text:
    Tommy CORONADO, Appellant, v. The STATE of Texas, Appellee.
    No. 07-08-0496-CR.
    Court of Appeals of Texas, Amarillo, Panel C.
    March 31, 2010.

      John Bennett, Attorney at Law, Amarillo, TX, for Appellant.
    Jim English, Criminal District Attorney, Chris Strowd, Assistant Criminal District Attorney, Hereford, TX, for Appellee.
    Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
   OPINION

PATRICK A. PIRTLE, Justice.

This case addresses the question of whether a defendant’s Sixth Amendment rights are violated when an unavailable complainant’s testimonial hearsay statements are admitted into evidence pursuant to the statutory authority found in article 38.071, § 2(b). On November 19, 2008, following a plea of “not guilty,” Appellant, Tommy Coronado, was convicted by a jury of the offense of aggravated sexual assault (Count I), a first degree felony, and indecency with a child (Count II), a second degree felony. Following a plea of “true” to the allegations contained in the enhancement portion of the indictment, the jury assessed Appellant’s sentence, as to each offense, at confinement for life and a fíne of $10,000. Because the trial court did not order the sentences to run consecutively, by operation of law, the sentences run concurrently. By issues one and five, Appellant contends the evidence is both legally and factually insufficient; and by issues two, three, and four, he contends his constitutional right to confront and cross-examine the complaining witness was abridged. We affirm.

Background

In early August 2007, Sylvester Dominguez noticed that the personality of his three-year old daughter, R.D., had dramatically changed. In response to questioning as to whether “anybody had touched her, anybody hurt her, anybody touch her cookie,” R.D. responded “yes.” When asked whether “Tommy” had done this, she again answered “yes.” Based upon these statements, on August 8, 2007, R.D. was examined by Danielle Liver-more, a sexual assault nurse examiner, and interviewed by Brandi Johnson, a forensic examiner associated with the Bridge Children’s Advocacy Center. The sexual assault examination revealed that R.D.’s hymen was irregular and showed evidence of healed trauma. Based on this examination, Livermore concluded that R.D. had been sexually assaulted. In the forensic interview, R.D. stated that Appellant had touched her “cookie” and that it hurt. As a result of that information, on December 19, 2007, Appellant was indicted for aggravated sexual assault and indecency with a child.

On November 14, 2008, a pretrial hearing was held to determine the admissibility of the videotaped recording of R.D.’s August 8, 2007, forensic interview at the Bridge Children’s Advocacy Center, in accordance with the provisions of article 38.071 of the Texas Code of Criminal Procedure. At that hearing, the court heard testimony from R.D.’s mother, Vanessa Dominguez, and a child psychologist, Priscilla Kleinpeter, to the effect that requiring R.D. to give testimony in the presence of Appellant, or even by closed-circuit television, would have a significant traumatic impact on the child. The court then concluded that the child was “unavailable to testify” in the presence of Appellant, as that term is used in article 38.071. Appellant has not contested the trial court’s determination of unavailability. As a condition precedent to the admissibility of that recording, the court then ordered that Appellant have the opportunity to present written interrogatories to the child through a subsequent recorded interview to also be conducted by Ms. Johnson. After discussing the pros and cons of allowing the forensic interviewer the “leeway” of following up on answers given by the child, as opposed to allowing counsel the opportunity to present follow up written questions, the eourt determined that allowing leeway was “the best way to do it.” Appellant’s counsel did object to the general procedure of allowing cross-examination through the use of written interrogatories; however, no objection was made as to the specific procedure of disallowing follow up questions. Accordingly, the issue of follow up questions was not preserved for review and we express no opinion as to the propriety of this portion of the procedure employed. Following the conclusion of the pretrial hearing, the interview on written questions was conducted that day.

At trial, in lieu of R.D.’s live testimony, the State offered the videotaped recording of her August 8, 2007, Bridge interview. A videotaped recording of the court-ordered interview on written interrogatories was also played for the jury. In addition to the recordings of R.D.’s two forensic interviews, the jury heard testimony from Vanessa and Sylvester Dominguez, as well as Danielle Livermore, Brandi Johnson, and Priscilla Kleinpeter. In addition to testifying on his own behalf, Appellant offered the testimony of his mother, Maria Quintana, and his wife, Victoria Coronado. Upon being duly charged, the jury returned a verdict of guilty as to both counts. Judgment was entered and this appeal followed.

Legal and Factual Sufficiency

When, as here, an appellant challenges both the legal and factual sufficiency of the evidence, we are required to conduct an analysis of the legal sufficiency of the evidence first and, then, only if we find the evidence to be legally sufficient, do we analyze the factual sufficiency of the evidence. Clewis v. State, 922 S.W.2d 126, 138 (Tex.Crim.App.1996). We review legal sufficiency by viewing the evidence in the light most favorable to the verdict to determine whether, based on that evidence and reasonable inferences to be drawn therefrom, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007). The conviction will then be sustained unless it is irrational or unsupported by more than a “mere modicum” of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). The fact finder is the sole judge of the credibility of the witnesses and of the weight to be afforded their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex.Crim.App.1994). Reconciliation of conflicts and contradictions in the evidence is within the fact finder’s province and is usually conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex.App.-El Paso 1996, pet. ref'd).

When an appellant challenges the factual sufficiency of the evidence supporting his conviction, the reviewing court must determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding the appellant guilty beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App.2004), overruled in part by Watson v. State, 204 S.W.3d 404, 415-17 (Tex.Crim.App.2006). In performing a factual sufficiency review, we must give deference to the fact finder’s determinations if supported by any evidence and may not order a new trial simply because we may disagree with the verdict. Watson, 204 S.W.3d at 417. As an appellate court, we are not justified in ordering a new trial unless there is some objective basis in the record demonstrating that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id.

Additionally, as directed by the Texas Court of Criminal Appeals, when conducting a factual sufficiency review, we must include a discussion of the most important and relevant evidence that supports the appellant’s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003). This does not, however, mean that we are required to discuss all evidence admitted at trial. See id. See also Roberts v. State, 221 S.W.3d 659, 665 (Tex.Crim.App.2007).

Analysis

In order to establish the offense of aggravated sexual assault, the State was required to prove that Appellant intentionally or knowingly caused the penetration of the sexual organ of a child who was then and there younger than 14 years of age. See Tex. Penal Code Ann. § 22.021(a)(1)(B)® and (2)(B) (Vernon Supp. 2009). In order to establish the offense of indecency with a child, the State was required to prove Appellant, with the intent to arouse or gratify his sexual desire, intentionally or knowingly touched the genitals of a child who was younger than 17 years and not Appellant’s spouse. See Tex. Penal Code Ann. § 21.11(a)(1) (Vernon Supp. 2009).

Reviewing the evidence in the light most favorable to the verdict, the videotaped statements of R.D. alone were sufficient to establish every essential element of the offenses of aggravated sexual assault and indecency with a child. While Appellant acknowledges that testimony of a single witness can be legally sufficient to substantiate a finding of guilt, Castillo v. State, 913 S.W.2d 529, 535 n. 3 (Tex.Crim.App.1995); Rodriguez v. State, 955 S.W.2d 171, 174 (Tex.App.-Amarillo 1997, no pet.), he contends that this principle has no application where the defense was given no opportunity to rigorously cross-examine the complaining witness. Appellant cites no authority supporting his contention. Without same, the issue is inadequately briefed and, therefore, waived. See Tex. R.App. P. 38.1(h); Cardenas v. State, 30 S.W.3d 384, 393 (Tex.Crim.App.2000).

Furthermore, because Appellant’s contentions concerning his right to cross-examine the complaining witness are more fully discussed with respect to issues two, three, and four, we overrule issue five challenging the legal sufficiency.

Appellant contends the evidence is factually insufficient because, other than the medical evidence of trauma to R.D.’s hymen, the State’s case rests solely upon the testimony of a three year old child as recorded in the forensic interviews of Brandi Johnson and the hearsay statements of the child as given to Priscilla Kleinpeter. Appellant maintains that the scarcity of evidence undermines both the issue of whether an offense occurred, and whether he committed the offense, if one in fact did occur.

In addition to the medical testimony and R.D.’s recorded statements implicating Appellant in the commission of both offenses, the State offered R.D.’s outcry statement to her father to the effect that Appellant hurt her by touching her “cookie.” A child victim’s outcry statement alone can be sufficient to sustain a conviction for aggravated sexual assault. Rodriguez v. State, 819 S.W.2d 871, 873 (Tex.Crim.App.1991).

Appellant’s suggestion that he did not have an opportunity to commit the charged offenses was contradicted by the testimony of R.D.’s mother, father, grandmother, and great-grandmother, as well as Appellant’s own testimony. Furthermore, Appellant’s suggestion that R.D.’s physical symptoms could be rationally explained by other possibilities does not preclude the possibility that they were caused by the criminal conduct of Appellant. As such, the jury was free to listen to the evidence, judge the credibility of the witnesses, and make its own determination as to the truth of the matters asserted. Based upon the evidence presented, we cannot say that the jury was not rationally justified in finding guilt beyond a reasonable doubt. In other words, we conclude there is no objective basis in the record demonstrating that the great weight and preponderance of the evidence contradicts the jury’s finding of guilt. See Watson, 204 S.W.3d at 417. Appellant’s first issue challenging the factual sufficiency is overruled.

Confrontation of Witnesses

Appellant contends that because he was allowed to cross-examine R.D.’s videotaped statements only through the use of written interrogatories, presented by a third person, via a videotaped interview, he was denied his right to face-to-face confrontation and cross-examination as guaranteed by the Sixth Amendment. The State contends that Appellant was accorded every right guaranteed by the Sixth Amendment when the trial court, consistent with provisions of section 2(b) of article 38.071, allowed him to submit written questions that were then presented by a neutral individual and recorded under the same or similar circumstances as the original interview. Thus, the issue before this Court is whether the post-interview submission of written interrogatories pursuant to the procedure authorized by section 2(b) of article 38.071 is a meaningful and effective substitute for in-court, sworn testimony, subject to face-to-face confrontation and cross-examination in a criminal trial.

