author: DAVID PURYEAR, Justice. BOB PEMBERTON, Justice,

text:
    TRUCK INSURANCE EXCHANGE, Appellant, v. MID-CONTINENT CASUALTY COMPANY, Appellee.
    No. 03-08-00526-CV.
    Court of Appeals of Texas, Austin.
    Aug. 27, 2010.
    Rehearing Overruled Sept. 20, 2010

      Joseph R. Knight, Baker Botts, LLP, Austin, TX, for appellant.
    David L. Plaut, Hanna & Plaut, L.L.P., Austin, TX, for appellee.
    Before Justices PATTERSON, PURYEAR and PEMBERTON.
   OPINION

DAVID PURYEAR, Justice.

Appellant Truck Insurance Exchange (“Truck”) sued Appellee Mid-Continent Casualty Company (“Mid-Continent”) seeking reimbursement for settlement and defense costs that Truck paid to defend the parties’ mutual insured. After the parties filed cross-motions for summary judgment, the trial court granted judgment in Mid-Continent’s favor and awarded Mid-Continent its attorney’s fees. On appeal, Truck challenges the trial court’s summary judgment in three issues and also asserts that there was no evidence to support the trial court’s award of attorney’s fees to Mid-Continent. We will affirm the trial court’s summary judgment and award of attorney’s fees.

BACKGROUND

Truck and Mid-Continent issued commercial general liability policies to Dane-shjou Company Inc. (“DCI”), an architecture and construction firm. DCI entered into an agreement to design and construct a multi-million dollar home in Austin. When disputes arose between DCI and the property owner, DCI sued the property owner for breach of contract and tortious interference and, in response, the property owner filed counterclaims against DCI for damages related to defective construction by DCI (“construction case”). DCI asked both Truck and Mid-Continent to defend it against these counterclaims under their respective policies. Mid-Continent denied coverage and refused to defend or indemnify DCI because, among other things, it claimed that the acts alleged in the construction case occurred outside its policy coverage period. Truck, however, agreed to defend DCI and spent millions defending DCI through a jury trial on the merits, in which the jury returned a verdict against DCI. In addition to its defense costs, Truck eventually paid $2,000,000 to fund a settlement of the judgment.

After the jury’s verdict in the construction case, Mid-Continent filed a diversity suit in federal court against DCI and the property owner, seeking declaratory judgment that it had no duty to indemnify or defend DCI in connection with the construction case (“federal coverage case”). Truck was not a party to Mid-Continent’s federal case, nor did DCI join Truck to the federal case. DCI sought to have the case dismissed based on Truck’s absence, but the federal court denied DCI’s motion because it determined Truck was not a necessary party under federal rules of civil procedure. The federal district court then granted summary judgment for Mid-Continent, finding that Mid-Continent had no duty to defend or indemnify DCI in the construction case because the damages in that case occurred outside Mid-Continent’s coverage period (“federal coverage decision”). The Fifth Circuit affirmed and the Supreme Court denied certiorari.

While the federal coverage case was pending, Truck filed this case (1) requesting declaratory judgment that Mid-Continent owed DCI a duty to defend and indemnify in connection with the construction suit and (2) seeking reimbursement for defense and settlement costs that it had spent in the construction case under claims for contribution, subrogation, and breach of contract. After the federal coverage decision issued, the parties filed cross-motions for summary judgment. Truck asserted that, based on the terms of Mid-Continent’s policy with DCI, Truck was entitled to summary judgment on the issue of Mid-Continent’s duty to indemnify and defend DCI. Mid-Continent asserted that it was entitled to summary judgment on Truck’s contribution claims (1) because co-insurers whose policies include “other insurance” clauses may not bring suit for contribution against co-insurers or, alternatively, (2) because no common obligation existed between Truck and Mid-Continent after the federal coverage decision. Mid-Continent asserted that it was entitled to summary judgment on Truck’s subrogation and breach of contract claims because (1) DCI, in whose “shoes” Truck stood as subrogee to DCI, had no claims against Mid-Continent after the federal coverage decision or, alternatively, (2) DCI had been fully defended and indemnified in connection with the underlying construction case. The district court granted summary judgment in favor of Mid-Continent on all Truck’s claims without specifying its grounds and, pursuant to a later motion, awarded attorney’s fees to Mid-Continent. Truck appeals.

DISCUSSION

In its first three issues, Truck argues that the trial court’s grant of summary judgment in favor of Mid-Continent was in error because (1) Truck is not bound by the federal court decision regarding Mid-Continent’s duty to indemnify and defend; (2) the supreme court’s decision in Mid-Continent Insurance Co. v. Liberty Mutual Insurance Co., 236 S.W.3d 765 (Tex.2007), does not apply to this case because Mid-Continent breached its duty to defend its insured; and (3) Mid-Continent owes its insured a duty to defend under the eight corners rules.

Standard of Review

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). When, as here, both parties move for summary judgment and the trial court grants one motion and denies the other, we review the summary-judgment evidence presented by both sides and determine all questions presented and render the judgment the trial court should have rendered. Canyon Reg’l Water Auth. v. Guadalupe-Bianco River Auth., 258 S.W.3d 613, 616 (Tex.2008); State Farm Lloyds v. Geeslin, 267 S.W.3d 438, 442 (Tex.App.-Austin 2008, no pet.). When a trial court’s order granting summary judgment does not specify the grounds relied upon, we must affirm the order if any of the summary-judgment grounds are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000).

Preclusive Effect of the Federal Coverage Decision

Truck’s first issue on appeal addresses the preclusive effect of the federal coverage decision. Mid-Continent argued in its motion for summary judgment that the federal coverage decision precluded Truck’s claims in the present case because each of Truck’s claims depended on a finding that Mid-Continent owed DCI a duty to defend or indemnify it in the construction case and that the federal coverage decision had already determined that Mid-Continent owed DCI no such duty. Truck does not dispute that the federal coverage decision is binding on Mid-Continent and DCI or that success on its claims here depends on a finding contrary to the federal coverage decision. Truck contends, however, that it is not bound by the federal coverage decision because it was not a party, or in privity with a party, to that case.

To determine whether a federal judgment in a diversity case binds a non-party in subsequent litigation, we look to the law of the state in which the federal court sits. Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001); see also Taylor v. Sturgell, 553 U.S. 880, 128 S.Ct. 2161, 2171 n. 4, 171 L.Ed.2d 155 (2008) (citing Semtek) (“For judgments in diversity cases, federal law incorporates the rules of preclusion applied by the State in which the rendering court sits.”). The federal coverage decision resulted from a diversity action and was rendered in Texas; accordingly, we apply Texas res judi-cata law to determine the preclusive effect of the federal coverage decision.

“[R]es judicata is the generic term for a group of related concepts concerning the conclusive effects given final judgments.” Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex.1992). There are two principal categories within this doctrine: claim preclusion and issue preclusion. Id. Claim preclusion — also referred to generally as “res judicata”' — • prevents the relitigation of a claim or cause of action that has been finally adjudicated and “requires proof of the following elements: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of the parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action.” Amstadt v. United States Brass Corp., 919 S.W.2d 644, 652 (Tex.1996). Truck does not dispute the first and third of these elements, but contests the second. Truck was not a party to the federal coverage decision, thus we must determine whether Truck is in privity with DCI as to the claims determined by the federal coverage decision.

A person can be in privity with a party to a previous judgment in at least three ways: (1) by controlling the action that resulted in the judgment without being a party to it; (2) by having its interests represented by a party to the action; or (3) by acting as a successor in interest to a party to the prior action. Amstadt, 919 S.W.2d at 653 (citing Getty Oil Co. v. Insurance Co. of N. Am., 845 S.W.2d 794, 800 (Tex.1992); see also Taylor, 128 S.Ct. at 2172-73 (recognizing at least six exceptions to non-party preclusion rule, including pre-existing “substantive legal relationship[s] with the party to the previous judgment”). But as the Texas Supreme Court has noted, “[t]here is no general definition of privity that can be automatically applied in all res judicata cases; the circumstances of each case must be examined.” Getty Oil, 845 S.W.2d at 800. Therefore, in reviewing the record to determine if privity exists, we are not bound by these three categories, but rather use the categories to guide our analysis here.

An analysis to determine whether a person is in privity with a party to a prior judgment begins by examining the interests the parties shared. Amstadt, 919 S.W.2d at 653. Privity exists if the parties share an identity of interests in the basic legal right that is the subject of litigation. Id. The subject of both the federal coverage case and the present case is DCI’s liability policy with Mid-Continent and, more specifically, whether Mid-Continent owed a duty under that policy to defend and indemnify DCI in- connection with the construction ease — or from DCI’s perspective, whether DCI was entitled to defense and indemnification from Mid-Continent in the construction case. The only substantive difference between the two cases is that Truck, rather than DCI, is asserting DCI’s rights in the present case.

A review of Truck’s claims in the present case reveals the identity of interests shared by DCI and Truck regarding DCI’s rights under the Mid-Continent policy. Truck’s claim for declaratory judgment seeks a finding that Mid-Continent owed DCI a duty to defend DCI in the construction case. Truck’s claim for sub-rogation asserts that Truck, as subrogee to the DCI’s rights, is entitled to damages from Mid-Continent for Mid-Continent’s failure to defend and indemnify DCI in the construction case. Truck’s claim for breach of contract, which it also asserts as subrogee to DCI, alleges that Mid-Continent breached its duty to defend and indemnify DCI under its policy with DCI. Finally, Truck asserts that it is entitled to contribution from Mid-Continent based on Mid-Continent’s “proportionate responsibility for DCI’s ... costs of defense and indemnity in the [construction case].” The common thread in these claims is DCI’s right to coverage under the Mid-Continent policy. That thread exists because all Truck’s claims derive from DCI’s rights under the Mid-Continent contract.

