author: Opinion by: STEVEN C. HILBIG, Justice.

text:
    Richard JETT, Appellant, v. The STATE of Texas, Appellee.
    No. 04-08-00754-CR.
    Court of Appeals of Texas, San Antonio.
    May 12, 2010.
    Rehearing Overruled June 2, 2010.

      Angela J. Moore, Chief Public Defender, San Antonio, TX, for Appellant.

      Mary Beth Welsh, Assistant Criminal District Attorney, San Antonio, TX, for Appellee.
    Sitting: KAREN ANGELINI, Justice, STEVEN C. HILBIG, Justice, and MARIALYN BARNARD, Justice.
   OPINION

Opinion by: STEVEN C. HILBIG, Justice.

Richard Jett was convicted of murder and sentenced to ninety-nine years in prison. Jett appeals the judgment, complaining the evidence is factually insufficient to support the jury’s verdict and the trial court erred by conducting voir dire while he was absent from the courtroom, compelling his presence before the jury during trial, and admitting autopsy photographs of the victim. We affirm the judgment.

Factual BackgRound

On Wednesday, June 14, 2006, Arthur Daniels discovered the body of his father, Homer Daniels, at Homer’s residence. Arthur called the police, and San Antonio Police Department Detective Jimmy Will-ingham was one of the officers who went to the crime scene.

Detective Willingham testified there was no sign of forced entry into the house. He saw the victim’s body on the living room floor, and testified the body was in the early state of decomposition. Detective Willingham observed the victim had lacerations to his face, a stab wound to the left side of the neck, blunt force trauma on his forehead, and defensive wounds on his hands. He saw blood on the driveway, sidewalk, and front porch, blood around a light switch in the garage, cast-off blood on the ceiling in the room where the victim was found, and blood near the kitchen sink. Detective Willingham told the jury that it is common for an attacker who uses a knife to repeatedly stab a victim to sustain injuries to his hands and fingers. Based on his experience, the detective believed the blood near the sink indicated the attacker washed his hands after the murder. Detective Willingham testified the blood around the light switch in the garage indicated that a person was “fumbling” for the light switch. He also believed the blood near the light switch and the sink belonged to the attacker because, given the nature of the victim’s injuries, it was highly unlikely the victim would have been able to move from where the attack occurred.

Detective Willingham learned from Arthur that the victim’s car was missing. While he was still at the murder scene, the detective received information the car had been found in a Wendy’s parking lot. When Detective Willingham arrived at the parking lot, he saw the car was parked facing an apartment complex. There was blood on the gear shift, steering wheel, and on the exterior of the car on the driver’s side. Detective Willingham testified that, based on the position of the car in relation to the restaurant and the apartment complex, he believed the driver walked to the apartment complex. However, because it was dark, he was unable to discover any blood trail leading away from the vehicle. The detective later learned that appellant’s sister lived in the complex.

The police developed information that led them to Alona Woods and appellant. Detective Willingham questioned Woods, who was described as Jett’s wife. While doing so, he noticed she did not have any cuts to her hands. He also learned that appellant had called Woods from Daniels’s house on the evening of June 12, 2006. Detective Willingham and San Antonio Police Department Detective Tim Angelí interviewed Jett, who was in custody for an unrelated misdemeanor offense, on June 22. The detectives testified Jett had cuts to his hands, some of which they described as being deep. In a taped interview, which was played for the jury, Jett initially denied being at Daniels’s house on the evening of June 12, 2006. However, he later admitted being there, and said he and Daniels were the victims of a “home invasion.” Jett stated two masked men entered the house through an unlocked door, and one of them had a pistol. One of the men asked Daniels for money. When Daniels denied having any money, the man broke a beer bottle over Daniels’s head. Jett said the other man got a knife from the kitchen and lunged at him with the knife. Jett claimed he deflected the attack by grabbing the knife blade, cutting his hands in the process. Jett told the detectives the men struck Daniels in the head with another beer bottle and then stabbed him. They then forced Jett to use Daniels’s keys to unlock the garage door, but then ordered him to close and lock it again. Jett claimed he never entered the garage. According to Jett, the man with the knife threw it into a neighbor’s yard and then the men forced him to drive to the north side of San Antonio. He claimed he drove into a parking lot of a Wendy’s restaurant on Fredericksburg at the attackers’ directions. Jett said he jumped from the car and ran to his sister’s apartment, which was next to the Wendy’s. Jett had no explanation for why the attackers directed him to that particular parking lot. Jett told the detectives he did not call the police because he was afraid the authorities would think he committed the crime.

Detective Angelí testified he did not entirely believe the story Jett told them in the interview. For example, Jett stated that, although he opened the garage door, neither he nor the alleged attackers went into the garage. However, blood the detective believed belonged to the attacker was found in the garage. Detective Angelí also interviewed Jett’s sister, Rosa Linda Medina, and learned Jett had told her an entirely different story about how he was injured.

Rosa Linda Medina testified Jett came to her apartment late in the evening of June 12, 2006. Her apartment complex was located next to the Wendy’s on Fred-ericksburg Road. Medina told the jury that Jett’s hands were dripping blood and he asked for her help. Jett told her that he had been walking down the street when he was attacked by “two black guys.”

Roxanne Guerra testified she lived at the apartment complex next to the Wendy’s. A friend dropped her off at the corner after Guerra got off work in the early morning hours of June 13, 2006. Guerra told the jury that while she was still in her friend’s truck, she saw a Neon drive into the lot and park. The people in the Neon stayed inside the car until Guerra walked past, on the way to her apartment. When Guerra heard the car doors open and close and the sound of footsteps, she turned around. Guerra testified she saw three or four people who had gotten out of the Neon walking behind her. She did not recognize them and thought the men appeared to be younger and Hispanic, although she was unsure of her description.

Alona Woods testified at trial that she lived with Jett in June 2006, and he had been her boyfriend for over five years. She testified she had known Daniels for about ten years, and that he had helped her over the years if she needed a ride or a place to stay. Woods testified that on June 12, 2006, she and Jett had been evicted from Jett’s apartment. They drank heavily and had an argument. They parted and Woods later went to stay with a friend, Harold Gardner; Woods did not know what Jett planned to do. When Woods arrived at Gardner’s house, she noticed that several calls had been made to Gardner’s telephone from Daniels’s house. Woods testified she returned the call and spoke to Homer Daniels. She said that while they were talking, she could hear Jett screaming in the background.

Woods testified she called Daniels the next day, on June 13, but nobody answered the telephone. She said she later went to Daniels’s house, and when nobody answered the door, she walked around to the back door. She testified she found a steak knife in the grass near the air conditioner. She wrapped paper around the knife handle, picked it up, and threw it into the neighbor’s yard. Woods told the jury that Jett had some mental health issues, and testified she thought perhaps Jett had hurt himself with the knife and Daniels had taken him to the hospital. She wanted to get rid of the knife so Jett could not injure himself with it. Woods testified she left the house without going inside. When she learned about the murder the following day, she called Daniels’s son and told him about the knife.

Woods told the jury that after the body was discovered, Jett called her on the phone and told her that he had done something “really bad,” but he did not tell her what it was. Woods also testified Jett later wrote her several letters asking her “to tell those people” Jett and Woods were together “at the time,” presumably referring to the time of the murder. Woods testified she destroyed the letters.

Jett testified at trial, and told the jury that he met the victim through Woods. Jett said that after he was evicted, Daniels agreed to allow Jett to store his property at Daniels’s house. Jett told the jury that Woods had been at Daniels’s house until just before the attack. Jett testified he had been drinking and that Woods spiked his beer. After Woods left, two men wearing ski masks rushed into the house through the unlocked front door and announced, “This is a robbery!” However, Jett told the jury he recognized the men by their voices as being his nephew, David Medina, and another man named Richard Holenman. He explained he had not told the detectives who the men were because he was protecting his nephew.

Jett testified that Holenman hit Daniels with a beer bottle when Daniels resisted. Then Medina retrieved a knife from a coffee table and attacked both Jett and Daniels with the knife. Jett said he deflected the attack by grabbing the blade. Medina then stabbed Daniels several times in the head. Jett testified that the men then directed him at gunpoint to the various places in the house and garage in an attempt to find money. Then they had Jett drive them in Daniel’s car to the north side of San Antonio. Jett testified he knew Holenman was living at a motel on Freder-icksburg Road. Although Holenman instructed him to pull into the parking lot of the motel, Jett testified he drove another block to the Wendy’s restaurant, and pulled into the parking lot. He testified he immediately jumped out of the car and ran to his sister’s apartment.

Kimberly Lander, a forensic scientist with the Bexar County crime lab, testified about the results of her DNA analysis on various items of evidence. Both Daniels’s and Jett’s DNA profile were found in the blood on the handle of the knife. Daniels’s DNA profile was also discovered in the blood found on the blade of the knife, but the analysis was inconclusive as to Jett. Lander testified Jett’s DNA profile was found in blood on the front door, the front porch stairs, a paper towel next to the kitchen sink, the exterior door knob on the rear door of the house, the victim’s wallet and driver’s license, and inside the back of the garage. She testified that Daniels was excluded as a donor of the blood found outside the house. Lander told the jury that the probability of someone else having the same DNA profile as Jett was one in 326 trillion.

Factual Sufficiency

Jett contends the evidence is factually insufficient to support the jury’s verdict. When considering a factual sufficiency challenge, we look at the evidence in a neutral light giving almost complete deference to the jury’s determinations of credibility. Lancon v. State, 258 S.W.3d 699, 705 (Tex.Crim.App.2008). We reverse only if the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust or if the evidence supporting the verdict is outweighed by the great weight and preponderance of the available evidence. Id. “Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007). A case based on circumstantial evidence is reviewed on appeal for factual sufficiency using the same standard as that used in a direct evidence case. King v. State, 29 S.W.3d 556, 565 (Tex.Crim.App.2000).