The Sixth Amendment guarantees the accused, in every criminal prosecution, the right “to be confronted with the witnesses against him.” U.S. Const, amend. VI. This right is secured for the defendant in state as well as federal criminal prosecutions. Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The Supreme Court has determined that this provision, commonly referred to as the Confrontation Clause, bars “admission of testimonial statements of a witness who did not appear at trial unless [the witness] is unavailable to testify and the defendant has had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

This right of confrontation has further been construed to include not only the right to face-to-face confrontation, but also to the right to meaningful and effective cross-examination. Davis v. Alaska, 415 U.S. 308, 315-316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Professor J. Wigmore has described the “main and essential purpose” of confrontation to be the opportunity for cross-examination through the process of putting direct and personal questions to the witness and the obtaining of immediate answers. 5 J. Wigmore, Evidence § 1395, at 123 (3d ed. 1940). Cross-examination is the principal means by which an accused can test the credibility of a witness and the truth of their testimony. Davis, 415 U.S. at 316, 94 S.Ct. 1105. It provides the accused with a process whereby the motivation for testifying or bias of a witness can be exposed to truth-finding function of the trier of fact. Id.

Analysis

Whether a particular out-of-court statement is testimonial is a question of law. De La Paz v. State, 273 S.W.3d 671, 680 (Tex.Crim.App.2008). Generally speaking, an out-of-court statement is testimonial when the surrounding circumstances objectively indicate that the primary purpose of the interview or interrogation is to establish or prove past facts or events potentially relevant to later criminal prosecution. Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266 165 L.Ed.2d 224 (2006); De La Paz, 273 S.W.3d at 680. Error in admitting evidence in violation of a defendant’s right of confrontation is constitutional error, which necessitates reversal unless the reviewing court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. See Tex. R.App. P. 44.2(a); Langham v. State, 305 S.W.3d 568, 582 (Tex.Crim.App.2010); Wood v. State, 299 S.W.3d 200, 214 (Tex.App.-Austin 2009, pet. filed).

Here, the primary purpose of the August 8th interview was to preserve a record of past facts or events for purposes of a later criminal prosecution and the purpose of the follow up interview was to comply with the requirements of article 38.071 for the admissibility of that original recording during that prosecution. The accuracy and truthfulness of R.D.’s statements were crucial to the State’s case against Appellant. In both situations, R.D.’s statements clearly constitute testimonial hearsay for Confrontation Clause purposes.

Having determined that the videotaped interviews were testimonial under the United States Supreme Court decisions in Crawford v. Washington and Davis v. Washington, this case highlights the tension existing between the right of an accused to confront the witnesses against him, as determined by decisions like Davis v. Alaska, and the State’s policy of protecting child witnesses in sexual assault cases from further trauma. Despite serious concerns pertaining to the reliability of child witness testimony, and notwithstanding the due process significance of the right of confrontation of witnesses, the trend among courts and legislatures has been to relax evidentiary and procedural requirements pertaining to the admissibility of child "witness testimony in child sexual abuse prosecutions in an effort to balance these competing public policy interests. Article 38.071 is such an attempt.

In Maryland v. Craig, 497 U.S. 836, 857, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990) the United States Supreme Court recognized that the constitution does not guarantee the absolute right to face-to-face confrontation. In Craig, the Court approved certain limitations on the right of confrontation, holding that states may use closed-circuit television or other methods of confrontation short of “face-to-face confrontation” where a court makes a case-specific finding that there is potential for trauma to a child witness from testifying in open court, in the presence of the defendant. Id., at 857, 110 S.Ct. 3157.

Here, Appellant contends the trial court should have considered less restrictive alternatives to the use of written questions in lieu of live, face-to-face cross-examination. A similar argument was rejected by the Supreme Court in Craig when the Court declined to establish “any such categorical evidentiary prerequisite,” so long as the trial court makes a case-specific finding that the procedure employed was necessary under the facts of that particular case. Id. at 860,110 S.Ct. 3157.

Additionally, whether a particular method of confrontation is deemed constitutionally sufficient depends upon a determination as to whether the procedure adequately ensures that the testimony is both reliable and subject to “rigorous testing in the context of an adversary proceeding before the trier of fact.” Id. at 845, 110 S.Ct. 3157. In this context, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to test the witness’s recollection, sift his conscience, observe his demeanor, judge the manner in which he gives his testimony, and make a reasonable assessment of the credibility of the witness and the weight to be given his testimony. Id.

In Rangel v. State, the Fort Worth Court of Appeals held that (1) a child victim’s videotaped statement was “testimonial” and therefore governed by Crawford, and (2) by providing a defendant with the opportunity to submit written questions, section 2(b) of article 38.071 serves as a constitutionally sufficient alternative to face-to-face confrontation of witnesses. Rangel v. State, 199 S.W.3d 523, 535-37 (Tex.App.-Fort Worth 2006, pet. dism’d).

While the right to confront our accusers through face-to-face cross-examination is not a right that is absolute and unbendable, it is a right that should not be quickly or carelessly compromised. Although limited, section 2(b) of article 38.071 does provide the accused with a means of testing the testimony of the witnesses against him through the submission of cross-examination questions. Where a video recording of the child-witness is made, the fact finder is further afforded the opportunity to observe the child’s demeanor, judge the manner in which he gives his testimony, and make reasonable assessments concerning the weight and credibility of his testimony.

Furthermore, it should be noted that article 38.071 does not disqualify the child from testifying. It merely provides a means whereby a videotaped interview of the child may be used when the trial court determines that the child is “unavailable” based on certain relevant factors, including the factors set out by article 38.071, § 8. In those situations where the child is physically available to be called as a witness, both the prosecution and the defense are faced with the unenviable task of deciding whether to seek leave of the trial court to call the child to the stand. Not only do they face the uncertainty of knowing how a child of tender years might react to the pressure of being placed under the piercing spotlight of interrogation, they also run the very real danger of seriously alienating the fact finder (usually a jury) for having traumatized such a tender witness. In an attempt to find a suitable solution to this Hobson’s choice, while at the same time providing a meaningful compromise between the defendant’s right of confrontation and society’s interest in protecting young child victims from additional trauma occasioned by placing them within the crucible of confrontation and cross-examination in a courtroom setting, we find that the procedures governed by section 2(b) of article 38.071 can be an appropriate constitutional accommodation.

Here the trial court made a case-specific determination, based upon competent testimony, that the child was unavailable. Appellant was accorded the opportunity to, and did, submit questions to the child through the use of written interrogatories under the procedure outlined by section 2(b). Under the facts of this case, we find no error in the trial court’s decision to allow cross-examination through written questions only. Accordingly, we find no error in the trial court’s decision to allow the admission of R.D.’s videotaped interview in face of Appellant’s Confrontation Clause objection. Issues two, three, and four are overruled.

Conclusion

Having overruled each of Appellant’s issues, the judgment of the trial court is affirmed.

        .See generally Tex.Code Crim. Proc. Ann., art. 38.071 (Vernon Supp. 2009). For convenience, articles of the Texas Code of Criminal Procedure will subsequently be cited as “article_” or “Article_",

      . See Tex. Penal Code Ann. § 22.02l(a)(l)(B)(i) and (2)(B) (Vernon Supp. 2009).

      . See Tex. Penal Code Ann. § 21.11(a)(1) (Vernon Supp. 2009).

        . See Tex. Penal Code Ann. § 3.03(a) (Vernon Supp. 2009).

      . To protect the privacy of the complaining witness, we refer to her by her initials.

      . “Cookie" was R.D.'s word for her vaginal area.

      . In making a determination of unavailability under article 38.071, the court shall consider relevant factors including the relationship of the defendant and the child, the character and duration of the alleged offense, the age, maturity, and emotional stability of the child, and the time elapsed since the alleged offense, and whether the child is more likely than not to be unavailable to testify because of: (1) emotional or physical causes, including confrontation with the defendant: or (2) the child would suffer undue psychological or physical harm through involvement at the hearing or proceeding. See Art. 38.071, § 8 (Vernon Supp. 2009).

      . To date, the Texas'Court of Criminal Appeals has not squarely addressed this issue. Although petition for discretionary review was granted on a similar issue in Rangel v. State, 199 S.W.3d 523 (Tex.App.-Fort Worth 2006), that petition was subsequently dismissed as improvidently granted. Rangel v. State, 250 S.W.3d 96 (Tex.Crim.App.2008). Rangel’s ground for discretionary review read as follows:
      Whether [Rangel’s] Sixth Amendment rights were violated when the unavailable complainant's testimonial hearsay statements were admitted into evidence pursuant to statutory authority. [Article 38.071, § 2(b) ].

      . See n. 8 supra.

      . Section 6 of article 38.071 does provide that the child may not be required to testify in court if the trial court finds the testimony of the child taken under sections 2 or 5 of that article is admissible into evidence. However, even if the child's testimony taken under those sections is admitted into evidence, a trial court may still allow the child to testify upon a finding of good cause. Because we are not presented with the question of whether the trial court in this cause erred by denying the accused the right to call the child as a witness, we express no opinion as to whether or not the denial of a defendant's right to call the complaining witness as a witness at trial would affect the defendant’s due process rights or the constitutionality of limiting his right of confrontation.


source: Caselaw Access Project

author: PATRICK A. PIRTLE, Justice.

license: Public Domain

text:
    In re Mickey T. BRASWELL, Relator.
    No. 07-10-0080-CV.
    Court of Appeals of Texas, Amarillo. Panel C.
    April 1, 2010.

      Mickey T. Braswell, Dalhart, TX, pro se.
    Richard Dambold, Amarillo, TX, for Respondent.
    Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
   OPINION

PATRICK A. PIRTLE, Justice.

