author: REX D. DAVIS, Justice. TOM GRAY, Chief Justice,

text:
    Ana Maria Gonzalez SALAIS, Individually and as Representative of the Estate of Ruben Gonzalez, Deceased, Appellants, v. TEXAS DEPARTMENT OF AGING & DISABILITY SERVICES, Appellee.
    No. 10-09-00155-CV.
    Court of Appeals of Texas, Waco.
    Aug. 4, 2010.

      R. Keith Weber, Woodfill & Pressler LLP, Houston, for Appellants.
    John P. Giberson, Atty. General’s Office, Tort Litigation Division, Austin, Neal E. Pirkle, Ñaman, Howell, Smith & Lee LLP, Waco, for Appellee.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   OPINION

REX D. DAVIS, Justice.

Ana Maria Gonzalez Salais appeals the trial court’s order dismissing her healthcare liability claim against the Texas Department of Aging and Disability Services (TDADS).

Salais’s live petition alleges that her son Ruben Gonzalez was a patient at the Me-xia State School, a TDADS facility, because of his developmental disability. Late one evening (after midnight), Ruben had refused to go to bed and was then physically restrained by Sheri Thornton and Charles Korn, two TDADS employees. After Joel Thomas, a third employee, arrived, they placed Ruben on a restraint board. Sue Sanderson, a TDADS nurse, was called to the scene and found Ruben pale with no pulse or blood pressure. Sanderson was unable to resuscitate Ruben. An automated external defibrillator (AED) was employed, but it was not used to shock Ruben. Paramedics arrived and their monitor showed a flat line and no cardiac rhythm. Ruben was taken to a hospital, where he was pronounced dead.

Salais also pleads:

In the Prevention & Management of Aggressive Behavior Course Synopsis allegedly provided by Defendant Mexia [State School] to its employees, employees are warned that “[e]xtreme care must be exercised during any horizontal restraint to insure that the person’s ability to breathe is not restricted.... [D]uring all horizontal restraints, the person must remain in a side-lying position and monitored continuously. Failure to do so may risk serious injury and death from positional asphyxia, [which] occurs when there is insufficient intake of oxygen as a result of body positioning that interferes with one’s ability to breathe.” [Ellipsis and brackets in original].

She further pleads that the “Mexia State School Annual Retraining Course Synopsis,” allegedly provided to every participant, gives the same warning and also provides “that the person who is restraining the lower body has an important role in monitoring breathing, circulation, and general condition of the restrained individual, and in assisting in maintaining the restrained individual in a side-lying position.”

In her health-care liability cause of action, Salais alleges that TDADS [Mexia State School] and TDADS employees Korn, Thornton, and Thomas were negligent in the care and treatment of Ruben in each of the following ways:

1. Failure to recognize and/or appreciate the risk factors for the potential occurrence of death when performing a physical restraint;
2. Misuse of the restraints and restraint board when performing a physical restraint;
3. Failure to anticipate the risk of traumatic asphyxia when performing a physical restraint;
4. Failure to plan the physical restraint according to the increased risk for serious injury to Decedent;
5. Inappropriate management of the complication of performing a physical restraint;
6. Failure to have the requisite knowledge regarding appropriate responses to a combative physical restraint;
7. Failure to perform the appropriate interventions during the physical restraint of Decedent once health complications were encountered;
8. Failure to provide proper education and training to employees who were called upon to assist in the restraint of Decedent.

Section 74.351 of the Civil Practices and Remedies Code provides that within 120 days of filing suit, a claimant must serve a curriculum vitae (CV) and one or more expert reports regarding every defendant against whom a health care claim is asserted. Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (Vernon Supp. 2009). Salais provided two expert reports. One report was by James Wohlers, a paramedic, which addresses the standard of care and breach elements relating to the use of the restraint board and the AED. The other report, of Donald Winston, M.D., addresses the causation element.

TDADS objected to the reports and moved to dismiss Salais’s health-care liability claim under section 74.351. See id. The motion asserted that Salais’s experts were not qualified and that their reports were inadequate. The trial court granted TDADS’s motion to dismiss without stating any grounds. In her first issue, Salais argues that the trial court erred in granting TDADS’s motion to dismiss.

We review the trial court’s decision to dismiss a health-care liability claim by the abuse-of-discretion standard. American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). Also, a trial court’s decision on whether a person is qualified to offer an expert opinion in a health-care liability claim is reviewed under the abuse-of-discretion standard. Moore v. Gatica, 269 S.W.3d 134, 139 (Tex.App.-Fort Worth 2008, pet. denied). “However, a trial court has no discretion in determining what the law is or applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Id.” Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279-80 (Tex.App.-Austin 2007, no pet.); see also Methodist Hosp. v. Shepherd-Sherman, 296 S.W.3d 193, 197 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (“Though we may not substitute our judgment for that of the trial court, the trial court has no discretion in determining what the law is or applying the law to the facts.”).

Wohlers Report

Qualifications

TDADS’s motion to dismiss and brief assert that Wohlers’s report and CV do not establish his qualifications to testify about the standards of care applicable to the Mexia State School healthcare staff or to the treatment for individuals with behavioral, mental, and developmental disabilities. Its brief also asserts that Woh-lers’s report does not show that the “management and care” of Ruben on the occasion in question is “something universally done.”

Regarding his qualifications, Wohlers’s report states:

I received my paramedic education from Creighton University in 1992. Initially I was a paramedic in Omaha, Nebraska from 1992 to 1996, then a paramedic for the City and County of Denver from 1996 until 2000. Since 2000,1 have been with the Grand Island Fire Department in Grand Island, Nebraska as a paramedic/firefighter. I have also been involved in restraint asphyxia education since 2006. I teach to EMS, Law Enforcement and persons involved in the restraining of combative persons. I have been qualified as an expert in the field of restraint asphyxia.

Wohlers’s CV restates the above history and notes his certification as an EMS instructor and that he specializes in “restraint-related issues” and instructs on Advanced Life Support and Basic Life Support topics. His report further states:

I am familiar with the standard of care for restraining a combative person and understand what steps should be taken to monitor for respiratory distress. Through my education, background and experience, I am knowledgeable in the standard of care that the staff of Mexia State School should have provided to Mr. Gonzales on the night he died.

On the issue of Wohlers’s qualifications, we turn to the applicable statute, section 74.402, which provides in pertinent part:

(b) In a suit involving a health care liability claim against a health care provider, a person may qualify as an expert witness on the issue of whether the health care provider departed from accepted standards of care only if the person:
(1) is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose;
(2) has knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and
(3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care.
(c) In determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness:
(1) is certified by a licensing agency of one or more states of the United States or a national professional certifying agency, or has other substantial training or experience, in the area of health care relevant to the claim; and
(2) is actively practicing health care in rendering health care services relevant to the claim.

Tex. Civ. Prac. & Rem.Code Ann. § 74.402(b, c) (Vernon 2005).

We disagree that Wohlers was required to be qualified in general as an expert about the standards of care applicable to the Mexia State School healthcare staff for the care and treatment for individuals with behavioral, mental, and developmental disabilities. Rather, under the literal language of subsections 74.402(b)(1, 2), Wohlers is only required to be practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider and have knowledge of the accepted standards of care for health care providers for the care or treatment of the condition involved in the claim. See id. § 74.402(b)(1, 2); see, e.g., Group v. Vicenta, 164 S.W.3d 724, 730-31 (Tex.App.Houston [14th Dist.] 2005, pet. denied). Based on Salais’s allegations and the information in Wohlers’s report, the type of care or treatment and the condition involved is the use of physical restraint and a restraint board on a combative person. Wohlers’s report and CV show that he is a certified practitioner and instructor in health care services relevant to the healthcare liability claim in this case; he has been a paramedic since 1992 and has been instructing on restraint asphyxia since 2006, including teaching persons involved in the restraining of combative persons. His report states that he is familiar with the standard of care for restraining a combative person and is knowledgeable of the standard of care that the staff of Mexia State School should have provided to Ruben on the night he died with respect to the use of physical restraint and a restraint board.

Under the applicable criteria in section 74.402(b), Wohlers’s report and CV demonstrate that he is qualified to offer an expert opinion on the accepted standards of care for this type of care or treatment by TDADS healthcare staff of combative persons. To the extent the trial court concluded otherwise, the trial court abused its discretion.

Adequacy

TDADS’s motion to dismiss asserted that Wohlers’s report is inadequate because it does not articulate the relevant standard of care and/or the bases for the relevant standards of care applicable to TDADS and it does not specifically state the manner in which TDADS breached the applicable standard of care.

When considering a motion to dismiss under subsection 74.351(b), the issue is whether the report represents a good-faith effort to comply with the statutory definition of an expert report. See Bowie Mem. Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002); Palacios, 46 S.W.3d at 878. An “expert report” is “a written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider 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).

In determining whether the report represents a good-faith effort, the inquiry is limited to the four corners of the report. Palacios, 46 S.W.3d at 878. The report need only represent a good-faith effort to provide a fair summary of the expert’s opinions. Id. The report does not have to marshal all of the plaintiffs proof and the plaintiff need not present evidence in the report as if it were actually litigating the merits. Id. at 879. Rather, to constitute a good-faith effort, the report must address the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff calls into question and to provide a basis for the trial court to conclude that the claims have merit. Id. at 875.

The Wohlers report notes that he has been qualified as an expert in restraint asphyxia. It cites an investigative report that he reviewed and details the course of events and the conduct of three employees (Thomas, Korn, and Thornton) in placing Ruben on a restraint board and, according to Thomas, using a restraint strap across his diaphragm, after which Ruben “was breathing hard, in gasps, and making gurgling sounds.” According to Korn, a restraint strap was across Ruben’s chest, and Korn observed only a “slight rise” in his chest; Ruben had a weak pulse. Thornton observed Ruben on the restraint board and thought he was asleep, but he looked “funny” and was breathing shallow. Nurse Sanderson arrived, and after finding Ruben’s color to be abnormally pale, no blood pressure, and no pulse, she initiated CPR and attempted to use an AED. Mexia Fire/EMS then arrived, took over CPR, and did an endotracheal intubation before transferring Ruben to Parkview Regional Hospital, where he was pronounced dead. Wohlers states:

I am familiar with the standard of care for restraining a combative person and understand what steps should be taken to monitor for respiratory distress. Through my education, background and experience, I am knowledgeable in the standard of care that the staff of Mexia State School should have provided to Mr. Gonzalez on the night he died.
The standard of care requires that if any one of the persons involved in the restraining of Mr. Gonzalez had recognized that he was in respiratory distress, he should not have been placed on a restraint board and had straps placed across his chest. Had anyone of the restrainers prevented the application of the restraint board, it is more likely than not that Mr. Gonzalez would not have suffered restraint asphyxia. No one intervened in the application of the restraint board.