Jett argues the evidence is factually insufficient because the evidence demonstrated several people had access to Daniels’s house between the time Daniels was last seen alive and the discovery of the body. He also argues Roxanne Guerra’s testimony that she saw three or four men getting out of Daniels’s car contradicts the State’s theory of what occurred. He concludes the evidence is too weak to link him to the murder. We disagree.

Jett’s own testimony placed him at Daniels’s house at the time of the murder. Jett’s blood was found on the handle of the murder weapon and in various places in and around the residence, including on the victim’s wallet and driver’s license, and Jett admittedly drove Daniels’s car to the Wendy’s parking lot. Although Jett’s explanation of the events accounts for much of the evidence linking him to the murder, the jury was the sole judge of Jett’s credibility and had the discretion to disbelieve his testimony. Jett’s credibility was called into question with evidence he had prior felony convictions for aggravated robbery and felony theft; evidence Jett told his sister an entirely different version of what occurred; evidence Jett told detectives a less embellished version of the story that differed in significant details from his testimony at trial; and Alona Woods’s testimony that after the murder Jett told her he had done “a bad thing” and asked her to lie to authorities about his whereabouts on the night of the murder. The evidence supporting the verdict is not so weak as to render the verdict manifestly unfair or unjust, nor is it against the great weight and preponderance of the evidence.

Defendant’s Absence DüRing Voir Dire

Jett asserts the trial court violated article 33.03 of the Texas Code of Criminal Procedure by conducting voir dire while Jett was absent from the courtroom. Article 33.03 provides in part:

In all prosecutions for felonies, the defendant must be personally present at the trial ...; provided, however, that in all cases, when the defendant voluntarily absents himself after pleading to the indictment or information, or after the jury has been selected when the trial is before a jury, the trial may proceed to its conclusion.

Tex.Code Crim. Proc. Ann. art. 33.03 (Vernon 2006). The State concedes error, but argues the error was harmless.

Background

On Monday, September 15, 2008, the day voir dire was scheduled to begin, Jett was brought from the Bexar County Jail and placed in a holding cell in the courts building. While waiting to appear in court, he took off the civilian clothing he had been provided for trial and put them in the toilet. When the bailiffs attempted to enter the cell, Jet swung the wet clothes at them. Jett told the bailiffs he would assault his attorneys if taken to court. The bailiffs used a taser to obtain compliance with their orders and eventually produced Jett in the courtroom. Jett appeared before the court wearing only his underwear and was restrained in leg irons and handcuffs. The judge admonished Jett that he would be removed from the courtroom and trial would proceed without him if he was unable to “behave properly” in front of the jury. Jett refused to answer any of the judge’s questions. The court announced it would conduct a pretrial hearing later in the week and postponed voir dire until the following Monday, September 22.

Jett appeared in the trial court twice more that week. Initially, Jett apologized to the court for his earlier behavior. After the court ruled on some pretrial motions, Jett requested to represent himself at trial. The court extensively admonished Jett about the dangers of self-representation and ordered an evaluation of whether Jett’s mental health issues would impair his ability to adequately represent himself. The court stated it would decide the issue the following Monday, before voir dire. The judge asked Jett if he could “come to court on Monday and act appropriately.” Jett responded that he could not answer the question. Because Jett had previously told the court he had hepatitis C and was HIV positive, and bailiffs had advised the court that Jett had a history of spitting, the judge stated Jett should' wear a mask when he came to court.

On Monday, September 22, Jett was brought into the courtroom confined to a wheelchair because he refused to get dressed. Jett was handcuffed, shackled, and wore a mask. He had writing on his arms. One of the bailiffs told the judge he had to “forcibly dress” Jett and then Jett urinated in his clothes. The trial court noted that during the approximately forty-five minutes Jett was before him, Jett kept his head hanging down, made no eye contact with anyone, and was nonresponsive to questions. After a recess, one of the bailiffs testified that once Jett had been taken back to the holding cell, away from the judge and his lawyers, he lifted his head, opened his eyes, and interacted with the bailiffs. The trial court denied Jett’s request to represent himself, and announced jury selection would begin the next day.

The following morning, the bailiff reported to the trial court that while in the holding cell, Jett removed his clothes, put the clothes in the toilet, and covered himself with a white powder. When Jett was brought into the court, he told the court he did not want to be present for jury selection. He then announced there was a “contract” on the lives of his two lawyers, and they would be executed immediately unless they withdrew or were removed from the case. The court asked Jett if he would act in an orderly manner and behave during the proceedings. Jett responded he would not. The court warned Jett that he could be forced to appear at trial in jail clothes if he continued to soil his civilian clothes. Jett responded, “You got to do what you got to do, and I’m going to do what I got to do.” Jett told the judge he did not intend to sit in the courtroom during jury selection and assist his lawyers in picking a jury, and said he could not “stand these bitch lawyers.” Then one of Jett’s lawyers attempted to place a plea offer on the record, and asked Jett if he understood the offer. Jett responded “f*ck you, man” and “F*ck both of you bitches, man.” Jett was removed from the courtroom and jury selection began.

During the initial stages of voir dire, the judge instructed the panel about Jett’s absence:

This is kind of an unusual situation. I won’t comment on it too much other than to tell you at this point the defendant has voluntarily absented himself from the proceedings. That is, he does not want to be in the courtroom while the jury is being picked. He does not want to be in the courtroom while the case is being tried. And other than having to bring him in for some procedural matters or identification maters during the course of the trial, you may not ever see him in the courtroom. Beyond that, I really don’t want to comment on that. But he’s not present in the courtroom today....

After the State conducted its general voir dire, the court had Jett brought back into the courtroom. The judge asked Jett if it was still his desire not to be involved in voir dire. Jett responded affirmatively and told the judge he would not behave appropriately if he were forced to remain in the courtroom. Jett again left the courtroom.

The defense attorneys asked the panel what they thought about Jett’s absence. Several panel members suggested it was due to his guilt and that Jett did not want to “face the music.” Eleven panel members indicated they agreed with this sentiment. However, when questioned individually, four of them stated they could set aside any concern about Jett’s absence or would not hold it against Jett. These four eventually served on the jury.

After voir dire was completed, but before any challenges for cause were made to the court, the trial judge once again had Jett brought into court. The judge asked Jett if he wanted to participate in selecting the jury. Jett kept his head hung down and did not respond to the judge’s question. Jett was removed from the courtroom and the parties completed jury selection.

Invited Error Doctrine

The State contends Jett induced the trial judge to remove him from the court during voir dire by engaging in a pattern of disruptive behavior. Although the State does not expressly invoke the invited error doctrine, we believe it properly applies to the facts before us. “The doctrine of invited error is properly thought of, not as a species of waiver, but as estoppel.” Prystash v. State, 3 S.W.3d 522, 531 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000). “[T]he law of invited error estops a party from making an appellate error of an action it induced.” Id. Here, the trial court was faced with the choice of forcing Jett to attend voir dire or removing him from the courtroom. Because Jett had indicated he would disrupt the proceedings in a manner similar to his past conduct, the court reasonably concluded the only way voir dire could proceed without significant disruption was to remove him. Under the particular facts of this case, we hold Jett invited any error and he is estopped to claim his absence from the courtroom during voir dire violated article 33.03. See Smith v. State, 51 S.W.3d 806, 810 (Tex.App.-Texarkana 2001, no pet.) (declining to hold article 33.03 is violated when defendant refuses to remain in courtroom for voir dire and indicates he will disrupt proceedings if forced to do so, and holding error, if any, was harmless).

Article 33.03 Harm Analysis

We further conclude any violation of article 33.03 in this case was harmless. Jett argues only statutory, nonconstitutional error. Accordingly, we disregard any error that did not affect Jett’s substantial rights. See Tex.R.App. P. 44.2(b). A defendant’s substantial rights are affected when the error had a substantial and injurious effect or influence on the jury’s verdict. Id. If the error had no or only a slight influence on the verdict, the error is harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998). In making this determination, we consider the entire record, including testimony, physical evidence, jury instructions, the State’s theories and any defensive theories, closing arguments, and voir dire if applicable. Bagheri v. State, 119 S.W.3d 755, 763 (Tex.Crim.App.2003).

Jett argues his substantial rights were affected because he had previously met two of the petit jurors. In a letter placed into the record after testimony began, Jett stated he had met one of the jurors at a record store and on another occasion bought the juror beers at a bar. Jett stated he met the second juror at a church bible study, where he learned the juror had been a victim of crime and had a friend who was murdered. Nothing in the record identifies the jurors to whom Jett was referring and no juror ever reported having prior contact with Jett. Jett did not provide any further facts or any argument that his alleged previous interactions with the jurors caused them to be unfair or impartial.

A review of the remaining record reveals that any error in proceeding with voir dire in Jett’s absence had no more than slight effect on the jury’s verdict. Defense counsel discussed possible reasons for Jett’s absence with the panel during voir dire. Although some of the jurors initially indicated they might hold Jett’s absence against him, each of them later stated Jett’s absence would not be a factor in their verdict. The record reflects Jett was not in the courtroom during much of his trial, thus Jett’s absence during voir dire was not extraordinary. The harm occasioned by a violation of article 83.03 would ordinarily be depriving the defendant the opportunity for meaningful involvement in jury selection. However, in this case, Jett was given the opportunity to participate and expressly told the trial court he would not assist his lawyers in picking a jury, even if he were forced to be present. Finally, the State did not refer to Jett’s absence during the presentation of the evidence or closing arguments. In light of the record as a whole, any error did not have more than slight effect upon the jury’s verdict.