By this original proceeding, Relator, Mickey T. Braswell, proceeding pro se and in forma pauperis, seeks a writ of mandamus to compel the Honorable Richard Dambold to set aside an Order to Withdraw Inmate Funds. Pursuant to section 501.014(e) of the Texas Government Code Annotated (Vernon Supp.2009), the order directs the Texas Department of Criminal Justice to collect $1,392.50 from Relator’s trust account to pay court costs, fines, and fees incurred by him in Cause Number 17,581-B, styled The State of Texas v. Mickey Thomas Braswell. For the reasons expressed herein, we deny Relator’s request.

By his petition for writ of mandamus, Relator contends the trial court’s order directing withdrawal of funds from his trust account was rendered without procedural due process. He maintains the order was not based on pleadings, nor was he given an opportunity to respond. Relator also complains that the Bill of Costs accompanying the withdrawal order, which reflects $1,392.50 is owed, does not reflect whether attorney’s fees are included.

Mandamus Standard of Review

Mandamus relief is extraordinary. In re Southwestern Bell Telephone Co., L.P., 235 S.W.3d 619, 623 (Tex.2007) (orig. proceeding.) Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig. proceeding), quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (orig. proceeding).

Analysis

In support of his due process argument, Relator relies on Abdullah v. State, 211 S.W.3d 938 (Tex.App.-Texarkana 2007, no pet.), and In re Keeling, 227 S.W.3d 391 (Tex.App.-Waco 2007, orig. proceeding), in which both courts found the inmates had not been accorded due process and proper notice before funds were withdrawn from their inmate trust accounts to satisfy court costs, fines, and fees.

In Harrell v. State, 286 S.W.3d 315 (Tex.2009), the Texas Supreme Court held that an order directing prison officials to withdraw money from an inmate trust account is a civil matter akin to a garnishment action or an action to obtain a turnover order. Id. at 317-19. In determining whether Harrell was accorded due process, the Court balanced three factors discussed in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and noted that Harrell had “already received some measure of due process.” Harrell, 286 S.W.3d at 320.

The three Eldridge factors considered in Harrell are: (1) the private interest affected by the official action, (2) the risk of an erroneous deprivation of such interests through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, and (3) the Government’s interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail. The Court found that private interest is easily determined — the amount owed. Regarding the risk of erroneous deprivation, the Court identified the risk as modest where withdrawal notifications under the statute are based on an amount identified in a previous court document. See Tex. Gov’t Code Ann. § 501.014(e)(l)-(6) (Vernon Supp.2009). The Court noted that “Harrell was ... notified of the costs assessed when the convicting court sentenced him” and he was free to contest them at the time they were assessed. Harrell, 286 S.W.3d at 320. However, the Court went on to recognize there could be a greater risk of erroneous deprivation in instances in which the amount in the withdrawal order varied from the amount in the underlying judgment or those instances where there were clerical or other errors. Id. In assessing the final factor, the Government’s interest, the Court addressed the fiscal and administrative burdens of added or alternative procedures and concluded that the Texas Department of Criminal Justice would face expending more money than it would collect if it were required to conform to “full-blown” statutory garnishment requirements. In the Court’s opinion, such a procedure might subvert the Legislature’s goal of efficient cost-collection. Id.

Harrell had been convicted of drug charges in 1997 and 2003. In 2006, the convicting trial court signed an order authorizing the Texas Department of Criminal Justice to withdraw funds from his inmate trust account to pay for court costs and fees for appointed counsel. Harrell was provided with copies of the withdrawal orders. He then moved to rescind the orders alleging denial of due process. His motion was denied, and his direct appeals to this Court were dismissed for want of jurisdiction on the ground that no statutory mechanism was available for appealing a withdrawal order. See Harrell v. State, Nos. 07-06-0469-CR and 07-06-0470-CR, 2007 WL 2301350, 2007 Tex.App. LEXIS 6416 (Tex.App.-Amarillo Aug. 13, 2007), rev’d, 286 S.W.3d 315 (Tex.2009).

In reversing this Court and rendering judgment affirming the trial court’s order denying Harrell’s motion to rescind, the Supreme Court held that due process is satisfied if an inmate receives notice and the opportunity to be heard after funds are withdrawn. Harrell, 286 S.W.3d at 321. It concluded that because Harrell had received notice (a copy of the withdrawal order) and an opportunity to be heard (the motion to rescind), he had received all that due process required. Id. The Court added, “[t]he Constitution does not require pre-withdrawal notice or a comprehensive civil garnishment proceeding.” Id.

According to the documents before us, Relator was adjudicated guilty of a criminal offense in 2006 and sentenced to five years confinement. In the underlying proceeding, Relator was represented by court-appointed counsel. Judgment was signed on November 20, 2006. On October 26, 2009, the convicting court signed an order directing the Texas Department of Criminal Justice to withdraw funds from Relator’s trust account to pay court costs, fines, and fees. A Bill of Costs was itemized as follows:

COURT COSTS $1,092.50
FINE $1,000.00
CREDIT FOR PAYMENTS $ 700.00
TOTAL $1,392.50

By letter dated February 5, 2010, Relator acknowledged receipt of the Bill of Costs but requested clarification from the Randall County Criminal Court Collections Department on whether attorney’s fees were included therein. Relator also requested a copy of the judgment rendered in his criminal case. In response, the Randall County District Clerk provided Relator with a more detailed Bill of Costs, dated February 8, 2010, reflecting that the “court costs” of $1,092.50 did include $800.00 in attorney’s fees. The new Bill of Costs also reflected a fine of $1,000.00 and a credit of $810.00 for payments made. The District Clerk also provided Relator with a copy of the Judgment Adjudicating Guilt entered in Cause Number 17,581-B. The summary portion of that judgment pertaining to “Costs” was left blank and the amount of costs was not otherwise stated in the judgment. The judgment did, however, provide that the State of Texas “do have and recover of the said Defendant [Relator herein] all costs in this proceeding incurred.”

I. Due Process

The Texas Constitution provides:
No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.

Tex. Const, art. I, § 19. Inmates have a property interest in their inmate trust accounts. See Tex. Gov’t Code Ann. § 501.015(a)(2) (Vernon Supp.2009). See also Reed v. State, 269 S.W.3d 619, 625 (Tex.App.-San Antonio 2008, no pet.); Harrell, 286 S.W.3d at 319.

A. Notice Satisfying Due Process

Harrell holds that an inmate is entitled to notice regarding withdrawal of funds from his trust account. 286 S.W.3d at 320-21. However, there is no requirement for pre-withdrawal notice. Id. at 321. Providing an inmate with an order of withdrawal is constitutionally sufficient notice. Id.

Relator was provided with a copy of the trial court’s Order to Withdraw Inmate Funds. Thus, according to Harrell, he received notice sufficient to justify the requirement of due process.

B. An Opportunity to be Heard

In Harrell, the defendant filed a motion to rescind the trial court’s order of withdrawal. That motion was denied. The Supreme Court found that Harrell’s motion constituted an opportunity to be heard, thus satisfying the second prong of the due process analysis. In sum, the Supreme Court determined that Harrell received “some measure of due process.” Id. at 320.

In this proceeding, there is nothing to reflect whether Relator has ever been granted the opportunity to be heard regarding the issues of either the amount of court costs (attorney’s fees in particular) or his “financial resources that enable him to offset in part or in whole the costs of the legal services provided.” See Tex. Code Crim. Proc. Ann. art. 26.05(g) (Vernon Supp.2009). The Supreme Court’s edict that neither notice nor the opportunity to be heard need occur before funds are withdrawn, id. at 321, presents a quandary for Relator. He must still avail himself of the opportunity to be heard, whether by motion in the trial court or otherwise, to challenge the propriety of, or factual basis for, the assessment of court costs, fines, and attorney’s fees. Only then, can this Court determine whether Relator has been accorded “some measure of due process” sufficient to satisfy the requirements of Harrell and thereby satisfy the mandamus requirement of no other adequate remedy at law. On the record before us, Relator has not demonstrated that the trial court denied him due process by denying him an opportunity to make that challenge, nor has he otherwise established his entitlement to mandamus relief as the trial court followed the law in the rendering of an order of withdrawal.

II. Assessment of Costs and Fees

Relying on Perez v. State, 280 S.W.3d 886 (Tex.App.-Amarillo 2009, no pet.), Relator raises a final argument challenging the costs and attorney’s fees assessed. Relator acknowledges that the 2006 judgment provides “the State of Texas do have and recover of the said Defendant all costs in this proceeding incurred.” However, he points out that the judgment is silent on the amount of “Costs.”

In Perez, this Court, relying on a “fair and plain reading” of article 26.05(g) of the Texas Code of Criminal Procedure Annotated (Vernon Supp.2009), held there must be some evidentiary basis to support a trial court’s decision to levy any fees on a defendant. Recently, the Texas Court of Criminal Appeals agreed with a similar decision of this Court and affirmed Mayer v. State, 274. S.W.3d 898, 901 (Tex.App.Amarillo 2009), aff'd, 309 S.W.3d 552 (Tex.Crim.App.2010). In Mayer, this Court held the trial court erred in ordering reimbursement of appointed attorney’s fees without evidence to demonstrate that the appellant was “able to pay” or had financial resources that would enable him to offset, in part or in whole, the costs of legal services provided to him. 274 S.W.3d at 901.

Perez and Mayer were direct appeals in which each appellant raised the issue of the sufficiency of the evidence to support an order for the reimbursement of court-appointed attorney’s fees. Unfortunately for Relator, he did not appeal at the time he was adjudicated guilty in 2006. The sufficiency of the evidence to support reimbursement is not reviewable by mandamus.

Conclusion

We conclude that by simply entering the Order to Withdraw Inmate Funds, the trial court did not abuse its discretion nor violate a duty imposed by law for which there is no other adequate remedy by law. Consequently, Relator’s petition for writ of mandamus is denied.

