidence, we conclude the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Hollander v. Capon, 853 S.W.2d 723, 726 (Tex.App.—Houston [1st Dist.] 1993, writ denied).

The Mother’s Appeal

In the Mother’s point of error two, she asserts the evidence was insufficient to support the jury’s verdict. The Mother does not phrase her complaint as a challenge to either the legal or factual sufficiency of the evidence; instead, she contends the DPRS did not meet its burden of showing by clear and convincing proof that her parental rights should be terminated.

The Mother relies on Higgins v. Dallas County Child Welfare Unit, 544 S.W.2d 745 (Tex.App.—Dallas 1976, no writ), for the proposition that involuntary termination requires evidence of each parent’s “aggressive behavior towards the child.” Id. at 749. The Mother asserts there is no evidence she actively harmed any of the children.

The Higgins court analyzed Sections D and E of the predecessor provision of Section 161.002, which is substantially the same as the present subsections D and E. The Dallas Court of Appeals held the Legislature intended Section E to be a provision “concerning something more than neglect, namely aggressive behavior toward a child resulting in physical or emotional abuse.” Id.

In a later case, the Dallas Court of Appeals overruled Higgins “to the extent that it construes subsection (E) as requiring aggressive or abusive behavior directed towards the child.” In re S.H.A, 728 S.W.2d 73, 83-85 (Tex.App.—Dallas 1987, writ ref'd n.r.e.). The Court overruled Higgins for the following reasons:

First, Higgins interpretation violates the plain language of the statute.... Th[e] provision does not require “aggressive behavior,” nor does it require that the conduct be directed towards the child.
... Second, ... termination may be based on emotional endangerment only.... Higgins does not account for the possibility of the parent engaging in “conduct” which endangers only the emotional well-being of the child and, although not physically abusive behavior directed towards the child, nevertheless warrants termination of parental rights. ... Third, the Higgins case draws a neglect-abuse distinction ... The statute does not, however, use the terms “neglect” and “abuse” .... [T]he cause of the danger to the child must be the parent’s conduct alone, as evidenced not only by the parent’s acts but also by the parent’s omissions or failures to act.
... Finally, since Higgins, other courts of appeals have addressed situations where the parent’s “conduct” was neither knowingly subjecting the child to a harmful physical environment under subsection (D), nor physically abusing the child, as Higgins defined subsection (E); these types of “conduct,” however, were held to endanger the physical or emotional well-being of the child, and thus warranted termination.

S.H.A., 728 S.W.2d at 83-85.

Therefore, Higgins does not assist the Mother’s cause. The Dallas Court of Appeals now holds that evidence of the parent’s omissions or failure to act may be considered by the jury in determining whether to terminate parental rights. S.H.A, 728 S.W.2d at 85. We agree with the reasoning of S.H.A.

In Lakes v. Texas Dep’t of Human Servs., 791 S.W.2d 214 (Tex.App.—Texarkana 1990, no writ), the Texarkana Court of Appeals held there was clear and convincing evidence that a parent had endangered the children’s physical and emotional well-being when the mother knew:

that her daughter’s hymen was enlarged, and that she had suffered irritation in her vaginal area; she was told by her daughter that [Robinson] had put his finger in her vagina; she had been told by a Department of Human Services caseworker that her daughter had said that [Robinson] had sexually molested her; and she was aware that Robinson had confessed such activity to the police. She was also aware that Department of Human Service workers had determined that her children displayed behavior consistent with child abuse. Knowingly placing or leaving the children with persons known to have sexually abused them is sufficient evidence to justify termination.

Id. at 216.

In the present case, the Mother saw the Father engaging in inappropriate and abusive behavior with J.M.C.A.; she was told by J.M.C.A. the Father put Vaseline on her, and he put his “pee-pee” in her; she was told by a C.P.S. caseworker that J.M.C.A. said the Father sexually abused her; and she was aware that the treating physician made an assessment that J.M.C.A. had been sexually molested. Based on these facts, the jury could have reasonably found clear and convincing evidence the Mother had endangered her children’s physical and emotional well-being by continuing to live with the Father.

The Fort Worth Court of Appeals has even upheld a jury verdict terminating parental rights when the medical evidence did not definitively show abuse stating,

The medical evidence did not conclusively show [the child] had been abused, nor did it indicate [the child] had not been abused. Therefore, the medical evidence did not contradict testimony that [the child] had been abused, and appellant did not introduce any evidence to contradict this testimony.