Wohlers’s report sets forth his familiarity with the standard of care and the basis therefor, what the standard of care is, and how the TDADS staff breached it on the occasion in question. The report addresses the standard of care and breach with sufficient specificity to inform TDADS of the conduct that Salais calls into question and provides a basis for the trial court to conclude that the claims have merit. See Palacios, 46 S.W.3d at 875. It informs TDADS “what care was expected but not given.” Fagadau v. Wenkstern, 311 S.W.3d 132, 138 (Tex.App.-Dallas 2010, no pet. h.) (citing Palacios, 46 S.W.3d at 880). To the extent the trial court concluded otherwise, the trial court abused its discretion.

Dr. Winston Report

Section 74.351(i) permits a claimant to satisfy any requirement of section 74.351 for serving an expert report by serving reports of separate experts. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(i); see Packard v. Guerra, 252 S.W.3d 511, 527 (Tex.App.-Houston [14th Dist.] 2008, pet. denied). Expert reports can be considered together in determining whether the plaintiff in a health-care liability action has provided adequate expert opinion regarding the standard of care, breach, and causation. See Walgreen Co. v. Hieger, 243 S.W.3d 183, 186 n. 2 (Tex.App.-Houston [14th Dist.] 2007, pet. denied); Martin v. Abilene Regional Med. Center, No. 11-04-00303-CV, 2006 WL 241509, at *4-5 (Tex.App.-Eastland Feb. 2, 2006, no pet.) (mem. op.). A physician’s report on causation should not be read in isolation. See Martin, 2006 WL 241509, at *4; see also Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(5)(C) (providing that only a physician can be an expert giving opinion testimony on causal relationship).

Qualifications

TDADS’s motion to dismiss and brief assert that Dr. Winston’s report and CV do not establish his qualifications to testify about causation. Its brief first asserts that there is no showing that Dr. Winston is a licensed physician. “Expert” means, “with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care in any health care liability claim, a physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence.” Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(5)(C) (Vernon Supp. 2009); see also Tex. Civ. Prag & Rem.Code Ann. § 74.408(a) (Vernon 2005).

Dr. Winston’s report is in a letter format, and his letterhead and typed signature block identify him as “Donald Winston, MD.” His letterhead also reveals his website (www.urbansurgeon.com) and his email address at that website. Furthermore, his December 2008 CV reflects that he is a licensed Texas physician (No. F0832, licensed in February 1978 and expiring May 31, 2010). TDADS’s assertion that there is no showing that Dr. Winston is a licensed physician is incorrect.

Dr. Winston’s report is a letter to Sa-lais’s attorney and states in its entirety:

At your request, I have reviewed an autopsy report and death certificate of Ruben Gonzales, a 15 year old Hispanic male who apparently was a student at the Mexia State School.
I have no way of knowing exactly what took place on or about January 15, 2007, but I have reviewed a Third Amended Petition in Cause 28901A which states that three employees of Mexia State School physically restrained Mr. Gonzales. After a period of time, a nurse at the hospital found Mr. Gonzales dead. Resuscitation failed, and after endotra-chial [sic] intubation by Mexia Fire Department EMS, he was taken to Park-view Regional Hospital where he was pronounced dead.
My focus is on the Autopsy report in Case No. JP0Í87-07-0120ACG done January 16th 2007.
I agree with the physical findings of:
1. Petechiae in the right and left conjunctivae
2. Contusions to the right arm and left leg
3. Subcutaneous hemorrhage on the upper back and lower back
4. Two subgaleal hemorrhages
5. Abrasions and contusions on face and arms
6. Mechanical asphyxia
I disagree with the final opinion of the nine pathologists to the extent that there is evidence that Mr. Gonzales in any way contributed to his own death, but I agree that his death was a homicide caused by restraint and mechanical asphyxia imposed on him by the three Mexia State School employees.
If you have any other questions, please feel free to contact me.

TDADS is correct that Dr. Winston’s report fails to show how he is qualified to render an expert opinion on causation in this case. Rule 702 of the Texas Rules of Evidence requires that an expert be qualified by “knowledge, skill, experience, training, or education.” Tex.R. Evid. 702. The qualifications of an expert must appear in the report itself and cannot be inferred. See Benson v. Hall, No. 10-09-00284-CV, 2010 WL 376957, at *1 (Tex.App.-Waco Feb. 3, 2010, no pet. h.); Estorque v. Schafer, 302 S.W.3d 19, 26 (Tex.App.-Fort Worth 2009, no pet.); Philipp v. McCreedy, 298 S.W.3d 682, 686 (Tex.App.-San Antonio 2009, no pet.); Baylor College of Medicine v. Pokluda, 283 S.W.3d 110, 117 (Tex.App.-Houston [14th Dist.] 2009, no pet.); Hansen v. Starr, 123 S.W.3d 13, 19 (Tex.App.-Dallas 2003, pet. denied). Dr. Winston’s report does not set forth his qualifications at all. His CV reflects that he is currently practicing in the field of emergency medicine in Houston and has held several positions as an emergency medicine physician and a general and trauma surgeon. Aside from their not being in the report itself, these position descriptions alone are inadequate to show how Dr. Winston is qualified to opine on the causal relationship of Ruben’s death. Merely being a physician is insufficient to qualify as a medical expert. See Broders v. Heise, 924 S.W.2d 148, 152 (Tex.1996); Hagedorn v. Tisdale, 73 S.W.3d 341, 350 (Tex.App.-Amarillo 2002, no pet.).

Because there is no showing in Dr. Winston’s report that he is qualified to give an expert opinion on causation, to the extent the trial court granted the motion to dismiss on this basis, it did not abuse its discretion. We overrule Salais’s first issue.

Adequacy

Because of our disposition of the second issue, we must address TDADS’s challenge to the adequacy of Dr. Winston’s report in its motion to dismiss. On the adequacy of Dr. Winston’s report, we are precluded “from filling gaps in a report by drawing inferences or guessing as to what the expert likely meant or intended.” Austin Heart, 228 S.W.3d at 279. But here, there is no gap, and there is no guessing, that Dr. Winston’s opinion on the cause of Ruben’s death — “restraint and mechanical asphyxia imposed on him by the three Mexia State School employees” — is the same conduct referred to in the Wohlers report as being the three Mexia State School employees’ breach of the standard of care in restraining a person in respiratory distress.

When the reports are read together, as they must be in this case, they satisfy the causal-relationship requirement because they constitute a good-faith effort to provide a fair summary of the causal relationship between the employees’ conduct and Ruben’s death by restraint asphyxia. See Martin, 2006 WL 241509, at *5. Read together, they provide “enough information linking the defendant’s breach of the standard of care to the plaintiffs injury.” Baker v. Gomez, 276 S.W.3d 1, 8 (Tex.App.-El Paso 2008, pet. denied). And because Dr. Winston’s report does link the employees’ conduct with Gonzalez’s death, TDADS’s reliance on Bogar v. Esparza and Shaw v. BMW Healthcare, Inc. is misplaced, as those cases are distinguishable on that basis. Cf. Bogar v. Esparza, 257 S.W.3d 354, 364 (Tex.App.-Austin 2008, no pet.) (“In essence, Dr. Adame’s report is a second autopsy report, opining about the cause of Ms. Guerrero’s death without explaining who caused it or how.”) (emphasis added); Shaw v. BMW Healthcare, Inc., 100 S.W.3d 8, 12-13 (Tex.App.-Tyler 2002, pet. denied) (op. on reh’g) (“An opinion solely addressing the cause of death does not satisfy the statutory requirements.”).

Extension

Subsection 74.351(c) provides: “If an expert report has not been served within the period specified by Subsection (a) because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency.” Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c). In her second issue, Salais asserts that the trial court abused its discretion in not granting her alternative motion for a thirty-day extension to cure her expert report’s deficiency.

The docket sheet appears to reflect the trial court’s denial of that motion, but docket-sheet entries are not “of-record” rulings. Any order or judgment, to be effective, must be entered of record. Kocman v. Kocman, 581 S.W.2d 516, 518 (Tex.Civ.App.-Waco 1979, no writ); see also Willis v. Nucor Corp., 282 S.W.3d 536, 543 (Tex.App.-Waco 2008, no pet.).

Dr. Winston’s report is technically deficient — as opposed to being “no report” — because the report lacks his qualifications to give an expert opinion on causation. It is thus appropriate to remand this case to the trial court so it can exercise its discretion whether to grant a thirty-day extension so that Salais can attempt to cure this deficiency. See Austin Heart, 228 S.W.3d at 284-85; see also In re Buster, 275 S.W.3d 475, 477 (Tex.2008) (“A report by an unqualified expert will sometimes (though not always) reflect a good-faith effort sufficient to justify a 30-day extension.”).

Accordingly, we sustain the second issue and remand this cause to the trial court with the instruction to consider and rule on Salais’s motion for a thirty-day extension to attempt to cure the deficiency in Dr. Winston’s report.

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice,

dissenting.

Ana Maria Gonzalez Salais appeals the trial court’s judgment dismissing her health care liability claim against the Texas Department of Aging and Disability Services. Because the trial court did not abuse its discretion in granting TDADS’s motion to dismiss or in denying Salais’s request for a 30-day extension, we should affirm the trial court’s judgment. Because the Court does not, I respectfully dissent.

BACKGROUND

Salais’s son, Ruben Gonzalez, was a patient at a TDADS facility, the Mexia State School. After an altercation with the State School staff, Gonzalez was placed on a restraint board. He then died. Salais sued both TDADS and the Mexia State School. The trial court granted TDADS’s motion to dismiss.

In two issues on appeal, Salais argues that the trial court erred in granting TDADS’s motion to dismiss pursuant to section 74.351 of the Texas Civil Practice and Remedies Code and erred in denying Salais’s request for a 30-day extension pursuant to section 74.351(c) of the Texas Civil Practice and Remedies Code.