Forcing Dependant’s Presence at Trial

Jett next complains the trial court erred by forcing him to appear before the jury confined in a wheelchair and in “an agitated and distressed state” so he could be identified by witnesses. Jett casts his argument as if his appearance were a piece of evidence, and argues his physical appearance and conduct before the jury caused him unfair prejudice that substantially outweighed the probative value of the evidence. See Tex.R. Evid. 403 (relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice). The State contends it needed the witnesses to make in-person identifications of Jett because his appearance had changed since his arrest. It further argues the trial court was justified in having Jett restrained because of Jett’s persistent disruptive behavior. Jett counters that the four witnesses who identified him — the two detectives who took Jett’s statements, Woods (Jett’s girlfriend of five years), and Jett’s sister Rosa Linda Medina — were all familiar with him and could have credibly identified him from a photograph.

We review a trial court’s admission of evidence over a rule 403 objection for abuse of discretion. State v. Mechler, 153 S.W.3d 435, 439 (Tex.Crim.App.2005). A court abuses its discretion when its decision lies outside the zone of reasonable disagreement. McCarty v. State, 257 S.W.3d 238, 239 (Tex.Crim.App.2008). In order to preserve any error, “an objection must be made each time inadmissible evidence is offered unless the complaining party obtains a running objection or obtains a ruling on his complaint in a hearing outside the presence of the jury.” Lopez v. State, 253 S.W.3d 680, 684 (Tex.Crim.App.2008).

On the first day of testimony, Jett was brought into the courtroom so Detective Willingham could identify him. Before Jett was brought in, his attorney objected to the identification because the probative value of conducting the in-person identification was outweighed by the prejudicial effect Jett’s appearance in his current state would have on the jury. Jett’s attorney stated “this witness” could identify Jett by other means, such as the mug shot taken the day Jett was arrested. The trial court overruled the objection. Although Jett initially preserved error by objecting and obtaining a ruling before Detective Willingham’s identification, Jett subsequently waived any error by failing to object when he was brought into court to be identified by witnesses on three separate occasions the next day. Moreover, Jett voluntarily appeared in court for all of the proceedings on the third and fifth days of testimony. On each of those days, Jett was again in handcuffs, restrained in a wheelchair, wearing jail clothes, and wearing a mask. Jett’s attorneys did not make a rule 403 objection to Jett’s appearance before the jury on any of these occasions. We hold Jett did not preserve his error on this point because he failed to object to the “evidence” each time it was presented to the jury.

Improper Admission of Autopsy Photographs

Jett next complains the trial court abused its discretion in admitting thirty-five autopsy photographs. Jett argues the autopsy photographs were cumulative because the jury had already seen pictures and a video of the crime scene, which included close-ups of several wounds. Jett contends the photographs depict the same wounds as the video, but taken from different angles and distances. He argues the only purpose of the photographs was to inflame the jury and persuade it to convict on an improper basis, and their admission violated rule 403 of the Texas Rules of Evidence. In determining whether the probative value of photographs is substantially outweighed by the danger of unfair prejudice, the court may consider a variety of factors, including: “the number of exhibits offered, their gruesomeness, their detail, their size, whether they are in color or black-and-white, whether they are close-up, whether the body depicted is clothed or naked, the availability of other means of proof, and other circumstances unique to the individual case.” Williams v. State, 301 S.W.3d 675, 690 (Tex.Crim.App.2009), cert. denied, - U.S. -, 130 S.Ct. 3411, 177 L.E.2d 326 (2010). “Autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself.” Id. A photograph is also “generally admissible if verbal testimony about the matters depicted in the photograph is also admissible.” Paredes v. State, 129 S.W.3d 530, 539 (Tex.Crim.App.2004).

Here, thirty-two photographs show the eleven stab wounds and fifty-two other cut wounds inflicted on Daniels. Three pictures show Daniels’s dentures, which appear to have been knocked from his mouth during the attack. The dentures show damage resulting from the force of the attack. None of the photographs show any mutilation caused by the autopsy. Jett argued exhibit 150 was especially gruesome. The State countered that exhibit 150 was the best picture showing a wound that went through the lower lip and the “gigantic” laceration above the victim’s eyebrow. No other photograph showed that laceration. The medical examiner testified she had taken many more autopsy photographs and that she had selected the pictures that best showed the injuries. The medical examiner testified she took all the autopsy photographs except exhibit 150, which she described as an “identification” photograph taken by staff in her office. Many of the photographs show close-ups of injuries and were used by the medical examiner during her testimony to describe the wounds inflicted upon the victim.

The trial court did not abuse its discretion in admitting the photographs. The medical examiner’s testimony about the wounds was relevant and the pictures were merely a visual representation of that testimony. The wounds were also described in the autopsy report, which was admitted into evidence without objection. Jett’s argument is that the results of the crime were horrific, but the result of the crime is the very issue that is relevant and probative:

Appellant must realize that it is precisely the quality which we describe as “powerful” which gives rise to his arguments that the photographs are prejudi-cially inflammatory. But when the power of the visible evidence emanates from nothing more than what the defendant has himself done we cannot hold that the trial court has abused its discretion merely because it admitted the evidence. A trial court does not err merely because it admits into evidence photographs which are gruesome.

Id. at 540 (quoting Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Crim.App.1995)). Jett’s issue concerning the photographs is overruled.

Conclusion

The judgment of the trial court is affirmed.

      . The medical examiner testified the victim suffered eight stab wounds to his head, seven of which would have been fatal. The victim also suffered three stab wound to the chest— all potentially fatal — and fifty-two other cuts to his body, thirty of which were to the head and neck.

      . Other testimony established this vehicle belonged to the victim.

      . The knife was subsequently recovered from the neighbor’s yard and placed in evidence at trial. Dr. Jennifer Rulon, a Bexar County medical examiner, testified the knife was capable of inflicting the type wounds she observed on the victim.

      . Jett testified Woods left the front door unlocked to facilitate the robbery. He also testified Woods told the attackers the victim kept money in the garage. Jett told the jury that the robbery was “masterminded" by the victim's son.

      . We note that Guerra’s testimony also contradicts Jett’s story that he jumped out of the car and ran to his sister's apartment as soon as he pulled into the parking lot.

      . These assertions were later verified by Dr. John Tennison, who reviewed Jett’s medical records while evaluating Jett’s competence to represent himself.

      . At points in the record the mask is described as a "spit mask.” No further description appears in the record.

      . The record does not contain any pictures of Jett or a physical description of Jett's appearance. From comments made by the trial participants, we discern Jett was confined to a chair that had wheels and straps binding at least his chest and arms to the chair, wore jail clothing, was handcuffed and shackled, and wore a mask that covered his mouth, and at times, his nose.

      . Jett does not argue his appearance before the jury shackled, in jail clothing, and confined to a wheelchair violated any of his constitutional rights.

      . In a colloquy between Jett and the trial judge, Jett asserted that testifying from the chair violated his due process. However, his attorneys did not object on this ground.

      . Exhibit 150 shows Daniels's face and an identification number laying across his chest. Numerous injuries appear on his face and his tongue appears to be swollen and protruding from his mouth.


source: Caselaw Access Project

author: Opinion by: MARIALYN BARNARD, Justice.

license: Public Domain

text:
    Kevin BLEYS, Appellant, v. The STATE of Texas, Appellee.
    No. 04-09-00360-CR.
    Court of Appeals of Texas, San Antonio.
    May 12, 2010.

      Michael D. Robbins, Assistant Public Defender, San Antonio, TX, for Appellant.
    Mary Beth Welsh, Assistant Criminal District Attorney, San Antonio, TX, for Appellee.
    Sitting: SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice, MARIALYN BARNARD, Justice.
   OPINION

Opinion by: MARIALYN BARNARD, Justice.

Following a plea of guilty, appellant Kevin Bleys was convicted of aggravated assault with a deadly weapon. The jury sentenced Bleys to sixteen years confinement in the Texas Department of Criminal Justice-Institutional Division. On appeal, Bleys complains the trial court abused its discretion when it waived juvenile jurisdiction and transferred Bleys’s case to adult court. We affirm the trial court’s judgment.

Background

Bexar County Deputy Sheriff Santos Chavarria Jr. was dispatched to the scene of a stabbing. When he arrived, he found a chaotic scene that included neighbors, family members, the victim, and Bleys. The victim, twelve-year-old Mohammad Martinez, was lying face down near a wooded area. Martinez suffered multiple stab wounds and was covered in blood. Deputy Chavarria believed Martinez would likely die. Deputy Chavarria asked Martinez, who was conscious, who had done this to him. Martinez said it was a long story. Martinez was airlifted to the hospital where he underwent emergency surgery. Martinez’s lungs had collapsed, his liver, small intestine, and duodenum were punctured, and his gall bladder had to be removed. He also suffered stab wounds to his right arm that caused nerve damage, two stab wounds to his chest, and one stab wound on his left arm. In all, it appeared Martinez suffered as many as seventeen stab wounds. He remained in the hospital for a month. An expert stated Martinez would have likely died but for the emergency surgery.

When Deputy Chavarria arrived, Bleys was sitting next to Martinez. Bleys was covered in blood and hyperventilating. The deputy asked Bleys what had happened, and Bleys told him he heard screaming in the woods and then saw Martinez come out of the woods limping and bleeding. Deputy Chavarria noticed Bleys had a cut to his finger that was “serrated.” When the deputy went into the woods, he found the foliage disturbed, blood, and a serrated steak knife. Deputy Chavarria believed Bleys might have been involved in the stabbing. Bleys was acting desperate and crazy.