In re L.R.M., 763 S.W.2d 64, 68 (Tex.App.—Fort Worth 1989, no writ). The court concluded the jury could have reasonably found that the mother’s boyfriend sexually abused the child, and that the mother knowingly placed the children with the boyfriend, thereby endangering their physical and emotional well-being. Id.

Here, the physician’s assistant who treated J.M.C.A. assessed the sexual assault of the child and felt very strongly that there were no physical findings because a lubricant was used. The jury could have reasonably concluded (1) the Father did in fact abuse J.M.C.A., because no evidence was admitted to contradict the testimony that the child had been abused, and (2) by continuing to live with the Father, the Mother endangered J.M.C.A. as well as the other children. See L.R.M., 763 S.W.2d at 68.

The Fort Worth Court of Appeals has also held that the “fact that [the mother] allowed the children to remain unattended in the company of one she knew had abused the children in the past provides a basis for termination under section (E).” In re A.C., 758 S.W.2d 390, 393 (Tex.App.—Fort Worth 1988, no writ).

Substantial evidence indicates the Father abused J.M.C.A., and the Mother was aware of the abuse. In spite of all this, the Mother continued to live with the Father. The jury properly concluded that such conduct poses a danger to her children.

Finally, the Waco Court of Appeals has held that a parent’s abusive conduct directed toward one child will suffice to support the termination as to other children. Lucas v. Texas Dep’t of Protective & Regulator Servs., 949 S.W.2d 500, 503 (Tex.App.—Waco 1997, writ denied). An expert testified in Lucas that the father’s behavior fit the classic diagnosis of pedophilia. Lucas held that the father’s abuse showed a course of conduct that had the effect of endangering the physical or emotional well-being of his other children. Id.

In this case, a child clinical psychologist testified she saw a significant risk of continued abuse and inappropriate behavior by the Father, and “felt that because of many similarities between [the Father’s] test data and those of other individuals who engage in abusive behavior that a sex offender treatment program would be very appropriate.” The Mother has refused to leave the Father and intends to live with him. While M.R. and R.R. did not make an outcry, the jury properly found, based on the evidence presented, that continuing to five with the Father posed a danger to them, as well as J.M.C.A. and V.C.R..

We hold the evidence is legally and factually sufficient to support the jury’s ver-diet that the Mother knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered their physical or emotional well-being.

We overrule the Mother’s point of error two.

The Father’s Appeal

In the Father’s point of error two, he asserts the evidence is insufficient to support the jury’s verdict.

The Father’s entire argument under this point consists of a lengthy legal discussion asserting that termination was not justified when the evidence shows a parent’s failure to provide a desirable degree of care and support of the child is due to lack of intelligence, training, or misfortune. The Father does not contend, however, his lack of intelligence, training, or misfortune led him to sexually molest his children. Nor does the Father point to any evidence in the record that would support such a contention.

A party asserting error on appeal bears the burden of showing that the record supports the contention raised, and of specifying the place in the record where matters upon which he relies or of which he complains are shown. Happy Harbor Methodist Home, Inc. v. Cowins, 903 S.W.2d 884, 886-87 (Tex.App.—Houston [1st Dist.] 1995, no writ); Tex.R.App.P. 38.1(h). When this burden is not carried, the party waives the point of error. Happy Harbor, 903 S.W.2d at 886-87. We will not do the job of the advocate. The Father provides no support for his contention that his lack of intelligence, training, or misfortune led him to sexually molest his children. The Father’s insufficiently briefed point is waived. Therefore, we overrule the Father’s point of error two.

Jury Charge

In the Father and Mother’s points of error one, both assert the issue submitted to the jury regarding termination was incorrect because it did not allow for two separate findings required under Family Code section 161.001. The Father and Mother contend the jury question was incorrect because the jury should have been asked whether either parent engaged in any of the conduct prohibited under Section 161.001 and whether termination was in the best interest of each child.

The jury was asked broad-form questions as to both of the parents, separately, for each of the children: “Should the parent-child relationship between [parent 1] and [child 1] be terminated?” The jury answered, “Yes” to each question. Neither the Father nor the Mother objected to the question during the jury charge conference.

The Supreme Court considered and rejected the same argument made by the Father and Mother in Texas Dep’t of Human Servs. v. E.B., 802 S.W.2d 647 (Tex.1990). In E.B., the Texas Department of Human Services sued for termination of the parent-child relationship between E.B. and her two children. The suit was based on alleged violations of the Texas Family Code and on the ground that the termination would be in the best interest of the children. The trial court submitted a single question for each child under the applicable Family Code sections, as a broad-form submission. One question read, “Should the parent-child relationship between [Respondent E.B.] and the child [E.B.] be terminated?” The jury was asked to answer “yes” or “no.” The second question was the same except for the child’s initials. The Supreme Court approved the question and stated that the charge in parental rights cases should be governed by the same broad-form mandate as other civil cases. Id. at 649.