Dismissal

Section 74.351 of the Civil Practices and Remedies Code provides that within 120 days of filing, a claimant must serve a curriculum vitae and one or more expert reports regarding every defendant against whom a health care claim is asserted. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (Vernon Supp. 2009). “Section 74.351 has numerous subparts, including:

• subpart (b) requiring trial courts to dismiss a claim with prejudice and award fees if “an expert report has not been served” by the statutory deadline;
• subpart (c) allowing a 30-day extension of the deadline if a report is found inadequate; and
• subpart (l) providing that a motion challenging a report’s adequacy should be granted only if the report does not represent a good-faith effort to comply with the statute.” Lewis v. Funderburk, 253 S.W.3d 204, 207 (Tex.2008) (footnotes omitted); Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b), (c), (i) (Vernon Supp. 2009).

When considering a motion to dismiss under section 74.351, the issue for the trial court is whether the report represents a good-faith effort to comply with the statutory definition of an expert report. See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002); American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001). An “expert report” means:

A written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding the applicable standards of care, the manner in which the care rendered by the physician or health care provider 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) (Vernon Supp. 2009). To constitute a “good-faith effort,” the report must discuss the standard of care, breach, and causation with sufficient specificity to fulfill two purposes: (1) to inform the defendant of the specific conduct the plaintiff has called into question; and (2) to provide a basis for the trial court to conclude that the claims have merit. Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879.

The report must include the expert’s opinion on each of the three elements that the statute identifies: standard of care, breach, and causal relationship. Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. A report cannot merely state the expert’s conclusions about these elements. Borne, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879. “Rather, the expert must explain the basis of his statements to link his conclusions to the facts.” Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999).

We review a trial court’s order dismissing a claim for failure to comply with the expert report requirements under an abuse-of-discretion standard. Bowie, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. Expert reports that omit at least one of the three specifically enumerated requirements of an expert report cannot constitute a good faith effort to meet the statutory requirements. See Jernigan v. Langley, 195 S.W.3d 91, 94 (Tex.2006); Palacios, 46 S.W.3d at 879.

Salais provided two reports to serve as her expert report. One report was prepared by James Wohlers, a paramedic from Nebraska, which Salais alleged addressed the expert report elements of the standard of care and the breach of that standard. The other report was prepared by Donald Winston, a physician from Houston. Salais alleged Dr. Winston’s report addressed the causation element. TDADS complains, and I agree, that Dr. Winston’s report wholly fails to address the causation element.

Assuming without deciding that Dr. Winston is otherwise qualified to render an opinion on causation, he does not. Dr. Winston states in his report that he reviewed the autopsy report of Ruben Gonzalez and the death certificate. Then, he simply states that, although he disagrees with the nine pathologists on whether Gonzalez was in part responsible for his own death, he agrees with them in their conclusion that it was homicide caused by restraint and mechanical asphyxiation “imposed on him by the three Mexia State School employees.”

What Dr. Winston fails to do is draw the connection or explain the causal link between the negligent actions of a specific health care provider (the elements of standard of care and breach as described by Wohlers, the other purported expert) and the damages/injury (Gonzalez’s death). In other words, his report on causation must make the connection that the death by mechanical asphyxiation was caused by the conduct described by Wohlers, assuming that was adequately presented in the other expert report. See Bowie, 79 S.W.3d at 53. Because Dr. Winston did not indicate he had reviewed the other purported expert’s report, this required connection is simply missing. Further, it is impermissible to infer that the conduct referenced in one report is the basis for the conclusions in the other report. See Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex.App.-Austin 2007, no pet.).

Dr. Winston’s report is similar to an expert report discussed in Shaw v. B.M.W. Healthcare, Inc., 100 S.W.3d 8 (Tex.App.Tyler 2002, pet. denied). In Shaw, the Shaws filed two expert reports to address the three elements, one from a physician and one from a registered nurse. The Shaws agreed that the physician’s report did not set out the applicable standards of care or address how the defendants breached any standards. They argued, however, that those omissions were irrelevant because the physician only rendered an opinion on the cause of death. Citing to Palacios, the Tyler Court of Appeals held that because there was no discussion in the report as to the applicable standard of care and any breaches of that standard, an opinion solely addressing the cause of death did not satisfy the statutory requirements of an expert report. Shaw, 100 S.W.3d at 13 (citing Palacios, 46 S.W.3d at 879). Like the report in Shaw, Dr. Winston’s report only addressed Gonzalez’s cause of death without a link between the alleged breach and the injury. Accordingly, I would hold that Dr. Winston’s report does not meet the requirement of an expert report because there is nothing in the report that addresses the causal connection between the breach by the Mexia State School employees of the standard of care as allegedly contained in Wohlers’s report and the injury, the death of Gonzalez, claimed. The causation element has been omitted from the report.

Because Salais’s expert reports omit at least one of the three specifically enumerated requirements of subsection (r)(6), they cannot constitute a good faith effort to meet those requirements. I need not decide TDADS’s objections to Wohlers’s report. Accordingly, because the trial court did not abuse its discretion in granting TDADS’s motion to dismiss Salais’s suit against TDADS, Salais’s first issue should be overruled.

Continuance

Salais further argues that should we determine the reports were deficient, we should remand the matter back to the trial court for a 30-day extension. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c) (Vernon Supp. 2009). The parties agree and the trial court’s docket sheet indicates that a request for a 30-day extension was denied. Section 74.351(c) provides in part that the trial court may grant one 30-day extension to the claimant to cure a deficiency in an expert report. Id. The term “may” as used in subsection (c) vests the trial court with discretion to grant a 30-day extension. Bosch v. Wilbarger Gen. Hosp., 223 S.W.3d 460, 465 (Tex.App.-Amarillo 2006, pet. denied); Hardy v. Marsh, 170 S.W.3d 865, 870-71 (Tex.App.-Texarkana 2005, no pet.).

I assume without deciding that once the trial court determines that the report furnished did not constitute a good faith effort to meet the requirements of an expert report, the trial court can, nevertheless, grant a 30-day extension to cure the deficiency. To grant such an extension, the trial court would have to consider the totality of the circumstances surrounding the preparation of the report, such as the difficulty, if any, encountered by the plaintiff in obtaining the necessary experts or in getting the medical records necessary for the expert to review, the diligence of the plaintiff in securing an expert on the specific type of healthcare liability claim, whether a 30-day extension would have allowed the plaintiff to cure the defect, and the extent of the deficiency in the proffered report. This list of considerations is by no means exhaustive.

But in this case, we have not been provided any record from which we could review the trial court’s determination. Because we have no record to review, Salais is unable to support the complaint that the trial court abused its discretion in failing to grant a 30-day extension. See In the Interest of D.W., 249 S.W.3d 625, 648 (Tex.App.-Fort Worth 2008, no pet.) (because no record of hearing on motion to extend dismissal deadline, court presumes evidence supported trial court’s ruling and no abuse of discretion shown).

Salais’s second issue should be overruled.

Conclusion

Having overruled each issue, I would affirm the interlocutory order of dismissal of the trial court. Because the Court does not, I respectfully dissent.

      . To the extent that Salais has asserted a health-care liability claim based on alleged misuse of the AED (it is in the Wohlers report, but it is not pleaded by Salais), there is "no report" at all as to causation, and the trial court properly dismissed that part of the health-care liability claim. See Benson v. Vernon, 303 S.W.3d 755, 760-61 (Tex.App.-Waco 2009, no pet.).


source: Caselaw Access Project

author: BILL MEIER, Justice.

license: Public Domain

text:
    Mark FLEMING, Appellant, v. The STATE of Texas, State.
    No. 2-09-215-CR.
    Court of Appeals of Texas, Fort Worth.
    Aug. 5, 2010.
    Discretionary Review Granted Dec. 8, 2010.

      Richard S. Gladden, Jackson & Hagen, Denton, TX, for Appellant.
    Paul Johnson, Criminal District Attorney, Charles E. Orbison, Chief Assistant Criminal District Attorney, Catherine Luft, Rick Daniel, Lauri Rector, Assistant Criminal District Attorneys, Denton, TX, for the State of Texas.
    PANEL: GARDNER and MEIER, JJ.; and WILLIAM BRIGHAM (Senior Justice, Retired, Sitting by Assignment).
   OPINION

BILL MEIER, Justice.

Appellant Mark Fleming entered a negotiated plea of guilty to aggravated sexual assault of a child younger than fourteen years of age. The trial judge sentenced Fleming to ten years’ confinement, suspended imposition of the sentence, and placed him on ten years’ community supervision. Among the conditions of punishment, Fleming must register as a sex offender. We will affirm.

In four points, Fleming argues that the Texas Penal Code provision under which he was convicted, section 22.021, is unconstitutional under the federal due process and the Texas due course of law provisions because of its:

failure to require the State to prove that [Fleming] had a culpable mental state (“mens rea”) relating to the alleged victim’s age when engaging in the conduct alleged; and ... its failure to recognize an affirmative defense based on [Fleming’s] reasonable belief that the alleged victim at the time was 17 years of age or older.

We disagree.

The federal constitution provides: “No State shall ... deprive any person of life, liberty, or property, without due process of law....” U.S. Const, amend. XIV, § 1. Our state constitution provides: “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” Tex. Const, art. I, § 19. Although Fleming has briefed both federal and state due process arguments, because Fleming has not asserted or briefed an argument that the due course of law analysis under the Texas constitution is different or provides greater protections than the due process clause of the United States Constitution, we apply the analysis under the United States Constitution only. See Pena v. State, 285 S.W.3d 459, 464 (Tex.Crim.App.2009) (by failing to raise it at trial, defendant forfeited claim that the Texas constitution’s due course of law clause provided more protection than due process under the federal constitution with respect to the destruction of potentially exculpatory evidence); see also Alobaidi v. Univ. of Tex. Health Science Ctr. at Houston, 243 S.W.3d 741, 748-49 (Tex.App.-Houston [14th Dist.] 2007, pet. denied) (analyzing due process claim under federal constitution guarantees only where appellant did not argue on appeal that Texas constitution’s due course of law clause provided different protections than due process under the federal constitution). And even though Fleming does not refer to his claims as being either procedural or substantive due process arguments, he does not argue that the process depriving him of his liberty is deficient; rather, Fleming argues that the absence of a mens rea or mistake-of-age component to section 22.021 is a wrongful government action irrespective of the procedure in place to guarantee fairness. Thus, we interpret Fleming’s arguments to be substantive due process claims. See Zinermon v. Burch, 494 U.S. 113, 124-25, 110 S.Ct. 975, 982-83, 108 L.Ed.2d 100 (1990).