      . Sitting by assignment in the 181st District Court of Randall County, Texas. See Tex. Gov't Code Ann. § 75.002(a)(3) (Vernon 2005).

      . See Johnson v. Tenth Judicial District Court of Appeals at Waco, 280 S.W.3d 866, 869 (Tex.Crim.App.2008) (holding that orders directing withdrawal of funds from inmate trust accounts is not a criminal matter).

      . While the court of appeals' opinion is silent on whether a hearing was held on Harrell’s motion to rescind, Harrell v. State, 2007 WL 2301350, 2007 Tex.App. LEXIS 6416 (Tex.App.-Amarillo, Aug. 13, 2007), we read the Supreme Court's opinion as assuming that Harrell was given "an opportunity to be heard just as happened here (via motion made by the inmate).” Harrell, 286 S.W.3d at 321.

      . The Bill of Costs was verified as being accurate as of September 23, 2009. The Order to Withdraw Inmate Funds was originally dated September 23, 2009; however, that date was lined-out and the date of October 26, 2009, was inserted. Although the Judgment Adjudicating Guilt does not reflect that a fine was imposed, the Bill of Costs does reflect a fine of $1,000.00.

      . The Texas Constitution’s “due course” language and the United States Constitution's "due process” language are regarded without meaningful distinction. University of Texas Medical School v. Than, 901 S.W.2d 926, 929 (Tex.1995).

      . Article 26.05(g) grants the trial court the authority to order reimbursement of appointed attorney's fees if the court determines that a defendant has financial resources that enable him to offset, in part or in whole, the costs of legal services provided.

      . Although the trial court’s decision to adjudicate guilt was not appealable in 2006, see Act of May 28, 2007, 80th Leg., R.S., ch. 1308, § 5(b) 2007 Tex. Gen. Laws 4395, 4397, Relator could have raised the issue of reimbursement of court-appointed attorney's fees by direct appeal as it was unrelated to the decision to adjudicate.

      . We recognize the difficulty Relator would have had in challenging court-appointed attorney's fees by direct appeal in 2006 when the judgment did not reflect any costs, nor did it specify a fine or an amount of attorney's fees. We express no opinion as to whether the failure to include a fine or a specific amount of court costs, including attorney's fees, in the original judgment deprived Relator of his due process right to contest the propriety of, or factual basis for, the trial court's subsequent withdrawal order.


author: BOB McCOY, Justice.

text:
    TARRANT COUNTY, Texas, Appellant, v. Deborah L. McQUARY, Appellee.
    No. 2-09-306-CV.
    Court of Appeals of Texas, Fort Worth.
    April 1, 2010.

      David K. Hudson, and Christopher W. Ponder, Asst. Dist. Attys., for Appellant.
    David E. Kelly, Fort Worth, for Appel-lee.
    Panel: WALKER, McCOY, and MEIER, JJ.
   OPINION

BOB McCOY, Justice.

I. Introduction

In one issue, Appellant Tarrant County, Texas, brings this interlocutory appeal, asserting that the trial court erred by denying its plea to the jurisdiction. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon 2008). We reverse and render.

II. Background

Appellee Deborah L. McQuary sued Tarrant County, alleging that it had terminated her employment in violation of the Texas Whistleblower Act. See Tex. Gov’t Code Ann. §§ 554.001-.010 (Vernon 2004). In its plea to the jurisdiction, Tarrant County argued that McQuary failed to satisfy government code section 554.006’s jurisdictional prerequisites when she failed to provide any notice that she was alleging retaliation for whistleblowing during the administrative appeal of her termination. The trial court denied Tarrant County’s plea to the jurisdiction, and this interlocutory appeal followed.

III. Plea to the Jurisdiction

A. Standard of Review

A plea to the jurisdiction is a dilatory plea used to defeat a cause of action without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000); City of Fort Worth v. Shilling, 266 S.W.3d 97, 101 (Tex.App.-Fort Worth 2008, pet. denied). The plea challenges the trial court’s subject matter jurisdiction. Bland, 34 S.W.3d at 554. Whether the trial court had subject matter jurisdiction is a question of law that we review de novo. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002).

The plaintiff has the burden of alleging facts that affirmatively establish the trial court’s subject matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993); Shilling, 266 S.W.3d at 101. We construe the pleadings liberally in favor of the plaintiff, look to the pleader’s intent, and accept the pleadings’ factual allegations as true. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). If a plea to the jurisdiction challenges the existence of jurisdictional facts, as in this case, we consider relevant evidence submitted by the parties that is necessary to resolve the jurisdictional issues. Id. at 227; Bland, 34 S.W.3d at 555. The pleadings relevant to a review of a plea to the jurisdiction include amended petitions, the plea to the jurisdiction, and responses filed in connection with a defendant’s plea to the jurisdiction. City of Austin v. Ender, 30 S.W.3d 590, 593 (Tex.App.-Austin 2000, no pet.).

A trial court’s review of a plea to the jurisdiction challenging the existence of jurisdictional facts mirrors that of a traditional motion for summary judgment. Miranda, 133 S.W.3d at 228; Shilling, 266 S.W.3d at 101; see also Tex.R. Civ. P. 166a(c). The governmental unit is required to meet the summary judgment standard of proof for its assertion that the trial court lacks jurisdiction. Shilling, 266 S.W.3d at 101 (citing Miranda, 133 S.W.3d at 228). The plaintiff is then required to show that there is a disputed material fact regarding the jurisdictional issue. Id. If the evidence creates a fact question regarding jurisdiction, the trial court must deny the plea to the jurisdiction and leave its resolution to the fact finder. Id. But if the evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id.

B. Statutory Scheme

The Whistleblower Act has a twofold purpose: (1) protecting a public employee from retaliation by her employer when, in good faith, the employee reports a violation of law, and (2) securing lawful conduct on the part of those who direct and conduct the affairs of public bodies. Ender, 30 S.W.3d at 594; see also Tex. Gov’t Code Ann. § 554.002(a) (“A state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority”).

The applicable portion of the government code states, “A public employee must initiate action under the grievance or appeal procedures of the employing state or local governmental entity relating to suspension or termination of employment or adverse personnel action before suing under this chapter.” Tex. Gov’t Code Ann. § 554.006(a) (emphasis added). “Section 554.006 does not require that grievance or appeal procedures be exhausted before suit can be filed; rather, it requires that such procedures be timely initiated and that the grievance or appeal authority have 60 days in which to render a final decision.” Univ. of Tex. Med. Branch at Galveston v. Barrett, 159 S.W.3d 631, 632 (Tex.2005); see also Shilling, 266 S.W.3d at 102 (“The requirement that an employee ‘initiate’ grievance procedures before filing suit is to afford the employer an opportunity to correct its errors by resolving disputes before litigation.”). Compare Aguilar v. Socorro Indep. Sch. Dist., 296 S.W.3d 785, 789 (Tex.App.-El Paso 2009, no pet.) (stating that, in light of section 554.006(d), the change in statutory language from “exhaust” to “initiate” in section 554.006(a) has no effect on the implementation of the statute), with Med. Arts Hosp. v. Robison, 216 S.W.Bd 38, 43-44 (Tex.App.-Eastland 2006, no pet.) (stating that the change from “exhaust” to “initiate” promotes a more liberal construction of the act by focusing less on whether the employee has complied with all of the procedural requirements of a grievance and asking instead if the governmental entity received the required notice).

As presented both in briefing and oral argument before this court, the questions in this appeal are: (1) Was McQuary required, in initiating action under the grievance procedure, to put Tarrant County on notice that she was asserting a Whistle-blower Act claim? (2) If she was so required, did she give such notice? (3) And if she was so required and no such notice was given, was she wrongfully prevented from providing such notice?

We answer the first question in the affirmative, holding that, as a prerequisite to bringing a Whistleblower Act claim, a government employee must provide reasonable notice that she is making a Whistle-blower Act claim in the initiation of the grievance or appeal procedures related to the suspension or termination of employment or adverse personnel action. We answer the second two questions in the negative.

C. Matters Considered

In December 2005, the Tarrant County Sheriffs Office hired McQuary, a registered nurse, as its first “Jail Medical Liaison.” Executive Chief Deputy Bob Knowles was McQuary’s direct supervisor. In June 2006, at the end of McQuary’s 180-day probationary period, Sheriff Dee Anderson terminated McQuary’s employment.

McQuary filed suit against Tarrant County, alleging that she had been terminated in retaliation for reporting violations of law. Specifically, McQuary claimed:

Within one week of employment, [she] began being subjected to a hostile environment anytime she expressed or voiced any concerns regarding patient rights, health concerns regarding the inmates, or the failure to follow state or federal law. On or about December 29, 2005, [she] approached her supervisor regarding [a] letter she wanted to send to the Sheriff. The letters were a summary of her visits with staff regarding policy and procedures for the medical records (including HIPPA violations) and recommended training for staff regarding same. On December 30, 2005, [she] again spoke with her supervisor about corresponding with [the] Sheriff about other legal violations regarding TB testing and reading and the Standing Order and Protocols for treating inmates. Her supervisor’s response was to tell her she was “making Dr. Byrd mad” and deny her access to JPS Policies and Procedures and her own job description. He also stated, “We must be careful what we write and how we write it and what goes to the Sheriff.” These actions began a pattern of [McQuary] disclosing problem areas and violations of law, as well as recommendations for resolutions, only to be ... treated poorly by Dr. Byrd and ordered by her supervisor to ignore legal violations and problem areas.
In good faith, [she] reported violations of federal and state law by JPS and the Sheriffs Office regarding medical treatment, services and practices to Executive Chief Deputy Sheriff Bob Knowles.... In good faith, [she] believed that Deputy Knowles, as a member of the Sheriffs Office, had the authority to regulate under or enforce the laws alleged to have been violated, or to investigate or prosecute a violation of criminal law. [She] was led to believe that her concerns regarding illegal activities were being forwarded to the Sheriff. [Her] supervisor was deliberately indifferent to [her] disclosures of these legal violations and made a conscious choice not to act or investigate the violations, and prevented [her] from taking any actions on her own to resolve the violations of law, or [to] inform and seek assistance [from] anyone else. With regard to [her] disclosure about the inadequacy of the TB testing of the JPS staff itself, his response was he “hoped they all died from TB.”
Because of [her] good faith disclosures and reports of violations of laws, she was threatened, harassed, and ultimately fired....