Initially, Martinez continued to proclaim it was a “long story” whenever he was asked what happened. However, after a time, Martinez told his mother Bleys stabbed him. When he testified at trial, Martinez said he and Bleys were good friends even though Bleys was older and taller. According to Martinez, he and Bleys had a third friend, Brian Tolliver. Tolliver was a couple of years older than Martinez, and Bleys was about a year and a half older than Tolliver.

Martinez testified that on the day of the stabbing, he went to Tolliver’s house to say good-bye to Tolliver because Tolliver and his family were going on vacation. Bleys was at Tolliver’s house as well. Martinez said he and Bleys left Tolliver’s house to play basketball at Martinez’s house. Bleys left Martinez’s house, but in a short while he returned and suggested they go into the woods behind Martinez’s house. Martinez said they went further into the woods than they usually did, and when they got to a place where the brush was thick, Martinez decided to go home. Martinez testified he was leading the way back to his house when Bleys knocked him down. Bleys then stabbed him several times. Martinez tried to resist, to scream, but it became increasingly difficult. Martinez said that after the stabbing, Bleys picked him up and tried to strangle him and cut his throat. Bleys panicked, and Martinez, in an attempt to calm Bleys, told Bleys he would tell whatever story Bleys wanted him to tell. At Martinez’s request, Bleys helped him make his way closer to the house.

Bleys apparently gave several stories about the stabbing. He told two neighbors Martinez had fallen on a stick. He told one of those same neighbors a hunter had injured Martinez, but then said he did not really know what happened. Bleys gave three different explanations to an investigator from the Bexar County Sheriffs Department. In each version, Bleys and Martinez entered the woods together, but the story changed each time as to subsequent events.

On the evening of the stabbing, Bleys was brought to the Sheriffs Department by his father. Bleys turned over his bloody clothing. That same evening, in a videotaped interview with the investigator handling the case, William Spaulding, Bleys insisted someone else had injured Martinez. Two days later, Bleys and his father returned to the Sheriffs Department and spoke to a different investigator, Aaron Von Maldau. Bleys’s father told Investigator Von Maldau that Bleys stabbed Martinez and wanted to do the right thing. Investigator Von Maldau called Investigator Spaulding, who was at the hospital interviewing Martinez, and told him Bleys confessed. Investigator Spaulding returned to the Sheriffs Department and took Bleys’s videotaped statement. Bleys confessed during the statement. The investigators subsequently obtained a warrant and arrested Bleys.

Bleys testified at trial. According to Bleys, he had known Tolliver for about ten years. Tolliver introduced Bleys to Martinez approximately two years before the trial. Bleys admitted he got along better with Tolliver than he did with Martinez, but felt his friendship with Tolliver was weakening. Bleys said he believed Martinez was the cause of the growing distance between himself and Tolliver. Bleys admitted that by the day of the stabbing, he had become angry with Martinez, and contradicted himself by stating he thought of Martinez as a friend, but then denying being friends with him or spending much time with him. Bleys testified he decided to kill Martinez because Martinez made some negative remarks about Tolliver, which Bleys did not like. Bleys admitted that after he and Martinez entered the woods, he stabbed Martinez approximately thirteen times. He claimed he stopped because he realized what he was doing was “absolutely crazy.” Bleys told the jury he could not believe he had stabbed Martinez. Bleys stated Martinez told him to calm down and take him back to his house, which he attempted to do, eventually dropping Martinez near the house. Bleys said he apologized to Martinez after the stabbing. Bleys claimed he initially lied about what happened because he was afraid of going to jail.

In addition to testifying on his own behalf, Bleys called Dr. Brian Skop, a forensic psychiatrist, as a witness. Dr. Skop stated he believed Bleys is intelligent, but very shy and socially immature, with an almost pathological attachment to Tolliver. According to Dr. Skop, Bleys saw Martinez as a threat to his relationship with Tolliver, causing him to lose control and attack Martinez.

Bleys, who was sixteen-years-old at the time of the stabbing, was originally under the jurisdiction of the juvenile court system. However, the State subsequently filed an “Original Petition for Waiver of Jurisdiction and Discretionary Transfer to Criminal Court,” asking the juvenile court to waive jurisdiction and transfer the case to the district court. A certification hearing was held, after which the trial court granted the State’s petition, waiving jurisdiction and transferring the case to criminal district court. Bleys was thereafter indicted for aggravated assault with a deadly weapon.

Bleys pled guilty to the jury, which assessed punishment at confinement for sixteen years, implicitly denying his application for community supervision. The trial court entered judgment in accord with Bleys’s plea and the jury’s verdict. Bleys then perfected this appeal.

Analysis

In his sole point of error, Bleys contends the trial court abused its discretion in waiving jurisdiction and transferring his case to adult criminal court. He argues the evidence was factually insufficient to support the trial court’s findings that (1) the procedures, services, and facilities available to the juvenile court were inadequate for Bleys’s rehabilitation, and (2) the welfare of the community required proceedings in criminal district court. Bleys’s entire argument is based on his belief that determinate sentencing was an available option that would have afforded adequate services, procedures, and facilities for his rehabilitation, and protected the community welfare.

“A defendant may appeal an order of a juvenile court certifying the defendant to stand trial as an adult and transferring the defendant to a criminal court under Section 54.02, Family Code.” Tex.Code Crim. Proc. Ann. art. 44.47(a) (Vernon 2006). Such an appeal is permitted only in conjunction with an appeal of a conviction for the offense for which the defendant was transferred to criminal court. Id. art. 44.47(b). An appeal from a certification and transfer order is a criminal matter governed by the Texas Code of Criminal Procedure and the rules of appellate procedure applicable to criminal cases. Id. art. 44.47(c); see also In re M.A.V., 88 S.W.3d 327, 331 n. 2 (Tex.App.-San Antonio 2002, no pet.).

An appellate court reviews a juvenile court’s decision to certify a juvenile defendant as an adult and transfer the proceedings to criminal court under an abuse of discretion standard. State v. Lopez, 196 S.W.3d 872, 874 (Tex.App.-Dallas 2006, pet. ref'd), cert. denied, 549 U.S. 1257, 127 S.Ct. 1380, 167 L.Ed.2d 168 (2007); Faisst v. State, 105 S.W.3d 8, 12 (Tex.App.-Tyler 2003, no pet.). Absent an abuse of discretion, the appellate court will not disturb a trial court’s transfer and certification order. Faisst, 105 S.W.3d at 12 (citing C.M. v. State, 884 S.W.2d 562, 563 (Tex.App.-San Antonio 1994, no writ)). In determining whether the trial court abused its discretion, the reviewing court considers the sufficiency of the evidence. Faisst, 105 S.W.3d at 12. A trial court’s findings of fact are reviewed by the same standards applicable generally to legal and factual sufficiency review in criminal cases. Id. Here, Bleys challenged only the factual sufficiency of the evidence to support the trial court’s findings relating to rehabilitation and community welfare. We will, therefore, consider all of the evidence to determine if the court’s finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. Id. (citing C.M., 884 S.W.2d at 563).

A juvenile court may waive its exclusive jurisdiction and transfer a child to a criminal court if: (1) the child is alleged to have committed a felony; (2) the child was fifteen years of age or older at the time the offense occurred, and the offense allegedly committed is a second or third degree felony, or a state jail felony; (3) no adjudication hearing has been conducted concerning the alleged offense; and (4) after a full investigation and a hearing the juvenile court determines there is probable cause to believe the child committed the offense alleged, and that because of the seriousness of the offense or the child’s background, the welfare of the community requires criminal prosecution. Tex. Fam. Code Ann. § 54.02(a)(1), (2)(B), (3) (Vernon Supp. 2009). To facilitate this decision, the Texas Family Code provides criteria for the court to consider:

(1) whether the alleged offense was against person or property, with greater weight in favor of transfer if the offense was against a person;
(2) the sophistication and maturity of the child;
(3) the record and previous history of the child; and
(4) the prospects of adequate protection of the public and the likelihood of rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.

Id. § 54.02(f). Although the juvenile court must consider each factor, it is not required to find that each factor has been established, nor is it required to give each factor equal weight. Faisst, 105 S.W.3d at 11.

In this case, Bleys challenges only the trial court’s findings that (1) the seriousness of the offense and the child’s background were such that transfer to a criminal district court was necessary for the welfare of the community, and (2) the procedures, services, and facilities currently available to the juvenile court were inadequate for Bleys’s rehabilitation. See Tex. Fam.Code Ann. § 54.02(a)(3), (f)4). In arguing these findings are supported by factually insufficient evidence, Bleys relies solely on the idea that an option was available that would have allowed for his rehabilitation and adequately protected the community — determinate sentencing.

A determinate sentence is one in which a juvenile is initially committed to a term in the custody of the Texas Youth Commission with a possible transfer to the Texas Department of Criminal Justice-Institutional Division. See id. § 54.04(d)(3) (Vernon Supp. 2009). Section 53.045(a) of the Family Code provides that when a child is alleged to have committed certain offenses, including aggravated assault, the prosecutor may refer the petition requesting adjudication as a delinquent to the grand jury. Id. § 53.045(a)(6) (emphasis added). If the grand jury approves the submitted petition by a vote of nine, just as with an indictment, the approval is certified to the juvenile court and entered into the record. Id. § 53.045(b), (d). If the prosecutor refers the petition to the grand jury, the grand jury approves the petition, and the grand jury’s approval is certified to the juvenile court and filed in the juvenile court’s record, the juvenile court may impose a determinate sentence. See Matter of S.J., 977 S.W.2d 147, 149 (Tex.App.-San Antonio 1998, no pet.) (citing sections 53.045(a), (d) and 54.04(d)(3) of the Texas Family Code). However, if the prosecutor does not obtain and file the grand jury’s certification, the juvenile court is without jurisdiction to impose a determinate sentence. Id. (citing section 54.04(d)(2), (3) of the Texas Family Code). Only if all the requirements are met may the court impose a determinate sentence; it is only then that the State’s petition is deemed an indictment for purposes of later transferring the juvenile to Texas Department of Criminal Justice-Institutional Division or the parole board. Matter of S.J., 977 S.W.2d at 149 (citing section 53.045(d)); see also Tex. Hum. Res.Code ANN. § 61.084(a), (c) (Vernon Supp. 2009) (stating that if person is committed to Texas Youth Commission pursuant to determinate sentence under section 54.04(d)(3) of Family Code, Commission may not discharge person from custody, rather it must transfer person to Texas Department of Criminal Justice-Institutional Division for completion of sentence).