Substantive due process protects citizens against arbitrary or wrongful state actions, regardless of the fairness of the procedures used to implement them. County of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S.Ct. 1708, 1716, 140 L.Ed.2d 1043 (1998). In assessing whether a government regulation impinges on a substantive due process right, the first step is to determine whether the asserted right is fundamental. See Leebaert v. Harrington, 332 F.3d 134, 140 (2d Cir. 2003) (discussing two-step process in analyzing a substantive due process claim). Rights are fundamental when they are implicit in the concept of ordered liberty or deeply rooted in this nation’s history and tradition. Immediato v. Rye Neck School Dist., 73 F.3d 454, 460-61 (2d Cir.), cert. denied, 519 U.S. 813, 117 S.Ct. 60, 136 L.Ed.2d 22 (1996) (citing Moore v. East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 1938, 52 L.Ed.2d 531 (1977)). Where the right infringed is fundamental, strict scrutiny is applied to the challenged governmental regulation. Reno v. Flores, 507 U.S. 292, 305, 113 S.Ct. 1439, 1448, 123 L.Ed.2d 1 (1993). But where the claimed right is not fundamental, the governmental regulation need only be reasonably related to a legitimate state objective to survive constitutional review. Flores, 507 U.S. at 306, 113 S.Ct. at 1449. Thus, our first inquiry is to determine whether there is a fundamental right entitling individuals to a mens rea component or a mistake-of-age defense in a statutory rape scheme.

It is a basic principle of criminal law that an actor should not be convicted of a crime if he had no reason to believe that the act he committed was a crime or that it was wrongful. Morissette v. United States, 342 U.S. 246, 252, 72 S.Ct. 240, 244, 96 L.Ed. 288 (1952). An intent requirement was the general rule at common law. Id. To be sure, the absence of a mens rea requirement in a criminal statute is a significant departure from longstanding principles of criminal law. Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 1797, 128 L.Ed.2d 608 (1994). Nevertheless, strict liability crimes — that is, crimes defined without any culpable state of mind. — are known at law. Id. When strict liability is imposed, the actor is deemed to have had sufficient notice concerning the risk of penal sanction inherent in the proscribed activity, and it is not unjust to impose criminal liability without the necessity of proving moral culpability. United States v. Freed, 401 U.S. 601, 613 n. 4, 91 S.Ct. 1112, 1120 n. 4, 28 L.Ed.2d 356 (1971). It has been written that “the existence and content of the criminal prohibition in these cases are not hidden; the defendant is warned to steer well clear of the core of the offense (as in the statutory-rape case).” United States v. Wilson, 159 F.3d 280, 296 (7th Cir.1998) (Posner, C.J., dissenting).

To this end, state legislatures have broad powers to promote the public welfare and to create criminal offenses and impose punishment — including the power to define an offense that excludes the element of mental culpability from its definition. Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 242, 2 L.Ed.2d 228 (1957). Indeed, a state legislature is free to define a criminal offense and bar consideration of a particular defense so long as due process is not offended. Montana v. Egelhoff, 518 U.S. 37, 43, 116 S.Ct. 2013, 2017, 135 L.Ed.2d 361 (1996) (quoting Patterson v. New York, 432 U.S. 197, 201-02, 97 S.Ct. 2319, 2322, 53 L.Ed.2d 281 (1977)). And it is widely recognized that adults are well aware of the strict liability aspect of statutory rape laws. See State v. Jadowski, 272 Wis.2d 418, 680 N.W.2d 810, 821 n. 42 (2004) (discussing the colloquial phrase “[s]ixteen will get you twenty!” as a common exclamation expressing the widespread awareness of statutory rape laws and the strict liability aspect of the offense).

The strict liability crime of statutory rape, in which the victim’s apparent maturity is not a defense, is a recognized exception to the general rule requiring mens rea in criminal statutes. Jadowski, 680 N.W.2d at 821. Traditionally, according to the weight of authority, “mistake as to age” has also not been a defense against the charge of statutory rape. Morissette, 342 U.S. at 251 n. 8, 72 S.Ct. at 244 n. 8.; United States v. X-Citement Video, Inc., 513 U.S. 64, 72 n. 2, 115 S.Ct. 464, 469 n. 2, 130 L.Ed.2d 372 (1994).

Fleming argues that because the federal due process and the state due course of law provisions were passed at a time when there existed a mens rea component to statutory rape laws in this nation, the lack of a mental culpability component offends “principiéis] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” But the rule of tradition and conscience, or the guide of “historical practice,” is not a first-in-time, bright-line rule. Egelhoff, 518 U.S. at 43, 116 S.Ct. at 2017. For example, the fundamental right to “engage in [sexual] conduct” without intervention of the government between consenting same-sex adults is hardly a concept that existed prior to the adaptation of either due process provision; nonetheless, the Supreme Court, in overruling its previous holding, held this to be a fundamental right under substantive due process. See Bowers v. Hardwick, 478 U.S. 186, 191-92, 106 S.Ct. 2841, 2844, 92 L.Ed.2d 140 (1986), overruled by Lawrence v. Texas, 539 U.S. 558, 567, 123 S.Ct. 2472, 2478, 156 L.Ed.2d 508 (2003). This is so because this right is implicit in the concept of ordered liberty, even though “there have been powerful voices [condemning] homosexual conduct as immoral” for “centuries.” Lawrence, 539 U.S. at 571, 123 S.Ct. at 2480. “Historical practice” is a probative guide to the ordered-liberty and deeply rooted approach in determining fundamental rights, but it is a starting point only and not the absolute determining guide to whether a right is fundamental. Medina v. California, 505 U.S. 437, 446 112 S.Ct. 2572, 2577, 120 L.Ed.2d 353 (1992).

Fleming argues that Lawrence v. Texas actually supports his position because due process “ ‘extends to intimate choices by unmarried as well as married persons’ thus, according to Fleming, it is “simply unconstitutional” to penalize a person for making a mistake in fact concerning a minor’s age while exercising this fundamental right. Lawrence, 539 U.S. at 578, 123 S.Ct. at 2483. But the Lawrence Court specifically indicated that its holding did not extend to cases involving minors, and we easily conclude that Fleming’s reliance on Lawrence is misplaced. Id.

We also conclude that Fleming’s attempts to find refuge for his position in the Supreme Court’s case of United States v. X-Citement Video is equally unavailing. 513 U.S. at 72, 115 S.Ct. at 468. In X-Citement Video, an undercover police officer ordered pornographic tapes starring an underage actress from a video company. Id. U.S. at 66-67, 115 S.Ct. at 466. The company and its owner were indicted under a federal statute that criminalized the knowing receipt and transportation of child pornography. Id. The Supreme Court held that the term “knowingly” in the statute modified the phrase “the use of a minor” and required not only a knowing distribution of the pornographic material, but also knowledge of the performer’s age. Id., 513 U.S. at 71-83, 115 S.Ct. at 469-74. The X-Citement Video Court, however, also recognized that traditionally

the presumption [of mens rea ] expressly excepted “sex offenses, such as rape, in which the victim’s actual age was determinative despite defendant’s reasonable belief that the girl had reached age of consent.” ... [because] the perpetrator confronts the underage victim personally and may reasonably be required to ascertain that victim’s age. The opportunity for reasonable mistake as to age increases significantly once the victim is reduced to a visual depiction, unavailable for questioning by the distributor or receiver. Id.

Thus, X-Citement Video involves situations in which people usually would not confront the performer depicted in the material. Fleming, however, personally confronted the underage victim and could have learned her true age. Therefore, X-Citement Video is distinguishable from this case and does not suggest that the rights Fleming claims are fundamental.

The long history of statutory rape, even assuming Fleming’s argument that it is history after the passing of both state and federal due process provisions, as a recognized exception to the requirement of criminal intent and the well-accepted legislative purpose for omitting scienter undermine Fleming’s argument that section 22.021 offends principles of justice deeply rooted in our nation’s history and traditions. See United States v. Ransom, 942 F.2d 775, 777 (10th Cir.1991), cert. denied, 502 U.S. 1042, 112 S.Ct. 897, 116 L.Ed.2d 799 (1992) (reasoning that the majority rule in the United States is that knowledge of age is not an essential element of statutory rape and this exclusion does not violate due process); see Ransom, 942 F.2d at 776 (“It is generally held in the absence of statute, that the defendant’s knowledge of the age of the female is not an essential element of the crime of statutory rape and therefore it is no defense that the accused reasonably believed that the prosecutrix was of the age of consent.”).

We acknowledge that there has been movement away from strict liability for statutory rape in recent years. See, e.g., People v. Hernandez, 61 Cal.2d 529, 39 Cal.Rptr. 361, 393 P.2d 673 (1964) (apparently the first case to allow a mistake-of-age defense; ruling on lenity grounds); see also Perez v. State, 111 N.M. 160, 803 P.2d 249, 250-51 (1990) (“While a child under the age of thirteen requires the protection of strict liability, the same is not true of victims thirteen to sixteen years of age. We recognize the increased maturity and independence of today’s teenagers and, while we do not hold that knowledge of the -victim’s age is an element of the offense, we do hold that under the facts of this case the defendant should have been allowed to present his defense of mistake of fact.”). A minority of states allow some form of a “mistake of age” defense by judicial decision or by statute. See Collins v. State, 691 So.2d 918, 923 (Miss.1997); State v. Guest, 583 P.2d 836, 837-39 (Alaska 1978) (due process requires that the defendant be allowed to introduce evidence regarding mistake as to age); Model Penal Code § 213.6(1) (Official Draft & Revised Comments 1985). Under the Model Penal Code, for example, the defense of mistaken belief should be available when the critical age is more than ten years of age. Model Penal Code § 213.6, cmt. 2 at 415 (Official Draft & Revised Comments 1985). The theory is that the policies underpinning strict liability seem less compelling as the age of the minor increases; an accused who mistakenly but reasonably believes such a partner is above the critical age should have a defense because he “evidences no abnormality, no willingness to take advantage of immaturity, no propensity to corruption of minors.” Id. Thus, ironically to Fleming’s arguments, it may be the future, and not the past, that determines that strict liability in statutory rape cases ultimately offends concepts of ordered liberty. But see Kelley v. State, 51 Wis.2d 641, 187 N.W.2d 810, 815 (1971) (specifically rejecting model penal code’s mistake-of-age defense to statutory rape).