Tarrant County filed a plea to the jurisdiction, attaching to it Sheriff Anderson’s affidavit; a copy of the notice of termination from Sheriff Anderson to McQuary, dated June 9, 2006, which set out her termination date as June 16, 2006, and informed her that rule 8.08 of the Sheriffs Department Civil Service Rules allowed her five working days to appeal to the sheriff; a copy of rule 8.08 of the Sheriffs Department Civil Service Rules; a copy of McQuary’s June 12, 2006 letter to Sheriff Anderson; a copy of an undated letter from McQuary to Sheriff Anderson; and a copy of a letter dated June 16, 2006, from Sheriff Anderson to McQuary, stating that the termination would stand and that she had exhausted her administrative appeals process. In its plea to the jurisdiction, Tarrant County argued that McQuary never mentioned anything related to whistle-blowing activities, reports of misconduct, or opposition to anything illegal or allegedly illegal when appealing her termination to the sheriff.

In Sheriff Anderson’s affidavit, he discussed McQuary’s termination and the subsequent correspondence between himself and McQuary attached to the affidavit and the plea to the jurisdiction. In her June 12, 2006 letter, McQuary stated the following:

I am aware newly hired employees of the Tarrant County Sheriffs Office serve a probationary period of one hundred and eighty (180) days. Chapter 8 of the Tarrant County Sheriffs Department Civil Service Rules regarding probation 8.06 reads: EVALUATION OF PROBATIONARY PERIOD. The probationer shall be evaluated at least twice during the probationary period by their immediate supervisor. One evaluation must be at the midpoint of the probationary period and a second evaluation must be not less than (10) days prior to the end of the probationary period.
As of this day, June 12, 2006, I have not received any evaluations; written or oral. Pursuant to Chapter 8 of the Tar-rant County Sheriffs Department Civil Service Rules my first evaluation should have been March 20, 2006 and the second evaluation should have been somewhere between June 9-19, 2006. My first day of employment is December 21, 2005. I received the termination of probationary employment on June 9, 2006. On January 25, 2006, Chief Knowles told me to disregard my job description. Within the next few days, I discussed this with Chief Key and he advised me to keep a record.
The information included proves the non-compliance with Tarrant County Sheriffs Department Civil Service Rules.

In the second, undated letter to Sheriff Anderson, McQuary stated:

It appears the probationary period was completed successfully and there is no documentation that exists showing otherwise. Medical liaison for the entire Sheriffs Department rather than just jail liaison will broaden the scope and duties of the position. I am happy to work with Chief Knowles and have no hard feelings. Considering the recent progression, I request to continue employment with [the] Tarrant County Sheriffs Department as the medical liaison with your immediate supervision. With this arrangement, I will receive direction and communication and a revised job description.

With regard to McQuary’s letters, Sheriff Anderson stated in his affidavit that he

understood the two documents to comprise a request for continued employment, but nothing in the documents suggested that she felt that she was being retaliated against on any basis whatsoever. Neither document made any reference to any reports of any law violations or reports of misconduct which she was claiming to have made prior to [his] issuance of the June 9, 2006 letter stating [his] intention to terminate her employment. She said nothing to [him] which gave [him] any reason to suspect that she was or had been claiming to be a whistleblower and [he] was not aware of her making claims of this nature to anyone else.

He also stated that at the end of McQuary’s probationary period,

[he] concluded, based upon [his] personal observations and reports from other people who worked with her or observed her work in the jail, that [ ] McQuary was not the right fit for the new position and [he] made the decision to terminate her employment at the end of that probationary period.

In her affidavit attached to her response to Tarrant County’s plea to the jurisdiction, McQuary included the information stated in her pleadings and added:

During my “appeal hearing” with Sheriff Dee Anderson, I attempted to explain in detail to the Sheriff the problems and issues I was having during my employment. Sheriff Anderson refused to listen to any such statements and just walked out and said he “would look into it” and that he was “late for a meeting.” Also at this “hearing” I attempted to give Sheriff Anderson notes that detailed issues with law violation at the jail in the past. I advised Sheriff Anderson that “I had no hard feelings toward Chief Knowles and that I was still willing to work with him.” However, I did not wish to work directly under Chief Knowles and would prefer to be directly under Sheriff Anderson. Any time I tried to explain the particulars of my termination, including the retaliation for reports of law violations, I was immediately cut-off by Sheriff Anderson and told that he had to be somewhere else. My “appeal hearing” lasted approximately one minute; therefore I was not allowed to detail any of my complaints, including whistleblower complaints and retaliation complaints, at that time. I was purposefully prevented from voicing these issues and complaints by Sheriff Dee Anderson and other members of the Sheriffs Department, in an effort to thwart my legal rights.

After taking the matter under consideration, the trial court denied Tarrant County's plea to the jurisdiction, setting out the following reasons in a letter to the parties:

The County stated in its presentation that the Civil Service Rules which govern appeals to the Sheriff do not require that the employee make a written appeal. I agree. An employee may make an oral appeal or supplement a written appeal orally.
The written notice of appeal does not use the words retaliation, whistleblower [,] or state [McQuary] was fired because she complained about illegal or inappropriate activities. However, [McQuary’s] written notice does allege that Chief Knowles told her to disregard her job description and that Chief Key, upon being told of this action by Chief Knowles, advised her to keep a record. The reason Chief Knowles allegedly told her to disregard her job description and Chief Key allegedly advised her to keep a record is not stated in the written notice of appeal. [] McQuary claims that she was going to orally supplement the notice when she had her appellate hearing with the Sheriff.
After [] McQuary filed her notice of appeal, she met with the Sheriff for the purpose of presenting her appeal of her termination. Based on the affidavits of Sheriff Anderson and [ ] McQuary, there is a factual dispute as to whether [] McQuary tried to inform the Sheriff of her alleged Whistleblower activities and the alleged retaliation. [ ] McQuary states in her affidavit that any attempt to discuss these topics was rebuffed and that the appeal hearing lasted less than a minute.
The clear tenor of the Sheriffs affidavit denies any such attempt when he states that “She said nothing to me which gave me any reason to suspect that she was or had been claiming to be a Whistleblower, and I was not aware of her making claims of this nature to anyone else.”
I am of the opinion that the written allegations concerning Chief Knowles and Chief Key, plus the affidavits of [ ] McQuary and Sheriff Anderson, raise a fact issue as to whether or not [] McQuary was prevented from exhausting her administrative remedies.

D. Analysis

1. Notice Requirement

We hold that McQuary was required to give reasonable notice to Tarrant County that she was asserting a Whistle-blower Act claim. See Robison, 216 S.W.3d at 48; Montgomery County Hosp. v. Smith, 181 S.W.3d 844, 850 (Tex.App.Beaumont 2005, no pet.).

“Notice” means “fair notice” — that is, notice of the employee’s intent to appeal a disciplinary decision and notice of which decision or decisions the employee intends to appeal. Smith, 181 S.W.3d at 850 (holding that, in the absence of a statutory standard or a standard created by an employee manual detailing the required contents of a public employee’s notice of appeal, an employee must give fair notice of her decision to appeal and of the decision appealed from). In Smith, the employee alleged in her pleadings that she had been fired for reporting to a board member that the hospital district’s CEO entered into a contract to sell a building owned by the hospital district. Id. at 845-46. The hospital district argued that her termination was based on her poor job performance and conduct unrelated to her retaliation claim. Id. at 846. After her termination, Smith sent the CEO an email requesting that he reconsider the amount of severance offered in exchange for a release of her claims. Id. But she contended on appeal that the email constituted an appeal of the decision to terminate her employment. Id. Upon reviewing the email, the court concluded that Smith failed to initiate the appeal process required for a Whistleblower Act claim because “no reasonably prudent employer could have been subjectively aware that Smith, by virtue of [her] e-mail, desired to invoke the [hospital district’s] disciplinary appeal process with respect to her termination.” Id. at 850; cf Gregg County v. Farrar, 933 S.W.2d 769, 773-74 (Tex.App.-Austin 1996, writ denied) (holding that Farrar sufficiently presented notice of his Whistleblower Act claim during his grievance committee hearing).

Simply asking the employer to reconsider termination by making alternative suggestions is insufficient to provide notice. See Robison, 216 S.W.3d at 44. In Robison, a nurse at a local state prison unit failed to give any written notice of her intent to pursue a Whistleblower Act claim and failed to point to any evidence that she, at any time prior to filing suit, otherwise notified her employer that she believed her termination was in retaliation for reporting illegal activities at the unit to the Texas Labor Board. Id. at 39, 43. That is,

[s]he unquestionably informed the hospital that she disagreed with their decision to eliminate her position, and she provided an alternative method for satisfying the budget cut [to which her employer had attributed her termination]. However, Robison’s communications would not have provided any reasonable employer with notice that a potential whis-tleblower claim existed.

Id. at 43.