Clearly, the decision to refer the petition to the grand jury is at the State’s option, and if the State never refers the petition, the trial court has no jurisdiction to order determinate sentencing. Matter of S.J., 977 S.W.2d at 149 (citing section 54.04(d)(2), (3) of the Texas Family Code). In this case, the State chose not to refer the petition; rather, the State chose to seek a waiver of jurisdiction and transfer to criminal district court, as was its right. Therefore, contrary to Bleys’s assertion, the trial court did not have the option of imposing determinate sentencing so as to provide Bleys with the rehabilitation needed and to protect the community welfare. See id. Moreover, Bleys has not cited any authority to support his suggestion that the juvenile court could somehow force the State to refer its petition for adjudication to the grand jury. The statute clearly gives the State the option of referral without interference from the trial court. See Tex. Fam.Code ANN. § 53.045(a).

Because Bleys’s only argument is that the trial court ignored the option of determinate sentencing, rendering its findings on rehabilitation and community welfare factually insufficient, we must overrule his contention because as demonstrated above, determinate sentencing was not an option available to the trial court. The trial court was, in fact, without jurisdiction to impose a determinate sentence. Accordingly, we overrule Bleys’s point of error and affirm the trial court’s judgment.

      . Yet, Bleys also testified he believed their relationship was weakening because of Tolliver's increasing depression over a girl.

      . The statute also provides the child may be transferred to criminal court if he is fourteen years of age or older and the alleged offense is a capital felony, an aggravated controlled substance felony, or a felony of the first degree. Tex Fam.Code Ann. § 54.02(a)(2)(A). In this case, however, it is undisputed that Bleys was sixteen at the time of the offense, and the offense alleged, aggravated assault, was a second degree felony. See Tex. Penal Code Ann. § 22.02(b) (Vernon Supp. 2009). Accordingly, the applicable portion of the statute is section 54.02(a)(2)(B).


author: RICK STRANGE, Justice.

text:
    UNDERWRITERS AT LLOYDS OF LONDON, Appellant, v. Robert HARRIS, Individually and d/b/a Harris Garage, Appellee.
    No. 11-09-00221-CV.
    Court of Appeals of Texas, Eastland.
    June 3, 2010.

      Paul Wesley Black, Staci Quill Cassidy, Fee Smith Sharp & Vitullo, LLP, Dallas, for appellant.
    Brian L. Gibson, Law Office of Brian L. Gibson, Groesbeck, for appellee.
    Panel consists of WRIGHT, C.J., McCALL, J„ and STRANGE, J.
   OPINION

RICK STRANGE, Justice.

Robert Harris, individually and d/b/a Harris Garage, filed suit against Underwriters at Lloyds of London seeking towing and storage charges and attorney’s fees. The jury found for Harris, and the trial court entered judgment in his favor. We affirm in part and reverse in part.

I. Background Facts

A tractor-trailer owned by Kasse Transportation was involved in a motor vehicle accident. Law enforcement officials asked Harris to tow the vehicle from the accident scene, and he took it to his storage facility. Underwriters is Kasse’s insurer. Harris contacted it and demanded payment of $14,972.50 for towing, storage, and site cleanup fees pursuant to the Texas Vehicle Storage Facility Act. Underwriters paid Kasse’s towing policy limits of $6,000. Harris then filed suit to collect the balance of his invoice. The jury found for Harris, and the trial court entered a judgment awarding him his unpaid towing and storage charges and his attorney’s fees.

II. Issues Presented

Underwriters challenges the trial court’s judgment with two issues. Underwriters contends that the trial court erred by awarding Harris his attorney’s fees and that it erred by awarding Harris both towing and storage fees.

III. Attorney’s Fees

Harris requested a declaratory judgment that Underwriters was liable to him for all unpaid towing and storages charges, and the trial court’s final judgment includes a declaration that insurance carriers are liable for reasonable towing and storage charges pursuant to the Vehicle Storage Facility Act. The trial court also awarded Harris attorney’s fees of $18,387.50 as found by the jury pursuant to Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon 2008). Underwriters contends that Harris is not entitled to attorney’s fees because the declaratory relief he sought was redundant of his Vehicle Storage Facility Act claim. Harris responds that the award is appropriate because the trial court determined his rights under a statute.

We review a trial court’s award of attorney’s fees under the Declaratory Judgment Act for an abuse of discretion. Ridge Oil Co. v. Guinn Invs., Inc., 148 S.W.3d 143, 163 (Tex.2004). The trial court abuses its discretion if its ruling that attorney’s fees were recoverable was arbitrary or unreasonable. Cadle Co. v. Harvey, 46 S.W.3d 282, 289 (Tex.App.-Fort Worth 2001, pet. denied).

The Texas Supreme Court has recently held that being entitled to declaratory relief does not automatically entitle a plaintiff to attorney’s fees. See MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660 (Tex.2009). In MBM Financial, the plaintiff established a breach of contract but it was not entitled to attorney’s fees under Tex. Crv. Prac. & Rem. Code Ann. § 38.001 (Vernon 2008) because it failed to prove any damages. Id. at 666. The plaintiff also obtained a declaratory judgment that it complied with the contract and that the defendant did not. Id. at 670. It argued that this declaratory judgment authorized an attorney’s fee award. The supreme court affirmed the plaintiffs declaratory judgment but found that this did not authorize an attorney’s fee award under the Declaratory Judgment Act. The court reasoned that, if a claimant could recover attorney’s fees under Section 37.009 simply by repleading a breach of contract claim as a declaratory judgment action, this would repeal the American Rule and the limits imposed on fee awards in other statutes. Id. at 669. Because specific statutory provisions prevail over general provisions in statutory construction and the declaratory judgment claim was redundant of the breach of contract claim, the plaintiffs right to recover attorney’s fees was defined by contract law. Because the plaintiff could not recover its attorney’s fees under Section 38.001, it could not recover them under Section 37.009. Id. at 670.

The Vehicle Storage Facility Act provides Harris a specific remedy when he tows or stores a vehicle at the request of law enforcement officials following an accident. For example, Section 2303.155 authorizes storage charges, Section 2303.156 makes lienholders who repossess the vehicle or carriers who pay a claim of total loss on the vehicle responsible for his charges, and Section 2303.157 allows him to dispose of abandoned vehicles. The Act also includes an attorney’s fee provision. Section 2303.301(b) authorizes an award of attorney’s fees when the attorney general prevails in a suit under the Act. But there is no provision authorizing an award of attorney’s fees to private litigants. Because the Act provides Harris a specific remedy but not attorney’s fees and because Harris’s claim for declaratory judgment was redundant of his statutory claim, the trial court abused its discretion when it awarded Harris attorney’s fees. Issue one is sustained.

IV. Actml Damages

Underwriters next argues that the trial court erred by awarding Harris towing and storage charges, contending that Section 2303.156(b) is phrased disjunctively and, therefore, that Harris could recover either his towing or storage charges but not both. Harris disputes this interpretation and contends that the statute uses the word “or” to mean that one of two distinct events must take place to trigger its application and that the legislature intended the Act to facilitate the full reimbursement of companies such as his when they respond to a request by law enforcement officials to tow the vehicle of an owner who is incapacitated or otherwise unable to give consent.

The interpretation of a statute is a question of law. In re Canales, 52 S.W.3d 698, 701 (Tex.2001). Consequently, we review the trial court’s interpretation de novo. Johnson v. City of Fort Worth, 114 S.W.2d 653, 656 (Tex.1989). Our principal task is to ascertain the legislature’s intent. Brown v. Owens, 674 S.W.2d 748, 750 (Tex.1984). The legislature has provided guidance for this task. We begin with the presumption that the legislature intended that the statute (1) comply with the United States and Texas Constitutions, (2) be effective in its entirety, (3) produce a just and reasonable result, and (4) produce a result feasible of execution. Tex. Gov’t Code Ann. § 311.021 (Vernon 2005). We also presume that the legislature favored public interest over any private interest. Id. We may consider (1) the object sought to be attained; (2) the circumstances under which the statute was enacted; (3) legislative history; (4) common law or former statutory provisions, including laws on the same or similar subjects; (5) the consequences of a particular construction; (6) administrative construction of the statute; and (7) the title, preamble, and emergency provision. Tex. Gov’t Code Ann. § 311.023 (Vernon 2005). We read words and phrases in context and eonstrue them according to the rules of grammar and common usage. Tex. Gov’t Code Ann. § 311.011(a) (Vernon 2005).

Construction of any statute starts with consideration of its language. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001) (“We must construe statutes as written and, if possible, ascertain legislative intent from the statute’s language.”). Section 2303.156(b) provides:

An insurance company that pays a claim of total loss on a vehicle in a vehicle storage facility is liable to the operator of the facility for any money owed to the operator in relation to delivery of the vehicle to or storage of the vehicle in the facility regardless of whether an amount accrued before the insurance company paid the claim.