It is worthy of note that many of the cases upholding the constitutionality of statutory rape involve an adult’s sexual contact with a person younger than that described in section 22.021. See, e.g., Wis. Stat. Ann. § 948.02(1)(b) (“Whoever has sexual intercourse with a person who has not attained the age of 12 years is guilty of a Class B felony”). But the majority rule in the United States is that the defendant’s knowledge of the victim’s age is not an essential element of statutory rape and that this exclusion does not violate due process. See Ransom, 942 F.2d at 776-77; State v. Granier, 765 So.2d 998, 1001 (La.2000); Owens v. State, 352 Md. 663, 724 A.2d 43, 48-49(Md.), cert. denied, 527 U.S. 1012, 119 S.Ct. 2354, 144 L.Ed.2d 250 (1999); State v. Yanez, 716 A.2d 759, 767 (R.I.1998); State v. Stokely, 842 S.W.2d 77, 80-81 (Mo.1992); State v. Campbell, 239 Neb. 14, 473 N.W.2d 420, 425 (1991); People v. Cash, 419 Mich. 230, 351 N.W.2d 822, 828 (1984); Commonwealth v. Miller, 385 Mass. 521, 432 N.E.2d 463, 466 (1982); State v. Tagne, 310 N.W.2d 209, 212 (Iowa 1981); Goodrow v. Perrin, 119 N.H. 483, 403 A.2d 864, 866-68 (1979); State v. Martinez, 14 P.3d 114, 116-117 (Utah App. 2000).

Although the court of criminal appeals has never considered whether section 22.021 violates due process, the court of criminal appeals has determined that the lack of a mens rea component in section 22.021’s statutory predecessor did not violate equal protection of the law. Ex parte Groves, 571 S.W.2d 888, 890 (Tex.Crim.App.1978). Our sister court in Houston, however, addressed the very issue before us and held that section 22.021’s predecessor did not violate due process. Scott v. State, 36 S.W.3d 240, 242 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd). With these decisions and the backdrop of the majority rule in this nation regarding statutory rape in mind, we conclude that there is no fundamental right that a State is required to include a mens rea component or a mistake-of-age defense in a statutory rape statute. Thus, section 22.021 only needs to serve a legitimate state purpose to be constitutional against the backdrop of substantive due process. Flores, 507 U.S. at 306, 113 S.Ct. at 1449. We conclude that it does.

Strict liability regarding the age of the minor furthers the legitimate government interest in protecting children from sexual abuse by placing the risk of mistake on the adult actor. See Ransom, 942 F.2d at 777.

Although sound reasons might be advanced on either side of the argument of whether a mens rea component should exist or whether a mistake-of-age defense should exist in section 22.021, determining the line that separates what is criminal from what is not lies peculiarly within the sphere of legislative discretion — especially, as here, where no fundamental right is at question. See Lambert, 355 U.S. at 228, 78 S.Ct. at 242. We have no authority to substitute our judgment for that of the legislature unless we find the classification to be arbitrary, capricious, and without reasonable relationship to the purposes of the statute. See Ransom, 942 F.2d at 777. We conclude that section 22.021 is neither arbitrary nor capricious and that it furthers the legitimate government interest of protecting children. See Flores, 507 U.S. at 305-06, 113 S.Ct. at 1448-49 (reasoning that states have a legitimate purpose concerning welfare of minors); Scott, 36 S.W.3d at 242 (holding that Texas’s statutory rape statute does not violate due process and furthers legitimate interest in protecting the health and safety of children). Thus, we overrule each of Fleming’s four points.

Having overruled all of Fleming’s points on appeal, we affirm the trial court’s judgment.

      . See Tex. Penal Code Ann. § 22.021(a)(l)(B)(iii), (2)(B) (Vernon Supp. 2009).

      . The judgment reads that the “age of the victim at the time of the offense was 13.”

      . After indictment, Fleming filed a motion to quash, setting forward the same points he now asserts on appeal. Neither in his motion to quash at the trial court nor in his appeal before us has Fleming asserted that the Texas Due Course of Law provision proves greater protections that its federal counterpart.


author: Justice LANG-MIERS.

text:
    Gineton ALENCAR, Appellant, v. Robert T. SHAW, Leisurecorp, Inc., and Trupetro, L.P., Appellees.
    No. 05-09-01262-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 10, 2010.

      Daniel G. Rogers, Ferguson Davis, P.C., Dallas, TX, for Appellant.
    Todd R. Hixon, Haakon T. Donnelly, Beltinger & DeWolf, LLP, C. Bruce Willis, II, Dallas, TX, for Appellees.
    Before Justices MARTIN RICHTER, LANG-MIERS, and MYERS.
   OPINION

Opinion By

Justice LANG-MIERS.

This is an interlocutory appeal from the trial court’s order denying appellant Gine-ton Alencar’s special appearance. We affirm the trial court’s order.

BACKGROUND

Robert T. Shaw, Leisurecorp, Inc., and TruPetro, L.P. sued Alencar, a Florida resident, and others alleging that defendants made material misrepresentations in connection with a business venture in Brazil, namely, a naphtha refinery known as the Rafard Facility. Plaintiffs alleged that defendants initially induced Shaw and Leisurecorp to invest approximately $6 million and to become limited partners in TruPetro, and later induced all plaintiffs to invest more money in the Rafard Facility. Plaintiffs asserted multiple claims against all defendants, including claims for fraud and negligent misrepresentation. Shaw also asserted a claim against Alencar for breach of two promissory notes signed by Alencar in connection with the Rafard Facility.

Alencar’s Special Appearance

The original petition included the following allegation about the trial court’s exercise of personal jurisdiction over Alencar: “[a]t all relevant times, Alencar had significant contacts with Dallas County which justify the imposition of personal jurisdiction on him here.” It also generally alleged that venue is proper in Dallas County because “all or a substantial part of the events giving rise to [plaintiffs’] claims occurred in Dallas County, Texas.” Alencar filed a general special appearance contesting the trial court’s exercise of personal jurisdiction over him, along with a supporting affidavit.

In response to Alencar’s special appearance, plaintiffs (1) obtained jurisdiction-related discovery from Alencar, (2) filed amended petitions that included additional claims and additional jurisdictional allegations against him, and (3) filed a written response to Alencar’s special appearance, along with approximately 150 pages of supporting evidence. In response to the plaintiffs’ additional claims and allegations, Alencar filed additional evidence to support his special appearance, but he did not amend his special appearance. After a hearing, the trial court denied Alencar’s special appearance. The order does not state a basis for the trial court’s ruling. Alencar did not request, and the trial court did not issue, findings of fact and conclusions of law. The appellate record in this case does not include a reporter’s record from the hearing on the special appearance.

Issue on Appeal

On appeal, Alencar challenges the trial court’s order denying his special appearance. His brief states a single issue:

The legal issue presented is whether an investment into a refining facility in Brazil via a Brazilian entity by various parties, some of whom are Texas residents and some of whom are not, in which all operations and investment took place in Brazil, can support personal jurisdiction against a non-resident defendant who resides in Brazil and Florida, who was sought out by the Plaintiffs to facilitate the operations in Brazil.

Applicable Law

Personal Jurisdiction

Texas courts may exercise personal jurisdiction over a nonresident defendant only if (1) the Texas long-arm statute permits the exercise of jurisdiction, and (2) the assertion of jurisdiction satisfies constitutional due-process guarantees. Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 657 (Tex.2010). The long-arm statute permits the exercise of personal jurisdiction over nonresident defendants that do business in Texas. See PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 166 (Tex.2007). The long-arm statute provides a non-exclusive list of what constitutes “doing business” in Texas, including (1) contracting with a Texas resident and either party is to perform the contract in whole or in part in Texas, and (2) committing a tort in whole or in part in Texas. Tex. Civ. PRAC. & Rem.Code Ann. § 17.042 (Vernon 2008). Personal jurisdiction over a nonresident defendant satisfies constitutional due-process guarantees when the nonresident defendant has established minimum contacts with the forum state and the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Kelly, 301 S.W.3d at 658.

Minimum contacts are established when the nonresident defendant purposefully avails himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Kelly, 301 S.W.3d at 657-58. A defendant’s contacts with a forum can give rise to either specific or general jurisdiction. Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex.2009). Specific jurisdiction is established if the defendant’s alleged liability arises out of or relates to the defendant’s contacts with the forum state. Id. at 338. In contrast, general jurisdiction is established if the defendant has made continuous and systematic contacts with the forum, regardless of whether the defendant’s alleged liability arises from those contacts. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex.2007). “A general jurisdiction inquiry, therefore, is very different from a specific jurisdiction inquiry and involves a more demanding minimum contacts analysis, with a substantially higher threshold.” PHC-Minden, 235 S.W.3d at 168 (internal quotations and citations omitted).

Special Appearances and Standard of Review

The plaintiff bears the initial burden to plead sufficient allegations to invoke jurisdiction under the Texas long-arm statute. Moki Mac, 221 S.W.3d at 574. Once the plaintiff has pleaded sufficient jurisdictional allegations, a defendant who contests the trial court’s exercise of personal jurisdiction bears the burden of negating all bases of jurisdiction alleged by the plaintiff. Id. “The defendant can negate jurisdiction on either a factual or legal basis.” Kelly, 301 S.W.3d at 659. A defendant negates jurisdiction on a factual basis by presenting evidence to disprove the plaintiffs jurisdictional allegations. Id. A defendant negates jurisdiction on a legal basis by showing that even if the plaintiffs jurisdictional allegations are true, the allegations are legally insufficient to establish personal jurisdiction. Id.

The ultimate question of whether a trial court has personal jurisdiction over a nonresident defendant is a question of law. Moki Mac, 221 S.W.3d at 574. And because jurisdiction is a question of law, an appellate court reviews a trial court’s determination of a special appearance de novo. Id. When a trial court does not issue findings of fact and conclusions of law to support its ruling, as in this case, we imply in favor of the trial court’s ruling all necessary fact findings that are supported by the evidence. Retamco Operating, 278 S.W.3d at 337.