The legislature intended that the governmental entity — in this case, Tarrant County — be given an opportunity to correct its mistakes by resolving claims before the expense and effort of litigation ensue. See Shilling, 266 S.W.3d at 102; Farrar, 933 S.W.2d at 775. But to be able to do this, the governmental entity must be given reasonable notice that it has, in fact, made a mistake that can be resolved before a lawsuit is filed. See Robison, 216 S.W.3d at 43-44; Smith, 181 S.W.3d at 850. This goes hand-in-glove with the rea-sorting behind the exhaustion previously required under government code section 554.006(a):

I hope that you had a good holiday with your family. I have spoken to Stacy regarding the release of claims document. She told me that you were standing by the number of 4,200 for my release. I am sincerely asking you to please reconsider. I know that you have a good heart and that is why I am even asking again. It would help my family out tremendously with the upcoming holidays and such to have the extra monies to keep us afloat for a little while. Again, I am sincerely asking to please, please reconsider. When I spoke to Greg he said that you were able to, but had to make the decision. I enjoyed working with you and the organization and am truly sorry for the way things worked out.
Please let me know so I may come to the District to finalize everything. Smith, 181 S.W.3d at 846. She ultimately rejected the severance offer. Id.
An eminently practical reason for requiring exhaustion of remedies is that the complaining party may be successful in vindicating his rights in the administrative process and never have to resort to court. Notions of administrative autonomy require further that the agency be given first opportunity to discover and correct its own errors.

Ender, 30 S.W.3d at 594 (holding that employee satisfied statutory exhaustion requirement based on the description in his handwritten grievance, the relief he requested, and his “numerous reports [to various supervisors inside and outside his department] of the illegality” being applied to him, even though his grievance did not include the words “retaliation” or “discrimination”); see also Robison, 216 S.W.3d at 43 (distinguishing Fort Bend Indep. Sch. Dist. v. Rivera, 93 S.W.3d 315, 317-18 (Tex.App.-Houston [14th Dist.] 2002, no pet.), Upton County v. Brown, 960 S.W.2d 808, 811-12 (Tex.App.-El Paso 1997, no pet.), and Beiser v. Tomball Hosp. Auth., 902 S.W.2d 721, 723 (Tex.App.-Houston [1st Dist.] 1995, writ denied) (op. on reh’g), because in each of those cases, the employer received actual notice that its employee believed he or she had been fired in retaliation for reporting illegal activities). But cf. Moore v. Univ. of Houston-Clear Lake, 165 S.W.3d 97, 102-03 (Tex.App.Houston [14th Dist.] 2005, no pet.) (noting in dicta that the Whistleblower Act does not require that the employee use any particular words when filing his grievance or state that his appeal is based on the Whistleblower Act; however, the evidence relevant to jurisdiction suggested that UHCL had actual notice of Moore’s whis-tleblower claims prior to his termination).

2. The Notice in Issue

We conclude from the evidence presented to the trial court that the communications between McQuary and the sheriff in no way put the sheriff on notice that a Whistleblower Act claim was being asserted. See Smith, 181 S.W.3d at 846, 850. In fact, the only complaints McQuary made in the documents she submitted to the sheriff were that she had not received any evaluations and that Chief Knowles had told her to disregard her job description. The overall subject and tenor of the communications was that she would like to continue her employment with the department, preferably directly under the sheriffs supervision, and that she had no hard feelings toward anyone. This constitutes no notice of a Whistleblower Act claim. See Robison, 216 S.W.3d at 44; Smith, 181 S.W.3d at 846, 850.

3. Prevention

McQuary complains that, if notice was required, she was excused from that requirement because her efforts to give notice were thwarted. She refers us to Rivera in support of this argument. Rivera states, in pertinent part,

If the attempts by an employee to comply with the entity’s grievance procedures were effectively thwarted by the entity’s refusal to meet, the purpose of the statute would be frustrated, particularly if the entity was allowed to proclaim that the employee did not exhaust her administrative remedies under the Act. Fort Bend ISD cannot, on the one hand, refuse to meet with an employee as required by the policy, and then, on the other hand, complain that the employee failed to follow the policy.

93 S.W.3d at 320.

In Rivera, the Fort Bend ISD principal, the source of Rivera’s complaint and Rivera’s direct supervisor, refused to meet with Rivera after Rivera reported to her that the principal’s falsification of the enrollment documents for the principal’s niece and another employee’s child violated the law. Id. at 317-18. This meeting was required by the grievance procedure, and the procedure was silent as to “what to do if one’s ‘Level One’ supervisor refuses to grant the employee a meeting.” Id. at 317 & n. 2, 320. Further, the human resources department initially did not provide guidance and advised her to quit. Id. at 318, 320. As noted by the court, “a terminated employee’s claims will not be barred by the statutory requisites of the [Wjhistle-[B]lower [A]ct” if the grievance policy is unclear. Id. at 320-21.

The facts in Rivera, are not the facts before us. McQuary was required to communicate her appeal to the sheriff and did so. Those communications were not restricted in any way. That is, rule 8.08, under which McQuary could appeal the original termination decision, does not specify any particular form or format for either her appeal or the sheriffs decision, nor is there any mention of whether any sort of hearing or face-to-face meeting should be held. All means of communication, therefore, were available to McQuary to convey the belief that her termination was related to her alleged reports of violations of the law. Thus, when she felt that the sheriff did not effectively meet with her in their face-to-face meeting after he reviewed her written communications, nothing kept McQuary from requesting another face-to-face meeting or from communicating further in writing. Under these circumstances, we cannot say that she was thwarted in her efforts to follow the grievance procedure. Accordingly, we sustain Tarrant County’s sole issue.

IV. Conclusion

Having determined that the trial court erred by denying the plea to the jurisdiction, we reverse the trial court’s order and render judgment granting Tarrant County’s plea to the jurisdiction.

      . Civil Service Rule 8.08 states, in pertinent part,
      (1)The employee on probation who receives ... a notice of termination, may appeal to the Sheriff within five (5) working days.
      (2) The Sheriff shall have ten (10) working days to review the appeal.
      (3) The decision of the Sheriff shall be final in cases of original ... probation.

      . The email stated:

      . During the hearing, Farrar told the committee:
      [0]n April 16th, Monday morning Commissioner said that if I find out who is doing this [reporting the commissioner's orders to dump barrels containing unknown substances] I will fire [th]em and then he retracted his statement and I will get [th]em fired.... And also on ... July 16 it was repeated and I would like to know why and his statement “lack of loyalty to employees" that’s here in the manual in a threatening way.

        Fairar, 933 S.W.2d at 771, 774. Farrar’s claim was ultimately dismissed for failure to comply with the then-existing exhaustion requirement under the statute. Id. at 776-77.

      . "[W]hen Human Resources finally did provide some guidance to Rivera’s daughter, even that advice-to proceed to 'Level Two'Fort Bend ISD admitted was incorrect, and thus, was entirely unclear.” Rivera, 93 S.W.3d at 320.


author:
MACKEY K. HANCOCK, Justice. PATRICK A. PIRTLE, Justice,
      PATRICK A. PIRTLE, Justice,

text:
    The STATE of Texas, Appellant, v. Chris Allen McLAIN, Appellee.
    No. 07-09-00234-CR.
    Court of Appeals of Texas, Amarillo, Panel A.
    April 6, 2010.
    Rehearing Overruled and Dissenting Opinion Filed May 7, 2010.

      Rob Daniel, Assistant District Attorney, Plainview, TX, for Appellant.
    Chuck Lanehart, Chappell, Lanehart & Stangl, P.C., Lubbock, TX, for Appellee.
    Before CAMPBELL and HANCOCK and PIRTLE, JJ.
   OPINION

MACKEY K. HANCOCK, Justice.

The State of Texas appeals the granting of a motion to suppress by the trial court. Appellee, Chris Allen McLain, was arrested and indicted for possession with intent to deliver a controlled substance, methamphetamine, in an amount of four grams or more but less than 200 grams. We affirm.

Factual and Procedural Background

On February 27, 2009, a Plainview police officer presented an affidavit requesting a search warrant to search a business and residence at 3607 North Columbia in Plain-view, Texas. The affidavit further alleged that the location to be searched was controlled by appellee. A search was conducted and officers found several items of contraband, among which was over 100 grams of methamphetamine.

A Hale County Grand Jury subsequently indicted appellee on a charge of possession with intent to deliver methamphetamine, in an amount of four grams or more but less than 200 grams. Appellee’s trial counsel filed a motion to suppress the contraband seized as a result of the search authorized by the warrant. The trial court held a hearing on appellee’s motion to suppress on June 29, 2009. At the conclusion of the hearing, the trial court requested briefs from both parties setting forth their arguments. After receiving the briefs, the trial court granted the motion to suppress on July 14, 2009. At the request of the State, the trial court filed findings of fact and conclusions of law on July 15, 2009.

The State has brought forth two issues on appeal. First, the State contends that the trial court abused its discretion by granting the motion to suppress. Second, the State alleges that the good faith exception contained in article 38.23 of the Texas Code of Criminal Procedure applies. Disagreeing with the State, we will affirm the judgment of the trial court.

Standard of Review

The State contends that the trial court abused its discretion when it granted the appellee’s motion to suppress the evidence seized when the search warrant was served. We normally review a trial court’s ruling on a motion to suppress by using a bifurcated standard of review, wherein we give almost total deference to the historical facts found by the trial court and review de novo the trial court’s application of the law. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007). However, when the trial court is determining probable cause to support the issuance of a search warrant there are no credibility determinations, rather the trial court is constrained to the four corners of the affidavit. Hankins v. State, 132 S.W.3d 380, 388 (Tex.Crim.App.2004). Accordingly, when we review the magistrate’s decision to issue a warrant, we apply a highly deferential standard. Swearingen v. State, 143 S.W.3d 808, 810-11 (Tex.Crim.App.2004). We apply this deferential standard because we have a constitutional preference for searches to be conducted pursuant to a warrant as opposed to warrantless searches. Id. at 810. (citing Illinois v. Gates, 462 U.S. 213, 234-37, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). As long as the magistrate had a substantial basis for concluding that probable cause existed, we will uphold the magistrate’s probable cause determination. Gates, 462 U.S. at 236, 103 S.Ct. 2317.