Underwriters contends that, if the legislature had intended for carriers to be responsible for towing and storage charges, it would have written the statute conjunc-tively by using the word “and” rather than the disjunctive “or.” Texas courts have held that “or” is disjunctive, that it signifies a separation between two ideas, and that it usually requires alternatives to be treated separately. See, e.g., Jones v. State, 175 S.W.3d 927, 932-33 (Tex.App.Dallas 2005, no pet.). But this does not, however, mean that the word “or” automatically creates a choice between two mutually exclusive options. Instead, Texas cases have applied a more rigorous statutory analysis by considering the word “or” against the backdrop of the entire statute.

For example, in Jones, the court found that the use of the word “or” in Tex. Civ. Prac. & Rem. Code § 103.002 forced an election between filing an administrative proceeding or a lawsuit. 175 S.W.3d at 932. But the court’s analysis was aided by the statute’s additional language that “a person may not seek compensation under both Subchapter B and C.” See id. at 931. Similar language is noticeably absent from Section 2303.156(b), Conversely, the Dallas court found that the word “or” served a conjunctive purpose in In re Porter, 126 S.W.3d 708, 711 (Tex.App.-Dallas 2004, orig. proceeding) (recall election must take place if either the city council or the city secretary certify a recall petition). See also Cherokee Water Co. v. Freeman, 33 S.W.3d 349, 354 (Tex.App.-Texarkana 2000, no pet.) (“living or visiting with him” provision in deed used the word “or” con-junctively as a means of connecting the pronoun “them” with alternative adjectives “living” and “visiting”).

The Texas Supreme Court most recently interpreted the statutory use of the word “or” in Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578 (Tex.2000). There, the court was concerned with the interpretation of a constitutional provision that read:

Sec. 50. (a) The homestead of a family, or of a single adult person, shall be, and is hereby protected from forced sale, for the payment of all debts except for:
(5) work and material used in constructing new improvements thereon, if contracted for in writing, or work and material used to repair or renovate existing improvements thereon if:
(A) the work and material are contracted for in writing, with the consent of both spouses, in the case of a family homestead, given in the same manner as is required in making a sale and conveyance of the homestead.

Tex. Const, art. XVI, § 50(a)(5)(A) (emphasis added). The question was whether the subparts following subsection (5) applied to new construction or merely repair and renovation. The court held that “or” was a disjunctive conjunction signifying two distinct ideas and that, if the subparts also applied to new construction, this interpretation would impair the provision’s meaning because it would make the phrase “if contracted for in writing” in subsection (5) superfluous. 34 S.W.3d at 580-81.

When courts have construed “or” as a disjunctive term requiring a choice or election, they have generally done so because the statute’s language indicates a legislative purpose for this requirement. For example, in Jones, 175 S.W.3d 927, requiring a claimant to chose between an administrative or judicial proceeding promoted efficiency. Underwriters has provided no public policy reason for requiring Harris to elect between recovering storage or towing fees. Moreover, even if we accept Underwriters’s contention that the legislature only intended to hold carriers responsible for one of two charges, this language would not accomplish that purpose. Assume that Harris towed the vehicle to a storage facility owned by Acme, Inc. and that Harris incurred only towing charges and Acme only storage charges. Underwriters’s construction of Section 2303.156(b) would not prevent them from both recovering.

The Tyler court has noted that the presence of a wrecked vehicle on or near a public highway presents a public safety risk and that Section 2303.156(b) shifts the burden of towing totaled vehicles from towing companies to insurance companies to increase the likelihood that towing companies will help clear the roadway. See Canal Ins. Co. v. Hopkins, 238 S.W.3d 549, 570 (Tex.App.-Tyler 2007, pet. denied). This construction finds expression in the statute’s language that carriers are “liable to the operator of the facility for any money owed to the operator ... regardless of whether an amount accrued before the insurance company paid the claim.” Section 2303.156(b) (emphasis added).

Wrecked vehicles must be towed and stored following a wreck. The public’s safety is not impacted if these two services are provided by one versus two companies but a private company’s willingness to provide either would be impacted by its ability to secure payment. Treating the “or” as a disjunctive conjunction provides an incentive for companies such as Harris’s to provide necessary towing services, vehicle storage, or both; this construction is consistent with the statute’s language that operators can recover “any money owed” for towing or storage; and it produces a just and reasonable result by providing private companies a means of securing compensation for services that promote public safety. Underwriters’s construction, on the other hand, would provide a disincentive for no apparent purpose beyond limiting the carrier’s exposure. Because we presume the legislature favored public interest over private interest, we cannot agree that the legislature intended Section 2303.156(b) to allow Harris either towing or storage compensation but not both. Issue two is overruled.

V. Conclusion

The judgment of the trial court is affirmed in part and reversed in part. That portion of the judgment awarding Harris actual damages is affirmed. That portion of the judgment awarding Harris attorney’s fees is reversed, and judgment is rendered that Harris is not entitled to attorney’s fees.

      . Tex. Occ. Code Ann. § 2303.001 et. seq. (Vernon 2004 & Supp.2009).

        . Tex. Civ. Prac & Rem. Code Ann. §§ 37.001-.011 (Vernon 2008).

      . The American Rule prohibits fee awards unless specifically provided for by contract or statute. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310-11 (Tex.2006).

        .See Tex. Gov’t Code Ann. § 311.026(b) (Vernon 2005) (requiring that specific statutory provisions prevail over general ones in statutory construction).

      . Repealed by Acts 2009, 81st Leg., ch. 180, § 12(1), eff. Sept. 1, 2009.


author: SUE WALKER, Justice.

text:
    Keane MENEFEE, Appellant, v. Kathryn and Jeremy MEDLEN, Appellees.
    No. 2-09-440-CV.
    Court of Appeals of Texas, Fort Worth.
    June 24, 2010.
    Reconsideration En Banc Denied Aug. 5, 2010.

      Luis E. Fierros, James A. Riddell, Fort Worth, TX, for Appellant.
    Randall E. Turner, Turner & McKenzie, PC, Hurst, TX, for Appellees.
    Panel: DAUPHINOT, GARDNER, and WALKER, JJ.
   OPINION

SUE WALKER, Justice.

I. Introduction

This is an interlocutory appeal by Appellant Keane Menefee from the trial court’s denial of his motion to dismiss Appellees Kathryn and Jeremy Medlens’ lawsuit against him. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(5) (Vernon 2008). The primary issue we address is whether Menefee was entitled to dismissal based on section 101.106(f) of the Texas Tort Claims Act (TTCA), the “Election of Remedies” section providing that a governmental employee is entitled to dismissal of a suit brought against him when the suit is based on conduct within the general scope of the employee’s employment and if the suit could have been brought under the TTCA against the governmental unit. See id. § 101.106(f) (Vernon 2005). Because, as set forth below, Menefee failed to establish that the Medlens could have brought their suit under the TTCA against his employer — the City of Fort Worth — he was not entitled to dismissal under section 101.106(f). Accordingly, we will affirm the trial court’s order denying Menefee’s motion to dismiss.

II. Factual and Procedural Background

In July 2009, the Medlens’ dog Avery escaped from their backyard, and the Animal Care and Control Division of the City of Fort Worth picked up the dog. That same day, Jeremy went to the animal shelter and found Avery. An employee told Jeremy that he could not take Avery home without first paying $95 in fines and fees. Jeremy had only $80 with him, and the employee told Jeremy that he could return any time during the next five days to pay the $95 and get Avery. The following day, Kathryn and her son went to the animal shelter with the money owed, but an employee told her that Avery could not be released until the veterinarian could implant a microchip in Avery and give the dog a rabies vaccination. The employee said that the veterinarian was not available at that time, and Kathryn and her son left without Avery. Later that day, Jeremy called the animal shelter and was told that the veterinarian would not be available until the following Monday and to return then to pick up Avery. On Monday, Jeremy and his two children went to the animal shelter to pick up Avery and learned that their dog had been euthanized.

The Medlens brought suit against Mene-fee in his individual capacity, alleging that he was negligent in killing Avery when he knew or should have known that Avery had owners who had reclaimed the dog and alleging that Menefee was negligent in violating the rules, policies, and procedures of the City of Fort Worth.

Menefee filed a motion to dismiss the Medlens’ claims against him, asserting that he was entitled to a dismissal pursuant to section 101.106(f) of the TTCA. The trial court denied the motion, and Menefee perfected this interlocutory appeal.

III. Motion to Dismiss Pursuant to Section 101.106(f)

In his sole issue, Menefee argues that section 101.106(f) of the TTCA entitled him to dismissal of the Medlens’ suit. The parties’ dispute centers on section 101.106(f)’s language providing that a governmental employee is entitled to dismissal only if the suit “could have been brought under this chapter against the governmental unit.” Tex. Civ. Prac. & Rem.Code Ann. § 101.106(f).

A. Standard of Review

Although we generally review a motion to dismiss under an abuse of discretion standard, the substance of the issue to be resolved dictates the standard of review. See In re Doe, 19 S.W.3d 249, 253 (Tex.2000) (determining that the proper standard of review is based on “whether the [issue] is a question of fact or of law”). When the issue presented involves questions of statutory interpretation, as it does here, the standard of review is de novo. Reedy v. Pompa, 310 S.W.3d 112, 117 (Tex.App.-Corpus Christi 2010, pet. filed); Hintz v. Lally, 305 S.W.3d 761, 765 (Tex.App.-Houston [14th Dist.] 2009, pet. filed) (citing City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003)).

B. Rules of Statutory Construction

Our primary objective in statutory construction is to give effect to the legislature’s intent. State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). We look first to the language in the statutory text. Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex.2006). We rely on the plain meaning of the text unless such a construction leads to absurd results. City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex.2008); see Tex. Gov’t Code Ann. § 311.011 (Vernon 2005). In determining legislative intent, we may consider, among other things, the objective the law seeks to obtain and the consequences of a particular construction. Tex. Gov’t Code Ann. § 311.023(1), (5) (Vernon 2005); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001); Hintz, 305 S.W.3d at 766. Additionally, we presume that the entire statute is intended to be effective and that a just and reasonable result is intended. Tex. Gov’t Code Ann. § 311.021(2), (3) (Vernon 2005).