Analysis

To determine whether plaintiffs met their initial burden to plead sufficient allegations to invoke jurisdiction over Alencar under the Texas long-arm statute, we look at the jurisdictional facts pleaded in their petition, as well as the jurisdictional facts alleged in their response to Alencar’s special appearance. See Tex.R. Civ. P. 120a(3); Flanagan v. Royal Body Care, Inc., 232 S.W.3d 369, 374 (Tex.App.-Dallas 2007, pet. denied).

In their second amended petition, which was filed two weeks before the hearing on Alencar’s special appearance and was the live petition at the time of the hearing, plaintiffs (1) generally alleged that Alencar made material misrepresentations to them about the Rafard Facility and failed to make payments on two promissory notes; (2)asserted claims against Alencar for fraud, negligent misrepresentation, breach of contract; and (3) pleaded the following jurisdictional facts against Alencar:

[Alencar] is an individual citizen of the State of Florida. The causes of action asserted against Alencar arose from or are connected with the purposeful acts committed by Alencar in the State of Texas, or directed against residents of the State of Texas, including multiple telephone conferences with Plaintiffs or their representatives in this State for purposes of inducing Plaintiffs to make the investments set forth below, trips to Texas for purposes of promoting the investments by Plaintiffs as set forth below, and receipt of money from Texas based on his representations as set forth below. Furthermore, Alencar has a history of contacts with the State of Texas, including entering into contracts performable in this State, ownership and interest in Texas businesses, and has an outstanding judgment against him in this State. At all relevant times, Alen-car had significant contacts with Texas, and directed his actions towards residents of Texas, which justify the imposition of personal jurisdiction on him in Texas.

In their response to Alencar’s special appearance, which was filed five days before the hearing, plaintiffs argued that Al-encar is subject to general and specific jurisdiction in Texas and included more detailed jurisdictional allegations against Alencar, along with citations to supporting evidence.

First, to support their contention that Alencar is subject to general jurisdiction in Texas, plaintiffs made the following allegations:

(1) Alencar is an officer of CalBraz Management, LLC, a Texas limited liability company formed in 2008 and headquartered in Plano, Texas;
(2) Alencar had a commission agreement with TriAlpha LLC, a Texas limited liability company formed in 2005, and made calls and sent emails to TriAlpha’s manager, Tryggestad, who worked in Dallas County;
(3) in 2006 or 2007, Alencar paid his own way to Dallas, Texas, to meet with Leisurecorp regarding the purchase of an airplane;
(4) in 2007, Alencar became the “Brazilian partner” of TruEnergy Renewable Fuels LLC, a Texas limited liability company, “purposefully came to Texas” to meet with, and regularly initiated phone calls to, Sooter, Tryggestad, and Lavender, who all lived and worked in Texas, regarding TruEnergy;
(5) in connection with his work as a televangelist, Alencar has been to Texas seven or eight times, has met with people in Texas to discuss buying television equipment and air time on Daystar, a religious network located in Dallas, he retained a Texas law firm in connection with Daystar dealings, and he appeared on television in Texas five years ago and asked Texas citizens to give money to his ministry,
(6) Alencar signed a promissory note for $2.5 million in favor of a payee whose address was in Dallas, Texas, and a Dallas County court has rendered a judgment against Alencar on that note, which Alencar is aware of and has not contested;
(7) Alencar signed two promissory notes in favor of plaintiff Shaw that state (a) payment is to be made to Dallas, Texas, and (b) they are governed by Texas law; and
(8) Alencar testified he has done business in Texas and came to Texas for business purposes.

Second, to support their contention that Alencar is subject to specific jurisdiction, plaintiffs alleged that Alencar was a paid consultant to plaintiff TruPetro, which is based in Dallas, Texas, and that Alencar made material misrepresentations during his multiple trips to Dallas to discuss the Rafard Facility with plaintiffs or their representatives. Plaintiffs also alleged that Alencar made misrepresentations about the Rafard Facility in emails he sent to, and phone calls he made to, plaintiffs’ representatives in Texas. Plaintiffs also alleged that Alencar’s misrepresentations were “a significant basis” of Shaw’s and Leisurecorp’s decisions to invest millions of dollars in the project, and that “Alen-car’s statements are at the heart of this lawsuit.” Plaintiffs also alleged that Alen-car received $402,000 from Shaw after signing a promissory note in favor of Shaw that included a Texas choice-of-law clause and required Alencar to direct his payments on the notes to a bank in Dallas, Texas, and that Alencar used that money for the Rafard Facility.

By alleging that Alencar is doing business in Texas and committed a tort in Texas, plaintiffs met their initial burden to plead sufficient allegations to bring Alen-car within the reach of the Texas long-arm statute. See Siemens AG v. Houston Cas. Co., 127 S.W.3d 436, 440 (Tex.App.-Dallas 2004, pet. dism’d) (allegation defendants doing business in Texas sufficient to bring defendants within provisions of long-arm statute); Kelly, 301 S.W.3d at 659 (noting plaintiff in tort case brings defendant within reach of long-arm statute if plaintiff alleges “the defendant committed tortious acts in Texas”); see also Tex. Civ. Prac. & Rem.Code Ann. § 17.042. As a result, the burden shifted to Alencar “to negate all bases of personal jurisdiction alleged.” See Kelly, 301 S.W.3d at 658. In this case, because plaintiffs alleged that Alencar is subject to both general and specific personal jurisdiction, it was Alencar’s burden to negate both bases of personal jurisdiction. See, e.g., Said v. Maria Invs., Inc., No. 01-08-00962, 2010 WL 457463, at *3 (Tex.App.-Houston [1st Dist.] Feb. 11, 2010, pet. filed) (mem. op.) (because plaintiff alleged defendants doing business in Texas, court considered whether defendants met burden “to negate the allegations supporting the exercise of general jurisdiction”); Conn v. Diamond, No. 02-05-00344-CV, 2006 WL 908746, at *3 (Tex.App.-Fort Worth Apr. 6, 2006, no pet.) (mem. op.) (because plaintiff alleged defendant committed tort in Texas, defendant required to negate specific jurisdiction).

Alencar filed his special appearance more than five months before plaintiffs supplemented their jurisdictional allegations with the allegations described above. In addition to generally describing the law relevant to a court’s assertion of personal jurisdiction over a nonresident defendant, Alencar’s special appearance states, in its entirety:

Texas courts do not have general jurisdiction over Alencar because Alencar has not had continuous or systematic contacts with Texas. Alencar has no clients in Texas, does not conduct business in Texas, and has no place of business in Texas.
Texas courts do not have specific jurisdiction over Alencar because Alencar did not purposefully avail himself of the privilege of conducting activities within Texas_ No action of Alencar occurred in Texas and any contacts with Texas are incidental at best. Further there was no benefit, advantage or profit to Alencar through any incidental or fortuitous contacts with Texas.
Alencar would be subject to great burden if he is forced to defend this suit in Texas. Alencar has a limited budget. The cost and time required to travel to Texas to participate in this litigation would be substantial. The State of Texas has no greater interest in the adjudication of this matter as any other state. Further, Plaintiffs can obtain effective relief in Florida. As set forth in Plaintiffs’ Petition, one of the Plaintiffs, Shaw, is a resident of Texas [sic].

Alencar’s supporting affidavit generally tracks the statements in his special appearance:

I have not committed any tort, in whole or in part, in Texas.
I have not had minimum contacts with Texas.
I have not had continuous or systematic contacts with Texas.
I have not purposefully availed myself to the jurisdiction of Texas.
I have not performed or participated in any purposeful act in Texas related to or arising out of the allegations set forth in this Lawsuit against me.
The burden placed on me by requiring me to litigate the Lawsuit in Texas would be substantial and highly burdensome. I have a limited budget. The cost and time required to travel to Dallas, Texas to participate in the Lawsuit would be substantial and highly burdensome.
The exercise of jurisdiction over me would offend traditional notions of fair play and substantial justice and would be inconsistent with the constitutional requirements of due process.

Alencar also stated in his affidavit that (1) he is not a resident of Texas and was not a resident of Texas during the relevant time period; (2) he does not maintain an office, address, telephone number, or bank account, in Texas; (8) he does not have any employees or a registered agent for service of process in Texas; (4) he does not advertise, provide any services, sell any products, direct any mass mailings, own any real or personal property, or have any ownership interests in any businesses located in Texas; and (5) he is not licensed or regulated by any Texas authorities.

Alenear filed two other exhibits to support his special appearance. First — one week after plaintiffs filed their second amended petition, and one week before the hearing on his special appearance — Alen-car filed an exhibit consisting of a one-page email. That email appears to be from Alenear to two individuals named Stan McNaughton and Eric Bostrom. The connection of the email to this case is not apparent. The email is dated almost two months after the original petition was filed in this case, and the body of the email states in its entirety (including typographical and grammatical errors):

Stan/Eric
Farm detail
As a precaution my name should be removed immediately ASAP from the USA farm corporation, Calbras the quicker the better,
Please get Kyle or someone to do it. I must be out to protect us since I am already in the mess here.
Thanks
gineton

Second — less than an hour before the hearing on his special appearance, Alen-car filed an exhibit consisting of various excerpts from his deposition totaling 36 pages. Alenear did not amend his special appearance or otherwise file any argument explaining why or how the email or deposition excerpts negate any of plaintiffs’ jurisdictional allegations or otherwise support his special appearance.

The parties do not contend, and the trial court’s order does not suggest, that any evidence was presented at the hearing on Alencar’s special appearance. As a result, we presume that the hearing was nonevi-dentiary and must decide the appeal on the clerk’s record alone. Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 783 (Tex.2005).