Because all Truck’s claims against Mid-Continent derive entirely from DCI and, as a result depend upon DCI’s right to coverage under its policy with Mid-Continent, Truck’s interest in the policy is the same as DCI’s. Thus, Truck is in privity with DCI as to DCI’s rights under the Mid-Continent policy. A person whose rights derive through or from a party to a previous action determining those rights, is in privity with the party through whom its rights are derived. Amstadt, 919 S.W.2d at 653. Truck is not asserting its own claims or suggesting that it has any independent right to recovery against Mid-Continent. Truck is simply asserting DCI’s rights that it acquired from or through DCI — Truck’s claims are simply reanimations of DCI’s claims from the federal coverage decision. Therefore, we hold that Truck is in privity with DCI as to the federal coverage decision. See Id. (holding prior judgment preclusive against plaintiffs because plaintiffs derived their claims from party to prior suit); Lemon v. Spann, 633 S.W.2d 568, 570-71 (Tex.App.-Texarkana 1982, writ refd n.r.e.) (holding that plaintiffs suit was barred because his claims depended on establishing liability against party previously found hot liable).

Truck argues that it is not in privity with DCI because DCI did not represent Truck in the federal case and because Truck could not “control the Federal Coverage Suit.” But, as discussed here, adequate representation and control over the underlying suit are not the only considerations in establishing privity. See, e.g., Amstadt, 919 S.W.2d at 653. Privity also exists when, as we hold here, a person’s claims are derived from a party to the prior judgment. Furthermore, to the extent that Truck asserts that its interest was not adequately represented, we must reiterate that Truck possessed no interest separate and apart from DCI.

Truck also argues that Dairyland County Mutual Insurance Co. of Texas v. Childress, 650 S.W.2d 770 (Tex.1983), is dispos-itive of the privity issue here. Dairyland,, however, involved the right of an injured third party — i.e., a third-party beneficiary — to bring suit against an insurer who had obtained an agreed judgment against its insured, the tortfeasor, that it was not liable under its policy with the insured. Dairyland, 650 S.W.2d at 774. It did not address the right of a potential co-insurer to relitigate, through claims derived from its insured, its insured’s fully adjudicated rights to coverage under a policy with another insurer. Accordingly, Dairyland does not preclude our holding that Truck is in privity with DCI.

Finally, Truck asserts that Mid-Continent is judicially estopped from contending that the federal coverage decision bars Truck’s claims in any way. Truck bases this contention on. Mid-Continent’s counsel’s statement to the federal court that the federal coverage decision would “likely not result in prejudice or impairment of [Truckj’s rights to pursue its claim against Mid-Continent.” We look to federal law to determine whether Mid-Continent is judicially estopped by its counsel’s statement. See Heartland Holdings, 316 S.W.3d at 10-11 n. 9. Under federal law, judicial estoppel precludes a party from asserting a position in a legal proceeding that is inconsistent with a claim taken by that party in the same or a prior litigation. Pegram v. Herdrich, 530 U.S. 211, 228 n. 8, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000).

Mid-Continent’s counsel’s statement was not, strictly speaking, a position; it was an opinion by Mid-Continent’s counsel on the possible effect of the ruling. Nonetheless, assuming it was a position, the word “likely” clearly indicates the possibility that the judgment could affect Truck’s rights. Logically, if a party leaves open the possibility that the judgment could affect Truck’s rights, it is not inconsistent for that party to assert later that the judgment did, in fact, affect those rights. See Black’s Law Dictionary 834 (9th ed. 2009) (defining inconsistent as “not compatible with another fact or claim”). We conclude that Mid-Continent’s counsel’s statement to the federal court was not inconsistent with its position in this case. Accordingly, we hold that Mid-Continent is not judicially estopped from asserting that the federal coverage decision bars Truck’s claims.

Because we hold that Truck is in privity with DCI as to the federal coverage decision, Truck is precluded from relitigating the issues decided by that decision. Further, because each of Truck’s claims in the present case requires a finding that Mid-Continent owed DCI a duty, which would require relitigating the federal coverage decision, that decision disproves an essential element of each of Truck’s claims here. Therefore, Mid-Continent is entitled to summary judgment.

Truck’s Contribution Claim

Truck’s second issue on appeal addresses whether the Texas Supreme Court’s decision in Mid-Continent, 236 S.W.3d 765, would apply to the facts of this case because Mid-Continent breached its duty to defend DCI. Having already determined that Mid-Continent was entitled to summary judgment based on the preclu-sive effect of the federal coverage decision, we need not address Truck’s second issue. See FM Props., 22 S.W.3d at 872-73 (“When a trial court’s order granting summary judgment does not specify the grounds relied upon, the reviewing court must affirm summary judgment if any of the summary judgment grounds are meritorious.”). However, because Mid-Continent directly addresses an insurer’s ability to bring a direct action for reimbursement under a right of contribution from a putative co-insurer, provides an additional basis for summary judgment in favor of Mid-Continent in the present case, see Mid-Continent, 236 S.W.3d at 772-74, and because our determination that Truck is barred from relitigating the federal coverage decision depends on our analysis that Truck’s claim for contribution derives, for privity purposes, entirely from DCI’s contractual rights against Mid-Continent, we will address Mid-Continent’s application to this case.

In Mid-Continent, two primary liability carriers, Liberty Mutual and Mid-Continent, provided $1,000,000 each in liability coverage for a claim against their common insured. Id. at 769. Both insurance policies had an “other insurance” clause, which limits the insurers liability in the event other insurance covers the same loss. Id. The two insurers cooperatively provided a defense for the insured, but differed in their opinions regarding the settlement value of the case. Id. at 770. Liberty Mutual, who also carried excess coverage for the insured, agreed to settle the case for $1,500,000 and demanded that Mid-Continent pay half that amount. Id. Mid-Continent, however, having determined that the case was only worth $300,000, contributed only $150,000 toward settlement. Id. Liberty Mutual paid the balance of the settlement and then sued Mid-Continent to recover the amount it had paid over its pro rata share, asserting claims for contribution and subrogation. Id.

The Texas Supreme Court rejected Liberty Mutual’s contribution claim, citing its earlier decision in Traders & General Insurance Co. v. Hicks Rubber Co., 140 Tex. 586, 169 S.W.2d 142 (1943), which held that the existence of an “other insurance” clause in the policy precludes a claim for contribution asserted by one co-insurer against another. The court stated:

The effect of the [“other insurance”] clause precludes a direct claim for contribution among insurers because the clause makes the contracts several and independent of each other. With independent contractual obligations, the co-insurers do not meet the common obligation requirement of a contribution claim — each co-insurer contractually agreed with the insured to pay only its pro rata share of a covered loss; the co-insurers did not contractually agree to pay each other’s pro rata share.

Mid-Continent, 236 S.W.3d at 772 (citations omitted) (citing Hicks Rubber, 169 S.W.2d at 147, and Employers Cas. Co. v. Transport Ins. Co., 444 S.W.2d 606, 609 (Tex.1969)). Thus, the supreme court held that when co-primary insurance policies contain “other insurance” clauses, “a co-insurer paying more than its proportionate share cannot recover the excess from the other co-insurers” through contribution. Id. (quoting Hicks Rubber, 169 S.W.2d at 148). Just as in Mid-Continent, the policies at issue here contain “other insurance” clauses, and Truck paid more than its proportionate share. Thus, applying the holdings in Mid-Continent, Employers, and Hicks Rubber to the facts in this case, Truck has no direct right of contribution against Mid-Continent.

Truck argues that Mid-Continent should be distinguished because both co-insurers in Mid-Continent defended the insured, unlike here where only Truck provided a defense. Based on that distinction, Truck asserts that Mid-Continent does not preclude a contribution claim against a co-insurer that breaches its duty to defend. We are not persuaded by this argument. First, the supreme court’s holding was that, in the absence of a contractual agreement between the insurers to be obligated for the proportional amount, the presence of “other insurance” clauses in the policies precludes an equitable contribution claim. Id. at 778. Second, and crucial to the facts here, in both of the cases on which Mid-Continent relied, the non-paying co-insurer had breached its duty to defend the insured. See Employers, 444 S.W.2d at 607; Hicks Rubber, 169 S.W.2d at 145.

Truck also asserts that Mid-Continent does not apply to claims for contribution of defense costs, relying, among other sources, on the Fifth Circuit’s recent opinion in Trinity Universal Insurance Co. v. Employers Mutual Casualty Co., 592 F.3d 687 (5th Cir.2010.). In Trinity, the Fifth Circuit found that “Mid-Continent left open the ... question of whether a co-insurer that pays more than its share of defense costs may recover such costs from a co-insurer who violates its duty to defend a common insured.” Trinity, 592 F.3d at 694. The Fifth Circuit then went on to hold that “other insurance” clauses apply only to the duty to indemnify, not the duty to defend, therefore a co-insurer who can prove the elements of contribution — common obligation and overpayment by one co-insurer — is entitled to seek contribution for its defense costs. Id. at 695 (citing Texas Prop. & Cas. Ins. Guar. Ass’n v. Southwest Aggregates, Inc., 982 S.W.2d 600, 606 (Tex.App.-Austin 1998, no pet.), for our holding that the policy “obligates the insurer to defend its insured, not to provide a pro rata defense.”).

We disagree with Truck’s argument and the Fifth Circuit’s analysis of Mid-Continent. Although the co-insurer in Midr-Continent sought reimbursement for only settlement costs, the supreme court relied on Employers and Hicks Rubber, two cases that involved a co-insurer subject to an “other insurance” clause seeking contribution for defense costs. Mid-Continent, 236 S.W.3d at 772; see Employers, 444 S.W.2d at 607 (“[T]he claim here is for a pro rata part of the sums paid in settlement of the suit against the insured and as expenses in defending the suit.”); Hicks Rubber, 169 S.W.2d at 148 (“When [one insurer] refused to further assist in the defense of the ... suit, [the other co-insurer] shouldered the entire burden, including the appeals.... In so doing it paid out more than two-thirds of the costs and expenses incurred.”). Both Employers and Hicks Rubber held that the existence of an “other insurance” clause precludes a contribution claim for defense costs. Based on these Texas Supreme Court precedents, Truck’s contribution claim for defense costs against Mid-Continent is barred as a matter of law.

Having determined that the federal coverage decision precludes Truck from bringing its claims for subrogation and contribution, and also having determined that, under Mid-Continent, Truck is barred as a matter of law from seeking contribution from Mid-Continent, we need not address Truck’s third issue that Mid-Continent owed DCI a duty to defend and indemnify.