C. Waiver of Governmental Immunity

Generally, sovereign immunity protects the state against lawsuits for money damages unless the state has consented to suit. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex.2008); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004). Governmental immunity operates like sovereign immunity to afford similar protection to subdivisions of the state, including counties, cities, and school districts, unless that immunity has been waived. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004); San Antonio Indep. Sch. Dist. v. McKinney, 936 S.W.2d 279, 283 (Tex.1996).

The TTCA establishes a limited waiver of this immunity and authorizes suits to be brought against governmental units in certain narrowly-defined circumstances. Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001); see Dallas County MHMR v. Bossley, 968 S.W.2d 339, 341 (Tex.), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998). Under the TTCA, governmental immunity is waived for property damage caused by the negligence of a governmental employee acting in the course and scope of his employment if the damage arises from the operation or use of a motor-driven vehicle or motor-driven equipment. Tex. Civ. Prac. & Rem.Code Ann. § 101.021(1)(A) (Vernon 2005).

D. Election of Remedies Provision

After the TTCA was enacted, litigants often sought to avoid the TTCA’s strictures by suing governmental employees individually instead of their governmental employers in an effort to circumvent a governmental unit’s assertion of immunity. See Tex. Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379, 396-97 (Tex.App.-Fort Worth 2008, no pet.) (citing Garcia, 253 S.W.3d at 657). The legislature countered this tactic by creating an election-of-remedies provision. Garcia, 253 S.W.3d at 656; see Tex. Civ. Prac. & Rem.Code Ann. § 101.106.

Section 101.106 is designed to force a plaintiff to decide at the outset whether an employee acted independently, and is thus solely hable, or whether he acted within the general scope of' his employment so that the governmental unit is vicariously liable. See Garcia, 253 S.W.3d at 657. By requiring a plaintiff to make an irrevocable election at the time suit is filed between suing the governmental unit under the TTCA or proceeding against the employee alone, section 101.106 narrows the issues for trial and reduces delay and duplicative litigation costs. Tex. Bay Cherry Hill, 257 S.W.3d at 397 (citing Garcia, 253 S.W.3d at 656-57).

Under the TTCA’s election scheme, seeking recovery against an individual governmental employee is prohibited and seeking recovery against only the governmental unit is permitted in three instances: (1) when suit is filed against the governmental unit only — the employee may not be sued regarding the same subject matter per section 101.106(a); (2) when suit is filed against both the governmental unit and its employee — the employee must be dismissed upon the governmental unit’s motion per section 101.106(e); or (3) when suit is filed against an employee based on conduct within the scope of his employment and the suit could have been brought under the TTCA against the governmental unit — the suit must be dismissed upon the employee’s motion unless the plaintiff substitutes the governmental unit per section 101.106(f). See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a), (e), (f).

Menefee’s motion to dismiss is based solely on subsection (f) of section 101.106, which provides,

If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only. On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.

Id. § 101.106(f). In effect, subsection (f) prevents a suit against an employee when a governmental unit may be vicariously liable for the employee’s conduct by requiring either the substitution of the governmental unit for the employee or the dismissal of the plaintiffs suit when the suit (1) is based on an employee’s conduct within the general scope of his employment and (2) could have been brought under the TTCA against the governmental unit. Leonard, 293 S.W.3d at 681 (citing Phillips, 187 S.W.3d at 673).

E. The Parties’ Contentions

Concerning the first prong of subsection (f), the parties agree that the Medlens’ suit against Menefee is based on his conduct as the supervisor of the City’s Animal Care and Control Division. The focus of the parties’ arguments is on the second prong of subsection (f) — whether the Medlens’ suit could have been brought under the TTCA against the governmental unit.

Concerning the second prong of subsection (f), the Medlens asserted in the trial court and argue on appeal that Menefee did not satisfy his burden to prove that they could have brought their suit under the TTCA against the City. The Medlens point out that their suit is for property damage (the euthanization of their dog) that did not arise from the operation or use of a motor-driven vehicle or motor-driven equipment as required to waive the City’s governmental immunity for property damage under the TTCA. See Tex. Civ. Prac. & Rem.Code Ann. § 101.021(1)(A). Consequently, the Medlens argue that the trial court properly denied Menefee’s motion to dismiss because he failed to establish the second prong of subsection (f).

Menefee, on the other hand, argues that section 101.106(f)’s could-have-been-brought-under-this-chapter language includes “all possible tort theories of recovery, not merely ones for which the [TTCA] expressly waives immunity.” Garcia, 253 S.W.3d at 658-59. Thus, according to Me-nefee, although the TTCA does not waive the City’s governmental immunity for the Medlens’ claims, their claims are still brought “under [the TTCA] for purposes of dismissal under subsection (f).”

F. Interpretation of and Burden of Proof for “Could-Have-Been-Brought-Under-this-Chapter’’ Language of Section 101.106(f)

It is undisputed that a party moving to dismiss pursuant to any of the election of remedies provisions of section 101.106 bears the burden of proof on his motion to dismiss. See, e.g., Reedy, 310 S.W.3d at 119; Hintz, 305 S.W.3d at 767; Lanphier v. Avis, 244 S.W.3d 596, 605 (Tex.App.-Texarkana 2008, pet. dism’d); Hall v. Provost, 232 S.W.3d 926, 928 (Tex.App.-Dallas 2007, no pet.); Kanlic v. Meyer, 230 S.W.3d 889, 893 (Tex.App.-El Paso 2007, pet. denied); Phillips, 187 S.W.3d at 675. Thus, here, Menefee bore the burden of proof to establish his right to dismissal under subsection (f), including the second prong of subsection (f), that the Medlens could have brought their suit under the TTCA against the City.

It is likewise undisputed that prior to the Texas Supreme Court’s decision in Garcia, courts interpreted section 101.106(f)’s election of remedies provision as applying only to suits presenting a claim within the TTCA’s limited waiver of immunity. See, e.g., Lanphier, 244 S.W.3d at 600-01, 607; Hall, 232 S.W.3d at 928-29; Kanlic, 230 S.W.3d at 894-95; Clark v. Sell, 228 S.W.3d 873, 874-75 (Tex.App.Amarillo 2007, pet. filed); Franka v. Velasquez, 216 S.W.3d 409, 412-13 (Tex.App.San Antonio 2006, pet. granted); Tejada v. Rowe, 207 S.W.3d 920, 925 (Tex.App.-Beaumont 2006, pet. filed); Phillips, 187 S.W.3d at 676-77.

In Garcia, the supreme court interpreted subsection (e) of section 101.106, not subsection (f). See 253 S.W.3d at 658-59. Subsection (e) provides for dismissal of a governmental employee when “a suit is filed under this chapter against both a governmental unit and any of its employees.” Id. (quoting Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e)). The supreme court held that the phrase “filed under this chapter” encompassed not only common law tort causes of action for which the TTCA waived immunity but also common law tort causes of action for which the TTCA did not waive immunity. Id. The supreme court explained that because the TTCA is the only, albeit limited, avenue for common law recovery against the government, all tort theories alleged against a governmental unit, whether it is sued alone or together with its employees, are assumed to be under the TTCA for purposes of section 101.106. Id. at 659. The supreme court expressly noted in Garcia, however, that it was not addressing subsection (f) and pointed out that subsection (f) “contains a slightly different phrase”— entitling an employee who is sued alone, without simultaneous suit against the governmental unit, to dismissal when the suit “could have been brought under this chapter against the governmental unit.” Id. at 660 n. 5 (emphasis added).

The courts of appeals are split on whether the supreme court’s Garcia analysis of section 101.106(e)’s filed-under-this-chapter language applies to section 101.106(f)’s could-have-been-brought-under-this-chapter language. See Tex. Civ. Prac. & Rem.Code Ann. § 101.106(e) (authorizing dismissal of employee when “a suit is filed under this chapter against both a governmental unit and any of its employees”) (emphasis added), § 101.106(f) (authorizing dismissal of employee when suit is brought only against him “based on conduct within the general scope of [his] employment and if it could have been brought under this chapter against the governmental unit”) (emphasis added). Compare Kelemen v. Elliott, 260 S.W.3d 518, 522-24 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (citing Garcia for proposition that “all tort claims against government entity are ‘under’ Tort Claims Act”), and Castro v. McNabb, 319 S.W.3d 721, 731-32 (Tex.App.-El Paso 2009, no pet.) (stating, “[W]e believe [Garcia’i3] holding applies equally to [subsection (f) ],” but holding employee not entitled to dismissal under subsection (f) because suit was brought for declaratory judgment, Declaratory Judgments Act provides waiver of immunity and, consequently, suit was not brought “under [the TTCA]” for purposes of subsection (f)), with Reedy, 310 S.W.3d at 118 (disagreeing with Kele-men’s application of Garcia to subsection (f) and holding that “phrase ‘could have been brought’ unambiguously invokes the [TTCA] ’s limited waiver of immunity”), Lieberman v. Romero, No. 05-08-01636-CV, 2009 WL 3595128, at *2 (Tex.App.-Dallas Nov. 3, 2009, pet. filed) (mem.op.) (rejecting argument that Garcia eliminated the requirement to show that the plaintiffs claims fell within a waiver of immunity), and Leonard, 298 S.W.3d at 681-85 (upholding trial court’s denial of motion to dismiss under subsection (f), without reference to Garcia, because plaintiffs claims could not have been brought against governmental unit). We have not interpreted subsection (f) since Garcia.