Although Alenear contested the exercise of general or specific jurisdiction and denied certain types of contacts with Texas, he did not address any of the plaintiffs’ specific jurisdictional allegations in his special appearance. As a result, Alen-car’s special appearance did not negate the plaintiffs’ jurisdictional allegations either (1) factually, by disproving plaintiffs’ allegations, or (2) legally, by showing that plaintiffs’ allegations are insufficient to establish jurisdiction. See Kelly, 301 S.W.3d at 659 (defendant challenging personal jurisdiction must negate jurisdictional allegations either factually or legally); Said, 2010 WL 457463, at *4 (defendants failed to negate general jurisdiction because special appearances addressed only some of plaintiffs’ jurisdictional allegations and left other allegations unaddressed); Conn, 2006 WL 908746, at *3 (defendant failed to negate specific jurisdiction because defendant’s special appearance “negated several bases for general jurisdiction” but did not address the basis for specific jurisdiction alleged by plaintiff). After plaintiffs filed their amended petition, Alenear filed the email quoted above to support his special appearance, but the clerk’s record does not contain any explanation about how or why that email negates general or specific jurisdiction. Likewise, after plaintiffs filed their response to Alencar’s special appearance, Alencar filed 36 pages of excerpts from his deposition to support his special appearance, but the clerk’s record does not contain any argument or explanation about how or why those excerpts negate general or specific jurisdiction.

On appeal, Alencar argues that he is not subject to general jurisdiction for two reasons: (1) “the disputes between the parties arise out of and relate to a Brazilian investment made by [pjlaintiffs, in which all operations were conducted in Brazil, and Alencar was sought out for his background and expertise in regard to Brazil, having nothing to do with Texas”; and (2) “[t]he nature and quality of [the] random and sporadic contacts set forth by [p]laintiffs are simply insufficient to confer general jurisdiction over Alencar.”

Alencar next argues that he is not subject to specific jurisdiction for six reasons: (1) “the promissory notes do not contain a forum selection clause, which would be necessary to confer Texas jurisdiction upon Alencar”; (2) “the notes are payable to Shaw, who is not a Texas resident”; (3) “[contracting with a Texas resident and requiring payment in Texas alone does not, in and of itself, establish specific jurisdiction as to an out of state resident”; (4) “any communications to Shaw or his representatives cannot be considered at all [because] Shaw is not a Texas resident^] Shaw is a resident of Florida”; (5) Alen-car’s communications with “Leisurecorp are insufficient to provide Texas with specific jurisdiction over Alencar [because communicating with Texas residents] and benefitt[ing] from work performed in Texas is insufficient to establish personal jurisdiction”; and (6) “Alencar’s communications to the other parties in this case” do not demonstrate that he “purposefully availed himself of the Texas forum” because those communications were “pursuant to his status as the Brazilian operational party in regard to the Brazilian entity that was formed in Brazil.”

Alencar also argues that the exercise of personal jurisdiction over him in Texas would offend traditional notions of fair play and substantial justice for two reasons: (1) Alencar “conducted his activities almost exclusively in Brazil, and the issues regarding the performance of the Rafard Facility derive from issues and concerns specific to Brazil”; and (2) this is a case “involving an investment in Brazil and residents of Florida,” and Texas does not offer “the most convenient and effective relief for the parties.”

Finally, Alencar argues that he is immune from both general and specific jurisdiction under the fiduciary shield doctrine.

The record does not demonstrate that the arguments Alencar asserts on appeal were raised below. As a result, we cannot consider them on appeal. See, e.g., Anchia v. DaimlerChrysler AG, 230 S.W.3d 493, 500 n. 1 (Tex.App.-Dallas 2007, pet. denied) (declining to address appellants’ argument that “jurisdiction is proper because appellee employed MB USA’s distribution system” because “appellants did not present this argument to the trial judge”); Ltd. Logistics Servs., Inc. v. Villegas, 268 S.W.3d 141, 150 (Tex.App.-Corpus Christi 2008, no pet.) (concluding appellant waived argument that carrier agreement did not support exercise of specific jurisdiction because argument was not raised in special appearance or elsewhere in appellate record); Reynolds v. Reynolds, 2 S.W.3d 429, 430 (Tex.App.-Houston [1st Dist.] 1999, no pet.) (concluding appellant’s argument that Uniformed Services Former Spouses’ Protection Act preempts minimum contacts test waived for purposes of appeal because appellant “did not raise this argument in the trial court”).

Conclusion

The clerk’s record does not demonstrate that Alencar met his burden to negate general and specific personal jurisdiction, either factually or legally. As a result, we conclude that the trial court did not err by denying Alencar’s special appearance and we affirm the trial court’s order.

      . The clerk's record demonstrates that the trial court ordered Alencar to respond to certain jurisdiction-related discovery requests. The evidence filed in support of plaintiffs' response to Alencar’s special appearance includes excerpts from the transcript of Alen-car’s deposition and Alencar's interrogatory responses.

      . It is undisputed that Shaw is a resident of Florida.

      . Alencar's affidavit originally stated that "I have minimum contacts with Texas,” but Al-encar later filed a correction to his affidavit explaining that the words "do not” were omitted from his affidavit, and that the sentence should read "I do not have minimum contacts with Texas.”

      . The original petition was filed February 18, 2009, and the email is dated April 3, 2009.

      . The file-stamp on the exhibit indicates that it was filed at 8:07 a.m. on September 30, 2009, and the trial court’s docket sheet indicates that the hearing was set for 8:45 a.m. that same day.

      . Additionally, to support most of his arguments on appeal, Alencar cites generally, and repeatedly, to all 36 pages of excerpts from his deposition that he filed to support his special appearance without providing any explanation about how those excerpts support his arguments. As a result, we question whether his arguments were adequately briefed. See Tex.R.App. P. 38.1; see also Martinez v. de Anda, No. 13-09-00277-CV, 2010 WL 2543892, at *12 (Tex.App.-Corpus Christi June 24, 2010, no pet.) (mem. op.) (overruling certain issues raised in plaintiffs’ appeal from order granting special appearance because supported by general citation to nearly 1,500 pages of evidence "without explaining how any of this testimony satisfies [appellants'] burden of proof”).


author: FELIPE REYNA, Justice.

text:
    Ex parte Jose Jesus GONZALEZ.
    No. 10-10-00029-CR.
    Court of Appeals of Texas, Waco.
    Aug. 11, 2010.
    Discretionary Review Refused Nov. 10, 2010.

      Robert Udashen, Sorrels Udashen & Anton, Dallas, for Relator.
    Joe F. Grubbs, Ellis County Dist. Atty., for Respondent.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   OPINION

FELIPE REYNA, Justice.

Jose Jesus Gonzalez filed a habeas application under article 11.072 of the Code of Criminal Procedure seeking relief from a deferred adjudication order for indecency with a child. The court denied Gonzalez’s application without a hearing. Gonzalez contends in his sole issue that the court erred by resolving controverted facts against him without first conducting an evidentiary hearing. We will affirm.

Article 11.072

Article 11.072, section 6 provides in pertinent part:

(a) Not later than the 60th day after the day on which the state’s answer is filed, the trial court shall enter a written order granting or denying the relief sought in the application.
(b) In making its determination, the court may order affidavits, depositions, interrogatories, or a hearing, and may rely on the court’s personal recollection.
(c) If a hearing is ordered, the hearing may not be held before the eighth day after the day on which the applicant and the state are provided notice of the hearing.

Tex.Code Crim. Proo. Ann. art. 11.072, § 6(a)-(e) (Vernon 2005).

Based on the language of subsection (b) alone, the Fort Worth Court of Appeals has concluded that no evidentiary hearing is required under article 11.072. Ex parte Cummins, 169 S.W.3d 752, 757 (Tex.App.-Fort Worth 2005, no pet.). We agree with that conclusion, but we find further support for it in cases construing a similar provision in article 11.07.

Article 11.07, section 3(d) provides in pertinent part, “To resolve [controverted fact] issues the court may order affidavits, depositions, interrogatories, additional forensic testing, and hearings, as well as using personal recollection.” Tex.Code Crim. Proc. Ann. art. 11.07, § 3(d) (Vernon Supp.2009).

This language in article 11.07, section 3(d) has long been construed to mean that a trial court is not required to conduct an evidentiary hearing to resolve controverted material fact issues in a postconviction habeas proceeding. See Ex parte Davila, 530 S.W.2d 543, 545 (Tex.Crim.App.1975) (op. on reh’g); In re Banister, No. 07-09-00117-CV, 2009 WL 1160966, at *1 (Tex.App.-Amarillo Apr. 30, 2009, orig. proceeding) (mem.op.); In re J.W.A., No. 03-03-00464-CV, 2005 WL 2574024, at *4 (Tex.App.-Austin Oct. 13, 2005, no pet.) (mem. op.).

“[W]hen a legislature reenacts a law using the same terms that have been judicially construed in a particular manner, one may reasonably infer that the legislature approved of the judicial interpretation.” State v. Medrano, 67 S.W.3d 892, 902 (Tex.Crim.App.2002).

Herrera Claims

The Beaumont Court of Appeals has recently held that an evidentiary hearing is required under article 11.072 if the habeas applicant makes a Herrera claim supported by newly discovered, affirmative evidence of innocence and the trial judge before whom the habeas application is pending did not preside over the applicant’s trial. See Ex parte Franklin, 310 S.W.3d 918, 921-23 (Tex.App.-Beaumont 2010, no pet.). The Beaumont Court cited Ex parte Brown, 205 S.W.3d 538 (Tex.Crim.App.2006), and Ex parte Franklin, 72 S.W.3d 671 (Tex.Crim.App.2002), as compelling this conclusion. In our view, however, the cited authorities do not require an evidentiary hearing if the habeas judge is the same judge who presided over the applicant’s trial, and we do not address whether an evidentiary hearing is required if a different judge is called upon to decide the habeas application.

In Franklin, the Court of Criminal Appeals addressed the quality of newly discovered evidence required to even raise a controverted fact issue on a Herrera claim.

A conviction that results from a constitutionally error-free trial is entitled to the greatest respect. Accordingly, we hold that when an applicant asserts a Herrera-type claim based on newly discovered evidence, the evidence presented must constitute affirmative evidence of the applicant’s innocence. Once the applicant provides such evidence, it is then appropriate to proceed with a determi nation of whether the applicant can prove by clear and convincing evidence that no reasonable juror would have convicted him in light of the newly discovered evidence.

Franklin, 72 S.W.3d at 677-78 (emphasis added) (citation and footnote omitted).

Later, in Brown, the Court of Criminal Appeals cited this paragraph in a discussion regarding an applicant’s “entitlement” to a hearing on a Herrera claim.