For purposes of our review, we will find probable cause to exist when the affidavit shows facts and circumstances within the affiant’s knowledge to warrant a person of caution to believe that 1) a specific offense has been committed, 2) the property to be searched or items to be seized constitute evidence of the offense or evidence that a particular person committed the offense, and 3) the property or items are located at or on the person, place, or thing to be searched. Art. 18.01(c); Hughes v. State, 843 S.W.2d 591, 593 (Tex.Crim.App.1992). Finally, we are instructed not to analyze the affidavit in a hyper-technical manner. Gates, 462 U.S. at 236, 103 S.Ct. 2317. Rather, when we review the magistrate’s determination, we should interpret the affidavit in a commonsensical and realistic manner, recognizing that the magistrate may draw reasonable inferences. Rodriguez v. State, 232 S.W.3d 55, 61 (Tex.Crim.App.2007).

Analysis

According to the findings of fact issued by the trial court, the court found that the affidavit lacked any specificity regarding when the matters referenced within its four corners occurred. The only mention of time within the four corners of the affidavit is the following statement: “In the past 72 hours, a confidential informant advised the Affiant that Chris was seen in possession of a large amount of methamphetamine at his residence and business.” The State urges that we view this statement as implying that the observation of the methamphetamine occurred within the 72 hours before the execution of the affidavit. However, such an implication is not supported by the plain text of the affidavit. We agree with the trial court that, given a common sense reading, the affidavit’s reference to the “past 72 hours” speaks to when the affiant spoke to the confidential informant, not when the confidential informant acquired the information.

All we can determine from the four corners of the affidavit is when the affiant spoke to the confidential informant. As the only time reference given in the affidavit is the one described above, the affidavit fails to provide probable cause for it fails to meet the requirements of article 18.01(c). See art. 18.01(c). The affidavit fails to give the magistrate any idea of when any of the activity which allegedly supports the issuance of a warrant occurred. See Davis v. State, 202 S.W.3d 149, 155 (Tex.Crim.App.2006). The failure to describe when the events referred to took place is fatal to the efficacy of the affidavit. Schmidt v. State, 659 S.W.2d 420, 421 (Tex.Crim.App.1983). Because the affidavit fails to meet the requirements of article 18.01(c), there can be no probable cause for the issuance of a search warrant. Id. Accordingly, the trial court did not abuse its discretion in granting appellee’s motion to suppress. We, therefore, overrule the State’s first issue.

Article 38.23(b)

We will next address the State’s second contention. The State alleges, because ap-pellee’s motion to suppress was based on claims that the search in question violated the Fourth Amendment to the United States Constitution and Article I, section 9 of the Texas Constitution and did not specifically request exclusion of the evidence pursuant to article 38.23(a), that the good faith exception of article 38.23(b) applies to allow the State to use the evidence.

First, the position of the State ignores the plain language of article 38.23(b), which states:

It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.

art. 38.23(b).

When we construe a statute, we look at the plain meaning of the words used in the statute unless the language is ambiguous or its plain meaning leads to absurd results. Swearingen v. State, 303 S.W.3d 728, 732 (Tex.Crim.App.2010). Looking at the plain meaning of the statute, it is clear, that in order for the exception that the State urges to apply, there must first be probable cause. See Carroll v. State, 911 S.W.2d 210, 223 (Tex.App.-Austin 1995, no pet.) (citing Curvy v. State, 808 S.W.2d 481, 482 (Tex.Crim.App.1991)). Inasmuch as we have determined that the trial court did not abuse its discretion in finding that the affidavit in support of the search warrant did not provide probable cause, the exception of article 38.23(b) does not apply. Therefore, we overrule the State’s second issue.

Conclusion

Having overruled the State’s issues, we affirm the trial court’s judgment.

PIRTLE, J., concurring.

PATRICK A. PIRTLE, Justice,

concurring.

Appellee’s business and residence were searched pursuant to a search warrant, issued by a magistrate, based upon an affidavit which the trial court found lacked a substantial basis for concluding that a search of the described premises would uncover evidence of wrongdoing at the time the warrant was issued. Examining the four corners of the affidavit, the trial court found that the affidavit lacked any specificity regarding when the matters referenced occurred because the only temporal statement concerning evidence to be seized was as follows:

In the past 72 hours, a confidential informant advised the Affiant that Chris was seen in possession of a large amount of methamphetamine at his residence and business.

The trial court concluded that the reference to “the past 72 hours” was a reference to when the affiant spoke to the confidential informant and not a reference to when the confidential informant witnessed Appellee in possession of the contraband. Based upon that finding, the trial court granted Appellee’s motion to suppress evidence seized as a result of the execution of that search warrant. In an appeal brought by the State, the majority has found, and I agree, that the trial court did not abuse its discretion in granting Appellee’s motion to suppress. While I concur in the result reached by the majority, I write separately because I interpret the State’s second issue differently than the majority.

The majority construes the State’s second issue as contending that the trial court erred because the “good faith” exception found in article 38.23(b) of the Texas Code of Criminal Procedure applies so as to exempt the contested evidence from exclusion. The majority then proceeds to overrule that issue by explaining why that exception does not apply to the situation where an officer’s objective good faith reliance is based upon a warrant that was not issued upon probable cause. While I agree with this conclusion, I construe the State’s contention differently. I believe the State is contending that Appellee did not raise an article 38.23 objection, thereby waiving it, and that this Court should therefore apply a good faith exception to the application of the exclusionary rule for the technical violation of an accused’s constitutional rights, both state and federal, where the evidence is obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate.

Neither the order granting Appellee’s motion to suppress, nor the Findings of Fact and Conclusions of Law filed by the trial court, specify the basis upon which the evidence seized was suppressed. Furthermore, neither the Brief for the Appel-lee filed in this cause, nor the Brief in Support of Defendant’s Motion to Suppress Evidence, ever mention article 38.23. The only reference Appellee makes to article 38.23 is contained in the Motion to Suppress, filed by his previous counsel, wherein he generally contends that the evidence was seized “in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, Section 9, 10, and 19 of the Constitution of the State of Texas and under article 38.23 of the Texas Code of Criminal Procedure.” To the extent that the trial court’s basis for exclusion was anything other than article 38.23, I agree with the State’s contention that the exclusionary rule should not apply to the facts of this ease.

While the Fourth Amendment to the United States Constitution, and Article I, Section 9 of the Texas Constitution, both protect the right of the people to be secure in their persons, houses, and possessions, against unreasonable searches and seizures, neither contains a provision expressly precluding the use of evidence obtained in violation of their commands. The exclusionary rule we commonly apply is a judicially created rule “designed to safeguard Fourth Amendment rights generally through its deterrent effect.” Herring v. United States, 555 U.S. -, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009); United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). The fact that a Fourth Amendment violation occurs does not necessarily mean that the exclusionary rule applies and in determining its applicability to a given set of facts the trial court must consider the objective reasonableness of not only the officers who originally obtain a warrant, but also the officers who eventually execute the warrant. Herring, 129 S.Ct. at 700; United States v. Leon, 468 U.S. 897, 923, n. 24, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

In Herring, the police arrested the accused based upon a warrant listed in their computer database. A search incident to that arrest yielded drugs and a gun. It was subsequently determined that the warrant had been recalled months earlier, though the warrant information had never been removed from that database due to the negligence of personnel in the reporting jurisdiction’s sheriffs office. When Herring was indicted on federal gun and drug possession charges, he moved to suppress that evidence. The trial court concluded that the exclusionary rule did not apply and denied the motion to suppress. In affirming the trial court’s decision, the Supreme Court concluded that, although Herring’s arrest was predicated upon an invalid warrant, the benefit of applying the exclusionary rule would be marginal or non-existent where the arresting officer was acting in objective good faith when he reasonably believed there to be an outstanding warrant. Herring, 129 S.Ct. at 704.

That same logic reasonably applies here. When officers executed the search warrant in question in this case, they reasonably believed that the warrant had been issued by a neutral magistrate in compliance with the provisions of article 18.01 of the Texas Code of Criminal Procedure. The police misconduct here, if any, was bad grammar, not a “systemic error or reckless disregard of constitutional requirements.” Id. In cases such as this, the exclusionary rule should not automatically be applied.

While I do not read the State’s second issue as narrowly as the majority, in the final analysis, the majority’s conclusion is both correct and controlling. Although Appellee never advocated the exclusion of evidence on the basis of article 38.23 at trial or on appeal, it cannot be said that he waived the reference thereto in his motion to suppress. Because the majority correctly concludes that the evidence is ex-cludable under article 38.23(b), and because an appellate court must affirm the decision of the trial court regarding a motion to suppress if that decision is reasonably supported by the record and is correct upon any theory of law applicable to the case, Young v. State, 283 S.W.3d 854, 873-74 (Tex.Crim.App.2009), I concur in the result reached by the majority.

PATRICK A. PIRTLE, Justice,

dissenting on state’s motion for rehearing.

Without written opinion, the majority has decided to overrule the State’s Motion for Rehearing. Because I believe the State has raised a legitimate issue as to whether or not Appellee waived Article 38.23 as a basis for suppression of evidence seized pursuant to the search warrant the subject of this appeal, I would grant the State’s motion to address that issue. See Resendez v. State, 306 S.W.3d 308 (Tex.Crim.App.2009); (designated for publication).

      . See Tex Code Crim. Proc Ann. art. 44.01(a)(5) (Vernon 2007).

      . See Tex. Health & Safety Code Ann. § 481.112(a), (d) (Vernon Supp.2009)

      . Further reference to the Texas Code of Criminal Procedure will be by reference to “ article-" or “art.-


author: JAMES T. CAMPBELL, Justice.

text:
    Gary L. LINDSEY, Appellant, v. The STATE of Texas, Appellee.
    No. 07-08-00150-CR.
    Court of Appeals of Texas, Amarillo, Panel D.
    April 8, 2010.

      Ronald Delarose, Attorney at Law, Lubbock, TX, for Appellant.
    Kollin Shadle, Assistant Criminal District Attorney, Lubbock, TX, for Appellee.
    Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
   OPINION

JAMES T. CAMPBELL, Justice.

Appellant Gary L. Lindsey appeals the revocation of his community supervision. In a single point of error, appellant contends the trial court abused its discretion because it failed to conduct a competency inquiry sua sponte. We affirm the judgment of the trial court.