ATTORNEY’S FEES

In its remaining issue, Truck asserts that the trial court abused its discretion in awarding attorney’s fees because there is no evidence that the fees awarded were reasonable, necessary, equitable, and just. In a proceeding under the Uniform Declaratory Judgments Act (“UDJA”), a court may award “reasonable and necessary attorney’s fees as are equitable and just.” Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (West 2008). Whether an award of attorney’s fees is reasonable and necessary is a fact question. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998). A trial court’s award of attorney’s fees under the UDJA is reviewed for an abuse of discretion. Id. at 20-21. A trial court abuses its discretion by awarding fees when there is insufficient evidence that the fees were reasonable and necessary, or when the award is inequitable or unjust Id. at 21.

As evidence in support of its motion for attorney’s fees, Mid-Continent attached affidavits from its current and former counsel stating (1) the number of years the attorney had been licensed, (2) that the attorney represented Mid-Continent in the case, (3) the dates of that representation, and (4) the amount of fees and expenses the attorney billed Mid-Continent in this case ($224,116.55 and $54,409.24 respectively). In addition, both affidavits state as follows:

Based upon the knowledge and experience of the lawyers involved, the complexity of the issues involved in the case, the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services rendered, these fees and expenses incurred by Mid-Continent were reasonable and necessary.

The trial court’s order granting Mid-Continent’s motion for attorney’s fees indicates that the trial court considered these affidavits, which were attached to Mid-Continent’s motion, in rendering its decision. Truck contends on appeal that these affidavits contain no basis for fact-finding and are nothing more than unsupported conclusions about reasonableness.

Although these affidavits do not address each of the factors set forth in Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex.1997), the affidavits were uncontradicted. See Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex.1990). “Testimony from a party’s attorney about a party’s attorneys’ fees is taken as true as a matter of law if the testimony ‘is not contradicted by any other witness and is clear, positive, direct, and free from contradiction.’ ” In re A.B.P., 291 S.W.3d 91, 98 (Tex.App.-Dallas 2009, no pet.) (citation omitted). “This is especially true where the opposing party had the means and opportunity to disprove the testimony but failed to do so.” Id. Truck did not submit controverting evidence. Further, Truck’s counsel conceded that they were not contesting the hourly rate charged to Mid-Continent because those hourly rates were reasonable.

We also note that because the issue of attorney’s fees was submitted to the trial court, the court could look at the entire record, the evidence presented on reasonableness, the amount in controversy, the common knowledge of the participants as lawyers and judges, and the relative success of the parties. See id. Having granted summary judgment here, the trial court was aware of the dispute and the success of the parties. Moreover, we can presume that the trial court took judicial notice of the usual and customary attorney’s fees for the services provided. See First Nat’l Acceptance Co. v. Bishop, 187 S.W.3d 710, 717 (Tex.App.-Corpus Christi 2006, no pet.). Finally, it was within the trial court’s discretion to award an amount different from the amounts incurred as stated in Mid-Continent’s affidavits. See Chase Home Fin., L.L.C. v. Cal W. Reconveyance Corp., 309 S.W.3d 619, 634 n. 11 (Tex.App.-Houston [14th Dist.] 2010, no pet. h.). Accordingly, we conclude that Mid-Continent’s affidavits were legally and factually sufficient to support the trial court’s award of $136,532.78 as attorney’s fees to Mid-Continent. See Texas Commerce Bank, Nat’l Ass’n v. New, 3 S.W.3d 515, 517-18 (Tex.1999). We overrule Truck’s fourth issue.

CONCLUSION

Because the federal coverage decision precludes Truck from relitigating the question of whether Mid-Continent owed DCI a duty to defend and indemnify and because Truck has no direct right of contribution from Mid-Continent, we affirm the trial court’s summary judgment in favor of Mid-Continent. Having overruled Truck’s issue regarding attorney’s fees, we also affirm the trial court’s award of attorney’s fees to Mid-Continent.

Concurrence by Justice PEMBERTON.

BOB PEMBERTON, Justice,

concurring.

I join in the majority’s opinion except for its holding that appellant Truck Insurance Exchange’s contribution claim against appellee Mid-Continent Casualty Company is barred by res judicata arising from Mid-Continent’s prior federal court judgment. However, I agree with the majority that the district court’s summary judgment as to this claim should be affirmed based on Mid-Continent’s alternative ground that the “other insurance” clauses in the Truck and Mid-Continent policies negate a right of contribution on the part of Truck against Mid-Continent. See Midi-Continent Ins. Co. v. Liberty Mut. Ins. Co., 236 S.W.3d 765, 772 (Tex.2007); Employers Cas. Co. v. Transport Ins. Co., 444 S.W.2d 606, 609 (Tex.1969); Traders & Gen. Ins. Co. v. Hicks Rubber Co., 140 Tex. 586, 169 S.W.2d 142, 147 (1943). Although the Fifth Circuit has recently concluded that other-insurance clauses apply only to the duty to indemnify and not to the duty to defend, and thus do not bar a contribution claim for defense costs, see Trinity Universal Ins. Co. v. Employers Mut. Cas. Co., 592 F.3d 687, 694 (5th Cir.2010), the controlling Texas Supreme Court precedents that bind this Court appear to give effect to other-insurance clauses with respect to both indemnity and defense costs, see Employers, 444 S.W.2d at 607 (“[T]he claim here is for a pro rata part of the sums paid in settlement of the suit against the insured and as expenses in defending the suit.”); Hicks, 169 S.W.2d at 148 (“When [one insurer] refused to further assist in the defense of the ... suit, [the other co-insurer] shouldered the entire burden, including the appeals.... In so doing it paid out more than two-thirds of the costs and expenses incurred”). Relying on these precedents unless and until the supreme court tells us otherwise, I agree with the majority that Truck’s contribution claim for defense costs is barred as a matter of law.

Accordingly, I join in the judgment and, with these qualifications, the majority’s opinion.

      . "Other insurance” clauses provide that if the insured has other insurance covering the same expense, the insurer is not liable for any greater proportion of the loss than the coverage amount in its policy bears to the entire amount of the insurance coverage available. Mid-Continent Ins. Co. v. Liberty Mut. Ins. Co., 236 S.W.3d 765, 772 (Tex.2007).

      . Because the pinpoint cite to volume 553 of the United States Reports is not available, we provide a parallel cite to the Supreme Court Reporter.

      . Since Semtek was decided, the Texas Supreme Court has held that federal law determines the preclusive effect of a federal judgment in Texas. See, e.g., John G. and Marie Stella Kenedy Mem'l Found, v. Dewhurst, 90 S.W.3d 268, 287 (Tex.2002) (citing Eagle Props., Ltd. v. Scharbauer, 807 S.W.2d 714, 718 (Tex.1990). However, the Texas Supreme Court has not addressed Semtek or Taylor directly and, absent indication to the contrary, we conclude that Semtek and Taylor control here. We note that two of our sister courts agree. See Heartland Holdings, Inc. v. U.S. Trust Co. of Tex. N.A., 316 S.W.3d 1, 10-11 (Tex.App.-Houston [14th Dist.] 2010, no pet.); Madera Prod. Co. v. Atlantic Richfield Co., 107 S.W.3d 652, 661 (Tex.App.-Texarkana 2003, pet. denied in part, pet. dism'd in part).

      . Although a claim for contribution is considered a direct claim, rather than a derivative claim, it exists only to the extent that the other insurer "share[s] a common obligation” with the insurer seeking contribution. Mid-Continent, 236 S.W.3d at 772. Thus, Truck's right to contribution exists here only if Mid-Continent is equally obligated to defend and indemnify DCI. It is in that sense that we characterize Truck's right to contribution as deriving from DCI's rights under the Mid-Continent policy.

      . We note, as does the court in Heartland Holdings, the circular reasoning that exists in this area of the law. Texas courts look to the law governing the previous proceeding when considering a judicial estoppel claim, see Dallas Sales Co. v. Carlisle Silver Co., 134 S.W.3d 928, 931 (Tex.App.-Waco 2004, pet. denied), while federal courts generally apply the law governing the subsequent proceeding, see Rissetto v. Plumbers and Steamfitters Local 343, 94 F.3d 597, 602-04 (9th Cir.1996).

      . We are likewise not persuaded by Truck’s argument that the federal coverage decision expressly incorporates Mid-Continent’s statements regarding the possible effects on Truck in its ruling. Our review of the federal coverage decision reveals no language limiting its effect.

      . Southwest Aggregates addressed the question of whether an insurance company's duty to defend its insured could be reduced because the claims at issue fell partially outside the coverage period — i.e., is each insurer’s duty to defend determined by the ratio of that insurer’s “time on the risk’’ — we held that it was not. Southwest Aggregates, 982 S.W.2d at 604, 607. We did not address the “other insurance” clauses.

      . Mid-Continent also presented detailed billing statements from its attorneys for in camera review by the trial court at the hearing on its motion for attorney's fees. Truck argues that because those billing statements were not admitted in evidence, they are not properly part of the appellate record. However, because we hold that Mid-Continent’s affidavits alone are sufficient to support the trial court's award, we need not address whether those statements were properly in the record.


source: Caselaw Access Project

author: J. WOODFIN JONES, Chief Justice. DIANE M. HENSON, Justice,

license: Public Domain

text:
    Mark David BARSHAW, Appellant, v. The STATE of Texas, Appellee.
    No. 03-09-00079-CR.
    Court of Appeals of Texas, Austin.
    Aug. 31, 2010.

      Scott K. Stevens, Stevens & Stevens, Attorneys at Law, P.C., Gatesville, TX, for Appellant.
    Bob D. Odom, Assistant District Attorney, Belton, TX, for Appellee.
    Before Chief Justice JONES, Justices WALDROP and HENSON.
   OPINION

J. WOODFIN JONES, Chief Justice.

A jury found appellant Mark David Bar-shaw guilty of sexual assault, and the trial court assessed his punishment at twelve years’ imprisonment. We reverse the judgment of conviction and remand for a new trial because the trial court permitted an expert witness to testify that the class of persons to which the complainant belongs tends to be truthful.