We overrule the Father and Mother’s points of error one.

We affirm the trial court’s judgment.

      . J.M.C.A.’s father participated in the underlying proceeding, but he did not appeal the decree of termination.

      . "(D) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children....” Tex. Fam Code § 161 .001(D).

      . "(E) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children. ...” TexJFamCode § 161 .001(E).


author: MIRABAL, Justice. TAFT, Justice,

text:
    Jermaine Earl KNOX, Appellant, v. STATE of Texas, Appellee.
    No. 01-98-00449-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 12, 2000.
    Jake Perret, Houston, for appellant.
    Carol M. Cameron, John B. Holmes, Houston, for State.
    Panel consists of Justices MIRABAL, TAFT, and DUGGAN.

      . The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

MIRABAL, Justice.

A jury found appellant, Jermaine Earl Knox, guilty of aggravated robbery. The jury assessed punishment at 11 years confinement. We affirm.

In his sole point of error, appellant asserts the trial court erred in not allowing appellant to recall a witness for further cross-examination, in violation of appellant’s constitutional right of confrontation.

Background

At approximately 8:45 a.m. on February 8, 1997, Sergeant J. Saldivar of the Houston Police Department, Robbery Division, spotted a maroon, four-door vehicle in the parking lot of a Houston shopping center near Highway 290. In this shopping center was a Blockbuster Video Store (Blockbuster Video). The vehicle had darkly tinted windows and no license plate. Sal-divar saw the silhouette of two individuals inside the vehicle. Suspecting a robbery in progress, Saldivar requested backup. Officer D. Meza of the Houston Police Department responded to Saldivar’s request and set up surveillance in an alley behind Blockbuster Video.

As time passed, the vehicle moved closer to the front entrance of Blockbuster Video. The vehicle was positioned facing Highway 290. At the same time, a Blockbuster Video manager (complainant) and his coworker left Blockbuster Video to make a bank deposit. Appellant jumped from the front passenger’s side of the vehicle and ran toward the two Blockbuster Video employees. Appellant pointed a gun at them and demanded their money. Appellant grabbed from complainant a bag containing both cash and checks totaling $4,900. With the bag in hand, appellant ran back to the vehicle and re-entered the front passenger’s side. The vehicle, already facing Highway 290, sped off toward it. As the vehicle fled the parking lot, Officer Meza observed, through an open window, appellant in the front passenger’s seat.

A pursuit ensued. During the pursuit, appellant jumped from the vehicle and ran toward an apartment complex. Meza got out of his car and chased appellant. Despite searching throughout the apartment complex, Meza could not find appellant. Appellant’s driver’s license, however, was discovered on the ground of a nearby house.

Unrelenting, the driver of the vehicle continued to drive. Another police officer, A. Rendon of the Houston Police Department, maintained the pursuit. Eventually, the driver of the vehicle, Sean Douglas, pulled over and was arrested. After his arrest, Douglas was transported to the apartment complex where appellant had disappeared. There, Saldivar presented appellant’s driver’s license to Douglas who identified appellant as the passenger. The same day, complainant identified appellant from a videotaped lineup. Douglas gave a written statement about the robbery. Along with appellant, Douglas was charged with aggravated robbery.

Right of Confrontation

During its direct-examination of Douglas, the State used the written statement, which Douglas gave after his arrest, to refresh Douglas’s memory. During his testimony, Douglas described the vehicle and detailed the events leading to the robbery. Douglas also identified appellant as the vehicle’s passenger. Douglas, however, denied participating in the robbery or having prior knowledge of it. Douglas claimed to have driven appellant to Blockbuster Video so appellant could collect money from someone who owed him. According to Douglas, appellant got out of the vehicle, approached a “white guy,” and “jerked something out of his hand.” Douglas reported he saw a gun and “bank bag” for the first time after appellant returned to the vehicle. At this point, testified Douglas, he realized appellant had committed robbery. Scared, Douglas “took off.” During the pursuit and not wanting to go to jail, appellant “jumped out of the car.”. Douglas continued to drive, but later pulled over for police who arrested him. Despite the protest of innocence, Douglas was charged with aggravated robbery. Appellant cross-examined and recross-examined Douglas.