In Ex parte Franklin, this Court held that, before a habeas applicant is entitled to a heating, the applicant must make a claim that, if true, establishes affirmative evidence of his innocence. Then, at the hearing, the trial judge assesses the witnesses’ credibility, examines the “newly discovered evidence,” and determines whether that “new” evidence, when balanced against the “old” inculpatory evidence, unquestionably establishes the applicant’s innocence. The habeas judge then sets out findings of fact and conclusions of law, and he makes a recommendation to this Court. Upon submission to this Court, we review the factual findings with deference because the habeas judge is in the best position to make credibility judgments. Even though deference is the prescribed standard, we are not bound by the habe-as judge’s findings, conclusions, or recommendations when they are not supported by the record.

Brown, 205 S.W.3d at 546 (emphasis added) (footnotes omitted).

It is not this Court’s place to second guess the Court of Criminal Appeals. Nevertheless, it does not appear that that court actually subscribes to the principle that a habeas applicant is automatically entitled to a hearing if he produces affirmative evidence of innocence. For example, on May 19, 2010, the Court addressed a habeas application in which the applicant alleged ineffective-assistance claims and a claim “that he is actually innocent because the complainant recanted.” See Ex parte Culpepper, No. WR-66,569-03, 2010 WL 2006749, *1 (Tex.Crim.App. May 19, 2010) (per curiam) (not designated for publication). The Court remanded the matter to the trial court for further proceedings, but did not require the trial court to conduct a hearing.

Applicant has alleged facts that, if true, might entitle him to relief. In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, [169 Tex.Crim. 367] 334 S.W.2d 294, 294 (1960), the trial court is the appropriate forum for findings of fact. The trial court shall order Applicant’s trial counsel to respond to Applicant’s claim of ineffective assistance of counsel. The trial court may use any means set out in Tex.Code Crim. Proc. art. 11.07, § 3(d).
If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If he is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent him at the hearing.
The trial court shall first make findings of fact as to: (1) whether the complainant recanted and, if so, whether her recantation is credible; (2) whether the State made a plea offer of ten years and, if so, whether that offer was timely conveyed to Applicant; and (3) whether counsel investigated the complainant’s allegations. The trial court shall then make conclusions of law as to whether counsel was deficient and, if so, whether his deficient performance prejudiced Applicant. Finally, the trial court shall make conclusions of law as to whether Applicant has established that he is actually innocent. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant’s claims for habeas corpus relief.

Id. at *1 (emphasis added) (citations omitted).

Therefore, we hold that an evidentiary-hearing is not required under article 11.072 for a Herrera claim supported by newly discovered, affirmative evidence of innocence if the trial judge before whom the habeas application is pending also presided over the applicant’s trial.

Conclusion

As with article 11.07, the legislature invested trial courts with broad discretion with regard to the means by which controverted fact issues may be resolved in habe-as proceedings under article 11.072. We infer that the legislature approved of the manner in which the Court of Criminal Appeals and other courts have construed this discretion under article 11.07 when the legislature chose to employ similar language in article 11.072. See Cummins, 169 S.W.3d at 757 (“because the language of articles 11.07 and 11.072 are very similar, we believe that the legislature intended for article 11.072 applications to be treated much like applications submitted under article 11.07”); see also Medrano, 67 S.W.3d at 902. Therefore, we hold that no evidentiary hearing is required by article 11.072 to resolve controverted facts if the trial judge before whom the habeas application is pending also presided over the applicant’s trial. See Cummins, 169 S.W.3d at 757; see also Davila, 530 S.W.2d at 545; Banister, 2009 WL 1160966, at *1; J.W.A., 2005 WL 2574024, at *4.

Here, the trial court considered Gonzalez’s application, the State’s answer, the court’s records, and the court’s personal recollection before making its findings of fact. Nothing more is required.

We overrule Gonzalez’s sole issue and affirm the order denying his habeas application.

      . Article 11.072 provides "procedures for an application for a writ of habeas corpus in a felony or misdemeanor case in which the applicant seeks relief from an order or a judgment of conviction ordering community supervision." Tex.Code Crim. Proc. Ann. art. 11.072, § 1 (Vernon 2005).

      . Article 11.07 provides procedures for a ha-beas application following a felony conviction in which the applicant received a prison sentence but not the death penalty. See id. art. 11.07, § 1 (Vernon Supp.2009); Ex parte Brown, 662 S.W.2d 3, 4 (Tex.Crim.App.1983) (per curiam).

      . The Court of Criminal Appeals recognizes two types of "innocence” claims: (1) a Herrera claim, which is "a substantive claim in which applicant asserts his bare claim of innocence based solely on newly discovered evidence”; and (2) a Schlup claim, which "is a procedural claim in which applicant's claim of innocence does not provide a basis for relief, but is tied to a showing of constitutional error at trial.” Ex parte Franklin, 72 S.W.3d 671, 675 (Tex.Crim.App.2002) (citing Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)) (other citations omitted). The recantation of a witness raises a Herrera claim. See id. at 678 n. 7.

      . The Beaumont Court expressly left open "the question of whether a habeas court is required to have a hearing when the habeas court has personal knowledge of the prior trial proceedings.” Ex parte Franklin, 310 S.W.3d 918, 923 n. 5 (Tex.App.-Beaumont 2010, no pet.). The court distinguished the Fort Worth Court's decision in Cummins because the applicant in Cummins raised an ineffective-assistance claim rather than a Herrera claim. See id. at 922-23.

      . The Franklin case decided by the Court of Criminal Appeals arose from the conviction of Brian Edward Franklin for aggravated sexual assault of a child in Tarrant County, while the Franklin case decided by the Beaumont Court of Appeals arose from the conviction of Tracy Franklin for aggravated sexual assault of a child in Jefferson County.


author: JIM R. WRIGHT, Chief Justice.

text:
    Michael Lynn JOHNSON, Appellant, v. STATE of Texas, Appellee.
    No. 11-10-00111-CR.
    Court of Appeals of Texas, Eastland.
    Aug. 12, 2010.
    Rehearing Overruled Sept. 9, 2010.

      Stan Brown, Abilene, for appellant.
    Michael E. Fouts, District Attorney, Haskell, for appellee.
    Panel consists of: WRIGHT, C.J., McCALL, J„ and STRANGE, J.
   OPINION

JIM R. WRIGHT, Chief Justice.

The jury convicted Michael Lynn Johnson of possession of a controlled substance, and the trial court assessed his punishment at two years confinement in a state jail facility and a $3,000 fine. The trial court suspended the imposition of the confinement portion of the sentence and placed appellant on community supervision for four years. We affirm.

Randy Shotts, formerly with the Stamford Police Department, testified that he stopped appellant for failure to stop at a stop sign. Officer Nicholas Saginaw overheard the stop on the radio. While Officer Shotts was running a check on appellant’s driver’s license, Officer Saginaw arrived at the scene with his drug-detection dog. Officer Saginaw had the dog conduct an open air search around the vehicle, and the dog alerted on the driver’s side door of the vehicle. Officer Saginaw testified that he searched the vehicle and found an “open alcohol container, a rock of crack cocaine, and a spoon that tested positive for the presence of cocaine.”

In his sole issue on appeal, appellant complains that the trial court erred in denying his motion to suppress. In reviewing a trial court’s ruling on a motion to suppress, appellate courts must give great deference to the trial court’s findings of historical facts as long as the record supports the findings. Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App.1997). Because the trial court is the exclusive fact-finder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court’s ruling. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000). We also give deference to the trial court’s rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 87. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court’s actions de novo. Id.

A law enforcement officer may lawfully stop a motorist who commits a traffic violation. Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App.1992); Haas v. State, 172 S.W.3d 42, 50 (Tex.App.-Waco 2005, pet. ref'd). In general, the decision to stop an automobile is reasonable when an officer has probable cause to believe that a traffic violation has occurred. Walter v. State, 28 S.W.3d 538, 542 (Tex.Crim.App.2000); Haas, 172 S.W.3d at 50. During a routine traffic stop, an officer may detain an individual to check for outstanding warrants. Kothe v. State, 152 S.W.3d 54, 63 (Tex.Crim.App.2004); Parker v. State, 297 S.W.3d 803, 809 (Tex.App.-Eastland 2009, pet. ref'd). An officer may also request a driver’s license, liability insurance information, vehicle ownership information, the driver’s destination, and the purpose of the trip. Parker, 297 S.W.3d at 809; Haas, 172 S.W.3d at 50. While the' officer is awaiting a computer warrant check, questioning about matters unrelated to the initial traffic stop does not violate U.S. Const. amend. IV because such questioning does not extend the duration of an initial valid stop. Parker, 297 S.W.3d at 809.

In Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005), the Supreme Court considered whether the Fourth Amendment requires reasonable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop. The Court held that “[a] dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.” Caballes, 543 U.S. at 410, 125 S.Ct. 834. Appellant specifically argues that Article I, section 9 of the Texas Constitution provides greater protection than the Fourth Amendment and requires reasonable suspicion.

Appellant cites Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991), which held that Texas courts may find that defendants have greater rights under the Texas Constitution than they have under the Supreme Court’s interpretation of the United States Constitution. We are mindful, however, of the court’s admonition in Johnson v. State, 912 S.W.2d 227, 233 (Tex.Crim.App.1995), that, although Texas courts can hold that defendants have greater rights under the Texas Constitution, this does not mean that Texas courts should do so. State v. Oages, 227 S.W.3d 397, 400 (Tex.App.-Eastland 2007, pet. ref'd).

In finding that a canine sniff during a valid traffic stop does not violate the Fourth Amendment, the Court in Caballes noted that the canine sniff is sui generis because it discloses only the presence or absence of narcotics and does not constitute a search within the meaning of the Fourth Amendment, citing United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). Likewise, a canine sniff is not a search under Article I, section 9 of the Texas Constitution. Hill v. State, 951 S.W.2d 244, 250 (Tex.App.Houston [14th Dist.] 1997, no pet.). A plain reading and comparison of the language of the Fourth Amendment and of Article I, section 9 reveals no substantive difference. Johnson, 912 S.W.2d at 232. We hold that a canine sniff during a valid traffic stop violates neither the Fourth Amendment nor Article I, section 9 of the Texas Constitution. We overrule appellant’s sole issue on appeal.

The judgment of the trial court is affirmed.