BACKGROUND

On December 18, 2007, the complaining witness, K.B., was living with her mother, Debra Berndt, in Belton. K.B. is mentally retarded and functions at approximately a ten-year-old level, although she was twenty-one years old at the time. Berndt was employed as the manager of a convenience store. She testified that it was her daily routine to leave home for work at about 5:00 a.m. She would return home at 7:30, pick up K.B., and return to the store. K.B. would then take a bus from the store to the mental health-mental retardation center where she was employed. K.B. would return to the store by bus after work, and the two would go home together.

Appellant, who worked in the maintenance department of the convenience store company, regularly stopped by Berndt’s store on his way to work. Berndt had employed appellant on several occasions to work on her home air conditioner/heater. Berndt testified that she generally kept the house unlocked, and that appellant was authorized to enter the house to do his repairs. Appellant and K.B. had met, and K.B. was sometimes alone at the house when appellant was there. Appellant had most recently been to Berndt’s house to repair her heater on December 15 or 16.

Berndt testified that appellant came to the store on the morning of December 18 and asked her how her heater was working. She told him that it was working fine. Berndt said that she did not ask or authorize appellant to go to her house that morning. Later, Berndt drove home at the usual time to get K.B. As they were driving back to the store, K.B. told Berndt that appellant had surprised her that morning. Berndt testified that she asked K.B. what she meant, and KB. replied, “Well, he woke me up.” Berndt did not testify in further detail about this conversation, but she stated that after hearing what K.B. told her, she called the police.

KB. testified that she knew appellant as the person who fixed the air conditioner. She remembered an incident (but could not remember the date) when appellant came to her room and woke her. She said that appellant took off her pajama tops and bottoms and her underpants. Then, as she laid in bed, appellant touched her breasts and legs. He also spread her legs and “touched [her] pelvis.” She indicated that appellant rubbed her breasts and her “pelvis.” She did not know if appellant put his fingers in her “pelvis.” K.B. testified that appellant did not remove his clothes, and that he helped her put her pajamas back on after touching her. K.B. recalled telling her mother what had happened and going to see a doctor.

Deborah Kleypas was the sexual assault nurse examiner who examined K.B. on the morning of December 18. Kleypas testified that as part of her exam, she had K.B. recount what had happened to her. Reading from her written report, Kleypas described KB.’s account:

[K.B.] told me that “He,” Mark, “woke me up.” I asked her, “Where were you when he woke you up?” She told me that “I was in my bed in my bedroom. He did a massage, a body massage. He touched my — these,” then she pointed to her breasts on herself, “and he touched my pelvis.” She then pointed to her genital area on herself. “What did he touch your pelvis with?” I asked that question. “His hand. He touched my pelvis with his fingers. He was rubbing on it.” She demonstrated when she told me that he was rubbing on it, she demonstrated by putting her hands between [her] legs and making a back and forth motion. “And that he touched me on the inside of my clothes.”

Kleypas testified that during her physical examination of K.B., she observed what she described in her report as an abrasion to the posterior fourchette approximately 1.75 centimeters long and 1 centimeter wide. She said that this injury was consistent with the events K.B. had described. Kleypas also testified that it was not unusual for children or even adults to describe an assault as a touching, when the evidence indicates that there was penetration. A labial swab collected by Key-pas was found to have KB.’s blood on it. K.B.’s blood was also found on her pajamas and on a bed sheet, but not on her underpants, all of which were collected by the police after being dispatched to Berndt’s residence. No one else’s DNA was found on any of these items.

Pammy Porter was K.B.’s MHMR caseworker. She testified that K.B. had regularly received “exploitation training,” which Porter described as “don’t answer the door for strangers; don’t talk to strangers; when you’re being touched inappropriately, you have the right to say no, just things like that.” Porter testified that she had never discussed “dating relationships” or “romantic relationships” with K.B., and she indicated that KB.’s understanding of such matters would be that of a nine or ten-year-old. Porter testified that MHMR does not engage in sex education because “parents have a real issue with us training our consumers on sex.” As regards sexual activities or contact, Porter said that K.B. “may not understand exactly what is going on.”

Rebecca Barthlow is an MHMR psychologist. She testified that K.B. had a nonverbal IQ of 67, which she estimated was ten points higher than K.B. would score using a standard IQ test. K.B.’s adaptive behavior test score was 51, which Barthlow believed was “much more in line with what we would think her true IQ is.” Barthlow testified that K.B. is “at great difficulty and a great disadvantage compared to someone of average ability as far as understanding social concepts, understanding very basic common sense kinds of things....” She believed that K.B. was “closer to the moderate range of mental retardation [as] opposed to the mild range.” Barthlow confirmed Porter’s testimony regarding the lack of sex education at MHMR. Asked by the prosecutor if K.B. was “capable of either appraising the nature of an act or being able to resist it,” Barthlow replied, “I don’t believe so.”

Appellant acknowledged going to Berndt’s house on December 18. He testified that he had to improvise the repair he made to Berndt’s heater due to the age of the unit, and that he went to Berndt’s residence that morning to make sure that the repair had been effective and the heater was working properly. He said that he spoke to Berndt at the store and told her what he was going to do, but she was busy at the time and may not have heard him. Appellant testified that upon entering the house, he went straight to the laundry room where the heating unit was located. Appellant said that while working, he accidentally dropped a metal panel, which made a “pretty loud noise.” Appellant testified that after checking the heater and determining that it was working properly, he was putting away his tools and preparing to leave when K.B. walked into the laundry room. K.B. was wearing a T-shirt and shorts. She told appellant that it was her birthday, and they had a brief conversation about baseball. Appellant testified that as he left the house, he congratulated K.B. on her birthday and gave her a kiss on the cheek. He denied touching K.B.’s breasts or genitals. He also denied knowing that she was mentally retarded.

The evidence reflects that appellant returned to Berndt’s house the next morning, December 19. Appellant testified that he did so to retrieve a tool that he left the previous day.

Appellant was indicted for entering Berndt’s habitation without her effective consent and committing or attempting to commit sexual assault. See Tex. Penal Code Ann. § 30.02(a)(3) (West 2003) (burglary of a habitation). The trial court’s jury charge also included an instruction on the lesser included offense of sexual assault. See id. § 22.011(a)(1)(A), (b)(4) (West Supp. 2009). The jury did not convict appellant for the alleged burglary, but it found him guilty of the lesser included offense.

DISCUSSION

In Yount v. State, the court of criminal appeals held that evidence rule 702 does not permit an expert to give an opinion that the complainant or a class of persons to which the complainant belongs is truthful. 872 S.W.2d 706, 712 (Tex.Crim.App.1993); Tex.R. Evid. 702. In Yount, a pediatrician testified that she had interviewed and examined hundreds of children who claimed to have been sexually abused and had seen very few cases where the child was not telling the truth. 872 S.W.2d at 707-08. The court ruled that this testimony should not have been admitted because “[a]n expert who testifies that a class of persons to which the victim belongs is truthful is essentially telling the jury that they can believe the victim in the instant case as well. This is not ‘expert’ testimony of the kind which will assist the jury under Rule 702.” Id. at 711.

Appellant contends that the trial court abused its discretion and violated Yount by permitting Barthlow to testify that mentally retarded persons, as a class, tend to be truthful. This contention is based on the following exchange between the prosecutor and Barthlow:

Q. What about people that suffer from mental retardation in their ability to fabricate or make up elaborate stories; what do you see with that?
A. Generally speaking if you’re— when we’re dealing with mental retardation and there’s not anything going on, there’s just a diagnosis of mental retardation, primarily, there’s not a personality disorder or something adding to that, it’s been my experience that folks with mental retardation can be painfully honest, really. I mean, it’s like a little kid who looks at somebody and says in the supermarket, “You’re really old,” or, you know, whatever little kids do.

At this point, defense counsel objected, “You can’t have somebody come in and testify to a class of people are truthful.” The prosecutor responded that cross-examination had raised the issue of how mentally retarded persons “adapt.” She added, “We have specifically the element to prove that she’s suffering from a mental disease or defect, and that as a result that she’s incapable of either appraising the situation or the nature of the act [or] resisting it, and as such I think it’s admissible.” The court overruled the defense objection and Barthlow continued:

Q. (By [prosecutor]) Where were we?
A. I was discussing individual’s mental retardation, and kind of their ability to make up things. I’m not going to say that it would never happen. I mean, anybody is capable of making up something, but it’s very simplistic in nature. It would be — like I said, it would be like a lie that a child would tell, a story a child would make up. It would be very easy as an adult or a parent to kind of see through that when you’re thinking of that. And, again, it’s been my experience in the hundreds and hundreds of people with mental retardation that I’ve seen, that it’s more going to be that they’re painfully honest. They haven’t learned the social skills and probably never will to know when you should lie or when it would be socially appropriate to not tell the truth because it might hurt someone’s feelings, or things of that nature, to hold things back.

The State argues, as it did below, that expert testimony regarding the nature of mental retardation and the ability of mentally retarded persons to function at an adult level was relevant to the issue of K.B.’s ability to effectively consent to the sexually assaultive acts appellant was accused of committing. See Tex. Penal Code Ann. § 22.011(b)(4) (consent is not effective if actor knows that as result of mental disease or defect complainant is incapable either of appraising nature of sexually as-saultive act or of resisting it). Whatever validity there may be in this argument, it does not speak to appellant’s contention. Barthlow’s challenged testimony — that mentally retarded persons are “painfully honest” and that any story that a mentally retarded person might “make up” would be “simplistic” and easily seen through-had no relevance to K.B.’s capacity to effectively consent within the meaning of section 22.011(b)(4).

The court of criminal appeals has recognized that some witnesses — the court specifically referred to children and mentally retarded persons — are viewed by society as “impaired.” Schutz v. State, 957 S.W.2d 52, 70 (Tex.Crim.App.1997). When such a witness is expected to testify, expert testimony should be permitted in the offering party’s case in chief concerning the ability of the class of persons suffering the “impairment” to distinguish reality from fantasy and to perceive, remember, and relate the kinds of events at issue in the case. Id. The court emphasized that such testimony should be limited to the “impaired” class’s ability to accurately relate events and should not extend to the class’s tendency to do so; the latter would violate the holding in Yount. Id. In her challenged testimony, Barthlow was not questioned about and did not discuss the ability of mentally retarded persons to accurately perceive, recall, and relate events. Instead, she testified to their tendency to be “painfully honest,” even to the point of being socially inappropriate.