The next day, the State introduced testimony from Officer Saldivar about the procedures involved in his obtaining Douglas’s written statement. Appellant then cross-examined Saldivar about the statement. After his cross-examination of Saldivar, appellant asked to recall Douglas, whom appellant had already cross-examined and recross-examined the previous day, for further cross-examination. According to appellant, the State had offered Saldivar’s testimony, showing the written statement was timely and voluntary, to bolster Douglas’s credibility. In response, appellant wanted to further cross-examine Douglas about the statement to impeach Douglas’s credibility, which appellant believed the State had just bolstered. Specifically, appellant wanted to show that, had the State believed Douglas was not involved in the robbery, as Douglas expressed in the statement, the State would not have charged Douglas as an accomplice. Objecting, the State argued evidence of the statement was already before the jury. Further, contended the State, appellant had the opportunity during prior testimony to use the statement for impeachment purposes.

The record shows that Douglas had testified the day before, and then he left the courthouse. He was not under subpoena as a witness in the case. The clerk attempted to locate Douglas or his attorney, but was not able to reach either one. The trial court ruled that the trial would continue, and appellant could make his bill of exceptions, which he did.

In a single point of error, appellant claims the trial court erred in not allowing appellant to recall Douglas for further cross-examination, in violation of appellant’s constitutional right of confrontation.

The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. U.S. Const, amend. VI; Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974). Similarly, the Texas Constitution provides that, in all criminal prosecutions, the accused shall be confronted with the witnesses against him. Tex. Const, art. I, § 10.

Implicit in the right of confrontation is the right of cross-examination. Davis, 415 U.S. at 315, 94 S.Ct. at 1110. The accused is accorded great latitude in showing witness bias or motive to falsify testimony. Carroll v. State, 916 S.W.2d 494, 497 (Tex.Crim.App.1996); Hodge v. State, 631 S.W.2d 754, 758 (Tex.Crim.App.1982). The extent of cross-examination, however, is limited. Lopez v. State, 18 S.W.3d 220, 222 (Tex.Crim.App.2000); Hoyos v. State, 951 S.W.2d 503, 510 (Tex.App.—Houston [14th Dist.] 1997), aff'd, 982 S.W.2d 419 (Tex.Crim.App.1998). In imposing reasonable limits on cross-examination, the trial court must carefully consider, on a case-by-case basis, the probative value of the evidence and weigh it against the risks of admission. Id. The potential risks include undue prejudice, embarrassment or harassment of a witness, misleading of the jury or confusion of the issues, presentation of cumulative evidence, or undue delay or waste of time. Id.

The trial court’s decision to limit cross-examination is not subject to reversal absent a clear abuse of discretion. Love v. State, 861 S.W.2d 899, 903 (Tex.Crim.App.1993). Whether the trial court abused its discretion depends on the facts of the case. Id.

In the present case, Douglas could not be located and further efforts to find Douglas would have caused delay in the trial proceedings. Immediately after the judge denied appellant’s request to delay the trial until Douglas could be present, both sides rested and closed. Appellant had questioned Douglas about the written statement during cross-examination the previous day. Further, when the trial court asked if the statement was inconsistent with Douglas’s testimony, appellant acknowledged Douglas’s statement did not differ from what Douglas had testified to previously. Thus, appellant’s proposed evidence would not have added any new information for impeachment purposes. The trial court could have reasonably concluded that such evidence was already before the jury and therefore was needlessly cumulative. Although the witness’s credibility was an issue critical to appellant’s defense, we cannot say, in light of the record, the trial court abused its discretion.

We acknowledge the cases cited by appellant that support broad cross-examination of witnesses. See Love, 861 S.W.2d at 904; Craig v. State, 594 S.W.2d 91, 95-96 (Tex.Crim.App.1980); Ikeda v. State, 846 S.W.2d 519, 520 (Tex.App.—Houston [14th Dist.] 1998, pet. ref'd). However, these cases are distinguishable from the case before us. In Love, appellant was not allowed to recall a witness for further cross-examination, despite offering new information directly contradicting the witness’s prior testimony and discrediting the reliability of an intoxilyzer test. 861 S.W.2d at 903-904. The Court of Criminal Appeals found the trial court erred in refusing to allow the defendant to fully cross-examine a witness. Id. at 904. The Court held appellant was not attempting to introduce cumulative evidence. Id. The proposed evidence was not repetitive of prior testimony even though counsel had conducted a thorough cross-examination the previous day. Id. Rather, it was new information for impeachment purposes. Id. Unlike Love, however, the proposed evidence in this case was repetitive of pri- or testimony. Therefore, the trial court was within its discretion to limit further cross-examination and committed no error. Furthermore, the witness in this case could not be located, whereas in Love, the Court noted there would be no undue delay in the trial proceedings because the witness was in the courthouse and available to testify. Id.