We hold that the reasoning of Garcia — applicable to motions to dismiss under subsection (e) — is not applicable to motions to dismiss under subsection (f). As the Corpus Christi court explained in Reedy,

[T]he phrase “could have been brought” [in subsection (f) ] modifies the phrase “under this chapter.” We conclude the phrase “could have been brought” unambiguously invokes the [TTCA] ’s limited waiver of immunity from suit and liability, and the Texas Supreme Court [in Garcia ] did not intend to undo the scores of opinions holding otherwise. Accordingly, we hold that Reedy was required to show that the Pompas’ suit invoked a waiver of immunity from suit and liability under the [TTCA] in order to prevail on her motion to dismiss under section 101.106(f)....

310 S.W.3d at 119 (citations omitted). In other words, giving the language of subsection (f) its plain meaning, a suit that “could have been brought under this chapter against the governmental unit” necessarily means a suit that falls within the TTCA’s limited waiver of sovereign immunity. See Tex. Gov’t Code Ann. § 311.011.

This construction of subsection 101.106(f) is not only supported by the plain language of subsection (f), it also harmonizes the language of the entire subsection and avoids an absurd consequence. See id. §§ 311.021(2), (3), .023(5). When an employee establishes the two prongs of subsection (f) — that the employee was acting within the general scope of the employee’s employment and that the plaintiffs suit could have been brought under the TTCA against the governmental unit — then the suit against the employee shall be dismissed “unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.” Tex. Civ. Prac. & Rem.Code Ann. § 101.106(f). Consequently, when the employee establishes that the suit could have been brought under the TTCA against the governmental entity, in order to avoid complete dismissal of the suit, a plaintiff must file amended pleadings suing the governmental entity. See id. Applying subsection (i) when a plaintiffs claims do not fall within the TTCA’s limited waiver of sovereign immunity — that is, requiring a plaintiff to dismiss the employee and to sue a governmental unit when the plaintiffs claims do not fall within the TTCA’s limited waiver of immunity — would constitute a statutory mandate requiring a plaintiff to file an unmeritorious suit. See Tex.R. Civ. P. 13 (providing sanctions for filing groundless pleadings brought in bad faith or for harassment purposes); see also Tex. Civ. Prac. & Rem.Code Ann. §§ 9.001- — .014 (Vernon 2002) (allowing sanctions for filing groundless pleadings in bad faith or for harassment), §§ 10.001 — • .006 (Vernon 2002) (allowing sanctions for filing pleadings and motions not warranted by existing law and brought for improper purposes). The consequences of this construction — requiring a plaintiff to file a groundless suit against a governmental entity — cannot have been intended by the legislature. See Tex. Gov’t Code Ann. § 311.023(1), (5) (explaining that, in construing statute, court may consider object sought to be obtained by statute and consequences of particular construction). Applying subsection (f) when a plaintiffs claims do not fall within the TTCA’s limited waiver of sovereign immunity would create an additional incongruity; such a construction of subsection (f) would mean that the employee would ostensibly obtain dismissal because the plaintiffs suit could have been brought under the TTCA while the subsequently sued governmental unit would undoubtedly seek dismissal in a plea to the jurisdiction based on the assertion that the plaintiffs suit cannot be brought under the TTCA. See Franka, 216 S.W.3d at 413 (rejecting defendant doctors’ position that it is sufficient to raise a fact issue on the could-have-been-brought prong of subsection (f) because of the potential result that plaintiff would be left without a remedy).

Additionally, construing subsection (f) to mean that an employee is not entitled to dismissal when he moves to dismiss under subsection (f) and fails to meet his burden to establish both prongs of that subsection does not leave the employee without other avenues of relief. He may file a plea to the jurisdiction asserting that the plaintiffs’ suit is actually a suit against him in his official capacity and that the plaintiffs have failed to demonstrate a waiver of governmental immunity. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999), Terrell v. Sisk, 111 S.W.3d 274, 281-82 (Tex.App.-Texarkana 2003, no pet.). He may also seek summary judgment on the basis of the affirmative defense of official immunity. See Ballantyne, 144 S.W.3d at 424.

But, when an employee moves to dismiss under subsection (f) and meets his burden to establish both prongs of that subsection, then “the suit is considered to be against the employee in the employee’s official ca-paeity only,” and, upon the employee’s motion, the suit shall be dismissed unless the plaintiff substitutes the governmental unit as the defendant in accordance with subsection (f). Tex. Civ. Prac. & Rem.Code Ann. § 101.106(f). A suit against an employee in his official capacity seeks to impose liability on the governmental unit itself; therefore, dismissal of a suit brought against an employee in his official capacity- — if the plaintiff does not substitute the governmental unit as the defendant in accordance with subsection (f) — accomplishes the purpose of the election-of-remedies provision because the suit is, in actuality, a suit against the governmental unit. See, e.g., Bexar County v. Giroux-Daniel, 956 S.W.2d 692, 695 (Tex.App.-San Antonio 1997, no pet.) (“Suits against a government employee in his or her official capacity are just another way of pleading a suit against the government entity of which the official is an agent”). In other words, if a suit against an individual governmental employee that actually seeks to impose liability on the governmental unit were allowed to continue upon the filing of a motion to dismiss, the purpose of the election-of-remedies provision would be thwarted. See Garcia, 253 S.W.3d at 657 (noting purpose of election-of-remedies provision is to force plaintiff to decide whether employee acted independently, and is thus solely liable, or whether he acted within general scope of his employment so that governmental unit is vicariously liable). Thus, the object sought to be attained by subsection (f) is promoted by this construction of subsection (f), a just and reasonable result is reached, the entire subsection is effective, and the absurd consequences of construing the “could-have-been-brought-under-this-chapter” language to include claims that cannot be brought under the TTCA are avoided. See Tex. Gov’t Code Ann. §§ 311.021(2), (3), .023(1), (5).

For all of these reasons, we construe subsection (f)’s could-have-been-brought-under-this-chapter language to require an employee seeking dismissal under subsection (f) to prove that the plaintiffs claims could have been brought under the TTCA against the governmental unit — that is, that the plaintiffs claims fall within the TTCA’s limited waiver of sovereign immunity.

G. Application of Section 101.106(f) to the Present Facts

In this case, the Medlens elected to sue Menefee rather than the City. The Medlens’ petition alleges that they are suing Menefee in his individual capacity for negligence in killing their dog and for violating the City’s rules, policies, and procedures; the petition specifically alleges that Menefee “is not being sued in his official capacity.” In order to be entitled to dismissal under subsection (f), Menefee then had the burden to prove that the Medlens’ suit is based on conduct within his general scope of employment and that their suit could have been brought under the TTCA against the City. See Tex. Civ. Prac. & Rem.Code Ann. § 101.106(f); Reedy, 310 S.W.3d at 116; Lieberman, 2009 WL 3595128, at *2. Regarding the second prong, Menefee had to prove that the Medlens’ claims against him for property damage — the euthanasia of their family pet — arose from the operation or use of a motor-driven vehicle or motor-driven equipment. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(A). Menefee does not argue, and nothing in the pleadings suggest, that the motor-driven vehicle or equipment exception to the City’s governmental immunity applies to the Medlens’ claims.

Because Menefee did not satisfy his burden to show that the Medlens’ suit could have been brought under the TTCA against the City, we hold that the trial court did not err by denying his motion to dismiss pursuant to section 101.106(f). We overrule Menefee’s sole issue.

IV. Conclusion

Having overruled Menefee’s sole issue, we affirm the trial court’s order denying Menefee’s motion to dismiss, and we remand this case to the trial court for further proceedings consistent with this opinion.

      . We have jurisdiction over this interlocutory appeal pursuant to section 51.014(a)(5) of the civil practice and remedies code. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(5). That section provides for interlocutory appeals from denials of summary judgment motions based on governmental employees' immunity and has been construed as providing for interlocutory appeals not only from denials of summary judgments but also from denials of motions to dismiss pursuant to section 101.106 of the TTCA. See City of Arlington v. Randall, 301 S.W.3d 896, 902 n. 2 (Tex.App.Fort Worth 2009, pet. filed); Leonard v. Glenn, 293 S.W.3d 669, 681 n. 11 (Tex.App.San Antonio 2009, pet. filed); Phillips v. Dafonte, 187 S.W.3d 669, 674-75 (Tex.App.Houston [14th Dist.] 2006, no pet.).

      . "State agencies are required to indemnify their employees for litigation expenses if the employee’s actions were within the course and scope of his or her employment.” Garcia, 253 S.W.3d at 657 n. 3 (citing Tex. Civ. Prac. & Rem.Code Ann. § 104.001 (Vernon Supp.2009), § 104.002 (Vernon 2005)). Similarly, local governments may indemnify their employees for negligent acts committed in the course and scope of their employment. See Tex. Civ. Prac. & Rem.Code Ann. § 102.002 (Vernon 2005).

      . The court of appeals in Kelemen ultimately held that the governmental employee was not entitled to dismissal under subsection (0 because he did not meet his burden of proving the first prong because his assaultive conduct did not fall within the general scope of his employment. Id.

      . A governmental employee, when sued in his individual capacity, might assert official immunity as a defense to personal monetary liability, which is well suited for resolution in a motion for summary judgment. Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 843 (Tex.2007). A suit against a governmental employee in his individual capacity seeks to impose personal liability on the employee himself, rather than on his employer, for actions taken under color of state law. See Tex. Bay Cherry Hill, 257 S.W.3d at 400; see also City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n. 7 (Tex.2009) ("Judgments against state officials in their individual capacities will not bind the state.”). A government employee sued in his individual capacity is entitled to official immunity from suit arising from (1) the performance of his discretionary duties (2) in good faith (3) as long as he is acting within the scope of his authority. See Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 424 (Tex.2004).