Barthlow’s testimony that mentally retarded persons are honest to a fault and cannot fabricate elaborate stories was simply another way of testifying that mentally retarded persons are, as a class, truthful. Accordingly, this violated the holdings in Yount and Schütz. The trial court abused its discretion by overruling appellant’s objection and admitting the testimony.

Having found error, we must decide if it affected appellant’s substantial rights. See Tex.R.App. P. 44.2(b). In assessing harm, our focus is not on whether the outcome of the trial was proper despite the error, but on the error’s impact on the jury. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim.App.2000). We will not reverse a conviction for non-constitutional error if, after examining the record as a whole, we have fair assurance that the error did not influence the jury or had only a slight influence. Schutz v. State, 63 S.W.3d 442, 444 (Tex.Crim.App.2001).

This was a “she said, he said” case. Although there was physical evidence that K.B. had been penetrated in some manner, there was no physical evidence linking appellant to that penetration, and the outcome ultimately turned on the jury’s assessment of the relative credibility of the two principal parties’ testimony.

Appellant was, on the face of it, a credible witness. He was fifty years old at the time of the trial, married, and the father of a daughter who was then seventeen years old. Appellant grew up in a military family and himself spent twenty years in the Army, receiving a Bronze Star. He earned his GED while in the Army, and he earned a college degree following his retirement. Appellant had no criminal record before his arrest in this case, and several witnesses testified to his good character. There was evidence, however, that appellant had been dismissed from his job at the convenience store chain after he approached two female employees with mistletoe following the company Christmas party. There were also some inconsistencies between appellant’s trial testimony and the statements he made to the police following his arrest.

K.B. was, to repeat the court of criminal appeals’ observation in Schütz, an “impaired” witness. There were several inconsistencies and omissions in her testimony, and she did not testify that she had been penetrated. It would be understandable for the jury to be concerned that K.B.’s account was mistaken or perhaps even a fabrication. Although neither prosecutor mentioned Barthlow’s testimony during final argument, we cannot avoid the conclusion that the jury, in assessing K.B.’s credibility, likely gave significant weight to the expert’s opinion that mentally retarded persons are generally truthful.

A conviction must be reversed for nonconstitutional error if the reviewing court has grave doubt that the result of the trial was free from the substantial effect of the error. Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App.2002). “Grave doubt” means that the matter is so evenly balanced as to be in virtual equipoise. Id. In cases of grave doubt as to harmlessness, the appellant must win. Id. at 638. In this cause, we have grave doubt as to the error’s harmlessness, which is another way of saying that we do not have a fair assurance that the error did not substantially influence the jury.

Because of our disposition of this issue, we do not address appellant’s other issues on appeal. The judgment of conviction is reversed and the cause is remanded to the district court for a new trial.

Dissenting Opinion by Justice HENSON.

DIANE M. HENSON, Justice,

dissenting.

I agree with the majority that the trial court abused its discretion in permitting Barthlow to testify that mentally retarded persons, as a class, tend to be truthful. See Schutz v. State, 957 S.W.2d 52, 70 (Tex.Crim.App.1997) (“Schutz I”); Yount v. State, 872 S.W.2d 706, 711 (Tex.Crim.App.1993). However, because I would hold that the error is harmless, I respectfully dissent.

A trial court’s evidentiary rulings, including those involving error under Schütz I and Yount, are subject to harmless error analysis. See Schutz v. State, 63 S.W.3d 442, 443 (Tex.Crim.App.2001) (“Schutz II”) (holding that admission of testimony that was “direct comment on the truthfulness of complainant’s allegations” was harmless error). The rules of appellate procedure provide that any error other than constitutional error “that does not affect substantial rights must be disregarded.” Tex.R.App. P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence if, after examining the record as a whole, the court has a fair assurance that the error did not influence the jury, or had but a slight effect. Schutz II, 63 S.W.3d at 444.

With regard to violations of Schütz I and Yount, the “danger posed by the erroneous admission of expert testimony that was a direct comment on the complainant’s credibility was that the jury could have allowed that testimony to supplant its decision.” Schutz II, 63 S.W.3d at 445. In evaluating whether the jury’s decision on the credibility of witnesses was supplanted, the court must consider everything in the record, including testimony and physical evidence, the nature of the evidence supporting the verdict, and the character of the error and its relationship to other evidence. Id. Additionally, courts may also consider other factors, including the trial court’s instructions to the jury, the theories of the case that the State and defendant have espoused, and arguments to the jury. Id. at 444-45.

Evidence Admitted at Trial

The initial inquiry concerns the evidence admitted at trial, including the evidence supporting the verdict. The majority states that this was a “she said, he said” case. However, there was a great deal of additional evidence and testimony that the jury could have considered when determining the relative credibility of the witnesses and reaching its verdict.

Regarding the evidence supporting K.B.’s testimony, K.B. testified at trial that Barshaw had removed her pajamas and underwear and had then touched her breasts and her “pelvis.” Though K.B. functions at roughly the level of a ten-to-twelve year old with a verbal IQ of 67 and an estimated actual IQ in the fifties, her testimony at trial was consistent with both the initial outcry she made to her mother and to the statements she gave to the investigating officer and to Kleypas, the SANE nurse.

Further, the physical evidence at trial was also consistent with K.B.’s testimony. Kleypas examined K.B. on the same day as the alleged incident. While K.B. indicated that she did not remember whether Bar-shaw had penetrated her when touching her pelvis, Kleypas’s examination revealed an abrasion inside of K.B.’s labia majora that could only have been caused by penetration. Kleypas testified that the abrasion was recent, as the skin in the affected area of the body heals very quickly. According to Kleypas, the abrasion would have caused bleeding at the time it happened, and clothing put up against the area would have blood on it. Forensic scientist Patricia Retzlaff found blood stains on K.B.’s pajama shorts and on her bedsheets, which DNA tests showed was K.B.’s blood. This evidence is consistent with K.B.’s testimony.

While Barshaw’s testimony contradicted that of K.B., there is other evidence in the record besides K.B.’s testimony that conflicts with Barshaw’s testimony. Specifically, the testimony of Berndt, K.B.’s mother, differs from Barshaw’s in several important respects. According to Bar-shaw, on the morning of the alleged incident, he saw Berndt at the store where she works and told her that he needed to check on the heater in Berndt’s home; he then proceeded to her home and encountered K.B. there. Berndt, however, testified that Barshaw asked about the heater, but that she told him that there were no problems with it, and that she did not give him permission to go to her home that day. Barshaw also testified that he returned to Berndt’s home — where K.B. was — the next day to look for his “multimeter,” a piece of equipment he thought he had left behind. While Barshaw testified that he drove to the home and then found the multimeter in his truck, Berndt, who had followed him, testified that Barshaw instead attempted to enter the home, finding the door to be locked. She relayed this information to 911 as the incident was in progress. In addition, Barshaw testified that he did not know as of the date of the incident that K.B. was mentally retarded, despite having had several conversations with K.B. Berndt, however, testified that it was “common knowledge” that K.B. was mentally challenged, and Kleypas testified that she could tell that K.B. exhibited signs of developmental delay when she first met her. This conflicting testimony provides a basis for the jury to discredit Barshaw’s credibility even without KB.’s testimony.

In addition, portions of Barshaw’s own testimony place him at the scene of the incident. Barshaw himself admitted that he was in the house alone with K.B. on the date of the incident in question, and consequently had the opportunity to engage in the charged acts. He further stated that he had grasped her shoulders and given her a kiss on the cheek when she told him it was her birthday. In addition, Barshaw admitted that he returned to the home the next day without having asked Berndt’s permission.

Given the testimony and physical evidence admitted at trial, I disagree with the majority that this was simply a “she said, he said” case. Further, even if the outcome rested solely on the jury’s credibility assessments of K.B., the fact that the prosecution is grounded on the credibility of the victim, while significant, is not conclusive in determining harm. Schutz II, 63 S.W.3d at 446. Even in cases in which credibility is paramount, Texas courts have found violations of Schütz I and Yount to be harmless where the record as a whole provides adequate assurance that the jury was able to exercise its function to determine the credibility of witnesses. See id. (holding error was harmless even though “the case against the appellant rested on the credibility of the complainant”).

Character of the Error

The next inquiry concerns the character of the error and its relationship to the other evidence. When asked about the ability of mentally retarded people to “fabricate or make up elaborate stories,” Barthlow stated:

Generally speaking if you’re — when we’re dealing with mental retardation and there’s not anything going on, there’s just a diagnosis of mental retardation, primarily, there’s not a personality disorder or something adding to that, it’s been my experience that folks with mental retardation can be painfully honest, really. I mean, it’s like a little kid who looks at somebody and says in the supermarket, “You’re really old,” or, you know, what little kids say.

The defense objected, indicating that the “testimony is not relevant because you cannot testify to a class of people being truthful.” The trial court overruled the objection, and Barthlow continued:

I was discussing individual’s mental retardation, and kind of their ability to make up things. I’m not going to say it would never happen. I mean, anybody is capable of making up something, but it’s very simplistic in nature. It would be — like I said, it would be like a lie that a child would tell, a story a child would make up. It would be very easy as an adult or parent to kind of see through that when you’re thinking of that. And, again, it’s been my experience in the hundreds and hundreds of people with mental retardation that I’ve seen, that it’s more going to be that they’re painfully honest. They haven’t learned the social skills and probably never will to know when you should lie or when it would be socially appropriate to not tell the truth because it might hurt someone’s feelings, or things of that nature, to hold things back. They just say what comes into their minds, very much, again, like a six- or seven-year-old child would. They see something and they make an observation, and they’re going to say that because they haven’t learned the social etiquette of when that’s appropriate and when that’s not appropriate.