Background

In 2003, pursuant to a plea agreement, appellant plead guilty to a charge of delivery of cocaine. The indictment also included a notice that the offense was committed in a drug-free zone.

In accordance with his plea agreement, appellant received a sentence that included confinement in the Institutional Division of the Texas Department of Criminal Justice for ten years and required his payment of restitution, costs and fees. The court suspended the sentence of confinement and placed appellant on community supervision for ten years. The terms of community supervision included appellant’s commitment to a residential treatment facility. A year later, the terms were modified to release appellant from the community corrections facility and place him on intensive supervision. The State later filed an application to revoke appellant’s community supervision, alleging numerous violations of the conditions of his community supervision. The court held hearings on the motion in November 2007 and March 2008. Appellant plead not true to each of the State’s allegations.

The State presented the testimony of the probation officer assigned to appellant to show that appellant violated the terms of his probation by, among others, failing to maintain abstinence from use or possession of alcoholic beverages and drugs by testing positive for cocaine, failing to report, failing to make required payments, failing to avoid persons or places of disreputable or harmful character, and failing to work faithfully at suitable employment. The trial court found that appellant violated those terms of his probation and sentenced him to imprisonment in the Institutional Division of the Texas Department of Criminal Justice for ten years. The trial court certified appellant’s right of appeal and appellant timely appealed.

Analysis

Applicable Law

By his sole issue on appeal, appellant contends the trial court abused its discretion in failing to sua sponte conduct an informal inquiry into his competency to stand trial as required by the Code of Criminal Procedure. We review a trial court’s failure to conduct a competency inquiry under an abuse of discretion standard. Moore v. State, 999 S.W.2d 385, 393 (Tex.Crim.App.1999), cert. denied, 530 U.S. 1216, 120 S.Ct. 2220, 147 L.Ed.2d 252 (2000); Gray v. State, 257 S.W.3d 825, 827 (Tex.App.-Texarkana 2008, pet. ref'd); LaHood v. State, 171 S.W.3d 613, 617-18 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence. Tex.Code Crim. Proc. Ann. art. 46B .003(b) (Vernon 2006). A person is incompetent to stand trial if he does not have (1) sufficient present ability to consult with his attorney with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against him. Id. at 46B.003(a). The same standard applies to a revocation hearing. See McDaniel v. State, 98 S.W.3d 704, 710 (Tex.Crim.App.2003); Rice v. State, 991 S.W.2d 953, 958 (Tex.App.-Fort Worth 1999, pet. ref'd) (each applying standard to revocation hearing).

If, during court proceedings, evidence comes to the attention of the trial court from any source raising a bona fide doubt as to the defendant’s competency, the court must conduct an informal inquiry outside the jury’s presence to determine whether there is evidence to support a finding of incompetency to stand trial. See Fuller v. State, 253 S.W.3d 220, 228 (Tex.Crim.App.2008); Criswell v. State, 278 S.W.3d 455, 458 (Tex.App.-Houston [14th Dist.] 2009, no pet.); Tex.Code Crim. Proc. Ann. art. 46B.004 (Vernon 2005). In its inquiry, the court must determine whether there is any evidence to support a finding of incompetency and, if the court finds that such evidence exists, it must order an examination of the defendant. Fuller, 253 S.W.3d at 229; Tex.Code Crim. Proc. Ann. arts. 46B.005(a), 46B.021 (Vernon 2005).

Evidence capable of creating a bona fide doubt about a defendant’s competency may come from the trial court’s own observations, known facts, evidence presented, motions, affidavits, or any other claim or credible source. Brown v. State, 129 S.W.3d 762, 765 (Tex.App.-Houston [1st Dist.] 2004, no pet.). Evidence is usually sufficient to create a bona fide doubt if it shows recent, severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant. McDaniel, 98 S.W.3d at 710. If evidence warrants a competency hearing, and the trial court denies such a hearing, the defendant is deprived of his constitutional right to a fair trial. LaHood, 171 S.W.3d at 618, citing Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).

Application

Appellant argues several facts were before the trial court that should have suggested his incompetency to the court. Appellant first points to statements made by his probation officer during testimony at the March 2008 hearing. The officer testified that he handled a “specialized case load, people with mental health disorders.” He also said that appellant had resided at treatment centers for some period of time and committed himself to a facility after having thoughts of suicide. Appellant also contends that his “confusion” at the November 2007 hearing regarding whether the drug-free zone allegation in his indictment had been “dropped” denoted his confused mental state. The State argues that, even taken together, these facts did not trigger the courts duty to inquiry into appellant’s competence. We agree with the State.

Initially, we note that during appellant’s original plea hearing in 2003, appellant answered affirmatively to the trial court’s question asldng him, “Did you sign these [plea] papers and give up those rights and enter your plea of guilty freely, knowingly and voluntarily?” We note also that the record of the November 2007 hearing contains the following exchange between the court and appellants trial counsel:

The Court: Counsel, you’ve had the opportunity to go over all these matters with your client. Are you satisfied that he understands the nature of the charge against him, the rights he’s entitled to under the law, and the consequences of entering the plea before the Court here today?
Counsel: I am, Your Honor.
The Court: Are you satisfied he is mentally competent to enter the plea before the Court here today?
Counsel: Yes, sir, I am.

The record reflects appellant did not speak at the hearing held in March 2008, but it does indicate he consulted with his attorney during the proceedings.

We see nothing in appellant’s conduct at any of the three hearings to cast doubt on his competence to stand trial. The records reflect no statement or action in any way inappropriate or unusual. Appellant said very little other than to express his understanding of the questions and admonishments directed at him by the trial court. His responses to admonishments and questions were timely, appropriate and logical. Neither appellant, counsel, nor anyone else in the courtroom at any time voiced concern over appellants ability to communicate with his counsel or understand the proceedings, nor do we see anything in the record to suggest appellant was having difficulty communicating or understanding the proceedings.

We disagree with appellant that his one spontaneous inquiry reflected in the record, when at the November 2007 hearing he asked whether the drug-free zone allegation of his indictment had been “dropped,” necessarily suggests confusion on his part. As the State points out, it well can be seen as illustrating his understanding of the proceedings against him.

Appellant urges us to find importance in his supervision by a probation officer who testified to supervising probationers with mental health disorders. He argues no evidence shows he was assigned to that officer in error or because of “some staffing problem.” We disagree that any inference regarding appellant’s competency at trial is to be drawn merely from his assignment to that particular probation officer. We disagree also that the addition of appellants short stays at treatment facilities and his voluntary commitment for suicidal thoughts combined to require the trial court to inquire into his competence at the revocation hearings. The record indicates that after appellant was placed on probation in 2003, he was initially sent to the Community Residential Treatment Center. Each of appellant’s voluntary commitments occurred in 2004, more than three years before the hearings on the application to revoke appellant’s community supervision. None of the stays at treatment facilities raise questions about whether appellant had a recent severe mental illness. Cf. Durgan v. State, 259 S.W.3d 219 (Tex.App.-Beaumont 2008, no pet.) (finding defendant’s inclusion in a “special needs” SAFPF did not raise questions about whether she had a recent severe mental illness, was moderately retarded or had exhibited truly bizarre behavior); Reeves v. State, 46 S.W.3d 397, 399-400 (Tex.App.-Texarkana 2001, pet. dism’d) (concluding evidence of defendant’s drug addiction and suicide attempt did not reflect on her ability to understand or participate in the proceeding on that day).

Appellant relies on Greene v. State, 225 S.W.3d 324 (Tex.App.-San Antonio 2007, no pet.) (op. on reh’g), in which the San Antonio court found the language of art. 46B.004 signaled an intention of the Legislature to depart from the bona fide doubt standard to trigger required competency inquiries. Id. at 329. A subsequent opinion of the court of criminal appeals, however, reiterates the bona fide doubt standard. Fuller, 253 S.W.3d at 228-29. We agree with the Beaumont court’s assessment that, “Fuller resolves recent questions about applying the bona fide doubt standard to incompetency issues raised during trial.” Durgan, 259 S.W.3d at 222. Moreover, on its facts Greene is of no help to appellant. The circumstances described in the Greene opinion bear no similarity to those present here. In Greene, the court found the defendant’s “rambling, nonre-sponsive” answers to questions and testimony “of the most bizarre quality” suggested his incompetence and required the trial court to conduct an informal inquiry into his competence. Greene, 225 S.W.3d at 329.

Courts have found no abuse of discretion in the presence of much stronger evidence suggesting incompetence than was present here. See, e.g., Salahud-din v. State, 206 S.W.3d 203, 208 (Tex.App.-Corpus Christi 2006, pet. ref d) (no abuse of discretion in failing to conduct sua sponte inquiry even though three pretrial psychological examinations were ordered by the court); LaHood, 171 S.W.3d at 619 (no abuse of discretion in failure to sua sponte inquire into defendant’s competency despite outbursts during trial, requests for medicine, comments concerning “psych meds” and claim of difficulty understanding proceedings). See also Rojas v. State, 228 S.W.3d 770 (Tex.App.-Amarillo 2007, no pet.) (no abuse of discretion in failing to conduct further informal inquiry or to appoint an expert to evaluate defendant when he made comments during voir dire and throughout trial, engaged in non-responsive answers on the stand and expressed view that police conspired to frame him).

Finding no abuse of discretion here in the trial court’s failure to initiate an informal inquiry, we overrule appellant’s sole point of error, and affirm the trial court’s judgment.

      . See Tex. Health & Safety Code Ann. § 481.112(c), (d) (Vernon 2001) and Tex. Health & Safety Code Ann. § 481.134 (Vernon 2003).

      . The Court of Criminal Appeals has defined a "bona fide” doubt as "a real doubt in the judge's mind as to the defendant's competency.” Fuller v. State, 253 S.W.3d 220, 228 (Tex.Crim.App.2008).