In Craig, appellant argued the trial court erred in refusing to allow him to recall and cross-examine two witnesses. 594 S.W.2d at 95. After the two witnesses testified on direct examination, appellant announced to the court he had no questions for the witnesses at that time. Id. Later, appellant tried to recall one of the witnesses to the stand for cross-examination. Id. Objecting, the State argued appellant had waived his right to cross-examination because he failed to question the witness immediately after the State’s direct-examination. Id. Further, the State argued that, because appellant had subpoenaed the witness, it made the witness a defense witness even though the State had placed the witness on the stand, and appellant had no right to recall him. Id. According to the Court of Criminal Appeals, the trial court, misled by the State’s arguments, erred in refusing to allow appellant to recall the witnesses for further cross-examination. Id. However, no reversible error occurred because there was no bill of exception showing what the witness’s testimony would have been on cross-examination. Id. at 96. Unlike Craig, appellant in this case adequately developed the record in his offer of proof. Based on the record, the proposed evidence would not have added anything new to prior testimony.

In Ikeda, appellant complained the trial court erred in not allowing him to redirect questions to a witness. 846 S.W.2d at 520. During appellant’s trial, the witness testified he committed the crime with someone other than appellant. Id. The witness was cross-examined by the State concerning a prior plea and stipulation. Id. In this plea, the witness had entered into a stipulation that he had committed the crime with appellant. Id. On redirect-examination, appellant tried to show the witness had pled to the stipulation not for its truth, but as a requirement by the State. Id. The Fourteenth Court of Appeals held appellant should have been allowed to inquire on redirect about the answers obtained by the State during cross-examination, in order to clarify any wrong inferences the jury might draw. Id. Unlike Ikeda, the appellant in this case had no new information to offer the jury that would clarify any -wrong inferences. Rather, appellant’s proposed evidence was mere repetition of prior testimony.

The trial court did not abuse its discretion in this case. Accordingly, we overrule appellant’s sole point of error.

We affirm the judgment.

Justice TAFT concurring.

TAFT, Justice,

concurring.

I concur in the disposition of appellant’s point of error on the merits, but I write separately to address the State’s threshold preservation argument, which I suggest is dispositive. The State contends the trial court did not refuse to allow appellant to recall Douglas, but that any error in not granting a motion for continuance was not preserved for review because the motion was oral, while the statute requires that it be written.

As the majority opinion notes, Douglas had not been subpoenaed. Likewise, he had not been instructed to remain available or on call. It was neither the State’s fault, nor the trial court’s fault, that Douglas was not available for recall by appellant. Under these conditions, the trial court could only be faulted, if at all, for denying appellant’s oral motion for continuance. However, the statutes governing motions for continuance require that these motions be verified and written. See Tex. Code Crim.P.Ann. arts. 29.03, 29.06, 29.08, 29.13 (Vernon 1989). Because appellant’s motion for continuance was not in writing, he presents nothing for review. See Flores v. State, 789 S.W.2d 694, 698 (Tex.App.—Houston [1st Dist.] 1990, no pet.).

Two cases have carved out an exception to the rule that motions for continuance must be written. See Petrick v. State, 832 S.W.2d 767, 770-71 (Tex.App.—Houston [1st Dist.] 1992, pet. ref'd); O’Rarden v. State, 777 S.W.2d 455, 459-60 (Tex.App.—Dallas 1989, pet. ref'd). The exception only applies, however, when the circumstances surrounding the denial of an oral motion for continuance demonstrate a denial of the rudiments of due process. Pe-trick, 832 S.W.2d at 770. Both Petrick and O’Rarden involved egregious prosecutorial misconduct resulting in reversible error. This case does not, as the majority opinion shows by its disposition.

Furthermore, the reason for carving out an exception to the plain statutory requirements no longer exists. The exception arose during the heyday of fundamental error, a doctrine that allowed appellate courts to address unpreserved reversible error. Now that ineffective assistance of counsel provides easy circumvention of the contemporaneous objection rule, there is no longer a need for either fundamental error or the exception carved by Petrick and O’Rarden.

Appellant’s point of error presents nothing for review, and we should overrule it on that basis. Because the majority opinion does not, I can only respectfully concur in its result.