As recognized above, portions of this testimony involve the propensity of mentally retarded people as a class to be truthful, and are consequently inadmissible under Schütz I and Yount. However, it is noteworthy that Barthlow equivocated at the start of the statement, saying, “I’m not going to say it would never happen. I mean, anybody is capable of making up something....” Cf. Long v. State, No. 12-07-00256-CR, 2009 WL 387018, at *3, 2009 Tex.App. LEXIS 1090, at *8 (Tex.App.-Tyler Feb. 18, 2009, no pet.) (mem. op., not designated for publication) (holding error harmful where expert “staked her reputation on her conclusion that there was nothing troubling about the complaining witness’s testimony and the State’s case”). In addition, the quoted passages constitute the entirety of Barthlow’s impermissible testimony. She did not revisit or expand her statements at any other time during the trial, nor did the State attempt to elicit any further testimony on the matter. See Garza v. State, No. 05-04-01104-CR, 2006 WL 22882, at *4, 2006 Tex.App. LEXIS 69, at *12 (Tex.App.-Dallas Jan. 5, 2006, pet. ref'd) (mem. op., not designated for publication) (noting that “[t]he State did not pursue the matter further” after erroneous admission of Schutz/Yount testimony in holding error harmless).

Further, an examination of the relationship of the error to the other evidence in the record indicates that the jury had much more than just Barthow’s testimony on which to gauge the credibility of K.B. See Schutz II, 63 S.W.3d at 446 (holding error harmless where inadmissible expert testimony was “a small portion of a large amount of evidence presented that the jury could have considered in assessing the victim’s credibility”). First and foremost, the jury was able to listen to KB.’s own testimony in its entirety, and to make its own determinations based on their observations of her during her time on the witness stand. The jury was also presented with the physical evidence described above, including evidence that K.B. had been penetrated in a manner consistent with the offense charged. Finally, the jury was able to hear the competing testimony of Barshaw in addition to character witnesses supporting Barshaw in making its determination. While the majority relies on the assertion that Barshaw “was, on the face of it, a credible witness,” the fact that the jury was able to evaluate his conflicting testimony reinforces the notion that the jury had a large amount of evidence to consider beyond the testimony of the expert in making its credibility determinations. See id. (indicating that harm of error was mitigated by amount of other evidence jury heard, including testimony that defendant “was a truthful, peaceful, law-abiding person who exhibited no unnatural sexual tendencies toward children”).

Jury Instructions

Turning to the instructions given to the jury, the record indicates that the jury was explicitly instructed, “You are the exclusive judges of the facts proved, of the credibility of the witnesses and of the weight to be given to the testimony.” This instruction reinforced the jury’s role in making credibility determinations. See Wilson v. State, 90 S.W.3d 391, 394 (Tex.App.-Dallas 2002, no pet.) (noting that “the trial court instructed [the jury] that they were the exclusive judges of a witness’s credibility” in finding error harmless).

Closing Argument

Finally, as noted by the majority, the State did not reference the inadmissible portion of Barthow’s testimony during closing. Further, the State began its argument, “You saw [K.B.] You got to see her in person. And that’s important, for you all to see her, to hear her, and to judge her credibility.” (Emphasis added.) The State also made other references to the credibility determination at the heart of the case, telling the jury, ‘You’re going to have to decide who you believe, [K.B.], or Mark Barshaw.” These statements indicated that the ultimate determination of credibility rested with the jury. See id. (noting that “[djuring closing arguments, the State emphasized to the jurors that they were the judges of [complainantj’s credibility and never referred to [inadmissible] testimony about the percentage of children who lie about being sexually abused” in finding error harmless).

Based on this review of the record as a whole, including the evidence admitted at trial, the character of the error and its relationship to the evidence, the instructions given to the jury, and the State’s closing argument, I conclude that there is a fair assurance that the error did not influence the jury, or had but a slight effect. See Schutz II, 63 S.W.3d at 444-46; Wilson, 90 S.W.3d at 394; Garza, 2006 WL 22882, at *4, 2006 Tex.App. LEXIS 69, at *12 (holding Schutz/Yount error harmless because jurors were presented with large amount of evidence to consider in making credibility determination, State did not pursue inadmissible evidence after admission of initial testimony, jury was instructed that it was sole judge of credibility of witnesses, and State did not reference SchntziYount testimony during closing). As I would therefore overrule Barshaw’s first issue and proceed to address his remaining issues on appeal, I respectfully dissent.

      . The prosecutor did not specify the type of act she was referring to, but we infer that she was inquiring into K.B.'s capacity for appraising or resisting a sexually assaultive act.

      . Berndt testified in rebuttal that K.B.’s birthday is December 30, and that she knows this.

      . While defense counsel alluded during closing to a statement K.B. made that she was "mad” at Barshaw prior to her outcry, the record contains no other indication of a motive for K.B. to lie or to concoct her story.

      . There is no evidence in the record to indicate that K.B. was sexually active at the time of the alleged incident. Porter, K.B.'s MHMR caseworker for two years, stated that to her knowledge, K.B. had never had a romantic or sexual relationship.

      .There was no blood, however, on the panties K.B. indicated she was wearing after the incident, nor was the DNA of any other person found on K.B.’s clothing or bedsheets.

      . The date of the incident was December 18th. Berndt testified that K.B.'s birthday is December 30th.


author: PER CURIAM. TOM GRAY, Chief Justice,

text:
    Kodell FOSTER, Appellant, v. The STATE of Texas, Appellee.
    No. 10-07-00358-CR.
    Court of Appeals of Texas, Waco.
    Sept. 1, 2010.
    Charles W. McDonald, Attorney at Law, Waco, TX, for Appellant.

      John W. Segrest, McLennan County District Attorney, Waco, TX, for Appellee.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
   ORDER

PER CURIAM.

Appellant Kodell Foster has filed an “Unopposed Motion to Stay, Execution of Set Aside or Withdraw Mandate.” The motion, which seeks to have this court recall its mandate, was filed in conjunction with Foster’s untimely second petition for discretionary review (for which a request for extension of time was filed but has been denied). For the reasons below, the court denies the motion.

The court issued a memorandum opinion in this case on June 3, 2009. After the filing and denial of Foster’s motion for rehearing, Foster, after obtaining an extension of time from the Court of Criminal Appeals, timely filed a petition for discretionary review on December 1, 2009. See Tex.R.App. P. 50. As allowed by Rule 50, this court issued a “memorandum opinion on petition for discretionary review” (also known as a “Rule 50 opinion”) on January 27, 2010 and withdrew the June 3, 2009 memorandum opinion that was the subject of, and attached to, the December 1 petition for discretionary review. Thereafter, no timely amended petition for discretionary review or new petition for discretionary review was filed, (see Tex.R.App. P. 50(a, b)), and the mandate was duly issued).

Foster then filed a second petition for discretionary review and the instant motion with this court on May 6, 2010, and a motion for extension of time, which the Court of Criminal Appeals denied. The Court of Criminal Appeals nevertheless requested that this court transmit the record, and it and both of Foster’s petitions for discretionary review were forwarded to the Court of Criminal Appeals.

The Clerk of this court received a copy of a June 9, 2010 letter from the Clerk of the Court of Criminal Appeals to Foster’s counsel. That letter states in full:

This Court is in receipt of the Appellant’s Petition for Discretionary Review in the above styled cause number. Records reflect an Opinion was issued by the 10th Court of Appeals on 01/27/2010 pursuant to T.R.A.P. Rule 50, affirming the conviction; a motion for rehearing was not filed. Petition for Discretionary Review was due in the 10th Court of Appeals on 02/26/2010. The 10th Court of Appeals issued mandate in the above styled cause on 05/04/2010.
The Appellant filed an extension of time to file Petition for Discretionary Review on 05/07/2010 and the motion was denied on 05/17/2010. Since the 10th Court of Appeals has issued mandate in the case, NO ACTION WILL BE TAKEN ON THIS PETITION. The petition is being placed in the file and the record is being returned to the 10th Court of Appeals.

In addition, on May 17, the Court of Criminal Appeals denied Foster’s identical “Unopposed Motion to Stay, Execution of Set Aside or Withdraw Mandate” that was filed in the Court of Criminal Appeals on May 7. Because the Court of Criminal Appeals has considered Foster’s two petitions for discretionary review and the issues surrounding them and has already denied Foster’s “Unopposed Motion to Stay, Execution of Set Aside or Withdraw Mandate” that was also filed in the Court of Criminal Appeals, this court denies Foster’s motion.

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice,

dissent to order.

We have a new set of rules. Let us follow them. As explained below, I would withdraw the mandate issued in this proceeding. Because the Court denies the motion under consideration, I respectfully dissent.

Pending before the Court is Foster’s Unopposed Motion to Stay Execution or Set Aside Mandate. Because of an error of this Court in failing to comply with the Rules of Appellate Procedure, specifically the failure to timely forward a petition for discretionary review to the Court of Criminal Appeals, the mandate was issued in this proceeding. The Court now refuses to withdraw the mandate which we had no authority to issue at the time that it was done.

The Court’s Errors

In this proceeding, we issued an opinion on June 3, 2009. After a timely filed motion for extension of time to file a motion for rehearing was granted, Foster filed a motion for rehearing. The motion for rehearing was denied. For some inexplicable reason, a mandate was erroneously issued by the Clerk of this Court on September 9, 2009. That erroneously issued mandate was recalled on our own initiative on September 16, 2009.

Foster, after having filed a motion for extension of time to file a petition for discretionary review, timely filed a petition for discretionary review on December 1, 2009. Thus, Rule 50 was triggered. Rule 50 provides:

50. Reconsideration on Petition for Discretionary Review
Within 60 days after a petition for discretionary review is filed with the clerk of the court of appeals that delivered the decision, the justices who participated in the decision may, as provided by subsection (a), reconsider and correct or modify the court’s opinion or judgment. Within the same period of time, any of the justices who participated in the decision may issue a concurring or dissenting opinion.
(a) If the court’s original opinion or judgment is corrected or modified, that opinion or judgment is withdrawn and the modified or corrected opinion or judgment is substituted as the opinion or judgment of the court. No further opinions may be issued by the court of appeals. The original petition for discretionary review is not dismissed by operation of law, unless the filing party files a new petition in the court of appeals. In the alternative, the petitioning party shall submit to the court of appeals copies of the corrected or modified opinion or judgment as an amendment to the original petition.
(b) Any party may then file with the court of appeals a new petition for discretionary review seeking review of the corrected or modified opinion or judgment, including any dissents or concurrences, under Rule 68.2.

Tex.R.App. P. 50 (emphasis added).

On January 27, 2010, within the 60-day window provided by Rule 50, the Court issued its Memorandum Opinion on Petition for Discretionary Review. At the same time, the previous opinion was withdrawn. Under the former version of Rule 50, upon the timely issuance of a new opinion, the “original petition for discretionary review is dismissed by operation of law.” Tex.R.App. P. 50 (Tex.Crim.App. 1997, amended 2008). The current version, however, provides for a dramatically different result. “The original petition for discretionary review is not dismissed by operation of law, unless the filing party files a new petition in the court of appeals.” Tex.R.App. P. 50.

This change in Rule 50 led to this Court’s second error (the first having been corrected by withdrawing the first erroneously issued mandate). The Clerk of the Court failed to timely forward the petition for discretionary review, which had been timely filed, to the Court of Criminal Appeals as required by the Rules. Specifically Rule of Appellate Procedure 68.7 provides:

68.7. Court of Appeals Clerk’s Duties
(a) On Filing of the Petition. Upon receiving the petition, the court of appeals clerk must file the original petition and note the filing on the docket.
(b) Reply. The opposing party has 30 days after the timely filing of the petition in the court of appeals to file a reply to the petition with the clerk of the court of appeals. Upon receiving a reply to the petition, the clerk for the court of appeals must file the reply and note the filing on the docket.
(c) Sending Petition and Reply to Court of Criminal Appeals. Unless a petition for discretionary review is dismissed under Rule 50, the clerk of the court of appeals must, within 60 days after the petition is filed, send to the clerk of the Court of Criminal Appeals the petition and any copies furnished by counsel, the reply, if any, and any copies furnished by counsel, together with the record, copies of the motions filed in the case, and copies of any judgments, opinions, and orders of the court of appeals. The clerk need not forward any nondocumentary exhibits unless ordered to do so by the Court of Criminal Appeals.

Tex.R.App. P. 68.7 (emphasis added).

At the time that this petition for discretionary review should have been forwarded to the Court of Criminal Appeals, the petition had not been dismissed by operation of law under Rule 50 by the filing of a new petition for discretionary review. Because it had not been dismissed by operation of law, the Clerk had no alternative under the Rule but to forward the petition for discretionary review to the Court of Criminal Appeals. Tex.R.App. P. 68.7(c). Had this error not occurred, much of the confusion created by subsequent events could have been avoided.

The next error, our third, was that the Clerk of the Court erroneously issued the second mandate. The Clerk of the Court of Appeals is authorized to issue the mandate only after the passage of a certain amount of time after the court of appeals judgment is rendered if certain specified events have not occurred. Tex.R.App. P. 18.1(a). Specifically, the rule provides:

18.1. Issuance
The clerk of the appellate court that rendered the judgment must issue a mandate in accordance with the judgment and send it to the clerk of the court to which it is directed and to all parties to the proceeding when one of the following periods expires:
(a)In the Court of Appeals.
(1) Ten days after the time has expired for filing a motion to extend time to file a petition for review or a petition for discretionary review if:
(A)no timely petition for review or petition for discretionary review has been filed;
(B) no timely filed motion to extend time to file a petition for review or petition for discretionary review is pending; and
(C) in a criminal case, the Court of Criminal Appeals has not granted review on its own initiative.
(2) Ten days after the time has expired for filing a motion to extend time to file a motion for rehearing of a denial, refusal, or dismissal of a petition for review, or a refusal or dismissal of a petition for discretionary review, if no timely filed motion for rehearing or motion to extend time is pending.
(b) In the Supreme Court and the Court of Criminal Appeals. Ten days after the time has expired for filing a motion to extend time to file a motion for rehearing if no timely filed motion for rehearing or motion to extend time is pending.
(c) Agreement to Issue. The mandate may be issued earlier if the parties so agree, or for good cause on the motion of a party.

Tex.R.App. P. 18.1 (emphasis added).

Because Foster had timely filed a petition for discretionary review that had not been dismissed by operation of law under Rule 50, the Clerk should not have issued the mandate. Tex.R.App. P. 18.1(a)(1)(A). Having erroneously issued the mandate, we should now recall it.

Ruling on the Motion

Foster has filed a motion asking that we recall the mandate or set it aside. The Court denies the motion. I disagree and would grant the motion and recall the mandate.

First, we have jurisdiction. Because the mandate was erroneously issued, we have jurisdiction to recall the mandate pursuant to Rule 19.3. Tex.R.App. P. 19.3(b) (“After its plenary power expires, the court cannot vacate or modify its judgment. But the court may ... (b) issue and recall its mandate as these rules provide”)

Second, the recall of the erroneously issued mandate is the right thing to do. The existence of the erroneously issued mandate is an impediment to Foster obtaining review of his petition for discretionary review. This is because of events that occurred after the mandate was issued.

The due date for a new petition for discretionary review directed against the Memorandum Opinion on Petition for Discretionary Review, if Foster wanted to file one, was February 26, 2010. After the mandate was erroneously issued and the petition for discretionary review was erroneously held at the Court of Appeals rather than being forwarded to the Court of Criminal Appeals as required, and due to illnesses and personal circumstances, the attorney missed the purported deadline for filing a new petition for discretionary review. But a second petition for discretionary review was filed with this Court on May 6, 2010. I will call it the “second” petition for discretionary review as Foster did, although it is more accurate to call it an amended or supplemental petition for discretionary review. See Tex.R.App. P. 68.10. Foster also filed a belated motion to extend the time in which to file the second petition for discretionary review. That motion was denied by the Court of Criminal Appeals.

Based upon my review of the documents, it is clear that the judges on the Court of Criminal Appeals were unaware that a previous petition for discretionary review had already been timely filed and had not been dismissed pursuant to Rule 50 and had not been previously acted upon by the Court since the Court of Criminal Appeals Clerk did not docket it as required by Rule 68.8. It also seems clear that the Court of Criminal Appeals treated the second petition as if it was the first and only petition filed in this proceeding.

When the circumstances of the erroneous issuance of the mandate came to my attention by the motion to set aside or withdraw the mandate, it obviously caused me to question why the mandate had been issued. That is when I learned that the Clerk had treated the previously filed petition for discretionary review as it would have been treated under the former version of Rule 50 and failed to forward the petition to the Court of Criminal Appeals as required by the Rule as amended. Previously, the petition for discretionary review would have been dismissed by operation of law. But this situation is one of a myriad of situations to which the rule change is applicable. So my recommendation, at that juncture, was simply to send everything to the Court of Criminal Appeals so that the judges there would be fully apprised of our errors. Thus, the Court of Criminal Appeals could consider what the effect was of filing the second petition for discretionary review given that, if it was actually treated as a second petition for discretionary review, it was untimely but could be considered an amendment or supplement to the first and timely filed petition for discretionary review and thus considered on the merits.

Regardless of the timeliness of the second petition for discretionary review, the first petition for discretionary review had never been acted upon. And unless the second petition for discretionary review could be untimely for being considered on the merits, but could be timely to have the effect of dismissing the first petition for discretionary review by operation of law, a result which seems patently absurd to me, the first petition for discretionary review remains a viable petition for discretionary review of Foster’s complaints about this Court’s judgment.

However, the Clerk of the Court of Criminal Appeals returned both petitions for discretionary review to this Court and sent the following letter to Foster:

This Court is in receipt of the Appellant’s Petition for Discretionary Review in the above styled cause number. Records reflect an Opinion was issued by the 10th Court of Appeals on 01/27/2010 pursuant to T.R.A.P. Rule 50, affirming the conviction; a motion for rehearing was not filed. Petition for Discretionary Review was due in the 10th Court of Appeals on 02/26/2010. The 10th Court of Appeals issued mandate in the above styled cause on 05/04/2010.
The Appellant filed an extension of time to file Petition for Discretionary Review on 05/07/2010 and the motion was denied on 05/17/2010. Since the 10th Court of Appeals has issued mandate in this case, NO ACTION WILL BE TAKEN ON THIS PETITION. The petition is being placed in the file and the record is being returned to the 10th Court of Appeals.

(Emphasis in original).

So to say the least, the erroneous issuance of the mandate by the Clerk is critical to Foster obtaining a review of this Court’s judgment. The erroneous issuance of that mandate is apparently what is preventing Foster from obtaining the Court of Criminal Appeals’ review of his petition for discretionary review.

Finally, regardless of the effect of the second filed petition for discretionary review as to dismissing the first filed petition for discretionary review by operation of law, it could not have been the basis for this Court to have issued its mandate. The mandate issued 3 days before the second petition for discretionary review was filed. Thus it is without question that at the time we issued the mandate, there was a timely filed petition for discretionary review that should have already been in the hands of the Court of Criminal Appeals that had not been, and still has not been, acted upon. Accordingly, it is beyond question that it was error for the mandate to issue at the time and under the circumstances that it did.

Conclusion

For the reasons as expressed, I would grant the motion by recalling the mandate that was erroneously issued. Because the Court denies the motion, I respectfully dissent.

      . This motion, which contains both this court’s cause number as the lead cause number and a Court of Criminal Appeals cause number (No. PD-1325-09), was filed in this court on May 6, 2010. The same motion (but with the Court of Criminal Appeals cause number as the lead cause number) was also filed in the Court of Criminal Appeals on May 7, 2010. The bodies of the two motions are identical.

      . Previously, in Guyton v. State, No. 10-07-00070-CR, 2009 WL 290935, after this court had issued a Rule 50 opinion on February 6, 2009, the Clerk forwarded the record and the petition for discretionary review to the Court of Criminal Appeals on February 10, 2009. A week later, the Clerk of the Court of Criminal Appeals returned the record with a February 17 letter stating the following:
      This Court is returning the record in the above styled and numbered cause number because the parties still have time in which to file petitions for discretionary review. See Tex. R. App. P. 50(b) and 68.2. As pertinent to this case, and in accord with rule 68.2, the parties have 30 days after the day the court of appeals renders judgment to file a petition for discretionary review. Then see rule 68.7(c) for forwarding to this Court.
      For this reason, Foster's December 1 petition for discretionary review and the record were not forwarded to the Court of Criminal Appeals.
      As a result of telephone communications between the Clerk of this court and the Court of Criminal Appeals' Clerk's office after the filing of Foster's second petition for discretionary review, the Clerk of this court is under the impression that it was proper to not have forwarded Foster’s December 1 petition for discretionary review and the record to the Court of Criminal Appeals.

      .The instant motion explains Foster’s counsel’s personal circumstances relating to the untimely second petition for discretionaty review.

      . The letter came to this court with the record. Included was Foster’s first petition for discretionary review, and it was returned with a diagonal line marked across it with the notation, "Rule 50."

      . This court received notice of the Court of Criminal Appeals' ruling by email on May 17. The Clerk of the Court of Criminal Appeals has subsequently provided this court with the Court of Criminal Appeals’ file-marked copy of the motion and its letter ruling in connection with its return of the petitions for discretionary review and the record.

      . The first filed petition was returned with a strike mark diagonally across it with the notation "Rule 50” hand written next to the strike mark. It is not at all clear who made the determination to not process the first filed petition. See Tex.R.App. P. 68.8

      . While I believe this Court's judgment is correct, that belief does not justify cutting off Foster’s opportunity for review. Further, this process is more efficient than requiring Foster to file a petition for writ of habeas corpus for an out of time petition for discretionary review to which, based on the basis given by his counsel, he is almost assuredly entitled.


author: PER CURIAM.

text:
    2009 Ark. 303
    Carl Lee LINELL, Sr., Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.
    No. 08-142.
    Supreme Court of Arkansas.
    May 21, 2009.
    Carl Lee Linell, Sr., pro se.
    Dustin McDaniel, Att’y Gen., for appel-lee.
   PER CURIAM.

|TIn 2007, appellant Carl Lee Linell, Sr., filed a pro se petition for judicial review in the county where he was incarcerated in the Arkansas Department of Correction (“ADC”). Appellant brought the petition pursuant to Arkansas Code Annotated § 25 — 15—212(b)(3), which is contained within the Administrative Procedure Act (“APA”), currently codified as Arkansas Code Annotated §§ 25-15-201-217 (Repl. 2002 & Supp.2007). Therein, appellant sought review of ADC actions, policies, and procedures that appellant contended violated his due-process rights under the Fourteenth Amendment of the United States Constitution. The appellee filed a motion to dismiss the petition, and the trial court granted the motion with prejudice. Appellant has lodged a pro se appeal here from the order.

12This appeal arises from four major disciplinary charges filed against appellant while incarcerated. The charges allege that on December 17, 1999, appellant violated disciplinary rules 06-1 (demanding/receiving money or favors or anything of value in return for protection against others, to avoid bodily harm, or being informed upon), 05-3 (assault — any willful attempt or threat(s) to inflict injury upon the person of another), 04-3 (rape or forced sex act), and 17-1 (any act or acts defined as felonies or misdemeanors by the State of Arkansas).

A hearing was held in January 2000, and appellant was found to have committed the violations. Appellant then appealed the decision. On March 27, 2000, the appellee affirmed the ruling and found that appellant “failed to provide any additional evidence that would warrant modification or reversal of the hearing officer’s decision.”

As punishment for the violations, appellant received thirty days of punitive isolation, forfeited 365 days of good time credits, and was reduced from Class III inmate status to Class IV status. He also contends that after completion of the punitive isolation punishment, he was assigned to administrative segregation “for several months” by the Unit Classification Committee and then released into the general prison population in mid-2000.

Subsequently, in 2005, ADC enacted a policy that was based on the federal Prison Rape Elimination Act of 2003. The ADC Prison Rape Elimination Act (“PREA”) |?,supported a zero-tolerance standard regarding incidences of rape in ADC facilities. The act established a mechanism whereby any inmate who had been found guilty of the disciplinary charge of rape would be considered by the Unit Classification Committee as eligible for assignment to segregated single-cell housing.

As an exhibit attached to the petition for judicial review, appellant presented an ADC Administrative Segregation Review form dated January 10, 2007. The form indicated that appellant had initially been assigned to segregated housing on May 11, 2005, which was the date that the ADC PREA policy took effect.

The form also indicated that in January 2007, the Unit Classification Committee found appellant to be “a threat to the security and good order of the institution” as well as a PREA inmate. On those bases, the Committee approved appellant’s continued segregation from the general prison population.

Appellant then sought disclosure of the basis for his PREA-inmate status. In response, the VSM (Varner Maximum Security Unit or Varner Super Max) Classification Officer, Revonna Walker, informed appellant that his PREA status was based on the conviction for the rape that occurred in 1999.

In April and May 2007, appellant filed three grievance complaints pertaining to various allegations. Initially, the warden ruled that appellant’s grievances concerned | ¿disciplinary matters, racial discrimination accusations, and multiple other issues that were unsubstantiated and untimely raised. Appellant appealed from the warden’s determination.

On August 17, 2007, the deputy director issued decisions that denied appellant’s appeals on the same bases as the warden’s initial denial, and further found that appellant had failed to comply with the page limitation set for grievance forms. The deputy director specifically held that appellant was complaining about matters that occurred in 1999, 2000 and 2005, and that the time to file grievances from those matters had since expired.

Thereafter, on October 22, 2007, appellant filed the petition for judicial review of ADC’s actions in circuit court. In the petition, appellant sought a review of the 1999 major disciplinary form and subsequent determination by an ADC hearing officer that appellant violated four major disciplinary rules. Appellant’s petition focused specifically on ADC’s claim and determination that appellant violated Disciplinary Rule 04-3, rape or forced sex act. He also asked the court to scrutinize the March 27, 2000 ruling that upheld a hearing officer’s decision that appellant violated Disciplinary Rule 04-3.

Appellant further asked that ADC decisions regarding his status as a PREA inmate be reviewed. Appellant was initially designated as a PREA inmate and assigned to segregated housing on May 11, 2005. On January 10, 2007, ADC continued appellant’s PREA-inmate designation. Thereafter, appellant’s grievances concerning myriad issues, [ including an objection to segregated housing for PREA inmates, were denied at the highest level of the grievance process on August 17, 2007.

In addition to review of ADC’s actions, appellant sought a declaration that ADC violated appellant’s constitutional rights, an injunction against ADC directing it to refrain from unlawfully punishing appellant in the future, a reversal of his conviction for rape and expungement of the offenses from his ADC record, a release from PREA housing and restoration of all privileges.

The circuit court dismissed appellant’s petition because the court found that appellant’s petition was prohibited by the Administrative Procedure Act. Under the APA, judicial review is generally not available to an “inmate under sentence to the custody of the Department of Correction.” Ark.Code Ann. § 25-15-212(a). The ADC’s administration of prisons “has generally been held to be beyond the province of the courts.” Clinton v. Bonds, 306 Ark. 554, 557, 816 S.W.2d 169, 171 (1991). Nevertheless, section 25-15-212(a) has been interpreted to not preclude an inmate’s assertion of an “infringement upon [his] constitutional rights.” 306 Ark. at 557, 816 S.W.2d at 171-72.

Here, we need not reach a determination of whether appellant’s claims fit within the exception to section 25-15-212(a) that has been elucidated by Clinton v. Bonds, supra. Even if the question were to be answered in the affirmative, appellant would still be precluded | nfrom seeking judicial review of ADC’s actions pursuant to the APA as the petition was untimely filed.

In the last decisions issued by the ADC, the deputy director found that appellant’s grievances were untimely as they pertained to matters that occurred in 1999, 2000 and 2005. In the petition and on appeal, appellant does not address that aspect of the August 17, 2007 rulings. Instead, appellant appears to have utilized the grievance procedure to “boot strap” matters that occurred in 1999, 2000, and 2005 into rulings issued in 2007. Indeed, appellant’s arguments focus almost exclusively on the matters that occurred in 2005 and before.

Moreover, section 25-15-212(b)(l) of the APA requires that petitions for judicial review be initiated “within thirty (30) days after service upon petitioner of the agency’s final decision.” The record on appeal supports the conclusion that the October 22, 2007 petition was filed more than thirty days after appellant was served with copies of the ADC’s final decisions. While appellant may not have been served with copies of the final decisions on August 17, 2007, the record reflects that appellant was served with copies of the decisions no later than September 8, 2007. On that date, appellant signed the petition for judicial review. Even if we accept September 8, 2007, as the date of service, the petition was not filed until October 22, 2007, which is more than thirty days after service upon appellant of|7ADC’s final decisions.

In sum, appellant failed to rebut the untimely filing of grievances about matters that occurred in 1999, 2000 and 2005. Also, the record supports the conclusion that the petition for judicial review was filed more than thirty days after appellant was served with copies of the August 17, 2007 rulings issued by the ADC. Appellant is therefore precluded from seeking a remedy under the Administrative Procedure Act. Ark.Code Ann. § 25 — 15—212(b)(1).

Affirmed.

      . Appellant notes that he is not eligible to earn good time credits because he has been sentenced to life imprisonment without parole.

      . The Act is codified as 42 U.S.C. §§ 15601— 609 (Supp. III 2000).

      .The original grievance forms were not included as exhibits to the petition for judicial review.

      . Although PREA-status review may apparently be performed periodically or at specific intervals, and appears to be continuing in nature, appellant brings only these two dates to our attention. Also, he did not provide any information about the review process.

      . By resolving this matter based on the statute of limitations, we make no determination as to the validity of any claims raised by appellant, constitutional or otherwise.

      . Appellant’s petition to proceed in forma pauperis was denied and the trial court entered an order on September 11, 2007, requiring the tender of an initial partial filing fee in the amount of $59. The order authorized and directed the circuit clerk to file appellant’s petition upon receipt of the initial partial filing fee. Nothing contained in the file demonstrates that the clerk received the initial partial filing fee before October 22, 2007.